In the Matter of Cohen & Slamowitz, LLP, et al. | NY Appeals Court - Even if the individual respondent lacked personal knowledge of the particular client matters ... the pattern and practice of misconduct established at the hearing, which were pervasive within C&S [Cohen & Slamowitz] since 1996

Categorized | STOP FORECLOSURE FRAUD

In the Matter of Cohen & Slamowitz, LLP, et al. | NY Appeals Court – Even if the individual respondent lacked personal knowledge of the particular client matters … the pattern and practice of misconduct established at the hearing, which were pervasive within C&S since 1996

In the Matter of Cohen & Slamowitz, LLP, et al. | NY Appeals Court – Even if the individual respondent lacked personal knowledge of the particular client matters … the pattern and practice of misconduct established at the hearing, which were pervasive within C&S since 1996

Supreme Court of the State of New York
Appellate Division: Second Judicial Department

RANDALL T. ENG, P.J.
WILLIAM F. MASTRO
REINALDO E. RIVERA
PETER B. SKELOS
CHERYL E. CHAMBERS, JJ.

2008-10218 OPINION & ORDER

In the Matter of Cohen & Slamowitz, LLP, et al.,
attorneys and counselors-at-law.

Grievance Committee for the Tenth Judicial District,
petitioner; Law Firm of Cohen and Slamowitz, LLP,
et al., respondents.

(Attorney Registration No. 1661263)

DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the
Tenth Judicial District. By decision and order on application of this Court dated January 15, 2009,
the Grievance Committee for the Tenth Judicial District was authorized to institute and prosecute
a disciplinary proceeding against the law firm of Cohen & Slamowitz, LLP, and David A. Cohen,
a principal of the law firm of Cohen & Slamowitz, LLP, based upon the acts of professional
misconduct set forth in a petition dated November 3, 2008, and the issues were referred to the
Honorable Charles F. Cacciabaudo, as Special Referee, to hear and report. By decision and order
on motion dated July 9, 2009, the Honorable Charles F. Cacciabaudo was relieved, and the issues
were referred to the Honorable Joseph A. Esquirol, Jr., as Special Referee, to hear and report. By
further decision and order on motion dated March 12, 2010, the Honorable Joseph A. Esquirol, Jr.,
was relieved, and the issues were referred to the Honorable Kenneth A. Davis, as Special Referee,
to hear and report. The respondent David A. Cohen was admitted to the Bar at a term of the
Appellate Division of the Supreme Court in the Second Judicial Department on February 20, 1980.

Robert A. Green, Hauppauge, N.Y. (Leslie B. Anderson of counsel), for petitioner.

McDonough &McDonough, Garden City, N.Y. (Chris McDonough of counsel), for
respondents.

PER CURIAM. The Grievance Committee for the Tenth Judicial
District served the respondents with a petition dated November 3, 2008, containing four charges of
professional misconduct involving multiple client matters. The respondents served an answer, dated
February 10, 2009. On June 30, 2011, the parties entered into a stipulation, which addressed, inter
alia, the facts alleged in the petition. One client matter was withdrawn. After a hearing on June 30,
2011, the Special Referee sustained charge two, based on one client matter (Durand). With respect
to charge one, the Special Referee sustained the factual allegations of two of the underlying client
matters (Quader and Kerschhagel), but did not find a pattern and practice of misconduct necessary
to sustain the charge as a whole. Charges three and four, which are derivatives of charge one, were
also not sustained by the Special Referee. The respondents now move to confirm in part, and
disaffirm in part, the Special Referee’s report. The Grievance Committee cross-moves to confirm
in part, and disaffirm in part, the report of the Special Referee.

The charges are predicated upon a common set of facts, as amended by the stipulation
entered into by the parties on June 30, 2011, as follows:

Cohen & Slamowitz, LLP (hereinafter C&S), is a law firm engaged in the practice
of law with offices at 199 Crossways Park Drive, P.O. Box 9004, Woodbury, New York 11797-
9004. David A. Cohen (hereinafter the individual respondent) is the senior partner of C&S. As
senior partner, the individual respondent oversaw the legal activities of C&S’s collection practice
during the relevant period of time, and indirectlysupervised approximatelythree hundred employees,
including attorneys, paralegals, collection staff, and support staff. In April 2002, the individual
respondent had an informal discussion with Grievance Committee counsel, and was advised to
“exercise caution, try to be careful and supervise [his] staff adequately, make sure [he had]
appropriate and reasonable procedures in place, and that [he monitored those] procedures.” The
individual respondent alsowas advised that he, his partner Mitchell G. Slamowitz, and the attorneys
employed by C&S were responsible for the conduct of their staff.

Complaint of Frank A. Mandriota, Sr.

In or about March 2003, the individual respondent and C&S (hereinafter together the
respondents) were retained to collect a debt of approximately $1,800 from a debtor identified as
“Frank Mandriota.” The respondents undertook collection efforts against Frank A. Mandriota
(hereinafter Mandriota Senior), a 73-year-old man residing in Plainview, New York. The
respondents were provided with an address, in Huntington, New York, as well as the social security
number for the actual debtor, Frank G. Mandriota (hereinafter Mandriota Junior), the 53-year-old
son of Mandriota Senior. Despite being provided with the foregoing, the respondents caused a
summons and complaint in the name of “FrankMandriota” to be served at a propertyin Farmingdale,
New York, owned by Mandriota Senior. Thereafter, the respondents obtained a judgment in the
District Court, Nassau County, which was entered in or about December 2003, and became a lien
on Mandriota Senior’s property.

Complaint of Adrian K. Hyde

In or about February 2005, the respondents were retained to collect a debt of
approximately $2,474.20 from a debtor identified as “Adrian Hyde.” Between February 28, 2005,
and March 16, 2005, the respondents undertook collection of the debt against “Adrian K. Hyde,”
who resided at an address onBroadway inNewYork,NewYork. The respondentswere advised that
“Adrian K. Hyde” at that address on Broadway in New York, New York, was not the actual debtor.
Despite this advice, the respondents attempted, on or about July 11, 2005, to have a summons and
complaint served on “Adrian K. Hyde” at that address on Broadway in New York, New York.

Complaint of Dr. Gholam Mujtaba

In or about January 2005, the respondents initiated an action to collect a debt from
a debtor identified as “GhulamMujtaba” of Flushing,NewYork. In pursuing collection of the debt,
the respondents erroneously pursued the matter against “Dr. Gholam Mujtaba” of Corona, New
York. In or aboutAugust 2005, the respondents discontinued collection efforts againstDr. Mujtaba.
On or about January 31, 2006, the respondents were retained to collect an unrelated debt from a
debtor identified as “Ghulam Mujtaba.” Once again, the respondents undertook to collect the debt
from Dr. Gholam Mujtaba. During their collection efforts, the respondents were notified that Dr.
Mujtabawas not the actual debtor. Despite being so advised, the respondents caused a summons and
complaint to be served on Dr. Mujtaba in or about October 2006.

Complaint of Mohammad Quader

On or about November 29, 2005, the respondents were retained to collect an
outstanding debt of approximately $1,450.13 from a debtor identified as “Mohammad Qader,”
residing on Seventh Avenue in Brooklyn, New York. The respondents thereafter undertook
collection efforts against “Mohammad Quader,” residing on Alderton Street in Rego Park, New
York. The respondents were advised that “MohammadQuader,” of Rego Park, New York, was not
the actual debtor. Despite being so advised, the respondents caused a summons and complaint to
be served upon him.

Complaint of Peter Kerschhagel

On or about June 17, 2004, the respondents were retained to collect an outstanding
debt of approximately $5,107.34 from a debtor identified as PeterKerschhagel. In or about February
2005, the respondents undertook collection efforts against Peter Kerschhagel of Dobbs Ferry, New
York, formerly of Irvington, New York. In May and June of 2005, the respondents were advised,
and provided with evidence, that the debt they were attempting to collect had been satisfied in May
2003, and that Kerschhagel resided in Dobbs Ferry, New York. Despite receiving this information,
in or about February 2006, the respondents caused substituted service of a summons and complaint
to purportedlybe effected uponKerschhagel at his former address in Irvington,NewYork. Adefault
judgment was awarded to the respondents’ client in or about May 2006. The respondents thereafter
caused the bank account of Kerschhagel to be restrained, despite evidence that the subject debt had
been satisfied, and that Kerschhagel resided in Dobbs Ferry.

Complaint of Barbara Durand

In or about March 2006, the respondents were retained to enforce a judgment against
a debtor named Barbara Durand. In or about June 2006, by agreement withDurand, the respondents
were sent a check in full satisfaction of the judgment. On March 16, 2007, the respondents sent a
satisfaction of judgment, dated January 11, 2007, to the City Court of Syracuse, New York. That
document was rejected by that court. On or about March 22, 2007, Durand received a copy of the
satisfaction of judgment. As of April 27, 2007, the respondents’ records reflected that the
satisfaction of judgment was again “to be filed” with the court.

Charge one alleges that the respondents engaged in a pattern and practice of conduct
prejudicial to the administration of justice by pursuing the collection of debts without conducting
a reasonable and proper search to verify the identity and property of alleged debtors, and the validity
of the alleged debts, based upon the Mandriota, Hyde, Mujtaba, Quader, and Kerschhagel matters,
in violation of former Code of Professional Responsibility DR 1-102(A)(5) (22 NYCRR
1200.3[a][5]).

Charge two alleges that the respondents engaged in conduct prejudicial to the
administration of justice by failing to timely file a satisfaction of judgment, and failing to provide
a client with a copy of the satisfaction of judgment, based upon the Durand matter, in violation of
former Code of Professional Responsibility DR 1-102(A)(5) (22 NYCRR 1200.3[a][5]).
Charge three alleges that the individual respondent,DavidA.Cohen, as senior partner
of C&S, engaged in a pattern and practice of failing to exercise reasonable management or
supervisory authority over the conduct of firm employees so as to avoid conduct prejudicial to the
administration of justice by those employees, based upon the facts alleged in charge one, in violation
of former Code of Professional Responsibility DR 1-104(D)(2) (22 NYCRR 1200.5).
Charge four alleges that the individual respondent, David A Cohen, engaged in a
pattern and practice of conduct adversely reflecting on his fitness as a lawyer, based upon the facts
alleged in charge one, in violation of former Code of Professional Responsibility DR 1-102(A)(7)
(22 NYCRR 1200.3[a][7]).

Based upon the respondents’ admissions and the evidence adduced, we find that
charge one should have been sustained in its entirety.

In the Mandriota matter, the evidence shows that the respondents received the social
security number and date of birth for the actual debtor, Mandriota Junior, from their client in or
about March 2003. Moreover, Mandriota Senior or his wife informed the respondents, in writing,
as early as June or July 2003, that the debtor theywere seekingwas Mandriota Junior, not Mandriota
Senior. Nonetheless, the respondents proceeded against Mandriota Senior by causing substituted
service of a summons and complaint naming “FrankMandriota” to be effected atMandriota Senior’s
Farmingdale property, and improperly encumberingMandriota Senior’s Farmingdale property upon
the entry of a default judgment. The respondents admittedly made no independent efforts to verify
whoowned or resided at the Farmingdale address. The improper encumbrancewas not released until
March 2005, almost two years after it was entered, despite the respondents’ actual knowledge that
Mandriota Junior did not own the property, and efforts byMandriota Senior and his wife to have the
encumbrance released when they became aware of it, beginning in or about December 2004.

In theHydematter, the evidence shows that the respondents pursued collection efforts
against “Adrian K. Hyde” at an address on Broadway in New York, New York, even though their
client provided no middle initial, and an address for an Adrian Hyde in Stony Point, New York.
Despite evidence of at least six possible addresses for the subject debtor, a credit report indicating
that the debtor’s middle initial was “R,” and both oral and written notification from “Adrian K.
Hyde” that the respondents were pursuing the wrong individual, the respondents nonetheless
attempted to effectuate service upon him via “the front desk of [his] condominium” at the address
on Broadway in New York, New York.

In the Mujtaba matter, the evidence shows that the respondents previously had
pursued “Dr. GholamMujtaba,” when the actual debtor was “GhulamMujtaba.” The secondmatter
was opened six months after the first matter was closed. Due to the proximity in time, the
respondents’ attempt to obtain a credit report for “Ghulam Mujtaba” was denied in the second
matter, as they were already in possession of a current credit report from the prior matter. We find
that a simple review of information already in the respondents’ possession relative to their prior
collection efforts could have prevented a second erroneous attempt to collect the debt of “Ghulam
Mujtaba” from “Dr. Gholam Mujtaba.”

In the Quader matter, the evidence shows that the respondents pursued “Muhammad
Quader” at a Queens address, when the actual debtor was “Muhammad Qader,” whose address was
in Brooklyn. Despite being in possession of the latter information, which was provided by their
client, and receiving two communications from Quader or his son disclaiming the debt, the
respondents proceeded to suit. Although that suit was eventually discontinued by stipulation, the
respondents thereafter sent Quader a letter offering him a “60% settlement of the . . . debt” in “full
satisfaction.” After Quader or his son wrote to the respondents declining the settlement offer, the
respondents sent Quader an information subpoena urging him, in an accompanying letter, to settle.
The Special Referee found, and we agree, that the respondents’ conduct in this matter was
“particularly egregious.”

In the Kerschhagel matter, the respondents commenced an action, and effected
substituted service, at Kerschhagel’s former address in Irvington, New York, despite confirmation
that he resided in Dobbs Ferry, New York, and despite the fact that the subject debt previously had
been satisfied. Having obtained a default judgment after the copies of the summons and complaint
thatweremailed to Irvingtonwere returned as “undeliverable,” the respondents proceeded to restrain
Kerschhagel’s bank account, resulting in an irate call from Kerschhagel’s wife, in which she
indicated that she and her husband were not aware of any default judgment. The respondents’
contemporaneous review of their file revealed that “the wrong address was served”; the “right
address” previously had been verified; the debt appeared to have been satisfied three years earlier;
and proof of those facts had been provided. However, as of November 2006, the default judgment
had yet to be vacated, and the file had yet to be closed, despite review of the file having occurred in
or about August 2006. The Special Referee found, and we agree, that it is “inexplicable” that the
respondents chose to serve Kerschhagel in Irvington, despite having information that his current
address was in Dobbs Ferry.

The individual respondent, David A. Cohen, did not testify. Rather, the respondents
relied primarily upon the testimony of an expert witness, Ronald M. Abramson, Esq. A creditors’
attorney and member of the Grievance Commission of Maryland, Abramson testified that the
respondents’ conduct was both reasonable and proper in the aforementioned matters. According to
Abramson, the respondents could not assume that what was being told to them by the debtors was
correct, and that the onus was not upon the respondents to establish the validity of the debtors’
claims absent written notice from the debtors, within 30 days, following their presumed receipt of
a validation letter pursuant to the Fair Debt Collection Practices Act (15 USC § 1692k; hereinafter
FDCPA). Abramson testified, further, that in the absence of FDCPA violations, there could be no
ethical violations. However, on cross-examination, Abramson conceded that there did not have to
be a violation of the law for there to be professional misconduct.

Notwithstanding Abramson’s testimony,we find that the respondents’ conduct in the
aforementioned matters was neither reasonable nor proper, particularly in the Mujtaba, Quader, and
Kerschhagel matters, wherein the respondents had information at their disposal that they were
pursuing the wrong debtor; continued to pursue a collection matter even after the matter was
concluded; and restrained a debtor’s bank account despite improper service and knowledge that the
debt had previously been satisfied. Based upon their unreasonable and improper conduct inmultiple
debt collection matters, we find that the respondents engaged in a pattern and practice of failing to
act appropriately, and that this pattern and practice was prejudicial to the administration of justice,
in violation former Code of Professional Responsibility DR 1-102(A)(5) (22 NYCRR 1200[a][5];
cf. Matter of Sokoloff, 95 AD3d 254).

Based upon the respondents’ admissions and the evidence adduced, we find that the
Special Referee properly sustained charge two as a result of the respondents’ failure to timely file,
and provide Barbara Durand with, a satisfaction of judgment.

Based upon our findings with respect to charge one, we find that charge three should
have been sustained. Even if the individual respondent lacked personal knowledge of the particular
client matters specified in charge one, the pattern and practice of misconduct established at the
hearing, which were pervasive within C&S since 1996, were sufficient to impute such knowledge
to him as senior partner of C&S. Not only was the individual respondent personally advised to
“exercise caution; . . . supervise [his] staff adequately . . . make sure [he had] appropriate and
reasonable procedures in place . . . and . . . monitor [those] procedures,” but he and C&S had
previously received numerous Letters of Caution and Admonitions for similar conduct.
Based upon our findings with respect to charges one and three, we find that charge
four should have been sustained. As the Court of Appeals held in Matter of Holtzman (78 NY2d
184, 191, cert denied sub nom. Holtzman v Grievance Committee for Tenth Judicial Dist., 502 US
1009), “the guiding principle must be whether a reasonable attorney, familiar with the Code and its
ethical strictures, would have notice of what conduct is proscribed.” Based upon the record before
us, it is clear that the individual respondent had such notice.

In determining an appropriate measure of discipline to impose, we note that the
respondents have a voluminous history of similar misconduct. On or about June 29, 2012, the
individual respondent received aLetter ofReprimand emanating fromcomplaints filed between 2004
and 2008,whichwere similar in nature to those presently before the Court. Additionally, from 1996
through 2005, a total of seven Letters of Caution, two Admonitions, and three PersonallyDelivered
Admonitions, were issued to either the individual respondent or C&S, and they all emanated from
complaints similar to those involved in the instant petition, and arose from conduct including the
failure to conduct adequate investigations prior to commencing debt collections or restraining bank
accounts, the failure to adequately supervise non-legal staff, and the failure to adequately address
inquiries and complaints from alleged debtors.

In mitigation,C&S’s managing attorney, Leandre John, testified that the respondents
have undertaken efforts to reform their collection practices by adding a compliance department and
other safeguards to prevent future misconduct. John testified that he presently oversees C&S’s
legal procedures, supervises the attorneys and support staff in the legal department, and assists the
individual respondent and his partner in addressing legal issues. He testified, further, that the
respondents’ compliance department reviews complaints from debtors and alleged debtors, as well
as issues between managers and staff. The respondents’ expert witness, Abramson, testified that
staff training is better now than it was prior to 2008. Moreover, he was impressed by the
respondents’ compliance department.

Under the totality of the circumstances, particularly the remedial measures undertaken
and improvements made, the respondents,DavidA. Cohen and the lawfirm of Cohen&Slamowitz,
LLP, are each publicly censured (cf. Matter of Wilens & Baker, 9 AD3d 213).

ENG, P.J., MASTRO, RIVERA, SKELOS and CHAMBERS, JJ., concur.

ORDERED that the respondents’ motion to confirmin part, and disaffirmin part, the
report of the Special Referee is denied; and it is further,
ORDERED that the petitioner’s cross motion to confirmin part, and disaffirmin part,
the report of the Special Referee is granted, such that all four charges are sustained; and it is further,

ORDERED that the respondents, David A. Cohen and the law firm of Cohen &
Slamowitz, LLP, are each publicly censured.

ENTER:
Aprilanne Agostino
Clerk of the Court

Down Load PDF of This Case

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Comments

comments

This post was written by:

- who has written 8684 posts on FORECLOSURE FRAUD | by DinSFLA.

CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black

Contact the author

Leave a Reply

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com

Archives