Saturday, July 21, 2018

Attorney Nicholas A. Penkovsky Suspended From Practicing Law For 3 Months

Nicholas A. Penkovsky, (admitted as Nicholas Alexander Penkovsky), an attorney and counselor-at-law, v Attorney Grievance Committee  for the First Judicial Department, Petitioner 

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

IN RE: Nicholas A. Penkovsky, (admitted as Nicholas Alexander Penkovsky), an attorney and counselor-at-law, Attorney Grievance Committee for the First Judicial Department, Petitioner,

M–3095 M–3699

    Decided: February 09, 2018

Peter H. Moulton, Justices.
Barbara R. Kapnick, Justice Presiding,
Marcy L. Kahn
Ellen Gesmer
Cynthia S. Kern
Nicholas A. Penkovsky,
Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Nicholas A. Penkovsky, (who, as Nicholas Alexander Penkovsky was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on January 31, 1994).
Jorge Dopico, Chief Attorney,
Attorney Grievance Committee, New York
(Kevin P. Culley, of counsel), for petitioner.
Ronald B. McGuire, Esq. for respondent.
M–3095/CM–3699– July 17, 2017
In the Matter of Nicholas A. Penkovsky, An Attorney
Respondent Nicholas A. Penkovsky was admitted to the practice of law in the State of New York by the First Judicial Department on January 31, 1994, under the name Nicholas Alexander Penkovsky. At all times relevant to this proceeding, respondent has maintained an office for the practice of law within the First Department.
In 2015, the Attorney Grievance Committee (the Committee) brought disciplinary charges against respondent alleging violations of the Rules of Professional Conduct (RPC) (22 NYCRR § 1200.00) rules 1.3(b) (neglect), 1.3(c) (intentionally failing to carry out a contract of employment entered into with a client for professional services), 1.4(a)(2) (failure to reasonably consult with a client about the means by which the client's objectives are to be accomplished), 8.4(b) (illegal conduct that adversely reflects of one's honesty, trustworthiness or fitness as a lawyer), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(h) (other conduct that adversely reflects on one's fitness as a lawyer).
On June 23, 2016, respondent and the Committee stipulated to the facts and all of the charges of misconduct. On June 28, 2016, a hearing was held before a Referee, which focused on the appropriate sanction for respondent's misconduct.
The Committee did not call any witnesses but offered documentary evidence. Respondent testified in mitigation, called his counsel as a character witness,1 and introduced documentary evidence. Both parties submitted posthearing memoranda; the Committee argued that respondent should be suspended for six months, and respondent urged a private reprimand or Admonition, or a conditional Admonition requiring respondent to continue his efforts to satisfy his professional and financial obligations with a public censure to follow if respondent failed to adhere to the conditions.
By report dated September 15, 2016, the Referee sustained all the charges and recommended that respondent be publicly censured.
Now, by motion dated June 8, 2017, the Committee moves, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.8(b) and the Rules of the Appellate Division, First Department (22 NYCRR) § 603.8–a(t), for an order affirming the Referee's liability findings and imposing whatever sanction this Court deems just and proper.
By cross motion dated July 10, 2017, respondent moves for an order affirming the Referee's liability findings, disaffirming the Referee's sanction recommendation of a public censure, and directing that respondent receive a private reprimand which has been replaced by Admonitions (22 NYCRR 1240.2 [b] ). In addition, respondent requests oral argument.
The facts of respondent's misconduct are not in dispute. In April 2009, a client retained respondent to pursue a copyright infringement case involving the alleged unauthorized use of his photographs. The client paid respondent an advance legal fee of $1,500 and agreed to an additional fee of one third of any net recovery after settlement or trial. Respondent took some minimal steps regarding the case but never commenced a lawsuit or took other significant action. Over a period of approximately three years, respondent was repeatedly unresponsive to the client's efforts to communicate with him in order to discuss the status of the case. Whenever the client was able to reach respondent, respondent misled the client to believe that the litigation was proceeding in the normal course when it was not.
Between February and April 2012, an attorney wrote to respondent on behalf of the client in order to request a case update. Respondent did not respond despite the attorney's warning that a disciplinary complaint would be filed if respondent continued to ignore his requests. In August 2012, the client filed a complaint against respondent with the Committee. At a May 29, 2014 deposition, respondent, then pro se, admitted that he failed to communicate with the client and had not properly pursued his case. As a result, some or all of the client's copyright infringement claims were time-barred.
The Referee found that respondent intentionally failed to fulfill his obligations under the retainer agreement, neglected the client's case, failed to reasonably consult with his client, and misled his client to believe that the litigation was proceeding when it was not, in violation of RPC rules 1.3(b), 1.3(c), 1.4(a)(2), and 8.4(d). Accordingly, the Referee sustained charges one through four, which were based on these actions.
In or about June 2007, respondent sublet office space from the law firm of Segan, Nemerov & Singer, P.C (Segan). Respondent stopped paying rent in or about January 2009 but continued to occupy the office space until October 2010. In 2011, Segan sued respondent for unpaid rent. Respondent served Segan with a motion to dismiss which alleged, inter alia, lack of jurisdiction due to improper service. The motion had a return date of August 31, 2011 but respondent never filed it with the court, nor did he inform Segan that it had not been filed. Segan, unaware that the motion had not been filed with the court, responded by way of a cross motion for summary judgment. Respondent did not respond to the cross motion nor did he appear on the return date. In September 2011, the court awarded Segan summary judgment against respondent for $26,695.30. Respondent did not appeal the judgment and never made any payment on it. In response to a disciplinary complaint filed by Segan against respondent, respondent raised similar arguments to those raised in his unfiled motion to dismiss. However, at his deposition, respondent conceded that Segan's judgment against him was valid.
The Referee found that respondent's conduct with respect to the motion to dismiss adversely reflected on his fitness as a lawyer, in violation of RPC rule 8.4(h). Accordingly, the Referee sustained charge five, which was based on these actions.
Respondent admittedly failed to file federal and New York State personal income tax returns for the tax years 2009 through 2014. Moreover, at his May 29, 2014 deposition, respondent misleadingly implied that he had been granted multiple extensions to file his tax returns which were still in effect, although they had in fact expired. Respondent admittedly failed to ascertain that the extensions were no longer in effect and correct his misstatements to the Committee.
The Referee found that respondent's failure to file his personal income tax returns constituted illegal conduct that adversely reflected on his honesty, trustworthiness or fitness as a lawyer, in violation of RPC rule 8.4(b). The Referee also found that his misleading testimony to the Committee regarding the status of his extensions reflected adversely on his fitness as a lawyer in violation of RPC rule 8.4(h). Accordingly, the Referee sustained charges six and seven, which were based on these actions.
In 2002, a judgment was entered against respondent for his unpaid law school loans, which included interest and penalties, for $116,606.71. In addition, between 2002 and 2015, other judgments and liens were entered against respondent which totaled approximately $59,321.71.
The Referee found that respondent's failure to satisfy the judgments and liens entered against him constituted conduct prejudicial to the administration of justice, in violation of RPC rule 8.4(d). Accordingly, the Referee sustained charge nine, which was based on these actions.
Lastly, the Referee found that respondent's overall conduct adversely reflected on his fitness as a lawyer, in violation of RPC rule 8.4(h).
Since the facts of respondent's misconduct are stipulated to and the parties both request that we affirm the Referee's findings of liability, we so affirm. We turn now to the issue of the appropriate sanction for respondent's misconduct.
In mitigation, respondent explained that he attended law school in pursuit of a career change after being laid off from work in the film production industry. Respondent graduated from law school at age 39 with $70,000 of loan debt. Respondent worked briefly for a small law firm before being let go; and, because he could not find other work, has been a solo practitioner since 1997. Since 2009, respondent's law practice has failed to generate sufficient income and respondent found it difficult to pursue business aggressively because of the breakdown of his marriage. Respondent and his estranged wife have been engaged in acrimonious divorce proceedings and lost their only significant asset, a cooperative apartment they owned together, because they failed to pay maintenance charges.
Respondent also explained that he has been participating in therapy and a support group, and submitted a letter from his current therapist. In addition, after stipulating to his misconduct, respondent went on to file tax returns for the years in which he was delinquent.
Respondent expressed remorse and acknowledged that he needed help to properly fulfill his professional responsibilities. He also noted his prior pro bono and other volunteer work. He submitted nine character letters from, among others, law school professors and members of the New York bar attesting to his good character, professionalism, and integrity.
Respondent's attorney, who has known respondent since 1991, testified to respondent's good character, professional competence, and commitment to public interest cases. Respondent's counsel testified that he would be comfortable referring clients to respondent, but, given respondent's professional and personal difficulties, he would take it upon himself to monitor how respondent handled those cases.
In aggravation, the Committee introduced a prior Admonition issued to respondent in 2013 for conduct prejudicial to the administration of justice in violation of RPC rule 8.4(d). Respondent had represented, in federal court, a group of tenured New York City public school teachers who had been suspended. Respondent filed a fourth amended complaint that had previously been found deficient by both a magistrate and a judge. Respondent was sanctioned for this with a $5,000 fine. Respondent delayed his payment of the fine by 16 months by raising frivolous challenges to the sanction.2
The Referee recommended that respondent be publicly censured. While the Referee viewed suspension as too harsh, the Referee acknowledged that a private Admonition would not be sufficient to protect future clients from possible inadequate representation by respondent.
We agree with the Referee that a private Admonition would not be appropriate in this case and therefore reject respondent's request, in his crossmotion, that we disaffirm the Referee's proposed sanction and impose an Admonition. Respondent neglected a client matter, prejudiced the administration of justice in litigation with his former landlord, did not file his taxes for several years, and was delinquent in his debts. He was also previously admonished by this Court. While respondent has expressed remorse, confronted personal and financial difficulties, and is taking steps to improve himself, his actions were serious enough that future clients should be on notice of them.
We find that, in this case, a three-month suspension is appropriate. We have previously imposed three-month suspensions where, like here, an attorney committed multiple acts of misconduct and was previously admonished, but expressed remorse and presented evidence in mitigation (see Matter of Bartley, 151 AD3d 1, 3–5 [1st Dept 2017]; Matter of Peralta–Millan, 141 AD3d 87, 89 [1st Dept 2016] ). We find that this sanction appropriately balances respondent's misconduct and the evidence in mitigation (Bartley, 151 AD3d at 4).
We have considered and reject respondent's request for oral argument.
Accordingly, the Committee's motion should be granted to the extent of affirming the Referee's findings of fact and conclusions of law and respondent suspended from the practice of law in the State of New York for a period of three months and until further order of this Court. Respondent's crossmotion should be granted to the extent of affirming the Referee's findings of fact and conclusions of law and otherwise denied.
All concur.
Order filed.
1.   The Referee permitted respondent's counsel to testify as a character witness with the understanding that his testimony would be stricken in whole or in part if respondent raised objections based on the attorney-client privilege during cross-examination by the Committee or examination by the Referee. No such objection was raised.
2.   As additional evidence of aggravation, the Referee considered the testimony by respondent that he never filed the motion to dismiss in the Segan matter because he simply forgot, which the Referee did not find credible.

Saturday, July 7, 2018

Gina L. Bianchi Sues DCJS Commissioner Michael C Green and Others After She was Terminated For Cooperating With DCJS

Brian Gestring, director of Forensic Science Office for DCJS, and a members of the New York State Forensic Science Commission, takes part in a commission meeting on Wednesday, March 21, 2018, in Albany, N.Y. (Paul Buckowski/Times Union)

Attorney who was fired for cooperating with inspector general files lawsuit

ALBANY — A female attorney who was terminated from her job at the state Division of Criminal Justice Services for cooperating in a sexual harassment investigation filed a federal lawsuit Friday accusing the agency's leader of covering up the allegations against a former forensics director.
The civil rights lawsuit was filed in U.S. District Court by Gina L. Bianchi against DCJS Commissioner Michael C. Green and two other agency leaders, general counsel John Czajka and human resources director Karen Davis.
The lawsuit also targets state Inspector General Catherine Leahy Scott, whose office conducted the harassment investigation of former DCJS director Brian J. Gestring, and subsequently turned over Bianchi's confidential testimony to the agency without her knowledge.
The decision by Green last December to terminate Bianchi — after interrogating her for more than two hours with a copy of her testimony from the inspector general's office — has resonated across state agencies and left many workers saying they no longer feel safe cooperating with Leahy Scott's office.
Leahy Scott's decision and Green's actions have not been questioned by Gov. Andrew M. Cuomo, who has declined comment.
The lawsuit notes that Green took no action against Gestring, who was found to have engaged in years of sexual harassment, racism, ageism and workplace violence.
A DCJS spokeswoman on Friday declined comment and said they have not been served with a copy of the lawsuit. A spokesman for Leahy Scott also declined to comment.
Bianchi's lawsuit said that Green, who had counseled Gestring in 2012 for workplace misconduct, told her repeatedly during the December interrogation that she should have been more evasive in her testimony to the inspector general's office, "with a statement that was, in sum or substance, 'I do not have a specific fact upon which to base an answer to your question.'"
Bianchi said that in 2012, not longer after Gestring was hired as director of the agency's Office of Forensic Science, that Green removed Gestring from her supervision. The move took place after Bianchi had documented Gestring's alleged misconduct in a counseling memo. When she subsequently reported additional acts of inappropriate behavior by Gestring, the complaint states, Green did nothing and told her to "stay out of OFS" — a reference to Gestring's office.
"The actions taken by defendants have been taken with the intention to chill the speech of plaintiff, as well as the speech of all DCJS employees — and, indeed, all state employees generally — who might consider complaining of, and/or testifying about, civil rights and other violations," the complaint states.
The agency's decision to punish Bianchi and another female employee who testified about Gestring's alleged misconduct was exposed by the Times Union in a story published on March 18. Cuomo's office subsequently issued a statement saying the governor had asked the state's Joint Commission on Public Ethics to conduct another investigation — the fourth investigation of the case by a state agency. The probe by JCOPE has languished and Bianchi and the other female employee, Kimberly Schiavone, have not been interviewed by its investigators.
Bianchi and Schiavone, who was transferred out of the forensic science office against her wishes after she filed a complaint against Gestring, were later ordered by DCJS officials to move into smaller offices — including one that was formerly a closet. DCJS then rescinded its directive against Bianchi not long after the Times Union asked what had prompted the decision.
The lawsuit claims that employees who cooperated with Leahy Scott's investigation of Gestring last year "were specifically told, and/or understood, that the sworn testimony they provided would be confidential.  ... It is not the standard or routine practice of the office of the New York state inspector general to release tapes or transcripts of state employees' testimony to those employees' supervisors, or to agency heads, or to agency counsels in connection with the inspector general's investigations."
Gestring was abruptly fired March 23 for what the agency said was an unrelated complaint involving inappropriate comments made at an off-site training seminar in June 2017. Sources familiar with that allegation said the incident took place during a DNA training session at the State Police crime laboratory, where Gestring allegedly had made a vulgar remark as the group examined a rape case involving young children. A female State Police scientist filed a complaint about his remark, but the agency took no action.
The investigation of Gestring revealed a history of offensive and inappropriate behavior that began shortly after he started working for DCJS in July 2012. Records indicate that about four months after Gestring was hired, he received two counseling memos for misbehavior. Gestring signed the memos certifying that he had read them, but added handwritten notes claiming he disagreed with the findings, had been forced to sign them, and that staff at DCJS had "agendas," according to details of the inspector general's investigation shared with the Times Union.
Leahy Scott's investigators, who obtained sworn testimony from multiple DCJS employees, said they were also told that Gestring had once encouraged a female manager to file fraudulent sexual harassment charges against a male colleague in an apparent effort to have him terminated. The woman refused.
In October, Leahy Scott and her deputy inspector general, Spencer Freedman, met with Czajka, DCJS's top legal counsel, and Green to outline the findings of their investigation.
Leahy Scott, who was appointed inspector general by Cuomo in 2013, followed up the October meeting with a five-page letter to DCJS on Dec. 6 outlining the findings of her office's investigation. The letter recommended the agency take action against Gestring and two other officials accused of mishandling the allegations, First Deputy Commissioner Mark Bonacquist and Davis, the human resources director.
The agency did not take action against those employees. Instead, DCJS said it had conducted its own investigation and could not sustain the allegations against Gestring.

Bianchi, an attorney who has worked at DCJS for 24 years, was terminated by Green a day before Leahy Scott's report — in the form of a letter — was sent to Green. It's unclear why Leahy Scott outlined her findings in a letter rather than a report, which are normally made public.
Although Bianchi was terminated, she was able to fall back into a lower-paying job with the agency due to state hiring regulations, but took a $44,000-a-year pay cut.
Schiavone had filed a workplace violence complaint against Gestring last August, but the agency did not follow up and never interviewed her about the complaint, said John W. Bailey, who is the attorney for Schiavone and Bianchi.
In a prior statement, DCJS said its decision last December to terminate Bianchi and transfer Schiavone were "appropriate actions ... to maintain the appropriate work environment at DCJS."

Former Senate Majority Leader Dean Skelos, in Federal Court, Testifies That He Needed To Help His Son Adam

Former State Senate Majority Leader Dean Skelos leaves Manhattan Federal Court during his retrial on
extortion and bribery charges on Friday. (Jefferson Siegel / New York Daily News)
Dean Skelos, formerly one of the most powerful men in Albany, testified in his defense in the corruption case currently unfolding in Federal Court. He says he was a good dad, only trying to help his troubled son Adam.

We all want to help our kids. But using threats and a public office to make sure that someone obeys is another matter.

Put father and son in jail for a long time. Teach other politicos a lesson in dealing with private matters while in public office.

That is my two cents.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Disgraced pol Dean Skelos testifies in federal trial he was just trying to help troubled son

JUL 06, 2018

He was a good dad with a bad son.

Former state Senate Majority Leader Dean Skelos took the witness stand Friday at his federal corruption retrial to admit, yes, he pulled a few strings for his ne’er-do-well son — but no favorable legislation was advanced in exchange.

The former Albany bigwig, who’s accused of soliciting bribes and extorting businesses to employ his slacker son, Adam, explained what he did for the love of his kid.
“Quite frankly, I’ve asked a lot of people to help my son,” he said. “If I had the opportunity to ask (somebody) to help Adam, I would.”

But the disgraced ex pol said he never threatened or intimidated anyone for the favors, almost laughing off the insinuation under questioning.

The Long Island Republican — once one of the three powerful men who decided how the state budget would be spent — told the court about his decades-long political career, his son’s behavioral problems from a young age and their close-knit father and son relationship. Skelos cut a confident figure, wearing a beige suit and a blue tie, and cracking more than one joke during his testimony.

The fallen legislator said he and his adopted son, 35, had a impenetrable bond from the get-go, which he partially attributed to his wife leaving in 1982.

“(Life circumstances) changed — number one, I lost my election,” he said. “But also the marriage did not work out, and for a while, I was the primary caregiver of Adam.”

Skelos, 70, said he would take his baby boy to political events, even holding him up on stage when he gave speeches. Offstage, Adam Skelos grew up struggling in school and with behavioral problems, he said.

“We would discuss school. We would discuss our personal lives. Adam had certain issues he was dealing with,” Skelos said. When the boy was 7 or 8, his dad enrolled him in special-education classes for reading and language, where he remained for four or five years. Skelos said he tried to be a positive force in his son’s life, telling him, “Move forward — have confidence in yourself, do the right thing.”

By the time Adam Skelos reached his early 20s, drug and alcohol addiction became a bigger issue.

“What I would always try to do is manage him through those issues,” he said. “There’s nothing more important than being a parent.”

Skelos didn’t shy away from talking about his son’s temper.

“His temperament, sometimes he could get a bit abrasive,” he said. “It could get a little ugly.”

For all his close parenting, Skelos wasn’t able to instill a strong work ethic in his son.

Anthony Bonomo, a medical malpractice CEO who hired Adam Skelos at his father’s request, complained about the son not coming to work.

“He called me and indicated that Adam was not performing well — that he wasn’t showing up the way he felt he should,” the former senator told the court.

Instead of addressing it himself, Skelos said he kicked the problem back to Bonomo, who he said had been a friend for 30 years. He told the insurance executive, “If there’s any way you could remediate the problem, it would be nice.”

His lawyer, Robert Gage asked about his tone.

“Certainly not threatening,” he said. “I think what he heard was my frustration with Adam.”

Adam Skelos, center