The toils of NYS courts to change the law in favor of a son of a judge

Here is an incomplete list of issues in the Mokay case (against my husband Frederick J. Neroni) pertaining to judicial misconduct in favor of Richard Harlem, son of the now deceased Robert Harlem, retired Chief Administrative Judge of the 6th Judicial District.

The table presented below shows to what lengths courts had to go and continue to go in order to rescue Richard Harlem's lawsuit against Mr. Neroni and how courts had to change practically every applicable rule in order to please a retired judge (who died mid-litigation) and his son representing plaintiffs in the Mokay action and in order to "get" Mr. Neroni.

So much effort - from courts no less - to prevent Mr. Neroni from getting the benefit of the rule of law...  Of course, interests of a son of a judge Richard Harlem are a higher priority than the mere rule of law.

Summary table:

Name of a class of legal authorities changed in the Mokay litigation to suit Richard Harlem, son of a judge	Name of statute, rule of court or common law principle changed
Cause of action	Interference with prospective right of inheritance, there is no such cause of action in New York, no matter how this cause of action is camouflaged or re-hashed, it is still unenforceable to sue for interference with prospective right of inheritance in New York
Statutes	CPL 10.20 (jurisdictional) Judiciary Law 487 (jurisdictional) County Law 700 (jurisdictional) Civil Practice Law and Rules 321 Domestic Relations Law 236(b)(3) Estate Powers & Trusts Law 13-2.1 Civil Practice Law and Rules 3212 (jurisdictional – a judge on a motion for a summary judgment may not resolve triable issues of fact not presented to the court on record) New York State Constitution – unresolved issues of fact are triable to a jury unless there is a waiver in writing; right against self-incrimination and ex post factor law; U.S. Constitution – among other violated provisions, 5th Amendment and ex post facto law, change of a civil case into a criminal case after decision on liability was made based on default (in a criminal proceeding a defendant has a right to remain silent)
Court rules	22 NYCRR Article 130 - courts canceled application of this rule to Richard Harlem 22 NYCRR Article 1400 - courts canceled application of this rule to Richard Harlem Adversarial system of justice, prohibition against advocacy by judges, right to cross-examine witnesses - when Judge Dowd prohibited me from cross-examining Richard Harlem when he testified as a witness on June 23, 2014
Fee forfeiture/disgorgement For conflicted representation	Rule 1.7 of NYS Attorney Code of Conduct ULICO CASUALTY COMPANY, Plaintiff, v. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER et al., Defendants., 16 Misc.3d 1051, 843 N.Y.S.2d 749 (2007)

 Here is a table with a fuller description of issues:

No.	Issue	The applicable law	The record of Mokay	How the courts ruled so far	Comment
1	Essence of the Mokay litigation – that Mr. Neroni allegedly deprived 5 children of the decedent and the decedent himself (in collusion with the decedent) of title and possession to two properties because he drafted and recorded two deeds from the decedent's name to decedent and his new wife's name (allegedly contrary to the oral opting out agreement to make an irrevocable will in the decedent's divorce action)	Title to real property passes when the deed is delivered	No proof in the Mokay record that the deeds were delivered – thus title never passed	Connie Mokay agreed to "return" the deeds to the Estate – over objection of the decedent's children (Estate and children are represented by the same attorneys). The court ruled that Mr. Neroni committed fraud upon the court based on evidence of drafting the deed, recording the deed and the alleged collusion as to why the deed was drafted. Without delivery of the deed, title did not pass and what is being charged is attempted fraud – a crime, not a sustainable tort
2	Attempted fraud upon the court – a crime	Criminal part of Judiciary Law 487, was never charged against Mr. Neroni, statute of limitations (2 years from 2006) has passed 7 years ago. The rationale for punishing unsuccessful attempts is presumption of injury to the people, deterrence of crime			5th Amendment right against self-incrimination applies
3	Attempted fraud upon the court – a tort	An attempted tort is an unsustainable legal theory because a tort presupposes an injury, and there is no injury in an unsuccessful attempt.  Injury in a civil tort case may not be presumed, it must be proven.  In an attempted tort injury cannot be proven			In tort actions, a negative inference is allowed for failure to respond.  A Summary judgment on liability was granted against Mr. Neroni for alleged failure to respond.  If a civil action with a summary judgment on liability due to failure to deny allegations (on an issue protected by the 5th Amendment) is changed mid-litigation into a criminal proceeding, the summary judgment must be vacated, as in criminal proceedings negative inference from defendant's silence are not allowed
4	Did Mr. Neroni ever deprive the Mokay children of possession to the two properties?		There is no proof of that in the record.  Mr. Neroni did not evict any of the Mokay children from the properties.  In fact, the Estate (Plaintiff in the Mokay action) evicted David Mokay (Plaintiff in the Mokay action, represented by the same attorneys) from one of the subject properties; David Mokay was criminally prosecuted by a husband of one of his sisters (Plaintiff in the Mokay action) for 2nd degree assault in connection with cleaning the 2nd subject property
5	Did Mr Neroni ever deprive the Mokay children of title to the subject properties?	Title passes on delivery of deeds	There is no proof in the record of the delivery of the deed	The court's determination that Mr. Neroni deprived the Mokay Children of title is void since the summary judgment court usurped authority of the jury to resolve triable issues of fact and made the decision based on evidence not in the record (thus unlawfully amending CPLR 3212 and the New York State Constitution) which constitutes judicial misconduct of Judge Molly R. Fitzgerald and the affirming Appellate Division 3rd Department
6	Subject matter jurisdiction	Judiciary Law 487, civil part – damages can be obtained for real injury caused by actual fraud upon the court		App Div. 3d and Kevin Dowd of Delaware County Supreme Court:  If NYS Court of Appeals said in 2009 in Amalfitano v. Rosenberg that damages are obtainable for attempted fraud upon the court (a crime, not a tort), that decision is applicable to the Mokay action that was commenced in 2007 and decided on the law in 2008	Courts have no authority to change a statute by interpretation – but NYS COA changed Judiciary law 487 from actual to attempted fraud in a civil action – and all courts applied it to Mr. Neroni retroactively, in violation of the ex post facto clause of the U.S. Constitution
7	An attempt to defraud the court	There are attempted crimes; There are no attempted torts in any jurisdictions in the United States		NYS COA recognized an attempted fraud upon the court in reliance on the criminal language of Judiciary Law 487 – that intent to deceive is dispositive and not the actual completed tort of fraud;  concentration on the intent to deceive and elimination of the injury element turned civil actions under Judiciary Law 487 into criminal actions
8	Subject matter jurisdiction for criminal proceedings in the Supreme Court	Criminal Procedure Law 10.20 – the Supreme Court obtains jurisdiction in criminal proceedings, over felonies and misdemeanors, only through an action of the grand jury	A civil action for attempted fraud upon the court against Mr. Neroni proceeds without any action of the grand jury
9	NYS County Law 700	All criminal actions in the state of New York are prosecuted by a county district attorney	The Mokay action against Mr. Neroni for an attempted fraud is prosecuted by a civil law firm
10	The proper plaintiff in criminal proceedings in the State of New York	People of the State of New York	Mr. Neroni is prosecuted for an attempted fraud upon the court by 6 civil parties
11	Cause of action for interference with prospective right of inheritance	Does not exist in the state of New York	The court granted this non-existent cause of action against Mr. Neroni when such cause of action was re-hashed as fraud upon the court
12	Contract to make a will	Must be in writing	In decedent's divorce action, such a contract was oral and unenforceable
13	Opting out agreement in a divorce action pertaining to equitable distribution	Domestic Relations Law 236(b)(3) Should be: (1) in writing; (2) executed before or during the marriage (not during a divorce action); (3) should have an acknowledgement entitling a deed to be recorded EPTL 13-2.1 – any contract to make a will must be in writing	The divorce judge put into the judgment of divorce that only legally enforceable provisions are binding upon the parties. An oral stipulation as to equitable distribution made after a divorce proceeding is filed, is unenforceable, DRL 236(b)(3). An oral contract to make a will made contrary to two statutes on point, was obviously not legally enforceable, EPTL 13-2.1, see here.	The Mokay courts (motion and appellate) unlawfully amended two statutes by interpretation In order to arrive at the decision that the oral stipulation for a an oral contract to make a will in a divorce action was valid and enforceable against Mr. Neroni	There was only an oral stipulation in the decedent Andrew Mokay's divorce action, which is contrary to DRL 236(b)(3) and thus unenforceable
14	Rule of frivolous conduct	22 NYCRR Article 130  An action is frivolous when it is unsustainable as a matter of law and fact and brought to harass and maliciously injure another	David Mokay, acting Pro Se, sued the Estate of Andrew Mokay in Surrogate's Court claiming that equitable distribution in his father's judgment of divorce is illegal and is meant to defraud him and deprive him of the Third property – that was given through judgment of divorce to the Mokay children's mother.  David Mokay claimed incompetence of his father to the Surrogate's Court at the time of agreeing to equitable distribution. David Mokay, represented in the Supreme Court (Mokay action) by Richard Harlem, claimed the opposite, that the judgment of divorce is valid, and to enforce contract to make a will that was part of oral stipulation in that judgment	Despite diametrically opposite claims of David Mokay clearly showing that the Mokay action is frivolous, the Mokay courts refused to vacate the summary judgment on liability
15	Forfeiture/disgorgement of attorney fees in a conflicted representation	A NY state court ordered a fee disgorgement for representation over 3.5 years for conflicted representation. Attorneys who represent clients with irreconcilable conflicts of interest in the same or related action must forfeit their entire fee	App. Div. 3rd provided on Jan 22, 2015 that the decedent acted as part of the "trio" conspiring to defraud and injure his own children The only damages claimed in the Mokay action are attorney fees of Richard Harlem	The Mokay courts so far have refused to dismiss the case as brought by disqualified counsel in order to obtain attorney fees that particular counsel was not entitled to – because of political status and connections of Richard Harlem and his father	The only reason I see as to why the Mokay case lingers f
16	Change of counsel	Change of counsel in a pending court case can be done only through an order of the court or notarized consent to change counsel, CPLR 321	The Mokay case was started by a Harlem & Harlem law firm;  It is now prosecuted by a Harlem & Jervis law firm.  No consent to change counsel was ever filed with the court	Harlem & Jervis law firm has no right to represent plaintiffs for failure to comply with CPLR 321 – but still does it, and the courts do not care
17	Entitlement to legal fees in an action enforcing a judgment of divorce or any part thereof	22 NYCRR 1400 To entitle an attorney to fees in representation in a custody, annulment or divorce action, or in any action enforcing a judgment out of such actions, there must be an original signed  retainer agreement of a certain format filed with the court, and a Bill of Client's Rights not to mention other requirements	Plaintiffs' attorneys never complied with 22 NYCRR 1400 and claimed to the court that it does not apply	Judge Dowd canceled, without authority to do so, application of 22 NYCRR 1400 to enforcement actions of judgments of divorce, even though whether it is applicable under the circumstances is a mixed issue of law and fact for the future jury trial, thus Judge Dowd amended  without authority the New York State Constitution Thus Judge Dowd already usurped the jury functions before the jury was even convened in April of 2015

Will attorneys Richard Harlem, Eric Jervis and James Hartmann be disbarred for representation of clients with irreconcilable conflict of interest for years?

In the summer of 2007 a retired judge Robert Harlem and his son Richard Harlem have brought against my husband a case Mokay v. Mokay.

The case is still pending and a jury trial has been scheduled on that case on the issue of damages for April, 2015.

A partial summary judgment on liability was entered in 2008.

On January 22, 2015 the Appellate Division 3rd Department made a finding that three people participated in the alleged collusion:  Connie Mokay, Mr. Neroni and his deceased client.

Below is the caption of the case Mokay v. Mokay, pending in Delaware County Supreme Court since 2007:

The caption clearly shows that "the trio" who allegedly colluded to defraud the decedent's children are distributed on both sides of the caption.

One person out of the "trio", the decedent Andrew Mokay (through his Estate) is one of the Plaintiffs in the Mokay action.

Two other persons from what the appellate court called "a trio" are Mr. Neroni and Connie Mokay.

No fraud or fraud upon the court was proven against Mr. Neroni since there is no proof on record that the deeds were ever delivered to Connie Mokay.  If deeds were never delivered, title never passed, and Mr. Neroni could not possibly be blamed for any fraud or fraud upon the court.  A fuller legal analysis of what is wrong about the liability summary judgment can be found here.

If the "trio", as the appellate court called the decedent Andrew Mokay, Connie Mokay and Frederick J. Neroni colluded to defraud Andrew Mokay's children out of their rightful inheritance in the future (please, mind that there is no cause of action in New York for interference with a right for prospective inheritance, no matter how it is re-hashed), that trio should all be situated on the same side of the caption, as defendants in the Mokay action, sued by Andrew Mokay's children.

And here we come to the ultimate problem with this case.

The only damages claimed in this case are attorney's fees of the Plaintiffs' attorneys, the retired judge Robert Harlem (now deceased), the judge's son Richard Harlem, their law partner Eric Jervis, all of Oneonta, NY, their law firms, and their trial counsel James Hartmann of Delhi, NY.

Yet, these attorneys positioned in this action the Estate of Andrew Mokay as a plaintiff while it is a proper defendant, as the Appellate Division 3rd Department just implied by putting Andrew Mokay together with the defendants Connie Mokay and Frederick J. Neroni and "finding" that they are part of the trio who entered into the scheme to defraud...

The caption shows that the decedent Andrew Mokay, through his Estate, sues two of his alleged co-conspirators in committing fraud upon Andrew Mokay's children - an absurd situation.

What exactly is the decedent (Estate) Andrew Mokay is suing Mr. Neroni for where the court clearly said the decedent is Mr. Neroni's co-conspirator?  The only reasoning for lumping together the decedent and the Plaintiffs is because Richard Harlem, his father and their law firm started to represent the Estate EARLIER (in the Surrogate's Court, in the related probate proceeding, where they used - surprise! - Frederick J. Neroni as a witness on the exact same will that they claimed was not valid in the Mokay action against Frederick J. Neroni in the Supreme Court).

Since Richard Harlem and Co.  started to represent the Estate (the decedent, one of the "trio") earlier, they COULD NOT, as part of attorney disciplinary rules against irreconcilable conflicts of interest, represent decedent's children suing for fraud - because if they are suing two out of the "trio", the only reason why they are not suing their father's Estate is because their own attorneys represent their father's Estate and OPENLY representing plaintiffs and a defendant in the same action would have been too much even for Robert Harlem and his son.

So, instead, Robert and Richard Harlem included the decedent Andrew Mokay as a Plaintiff in the Mokay action (through an amendment, not initially - after fighting tooth and claw that the children's case has nothing to do with the Estate's case and even appealing a decision against putting the title into the two properties into the estate - appeal was by Richard Harlem on behalf of the children against his own client the Estate), refused to provide a proper Bill of Particulars, refused to provide proper discovery (all judges obliged to block discovery), Richard Harlem went so far as to argue to Judge Becker that he does not want to "educate me" before the trial on damages and that's why he did not provide me with a legal theory of prosecution on behalf of the Estate - that was in spring of 2012.

On June 23, 2014 I made an argument to the currently presiding Judge Dowd that Richard Harlem is not entitled to any attorney's fees because because he never complied with court rules pertaining to legal fees in such an enforcement action.

 This is what Richard Harlem responded to that:

 Please, note that Richard Harlem claims that "these folks are third-party beneficiaries under the events that occurred", and at the same time claims that "there was an effort made previously to suggest that this was a matrimonial action", while Richard Harlem "believe[d] that was rejected by not only the trial Court, but the Appellate Division as well".

So, issue # 1.  On June 23, 2013, 6 years into the litigation in Mokay v. Mokay, 5 years after obtaining a judgment on behalf of children of the decedent Andrew Mokay and on behalf of the decedent himself against Mr. Neroni, Richard Harlem pretends to the court that he only represents the children "under the events that occurred" and not the decedent?

And why is Richard Harlem so murky about "the events that occurred"?  Is it because "the events that occurred" is an ORAL stipulation incorporated into a judgment of divorce that Richard Harlem is enforcing in Mokay v. Mokay on behalf of children - that had to be enforced against their own decedent father, once again, putting their father below on the caption, as a defendant, and eliminating Richard Harlem's right to represent the children because he started to represent the Estate earlier in a related action?

As to the allegations that the "trial court" already decided whether what Mr. Harlem is enforcing in Mokay v. Mokay is or is not a matrimonial action - it is actually an outstanding issue, a mixed issue of fact and law that is FOR THE JURY to decide in April of 2015.

There was no trial in this case so far - there was only a partial summary judgment on liability.

And, the Appellate Division in 2009 clearly indicated, by the way, that what Mr. Harlem was enforcing in Mokay was a "stipulation" out of the divorce action of decedent Andrew Mokay.

There were two parties to the stipulation - the decedent Andrew Mokay and his wife, the mother of the very adult plaintiffs in Mokay v. Mokay.

The decedent Andrew Mokay, as found by the Appellate court in 2015, allegedly entered into an agreement with defendants Connie Mokay and Frederick J. Neroni to breach that agreement and was part of the "trio".

Mr. Harlem argued to the court on June 23, 2014 that "these folks" (his clients in the Mokay action) are "third party beneficiaries" "under the events that occurred" - no exception:

 This is, once again, the caption of this case showing who exactly Mr. Harlem represents and highlighting in yellow the "trio" of people who, according to the most recent Appellate decision, colluded in this case to breach the contract allegedly arising out of the divorce action between the decedent Andrew Mokay (Estate) and his former spouse:

I wonder if Mr. Harlem remembers whom he represents in the Mokay action, after all these years.

I also wonder if, in Mr. Harlem's learned opinion, the decedent Andrew Mokay whose Estate Mr. Harlem represents in the Mokay action - and represented in the application for attorney fees that was argued on June 23, 2014 - was also a "third party beneficiary" under his own stipulation with his wife because that's what follows from Mr. Harlem's claim on June 23, 2014:

  Mr. Harlem's claim begs the question whether Mr. Harlem understands what a third party beneficiary is - and whether he understands that a third party beneficiary cannot be a party to an agreement.

It is interesting to mention that while I consistently claimed throughout my representation of my husband in this action that started in 2009 that Mr. Harlem is representing (1) third party beneficiaries arguing the breach of contract and at the same time (2) the person AGAINST WHOM the breach of contract must be claimed - the Estate of their father, which is an irreconcilable and disqualifying conflict of interest - a beginner immigrant female attorney simply may not be right (in the institutional eye of New York judiciary) against a venerable law firm of a retired judge and his son. 

Of course, such a point of view has nothing to do with the law, of course, it results in blunders as stupid as Mr. Harlem's claim that he represents "folks" suing as "third party beneficiaries" - which implies a breach of contract - which implies a lawsuit of the 3rd party beneficiaries (injured by the breach) against the breaching party to the contract - the decedent Andrew Mokay - co-Plaintiff in the Mokay litigation - Richard Harlem's client.

That absurd situation, allowed by multiple judges and courts to proceed, can be explained only by this reasoning (that has nothing to do with the law):

1. A retired judge Robert Harlem could not be wrong;
2. A judge's son Richard Harlem could not be wrong (especially that Richard Harlem is a long-time landlord of the Oneonta office of New York Senator James Seward - verified through a FOIL request to the New York Legislature - Senator Seward even "sponsored" a bill mourning the passing of his landlord's father, without indicating the conflict, and no doubt used public money for this "sponsorship";  see also documents in my Blanding saga post containing documents authored by the NYS Attorney General's office showing just how honorable Senator Steward's landlord's father was);

1.  Anybody who this "duo" represents or any law partners or employees of the above "duo" cannot be wrong;
2. What the duo wants the duo gets.  Especially against the Neronis. 

The retired judge Robert Harlem died in 2012. 

Richard Harlem continued to claim him as a live partner on his letterhead for months after his death.  Apparently, it was false advertising, but who cared. 

Apparently, it was inappropriate to drum up business by claims that a law partner of a firm held a position of a judge, but again, who cares. 

Recently a sitting judge of Southampton Town Court, Suffolk County, NY, Judge Edward D. Burke, Sr, was censured by the State of New York Commission for Judicial Conduct for advertising his judicial position on the website of his law firm - and it should be (in my humble opinion) no different with retired judges. 

Retired judges should not be allowed to drum up business by creating an appearance through such advertising that they can get preferential treatment from the judicial system because of their status as retired judges.

Robert Harlem and Richard Harlem did that throughout Robert Harlem's retirement and Richard Harlem did that long after his father's death - with no discipline whatsoever.

Moreover, Robert and Richard Harlem were allowed to get away with violation of clear and unambiguous rules of attorney conduct that should have resulted in their disbarment long time ago - but did not.  Why? I already wrote on this blog that the law firm Hiscock & Barclay, where John Casey, member of the 3rd Department attorney disciplinary committee, was a member, accepted Richard and Robert Harlem as a paying client when Mr. Neroni

(1) sued Richard and Robert Harlem for fraud upon the court in the Mokay action;
(2) turned them in, several times from 2007 to 2011 inclusive, into the attorney disciplinary committee for their shenanigans, as described in my Mokay saga blog, Blanding saga blogpost, and elsewhere on this blog.

In other words, there is an appearance that, when John Casey's law firm accepted Robert and Richard Harlem as paying clients instead of investigating them in accordance with Mr. Neroni's complaints to the disciplinary committee, and when John Casey instead prosecuted and brought Mr. Neroni to disbarment based on the frivolous Mokay action that should have resulted in disbarment of Richard Harlem and Robert Harlem - John Casey sold his prosecutorial discretion to Richard Harlem and Robert Harlem.

That's why instead of disbarring Richard Harlem, Robert Harlem, Eric Jervis and James Hartmann - the four attorneys who are working on the Mokay case, the state of New York chose to disbar without a hearing Mr. Neroni - for actually asking to disbar a former judge and his son.

To tell me that New York State has some kind of a rule of law after this is simply laughable.

Yet, an interesting question arises after the decision of the Appellate Division regarding the "trio".  Will Richard Harlem, Eric Jervis and James Hartmann be disbarred without a hearing (on collateral estoppel grounds, same as Mr. Neroni) now that the appellate court clearly ruled, and it is "the law of the case", that the decedent Andrew Mokay was part of the colluding "trio" - from which it must follow that the decedent Andrew Mokay (his Estate) should have been joined, if at all, as a defendant in this action, and not as a plaintiff, as Richard Harlem did to collect uncollectable attorney fees as the only damages in the Mokay litigation?

Retired Judge of Appellate Division 3rd Department Carl Mugglin as the pronouncer of the court's review policy

Back in 2009 during an appellate "settlement conference", a retired judge of the Appellate Division Third Department, Carl Mugglin, without reading the record in the case that the settlement conference was for, but after hearing my constitutional arguments, started to discuss a topic that was irrelevant to the pending appeal.

The topic was - whether a private attorney can invoked the power of the People of the State of New York to order appearance of litigants who are not religious, at a deposition in a church, if litigants object.

Carl Mugglin pointed out to me that a criminal trial was allegedly held in a church in Cooperstown, NY (Otsego County), and if that was ok for a criminal defendant, a deposition in a church of non-religious litigants over their objection as to having to enter the house of worship on the threat of contempt of court is surely ok for my clients.  

(1) the issue of the deposition was not part of the appeal, and Carl Mugglin had no business discussing that issue;

(2) what was allowed by another attorney and other parties in another case decades ago, without even knowing whether it was done on consent or not, was not applicable in a case with clear 1st Amendment implications nowadays;

I attempted to point these simple things out to Carl Mugglin.

Carl Mugglin, whose ONLY authority as a retired judge handling the settlement conference was to inquire whether parties can settle or whether the appeal was to proceed (and at that early stage in the appellate litigation the Record on Appeal and appellant's brief were not yet filed and were not in front of him, so he did not know the record or issues in the case), started then lecturing to me and stated, in response to my arguments to him to stick to what he is supposed to do ,the following;

"you will dig a hole, Mrs. Neroni, for your clients by your intellectual efforts".

My client, an educated female, was shocked by the sexism of his statement.  

Practicing law is making intellectual efforts on behalf of a client.

Yet, for the 3rd Department court, from the times of Carl Mugglin to this time, judging by their decisions, including the latest decision I just posted about, judges fail to engage in proper intellectual efforts to provide full judicial review - and consider rightful indignation of litigants as to lack of, let's say, intellectual rigor and competence of judicial decisions in New York from trial to appellate level as questionable and sanctionable.

And it is time to make collective public efforts to introduce legislation or changes to the State Constitution to end this judicial arrogance, introduce true judicial accountability and ensure true access to courts and proper judicial review of court cases.

The Mokay saga gets more and more interesting - the Appellate Division gave Mr. Neroni power for the appeal up to the NYS Court of Appeals and the U.S. Supreme Court

I wrote on this blog about the so-called "Mokay saga", a case filed against my husband in 2007, that is still not fully resolved on the merits in 8 years, but that already cost my husband a law license 3.5 years ago without a hearing on the basis of the so-called "collateral estoppel" which presupposes that the underlying case was finally decided on the merits.

I provided in this a legal analysis of issues of the Mokay case showing the unsustainability of the civil lawsuit against Mr. Neroni, of the egregious and pervasive bias of the string of judges assigned to this case, of the refusal of judges to properly apply the law because the lawsuit was brought by the law firm of a former high-ranking judge and his son (who were previously caught by NYS Attorney General in a fraud upon the court scheme, but escaped without any discipline, since a member of the disciplinary Committee was a partner in the law firm representing them) and the court system strives to oblige that law firm in what they want, no matter what the law says.

The case took a weird twist 2 days ago when NYS Appellate Division Third Judicial Department made yet another appellate decision in this case, naturally, against Mr. Neroni, and in that decision, made several astounding blunders which may finally help Mr. Neroni bring this case to justice on further appeals.

I note that the decision was authored by three judges out of the panel 5 judges that I turned into the NYS Commission for Judicial Conduct and to the U.S. Attorney General for investigation of appearance of corruption after Governor Cuomo nominated Judge Leslie Stein of the Appellate Division 3rd Department to the Court of Appeals during the pendency of a case involving NYS Department of Environmental Conservation, and Judges Stein, Egan, McCarthy, Clark and Lynch granted the appeal, with multiple constitutional violations, less than a week after Leslie Stein's nomination.

I also note that that the 3rd Department keeps presiding over cases where Mr. Neroni and I are parties despite repeated requests for disqualifications after the 3rd Department recused in June of 2014 from a case where myself and Mr. Neroni were listed as parties, and after that recusal should have recused from all pending cases where we were parties.

It appears that the 3rd Department clutches this case for dear life so that it can control what decisions are made in the case - and appears more and more incompetent and biased with each successive decision.

Here are at least some of the profound blunders of the 3rd Department that I can readily spot from its January 22, 2015 order in the Mokay case.

BLUNDER # 1.  Hypothetical jurisdiction.  This is the issue upon which I turned this particular court into the NYS Commission for Judicial Conduct multiple times, since 2009.  

Several times my complaints were dismissed at the time when - surprise! - the court's own Chief Judge Karen Peters was a member of the New York State Commission of Judicial Conduct reviewing complaints against her own court.

Judge Peters apparently considered it appropriate for herself to toss complaints against her own court, which, to me, tells much about this judge's integrity.

The concept of hypothetical jurisdiction, a due process violation, arises when the court addresses the merits of the case before it establishes that it has jurisdiction to do so.

The U.S. Supreme Court has ruled back in 1998 that exercising hypothetical jurisdiction is unconstitutional, apparently, to no avail as to judges of this court.  Nearly 20 years down the road, the judges still first review and decide merits of cases and then casually toss constitutional challenges to jurisdiction of the court without any meaningful review, and with a footnote that actually the defendant is somehow to blame for challenging misconduct of judges who are actually engaged in misconduct on his case. 

In regard to hypothetical jurisdiciton, the January 22, 2015 decision in Mokay is a classic.

First, the court makes all its determinations on the merits, and at the very end it addresses the threshold question of constitutionality of Judiciary Law 487 which, if decided in Mr. Neroni's favor, would have stripped the court of subject matter jurisdiction.  Such questions absolutely must be reviewed by the court of any level first, not last.

BLUNDER # 2.  Rubber-stamping the challenged precedent instead of constitutional review of challenge to subject matter jurisdiction is no review at all 

In New York, criminal cases may only be brought in the Supreme Court through the indictment of a grand jury.

What is pending against Mr. Neroni (and cost him his license) is an alleged civil case pursuant to Judiciary Law 487.

In other words, Mr. Neroni is sued for the civil portion of Judiciary Law 487, in a tort called "fraud upon the court".

As any 1st year law school student knows, there is no such thing as an "attempted tort", there can only be an attempted crime.

In New York, courts have a right only to interpret and apply statutes, not to CHANGE them by interpretation.  Amendment of a statute is only within the authority of the Legislature.

Yet, AFTER the partial summary judgment was granted by the Delaware County Supreme Court in 2008 and BEFORE the appeal from that decision was affirmed by the Appellate Division 3rd Department on November 19, 2009, the New York State Court of Appeals, on February 12, 2009, did what it was not authorized to do - it changed the statute, Judiciary Law 487.

The NYS Court of Appeals answered in the affirmative the "certified question" of the U.S. Court of Appeals for the 2nd Circuit as to whether an attorney can be charged in a civil action under Judiciary Law 487 for an unsuccessful attempt to commit fraud upon the court.

The answer to this question should not have even been asked by the 2nd Circuit, because the answer to this question is clear to any 1st year law student as a matter of law, and NYS Court of Appeals definitely does not have power to amend the civil part of Judiciary Law 487 into a criminal part, which the 2nd Circuit court, no doubt, knew.

Yet, the question was asked and answered in the alternative.

A situation arose that Judge Fitzgerald decided in 2008 one case (civil case) and the Appellate Division affirmed on November 19, 2009 a criminal case, since by that time NYS Court of Appeals' decision became "precedent" in the State of New York, and now plaintiffs did not need to show a completed tort to get entitled to damages, only an attempted tort - a complete aberration in legal jurisprudence.

Mr. Neroni made a motion to declare Judiciary Law 487 unconstitutional specifically because the NYS Court of Appeals changed the applicable statutory law (without authority) after the partial summary judgment was decided in Mr. Neroni's case, but before it was affirmed on appeal.

The Amalfitano decision is unprecedented in its separation of powers and due process implications and will not be able to withstand scrutiny of the U.S. Supreme Court if the court accepts the case when it is finally decided.

Mr. Neroni is rightfully convinced that he is being currently prosecuted by 6 civil parties in what has turned into a criminal proceeding, because all they have is an alleged attempt to commit fraud, for reasons that the deeds in question, even though they were recorded, were never delivered, and thus the title to the deeds never passed and the alleged tort of fraud or fraud upon the court, or any other tort for that matter, never completed.  Once again, there may be, under any legal theory, only an attempted crime, not an attempted tort, because an element of any tort is an ACTUAL INJURY, not an ATTEMPTED injury.

What occurs now is that many judges in the State of New York, up to the highest in the state, blundered, and Mr. Neroni suffered as a result of that blunder, and nobody wants to admit to that blunder or correct it - because it will be (1) too much of an embarassment,  (2) nobody wants Mr. Neroni to return to practice and cut into the customer base of local attorneys affiliated with judges; and (3) Harlem Law Firm, a law firm of a former judge (now deceased) and his son wants their compensation at all costs - and it is my experience as an attorney lately that what a judge's relative wants in the State of New York, a judge's relative gets, no matter what the law says.

In its decision of January 22, 2015, the 3rd Department put their proverbial collective foot into their proverbial collective mouth even deeper by making the following statement regarding constitutional challenge to Judiciary Law 487:

In answer to Mr. Neroni's statement that the pronouncement by the NYS Court of Appeals that in a civil action for tort, a defendant may be charged for an "attempted tort" based on the criminal language of the statute, actually turned the civil portion of Judiciary Law 487 (mid-litigation for Mr. Neroni, and unlawfully) into a criminal statute, the 3rd Department simply applied circular logic and stated, essentially that if NYS Court of Appeals said something, it must be good and must stand:

"the Court of Appeals has made clear that '[t]he operative language at issue - guilty of any deceit - focuses on the attorney's intent to decive, not the deceit's success", and "accordingly", the 3rd Department rejected Mr. Neroni's arguments that such a pronouncement changed jurisdiction of a civil action under Judiciary Law 487 from civil to criminal.

Did judges who made this determination go to law school? Of course they did.

Do they know that there is no such thing as an attempted tort?  Of course, they do.

Do they know that the NYS Court of Appeals have no authority to CHANGE Judiciary Law 487 by interpretation? Of course, they do.

Does each and every judge in the State of New York, no matter at what level have the FIRST obligation to maintain the laws and Constitutions of the State and the United State?  Of course, all judges in the State of New York come to the bench based on their constitutional oath of office.

Does the State and U.S. Constitution (due process clause) override any inconsistent decisions ("precedents") of courts of any level, especially those made, as it was in Amalfitano v. Rosenberg, in excess of the Court of Appeals power?  Of course.

But, when NYS Court of Appeals focuses on the criminal "operative language" of a civil statute in claiming that somehow it created a possibility for civil plaintiffs to sue in civil court for what is clearly an attempted crime - and which is not sustainable under any tort theory - the 3rd Department obliged, and voila - 6 private parties may continue to prosecute Mr. Neroni for an attempted tort, based on set of facts that translate into a cause of action - interference with future prospect of inheritance - that New York does not recognize, see Vogt v Witmeyer,87 NY2d 998, 999 (1996).

BLUNDER # 3.   The court once again established unavoidable and irreconcilable conflict of interest and disqualification of plaintiffs' attorneys that should have resulted in dismissal of the case with prejudice, and failure to so dismiss the case can only be explained by bias and hatred of the court against Mr. Neroni, and the desire to please members of the judiciary and plaintiffs' attorney (son of a judge) in continuing to harass Mr. Neroni and drain his resources.  

The action was brought by attorneys representing plaintiffs and a defendant in the same action, attorney fees as the only damages in the case are unsustainable, and the whole case is frivolous.

On January 22, 2015, the 3rd Department confirmed that Mr. Neroni's former client the decedent was one of the alleged co-conspirators to commit fraud in Mr. Neroni's case:  "The trio (including Mr. Neroni's decedent client) concocted a plan...".  

By confirming that the decedent was a co-conspirator - and a proper co-defendant in the action Mokay v. Mokay - the 3rd Department confirmed what Mr. Neroni was saying all along, that the Harlem Law Firm representing both the plaintiffs who were allegedly defrauded BY THE "TRIO" including the decedent, and the Estate (the same as the decedent), forfeited attorney fees claimed as damages by such conflicted representation and not one penny should be awarded to them, as a matter of law.

Therefore, if the court actually holds a jury trial in this case on damages - and especially awards them (which appears to be a pre-judged determination already) - that will be a terrible waste of money for Delaware County taxpayers and a waste of time for the jurors, because as a matter of law the Harlem Law Firm, due to its own disqualification, is not entitled to one penny of , and the litigation that is brewing for 8 years and cost Mr. Neroni his license is FRIVOLOUS and is allowed by the courts to brew only to protect and enrich part of their own clan - the Harlem Law Firm.


BLUNDER # 4.  The 3rd Department keeps changing the New York State recording statute, for which action the court has no authority.  Once again, any 1st year law student who passed a mandatory Property Law course will tell you that the act of recording of a deed in a County Clerk's office creates a constructive notice to the public.

Whether the recording was done with publishing or no publishing option is irrelevant to the notice created.

The court has no right to CHANGE the recording statute to require that the deeds must be not only recorded, but also published.  Publishing is an option, not a requirement, for a reason.

Yet, in order to sustain an unsustainable and frivolous action against Mr. Neroni, the 3rd Department continues to insist in several appellate decisions in this case already, that proof of Mr. Neroni's alleged fraud and fraud upon the court lies in the fact that he recorded the deed, but recorded them with "No publishing" option, which is completely irrelevant under the applicable law.


BLUNDER # 5. Disqualification of a judge.  When a judge recuses from a related proceeding, he is no longer an "arbiter of his recusal" and must recuse from any other proceeding involving the same party.  

The 3rd Department pretended it does not know this due process rule in order to keep incompetent and biased Judge Dowd on the Mokay case, and to sustain its own unsustainable position of sticking to Mr. Neroni's (and my own) cases like glue after recusing from one of cases naming myself and Mr. Neroni's as parties.


BLUNDER # 6.  Portraying a party challenging judicial misconduct as a disgruntled litigant, while being a classic among judges, does not entitle the court to deny a proper challenge of judicial misconduct and disqualification on constitutional grounds.  

BLUNDER # 7.  The court engaged in side-stepping constitutional challenges.  The motion to vacate the summary judgment in the Mokay action was based on the challenge to constitutionality of Judiciary Law 487.  

The claim to disqualification of Judge Dowd was based on due process of law and defendant's constitutional right to a fair and impartial adjudication of claims pertaining to his livelihood and reputation.

There were multiple other constitutional issues raised in the Appellant's brief on this appeal.

Nowhere in the decision of January 22, 2015 will you find ANY references to constitutional challenges, or how they are resolved by the court.

This is the policy of "constitutional avoidance" in action.

Please, bear in mind that the motion for a constitutional challenge of Judiciary Law 487 was brought by Mr. Neroni in state court only after his federal lawsuit on the same subject (Neroni v. Becker) was dismissed on Younger abstention grounds (with sanctions and attorney fees), where the federal court explained to Mr. Neroni that the state court is allegedly competent to review and resolve his federal constitutional challenges.

Yet, Judge Dowd at the motion court level, instead of reviewing and resolving the FEDERAL CONSTITUTIONAL CHALLENGE to the statute, simply stated that what NYS Court of Appeals says must be right, and the 3rd Department on January 22, 2015 said the same.

Rubber-stamping the very precedent that is challenged as unconstitutional comes nowhere near the judicial review that Mr. Neroni was entitled to, and, naturally, Mr. Neroni has a right to proceed challenging constitutionality of Judiciary Law 487 up to the U.S. Supreme Court.

Yet, litigants in  federal courts whose cases are being dumped back into New York state courts on a presumption that state court can review and resolve their federal constitutional challenges, can clearly see that the state courts do not provide ANY review of federal constitutional challenges to state statutes whatsoever, instead unthinkingly rubber-stamping whatever the New York State Court of Appeals pronounces on the issue at hand, even if that same precedent is challenged as unconstitutional.

Maybe, if many people point this out to federal courts, federal courts will finally see the light with their pervasive dismissals of federal civil rights cases on the Younger abstention.

BLUNDER # 8.  The 3rd Department relied, in deciding the Mokay case, the disbarment of Mr. Neroni which was DERIVATIVE on the Mokay case - a clear impropriety and prejudgment.

This is a pure "chicken and egg" situation.  If the Mokay case falls, on any of Mr. Neroni's challenges, or after the trial, the disbarment must necessarily fall, as the decision on liability there was made without a hearing based on the partial summary judgment in the Mokay case (affirmed after NYS Court of Appeals changed Judiciary Law 487 through Amalfitano v. Rosenberg).

4th Department continues to play games with me

On January 12, 2015 I wrote the following letter to the Appellate Division 4th Department:

Today I received the following answer from the court:

The court continues to play games.

The court, in fact, has an obligation to make sure that the law is observed and that the referee gives me a hearing that the court ordered him to give me.

Nevertheless, the court now tells me that I will not get another referee - and the court-ordered hearing - unless I make a motion in accordance with (1) rules of court, (2) the illegal anti-filing injunction that the court already imposed upon me without notice or opportunity to be heard BECAUSE I filed with the court a request to disqualify that same referee, and supported my motion with the transcript with the referee's statement on record indicating referee's intention back in October of 2014 to grant prosecution's motion instead of conducting the court-ordered hearing, which is what the referee was appointed for.

That motion was denied without an explanation and with imposition of an anti-filing injunction, even though it was clearly supported by law and facts.

It is apparent that, under the circumstances, any motions on the same topic of referee's incompetence and misconduct are futile.  I will not be playing games with the court.  I will instead be patiently waiting for the referee to do what the court ordered him to do - to hear the facts and report them to the court.

In my previous post regarding judicial discipline, I provided a summary table where one of the judges, Arlene Brown, was forced to resign off the bench and not seek judicial office in the future because she failed to provide litigants opportunity to be heard in compliance with the law.

In my case, one of the judges on my disciplinary panel who repeatedly deny me due process of law in compliance with the applicable law and who engage in harassment such as this letter, was recently nominated to the New York State Court of Appeals.

Something else Mr. Bharara of the U.S. Attorney General's office prosecuting Sheldon Silver should, probably, look at.