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In re Nicosia

Supreme Court of New York, Second Department

June 21, 2017

In the Matter of Nicholas Nicosia, an attorney and counselor-at-law. (Attorney Registration No. 4330304)

         The respondent, Nicholas Nicosia, was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on September 28, 2005. By order to show cause dated January 20, 2017, this Court directed the respondent to show cause why discipline should or should not be imposed upon him in this State pursuant to 22 NYCRR 1240.13, based on the misconduct underlying the discipline imposed upon him by an order of the Supreme Court of New Jersey filed November 4, 2016. The respondent submitted an affidavit in response, sworn to on February 20, 2017, in which he advances mitigating factors for the Court's consideration as permitted by 22 NYCRR 1240.13(b).

          Gary L. Casella, White Plains, NY (Forrest Strauss of counsel), for Grievance Committee for the Ninth Judicial District.

          Nicholas Nicosia, Vernon, NJ, respondent pro se.

          RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, MARK C. DILLON, CHERYL E. CHAMBERS, JJ.

          OPINION & ORDER

          PER CURIAM

         By order filed November 4, 2016, the Supreme Court of New Jersey publicly reprimanded the respondent for violation of New Jersey Rules of Professional Conduct (hereinafter RPC) 1.15(a) (failure to safeguard client funds) and (d) (failure to keep complete records of client trust account funds) and New Jersey Rules of Court rule 1:21-6(c) (recordkeeping violations).

         The New Jersey Office of Attorney Ethics (hereinafter the OAE) filed a motion dated May 5, 2016, for discipline by consent, based on a stipulation signed by the OAE and the respondent, with supporting bank records. The underlying misconduct, as revealed in the stipulation, is as follows:

          The McCaw Closing

         On August 1, 2011, the respondent represented Catherine McCaw in a real estate closing. On August 2, 2011, the respondent deposited four checks, totaling $62, 176.43, into his TD Bank trust account No. 6864 (hereinafter trust account No. 1) on behalf of McCaw. That same day, the disbursements issued by the respondent on behalf of the McCaw closing, totaling $62, 176.43, were presented and cleared trust account No. 1. However, one of the deposited checks, in the sum of $55, 575, was returned for insufficient funds. As a result, when the McCaw disbursement checks cleared trust account No. 1, other clients' funds were invaded. Admittedly, the respondent was not aware of the returned check for eight months because he did not review his monthly bank statements for trust account No. 1, did not maintain proper bookkeeping records for that account, and did not perform monthly three-way reconciliations for that account. On or about April 16, 2012, the respondent received a replacement check, which he deposited into trust account No. 1.

         The Peterson Closing

         The respondent represented John Peterson and Karen Peterson in a real estate closing held on or about October 9, 2012. At the closing, the respondent issued five checks, and made two wire transfers from his TD Bank trust account No. 4318 (hereinafter trust account No. 2). On October 12, 2012, the respondent mistakenly deposited a check in the amount of $259.61 in connection with the Peterson closing into his TD Bank business account No. 4558, instead of trust account No. 2. On or about October 15, 2012, the five checks issued on behalf of the Peterson closing were presented for payment, but only one cleared the account. On October 19, 2012, TD Bank notified the OAE that the respondent's trust account No. 2 was overdrawn by $359.61. As a result, other clients' funds on deposit in trust account No. 2 were invaded. The respondent was unaware until sometime after the bank notice that TD Bank was charging wire transfer fees, and that he mistakenly deposited the Peterson check into the wrong account, because he did not review his monthly bank statements, and did not maintain proper bookkeeping records for trust account No. 2.

         The Sposato Closing

         The respondent represented Laura Sposato in the purchase of real property. On October 22, 2012, the respondent deposited a check in the amount of $2, 664.89 into his TD Bank trust account No. 7282 (hereinafter trust account No. 3); however, that check should have been deposited into trust account No. 2. At the closing, the respondent issued four checks totaling $2, 664.89, and made a wire transfer, all from trust account No. 2. When the Sposato checks were presented to TD Bank, they were paid. As a result, other clients' funds that were on deposit in trust account No. 2 were invaded. The respondent was unaware that TD Bank was charging wire transfer fees and that he had mistakenly deposited the Sposato check into the wrong trust account because he did not review his monthly bank statements, and did not maintain proper bookkeeping records for trust account No. 2.

         The ...


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