"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, June 12, 2014

The Mokay saga - should Mr. Neroni be legitimately upset that he was disbarred without a hearing because of this farce?

Since my husband has been badmouthed in many court decisions as a "disbarred and disgruntled former attorney", I believe it is time for me to start publishing what were the real reasons for his disbarment, and the real reasons have nothing to do with the law, but has everything to do with these irrelevant factors:

(1) it is my opinion that my husband was targeted because he is the so-called "deep pocket defendant";

(2) and it is my opinion that my husband was sought out to by politically connected attorneys for purposes of unjust enrichment.

I must stress that the case based on which Mr. Neroni lost his license without a hearing, is not finally resolved until now, the issue of damages is still outstanding, and, if decided in Mr. Neroni's favor by the jury, the case will have to be dismissed, yet, Mr. Neroni was disbarred without a hearing by application of collateral estoppel to a non-final decision on liability in a still ongoing case.

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Mr. Neroni has lost his license, after 37 years of practice and without a hearing, because of a partial summary judgment in the case Mokay v. Mokay, Neroni, Delaware County Index No. 2007-695 brought, initially, by 5 adult children of Mr. Neroni's deceased client, then the Estate of the deceased client was also joined as a plaintiff.  All plaintiffs were represented by the law firm Harlem & Harlem which at some point was transformed into Harlem & Jervis.  Harlem & Harlem belonged to the retired Supreme Court Justice Robert Harlem (who was also the former Chief Administrative Judge of the 6th Judicial District) and his son attorney Richard Harlem.

The allegations in the complaint were in the nature that Mr. Neroni interfered with the deceased children's prospective right of inheritance as per the judgment of divorce between the deceased and his former wife where the deceased pledged to make a will bequeathing two pieces of real estate to the children.

Instead, the deceased married, had Mr. Neroni draft deeds for those two properties from himself into himself and his new wife, and made a general revocable will bequeathing his entire estate to his children.

Before the Mokay litigation started, the 5 children submitted both the contract to make a will from the divorce action and the "improper" revocable will to the Delaware County Surrogate, Judge Carl F. Becker, and Judge Becker has authenticated the "improper" revocable will out of the two testamentary documents offered to him.

After authenticating the "improper will" in the Surrogate's Court proceeding where the Estate was represented by Richard Harlem, his father and their law firm,  Richard Harlem accepted representation of the children and sued Mr. Neroni for fraud and fraud upon the court, but the allegations of the complaint were clearly accusing Mr. Neroni of interference with the children's prospective right of inheritance.

There is no cause of action in New York for interference with prospective right of inheritance, and no matter how that non-existent cause of action is re-hashed under and worded under existing causes of action, the nature of the complaint is still interference with prospective right of inheritance, and the claim is non-justiciable in New York.

That did not deter Richard Harlem or Robert Harlem.

It did not deter Richard Harlem or Robert Harlem that the deeds were never delivered to the decedent's new wife, there is no proof of that in the record, and the Appellate Division did not make a determination that the deeds were delivered, in fact, the Appellate Division has skipped this focal issue of litigation entirely and did not enumerate the delivery of the deeds in the list of Mr. Neroni's alleged wrongdoings

Any 1st year law student who wants to become a 2nd year law student knows that without delivery of the deed, title does not pass, even if the deed is recorded.

Without such proof, the judge who decided the summary judgment, Judge Molly Fitzgerald of Binghamton, New York, usurped the function of the jury and exceeded her authority to make a finding of a material fact on a motion for a summary judgment where no proof of such fact was provided.

The Appellate Division said nothing about the deed being recorded by Mr. Neroni.  Thus, no title passed and there was nothing to sue Mr. Neroni for, especially that the nature of the lawsuit was based on the non-existing cause of action, tortuous interference with prospective rights of inheritance, which was rejected in New York both before and after Mr. Neroni's disbarment - in 1996 when the referenced case was decided and in 2012 when the case that cited it was decided.

Yet, the litigation continues for 7 (seven) years, is still ongoing and has already cost Mr. Neroni his law license.

It gets merrier.

When disbarring Mr. Neroni, the Appellate Division indicated that Mr. Neroni acted in collusion or conspiracy with his deceased client in order to deprive the deceased client's children of their right to prospective inheritance, in violation of a court order in the judgment of divorce.

1/ there is no cause of action to sue for interference with a right to prospective inheritance in New York;
2/ the applicable domestic relations law statute, DRL 236(b)(3), requires that all opting out agreement be entered into in writing and during the marriage, thus, oral statements on record do not qualify under the statute;
3/ the children authenticated the "incorrect" will in the Surrogate's Court before going to the Supreme Court to enforce the contract to make the "correct" will;
4/ the deeds in question were never delivered and thus the title did not pass to the widow and there was nothing to discuss, the Estate attorneys Richard and Robert Harlem could simply ask the Surrogate to declare the rights regarding the title for the two properties because there is no proof that the deeds were delivered, and that would have been the end of it.

But, such an outcome would have been too quick, too easy, and would not have allowed Richard and Robert Harlem to claim legal fees as damages under Judiciary Law 487 in the Supreme Court.

So, Robert Harlem claimed in a writing to the court that the firm put together wall of its existing "horsepower" and filed a lawsuit on behalf of the 5 children of the deceased.

The case was initially assigned to Judge Michael V. Coccoma who recused.

The case was then assigned to Judge Elizabeth Garry, who made no effort to verify whether the deeds were or were not delivered, but the widow at that time agreed to put the deeds into the Estate.

Richard Harlem argued on record that the Estate of the deceased has nothing to do with the lawsuit, that the lawsuit was brought only by the five children of the deceased who were enforcing their deceased father's contract to make a will as third party beneficiaries under the contract.

Richard Harlem then filed an appeal of Judge Garry's decision complaining of placing the two properties into his own client the Estate which was not at that time part of the Supreme Court litigation.  That was a direct conflict of interest requiring immediate disqualification of Richard Harlem and his law firm, with sanctions, from both Supreme and Surrogate's court litigation, with disgorgement and forfeiture of legal fees in both litigations but courts refused to see the conflict.  That was in December of 2007.

In January of 2007, while the appeal of the children complaining of placing the title into the two contested properties with the Estate was still pending, Richard Harlem and his father made a motion to join the Estate as a party plaintiff, and the new judge on the case, Judge Molly Fitzgerald who was assigned after Judge Garry was appointed to the Appellate Division, granted the motion over objection of Mr. Neroni.

The theory of plaintiff children's did not change.  It was enforcement of a contract to make a will.   Enforcement against whom?  Must be against their father who breached the will.  The father was not brought in as a defendant though because of an obviously sticky issue that the father's estate was represented by plaintiff's own counsel.  Yet, the complaint alleged, not in that language, but in that meaning, that the deceased father of the children breached the contract to make a will and that Mr. Neroni helped him do it and, thus, the deceased was a party defendant in the Supreme Court litigation.

The Appellate division confirmed this understanding by claiming that Mr. Neroni acted in collusion with the decedent to violate the children's rights.

If the decedent was a de facto party defendant through his collusion with Mr. Neroni to violate decedent's children's rights (for a prospective inheritance, obviously), which rights they are trying to vindicate through an enforcement lawsuit, then 

(1) the decedent's Estate could not be joined as a party plaintiff;
(2) the children and the Estate of the decedent could not be represented by the same attorneys;
(3) the attorneys in a representation of 5 party plaintiffs and one party defendant in the same action had an irreconcilable conflict and were not entitled to any attorney fees, as straight fees or as damages in the action.

There are also sticky issues that:

(1) one of Richard Harlem's clients in the Mokay case, the decedent's son David Mokay, sued the Estate in the Delaware County Surrogate's Court for alleged wrongdoings of his father and breach of promise regarding the third piece of real estate that landed in the hands of David Mokay's sister and co-plaintiff in the Mokay action, put a lien on the Estate, and Richard Harlem opposes the lawsuit on behalf of the Estate;
(2) the Estate evicted David Mokay from one of the properties contested in the Mokay litigation;
(3) David Mokay was convicted in Meredith Town court for assault upon his sister's husband during a dispute regarding the pre-sale clearing of one of disputed properties.

How can Richard Harlem continue to represent David Mokay, the Estate and David Mokay's sisters involved in related property disputes and criminal proceedings?  Does Richard Harlem believe that the rule of law is not applicable to him, instead the rule of connections is?

In other words, the Mokay case is litigated for 7 years based on a non-existent cause of action, with no proof that the deeds were ever delivered and thus that Mr. Neroni did anything wrong, where the children authenticated the "wrong"  testamentary document before they moved to another court to enforce the "right" one, and while the only damages claimed in the action are legal fees of politically connected attorneys who represent parties on both sides of the caption and are not entitled, if the law is applied as it should be, to one penny in legal fees.

And this is the case which has cost Mr. Neroni his license, without a hearing, after 37 years of practice and with the jury trial on damages still outstanding and delayed so far twice by the plaintiffs because a month before the scheduled trial date their trial counsel invariably gets sick and the trial is adjourned over Mr. Neroni's objection.

Why is Richard Harlem not disbarred for his shenanigans in the Mokay case when any non-politically connected attorney would be?

The reason, in my belief, is the same as why Richard Harlem and his father were not disbarred after their shenanigans in the Blanding case in 2000 and in 2011 when  Mr. Neroni and I turned him and his father into the Committee for Professional standards for their misconduct in both Mokay and Blanding cases.

The answer, in my belief, is - Connections.

Richard Harlem is the landlord of New York Senator James Seward.

Richard Harlem is the son of a retired Supreme Court justice.

Richard Harlem is represented by the law firm Hiscock & Barclays, LLP, where John Casey , the member of the Professional Conduct Committee at the time of our complaints about Richard Harlem and Robert Harlem, was and still is a law partner.

Hiscock & Barlcays, LLP, embraced another subject of John Casey potential prosecution, M. Cornelia Cahill, wife of New York State Court of Claims judge Richard Sise, at around the time when she was turned into the professional conduct committee for her role in the school pensions scandal, so the law firm builds its client base and partnership base on attorneys rescued instaed of prosecution by John Casey. 

Hiscock & Barclays, LLP  employs another New York State senator, Neil Breslin.

The Harlems were untouchable because of their pedigree, political status and political connections.  Richard Harlem remains untouchable by attorney discipline to this day.

The brief summary of this farce is:

  • there is no legitimate cause of action underlying the plaintiffs' Mokay case;
  • since the deeds were never delivered and the title did not pass, the contract to make a will was not broken, so there was nothing to sue Mr. Neroni for;
  • the contract to make a will was forfeited by the children by authenticating the "improper will" before the Mokay case was brought;
  • the politically connected attorneys who represent in the Mokay case the children and the Estate which, according to the children's Complaint is a confirmed de facto defendant, are not entitled to one penny in legal fees while the entire case is based on the claim of legal fees as damages

Multiple judges in multiple courts reviewed these same issues.

The applicable law is clear and it is clearly on Mr. Neroni's side. 

Yet, Mr. Neroni remains disbarred and bad-mouthed by various courts as a "disgruntled disbarred former attorney", stripped of his right to earn a livelihood, share his wisdom and help many people, whether for a fee or for free, as he did for years, Richard Harlem remains an attorney and the Mokay case proceeds.

So much for the rule of law.

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