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In re Kohn

Supreme Court of New York, Second Department

July 5, 2017

In the Matter of Michael J. Kohn, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Michael J. Kohn, respondent. (Attorney Registration No. 1677632)

         DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on April 9, 1980. By decision and order on motion dated January 22, 2016, this Court, on its own motion, authorized the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent, and referred the issues raised to John P. Clarke, as Special Referee, to hear and report.

          Diana Maxfield Kearse, Brooklyn, NY (Mark F. DeWan of counsel), for petitioner.

          Michael A. Gentile, New York, NY, for respondent.

          RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, MARK C. DILLON, SANDRA L. SGROI, JJ.

          OPINION & ORDER

          PER CURIAM .

         The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the petitioner) served the respondent with a petition dated February 22, 2016, containing eight charges of professional misconduct. After a preliminary conference on July 14, 2016, and a hearing on November 1, 2016, the Special Referee issued a report dated January 5, 2017, in which he sustained all charges. The petitioner now moves to confirm the Special Referee's report, and to impose such discipline as the Court deems just and proper. In response, the respondent's counsel has submitted an answer joining in the petitioner's motion to confirm, and requesting that the Court impose a public censure or, at most, a three-month suspension.

         The Petition

         Charges one through six each allege that the respondent misappropriated funds entrusted to him as a fiduciary incident to his practice of law, in violation of rule 1.15(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows:

          Charge One - The Scala Funds

         In or about August 2009, the respondent was retained by John Scala and Mina Nevradakis-Scala (hereinafter the Scalas) to represent them in the sale of a house they owned in Manhasset. The respondent received a down payment check in the amount of $78, 500 from the purchaser, which he deposited on August 14, 2009, into his escrow account at Capital One Bank, account number ending 3243, entitled "Kohn & Kohn, IOLA-Attorney Escrow Account." By the terms of the contract of sale, the respondent was required to hold the down payment in escrow until the closing of title, which occurred on October 1, 2009. However, by August 31, 2009, the respondent had depleted the balance in his escrow account to the sum of $23, 970.73.

         At the closing on October 1, 2009, it was agreed that the respondent would hold the net proceeds of the sale in his escrow account until the conclusion of the Scalas' divorce, which did not occur until October 2011. On October 5, 2009, an electronic funds transfer in the amount of $297, 709.46 was made into the respondent's escrow account, which together with the $78, 500 down payment brought the total that the respondent was required to hold in the escrow account on behalf of the Scalas to the sum of $376, 209.46. However, by November 10, 2009, the respondent had depleted the balance in his escrow account to the sum of $346, 323.70.

         On September 29, 2010, the Scalas executed a stipulation in connection with their pending divorce action, which authorized the respondent to release a total of $37, 650.73 from the Scala escrow funds. After making the authorized payments, the respondent was required to maintain the sum of $338, 558.73 in the escrow account for the Scalas. However, by September 22, 2011, prior to any further disbursement on behalf of the Scalas, the respondent had depleted the balance in his escrow account to the sum of $5, 288.40.

          Charge Two - The Friedmutter/Grocholski Sale

         In or about August 2011, the respondent was retained by Douglas Friedmutter and Basia Grocholski to represent them in the sale of a condominium they owned in Brooklyn. The respondent received a down payment check in the amount of $72, 500 from one of the purchasers, which he deposited into the escrow account on August 14, 2011. By the terms of the contract of sale, the respondent was required to hold the $72, 500 down payment in escrow until the closing of title, which occurred on ...


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