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In re Winiarsky

Supreme Court of New York, First Department

December 27, 2012

In the Matter of Nativ Winiarsky, an attorney and counselor-at-law: Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Nativ Winiarsky, Respondent.

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.

Peter Tom, Justice Presiding, Angela M. Mazzarelli, David B. Saxe, James M. Catterson, Leland G. DeGrasse, Justices.

PER CURIAM.

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 stenographer. Respondent also requested that she correct any errors on a separate errata sheet and return the signed transcript to him.

Less than two weeks later, respondent informed opposing counsel that he was withdrawing his motion for leave to take discovery; however, he did not provide his adversary or the court with a specific reason as to why he was doing so. The roommate's counsel eventually learned that the tenant of record's children had been questioned by respondent under oath, and moved for, inter alia, an order dismissing the proceeding with prejudice, sanctioning respondent, and disqualifying his firm from continuing to represent the landlord in the proceeding. Housing Court Judge Joseph Capella granted the cross motion to the extent of suppressing the testimony of the children, awarding the roommate reasonable attorneys' fees for the cross motion, and disqualifying respondent's firm from representing the landlord.

Respondent testified before the Referee that he did not intend to violate CPLR 408, and that he viewed his questioning of the two witnesses as having been no different than securing a voluntary affidavit or sworn statement outside the judicial process. He further testified that when he took the testimony at issue, he did not feel it was necessary that he inform the court or opposing counsel of his course of action, despite the pending motion for leave. However, upon reflection, he testified, he came to realize that opposing counsel would have been under the reasonable, albeit not necessarily correct, impression, that when the motion was made he would refrain from questioning the witnesses until the court had ruled.

The second litigation proceeding out of which the subject charges arise was a Housing Court proceeding that had been assigned to a court attorney to act as a special referee for resolution of discovery matters. While the proceeding was pending, the court attorney ...


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