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In re Solomon

Supreme Court of New York, Second Department

January 15, 2020

In the Matter of Brian D. Solomon, admitted as Brian David Solomon, a suspended attorney. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Brian D. Solomon, respondent. Attorney Registration No. 2315349

         DISCIPLINARY PROCEEDINGS 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 February 7, 1990, under the name Brian David Solomon. 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 and verified petition, both dated March 27, 2018. By decision and order on motion of this Court dated November 14, 2018, the Grievance Committee's motion to deem the charges in the verified petition established based upon the respondent's default was denied, and the respondent's answer was deemed timely filed. Subsequently, the Grievance Committee served and filed a statement of disputed and undisputed facts dated November 26, 2018, pursuant to 22 NYCRR 1240.8(a)(2), which the respondent did not challenge. By decision and order on application of this Court dated January 11, 2019, the matter was referred to the Honorable Arthur J. Cooperman, as Special Referee, to hear and report (Appellate Division Docket No. 2018-03589).

         The Grievance Committee commenced a second disciplinary proceeding pursuant to 22 NYCRR 1240.8 against the respondent by service and filing of a notice of petition dated May 3, 2018, and a verified petition dated April 20, 2018, and the respondent served and filed an answer dated May 31, 2018. The Grievance Committee served and filed a statement of disputed and undisputed facts dated June 14, 2018, which the respondent did not challenge. By decision and order on motion dated November 14, 2018, the respondent was immediately suspended from the practice of law pursuant to 22 NYCRR 1240.9(a), and the issues raised were referred to the Honorable Arthur J. Cooperman, as Special Referee, to hear and report (Appellate Division Docket No. 2018-05078).

          Diana Maxfield Kearse, Brooklyn, NY (Susan Korenberg of counsel), for petitioner.

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

          OPINION & ORDER

         The Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts served the respondent with a verified petition dated March 27, 2018, containing three charges of professional misconduct (Appellate Division Docket No. 2018-03589). Thereafter, the Grievance Committee served the respondent with a verified petition dated April 20, 2018, containing four charges of professional misconduct (Appellate Division Docket No. 2018-05078). Both matters were referred to the Honorable Arthur J. Cooperman, as Special Referee, to hear and report. A prehearing conference was held on January 31, 2019, and a hearing was held on February 27, 2019, with respect to both disciplinary proceedings. The respondent did not appear at either the prehearing conference or the hearing. The Special Referee issued separate reports with regard to each of the proceedings, sustaining all charges in both petitions. The Grievance Committee now moves, in separate motions, to confirm the reports of the Special Referee and to impose such discipline as this Court deems just and proper. Although served with copies of the motions, the respondent has neither served a response, nor has he requested additional time in which to do so.

         Appellate Division Docket No. 2018-03589

         Charge one alleges that the respondent engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation, which was prejudicial to the administration of justice, in violation of rule 8.4(c) and (d) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: In or about 2003, Michael Nuzzolo retained the respondent to finalize a deed transfer. In or about 2006 or 2007, the respondent advised Nuzzolo that he would commence an action in the Supreme Court, Richmond County. The respondent thereafter told Nuzzolo that he had commenced an action in the Supreme Court and had made an appearance on his behalf, when, in fact, he had not. The respondent subsequently created a fraudulent judgment, dated September 10, 2013, onto which he affixed the signature of then Supreme Court Justice Joseph Maltese. The fraudulent judgment purported to award Nuzzolo $50, 000 and directed the Richmond County Clerk to record the judgment, which was to have the same "force and effect" as if a deed had been recorded. The respondent gave the fraudulent judgment to Nuzzolo. The respondent failed to tell Nuzzolo that the judgment was fraudulent until after Nuzzolo filed a complaint with the Grievance Committee in or about September 2014.

         Charge two alleges that the respondent failed to timely cooperate with the Grievance Committee in its investigation of five complaints of professional conduct filed against him, in violation of rule 8.4(d) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0).

         On September 8, 2014, the Grievance Committee received a complaint from Michael Nuzzolo. By letter dated September 16, 2014, a copy of the complaint was forwarded to the respondent and he was requested to provide a written answer within 10 days of his receipt thereof. The respondent failed to comply. In a telephone conversation on December 1, 2014, the respondent represented to the Grievance Committee that he had already mailed his answer to the Nuzzolo complaint, but would mail another copy. On February 9, 2015, the respondent advised the Grievance Committee of the same. No answer was provided. By letter dated March 17, 2015, sent first class and certified mail, return receipt requested, the Grievance Committee requested that the respondent provide a written answer by March 31, 2015, and advised that his failure to respond constitutes professional misconduct independent of the merits of the underlying complaint. A return receipt card was returned to the Grievance Committee on March 23, 2015, signed by "DJ Mattei." The respondent neither answered nor requested additional time in which to do so.

         On March 23, 2015, the Grievance Committee received a complaint from Dennis Fisher. By letter dated April 7, 2015, sent first class and certified mail, return receipt requested, a copy of the Fisher complaint was forwarded to the respondent and he was requested to provide a written answer within 10 days of his receipt thereof. The respondent failed to comply.

         In or about April 2015, the respondent was personally served with a judicial subpoena directing his appearance on May 11, 2015, for an examination under oath with respect to both the Nuzzolo and Fisher matters. The respondent appeared on that date, but requested an adjournment to retain counsel. The examination under oath was initially adjourned to May 26, 2015, but at the respondent's request, the examination was adjourned to June 1, 2015. However, prior to that date, the respondent by letter requested another adjournment. The Grievance Committee instructed the respondent to call on June 1, 2015, to schedule a new date, but the respondent failed to contact the Grievance Committee. By letter dated June 9, 2015, the respondent was directed to appear on June 22, 2015, for the examination. By letter dated June 16, 2015, Peter T. Shapiro, counsel for the respondent, requested an adjournment to provide answers to the pending complaints. The matter was adjourned to July 2, 2015. On July 2, 2015, answers to the Nuzzolo and Fisher complaints were finally provided.

         On February 9, 2016, the Grievance Committee received a complaint from Danny Montanez. By letter dated March 14, 2016, a copy of the Montanez complaint was forwarded to the respondent and he was requested to provide a written answer within 10 days of his receipt thereof. The respondent failed to comply even after a second letter, dated May 18, 2016, was sent. On August 2, 2016, a letter was hand-delivered to the respondent requesting a written answer to the Montanez complaint within 10 days. At an examination under oath on September 22, 2016, the respondent did not provide the requested answer. He did not provide an answer until September 26, 2016. By letter dated June 15, 2017, the respondent was asked to provide an update to the Montanez matter within 10 days of his receipt thereof. To date, the respondent has not provided the Grievance Committee with the requested update.

         On May 4, 2016, the Grievance Committee received a complaint from Offia Bright. By letter dated June 2, 2016, a copy of the Bright complaint was forwarded to the respondent and he was requested to provide a written answer within 10 days of his receipt thereof. The respondent failed to comply. On August 2, 2016, a letter was hand-delivered to the respondent requesting a written answer to the Bright complaint within 10 days. An answer to the Bright complaint was finally received on October 21, 2016.

         On May 31, 2016, the Grievance Committee received a complaint from Assunta Benincasa. By letter dated June 8, 2016, a copy of the Benincasa complaint was forwarded to the respondent and he was requested to provide a written answer within 10 days of his receipt thereof. The respondent failed to comply. On August 2, 2016, a letter was hand-delivered to the respondent requesting a written answer to the ...


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