In re Sirianni

• Decision Date: 10 September 2014
• Parties: In the Matter of Thomas Anthony SIRIANNI, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Thomas Anthony Sirianni, respondent.
• Court: New York Supreme Court — Appellate Division

992 N.Y.S.2d 528

In the Matter of Thomas Anthony SIRIANNI, an attorney and counselor-at-law.

Grievance Committee for the Tenth Judicial District, petitioner;

Thomas Anthony Sirianni, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Sept. 10, 2014.

992 N.Y.S.2d 529

Robert A. Green, Hauppauge, N.Y. (Michael Fuchs of counsel), for petitioner.

992 N.Y.S.2d 530

Charles Ferzola, Garden City, N.Y., for respondent.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, PETER B. SKELOS, and MARK C. DILLON, JJ.

PER CURIAM.

The Grievance Committee for the Tenth Judicial District served the respondent with a verified petition dated February 28, 2012, containing 11 charges of professional misconduct. After a hearing, the Special Referee sustained charges 1 through 6, 10, and 11. However, she declined to sustain charges 7 through 9. The Grievance Committee now moves to confirm in part, and disaffirm in part, the Special Referee's report, and to impose such discipline as this Court deems just and proper. The respondent opposes the Grievance Committee's motion, and cross-moves to confirm in part, and disaffirm in part, the Special Referee's report. The respondent also requests that the matter be remitted to the Grievance Committee for the issuance of an admonition. We conclude that the Special Referee properly sustained charges 1 through 6, 10, and 11, and that she properly declined to sustain charges 8 and 9. However, we conclude that the Special Referee improperly declined to sustain charge 7, based upon the evidence adduced, and that charge 7 should have been sustained.

Charges 1 and 2 emanate from a common set of facts, as follows:

On or about December 13, 2010, the Grievance Committee received a notice from the Lawyer's Fund for Client Protection that a check in the amount of $5,760, drawn on an Interest on Lawyer Account (hereinafter IOLA account) maintained by the respondent at Astoria Federal Savings Bank, under account number XXXXX827, was dishonored due to insufficient funds. By letter dated December 17, 2010, the respondent was asked to provide the Grievance Committee, within 20 days, with an explanation of the circumstances that caused the subject check to be drawn against insufficient funds. The respondent also was asked to provide, within 20 days, records of all deposits in, and withdrawals from, IOLA account XXXXX827, that specifically identified the date, source, and description of each item deposited, as well as the date, payee, and purpose of each withdrawal or disbursement from the account, for the period from May 15, 2010, through November 15, 2010. Additionally, the respondent was asked to provide the Grievance Committee with records showing the source of all funds deposited in IOLA account XXXXX827, the names of all persons for whom the funds were held, the amount of such funds, as well as the description and amount, and the names of all persons to whom such funds were disbursed, for the period from May 15, 2010, through November 15, 2010. By letter dated January 23, 2011, the respondent claimed that the subject check was dishonored due to a "mathematical mistake." The respondent provided the Grievance Committee with copies of bank statements and check stubs for IOLA account XXXXX827 for the period from April 30, 2010, through November 30, 2010. However, the respondent was unable to locate his account ledger. Accordingly, the respondent failed to produce, as requested in the Grievance Committee's letter dated December 17, 2010, certain records related to IOLA account XXXXX827 for the period from May 15, 2010, through November 15, 2010.

In sworn testimony before the Grievance Committee on September 14, 2011, the respondent referred to certain matters in which funds were being held in escrow in

992 N.Y.S.2d 531

IOLA account XXXXX827. However, the respondent failed to provide complete information concerning those matters. The respondent also testified that he represented a party in connection with a real estate transaction concerning property in Dix Hills, New York, wherein he also acted as a broker in connection with the transaction. The respondent additionally testified that certain deposits into this IOLA account were referral fees, an attorney's fee, and other legal fees received from attorney Elliot Small. Further, the respondent issued certain checks from IOLA account XXXXX827, payable to Mr. Small, as referral fees, an attorney's fee, and other legal fees.

In his testimony on September 14, 2011, the respondent additionally failed to identify the client matter or matters relating to certain deposits in IOLA account XXXXX827. The respondent also failed to identify the client matter or matters relating to certain checks issued to himself from IOLA account XXXXX827. At the conclusion of his testimony, the respondent was asked to provide the Grievance Committee with certain information and documentation, on or before October 14, 2011, including complete information concerning each matter referred to in his testimony, wherein funds were being held by him in escrow in IOLA account XXXXX827, and a financial reconciliation of all client matters for which he was holding funds in that IOLA account for the period from May 15, 2010, through November 15, 2010. The respondent failed to provide the Grievance Committee with the foregoing information and documentation on or before October 14, 2011. By letter dated November 7, 2011, the Grievance Committee advised the respondent's counsel that it had not received the information and documentation requested on September 14, 2011. Further, the Grievance Committee requested that the information and...