Thursday, January 10, 2019
An attorney has been suspended on an interim basis by the New York Appellate Division for the First Judicial Department
Respondent's repeated failure to comply with the subpoenas directing him to appear for a deposition, despite being granted multiple adjournments by the Committee over a five month period, constitutes willful noncompliance with a Committee investigation warranting an immediate suspension.
The response of the Grievance Committee to his protestations
In reply, the Committee maintains that respondent's prior correspondence, failure to provide documents, and three missed appearances evidence his categorical refusal to appear for a deposition; respondent's claim that he has practiced law for 67 years without incident is inaccurate in that he has been the subject of prior complaints, as have two law firms in which he was a named principal; and respondent's claim that he is willing to appear for a deposition in the future is belied by his prior conduct, which includes inadequate excuses for his failures to appear (e.g., the prohibitive cost of cab fare from Grand Central to the Committee's offices in lower Manhattan).
In or about September 2017, a client of respondent's filed a complaint against him alleging that he failed to refund her $3,700 retainer after she discharged him as her counsel. By his December 12, 2017 answer, respondent denied the client's allegations and maintained that she was not entitled to any refund because the services rendered exceeded her $3,700 retainer.
In her reply, the client took issue with respondent's answer and attached a letter she had received from an attorney offering to defend her in a lawsuit brought against her.
By March 28, 2018 letter, respondent requested that his deposition be adjourned to May 17, 2018 because of his advanced age (91-years-old), poor health, and need for additional time to collect the documents specified in the subpoena. The Committee agreed to this request and rescheduled respondent's deposition for the date he requested.
By May 3, 2018 letter, respondent requested that the Committee withdraw the subpoena pursuant to CPLR 2304 because he claimed to have already provided all his documents related to his representation of the client. Respondent further stated that the Committee's document request, insofar as it pertained to his lawsuit against the client, was "incomprehensible" and required clarification. In response to the subpoena's request for information about respondent's law firm, he enclosed only a copy of the certificate of incorporation, and maintained that only the named attorneys had worked on client matters; and "[i]n view of the foregoing" he would not appear on May 17, 2018 as directed.
The Committee declined to withdraw the subpoena and insisted that respondent appear for his deposition as directed. In a May 11, 2018 letter respondent reiterated his request for withdrawal of the subpoena, which the Committee denied, and he again advised the Committee that he would not appear for his deposition. Respondent did not appear on May 17, 2018 as directed. To date, respondent has not appeared for a deposition in connection with the September 2017 complaint.
In response to a 2016 complaint filed by a former client, the Committee commenced an investigation into whether respondent and other attorneys with whom he was associated brought frivolous and retaliatory lawsuits against clients and third parties who sought refund of legal fees or the return of monies, or who requested fee arbitration or filed disciplinary complaints, including the 2016 complaint by the former client. As a part of its investigation, the Committee questioned respondent's actions as plaintiff's counsel in a 2016 defamation action entitled Mertz, Bitelman & Associates Attorney at Law P.C. v Yuan Qian, John Doe and Jane Doe (Supreme Ct, NY County, Index No. 152761/2016) and, in April and May 2018, sought information and documents related thereto from respondent (which included tax forms and contracts/agreements for certain employees of the Mertz firm) by way of correspondence and judicial subpoena.
The committee granted postponement but patience eventually wore out
By August 8, 2018 letter, respondent requested that his deposition be adjourned until at least October 17, 2018 because in July he was involved in a car accident, and his driver's license had been "temporarily withdrawn," his home had been damaged by flooding and repairs were in progress, and his wife's health prevented him from leaving her alone as he was without family or other support. By August 13, 2018 letter, the Committee declined to adjourn respondent's deposition and again advised him that his failure to appear would be grounds for his interim suspension.