Appellate Division, First Department
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.
Angela M. Mazzarelli,Justice Presiding, James M. Catterson Karla Moskowitz Rosalyn H. Richter Sallie Manzanet-Daniels,Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Joseph J. Mainiero, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on March 7, 1984.
M-1645 (April 24, 2012) IN THE MATTER OF JOSEPH J. MAINIERO, AN ATTORNEY
Respondent Joseph J. Mainiero was admitted to the practice of law in the State of New York by the Second Judicial Department on March 7, 1984. At all times relevant to this proceeding, respondent has maintained an office for the practice of law within the First Judicial Department.
The Departmental Disciplinary Committee seeks an order, pursuant to 22 NYCRR 603.4(e)(1)(i), immediately suspending respondent from the practice of law, until further order of the Court, based upon his failure to cooperate with the Committee in its investigation of professional misconduct.
In June 2010, one of respondent's clients, who had retained respondent with respect to a matrimonial matter, filed a complaint with the Committee alleging that respondent neglected his case and failed to account for $4,782 in escrow funds. The Committee forwarded a copy of the complaint to respondent on July 15, 2010, requesting he submit an answer. When respondent failed to respond, the Committee telephoned respondent and left a message. Two days later, on August 13, 2010, respondent contacted the Committee and requested an adjournment until August 18. However, respondent did not submit an answer by that date. On September 8, 2010, respondent secured a further adjournment until September 14, but, once again, no answer was received. By letter dated October 14, 2010 and mailed by regular and certified mail, the Committee advised respondent that he had 10 days to submit a response to the complaint and that a failure on his part was grounds for suspension. Once again, no answer was provided. Thereafter, from November 2010 through mid-February 2011, Committee Staff had five separate conversations with respondent during which he offered various explanations for his failure to submit an answer, including that he had been in a car accident, he had had a "bad month," and that a long holiday weekend and family illness had prevented his compliance.
Following numerous adjournments granted by the Committee, respondent finally submitted an answer to the complaint on February 18, 2011. Respondent stated, among other things, that any monies that were being held in escrow "were used to pay [the client's] ex-wife  due under the divorce judgment, and counsel fees which [the client] agreed to pay to his ex-wife's lawyers." Respondent's answer was sent to the client, who submitted a reply wherein he stated: Before following up on Mr. Mainieros' response to my complaint I contacted him. I agreed to drop my complaint if he reimbursed me for my court ordered escrow. Additionally Mr. Mainiero agreed to reimburse my additional expenses which were $750 to hire another lawyer to finish the legal work Mr. Mainiero never completed and $400 for a judgment which was placed on my credit report.... After bouncing one check Mr. Mainiero did pay back my escrow and my attorney fee but I never received the $400. Mr. Mainiero has failed to return any of my calls or messages. For this reason I would like to proceed with my complaint.
On June 30, 2011, the Committee contacted respondent and requested that he produce his bank records in regard to the escrow money that the client had given respondent (to ensure that the funds remained intact from receipt up to the time the funds were disbursed). Since respondent was going on vacation the following week until the end of July, he asked if it could wait until August, however, the Committee declined to extend the time. Although respondent promised to contact the Committee investigator before he left on vacation, he ...