MATTER of Kenneth J. Gellerman, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Kenneth J. Gellerman, res — (Attorney Registration No. 2000222) — Motion by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (1) to suspend the respondent from the practice of law, pursuant to 22 NYCRR 691.4(l) (1)(iii), upon a finding that he is guilty of professional misconduct immediately threatening the public interest based on uncontroverted evidence of misconduct; (2) to authorize the Grievance Committee to institute and prosecute a disciplinary proceeding against the respondent based upon the allegations set forth in a petition dated August 17, 2012; (3) to direct the respondent to submit an answer to the petition; and (4) to refer the issues raised to a Special Referee to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on May 1, 1985.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that pursuant to 22 NYCRR 691.4(l)(1)(iii), the respondent, Kenneth J. Gellerman, is immediately suspended from the practice of law in the State of New York, pending further order of the Court; and it is further,

ORDERED that the respondent, Kenneth J. Gellerman, shall promptly comply with this Court's rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10); and it is further,

ORDERED that pursuant to Judiciary Law §90, during the period of suspension and until further order of this Court, the respondent, Kenneth J. Gellerman, is commanded to desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee or another, (2) appearing as an attorney or counselorat-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts is hereby authorized to institute and prosecute a disciplinary proceeding in this Court, against Kenneth J. Gellerman, based on the petition dated August 17, 2012; and it is further,

ORDERED that Diana Maxfield Kearse, Chief Counsel, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Renaissance Plaza, 335 Adams Street - Suite 2400, Brooklyn, N.Y. 11201-3745, is hereby appointed as attorney for the petitioner in such proceeding; and it is further,

ORDERED that within 20 days after service upon him of a copy of this order, the respondent, Kenneth J. Gellerman, shall serve an answer upon the petitioner and the Special Referee, and shall file the original answer with this Court; and it is further,

ORDERED that the issues raised by the petition and any answer thereto are referred to Honorable Harry E. Seidell, 10 Thorn Grove Lane, Dix Hills, N.Y. 11746-6709, as Special Referee to hear and report, together with his findings on the issues, and to submit a report within 60 days after the conclusion of the hearing or the submission of post-hearing memoranda; and it is further,

ORDERED that if the respondent, Kenneth J. Gellerman, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based on a pattern and practice of converting client funds.

The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Grievance Committee) commenced an investigation in response to separate complaints filed by Ramon Rodriguez and Katherine Lawson, both of whom alleged that the respondent had failed to give them their shares of their settlement proceeds.

In April 2001, Ramon Rodriguez retained the respondent to commence a personal injury action. In 2006, the respondent settled the personal injury matter for $35,000. On August 7, 2006, the respondent deposited a $35,000 settlement check into his escrow account at JP Morgan Chase Bank, entitled "IOLA Kenneth J. Gellerman," bringing the balance to $50,006.22. The respondent was required to maintain at least $19,100 in his escrow account on behalf of Mr. Rodriguez. After depositing the Rodriguez funds into his escrow account, the respondent issued checks to himself and other clients throughout the remainder of 2006, which cleared against the Rodriguez funds. On September 8, 2006, the balance in the escrow account fell to $12,995.27. Five years later, on July 1, 2011, the escrow balance was only $5,188.39. On or about July 15, 2011, the respondent issued Mr. Rodriguez a check in the amount of $19,100, representing his share of the settlement. At his July 12, 2011, examination under oath the respondent represented that he had always maintained the Rodriguez funds in escrow, when he knew or should have known that the Rodriguez funds had not been maintained in his escrow account.

During the course of its investigation of the Rodriguez complaint, the Grievance Committee sent the respondent a letter dated July 13, 2011, requesting bank statements for his escrow account, for the periods from January 2008 through September 2008, and January 2011 through June 2011, within 10 days of his receipt of the letter. When the respondent failed to provide his bank statements, the Grievance Committee sent the respondent a second letter dated July 29, 2011, requesting the bank statements within 5 days. By letter to the Grievance Committee dated August 11, 2011, the respondent stated that the requested bank statements "would be available by early September 2011." The Grievance Committee sent a third and final letter dated August 12, 2011, requesting the bank statements no later than September 8, 2011. The respondent never provided the requested bank statements. As a consequence, the Grievance Committee subpoenaed the bank statements from JP Morgan Chase Bank in January 2012.

In June 2010, Katherine Lawson retained the respondent to represent her as a result of injuries sustained in an automobile accident. In 2011, the respondent settled a personal injury suit for $25,000, on behalf of Lawson. On July 22, 2011, the respondent deposited a $25,000 settlement check into his escrow account at JP Morgan Chase Bank, bringing the balance to $26,819.42. The respondent was required to maintain at least $16,000 in his escrow account on behalf of Lawson. After depositing the Lawson funds, the respondent issued checks to himself and other clients throughout the remainder of July 2011, all of which cleared against the Lawson funds. By July 31, 2011, the escrow balance fell to $2,539.90, well below the amount the respondent was required to maintain on behalf of Lawson.

Between January 2010 and July 14, 2011, the respondent deposited settlement checks into his escrow account on behalf of five clients: Samuel Terasme, Carla Heckstall, Nahomie Leger, Christine Key, and Martisha Jones. Although in most instances the respondent issued checks to these clients for a portion of their settlement share after depositing their settlement checks, by July 21, 2011, the respondent's escrow balance fell to $1,189.42, below the amount he was still required to be maintaining on behalf of those clients.

Between June 2010 and August 2011, the respondent deposited settlement checks into his escrow account on behalf of the following six clients: Suzette Ham, Melvette Richardson, Phyllis Reed, Monique Cody, Helen John, and Rodrick Romeo. Although in most instances the respondent issued checks to these clients for a portion of their settlement share after depositing their settlement checks, by September 1, 2011, the respondent's escrow balance fell to $400.60, below the amount he was still required to be maintaining on behalf of those clients.

Between July and August 2011, the respondent deposited settlement checks into his escrow account on behalf of the following three clients: Keisha Smith, Myriam Noughes, and David Ebanks. The respondent did not issue any checks to these clients through August 2011. On September 1, 2011, the respondent's escrow balance fell to $400.60, below the amount he was required to be maintaining on behalf of those clients.

In opposition to the motion, the respondent claims that he has been suffering from major depression and that his failure to respond promptly or properly defend himself is a direct result of his depression. As proof of his claim, the respondent submitted a report from a psychologist, who examined the respondent for the first time in October 2012. Significantly, at neither of the respondent's two appearances before the Grievance Committee for an examination under oath did the respondent raise the issue of depression. The respondent has offered no explanation for his conversion of client funds.

Based on the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l) (1)(iii), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.

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