In re Streit

76 A.D.2d 250, 905 N.Y.S.2d 568

This text of 76 A.D.2d 250 (In re Streit) 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 Streit, 76 A.D.2d 250, 905 N.Y.S.2d 568 (N.Y. Ct. App. 2010).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent Martin S. Streit1 was admitted to the practice of law in the State of New York in the First Judicial Department on June 27, 1956 under the name Martin Stanley Streit, and at all times relevant to this matter has maintained an office for the practice of law within the First Judicial Department.

In April 2008, the Departmental Disciplinary Committee served respondent with six charges. Charges one through three alleged that respondent’s failure to produce a client file in compliance with a subpoena and his overall failure to cooperate in an investigation, which necessitated two motions for immediate suspension, constituted conduct prejudicial to the administration of justice, in violation of Code of Professional Responsibility DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5])„2

Charge four alleged that respondent’s failure to register with the Office of Court Administration for the period 2006-2007 was also conduct prejudicial to the administration of justice, in violation of DR 1-102 (a) (5). Respondent subsequently paid his registration fees, and this charge is now moot. Charge five alleged that respondent neglected a client matter, in violation of DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]).3 Charge six alleged that all of the above-mentioned conduct adversely reflected on respondent’s fitness as a lawyer, in violation of DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]).4

The Referee sustained all the charges and recommended a sanction of a suspension from the practice of law for at least [252]*252one year. The Hearing Panel agreed with the liability findings and also recommended a suspension of one year.

The Committee moves to confirm. Respondent requests dismissal of all the charges, or, in the alternative, a sanction no more severe than a public censure.

A Referee held hearings on June 13 and July 14, 2008. In January 1992, Audrey Holmes retained respondent in connection with an automobile accident that had occurred earlier that month. Respondent filed a personal injury action in January 1995. One of the defendants, Willie Williams, the driver of the car in which Holmes was a passenger, married her after the commencement of the action but died in 1999. By order dated September 21, 2004, the court directed Holmes to apply for the appointment of a personal representative for Williams; the order stated that failure to effectuate an appointment within 120 days would result in dismissal of the action.

In February 2005, two of the defendants moved to dismiss the action, based on plaintiffs failure to obtain appointment of a personal representative. One day before the motion’s return date, respondent requested an adjournment based on his engagement in a criminal trial on the return date; his relocation of offices in November 2004, during which his “file was misplaced”; and his hospitalization from February 3 to 9, 2005 for a-“serious injury” and his continuous outpatient treatment thereafter. By order entered March 31, 2005, the court dismissed the complaint upon default; respondent conceded at his deposition that he had defaulted. Respondent filed a notice of appeal to Appellate Term in July 2005. He never perfected the appeal, however, and in October 2009, one of the defendants moved to dismiss that appeal for failure to prosecute, which motion is apparently still pending. In November 2007, respondent filed a motion with the trial court to vacate the dismissal, which motion was adjourned a number of times and apparently remains unresolved.

Meanwhile, in February 2005, while the motion to dismiss the personal injury action was pending, Holmes filed a complaint with the Committee, stating that she had had contact with respondent only three times since the commencement of the action, and that he had not returned any of her numerous telephone messages after December 2004. By letter dated March 1, 2005, the Committee notified respondent of the complaint and requested a response within 20 days. After the deadline passed and the Committee warned that failure to respond could [253]*253result in immediate suspension, respondent requested a 30-day extension, on the ground that he had moved offices the prior November and was “finally forward[ed] the mail of the alleged complaint”; he also stated that he had “recently sustained a serious leg injury” for which he had been hospitalized for five days and thereafter treated as an outpatient.

That adjournment date and three subsequent ones passed without any communication from respondent, compelling the Committee to telephone him. When the Committee gave respondent yet another opportunity, he was advised over the telephone, and received confirmation in writing, that even if the client were to withdraw the disciplinary complaint, he would be required to submit an answer by October 31, 2005. Respondent obtained from the client a signed withdrawal dated October 24, 2005. On three occasions (November 1, December 9 and 27, 2005) the Committee reminded respondent that he was still obligated to submit an answer.

By subpoena dated March 6, 2006, respondent was directed to appear for deposition and produce his client files. At the deposition, respondent promised to supply an answer in four weeks, but then requested two more adjournments, claiming that he had moved offices again and suffered a hand injury. Eventually, the Committee moved for immediate suspension based on noncooperation, but withdrew the motion upon finally receiving his answer in October 2006.

Following respondent’s repeated failure to supply requested documents and information, the Committee served a second subpoena. At the ensuing deposition, respondent conceded that he had been “remiss” in not responding to the Committee’s requests, and promised to supply a chronology for the personal injury action, and a copy of a motion to vacate the dismissal of that action, which he planned to make by the end of the following month; he also stated that if he were unsuccessful in the action, he would personally pay the client the $10,000 she was seeking in damages.

Despite a followup letter from the Committee, respondent did not supply the requested information, and the Committee obtained another subpoena. A Committee investigator unsuccessfully attempted personal service twice at respondent’s office, and thereafter affixed and mailed a copy to his personal residence. Respondent did not appear for the deposition, and the Committee moved for immediate suspension for failure to cooperate. This Court denied the motion, with leave to renew if [254]*254respondent failed to produce his file at deposition. Upon being served with that order, respondent appeared for deposition and produced his files, which included a motion to vacate the dismissal of the personal injury action, dated November 21, 2007 and returnable December 20, 2007.

Respondent denied receiving the subpoena that had been affixed and mailed to his Bronx residence, claiming that he was staying with a friend in Queens over a four-month period because he needed assistance with his leg injury, and that he never had his mail forwarded during that time.

With respect to his handling of the personal injury matter, respondent testified that he had kept Holmes aware of the progress of her case by telephone and written communication; he asserted he had copies of cover letters sent to Holmes, but never produced them.

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Bluebook (online)
76 A.D.2d 250, 905 N.Y.S.2d 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-streit-nyappdiv-2010.