The Appellate Division 3rd Judicial Department clearly relies in its decision on the Court of Appeals case "Amalfitano v. Rosenberg, 12 NY3d 8, 2009 and claims that a tort of fraud upon the court may be established simply by showing "intent to deceive", without a resulting injury.
In fact, the court, in the same sentence, claimed that it is only necessary to establish "attorney's intent to deceive" for purposes of Judiciary Law 487, while citing not only to Amalfitano v. Rosenberg, but also to Scarborough v. Napoli, Kaiser & Bern, LLP, 63 AD3d 1531 (2009), a 4th Department Case decided on June 5, 2008, after the judge already told Mr. Neroni on record in May of 2008 that the summary judgment on liability against him is already granted, but providing, contrary to Amalfitano (decided later, in February of 2009 and overruling Scarborough) that deceit (injury) is necessary to establish a civil claim under Judiciary Law 487.
Thus, the 3rd Department has lumped together a 4th Department case Scarborough that was in favor of Mr. Neroni (because his deceipt was not established on record) and the Court of Appeals case Amalfitano that overruled Scarborough and amended a New York statute, for which Court of Appeals had no authority
Any 1st year law student will tell you that injury and damages resulting from the injury and not from the intent to inflict injury, is the necessary element of a tort without which a finding of liability cannot be made.
The motion for a summary judgment for liability against Mr. Neroni was made in 2008.
Therefore, application of a 2009 case drastically changing the law was, as far as Mr. Neroni is concerned, a violation of the ex post facto clause of the U.S. Constitution, a fundamental constitutional error.
It is apparent that nowhere in the country and at no time in legal jurisprudence did private parties have a right of a private cause of action punishing a person for "intent to deceive" with no necessity to show a real injury.
Yet, that is what the Appellate Division 3rd Department says. And it is clear that both the Court of Appeals decision in Amalfitano v. Rosenberg and the 3rd Department decision is clearly wrong, at least because the Appellate Division 3rd Department applied Amalfitano against Mr. Neroni retroactively.
Moreover, in January of 2015, the same court has described actions of Mr. Neroni, the decedent who was a party in the divorce action and Mr. Neroni's client in that divorce action, and the decedent's new wife and now widow Connie Mokay as "the trio" who allegedly planned and perpetrated the fraudulent scheme.
Obviously, in accordance with the decision of the Appellate Division 3rd Judicial Department, "the trio" should be on one and the same side of the caption, as defendants, all three participants in the "trio" - Mr. Neroni, Connie Mokay and the decedent.
Yet, one of the "trio", the decedent's Estate, is on the opposite side of the lawsuit's caption, as a Plaintiff and co-Plaintiff with his own victims - represented by the same attorneys as his victims, and where the only damages claimed in litigation are legal fees of these now obviously disqualified attorneys.
Here are the judges who have made the January 22, 2015 decision in Mokay v. Mokay.
Here are the judge who have made the November 18, 2009 decision in the same Mokay v. Mokay relying on Amalfitano that, without authority, changed the statutory law from what the summary judgment judge was deciding.
As the statement at the beginning of the November 18, 2009 decision indicates, it reviewed and affirmed two court orders - of March 18, 2008 and of October 2, 2008. Thus, it had no review what the judge did in 2008 in reliance on a case that drastically changed the law since then in 2009.
The judges who decided my husband's fate in 2009 were:
- The authoring justice John A. Lahtinen, who, judging by his date of admission to the bar of 1971, was born around 1945 and is due to retire this year;
- The now deceased Anthony Cardona, at that time Presiding Justice of the NYS Supreme Court Appellate Division 3rd Judicial Department, who died of cancer on December 4, 2011;
- Karen Peters, the now presiding Justice of the NYS Supreme Court Appellate Division 3rd Judicial Department appointed in 2012, after disbarment of my husband in 2011;
- Justice Bernard Malone who retired on December 31, 2012;
- Leslie Stein who later decided a case, coincidentally, against both of us on a property issue brought against the NYS Department of Environmental Conservation (part of New York Executive branch of the government) 6 days after NYS Chief Executive Officer Andrew Cuomo nominated her to the New York State Court of Appeals;
Please, note the same judge Peters who decided the November 18, 2009 case that became a basis of the order of disbarment.
Please, note the same judge McCarthy who, 5 years down the road on January 22, 2015 suddenly decided about the "trio" which would have required him to disqualify counsel for the Plaintiffs back in 2009 and turn them into the Court's own Committee for Professional Conduct for the conflicted representation.
One more thing is notable.
In 2015 McCarthy, as a presiding judge, claims that "title to parcels passed to Mokay by operation of law". Any 1st year student will tell you that title to real property in New York does not pass without delivery of the deed. You can record the deed 500 times, but if it was not delivered, the title does not pass. There was in 2009 and there still is no proof of delivery of the deeds in the record of Mokay v. Mokay.
A court reviewing a summary judgment has an obligation to SPOT unresolved triable issues of fact, and once such an issue is found, DENY the motion. The court has no authority to RESOLVE triable issues of fact on a motion for a summary judgment, that would be judicial misconduct and an unauthorized act, usurping the authority of a jury.
The summary judgment court in my husband's case, Judge Molly R. Fitzgerald out of Binghamton, NY was serving her first year on the bench when she decided the partial motion for a summary judgment against Mr. Neroni. Judge Fitzgerald decided that the title passed, so she presumed that the deed was delivered, where there was no evidence of that in the record. So, Judge Fitzgerald, as all other judges affirming her decision and relying upon it, are acting as advocates for the Plaintiffs because they are CREATING evidence not in the record, a gross judicial misconduct.
Thus, contrary to Justice McCarthy's statement in his January 22, 2015 decision, title to the two parcels never "passed by operation of law".
So, in order to decide against my husband and strip him of his law license, justices of the Appellate Division, all with shining credentials paraded in their official biographies on the court's website, claimed they did not know the most fundamental rules of law:
(1) that a tort may not be brought where there is no injury, and where, as in Mr. Neroni's case, the deed was not delivered, there was not injury to be claimed, and thus no damages;
(2) an attorney may not represent clients who are de facto plaintiffs and de facto defendants in the same action, the alleged perpetrator and the alleged victim, such representation is attorney misconduct that must subject attorneys to discipline and disgorgement and/or forfeiture of all legal fees (and only legal fees of Harlem & Jervis are claimed in the Mokay v. Mokay action);
(3) recording of the deed does not ensure passing of the title, title to real estate does not pass without delivery;
(4) IF the deed is delivered (which did not happen in this case), a recording creates constructive notice in all members of the public, including those with potential interest, and there is no requirement in the law to record with publication.
(5) Recording without publication of a deed that WAS DELIVERED and which thus passes legal title, creates constructive notice of the new legal rights established by the DELIVERED and RECORDED deed, whether the deed was recorded with or without publication.
(6) Collateral estoppel may apply only to the FINAL judgment on the merits in a case, not to intermediate judgments where, as here in the Mokay action, the jury did not decide the issue of damages yet. Thus, since there is no final adjudication on the merits until now in the Mokay action, the disciplinary proceedings against Mr. Neroni on the basis of the Mokay action could not even been brought as yet (especially that the 3rd Department's Committee told me numerous times that it is their "policy" to wait until the conclusion of litigation, together with appeals, before bringing disciplinary charges against an attorney).
And the above is in addition to other problems the Mokay case has that I enumerated elsewhere on this blog.
How much hatred and desire to deprive my husband of his livelihood should the "honorable" judicial system have to break elementary rules of law in order to "get" Mr. Neroni.
Which begs the question - are judges of the Appellate Division are incompetent to such a degree that they make mistakes that a 1st year student will get canned from law school for, or are they committed to engage in any possible misconduct and disregard any rule of law and illegally fill any gaps in the evidence, only to "get" my husband and strip him (unlawfully) of his law license?
If this is being done to my husband, how many more people are victimized by this judges the same way?
Isn't it time to create laws providing for efficient and transparent discipline for judicial shenanigans such as these?
Moreover, judicial discipline should also presuppose a legal remedy for the victims of judicial misconduct, a remedy that judges took away at this time by giving themselves an all-encompassing absolute judicial immunity, for even malicious and corrupt acts on the bench (and, as this immunity is applied, it reaches actions of judges far off the bench and far outside judicial proceedings).
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