"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.

Monday, January 26, 2015

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


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
16 Misc.3d 1051, 843 N.Y.S.2d 749 (2007)

 Here is a table with a fuller description of issues:

The applicable law
The record of Mokay
How the courts ruled so far


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

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
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
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

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

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

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

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

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

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

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

Contract to make a will
Must be in writing
In decedent's divorce action, such a contract was oral and unenforceable

Opting out agreement in a divorce action pertaining to equitable distribution

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
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

Forfeiture/disgorgement of attorney fees in a 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
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

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

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