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.
Decided on December 27, 2012
Peter Tom,Justice Presiding, Angela M. Mazzarelli David B. Saxe James M. Catterson Leland G. DeGrasse,Justices.
Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Nativ Winiarsky, 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 May 8, 1996. Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Naomi F. Golstein, of counsel), for petitioner. Richard M. Maltz, for respondent. M-3232/M-4033 (September 6, 2012) IN THE MATTER OF NATIV WINIARSKY, AN ATTORNEY
Respondent Nativ Winiarsky was admitted to the practice of law in the State of New York by the Second Judicial Department on May 8, 1996. 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 now seeks an order, pursuant to 22 NYCRR 605.15(e), disaffirming the Hearing Panel's findings insofar as it recommended dismissing certain charges, but confirming its sanction recommendation of a public censure. By cross motion, respondent seeks an order confirming the Hearing Panel's report in its entirety, denying the Committee's motion to the extent it seeks to disaffirm the Panel's dismissal of certain charges but granting the motion to the extent that it seeks censure.
This disciplinary proceeding arises out of respondent's actions in two unrelated Housing Court proceedings. In the first proceeding respondent represented the landlord. The issue in the proceeding was whether the roommate of the deceased tenant of record (the "roommate"), who claimed to have been the tenant's domestic partner, was entitled to claim succession rights. Respondent sought and received leave of court, as required by CPLR 408, to depose the roommate. During the deposition, the roommate identified the tenant's adult son and daughter as witnesses who could corroborate his claim of domestic partnership with the late tenant of record. Hence, again pursuant to CPLR 408, respondent moved for leave to serve subpoenas duces tecum and testificandum upon the deceased tenant's children. Respondent served the motion on the roommate's counsel and on the tenant of record's children, with proposed subpoenas (leaving the dates of deposition and signature lines blank) attached as exhibits.
Prior to the motion return date, the wife of the deceased tenant's son called respondent inquiring as to whether her husband could appear for questioning voluntarily in order to obviate the need for a future court appearance. Respondent replied that if the son appeared voluntarily, there would be no need to proceed with his motion. The wife agreed that her husband would appear voluntarily at respondent's office. When respondent contacted the daughter, she too agreed to appear voluntarily so as to avoid a future, obligatory appearance.
A few days later, the tenant of record's son appeared at respondent's office at which time he was placed under oath, advised of the penalty of perjury, and gave testimony which was transcribed by a stenographer. Respondent also requested that the son make any necessary corrections to his testimony on a separate errata sheet, sign the transcript, and return it to him. Respondent did not provide opposing counsel, or the court, with prior or subsequent notice that he would be questioning the son under oath.
Three days after he questioned the son, respondent emailed opposing counsel and, without providing a specific reason, requested an adjournment of his CPLR 408 motion for leave to depose the children, which was returnable three days later. Counsel consented to an adjournment of approximately six weeks. Four days after that consent was received, the deceased tenant's daughter appeared at respondent's office and was also placed under oath and gave testimony which was transcribed by a ...