Grievance Comm. for the Tenth Judicial Dist. v. Rosenthal (In re Rosenthal)

192 A.D.3d 244

138 N.Y.S.3d 667

In the MATTER OF Edward Michael ROSENTHAL, an attorney and counselor-at-law.

Grievance Committee for the Tenth Judicial District, petitioner;

v.Edward Michael Rosenthal, respondent.

(Attorney Registration No. 2157535)

2019–06192

Supreme Court, Appellate Division, Second Department, New York.

February 3, 2021

Catherine A. Sheridan, Hauppauge, N.Y. (Nancy B. Gabriel of counsel), for petitioner.

Foley Griffin, LLP, Garden City, N.Y. (Chris McDonough ), for respondent.

WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, MARK C. DILLON, CHERYL E. CHAMBERS, LEONARD B. AUSTIN, JJ.

OPINION & ORDER

PER CURIAM.

The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated May 16, 2019, containing five charges of professional misconduct. Following a prehearing conference held on September 25, 2019, and a hearing conducted on November 26, 2019, the Special Referee filed a report dated January 2, 2020, in which she sustained all five 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. In an affirmation in response, the respondent's counsel states that the respondent joins in the motion to confirm the Special Referee's report, and requests, in view of the mitigating circumstances presented, that the Court impose a private admonition or a sanction no greater than a public censure.

The Petition

Charge one alleges that the respondent misappropriated funds entrusted to him as a fiduciary incident to his practice of law, in violation of rule 1.15(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), as follows:

In or about October 2016, the respondent maintained a trust account incident to his practice of law at Capital One, entitled "Rosenthal Curry & Kranz LLP IOLA Attorney Escrow Account," account number ending in 2392 (hereinafter the IOLA account). The respondent was the sole signatory on the IOLA account. As of October 1, 2016, the respondent was required to maintain no less than $208,238.59 in the IOLA account, comprised of funds entrusted to him in connection with the following 15 client matters:

Matter	Amount
Chegeo	$74,540
Patel	$ 4,000
Plainview Builders (Hernandez)	$ 1,300
Casteluccio Estate	$ 2,715
Cohen/Santiago	$ 5,000
Plainview Builders (Clement)	$10,000
Levine/Kaufman	$ 7,500
Espinosa	$15,000
Shrager	$ 7,500
Plainview Builders (Industry)	$38,950
Scipione	$10,000
Giametto	$17,299
O'Sullivan	$10,000
36 Spruce	$ 100
Marcelo	$ 4,334.59

On or about October 1, 2016, the account balance on deposit in the IOLA account was $158,438.93, which was $49,799.66 below the amount the respondent was required to maintain.

Charge two alleges that the respondent failed to make accurate entries of all financial transactions related to his IOLA account in his ledger books or similar records for the above-mentioned matters, in violation of rule 1.15(d)(2) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), as follows:

The Grievance Committee requested that the respondent explain the deficiencies identified in the IOLA account as of October 1, 2016. Although the respondent was provided with opportunities to review his banking and bookkeeping records, he could not identify the source or cause of the IOLA account deficiency.

Charge three alleges that the respondent misappropriated funds entrusted to him as a fiduciary incident to his practice of law, in violation of rule 1.15(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), as follows:

In or about October 2016, the respondent represented James Terrano, the seller in a real estate transaction. On October 13, 2016, the balance in the respondent's IOLA account was $1,005,509.23, representing funds entrusted to him as a fiduciary in connection with other client matters. Between October 28, 2016, and November 29, 2016, the respondent disbursed $44,000 from the IOLA account in connection with the Terrano matter, resulting in a $1,050 overdisbursement. The $1,050 overdisbursement cleared against other client funds the respondent was holding in the IOLA account.

Charge four alleges that the respondent misappropriated funds entrusted to him as a fiduciary incident to the practice of law, in violation of rule 1.15(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), as follows:

In or about December 2016, the respondent represented Manesh Chandra, the seller in a real estate transaction. On December 15, 2016, the balance in the respondent's IOLA account was $857,615.55, representing funds the respondent was holding as a fiduciary in connection with other client matters. On December 16, 2016, the respondent deposited $27,000 into the IOLA account, representing funds he received for the Chandra matter. Between December 19, 2016, and February 22, 2017, the respondent disbursed $27,500 from the IOLA account for the Chandra matter, resulting in a $500 overdisbursement. The disbursements against the Chandra funds included check #5888 payable to the respondent's law firm in the amount of $1,500, which was $500 more than the respondent's firm was entitled to receive. The $500 overdisbursement cleared against other client funds the respondent was holding in the IOLA account.

Charge five alleges that the respondent engaged in conduct adversely reflecting on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), based on all of the above-mentioned factual allegations.

Findings and Conclusion

In ...