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In re Bloom

Supreme Court of New York, Second Department

December 18, 2019

In the Matter of Eliot F. Bloom, a suspended attorney. Grievance Committee for the Tenth Judicial District, petitioner; Eliot F. Bloom, respondent. Attorney Registration No. 2081453

         D61338 G/htr

          Catherine A. Sheridan, Hauppauge, NY, for petitioner.

          Longo & D'Apice, Brooklyn, NY (Mark A. Longo of counsel), for respondent.

          ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, MARK C. DILLON, CHERYL E. CHAMBERS, JJ.

          OPINION & ORDER

          PER CURIAM.

         DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Tenth Judicial District. The Grievance Committee commenced a disciplinary proceeding pursuant to 22 NYCRR 1240.8 against the respondent by service and filing of a notice of petition dated October 23, 2017, and verified petition dated October 20, 2017, and the respondent served and filed a verified answer dated November 9, 2017. Subsequently, the Grievance Committee served and filed a statement of disputed and undisputed facts dated December 1, 2017, pursuant to 22 NYCRR 1240.8(a)(2), and the respondent served and filed a counterstatement of disputed and undisputed facts dated January 12, 2018. By decision and order on application of this Court dated February 7, 2018, the matter was referred to the Honorable Elaine Jackson Stack, as Special Referee, to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on September 24, 1986.

         By opinion and order of this Court dated September 21, 2016, the respondent was suspended from the practice of law for a period of six months, commencing October 21, 2016, in a separate disciplinary proceeding (Matter of Bloom, 143 A.D.3d 173; Appellate Division Docket No. 2014-10963). The respondent remains suspended.

         The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated October 20, 2017, containing seven charges of professional misconduct. After a prehearing conference on May 7, 2018, and a hearing on June 28, 2018, August 29, 2018, September 14, 2018, October 15, 2018, and October 26, 2018, the Special Referee issued a report, which sustained all seven charges. The Grievance Committee now moves to confirm the report of the Special Referee and to impose such discipline upon the respondent as the Court deems just and proper. The respondent opposes the motion, asserting that charges two through seven should be dismissed, and that the appropriate sanction for charge one, if the Court sustains this charge, should be an Admonition or at most a public censure.

         Petition

         Charge one alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: On or about July 25, 2016, the respondent was present in the County Court, Nassau County, in connection with his representation of a criminal defendant in a pending proceeding before the Honorable Meryl J. Berkowitz. Two female Nassau County Assistant District Attorneys (hereinafter together the ADAs) were prosecuting the case on behalf of the People. During a recess prior to opening statements, the ADAs were standing in a public area of the courthourse outside the courtroom and were engaged in conversation with another attorney, a former Assistant District Attorney, Mary Murray. While the ADAs and Murray were speaking, the respondent approached them and initiated a conversation with Murray. In response to Murray's inquiry regarding what the respondent was doing in court that day, the respondent stated, in sum and substance, "nothing, just doing a trial with these two sluts," indicating the ADAs. One of the ADAs immediately admonished the respondent for making this statement, to which the respondent stated "stop being so sensitive, this is how I speak to ADAs." Thereafter, the parties returned to the courtroom, where the ADA who admonished the respondent gave her opening statement.

         Charge two alleged that the respondent neglected a legal matter entrusted to him, in violation of rule 1.3(b) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: Beginning in or about 2009, the respondent represented Louis Wenger (hereinafter Wenger) in two related judicial dissolution proceedings commenced by Wenger's son, David Wenger (hereinafter David), entitled David Wenger v L.A. Wenger Contracting, Co. and Louis Wenger, commenced in the Supreme Court, Suffolk County, under Index No. 31701-2008 (hereinafter Action No. 1), and David Wenger v Railroad Realty Group, Inc., ECS Realty Inc., GDS Realty Group, Inc., Woodglen Realty LLC, and Louis Wenger, commenced in the Supreme Court, Suffolk County, under Index No. 2149-2009 (hereinafter Action No. 2), respectively. David alleged that he was a 31% shareholder of five closely held corporations and that Wenger, the 69% shareholder of the corporations, was guilty of oppressive actions toward David and had looted, wasted, or diverted corporate assets for noncorporate purposes. After a nonjury trial before the Supreme Court, Suffolk County (Emily Pines, J.), the Supreme Court found that David was a 31% shareholder of each of the corporations and that Wenger had engaged in "oppressive conduct" toward him. In lieu of dissolution, the court appointed Robert P. Lynn, as temporary receiver, to, among other things, determine the net values of the real properties at issue and select properties worth 31% of the total assets to be transferred to David. The court's decision was reduced to a judgment dated October 24, 2011.

         On or about November 2, 2011, the respondent, on behalf of Wenger, filed a notice of appeal from the October 24, 2011, judgment. On or about November 14, 2011, David, by counsel, filed a notice of cross appeal.

         In 2012, Wenger was concerned that the respondent was not adequately communicating with him about the status of his legal matters. Beginning in or about April 2012, Wenger enlisted the help of his daughter, Natalie Wenger (hereinafter Tasha), his son Daniel Wenger (hereinafter Daniel), and his friend, David Pepper, to assist him in communicating with the respondent. Beginning in or about April 2012, Tasha, Daniel, and Pepper (hereinafter collectively Wenger's representatives), on Wenger's behalf, engaged in email communications with the respondent regarding the status of legal matters the respondent was handling for Wenger.

         In the spring of 2012, and with respect to the appeal, the respondent sought and received two enlargements of time to perfect the appeal. Pursuant to the later of the two, the enlargement was until August 2, 2012. The respondent failed to perfect the appeal by August 2, 2012, and failed to seek any further enlargements of time to do so. By decision and order ...


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