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In re Napolitano

Supreme Court of New York, Second Department

December 29, 2017

In the Matter of Peter M. Napolitano, admitted as Peter Napolitano, an attorney and counselor-at-law. (Attorney Registration No. 1726223)

         D54379 C/hu

          Catherine A. Sheridan, Hauppauge, NY (Robert H. Cabble of counsel), for Grievance Committee for the Tenth Judicial District.

          Peter M. Napolitano, Clarksville, TN, respondent pro se.

          RANDALL T. ENG, P.J. WILLIAM F. MASTRO REINALDO E. RIVERA MARK C. DILLON SYLVIA HINDS-RADIX, JJ.

          OPINION & ORDER

          PER CURIAM.

         The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 6, 1981, under the name Peter Napolitano. By order to show cause dated July 21, 2017, this Court directed the respondent to show cause why an order should or should not be made and entered pursuant to 22 NYCRR 1240.13 imposing discipline upon him for the misconduct underlying the discipline imposed by a judgment of the Supreme Court of Tennessee filed May 24, 2017, as set forth in an opinion of the same court also filed May 24, 2017.

         By judgment filed May 24, 2017, the Supreme Court of Tennessee, as set forth in an opinion filed May 24, 2017, inter alia, suspended the respondent's law license in that state for five years, probated after a period of one year on certain conditions.

         The respondent was admitted to the Tennessee Bar in 2002, and was previously reprimanded in Tennessee for an overdraft in his attorney trust account.

         The underlying facts, briefly summarized, as revealed in the opinion of the Supreme Court of Tennessee, are as follows:

         The respondent's client hired him in 2005 to represent her in an employment claim against the Department of the Army. In September 2007, the parties settled the action for $75, 000, and this sum was deposited into the respondent's attorney trust account on October 16, 2007. The parties entered into an agreement whereby the respondent agreed to remit the sum of $40, 000 to the client and retain the sum of $35, 000 in full satisfaction of his remaining fees and expenses. Shortly afterwards, the respondent realized that he miscalculated his expenses byapproximately$1, 800, and asked the client to modify the agreement and accept less than $40, 000. The client refused, whereby the respondent refused to remit any funds to the client.

         Following unsuccessful efforts by the client to rescind the settlement, the client filed a complaint (hereinafter the first complaint) with the Tennessee Board of Professional Responsibility (hereinafter the Board). The first complaint ultimately was dismissed and the dismissal was upheld on appeal in November 2010. In March 2011, the client filed a lawsuit against the respondent to recover the money allegedly owed her (hereinafter the fee action). The client's new attorney deposed the respondent on September 26, 2012. During the deposition, the respondent admitted that none of the settlement proceeds remained in his account. The client's new attorney filed a second complaint with the Board in November 2012.

         Following an investigation, the Board filed a petition for discipline in November 2013.

         In August 2014, prior to the hearing on the petition, the client and the respondent entered into a settlement agreement with regard to the fee action. Pursuant to the settlement agreement, the respondent agreed to pay the client the sum of $18, 500 on or before August 12, 2014, followed by 10 periodic payments of $750 each.

         A hearing was held before a panel of the Board, at which it was established that the respondent had falsely stated at his deposition that he had not been the subject of a disciplinary complaint in New York, since he had, indeed, previously been suspended for five years in New York. It was also established that he had falsely stated that he never filed for bankruptcy protection, since he had filed for personal bankruptcy in 1993 and again in 2003. Further, it was established that the respondent had falsely stated that noliens had ever been filed ...


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