When a disciplinary proceeding is filed against you, it is scary. Many attorneys with whom I confidentially discussed my husband's proceedings, based on the farce of the Mokay case I described in this blog, and about my own disciplinary proceedings, based on retaliative actions of a judge whom I sued, gave me "big eyes" and stated that disciplinary proceedings are so scary they do not want to know anything about them.
Yet, to learn "on the go", when such proceedings already became a reality, is scarier. And every bit of information as to how to fight these modern day Torquemadas might help.
In the recent decision in my husband's federal pro se civil rights proceeding Neroni v. Coccoma I found a gem of a case that may help attorneys currently involved in a New York State disciplinary proceeding shape their arguments that such proceedings are unconstitutional.
It is amazing what kind of treasure lays around for years (the case is from 1975) and is not given proper regard by attorneys. Probably, it is exactly because attorneys are so scared of disciplinary proceedings, they are afraid to fight for their rights, and instead try to concede points and plead to something, no matter whether they are guilty or not, in order to preserve the "prize" - the attorney license.
Ok, in 1975, that is 39 years ago (!) the U.S. Court of Appeals for the 2nd Circuit in a case Anonymous v. Association of the Bar of City of New York
515 F.2d 427
C.A.N.Y. 1975 -
gave immunity to attorneys for the prosecuting disciplinary body - Committee for Professional Conduct (COPS) - because - wait - the Committee is an arm of the court. The pinpoint page for this "pearl of wisdom" within the case is 433. The federal court equated COPS being an "arm of the court" with a special master in federal proceedings.
In fact, a federal master is something entirely different - it is an adjudicator appointed on consent of parties, not a prosecutor pursuing an attorney clearly against his or her consent. But, when a court wants, in a quick decision, without much bother, attain a needed end, especially when it knows that to get a certiorari review from the U.S. Supreme Court is nearly impossible - the court allows itself to be sloppy.
Now, please tell me, ladies and gentlemen, how can a court where investigators and prosecutors are "part of the court", be considered a true court, instead of a court-advocate?
And how would adjudications of a court blended with prosecutors and investigators and necessarily ruling for them, be deemed constitutionally valid?
Just a thought...
As I said before, it is time for attorneys who are either improperly disciplined or improperly targeted for discipline, to unite in action.
And, based on Anonymous that I cited above, I would suggest not only activities toward a legislative action, but a federal class action.
Friday, June 13, 2014
Thursday, June 12, 2014
Emotions as legal terms
In my practice of law I have come across terms that are, in usual life, designations of emotions or moral principles.
It is anybody's guess how emotions or moral concepts wormed their way into the legal terminology, but they are there, and they may affect your rights (as well as mine).
Conscience of the court
Here is the Merriam-Webster definition of what "conscience" is.
It is apparent that "conscience" should not be chosen as a legal term defining people's rights, because it is (1) subjective, (2) vague, (3) non-transparent, (4) unreviewable by an outsider/appellate authority.
Yet, there exists in the American jurisprudence not one, but two terms involving "conscience of the court".
(a) The "shock the conscience of the court" test
This is the test about which I heard one appellate attorney tell another in the hallway of an appellate court - "but that threshold is impossible to meet!". And then the attorney cautiously turned around to check out who may have heard the statement and apologetically said "well, of course, I do not mean that the court has no conscience"...
The attorney was right.
A body of government cannot have a conscience.
A panel of several judges cannot have one uniform conscience.
Rights of people cannot rest on whether a single judge does or does not have a conscience that may be shocked.
There is no uniform test as to what a conscience is, whether a certain individual does or does not have it, and what kind of threshold deeds must or must not shock that elusive conscience.
The "test" was frequently criticized by the scholars, but it is still there...
(b) Searching the conscience of the court
This test is used in by New York state judges deciding a motion to recuse filed against them.
They "search their conscience" and announce to the litigants the results - usually the results are, predictably, that the judge, no matter how biased and bent on revenge he is, will never admit that he is biased and bent on revenge and instead says that he "searched his conscience" and found there "no hard feelings" against you or your attorney.
The beauty of it (for the judge, not for you) - is how would you check whether the judge is telling you the truth? What is conscience? What are uniform standards for the judicial conscience, if any? That he has a conscience? That he consulted it? What the conscience told him? That what his conscience told him was proper and lawful? That he has actually followed that conscience?
So - searching the conscience of the court is also an exercise that proves that the courts are not really separated from the church. It is a rather mystical experience, and one must have blind faith to believe the judge in what he says without having any proof of validity of his/her claims, and no guidelines for application of this test.
Since the test is defining a fundamental constitutional right of litigants, the right to a fair and impartial tribunal, my belief is that litigants are entitled to more than having the object of their motion for recusal alleging misconduct or conflicts of interest, or an appearance of impropriety searching their own conscience. Announcing that your federal fundamental constitutional right to a fair and impartial tribunal, as New York judges do, is, in my view, the height of arrogance and disdain to the rule of law and to the oath of office that they took when they donned their black robes.
And, as I stated earlier in my blog, peremptory challenges to judges instead of motions to recuse that more often than not bring sanctions from those "unbiased" judges who "searched their conscience" and found "no hard feelings" against the moving party, are long overdue in New York.
Also long overdue is a legislation expressly prohibiting judges to punish attorneys and parties for making a motion to recuse and/or disqualify and announcing such decisions, if made, void as a matter of law without necessity to move to vacate them, because such efforts, as I am finding out, will be blocked by the courts on any possible and impossible pretexts.
Contempt of court
Contempt is defined by Merriam-Webster dictionary as follows:
It is a feeling of lack of respect or approval.
At law, it is a lack of "proper" respect to the court or a judge which is demonstrated in speech or actions.
Now, what is "proper" and "improper" is a subjective call.
Whether a certain person is or is not entitled to respect, is a subjective call.
Whether the government is entitled to respect - is, on the other hand, a constitutional issue.
In a classic 1st Amendment case an individual was convicted for burning the American flag.
The conviction was overturned because the American flag is also burned to dispose of old flags.
Thus, the U.S. Supreme Court reasons, what is being punished is the expression, that the flag was burnt in protest against governmental actions - and that is within the core protection of the 1st Amendment.
Well, protest against actions of any branch of the government is within the core protections of the 1st Amendment, and that includes the court.
Thus, the requirement that the court
(1) must be "duly" respected (even though judges self-servingly absolve themselves from suits for malicious and corrupt acts on the bench and retaliate against those who point out their misconduct, which is contemptible conduct not warranting any respect);
(2) that the judge who thinks you are not "properly" respecting him can summarily, as an accuser, prosecutor, judge and jury, punish you criminally if the alleged contempt happened in his presence
should long ago be eliminated out of American jurisprudence.
The government is entitled only to so much respect as it has earned.
In fact, the only thing the government can require from its citizens is for them to abide to the rule of law.
When a judge is violating the law before your very eyes or in a court order, what constitutes the rule of law, becomes fuzzy.
My firm belief that the words "contempt" and "conscience" should be eliminated out of the legal terms of the American jurisprudence and strict constitutional standards must be enacted by the Legislature and enforced as to rights and duties of judges, parties and attorneys in the courtroom - with equal obligations of decorum and deportment.
At this time, a judge can demean and humiliate a party or attorney all he wants, with no recourse, and a party or attorney complaining about it may lose their property, liberty or livelihood.
Isn't that contempt of the rule of law?
Trust/faith/belief in the integrity of the judiciary
Trust is defined by Meriam-Webster dictionary as follows:
The public is expected to trust in the integrity of the judiciary, allegedly so that the rule of law be maintained in the country.
The public is expected to trust in the integrity of the judiciary, allegedly so that the rule of law be maintained in the country.
Attorneys are supposed to maintain that trust and not undermine it, at the fear of losing their livelihood.
As far as I could see, the judiciary as a whole makes no efforts to earn that trust and every effort to breach it. What of self-imposed immunity for malicious and corrupt acts on the bench, what of retaliation against whistleblowers of judicial misconduct that not only I, but other attorneys and scholars are concerned about.
A reasonable person cannot trust in the integrity of an individual who uses his power to proclaim himself immune from liability for malicious and corrupt behavior. Such a person would cause in reasonable people suspicious and contempt, not trust.
To require trust from the public and maintaining that trust from attorneys is an equivalent, in my opinion, of installing the judiciary as a type of deity which can do no wrong and should be worshipped no matter what.
It appears that the American judiciary has significant narcissistic/mania of grandeur issues, and evaluation and treatment is long overdue.
Judge, can you, please, attach an X-ray of your conscience and a transcript of what it told you? After you search it to decide my motion to recuse?
Yet another judge "searched his conscience", found no bias against me or my husband, and sanctioned us for pointing out his misconduct.
The hero this time is Judge Kevin Dowd of Chenango County Supreme Court, assigned, coincidentally, to the Mokay case that I just blogged about before receiving the "gift" of sanctions from the "unbiased" Judge Dowd.
We made a motion to vacate sanctions against us imposed by Judge Becker after we sued Judge Becker two times.
The "unbiased" Judge Dowd denied the motion and sanctioned me and my husband $1,000.00 each for making it.
The setting of the motion is as follows.
1. On June 27, 2011 my husband and I sued Judge Becker for misconduct.
2. Judge Becker sanctioned me or my husband us in 4 different cases after we sued him in state court.
3. We sued Judge Becker in federal court for retaliation.
4. Judge Becker imposed sanctions against both of us in two more actions.
All sanctions were imposed close in time to the lawsuits.
The lawsuits against Judge Becker were dismissed on immunity grounds without reaching the merits.
The Appellate Division affirmed sanctions in Mokay without reaching the issue whether the sanctions were the product of retaliation, because what happened in other cases was not part of the record on appeal from the direct case on sanctions.
We made a motion to vacate sanctions to make the pattern of Judge Becker's misconduct part of the record and to make at least one court review them on the merits.
Judge Dowd presides over the case. Judge Dowd was assigned to the case under the guidance and monitoring by the previously recused Judge Coccoma. My husband sued Judge Coccoma's wife. Judge Coccoma holds in his hands Judge Dowd's post-retirement financial perks. Judge Dowd is close in age to mandatory retirement. Judge Dowd recently gave a monetary favor to Judge Coccoma by refusing to sanction Judge Coccoma's wife in a situation where she concealed the death of her client, made a motion without revealing the fact that she has lost her authority as an attorney, obtained an order on that motion and aggressively continued her attempts to bring my husband to a deposition.
Ellen Coccoma revealed the death of her client (and the resulting abatement of the court's jurisdiction, as well as her own authority) only when I threatened to compel her to produce her client at a cross-deposition. Only then she revealed the fact, but not the date of the death. Yet, she has claimed to me in March of 2012 that her other clients' standing in the action is based on their father's "valid power of attorney". At the time of making the claim, Ellen Coccoma knew that the person who has given the "valid power of attorney" was dead since November 6, 2011, and as of the same date his power of attorney was void.
My husband was disbarred for less.
Ellen Coccoma will never be disbarred.
In fact, Ellen Coccoma will never be even sanctioned - because she is married to a judge, and a high-standing one.
Judge Dowd gave Judge Coccoma a financial favor by not sanctioning Judge Coccoma's wife.
Judge Dowd gave Judge Coccoma a further favor by sanctioning the complainants against Judge Coccoma's wife, using court proceedings to cloak himself with immunity for effecting this conspiracy.
Judge Dowd might be surprised to learn that if the conspiracy arose outside of the courtroom, there is a precedent in federal court in Pennsylvania that provided that where a conspiracy to violate constitutional rights in which a judge engaged was outside of court proceedings, the injury inflicted by the judge who is part of the conspiracy in the court proceedings is not immune, H.T. et al., v. Mark A. Ciavarella, Jr., et al, 3:09-cv-00286-ARC, Document 1510, page 22.
Judge Dowd does not find any conflict of interest or grounds for his disqualification from the case, after "searching his conscience", even though Judge Dowd previously recused from a related case, Neroni v. Harlem and his presiding over a related case is equivalent to re-entry a case after recusal, which is prohibited by New York law.
At the time of presiding over the case, Judge Dowd was sued by my husband for misconduct in Neroni v. Coccoma's, recently dismissed by Judge Sharpe, where judge Sharpe cloaked Judge Dowd with immunity even though Judge Dowd failed to properly restore jurisdiction of the court after it abated due to the death of Ellen Coccoma's client.
My client will certainly appeal the decision, especially that now there is a precedent out of Pennsylvania which breached the armor of judicial immunity for out-of-court actions that resulted in in-court injury.
On May 16, 2014 I sued Judge Dowd in his individual capacity in federal court seeking a disclosure from him whether he is or ever was a part of the secret-membership organization The American Inns of Court.
On June 5, 2014 Judge Dowd made his decision in the Mokay case sanctioning me and my husband $1,000.00 each for making "frivolous" motions.
My husband alleged in his dismissed lawsuit, based on a transcript in a proceeding, that Judge Dowd might lack mental faculties because Judge Dowd discussed in a custody proceedings, without any relevance to anything, that a law school in a certain town was building a statue in Judge Dowd's honor which was in fact a urinal.
Of course, Judge Dowd had no hard feelings against my husband and was completely unbiased. Only - to believe that we need to do a collective lobotomy.
This judge is now presiding over the Mokay case, which was botched up big time already by a parade of judges to the point of becoming a major farce.
Of course, Judge Dowd "searched his conscience" and did not find any "adverse feelings" against my husband or myself.
The X-ray of Judge Dowd's conscience was not attached to the decision and will not be part of the record on appeal that will, for sure, follow.
Whether Judge Dowd has a conscience, whether he, indeed, searched it, what that conscience advised Judge Dowd, was it a proper and lawful advice, and did Judge Dowd follow it will remain forever unreviewable by the Appellate Division.
Judge Dowd claimed that there is nothing new in what we are asserting on our motion to vacate.
Judge Dowd apparently has a difficulty reading or is simply and arrogantly hoping that the Appellate Division where judges are similarly sued to disclose their involvement with the American Inns of Court, will do anything to punish me and block my access to court anyway. And maybe he is right.
In fact, my friend told me that an attorney she knows keeps telling her exactly that - that I should stop filing lawsuits against judges, that I should stop blogging about judges, then I might have a chance to survive as an attorney... Otherwise I will never win in any court.
So much for the faith in the integrity of the judicial system.
Judge Dowd stated that all the issues pertaining to Judge Becker's sanctions were already decided by other courts.
I wonder which other courts Judge Dowd means because I am not aware of any courts who decided on the merits the issue whether Judge Becker's sanctions imposed upon us after we sued him, were a product of unconstitutional retaliation.
Judge Dowd must be dreaming, same as he dreamt about a law school building urinals in his favor in that other proceeding that my husband mentioned in his federal lawsuit.
One must give Judge Dowd credit for one thing, though. He knows the system well. He knows that he, most likely, will remain unpunished for his egregious retaliation, because to punish one judge for retaliation will open a can of worms and set a dangerous precedent.
You know why? Judicial retaliation is pervasive in New York.
To eradicate it you might behead many out of the judicial corps of New York state. And the system cannot afford such a loss of reputation.
The system would rather bend the law past the breaking point and sacrifice the messengers of such misconduct.
So - if you want to get from under the pile of judicial retaliation, the "unbiased" judges will oblige and will mount some more of the same, claiming all the way that they "searched their conscience" and remain unbiased.
As the last stroke of his "unbiased" opinion Judge Dowd struck Plaintiff's note of issue because they were not ready for trial (for the second time), and allowed them to re-file the trial note of issue without a filing fee - and without a time limit.
They will be ready when they will be ready - that is the new rule of Judge Dowd's court. Of course, when you are trying to get post-retirement perks from a certain judge you want to please and when you are trying to prevent Mr. Neroni from vacating his order of disbarment (which would have happened had Judge Dowd dismissed, as he was supposed to, the proceedings for failure to prosecute, based on newly created law, because proceedings are asserting a non-existing cause of action, and are prosecuted by irreconcilably disqualified attorneys) - anything is handy and possible.
After all, who would do anything to a judge... Judge Ciavarella had to take millions of dollars in kickbacks for the feds to "notice" his wrongdoing and for the courts to finally catch up with him and disbar him, and he still escaped liability for his shenanigans which were "judicial acts" - unlawful sentencing of juveniles in furthering of conspiracy (see the quote from the decision giving Judge Ciavarella immunity placed as a general runner on top of this blog).
Judge Dowd's misconduct in comparison with what Judge Ciavarella did is child's play - he "only" gives favors to a judge who holds the keys to financial perks after Judge Dowd (soon) retires by retaliating against us.
So, the Mokay farce goes on. With an "unbiased" judge at the wheel.
Chief Judge Sharpe of the U.S. District Court for the Northern District of New York protects a judge's wife from a lawsuit - at the expense of the applicable law, fairness and justice
I already wrote in this blog how Judge Sharpe created an assigned counsel class for the rich and powerful (while 80% of New Yorkers cannot afford legal representation) when he legitimized representation of attorney Ellen Coccoma, the wife of the Chief Administrative Judge for upstate New York Michael V. Coccoma, by the New York State Attorney General, at taxpayers' expense as to the claims where she was sued for her actions as a private attorney.
Judge Sharpe also helped Ellen Coccoma out by dismissing the lawsuit against her in her official capacity pertaining to her investigation and prosecution of my husband's disciplinary case which was related to the Mokay case from which Ellen Coccoma's husband recused.
Judge Sharpe has ruled that Ellen Coccoma is entitled to a "quasi-judicial immunity" for both her investigative and prosecutorial activities because she acted in her official capacity for the Committee on Professional Conduct (COPS).
In his decision Judge Sharpe cited in a negative fashion a case Neroni v. Zayas, recently brought by my husband and which has survived a motion to dismiss at this time.
Judge Sharpe apparently read Neroni v. Zayas very selectively, because in that case, his own court ruled, on March 31, 2014, that a COPS attorney may be sued for money damages for actions in his investigative capacity, because quasi-judicial immunity does not cover investigative functions of the prosecutor.
Notwithstanding the ruling in Neroni v. Zayas, Judge Sharpe made a contrary finding, that Ellen Coccoma, in her capacity as a member of COPS, a body enforcing attorney discipline, was "the arm of the Appellate Court" and was immune under the "quasi-judicial" and prosecutorial immunity, even for her actions in investigative capacity.
Yet, in November of 2013 Judge Sharpe's own court remanded my disciplinary case back into the arms of that same court despite the fact that I claimed that same issue, that since the members of COPS are deemed as "the arm of the Appellate Division" and its part, and since the Appellate Division also makes substantive and procedural rules pertaining to attorney discipline, the Appellate Division conflates in itself executive, legislative and adjudicatory function, functions as an administrative body and not a court, and thus attorneys in New York are denied any judicial review before their licenses are suspended or revoked.
Does Judge Sharpe read what his court produces?
Does Judge Sharpe try to coordinate and harmonize what his court produces?
It is also interesting to mention that prosecutorial immunity was awarded by the U.S. Supreme Court to prosecutors on the premise that they are amenable to discipline and to criminal prosecutions and thus public is not without a remedy.
When the New York State Attorney General represents COPS, and COPS refuse to prosecute disciplinary violations of NYS AG and his assistant attorneys, as they did when I complained about certain misconduct of certain Assistant AGs, the chances of NYS AG prosecuting COPS are non-existent.
When COPS reject all disciplinary complaints against its own attorneys and complain to the Appellate Division about complaints filed with them against their own attorneys, as they did when I turned all attorneys and attorney members of COPS in for fraud upon the court for claiming that I did not appear at a deposition in 2008 to represent my alleged clients when I was not even an attorney, the chances of prosecution of COPS attorneys for disciplinary violations are non-existent.
Then, why does immunity still cover COPS? If the rationale and justification for granting absolute prosecutorial immunity disappeared, the immunity must disappear, too. That is logical and fair, otherwise the society and the victims of such attorneys' wrongdoing society will get no remedy at all, which is definitely contrary to public interests.
The rule of the state of New York - and now federal courts - is enforced again, and again, and again.
If you are a member of the family of a judge, or you are yourself a retired judge, or you are employed with the government, courts will bend over backwards to rescue you and punish the person who is trying to get a remedy for your wrongdoing.
All that Mr. Neroni wanted is to show that Ellen Coccoma deprived him of his due process right to an impartial prosecutor and investigator by deriving a monetary gain from the fruits of her disciplinary investigation and prosecution and to obtain a remedy for that.
What Ellen Coccoma did is well documented.
Judge Sharpe would not even look at the merits of the case.
Judge Sharpe did not even look at the applicable law which does not allow to cloak a prosecutor with absolute immunity for investigative acts.
Judge Sharpe instead ruled for Ellen Coccoma and allowed Ellen Coccoma to apply for attorney's fees against her own victim.
What can I say...
Wives of judges rock! Especially in Judge Sharpe's courtroom.
Judge Sharpe also helped Ellen Coccoma out by dismissing the lawsuit against her in her official capacity pertaining to her investigation and prosecution of my husband's disciplinary case which was related to the Mokay case from which Ellen Coccoma's husband recused.
Judge Sharpe has ruled that Ellen Coccoma is entitled to a "quasi-judicial immunity" for both her investigative and prosecutorial activities because she acted in her official capacity for the Committee on Professional Conduct (COPS).
In his decision Judge Sharpe cited in a negative fashion a case Neroni v. Zayas, recently brought by my husband and which has survived a motion to dismiss at this time.
Judge Sharpe apparently read Neroni v. Zayas very selectively, because in that case, his own court ruled, on March 31, 2014, that a COPS attorney may be sued for money damages for actions in his investigative capacity, because quasi-judicial immunity does not cover investigative functions of the prosecutor.
Notwithstanding the ruling in Neroni v. Zayas, Judge Sharpe made a contrary finding, that Ellen Coccoma, in her capacity as a member of COPS, a body enforcing attorney discipline, was "the arm of the Appellate Court" and was immune under the "quasi-judicial" and prosecutorial immunity, even for her actions in investigative capacity.
Yet, in November of 2013 Judge Sharpe's own court remanded my disciplinary case back into the arms of that same court despite the fact that I claimed that same issue, that since the members of COPS are deemed as "the arm of the Appellate Division" and its part, and since the Appellate Division also makes substantive and procedural rules pertaining to attorney discipline, the Appellate Division conflates in itself executive, legislative and adjudicatory function, functions as an administrative body and not a court, and thus attorneys in New York are denied any judicial review before their licenses are suspended or revoked.
Does Judge Sharpe read what his court produces?
Does Judge Sharpe try to coordinate and harmonize what his court produces?
It is also interesting to mention that prosecutorial immunity was awarded by the U.S. Supreme Court to prosecutors on the premise that they are amenable to discipline and to criminal prosecutions and thus public is not without a remedy.
When the New York State Attorney General represents COPS, and COPS refuse to prosecute disciplinary violations of NYS AG and his assistant attorneys, as they did when I complained about certain misconduct of certain Assistant AGs, the chances of NYS AG prosecuting COPS are non-existent.
When COPS reject all disciplinary complaints against its own attorneys and complain to the Appellate Division about complaints filed with them against their own attorneys, as they did when I turned all attorneys and attorney members of COPS in for fraud upon the court for claiming that I did not appear at a deposition in 2008 to represent my alleged clients when I was not even an attorney, the chances of prosecution of COPS attorneys for disciplinary violations are non-existent.
Then, why does immunity still cover COPS? If the rationale and justification for granting absolute prosecutorial immunity disappeared, the immunity must disappear, too. That is logical and fair, otherwise the society and the victims of such attorneys' wrongdoing society will get no remedy at all, which is definitely contrary to public interests.
The rule of the state of New York - and now federal courts - is enforced again, and again, and again.
If you are a member of the family of a judge, or you are yourself a retired judge, or you are employed with the government, courts will bend over backwards to rescue you and punish the person who is trying to get a remedy for your wrongdoing.
All that Mr. Neroni wanted is to show that Ellen Coccoma deprived him of his due process right to an impartial prosecutor and investigator by deriving a monetary gain from the fruits of her disciplinary investigation and prosecution and to obtain a remedy for that.
What Ellen Coccoma did is well documented.
Judge Sharpe would not even look at the merits of the case.
Judge Sharpe did not even look at the applicable law which does not allow to cloak a prosecutor with absolute immunity for investigative acts.
Judge Sharpe instead ruled for Ellen Coccoma and allowed Ellen Coccoma to apply for attorney's fees against her own victim.
What can I say...
Wives of judges rock! Especially in Judge Sharpe's courtroom.
Chief Judge Sharpe of the U.S. District Court for the Northern District of New York dismisses a civil rights case without reaching the merits - but with a lot of disrespect to the plaintiff
I continue to analyze the amazing decision of Judge Gary L. Sharpe dismissing my husband's civil rights lawsuits, made 3 weeks after I sued Gary L. Sharpe in his individual capacity.
Here are a couple more of amazing snippets from the decision.
This is how the lawsuit - and the decision - are introduced by Judge Sharpe. In the "background" section Judge Sharpe does several diametrically opposite and mutually exclusive things.
(1) In footnote 3 Judge Sharpe states that "the facts are drawn from Neroni's complaint and presented in the light most favorable to him".
(2) Then, Judge Sharpe characterizes those facts, allegedly in the "most favorable light", yet, using the following derogatory language:
Here are a couple more of amazing snippets from the decision.
This is how the lawsuit - and the decision - are introduced by Judge Sharpe. In the "background" section Judge Sharpe does several diametrically opposite and mutually exclusive things.
(1) In footnote 3 Judge Sharpe states that "the facts are drawn from Neroni's complaint and presented in the light most favorable to him".
(2) Then, Judge Sharpe characterizes those facts, allegedly in the "most favorable light", yet, using the following derogatory language:
- "yet another chapter in a barrage of lawsuits filed by Neroni, a disbarred and disgruntled former attorney";
- "his lengthy and disjointed complaint";
- "names as defendants a host of judges, court officials, private attorneys, and private law firms";
- "weaves a tangled web of judicial corruption, political favoritism, and professional improprieties, resulting in a range of - barely decipherable - constitutional transgressions"
This spectacular paragraph deserves special attention and analysis, for the benefit of the public who does not know what is happening behind the doors of civil rights litigation, as well as for the benefit of attorneys and future litigants who are going to face (1) Judge Sharpe, (2) civil rights litigation in federal court in general.
First of all, if the above language is presenting Mr. Neroni's complaints in "the most favorable light", I won't dare to ask what would be presenting Mr. Neroni's facts in an unfavorable light.
It appears that Judge Sharpe pays lip service to the law requiring review of plaintiff's facts on a motion to dismiss in the light most favorable to the plaintiff, but his attitude and the language of presentation of those facts speak louder than his declaration of intention.
Yet another chapter in a barrage of lawsuits by a disbarred and disgruntled attorney
To me, as a professional linguist with a Masters degree in teaching the English language, this phrase tells a story of bias and derogatory attitude to Mr. Neroni.
The inferences that may be reasonably drawn from the language in the phrase are that (1) Mr. Neroni was rightfully disbarred; (2) is upset about losing his disciplinary proceedings and (3) is lashing out at anybody in sight because of his disbarment.
How correct and proper Mr. Neroni's disbarment was, and whether Mr. Neroni is legitimately upset about how it was brought about, you can judge after reading this material.
How correct and proper Mr. Neroni's disbarment was, and whether Mr. Neroni is legitimately upset about how it was brought about, you can judge after reading this material.
Moreover, since Mr. Neroni's disbarment is mentioned, it appears that the language (1) must bear some relevance to all lawsuits referenced by Judge Sharpe in his footnote to the "Background" section and (2) that all those lawsuits were dismissed on the merits, so the court has a right to make credibility disrespectful credibility determinations about the "barrage" of lawsuits and "indecipherable" tales of "a tangled web of juridical corruption" etc.'
In his footnote 3 to the "Background" section Judge Sharpe references four lawsuits brought by Mr. Neroni as a "disbarred and disgruntled former attorney":
- Neroni v Zayas - the implication is that the case was improperly filed and dismissed - yet, the case proceeds on the merits, and the partial dismissal was without reaching the merits and is on appeal;
- Neroni v. Grannis - is about Mr. Neroni digging a pond in 2001, 10 years before his disbarment, on his property in the town of Hamden, about New York State Department of Environmental Conservation not having a readable map that could give Mr. Neroni notice he could not dig a pond where he did dig a pond (see map below which is a map of Walton area that DEC presented to me only after the decision on liability against Mr. Neroni, and without my participation as a co-owner, was made, and where no reasonable person can find or tie any address, which DEC actually admitted on record);
- Bracci v. Becker is a case about sanctions imposed upon Mr. Neroni by a disgruntled judge, Judge Carl F. Becker of Delaware County Supreme Court, in retaliation for Mr. Neroni's lawsuit against Judge Becker for misconduct. Bracci v. Becker covered Judge Becker's sanctions in Neroni v. Grannis. Bracci v. Becker was dismissed without reaching the merits, and the 2nd Circuit affirmed the dismissal after I sued the judges of the Northern District of New York Court and while providing a sloppy and meaningless second rate review of four pro se appeals in that case;
- Neroni v. Becker - Mr. Neroni sought a declaratory judgment that when the New York State Court of Appeals allowed damages for "attempted fraud upon the court", after the partial summary judgment on liability was granted against Mr. Neroni and before the appeal from that summary judgment was heard, the New York State Court of Appeals "changed horses" on Mr. Neroni mid-stream, abolished the civil part of the Judiciary Law 487 under which liability of Mr. Neroni was found and upon which disbarment without a hearing was based before the underlying case was finally resolved (it is not resolved until now)
The Mokay case, which is still pending and due to which Mr. Neroni lost his license without a hearing after 37 years of practice is a separate saga.
I am preparing a separate book, based on documentary evidence, as to how every applicable law in the Mokay case was bent or broken in order to decide for the plaintiffs' conflicted attorneys and to deliver to them money damages out of my husband's pockets.
The plaintiffs' attorneys in the Mokay case were from the beginning the retired judge Robert Harlem (deceased since 2012) and his son Richard Harlem (alive and still on the case).
Robert Harlem and Richard Harlem were caught for misconduct in, "coincidentally", an Estate matter in 2000.
Robert Harlem practiced law and drafted a will while being a sitting Supreme Court justice, in violation of the New York State Constitution, and involved in the signing of the will and additions to the will his law clerk, his confidential secretary (later his wife) and his son Richard Harlem.
Then, Richard Harlem submitted the will to the Surrogate's Court with a backer showing his name and not his father's name, which the New York State Attorney General saw as a sign to conceal from the court the fact that the will was illegally drafted by a sitting Supreme Court justice.
Robert Harlem then quickly retired from the bench before his term was up in anticipation of the bounty from the will where he bequeathed to himself several thousand shares of stock of the IMB Corporation, designated himself as the 3rd Executor charging fees to the Estate and bequeathed the residue of the 9 mln dollar estate to the trust where he was a salaried trustee.
Such self-dealing was a no-no for an attorney even if Robert Harlem had a right to practice law, but, at the time he drafted the will and codicils/additions to the will, he was a sitting Supreme Court justice and was absolutely prohibited by the New York State Constitution to practice law.
Robert Harlem, according to the New York State Attorney General's office, resisted disclosure that he was the author of the will and codicils for a year.
Then, Robert Harlem claimed that even though he drafted the will and codicils, there was nothing wrong in doing so, even though he did that while being a sitting judge, because the decedent was his friend.
The NYS AG turned Robert Harlem and Richard Harlem into the Professional Conduct Committee for their shenanigans. The case that obviously warranted disbarment of both attorneys, died there.
The plaintiffs' attorneys in the Mokay case were from the beginning the retired judge Robert Harlem (deceased since 2012) and his son Richard Harlem (alive and still on the case).
Robert Harlem and Richard Harlem were caught for misconduct in, "coincidentally", an Estate matter in 2000.
Robert Harlem practiced law and drafted a will while being a sitting Supreme Court justice, in violation of the New York State Constitution, and involved in the signing of the will and additions to the will his law clerk, his confidential secretary (later his wife) and his son Richard Harlem.
Then, Richard Harlem submitted the will to the Surrogate's Court with a backer showing his name and not his father's name, which the New York State Attorney General saw as a sign to conceal from the court the fact that the will was illegally drafted by a sitting Supreme Court justice.
Robert Harlem then quickly retired from the bench before his term was up in anticipation of the bounty from the will where he bequeathed to himself several thousand shares of stock of the IMB Corporation, designated himself as the 3rd Executor charging fees to the Estate and bequeathed the residue of the 9 mln dollar estate to the trust where he was a salaried trustee.
Such self-dealing was a no-no for an attorney even if Robert Harlem had a right to practice law, but, at the time he drafted the will and codicils/additions to the will, he was a sitting Supreme Court justice and was absolutely prohibited by the New York State Constitution to practice law.
Robert Harlem, according to the New York State Attorney General's office, resisted disclosure that he was the author of the will and codicils for a year.
Then, Robert Harlem claimed that even though he drafted the will and codicils, there was nothing wrong in doing so, even though he did that while being a sitting judge, because the decedent was his friend.
The NYS AG turned Robert Harlem and Richard Harlem into the Professional Conduct Committee for their shenanigans. The case that obviously warranted disbarment of both attorneys, died there.
Then, Mr. Neroni turned attorneys Robert Harlem and Richard Harlem into the Professional Conduct Committee in 2006 due to their outrageously conflicted representation in the Mokay case where they represented party plaintiffs and a de facto party defendant which the NYS Appellate Division 3rd Department acknowledged.
I turned Robert Harlem and Richard Harlem in 2011 when I discovered not only the full record of the Blanding case from the Otsego County Supreme Court, but also that Robert Harlem and Richard Harlem concealed from the Supreme Court what was going on in the Delaware County Surrogate's Court which was contrary to their claims in the Supreme Court.
Since the member of the Committee John Casey appeared to use the Committee for picking influential clients or members of his firm, the Harlems were saved, John Casey's law firm, instead of disbarring them for their shenanigans in the Estate of Blanding (Otsego County), embraced them as paying clients, and instead the complainants against them, Mr. Neroni and I, were prosecuted, and Mr. Neroni was disbarred.
Since the member of the Committee John Casey appeared to use the Committee for picking influential clients or members of his firm, the Harlems were saved, John Casey's law firm, instead of disbarring them for their shenanigans in the Estate of Blanding (Otsego County), embraced them as paying clients, and instead the complainants against them, Mr. Neroni and I, were prosecuted, and Mr. Neroni was disbarred.
It is apparent that courts refuse to apply the applicable laws which favor Mr. Neroni and instead invent laws that disfavors Mr. Neroni and favors his politically connected opponents.
Therefore, Mr. Neroni, an attorney who has faithfully provided zealous representation to public in an under-served poor area, and practically had for years an ongoing free legal clinic in his home where anybody could come or call for legal advice at any time of day and night, has every right to be upset, and "the web of judicial corruption" is a reality in New York courtrooms.
While obviously mocking Mr. Neroni's attempt to untangle the truly existing web of judicial corruption in New York courtrooms, while at the same time hypocritically claiming that he reviewed Mr. Neroni's facts in the "light most favorable" to Mr. Neroni, Judge Sharpe did not reach the merits of Mr. Neroni's case, and thus has no right to make credibility determinations, because that is the function of a factfinder, and Mr. Neroni asked at the outset of the litigation for a jury trial.
Judge Sharpe has two options - dismiss without reaching the merits, but then not reach the merits of the case he so dismissed for any reasons or purposes, or allow the case to proceed to discovery and trial and let the jury to decide issues of merits, as Mr. Neroni demanded and has a right to.
Judge Sharpe chose the third, unlawful way, he both dismissed the case without reaching the merits and made disparaging remarks about credibility of Mr. Neroni or substantive validity of his claims.
So much for the rule of law in Judge Sharpe's understanding.
Therefore, Mr. Neroni, an attorney who has faithfully provided zealous representation to public in an under-served poor area, and practically had for years an ongoing free legal clinic in his home where anybody could come or call for legal advice at any time of day and night, has every right to be upset, and "the web of judicial corruption" is a reality in New York courtrooms.
While obviously mocking Mr. Neroni's attempt to untangle the truly existing web of judicial corruption in New York courtrooms, while at the same time hypocritically claiming that he reviewed Mr. Neroni's facts in the "light most favorable" to Mr. Neroni, Judge Sharpe did not reach the merits of Mr. Neroni's case, and thus has no right to make credibility determinations, because that is the function of a factfinder, and Mr. Neroni asked at the outset of the litigation for a jury trial.
Judge Sharpe has two options - dismiss without reaching the merits, but then not reach the merits of the case he so dismissed for any reasons or purposes, or allow the case to proceed to discovery and trial and let the jury to decide issues of merits, as Mr. Neroni demanded and has a right to.
Judge Sharpe chose the third, unlawful way, he both dismissed the case without reaching the merits and made disparaging remarks about credibility of Mr. Neroni or substantive validity of his claims.
So much for the rule of law in Judge Sharpe's understanding.
The Mokay saga - should Mr. Neroni be legitimately upset that he was disbarred without a hearing because of this farce?
Since my husband has been badmouthed in many court decisions as a "disbarred and disgruntled former attorney", I believe it is time for me to start publishing what were the real reasons for his disbarment, and the real reasons have nothing to do with the law, but has everything to do with these irrelevant factors:
(1) it is my opinion that my husband was targeted because he is the so-called "deep pocket defendant";
(2) and it is my opinion that my husband was sought out to by politically connected attorneys for purposes of unjust enrichment.
I must stress that the case based on which Mr. Neroni lost his license without a hearing, is not finally resolved until now, the issue of damages is still outstanding, and, if decided in Mr. Neroni's favor by the jury, the case will have to be dismissed, yet, Mr. Neroni was disbarred without a hearing by application of collateral estoppel to a non-final decision on liability in a still ongoing case.
* * *
Mr. Neroni has lost his license, after 37 years of practice and without a hearing, because of a partial summary judgment in the case Mokay v. Mokay, Neroni, Delaware County Index No. 2007-695 brought, initially, by 5 adult children of Mr. Neroni's deceased client, then the Estate of the deceased client was also joined as a plaintiff. All plaintiffs were represented by the law firm Harlem & Harlem which at some point was transformed into Harlem & Jervis. Harlem & Harlem belonged to the retired Supreme Court Justice Robert Harlem (who was also the former Chief Administrative Judge of the 6th Judicial District) and his son attorney Richard Harlem.
The allegations in the complaint were in the nature that Mr. Neroni interfered with the deceased children's prospective right of inheritance as per the judgment of divorce between the deceased and his former wife where the deceased pledged to make a will bequeathing two pieces of real estate to the children.
Instead, the deceased married, had Mr. Neroni draft deeds for those two properties from himself into himself and his new wife, and made a general revocable will bequeathing his entire estate to his children.
Before the Mokay litigation started, the 5 children submitted both the contract to make a will from the divorce action and the "improper" revocable will to the Delaware County Surrogate, Judge Carl F. Becker, and Judge Becker has authenticated the "improper" revocable will out of the two testamentary documents offered to him.
After authenticating the "improper will" in the Surrogate's Court proceeding where the Estate was represented by Richard Harlem, his father and their law firm, Richard Harlem accepted representation of the children and sued Mr. Neroni for fraud and fraud upon the court, but the allegations of the complaint were clearly accusing Mr. Neroni of interference with the children's prospective right of inheritance.
There is no cause of action in New York for interference with prospective right of inheritance, and no matter how that non-existent cause of action is re-hashed under and worded under existing causes of action, the nature of the complaint is still interference with prospective right of inheritance, and the claim is non-justiciable in New York.
That did not deter Richard Harlem or Robert Harlem.
It did not deter Richard Harlem or Robert Harlem that the deeds were never delivered to the decedent's new wife, there is no proof of that in the record, and the Appellate Division did not make a determination that the deeds were delivered, in fact, the Appellate Division has skipped this focal issue of litigation entirely and did not enumerate the delivery of the deeds in the list of Mr. Neroni's alleged wrongdoings.
Any 1st year law student who wants to become a 2nd year law student knows that without delivery of the deed, title does not pass, even if the deed is recorded.
Without such proof, the judge who decided the summary judgment, Judge Molly Fitzgerald of Binghamton, New York, usurped the function of the jury and exceeded her authority to make a finding of a material fact on a motion for a summary judgment where no proof of such fact was provided.
The Appellate Division said nothing about the deed being recorded by Mr. Neroni. Thus, no title passed and there was nothing to sue Mr. Neroni for, especially that the nature of the lawsuit was based on the non-existing cause of action, tortuous interference with prospective rights of inheritance, which was rejected in New York both before and after Mr. Neroni's disbarment - in 1996 when the referenced case was decided and in 2012 when the case that cited it was decided.
Yet, the litigation continues for 7 (seven) years, is still ongoing and has already cost Mr. Neroni his law license.
It gets merrier.
When disbarring Mr. Neroni, the Appellate Division indicated that Mr. Neroni acted in collusion or conspiracy with his deceased client in order to deprive the deceased client's children of their right to prospective inheritance, in violation of a court order in the judgment of divorce.
1/ there is no cause of action to sue for interference with a right to prospective inheritance in New York;
2/ the applicable domestic relations law statute, DRL 236(b)(3), requires that all opting out agreement be entered into in writing and during the marriage, thus, oral statements on record do not qualify under the statute;
3/ the children authenticated the "incorrect" will in the Surrogate's Court before going to the Supreme Court to enforce the contract to make the "correct" will;
4/ the deeds in question were never delivered and thus the title did not pass to the widow and there was nothing to discuss, the Estate attorneys Richard and Robert Harlem could simply ask the Surrogate to declare the rights regarding the title for the two properties because there is no proof that the deeds were delivered, and that would have been the end of it.
But, such an outcome would have been too quick, too easy, and would not have allowed Richard and Robert Harlem to claim legal fees as damages under Judiciary Law 487 in the Supreme Court.
So, Robert Harlem claimed in a writing to the court that the firm put together wall of its existing "horsepower" and filed a lawsuit on behalf of the 5 children of the deceased.
The case was initially assigned to Judge Michael V. Coccoma who recused.
The case was then assigned to Judge Elizabeth Garry, who made no effort to verify whether the deeds were or were not delivered, but the widow at that time agreed to put the deeds into the Estate.
Richard Harlem argued on record that the Estate of the deceased has nothing to do with the lawsuit, that the lawsuit was brought only by the five children of the deceased who were enforcing their deceased father's contract to make a will as third party beneficiaries under the contract.
Richard Harlem then filed an appeal of Judge Garry's decision complaining of placing the two properties into his own client the Estate which was not at that time part of the Supreme Court litigation. That was a direct conflict of interest requiring immediate disqualification of Richard Harlem and his law firm, with sanctions, from both Supreme and Surrogate's court litigation, with disgorgement and forfeiture of legal fees in both litigations but courts refused to see the conflict. That was in December of 2007.
In January of 2007, while the appeal of the children complaining of placing the title into the two contested properties with the Estate was still pending, Richard Harlem and his father made a motion to join the Estate as a party plaintiff, and the new judge on the case, Judge Molly Fitzgerald who was assigned after Judge Garry was appointed to the Appellate Division, granted the motion over objection of Mr. Neroni.
The theory of plaintiff children's did not change. It was enforcement of a contract to make a will. Enforcement against whom? Must be against their father who breached the will. The father was not brought in as a defendant though because of an obviously sticky issue that the father's estate was represented by plaintiff's own counsel. Yet, the complaint alleged, not in that language, but in that meaning, that the deceased father of the children breached the contract to make a will and that Mr. Neroni helped him do it and, thus, the deceased was a party defendant in the Supreme Court litigation.
The Appellate division confirmed this understanding by claiming that Mr. Neroni acted in collusion with the decedent to violate the children's rights.
If the decedent was a de facto party defendant through his collusion with Mr. Neroni to violate decedent's children's rights (for a prospective inheritance, obviously), which rights they are trying to vindicate through an enforcement lawsuit, then
(1) the decedent's Estate could not be joined as a party plaintiff;
(2) the children and the Estate of the decedent could not be represented by the same attorneys;
(3) the attorneys in a representation of 5 party plaintiffs and one party defendant in the same action had an irreconcilable conflict and were not entitled to any attorney fees, as straight fees or as damages in the action.
There are also sticky issues that:
(1) one of Richard Harlem's clients in the Mokay case, the decedent's son David Mokay, sued the Estate in the Delaware County Surrogate's Court for alleged wrongdoings of his father and breach of promise regarding the third piece of real estate that landed in the hands of David Mokay's sister and co-plaintiff in the Mokay action, put a lien on the Estate, and Richard Harlem opposes the lawsuit on behalf of the Estate;
(2) the Estate evicted David Mokay from one of the properties contested in the Mokay litigation;
(3) David Mokay was convicted in Meredith Town court for assault upon his sister's husband during a dispute regarding the pre-sale clearing of one of disputed properties.
How can Richard Harlem continue to represent David Mokay, the Estate and David Mokay's sisters involved in related property disputes and criminal proceedings? Does Richard Harlem believe that the rule of law is not applicable to him, instead the rule of connections is?
In other words, the Mokay case is litigated for 7 years based on a non-existent cause of action, with no proof that the deeds were ever delivered and thus that Mr. Neroni did anything wrong, where the children authenticated the "wrong" testamentary document before they moved to another court to enforce the "right" one, and while the only damages claimed in the action are legal fees of politically connected attorneys who represent parties on both sides of the caption and are not entitled, if the law is applied as it should be, to one penny in legal fees.
And this is the case which has cost Mr. Neroni his license, without a hearing, after 37 years of practice and with the jury trial on damages still outstanding and delayed so far twice by the plaintiffs because a month before the scheduled trial date their trial counsel invariably gets sick and the trial is adjourned over Mr. Neroni's objection.
Why is Richard Harlem not disbarred for his shenanigans in the Mokay case when any non-politically connected attorney would be?
The reason, in my belief, is the same as why Richard Harlem and his father were not disbarred after their shenanigans in the Blanding case in 2000 and in 2011 when Mr. Neroni and I turned him and his father into the Committee for Professional standards for their misconduct in both Mokay and Blanding cases.
The answer, in my belief, is - Connections.
Richard Harlem is the landlord of New York Senator James Seward.
Richard Harlem is the son of a retired Supreme Court justice.
Richard Harlem is represented by the law firm Hiscock & Barclays, LLP, where John Casey , the member of the Professional Conduct Committee at the time of our complaints about Richard Harlem and Robert Harlem, was and still is a law partner.
Hiscock & Barlcays, LLP, embraced another subject of John Casey potential prosecution, M. Cornelia Cahill, wife of New York State Court of Claims judge Richard Sise, at around the time when she was turned into the professional conduct committee for her role in the school pensions scandal, so the law firm builds its client base and partnership base on attorneys rescued instaed of prosecution by John Casey.
Hiscock & Barclays, LLP employs another New York State senator, Neil Breslin.
The Harlems were untouchable because of their pedigree, political status and political connections. Richard Harlem remains untouchable by attorney discipline to this day.
The brief summary of this farce is:
Multiple judges in multiple courts reviewed these same issues.
The applicable law is clear and it is clearly on Mr. Neroni's side.
Yet, Mr. Neroni remains disbarred and bad-mouthed by various courts as a "disgruntled disbarred former attorney", stripped of his right to earn a livelihood, share his wisdom and help many people, whether for a fee or for free, as he did for years, Richard Harlem remains an attorney and the Mokay case proceeds.
So much for the rule of law.
(1) it is my opinion that my husband was targeted because he is the so-called "deep pocket defendant";
(2) and it is my opinion that my husband was sought out to by politically connected attorneys for purposes of unjust enrichment.
I must stress that the case based on which Mr. Neroni lost his license without a hearing, is not finally resolved until now, the issue of damages is still outstanding, and, if decided in Mr. Neroni's favor by the jury, the case will have to be dismissed, yet, Mr. Neroni was disbarred without a hearing by application of collateral estoppel to a non-final decision on liability in a still ongoing case.
* * *
Mr. Neroni has lost his license, after 37 years of practice and without a hearing, because of a partial summary judgment in the case Mokay v. Mokay, Neroni, Delaware County Index No. 2007-695 brought, initially, by 5 adult children of Mr. Neroni's deceased client, then the Estate of the deceased client was also joined as a plaintiff. All plaintiffs were represented by the law firm Harlem & Harlem which at some point was transformed into Harlem & Jervis. Harlem & Harlem belonged to the retired Supreme Court Justice Robert Harlem (who was also the former Chief Administrative Judge of the 6th Judicial District) and his son attorney Richard Harlem.
The allegations in the complaint were in the nature that Mr. Neroni interfered with the deceased children's prospective right of inheritance as per the judgment of divorce between the deceased and his former wife where the deceased pledged to make a will bequeathing two pieces of real estate to the children.
Instead, the deceased married, had Mr. Neroni draft deeds for those two properties from himself into himself and his new wife, and made a general revocable will bequeathing his entire estate to his children.
Before the Mokay litigation started, the 5 children submitted both the contract to make a will from the divorce action and the "improper" revocable will to the Delaware County Surrogate, Judge Carl F. Becker, and Judge Becker has authenticated the "improper" revocable will out of the two testamentary documents offered to him.
After authenticating the "improper will" in the Surrogate's Court proceeding where the Estate was represented by Richard Harlem, his father and their law firm, Richard Harlem accepted representation of the children and sued Mr. Neroni for fraud and fraud upon the court, but the allegations of the complaint were clearly accusing Mr. Neroni of interference with the children's prospective right of inheritance.
There is no cause of action in New York for interference with prospective right of inheritance, and no matter how that non-existent cause of action is re-hashed under and worded under existing causes of action, the nature of the complaint is still interference with prospective right of inheritance, and the claim is non-justiciable in New York.
That did not deter Richard Harlem or Robert Harlem.
It did not deter Richard Harlem or Robert Harlem that the deeds were never delivered to the decedent's new wife, there is no proof of that in the record, and the Appellate Division did not make a determination that the deeds were delivered, in fact, the Appellate Division has skipped this focal issue of litigation entirely and did not enumerate the delivery of the deeds in the list of Mr. Neroni's alleged wrongdoings.
Any 1st year law student who wants to become a 2nd year law student knows that without delivery of the deed, title does not pass, even if the deed is recorded.
Without such proof, the judge who decided the summary judgment, Judge Molly Fitzgerald of Binghamton, New York, usurped the function of the jury and exceeded her authority to make a finding of a material fact on a motion for a summary judgment where no proof of such fact was provided.
The Appellate Division said nothing about the deed being recorded by Mr. Neroni. Thus, no title passed and there was nothing to sue Mr. Neroni for, especially that the nature of the lawsuit was based on the non-existing cause of action, tortuous interference with prospective rights of inheritance, which was rejected in New York both before and after Mr. Neroni's disbarment - in 1996 when the referenced case was decided and in 2012 when the case that cited it was decided.
Yet, the litigation continues for 7 (seven) years, is still ongoing and has already cost Mr. Neroni his law license.
It gets merrier.
When disbarring Mr. Neroni, the Appellate Division indicated that Mr. Neroni acted in collusion or conspiracy with his deceased client in order to deprive the deceased client's children of their right to prospective inheritance, in violation of a court order in the judgment of divorce.
1/ there is no cause of action to sue for interference with a right to prospective inheritance in New York;
2/ the applicable domestic relations law statute, DRL 236(b)(3), requires that all opting out agreement be entered into in writing and during the marriage, thus, oral statements on record do not qualify under the statute;
3/ the children authenticated the "incorrect" will in the Surrogate's Court before going to the Supreme Court to enforce the contract to make the "correct" will;
4/ the deeds in question were never delivered and thus the title did not pass to the widow and there was nothing to discuss, the Estate attorneys Richard and Robert Harlem could simply ask the Surrogate to declare the rights regarding the title for the two properties because there is no proof that the deeds were delivered, and that would have been the end of it.
But, such an outcome would have been too quick, too easy, and would not have allowed Richard and Robert Harlem to claim legal fees as damages under Judiciary Law 487 in the Supreme Court.
So, Robert Harlem claimed in a writing to the court that the firm put together wall of its existing "horsepower" and filed a lawsuit on behalf of the 5 children of the deceased.
The case was initially assigned to Judge Michael V. Coccoma who recused.
The case was then assigned to Judge Elizabeth Garry, who made no effort to verify whether the deeds were or were not delivered, but the widow at that time agreed to put the deeds into the Estate.
Richard Harlem argued on record that the Estate of the deceased has nothing to do with the lawsuit, that the lawsuit was brought only by the five children of the deceased who were enforcing their deceased father's contract to make a will as third party beneficiaries under the contract.
Richard Harlem then filed an appeal of Judge Garry's decision complaining of placing the two properties into his own client the Estate which was not at that time part of the Supreme Court litigation. That was a direct conflict of interest requiring immediate disqualification of Richard Harlem and his law firm, with sanctions, from both Supreme and Surrogate's court litigation, with disgorgement and forfeiture of legal fees in both litigations but courts refused to see the conflict. That was in December of 2007.
In January of 2007, while the appeal of the children complaining of placing the title into the two contested properties with the Estate was still pending, Richard Harlem and his father made a motion to join the Estate as a party plaintiff, and the new judge on the case, Judge Molly Fitzgerald who was assigned after Judge Garry was appointed to the Appellate Division, granted the motion over objection of Mr. Neroni.
The theory of plaintiff children's did not change. It was enforcement of a contract to make a will. Enforcement against whom? Must be against their father who breached the will. The father was not brought in as a defendant though because of an obviously sticky issue that the father's estate was represented by plaintiff's own counsel. Yet, the complaint alleged, not in that language, but in that meaning, that the deceased father of the children breached the contract to make a will and that Mr. Neroni helped him do it and, thus, the deceased was a party defendant in the Supreme Court litigation.
The Appellate division confirmed this understanding by claiming that Mr. Neroni acted in collusion with the decedent to violate the children's rights.
If the decedent was a de facto party defendant through his collusion with Mr. Neroni to violate decedent's children's rights (for a prospective inheritance, obviously), which rights they are trying to vindicate through an enforcement lawsuit, then
(1) the decedent's Estate could not be joined as a party plaintiff;
(2) the children and the Estate of the decedent could not be represented by the same attorneys;
(3) the attorneys in a representation of 5 party plaintiffs and one party defendant in the same action had an irreconcilable conflict and were not entitled to any attorney fees, as straight fees or as damages in the action.
There are also sticky issues that:
(1) one of Richard Harlem's clients in the Mokay case, the decedent's son David Mokay, sued the Estate in the Delaware County Surrogate's Court for alleged wrongdoings of his father and breach of promise regarding the third piece of real estate that landed in the hands of David Mokay's sister and co-plaintiff in the Mokay action, put a lien on the Estate, and Richard Harlem opposes the lawsuit on behalf of the Estate;
(2) the Estate evicted David Mokay from one of the properties contested in the Mokay litigation;
(3) David Mokay was convicted in Meredith Town court for assault upon his sister's husband during a dispute regarding the pre-sale clearing of one of disputed properties.
How can Richard Harlem continue to represent David Mokay, the Estate and David Mokay's sisters involved in related property disputes and criminal proceedings? Does Richard Harlem believe that the rule of law is not applicable to him, instead the rule of connections is?
In other words, the Mokay case is litigated for 7 years based on a non-existent cause of action, with no proof that the deeds were ever delivered and thus that Mr. Neroni did anything wrong, where the children authenticated the "wrong" testamentary document before they moved to another court to enforce the "right" one, and while the only damages claimed in the action are legal fees of politically connected attorneys who represent parties on both sides of the caption and are not entitled, if the law is applied as it should be, to one penny in legal fees.
And this is the case which has cost Mr. Neroni his license, without a hearing, after 37 years of practice and with the jury trial on damages still outstanding and delayed so far twice by the plaintiffs because a month before the scheduled trial date their trial counsel invariably gets sick and the trial is adjourned over Mr. Neroni's objection.
Why is Richard Harlem not disbarred for his shenanigans in the Mokay case when any non-politically connected attorney would be?
The reason, in my belief, is the same as why Richard Harlem and his father were not disbarred after their shenanigans in the Blanding case in 2000 and in 2011 when Mr. Neroni and I turned him and his father into the Committee for Professional standards for their misconduct in both Mokay and Blanding cases.
The answer, in my belief, is - Connections.
Richard Harlem is the landlord of New York Senator James Seward.
Richard Harlem is the son of a retired Supreme Court justice.
Richard Harlem is represented by the law firm Hiscock & Barclays, LLP, where John Casey , the member of the Professional Conduct Committee at the time of our complaints about Richard Harlem and Robert Harlem, was and still is a law partner.
Hiscock & Barlcays, LLP, embraced another subject of John Casey potential prosecution, M. Cornelia Cahill, wife of New York State Court of Claims judge Richard Sise, at around the time when she was turned into the professional conduct committee for her role in the school pensions scandal, so the law firm builds its client base and partnership base on attorneys rescued instaed of prosecution by John Casey.
Hiscock & Barclays, LLP employs another New York State senator, Neil Breslin.
The Harlems were untouchable because of their pedigree, political status and political connections. Richard Harlem remains untouchable by attorney discipline to this day.
The brief summary of this farce is:
- there is no legitimate cause of action underlying the plaintiffs' Mokay case;
- since the deeds were never delivered and the title did not pass, the contract to make a will was not broken, so there was nothing to sue Mr. Neroni for;
- the contract to make a will was forfeited by the children by authenticating the "improper will" before the Mokay case was brought;
- the politically connected attorneys who represent in the Mokay case the children and the Estate which, according to the children's Complaint is a confirmed de facto defendant, are not entitled to one penny in legal fees while the entire case is based on the claim of legal fees as damages
Multiple judges in multiple courts reviewed these same issues.
The applicable law is clear and it is clearly on Mr. Neroni's side.
Yet, Mr. Neroni remains disbarred and bad-mouthed by various courts as a "disgruntled disbarred former attorney", stripped of his right to earn a livelihood, share his wisdom and help many people, whether for a fee or for free, as he did for years, Richard Harlem remains an attorney and the Mokay case proceeds.
So much for the rule of law.
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