Golenbock, In re

• Decision Date: 19 May 1961
• Docket Number: Nos. 1 and 2,s. 1 and 2
• Citation: 215 N.Y.S.2d 270,13 A.D.2d 178
• Parties: In the Matter of Jerome GOLENBOCK, An Attorney. (Motions)
• Court: New York Supreme Court — Appellate Division

Page 270

215 N.Y.S.2d 270

13 A.D.2d 178

In the Matter of Jerome GOLENBOCK, An Attorney.

(Motions Nos. 1 and 2.)

Supreme Court, Appellate Division, First Department.

May 19, 1961.

Henry Weiner, New York City, of counsel for petitioner.

Menahem Stim and Leonard Feldman, New York City, of counsel (Curran, Mahoney, Felix & Stim, New York City, attorneys), for respondent.

Before BOTEIN, P. J., and RABIN, VALENTE, STEVENS and STEUER, JJ.

PER CURIAM.

Respondent, an attorney admitted to practice in this State in 1939, was served with a petition over four months ago containing twelve charges of professional misconduct. He or his attorneys requested and were granted many extensions of time in which to answer, the last of which expired a week ago. No answer has been filed and respondent is in default.

Petitioners have moved to restrain respondent temporarily from practicing law, upon allegations of improprieties that will hereinafter be outlined.

Respondent in turn moves for leave to open his default and interpose an answer. A copy of the proposed answer has been submitted with the moving papers.

The reasons advanced for the failure to answer are quite unimpressive, and would not be regarded as excusable in conventional adversary litigation. Ordinarily, too, we would not consider them further in view of the fact that respondent makes 'no adequate showing of a meritorious defense' (La Vin v. La Vin, 279 App.Div. 873, 110 N.Y.S.2d 240, 241; Scordo v. Terrell, 275 App.Div. 940, 89 N.Y.S.2d 353). 'It has been repeatedly held that a defendant, applying to a court for an order opening his default, must show as a condition precedent to the granting of the relief facts establishing a meritorious defense, and an affidavit of merits alone is not sufficient. (Heischober v. Polishook, 152 App.Div. 193, 195, 136 N.Y.Supp. 567; Clews v. Peper, 112 App.Div. 430, 98 N.Y.Supp. 404.)' Rothschild v. Haviland, 172 App.Div. 562, 158 N.Y.S. 661. No affidavit of merits, formal or otherwise, has been included in the motion papers; and far from making 'full and complete disclosure of a meritorious defense' (Benadon v. Antonio, 10 A.D.2d 40, 42, 197 N.Y.S.2d 1, 4), respondent offers no factual denial of any of the allegations of the petition and no explanation or extenuation of the alleged acts of misconduct.

Nor, even if we were prepared in a proceeding of this nature to accept the proposed answer in lieu of respondent showing a meritorious defense, does that document furnish any factual refutation of the charges. It consists of nothing more than a half-page blanket and conclusory denial on information and belief of certain allegations, and general denial as to other allegations of an unusually detailed and precise petition.

The petition charges respondent with improperly withholding for protracted periods approximately $85,000 out of recoveries in some forty accident cases, which was due clients, attorneys, the Department of Welfare of the City of New York, and Columbus Hospital.

Another charge relates that respondent purchased some 50 to 75 personal injury claims from an attorney who had been retained to represent the claimants in said cases. Respondent paid $56,500 for these cases; and it is alleged that none of the clients was consulted nor were arrangements made for substitution of counsel.

The petition is as exact and detailed as a bill of particulars in setting forth dates, the names of the clients and others allegedly defrauded, the amounts withheld, and other data further identifying the cases involved, as well as many other pertinent facts.

Contemporaneously with respondent's motion to open his default in answering, petitioners have also moved for an order temporarily suspending respondent from practice on the basis of his misconduct in connection with a group of cases in which he represented a number of plaintiffs in the United States District Court, Southern District. Respondent admitted, in testimony taken before a United States District Judge, that in 1957 he had collected over $200,000 in funds belonging to twenty-eight infant children of United States servicemen killed in an airplane crash while in active military service. Respondent also admitted that he failed to make distribution of any of these funds to any distributee; and gave some vague story about the defalcations of his secretary. On May 10, 1961, respondent signed a consent to an order in the United States District Court suspending him from practice in that court. Respondent has about 1,200 personal injury cases in his office, and petitioners express concern about protecting the clients because of his allegedly demonstrated proclivity for converting clients' funds. In view of the disposition we propose to make of the motion to open respondent's default we need not pass upon petitioners'...