Opinion
October 1, 1996
Andral N. Bratton of counsel (Hal R. Lieberman, attorney), for petitioner.
No appearance for respondent.
Respondent H. Michael Zukowski was admitted to the practice of law in the State of New York by the Third Judicial Department on April 21, 1980. At all times pertinent to this proceeding, respondent maintained an office for the practice of law within the First Judicial Department.
Petitioner Departmental Disciplinary Committee seeks an order, pursuant to 22 NYCRR 603.4 (e) (1) (i), suspending respondent from the practice of law for his willful failure to cooperate with the Committee's investigation into three separate complaints of professional misconduct, i.e., respondent's failure to account for funds entrusted to him, his failure to return an unearned retainer and his neglect of an estate matter and failure to provide an accounting for funds entrusted to him by the decedent. The Committee also seeks an order directing respondent to make restitution to two of the complainants pursuant to Judiciary Law § 90 (6-a). Respondent has failed to answer two of these complaints and has failed to comply with the Committee's requests to provide information relating to the complaints. Moreover, respondent has failed to interpose a response to the Committee's motion to suspend.
The Disciplinary Committee also seeks an order directing respondent to make restitution to two of the complainants. Restitution cannot, however, be directed in the absence of a finding that respondent willfully misappropriated or misapplied money. (Judiciary Law § 90 [6-a].) Such a finding cannot be made at this stage of the proceeding.
Under the circumstances, the Committee's motion should be granted to the extent of suspending respondent from the practice of law, effective immediately, pursuant to 22 NYCRR 603.4 (e) (1) (i).
SULLIVAN, J.P., MILONAS, ROSS, TOM and MAZZARELLI, JJ., concur.
Motion granted only insofar as to suspend respondent, effective immediately, and until the further order of this Court; and insofar as it seeks a direction with respect to restitution, the motion is denied, as indicated.