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