Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, ROBERT A. SPOLZINO and MARK C. DILLON, JJ.
DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 17, 1970, under the name Robert Israel Oziel. By decision and order on motion dated July 18, 2007, this Court denied that branch of the motion of the Grievance Committee for the Tenth Judicial District which was pursuant to 22 NYCRR 691.4(l)(1)(iii) to suspend the respondent on the ground that he constituted an immediate threat to the public based on uncontroverted evidence of professional misconduct, but granted that branch of the motion which was to authorize the Grievance Committee for the Tenth Judicial District to institute and prosecute a disciplinary proceeding against the respondent based on a petition dated May 1, 2007, and the issues raised were referred to the Honorable Herbert A. Posner, as Special Referee to hear and report. By further decision and order on motion of this Court dated September 26, 2007, the Honorable Herbert A. Posner was relieved as Special Referee and the issues raised were reassigned to the Honorable Lewis L. Douglass, as Special Referee to hear and report.
The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition containing eight charges of professional misconduct. After a pretrial conference and a hearing, the Special Referee sustained charges one through four but did not sustain charges five through eight. The Grievance Committee now moves to confirm the Special Referee's report to the extent of those charges which were sustained, to disaffirm with respect to those charges which were not sustained, and to impose such discipline as the Court deems just and proper. The respondent moves to confirm the report to the extent of the charges which were not sustained, to disaffirm with respect to the charges sustained, and to dismiss the petition.
Charge one alleges that the respondent failed to preserve funds entrusted to him and converted those funds to a use other than that for which they were intended, in violation of Code of Professional Responsibility DR 9-102(a) (22 NYCRR 1200.46[a]).
On or about December 26, 1991, the respondent's law firm was retained to commence a wrongful death action on behalf of Judith Zwiebach and her children in connection with the death of her husband, Marvin. In or about January 1992, the wrongful death action against Hachiro Nakamura, M.D., and Hofstra Health Dome was commenced in the Supreme Court, Queens County.
In or about October 1994, the respondent's firm referred the matter to another firm as trial counsel. On November 18, 1999, the Nassau County Surrogate issued a decree granting the parties to the wrongful death action leave to compromise and settle the case for the sum of $2,010,000. Out of those proceeds, Judith Zwiebach and her three children were to receive $398,627.86 each after payment of legal fees and disbursements.
Between December 24, 1999, and May 23, 2000, the respondent's firm maintained an escrow account at Chase Bank denominated "Seavey Vogel & Oziel Attorney Escrow Account." On or about January 21, 2000, the respondent received and deposited into that account settlement funds from Dr. Nakumura's liability insurance carrier in the form of four separate checks payable directly to Judith Zwiebach and her children individually, each in the amount of $368,166.67, for a total of $1,472,666.68. Prior to the disbursement of any funds to the Zwiebachs, the balance in the respondent's escrow account fell below the $1,472,666.68 entrusted to him.
On or about February 23, 2000, the respondent received and deposited into the escrow account settlement funds from Hofstra Health Dome's liability carrier, in the form of four separate checks payable directly to the four Zwiebachs in the amount of $30,461.20 each, for a total of $121,844.80. Prior to the disbursement of any of the settlement funds, the balance in the escrow account fell below that amount entrusted to the respondent.
Charge two alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of Code of Professional Responsibility DR 1-102(a)(7) (22 NYCRR 1200.3[a]), based on the factual specifications set forth in charge one.
Charge three alleges that the respondent failed to promptly deliver to his clients, at their request, funds in his possession which the clients were entitled to receive, in violation of Code of Professional Responsibility DR 9-102(c)(4) (22 NYCRR 1200.46[c]).
Between January and April 2000, the respondent failed to deliver any of the settlement funds entrusted to him despite numerous requests by Judith Zwiebach. On or about April 13, 2000, the respondent released the sum of $1,060,000 in four equal checks of $265,000, payable to Judith Zwiebach and her three children individually. The respondent claimed that the balance of settlement funds needed to be held for payment of potential New York State estate tax. He informed Judith Zwiebach that he would release the balance after the expiration of the three-year statute of limitations. In or about November 2003, Judith Zwiebach requested the release of those ...