Does it matter who is standing in front of the court when the court decides the issue of standing? In NYS Appellate Division 3rd Department, it does.

On December 13, 2012 the NYS Appellate Division Third Judicial Department decided a case O'Sullivan v. Hallock.


One of the defendants in that civil court case between private parties, siblings, for the allegations of wrongful death of their father and fraud in connection with the estate of their father, was Peter Bracci, political supporter of Delaware County Judge Carl F. Becker, the then Supervisor of the Town of Delhi and the then Supervisor in the Delaware County Board of Supervisors of the Department of Social Services, Judge Becker's pet and client of 27 years.


Another defendant, Mary Bracci Hallock, was Judge Becker's former client herself.


Representing the defendants was the then Assistant Delaware County Attorney (and now the Delaware County Attorney) Porter Kirkwood who was seen engaging in conversations behind the courthouse with Judge Becker during the pendency of the O'Sullivan v. Hallock proceedings.


Porter Kirkwood was at that time a full-time employee of Delaware County and represented these private defendants in court on county time.


It is the same Porter Kirkwood who appears in front of Judge Becker on behalf of the County in child neglect and abuse cases in Delaware County Family Court.


It is the same Porter Kirkwood who, according to witnesses and federal court litigation, controls access of citizens to their own files in Delaware County Family Court and to the files of applicants for gun licenses, something that Porter Kirkwood cannot control but which he nevertheless controls.


Carl F. Becker nonchalantly presided over the case where he had glaring conflicts of interest and ruled that Barbara O'Sullivan has no standing to sue because she was not the executor of her father's estate.


Admittedly, Barbara O'Sullivan was not the executor of her father's estate when she sued.


Nevertheless, Porter Kirkwood who represented Barbara O'Sullivan's siblings, neglected to raise the issue of standing in his pre-answer motion to dismiss or answer, and thus, under the existing New York State law, waived the issue.


Judge Becker rescued a paying case for his former colleague, subordinate attorney and, apparently, friend, by dismissing Barbara O'Sullivan's case for lack of standing where the issue was obviously waived through the neglect of Porter Kirkwood as an attorney.


The Appellate Division affirmed Judge Becker's dismissal on the grounds of standing.


That was on December 13, 2012.


On July 3, 2014 that same Appellate Division 3rd Department reversed the decision of Judge John F. Lambert, of the same Delaware County Supreme Court, on the same issue of standing.


In its decision, Town of Delhi v. Telian, the Appellate Division correctly stated that the issue of standing is waived unless raised in an answer or pre-answer motion to dismiss, which the respondent allegedly failed to do.


Of course, the difference was that, according to the federal lawsuit filed by Mr. Telian on July 29, 2014 in the Northern District of New York, Mr. Telian was not the record owner of the property in question and could not possibly be sued for filing to obtain building permits, on that property so Judge Lambert was indeed correct in dismissing the action - even though the dismissal would be not for lack of standing, but for failure to state a claim.  The Appellate Division could, in its own discretion, dismiss that case as against Mr. Telian, for failure to state a claim, even if Judge Lambert did not dismiss it on that particular ground, simple as a matter of justice, due process and judicial economy.


Instead, the Appellate Division reversed Judge Lambert's dismissal and remanded the case for consideration of a motion for a summary judgment against Mr. Telian, a completely frivolous motion in view of the fact that Mr. Telian was not the owner of the property in question.


Now - the Appellate Division follows the law of standing, to a fault, when somebody who is attacking a judge's friend is involved.


The same Appellate Division would not follow that same law when following it would expose that same friend of that same judge to an embarrassing lawsuit.


Why am I not surprised?