109 DOS 96

STATE OF NEW YORK

DEPARTMENT OF STATE

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In the Matter of the Complaint of

DEPARTMENT OF STATE

DIVISION OF LICENSING SERVICES,

Complainant,DECISION

-against-

DEBBIE ROSENTHAL,

Respondent.

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The above noted matter came on for hearing before the undersigned, Roger Schneier, at 10:30 A.M. on May 20, 1996 at the office of the Department of State located at 270 Broadway, New York, New York.

The respondent, of 357 Ivy Avenue, Westbury, New York 11590, appeared pro se. Although Richard Bruce Rosenthal, Esq., 120-82 Queens Boulevard, Kew Gardens, New York 11415, had previously corresponded with the tribunal, and had been granted three adjournments, two because of the unavailability of a witness and another so that he could attend a United States Park Service program, he was not present at the hearing. The respondent's request to delay the proceedings until the afternoon because Mr. Rosenthal was allegedly involved in court was denied in view of the prior adjournments and Mr. Rosenthal's failure to make the request in advance. Upon being advised of the tribunal's decision the respondent did not object and consented to proceed.

The complainant was represented by Litigation Counsel Laurence J. Soronen, Esq.

COMPLAINT

The complaint alleges that the respondent, a notary public, affixed her signature and notary stamp under the purported signature of Jerome Cooper on a form consent to change attorney although Mr. Cooper did not appear personally before her, did not execute the document, and did not acknowledge that he had executed the document.

FINDINGS OF FACT

1) Notice of hearing together with a copy of the complaint was served on the respondent by certified mail on February 21, 1996 (State's Ex. 1).

2) The respondent is, and at all times hereinafter mentioned was, a duly commissioned notary public (State's Ex. 2).

3) On August 10, 1990 the respondent went to the law office of Jerome Cooper to obtain his signature to a consent to change attorney in the matter of Richard Bruce Rosenthal v Arnold Gaba, et al. Mr. Cooper had been representing Mr. Rosenthal, the respondent's brother and employer, in that matter, and was to be replaced in that capacity by another lawyer.

When the respondent asked to see Mr. Cooper she was told that he was busy, and was asked to give the form to his secretary, who then took it back to him, obtained his signature, and returned it to the respondent. The respondent called back to Mr. Cooper that she could not notarize the document because he did not sign it in front of her, and he called out to her that it didn't matter, that he had signed the document, and that she shouldn't worry about it. Inasmuch as the respondent had known Mr. Cooper for over twenty years and recognized his voice, she affixed her notary stamp and signature to the document after the jurat stating: "On the 10th day of August, 1990, before me personally came Richard Rosenthal & Jerome Cooper to me known, and known to me to be the same persons described in and who executed the foregoing consent and acknowledged to me that they executed same." (State's Ex. 3).

OPINION AND CONCLUSIONS OF LAW

Regardless of her intent, a notary public acts unlawfully when she notarizes a document without the purported signatory being present. Division of Licensing Services v Perkinson, 166 DOS 95. The notary's "failure accurately to state the fact is not consistent with the strict obligation imposed upon a notary public." People v Reiter, 273 NY 348, 350 (1937).

The respondent notarized the consent to change attorney without Mr. Cooper actually appearing before her. By doing so she acted improperly. Her misconduct was, however, de minimis. The document was signed by Mr. Cooper and he so acknowledged to her, albeit from another room. No harm resulted. She is, however, admonished not to engage in such conduct in the future.

DETERMINATION

WHEREFORE, IT IS HEREBY DETERMINED THAT Debbie Rosenthal has engaged in an act of misconduct as a notary public and accordingly, pursuant to Executive Law §130, she is reprimanded therefore.

These are my findings of fact together with my opinion and conclusions of law. I recommend the approval of this determination.

Roger Schneier

Administrative Law Judge

Concur and So Ordered on: ALEXANDER F. TREADWELL

6/6/96 Secretary of State

                                      By:

Michael E. Stafford, Esq.

Chief Counsel