In re Perrini

232 A.D.2d 138, 662 N.Y.S.2d 445, 1997 N.Y. App. Div. LEXIS 7830
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 24, 1997
StatusPublished
Cited by6 cases

This text of 232 A.D.2d 138 (In re Perrini) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Perrini, 232 A.D.2d 138, 662 N.Y.S.2d 445, 1997 N.Y. App. Div. LEXIS 7830 (N.Y. Ct. App. 1997).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent, Joseph J. Perrini, Jr., was admitted to the [139]*139practice of law in the State of New York by the Second Judicial Department on June 19, 1968, as Joseph John Perrini, Jr. At all times pertinent to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.

A Hearing Panel held hearings on this matter over the course of nine days and sustained charges of misconduct against respondent stemming from his representations of former clients in five different transactions, and recommended that respondent be disbarred.

The Departmental Disciplinary Committee moves for an order confirming the Hearing Panel’s findings of fact and conclusions of law, and imposing disbarment as a sanction.

By cross motion, respondent’s attorney seeks an order disaffirming that portion of the Hearing Panel’s report which sustained charges of professional misconduct against respondent, affirming that portion of the report which did not sustain charges 12 and 13, and dismissing the sustained charges. In the alternative, respondent’s counsel suggests that, if this Court deems it appropriate to confirm the Hearing Panel’s findings, it impose a sanction less severe than disbarment— such as public discipline.

1. Manginelli (Charges 1 through 7)

In 1992, Joseph Manginelli retained respondent to represent him in connection with the sale of real property Manginelli owned in Staten Island. Although a first contract of sale—to BTK Building Corp.—fell through, the property was eventually sold to a Mr. and Mrs. Liharevic. Charges 1 through 4 pertain to respondent’s representation of Manginelli in the aborted sale to BTK; charges 5 through 7 pertain to respondent’s representation of Manginelli in the sale to the Liharevics.

(A) Manginelli to BTK

On August 17, 1992, in connection with the contract of sale, BTK delivered a deposit of $9,700 to respondent to be held in escrow until closing. Respondent deposited the funds into an escrow account at Marine Midland Bank on September 25, 1992. During October of that year, respondent wrote checks against the Marine Midland account which reduced the balance therein to below the amount of BTK’s deposit. In late October or early November, BTK’s counsel notified respondent [140]*140that BTK’s mortgage application had been rejected and requested the immediate return of the down payment. Respondent denied the request, informing BTK’s counsel that, as a result of BTK’s failure to deal in good faith in this transaction, he would retain the funds that he was then "holding in escrow” until a court determined the rightful owner. Thereafter, respondent wrote several additional checks against the Marine Midland account, entirely depleting the disputed down payment.

Meanwhile, BTK commenced an action in Richmond County to recover the down payment. In opposition to BTK’s motion for summary judgment in that action, respondent submitted an affidavit to the court in which he stated, "I am prepared to tender to the Court Clerk the $9,700 contract deposit held in my escrow account.” Despite this assertion, the escrow account then contained only $263. On June 7, 1993, BTK’s summary judgment motion was granted. Two days later, respondent deposited $9,700 into an escrow account at Citibank. Then, on June 18, 1993, respondent withdrew $9,700 from the Citibank escrow account in the form of a cashier’s check payable to BTK and sent it to BTK’s counsel.

In defense of his actions, respondent first claimed that BTK’s counsel had declared the contract to be null and void at the end of September and that, as a result, it was his legal opinion that the down payment then belonged to his client. At the hearings, Manginelli testified that he thereafter authorized respondent to use the down payment as repayment of a loan.

Based on the foregoing, the Panel concluded that respondent intentionally converted to his own use the $9,700 down payment (in violation of Code of Professional Responsibility DR 1-102 [A] [4], [5] [22 NYCRR 1200.3]) and that he misrepresented the status of those monies to opposing counsel and to the Court (in violation of DR 9-102 [B] [1] [22 NYCRR 1200.46]). Consequently, the Panel sustained charges 1 through 4. Charges 1, 2 and 4 charge respondent with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation and with engaging in conduct prejudicial to the administration of justice (DR 1-102 [A] [4], [5]). Count 3 charges respondent with failing to preserve the identity of funds belonging to a third party (DR 9-102 [B] [1]).

While respondent points out that Mr. Manginelli’s testimony corroborated his contention that he believed that he was entitled to the BTK down payment to satisfy a loan, the money in his escrow account was held for the benefit of BTK and his [141]*141client could not give him leave to invade the escrow. Accordingly, the Panel’s finding that respondent intentionally converted to his own use the $9,700 down payment in violation of DR 1-102 (A) (4) is affirmed as are the findings with respect to the remainder of the charges.

(B) Manginelli to Liharevic

In January of 1993, Nezir and Tanusha Liharevic signed a contract of sale for the same Staten Island property and gave respondent a $5,000 down payment to hold in escrow until closing. On February 10, 1993, the $5,000 was deposited into respondent’s personal and business checking account at Citibank. By the time the transaction closed on May 11, 1993, respondent had spent the entire $5,000 on personal and business expenses. Meanwhile, however, on May 7, 1993, respondent delivered to Mr. Manginelli $5,000 from an undisclosed source.

The Hearing Panel properly rejected respondent’s explanation that the bank had erroneously deposited the funds into his personal account. Among other inconsistencies, the Panel pointed out that respondent did not even have a general purpose escrow account at Citibank at the time he instructed the manager to deposit the funds. The Panel found respondent’s credibility to be undermined further by the activity in the Citibank account during that time period: on February 10, 1993, the balance in the Citibank account was only $66.16; within two weeks after the down payment was deposited therein, respondent wrote checks totalling about $4,434 (for his office rent, personal mortgage, and to himself). Consequently, without those funds, respondent would have severely overdrawn his personal account.

On the basis of these findings, the Panel concluded that respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation by commingling the $5,000 with his own funds and intentionally converted to his own use the escrow funds, in violation of DR 1-102 (A) (4) and DR 9-102 (A) and (B) (1). Accordingly, the Panel properly sustained charges 5 through 7.

2. The Chiarkas Matter (Charges 8 through 13)

Six charges were asserted against respondent arising out of his representation of Marie Chiarkas on a contingency basis in a personal injury action. Ultimately, the Panel sustained four of the charges.

[142]*142Briefly stated, Marie Chiarkas retained respondent in 1990 to represent her in a personal injury action against Chatham Green, the co-op apartment building where she lived.

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Bluebook (online)
232 A.D.2d 138, 662 N.Y.S.2d 445, 1997 N.Y. App. Div. LEXIS 7830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-perrini-nyappdiv-1997.