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.

What were the other 300+ complaints for and how were they resolved by the NYS Commission for Judicial Conduct

On January 15, 2015 I received two dismissals of my two meritorious complaints of judicial misconduct, described here and here.

Here they are:

The only differences between these letters are:

(1) dates of filing of the complaints - April 2, 2014 (complaint against Judge Cahill) in the 1st complaint and November 17, 2014 as to the 2nd complaint (complaint against Judges Coccoma, Mulvey, Cahill), and

(2) file numbers.

Otherwise the letters are identical and constitute form letters that the Commission uses to toss citizens' complaints of judicial misconduct, no matter how meritorious.

What caught my attention were these file numbers.

I filed complaints in 2014 against several judges, but my complaints were surely in the single digits.

The file numbers of the complaint filed in November of 2014 were 327-329 (Judges Coccoma, Mulvey, Becker).

Where did the remaining 320 complaints come from and for what?

If a person is sued in civil court for any perceived wrongdoing, or if a person is charged with a crime and is still covered with presumption of innocence, the news is still all over the Internet and are not withdrawn even if criminal charges/civil lawsuits are dismissed.

What we are talking about here is a matter of grave public concern, of 329 complaints filed with the New York State Commission for Judicial Conduct by November 17, 2014 - and only 12 decisions of discipline rendered in the whole year of 2014, a whopping 3.6% prosecution rate.

Apparently, all other complaints were frivolous?

If those complaints were like mine - which were supported by documentary evidence and affidavits of witnesses - it is high time for the feds to turn their eyes to what is going on in the NYS Commission for Judicial Conduct.

Do not expect the Legislature to act and introduce legislation making such proceedings transparent, efficient and allowing members of the public (instead of attorneys and judges) to be the judge of what constitutes judicial misconduct.

There are several senators on the Legislature (such as Senator Breslin and Senator Nozzolio) who are employed (same as Sheldon Silver was) by law firms whose partners are hearing officers in the Commission for Judicial Conduct - which creates a huge appearance that the Commission tosses complaints in order to gain favors from judges by members or potential hearing officers of the Commission who decided not to prosecute certain judges after all.

I already described in this blog the controversy when Attorney Stephen R. Coffey of O'Connell and Aronowitz, PC was the Vice-Chair of the Commission for Judicial Conduct and reviewed, as part of the Commission, my complaint against Judge Becker for conduct where Stephen R. Coffey himself ws involved as an attorney.  By the way, the Chief Judge of the Appellate Division Third Judicial Department Karen Peters was on the Commission at the time of the complaint against Judge Becker and against her own court, too.

Neither one of them resigned from reviewing the complaint against Becker, even though:

(1) Stephen R. Coffey was disqualified as a participant in the events complained about; and.
(2) Karen Peters was the Chief Judge of the court that was to hear my appeal from sanctions imposed by Becker that were subject of the complaint, and
(3) Karen Peters was the Chief Judge of the Court that was subject of my other complaint filed in the fall of 2009 when the Appellate Division 3rd Department resolved a case based on the opposing counsel's testimony during oral argument outside of the Record on Appeal, a clear judicial and attorney misconduct that the 3rd Department had the audacity to document in a separate footnote as the basis for its decision.

The complaints were dismissed by the Commission where members were clearly disqualified by conflicts of interest, both Karen Peters and Stephen Coffey disappeared from the Commission after that, but (1) I was sanctioned by Judge Becker for raising these issues in a motion to recuse and am now in the middle of a disciplinary proceedings BECAUSE I raised this potential corruption as an issue; and (2) sanctions against me imposed by Becker were affirmed by Karen Peters' court while Karen Peters' court ignored a whole transcript showing an ex parte communication between Judge Becker and then Delaware County Attorney, Becker's former boss of 27 years (not to mention that the Plaintiff was Becker's undisclosed personal friend) and refused to punish attorney Stephen R. Coffey for disclosing without permission of the sentencing court sealed pre-sentencing report of a party.

To any impartial and reasonable observer the "appearance of impropriety", to put it mildly, was staggering, but, since there is no accountability and since large law firms, judges complained about to the Commission for Judicial Conduct and the Commission itself are joined through employment and fraternity ties, the only result is that all complaints against judges are quietly and "confidentially" tossed and critics of judicial misconduct (like me) are persecuted and their livelihood is threatened or eliminated.

I return to my question - who were the judges against whom complaints were filed, what were the complaints and why such a low percentage of filed complaints are prosecuted and brought to discipline by the Commission of Judicial Conduct in New York?

Here is a summary table of dispositions imposing discipline by the Commission of Judicial Conduct in 2014.

No.	Name of Judge		Name of Court	Is the judge an attorney? Y/N	Judicial Discipline	Reason for discipline	Public attorney discipline? Y/N
1		Ackerson, Richard H.	Suffern Village Court, Rockland County	Yes, year of admission 1967, educated at private Rutgers Law School	Resigned from the bench on a stipulation not to seek judicial office in the future	Suffering from a medical condition that interfered with his ability to perform the duties associated with his judicial office	None The question is – if Mr. Ackerson cannot discharge his judicial office, how can he work as an attorney?
2		Blaine, Robert J.	Prattsville Town Court, Greene County	No	Resigned from the bench on a stipulation not to seek judicial office in the future	An audit Of the court by NYS Comptroller found multiple  financial irregularities in the court accounts and insufficient oversight By the judge over court clerk	N/A
3		Brown, Arlene M.	Bennington Town Court, Wyoming County	No	Resigned from the bench on a stipulation not to seek judicial office in the future	Allegations of lack of integrity, impartiality, conflicts of interest, failure to disqualify herself when her impartiality could reasonably be questioned, failure to afford parties opportunity to be heard as required by law	N/A
4		Burke, Edward D. Sr	Southampton Town Court, Suffolk County	Yes, 1969, private St. Hohn's Law School	Censure	Rode in a police car With a defendant after arraigning him, recommended that he hire an attorney who was the judge's business partner, gave the defendant legal advice and thereafter presided over his case;  used his judicial title to promote his law firm and business; imposed  fines that exceeded the maximum authorized by law; made improper political contributions	None, continues to practice as a partner in his own law firm Burke & Sullivan PC
5		Crandall, Philip A.	Coeymans Town Court, Ravena Village Court, Albany County	No	Resigned from the bench on a stipulation not to seek judicial office in the future	Improperly intervened into and granted a lenient disposition to friend's son, friend was member of Coeymans Town Court Board;  failed to disqualify himself from his brother-in-law's case and granted a lenient disposition to b-i-l; failed to disqualify himself from the speeding ticket case of a member of Coeyman Town Board who determined the judge's salary; intervened into and invoked his judicial office in a police dispute with his daughter and son-in-law	N/A
6		Gumo, Richard L.	Delhi Town Court, Walton Village Court, Delaware County	Yes, 1967, Brooklyn Law School	Admonition	Attempted to intervene into appeal from a criminal case where he presided as an advocate, citing to evidence outside the record in a letter to appellate judge, failed to disclose that court clerk's daughter was the main witness of the prosecution	None
7		BARRY KAMINS	Supreme Court, Queens County	Yes, 1969, private Rutgers Law School	Resigned from the bench on a stipulation not to seek judicial office in the future	Giving, through e-mails from official court e-mail account,  inappropriate political campaign advice to the District Attorney Hynes while being administrative judge of criminal courts	None
8		Donald G. Lustyik	Norfolk Town Court, St. Lawrence County	No	Admonition	Lent the prestige of his Office to Advance private Interests by Witnessing a Written statement Using his Judicial title In a matter unrelated to any matter pending in his court.	N/A
9		Robert P. Merino	Niagara Falls City Court, Niagara County	Yes, 1973, Cleveland State Univ. School of Law	Admonition	Compromised a Spanish-speaking tenant's right to be heard by failing to appoint an interpreter	None
10		William E. Montgomery	Colden Town Court, Erie County	Yes, 1983, California Western	Resigned from the bench on a stipulation not to seek judicial office in the future	Facilitated The filing Of a designating Petition for His candidacy For elective Judicial office That was Falsely notarized And thereafter neither refused the nomination nor withdrew his candidacy; arraigned a defendant on alcohol-related charges, then drove her home and continued to preside on her case till disposition	None
11		Andrew Norman Piraino	Salina Town Court, Onondaga County	Yes, 1983, private Albany Law School	Censure	Imposed fines/surcharges which either exceeded maximum amounts or were below the minimum amounts, and failed to supervise court clerks	None
12		Domenick J. Porco	Eastchester Town Court, Westchester County	Yes, 1977	Resigned from the bench on a stipulation not to seek judicial office in the future	Did not sufficiently oversee and approve dispositions in traffic cases	None

Overview of the table shows the following:

Out of 12 judges disciplined in 2014, only 1 was a judge of a court higher than the level of the justice court - Barry Kamins of the Queens County Supreme Court who was caught in using official court e-mail in giving political campaign advice to the district attorney and discussing potential political statements of a defense attorney to members of attorney's religious congregation.

Out of 12 judges disciplined in 2014, 8 were licensed attorneys - Ackerson, Burke, Gumo, Kamins, Merino, Montgomery, Piraino, Porco.

Out of 4 non-attorney judges disciplined in 2014 (Blaine, Brown, Crandall, Lustyik), 3 were taken off the bench and one received an admonition, that is 75% rate of taking off the bench for non-attorney judges disciplined in 2014.

Out of 8 attorney-judges disciplined in 2014, 4 judges were taken off the bench, 2 were admonished and 2 was censured, that is 50% rate of taking off the bench of attorney judges disciplined in 2014.

Ackerson  -               resigned
Burke       -                censured
Gumo       -               admonished
Kamins    -                resigned
Merino     -                admonished
Montgomery  -          resigned
Piraino  -                   censured
Porco   -                    resigned

The most interesting case of discipline in the table is the case of Judge (attorney) Burke.  Judge Burke's law firm made $7,500 in political contributions that the judge (or his firm) had no right to be making, as a sitting judge may not be engaged in political activities.  Moreover, the judge rode with a criminal defendant in a car, recommended his business partner for defendant as defendant's counsel (and defendant did hire Judge Burke's business partner as counsel), advertised on the website of his law firm his virtues as a judge and thus presented to the public that he is getting business out of his public office.

For all of that - censure?  And no attorney discipline?

I guess, campaign contributions, inappropriate as they were, worked after all.