Bruce Cutler, scion of a royal Criminal Defense family (father Murray was a big player, brother a federal prosecutor) started off as a Kings County ADA, rising to Homicide Bureau Chief.  (Full disclosure…I was a lowly ADA there).  Cutler was a demigod in Brooklyn.  Then he moved onto criminal defense, eventually representing John Gotti and obtaining three acquittals.  In movies, TV and talk shows he spun away.  Later he defended Phil Spector for a period of time.

Today, his firm (he was personally dismissed) are embroiled in a legal malpractice case.  Its a rare case in which a criminal defense attorney is sued for legal malpractice.  But Rizzo v Timothy Charles Parlatore  2017 NY Slip Op 30439(U)  March 3, 2017  Supreme Court, New York County
Docket Number: 151153/16  Judge: Kathryn E. Freed concerns alleged failures in forfeiture litigation.

“In her amended verified complaint, filed with this Court on February 16, 2016 (NYSCEF Doc. No. I), plaintiff alleged that, on or about August I 0, 2011, plaintiff Ramona Rizzo was in a car which was stopped by police officers on the New Jersey side of the Lincoln Tunnel. Ex. 1, at par. 10.2 At that time, plaintiff, who had appeared on a television show called “Mob Wives,” was with her boyfriend, Joseph Sclafani, who was under investigation by law enforcement authorities. Id., at par. I I. Later that day, agents of the United States Department of Justice Drug Enforcement Administration (“DEA”), executing a search warrant, seized property, including jewelry valued at approximately $184,000, from Sclafani’ s home. Id. Plaintiff allegedly owned 42 pieces of the jewelry seized, which items were worth approximately $154,000. Id., at pars. 11, 14.

Following the seizure of the jewelry, plaintiff retained defendant Timothy Charles Parlatore, Esq. of defendant law firm Cutler & Parlatore, PLLC (“the firm”) to represent her before the asset forfeiture section of the DEA in an attempt to have the jewelry returned to her. Id., at par. 15. On or about November 9, 2011, Parlatore wrote to forfeiture counsel setting forth his intention to submit, on plaintiffs behalf, a request for remission of the forfeiture. Id., at par. 16. On or about December 15, 2011, the DEA notified Parlatore that the application he submitted on plaintiffs behalf was filed incorrectly and had to be resubmitted within 20 days. Id., at par. I 7. However, Parlatore allegedly failed to resubmit the application within the 20-day period. Id., at par. 18.

By correspondence dated January 23, 2012, Parlatore advised the DEA that, since he did not receive its December 15, 2011 letter until January 11, 2012, his submission was made within the 20- day time limit. Id., at par. 19. However, in a letter to Parlatore dated February 15, 2012, the DEA advised that the deadline for filing a claim had expired on January 16, 2012. Id., at par. 20. The DEA further advised Parlatore that plaintiffs only available remaining avenue for having the jewelry returned was a petition for remission or mitigation of forfeiture which would require plaintiff to be interviewed. Id., at par. 21.

By correspondence dated October 15, 2012, the DEA advised Parlatore that the petition he submitted on plaintiffs behalf was deficient insofar as it failed to establish a valid, good faith and legally cognizable interest in the seized property as an owner or lienholder and plaintiffs qualification as an “innocent owner.” Id., at par. 23. Plaintiff alleged that, since the DEA’s investigation concluded that it was possible that illicit drug-related funds were used to purchase the forfeited property, Parlatore had to provide evidence that the funds used to purchase the same were not drug-related, and he failed to make this showing. Id., at pars. 25-26. She further claimed that, had Parlatore diligently pursued the matter, he would been able to provide the DEA, in a timely fashion, with “documents to substantiate her claim” (id., at pars. 27-28) and that, since the DEA was not provided with the necessary documentation in a timely manner, it determined that the forfeiture was justified. Id., at par. 29.

Parlatore subsequently learned that he had an opportunity to seek reconsideration of the DEA’s decision, but only if such request were based on information or evidence not previously submitted. Id., at par. 30. An additional investigation was conducted in connection with the request for reconsideration. Id., at par. 32. During the investigation, Parlatore was advised that plaintiff was required to produce documentation regarding each piece of jewelry she wanted returned to her. Id., at par. 33. Although Parlatore requested reconsideration, he did not assist plaintiff in providing the necessary documentation and did not diligently pursue the necessary proofin a timely manner insofar as he failed to advise plaintiff that there was a deadline for the production of such documentation. Id., at pars. 31, 34-35. Plaintiff alleged that, despite the fact that the DEA left Parlatore several telephone messages requesting the necessary documentation, he “failed to make an effort to produce sufficient information or documents from a legitimate source in a timely manner [al]though such information was available.” Id., at par. 36.

On February 4, 2013, Special Agents Dodge and Waddell interviewed plaintiff and Parlatore regarding the origin of the items and, again, Parlatore allegedly “failed to inform [her as to] what was needed nor did he assist her in providing the requisite documentation to back her claim in a timely manner.” Id., at par. 3 7. Plaintiff alleged that, had Parlatore done so, “she would have been able to obtain at a bare minimum some of the documentation that was needed in a timely manner.'”ld., at par. 38.

On February 13, 2013, Special Agent Dodge again requested that Parlatore provide any of the documents which had been requested and again he allegedly “failed to act to either provide the documentation or to inform the plaintiff what was necessary so that she could obtain the documentation in a timely manner.” Id., at par. 39. Plaintiff further claimed that, since the interviews with the Special Agents, her request for reconsideration was denied because Parlatore failed to help her provide the documents requested by the DEA in a timely manner. Id., at par. 40.

By correspondence dated July 14, 2015 (Ex. 2), Vicki Rashid, Esq., forfeiture counsel forthe DEA, advised Parlatore that, despite requests by Special Agent Dodge, he (Parlatore) had failed to produce documentation establishing that legitimate income had been used to purchase the items sought to be recovered by plaintiff. Id., at par. 41.

Plaintiff alleged that Parlatore’ s “negligence has led to the forfeiture of plaintiffs property.” Id., at par. 42. She claimed that, had Parlatore advised her that there was a deadline for the production of documents, she “would have been able to recover at least a significant portion of her property and she was precluded from doing so due to the defendants’ negligence.” Id., at par. 45.”

“Since plaintiff has adequately pleaded a claim for legal malpractice, and this Court cannot, at this nascent stage of the litigation, evaluate the substantive merits of the said cause of action, this Court also denies that branch of defendants’ motion seeking to impose sanctions against plaintiff. See Southern Blvd. Sound v Felix Storch, Inc., 167 Misc2d 731 (App Term, 1996). ”