In re Wasserman

62 A.D.3d 202, 876 N.Y.S.2d 128, 2009 NY Slip Op 2616, 2009 N.Y. App. Div. LEXIS 2778

This text of 62 A.D.3d 202 (In re Wasserman) 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 Wasserman, 62 A.D.3d 202, 876 N.Y.S.2d 128, 2009 NY Slip Op 2616, 2009 N.Y. App. Div. LEXIS 2778 (N.Y. Ct. App. 2009).

Opinion

OPINION OF THE COURT

Per Curiam.

The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a verified petition dated March 5, 2007 containing eight charges of professional misconduct. After a preliminary conference on October 22, 2007 and a hearing on December 13, 2007, the Special Referee sustained all eight charges. The Grievance Committee now moves to confirm the Special Referee’s report and to impose such discipline upon the respondent as the Court deems just and proper. The respondent’s counsel has submitted an affirmation in response requesting that the Court, in making its determination as to whether the imposition of sanctions is appropriate, give careful consideration to the mitigating factors present, the corrective measures undertaken by the respondent, and the Special Referee’s finding relative to the credibility and remorse demonstrated by the respondent.

Charge one alleges that the respondent neglected a legal matter entrusted to him by failing to properly commence and pursue a breach of contract action on behalf of his client, Yefim Melamed, and by failing to communicate with that client with respect to that same matter, in violation of Code of Professional Responsibility DR 6-101 (a) (3) (22 NYCRR 1200.30 [a] [3]).

On or about May 14, 2003, the respondent entered into a retainer agreement with Melamed whereby he agreed to represent him and two companies under his control, Alliance Human Resources, Inc. and Human Problem Solutions, Inc., in a breach of contract action against Dr. Mamedova Braz, Maya Gurevich, and Community Related Services, Inc. (hereinafter collectively the Braz defendants). On or about May 20, 2003, the respondent received the sum of $20,000 towards the $30,000 initial retainer.

On or about October 14, 2003, the respondent filed a summons and verified complaint dated September 12, 2003, in the [204]*204Supreme Court, Nassau County, in connection with the Melamed action. The pleadings were inconsistent in that the summons named Melamed as the sole plaintiff while the complaint named three plaintiffs. Moreover, the complaint filed contained blanks in the body of the text and handwritten notations in the margin.

Although Melamed alerted the respondent to the incorrect captions, the respondent failed to amend them. The respondent failed to serve the Braz defendants within the statutorily-prescribed time.

On or about August 30, 2004, the respondent recommenced the Melamed action by filing a summons with notice, also dated September 12, 2003, in the Supreme Court, Nassau County, under a new index number. That summons still incorrectly listed Melamed as the sole plaintiff. He served it on the Braz defendants on or about August 31, 2004.

The Braz defendants made a demand, on or about September 8, 2004, that a verified complaint be served upon them within 20 days. The respondent took no further action and, at times during his representation, failed to disclose to Melamed the status of the action.

Charge two alleges that the respondent handled a legal matter which he knew he was not competent to handle, without associating with an experienced lawyer and failing to seek assistance in the Melamed matter, in violation of Code of Professional Responsibility DR 6-101 (a) (1) (22 NYCRR 1200.30 [a] [1]).

The respondent’s experience primarily consisted of criminal and matrimonial law. Although he undertook the representation of Melamed in a breach of contract action, he had limited familiarity with commercial civil litigation and failed to seek assistance from or associate with a lawyer competent in that field.

Charge three alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer by neglecting a legal matter entrusted to him and by attempting to handle a type of case he was not competent to handle alone, in violation of Code of Professional Responsibility DR 1-102 (a) (7) (22 NYCRR 1200.3 [a] [7]), based upon the factual specifications of charges one and two.

Charge four alleges that the respondent engaged in conduct prejudicial to the administration of justice by failing to properly respond to the lawful demands of the Grievance Committee with respect to the Melamed complaint, in violation of Code of [205]*205Professional Responsibility DR 1-102 (a) (5) (22 NYCRR 1200.3 [a] [5]).

By letter dated April 22, 2005, the Grievance Committee requested the respondent’s answer to the Melamed complaint within 15 days. The respondent failed to comply.

By certified letter dated May 27, 2005, the Grievance Committee requested the respondent’s answer within 10 days. The postal return receipt reflects delivery to the respondent on or about May 31, 2005. At the respondent’s request, the Grievance Committee granted an extension of time to answer until June 15, 2005. The respondent still failed to comply.

By certified letter dated July 13, 2005, the Grievance Committee directed the respondent to submit an answer to the Melamed complaint, along with an explanation for his failure to cooperate, within five days, and warned that a motion for his suspension would otherwise ensue. Although the postal return receipt indicates receipt by the respondent on or about July 15, 2005, he failed to submit an answer within the time set by the Grievance Committee.

At the respondent’s request, the Grievance Committee extended the time to answer until August 3, 2005. The respondent still failed to comply.

By certified letter dated September 12, 2005, the Grievance Committee directed the respondent to answer by September 21, 2005. The respondent submitted an answer on or about September 22, 2005, stating that he was now moving forward with the civil case.

By letter dated February 27, 2006, the Grievance Committee requested an update on the status of the Melamed litigation, together with copies of pleadings, discovery demands, responses, and correspondence by March 10, 2006. The respondent failed to comply.

On or about March 23, 2006, the respondent advised Grievance Counsel that he would send the documents as soon as possible.

By letter dated April 13, 2006, the Grievance Committee requested the update and documents by April 25, 2006. The respondent still failed to comply.

On or about May 17, 2006, the respondent forwarded various documents to the Grievance Committee but failed to provide the requested update.

By letter dated May 23, 2006, sent via fax and regular mail, the Grievance Committee requested the update and a detailed [206]*206description of all actions taken by the respondent in the Melamed action since September 21, 2005, by May 25, 2006. The respondent still failed to comply.

By certified letter dated June 1, 2006, the Grievance Committee directed the respondent to schedule a date to be examined under oath. The respondent called Grievance Counsel on or about June 13, 2006, and scheduled an examination under oath for July 6, 2006. The respondent explained that his medical difficulties prevented him from responding previously.

By letter dated June 15, 2006, the Grievance Committee requested an update, a detailed description of actions taken since September. 21, 2005, and records of the respondent’s medical difficulties by June 23, 2006.

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Related

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373 U.S. 83 (Supreme Court, 1963)

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Bluebook (online)
62 A.D.3d 202, 876 N.Y.S.2d 128, 2009 NY Slip Op 2616, 2009 N.Y. App. Div. LEXIS 2778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wasserman-nyappdiv-2009.