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In re Schatkin

Supreme Court of New York, Second Department

March 29, 2017

In the Matter of Andrew James Schatkin, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Andrew James Schatkin, respondent. Attorney Registration No. 1056431

         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 November 2, 1977. By decision and order on application of this Court dated January 22, 2016, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent and the issues raised were referred to the Honorable Elaine Jackson Stack, as Special Referee, to hear and report.

          Mitchell T. Borkowsky, Hauppauge, NY (Michael Fuchs of counsel), for petitioner.

          McDonough & McDonough, LLP, Garden City, NY (Chris McDonough of counsel), for respondent.

          REINALDO E. RIVERA, J.P., MARK C. DILLON, RUTH C. BALKIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

          OPINION & ORDER

          PER CURIAM.

         The Grievance Committee for the Tenth Judicial District (hereinafter the petitioner), served the respondent with a petition containing 12 charges of professional misconduct. After a prehearing conference held on April 27, 2016, and a hearing held on June 14, 2016, the Special Referee sustained all charges in a report dated July 12, 2016. The petitioner now moves to confirm the report of the Special Referee, and to impose such discipline upon the respondent as the Court deems appropriate. In response, the respondent's counsel raises no objection to the petitioner's motion to confirm the report of the Special Referee to the extent that it sustained the charges, and he requests that the Court issue a public censure, or, in the alternative, a "brief suspension."

         The 12 charges in the petition contain 169 factual specifications, which stem from six client matters. The petition alleges that for each client matter, the respondent engaged in conduct that is prejudicial to the administration of justice (charges one, three, five, seven, nine, and eleven), and failed to provide competent representation to his client (charges two, four, six, eight, ten, and twelve), in violation of rules 8.4(d) and 1.1(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), respectively. By answer dated February 26, 2016, the respondent admitted nearly all of the factual allegations underlying the charges. At the prehearing conference held on April 27, 2016, three of the petition's factual specifications were amended, without objection. The respondent subsequently admitted all of the factual allegations at the hearing on June 14, 2016. Based upon the respondent's admissions, what follows are the undisputed facts in connection with the respondent's conduct in the six client matters.

         Client Michael O'Leary - Charges one and two

         In 2012, the respondent represented Michael O'Leary in an action against the City of New York, among others, in the United States District Court for the Eastern District of New York. [*2]Although the respondent was served by the defendants with a notice of deposition with respect to his client, he failed to request an adjournment and failed to appear for the deposition on April 17, 2012. By order dated May 18, 2012, the District Court found that the respondent had "willfully failed to appear with plaintiff for a duly noticed deposition on 4/17/12 or to request an adjournment, " and that his "conduct was unjustified and in violation of his discovery obligations." Further, the District Court found that the respondent's "failure to appear or to provide timely notice of his objection to the deposition caused defendants' counsel to waste valuable time." In view thereof, the District Court imposed two sanctions upon the respondent, one in the sum of $75 to reimburse the defendants for fees incurred as a result of the "busted deposition, " and the other in the sum of $500 to compensate the defendants for the "time defendants' counsel expended in connection with the failed deposition and in seeking sanctions."

         By letter dated May 28, 2012, the respondent applied for reconsideration, reargument, and/or renewal. By order dated July 17, 2012, the District Court denied the respondent's application, finding that "there was no justification for failing to appear for a scheduled deposition without notice to his adversary. Instead of filing a motion to quash or seeking other intervention from the court, [respondent] simply chose not to appear at the deposition. . . . Such behavior is unacceptable."

         By memorandum and order dated April 10, 2013, and judgment dated April 11, 2013, the District Court granted the defendants' motion for summary judgment, and dismissed Mr. O'Leary's case with prejudice.

         The respondent filed a notice of appeal dated May 7, 2013, but failed to timely pay the required filing fee, and failed to timely file the required appellant's acknowledgment and appearance form. By order dated May 30, 2013, the United States Court of Appeals for the Second Circuit deemed the case to be in default, and ordered the appeal to be dismissed effective June 13, 2013, unless by that date the filing fee was paid in full or Mr. O'Leary moved for poor person status. The respondent failed to timely pay the filing fee, but paid it on June 14, 2013. By order entered June 14, 2013, the Second Circuit dismissed the appeal based on the respondent's failure to pay the filing fee on or before June 13, 2013.

         By motion filed June 19, 2013, the respondent requested additional time to perfect the appeal. By notice of defective filing dated June 20, 2013, the Second Circuit advised the respondent that his motion was defective in that a motion to reinstate the appeal was required. The respondent was given until June 24, 2013, to cure the defect and resubmit the motion. On or about June 22, 2013, the respondent requested an extension to perfect the appeal. By order dated July 8, 2013, the Second Circuit reinstated the appeal. By separate order, also dated July 8, 2013, the Second Circuit deemed the case to be in default, and ordered the appeal to be dismissed effective July 22, 2013, unless by that date the appellant's acknowledgment and appearance form was filed.

         On or about July 8, 2013, based on his client's wish, the respondent moved to withdraw the appeal, which motion the ...


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