In re Terzis

274 A.D.2d 230, 712 N.Y.S.2d 99, 2000 N.Y. App. Div. LEXIS 8229
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 27, 2000
StatusPublished
Cited by7 cases

This text of 274 A.D.2d 230 (In re Terzis) 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 Terzis, 274 A.D.2d 230, 712 N.Y.S.2d 99, 2000 N.Y. App. Div. LEXIS 8229 (N.Y. Ct. App. 2000).

Opinion

OPINION OF THE COURT

Per Curiam.

Respondent was admitted to the practice of law in the State [231]*231of New York by the First Judicial Department on June 20, 1960. He is also admitted to practice as an attorney and counselor-at-law in Connecticut.

The Departmental Disciplinary Committee (hereinafter the Committee) seeks an order, pursuant to Rules of this Court (22 NYCRR) § 603.3, suspending respondent in accordance with the one-year suspension imposed by the Superior Court of Connecticut for the Judicial District of Hartford-New Britain on September 23, 1998 for commingling and misappropriating $2,039.37 while he was serving as president of Sunmore Condominium Association (Sunmore) to pay his personal office and residential expenses, in violation of rules 1.15 and 8.4 of the Connecticut Rules of Professional Conduct, or in the alternative, sanctioning respondent as this Court deems appropriate. In support of its petition, the Committee asserts that respondent is precluded from raising any defense enumerated in 22 NYCRR 603.3 (c). Respondent was served by publication pursuant to an order of the Presiding Justice, entered December 1, 1999, and has not appeared or answered the instant petition.

The charges against respondent are the result of a complaint filed by one Janet Tracy with the Connecticut Statewide Grievance Committee on February 5, 1993, alleging that respondent had misappropriated funds from Sunmore between 1988 and 1990 while serving as president of the condominium association. In reviewing the complaint, the Grievance Committee determined that there was probable cause that respondent engaged in professional misconduct and the matter was referred to a Reviewing Committee for a hearing to determine if there was clear and convincing evidence that respondent engaged in professional misconduct.

Hearings were held on September 8, 1993 and November 10, 1993 at which respondent testified and presented witnesses in his defense. After the hearing, the Reviewing Committee determined that respondent had commingled and misappropriated condominium funds, in violation of Connecticut Rules of Professional Conduct, rules 1.15 and 8.4. The Reviewing Committee recommended that the Grievance Committee file a formal presentment against respondent with the Superior Court for the imposition of whatever discipline the court deemed appropriate. The Grievance Committee agreed with the Reviewing Committee and respondent was duly advised of its decision by letter dated August 18, 1994. On April 28, 1995 the Grievance Committee filed a presentment and an application for order of notice.

[232]*232Respondent was duly advised of the Superior Court order setting the matter down for hearing on July 12, 1995. Prior to the hearing, respondent made two motions to dismiss the presentment, which motions were denied by the Superior Court. On May 27, 1998, respondent entered into a stipulation with the Grievance Committee whereby he admitted to using Sun-more’s funds to pay personal expenses.

The facts developed at the hearing, as supplemented by respondent’s stipulation, establish that, during the two-year period in which respondent served as president of Sunmore, he paid approximately seven electric bills for his personal residence and 17 electric bills for his office from the Sunmore checking account. Two members of the executive committee were required to and did in fact sign all checks on behalf of the condominium association. The total amount so paid was $2,039.27. Said payments came to light after July 1990, as a result of an audit by a certified public accountant. Respondent, upon being advised of the accountant’s findings, repaid said amount to the condominium association the same day, less a previously paid special assessment of $750, which was subsequently rescinded by the board of directors, and respondent’s legal fee of $350 for a foreclosure proceeding for unpaid common charges in which he represented the condominium association.

In defense of the charge that he violated Connecticut rule 8.4 (3), respondent argued that he lacked a fraudulent motive. At the hearing before the Reviewing Committee, respondent claimed that his wife mistakenly mixed his personal utility bills with the utility bills for the association, that he failed to realize this error, and, as a result, he accidently paid for personal expenses with funds from Sunmore’s account. Respondent’s wife testified at the hearing and corroborated respondent’s version of events.

Based upon respondent’s stipulation as well as his testimony at the hearing conducted by the Reviewing Committee, the Superior Court held that the Grievance Committee had sustained its burden of proving a violation of Connecticut rules 8.4 (3) and 1.15.

In this proceeding, respondent is precluded from raising any defense of lack of due process, pursuant to 22 NYCRR 603.3 (c) (1), in light of his appearance in the Connecticut disciplinary proceeding and his admission to the facts underlying those charges. The Committee also asserts, and we find, that respondent has no defense under 22 NYCRR 603.3 (c) (2) because the [233]*233Superior Court’s findings are supported by the record. The court found that the facts presented by respondent did not constitute a defense to the charge that respondent “engaged in conduct involving dishonesty, fraud [,] deceit or misrepresentation” in violation of rule 8.4 (3), stating: “Mr. Terzis maintains that the checks were signed inadvertently and that his wife was responsible for the ‘confusion’; this court does not agree. In order to write the checks, he would first have to review the electric bill. Then he would be required to total the different accounts and, at the least at times, place the account numbers(s) on the checks. Mr. Terzis was not simply acting as a scribe; he ‘served in an executive position’ with the association and, he testified that he is both a CPA and a lawyer. It was surely his duty, at a minimum, to inquire or investigate which account was being paid. Of great significance to this court is Mr. Terzis’ own testimony that even though he was the person who paid his family’s bills, he never thought it odd — for such a long period of time — that he was not regularly paying any electric bills for his home and office.”

While we note that the Superior Court did not find that respondent intentionally converted the condominium funds, it nevertheless held that respondent’s indifference to his legal obligation was sufficient to sustain the charge. The court wrote: “The seven payments for the personal residence and the seventeen payments for the office certainly indicate to this court, at a minimum, an indifference to a legal obligation and a violation of Rule 8.4 (3). Repeatedly writing checks for one’s own benefit, on another’s account, when charged with the care of the account constitutes a violation of the rule. To conclude otherwise, in a situation in which the simplest act of prudence would have presented such action, is not possible.”

Finally, the Committee asserts that respondent has no defense under 22 NYCRR 603.3 (c) (3) because the misconduct for which respondent was disciplined by the Connecticut Superior Court constitutes misconduct in New York.

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Cite This Page — Counsel Stack

Bluebook (online)
274 A.D.2d 230, 712 N.Y.S.2d 99, 2000 N.Y. App. Div. LEXIS 8229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-terzis-nyappdiv-2000.