Wednesday, February 4, 2015

There is no effective legal remedy in New York to stop an appellate court from engaging in an unlawful conduct


I have a problem, for which there is no legal remedy in New York - or on the federal level, for that matter.

And since I am sure that not only I have such a problem, but many litigants, but it "escapes judicial review", for lack of an appropriate remedy, I believe that New York State legislators need to look into creating such a legal remedy, because it is a due process violation for a state not to provide a legal remedy for injuries, especially for injuries involving violations such a fundamental constitutional right as access to courts.

On June 11, 2014, by an ex parte order, the New York State Appellate Division 3rd Judicial Department recused from a case where I was a party.

When a court recuses from one case of a party, it must recuse from all other cases where that party appears.

The 3rd Department refused to recuse from several other appeals pending before the court where I was a party or an attorney, and so far granted three appeals against me in cases where it should have recused and is arbitrarily denying me consolidation of large records on two more appeals, thus harassing me and causing me stress and financial loss.

Usually consolidation of appeals with large records and similar issues is liberally granted.

Appellate Division 3rd Department bent over backwards for attorney (and former judge, now deceased) Robert Harlem and his son Richard Harlem when it dragged a perfected appeal from the court calendar set for oral argument and consolidated it with an unperfected appeal on request from Robert Harlem and Richard Harlem, in violation of its own rules.

Yet, when I asked consolidation in the same case Mokay v. Mokay of two appeals, from a denial of a motion to vacate and from an award of attorney fees stemming from the same decision denying motion to vacate, consolidation was denied to me without any explanation, in violation of my due process right to a reasoned decision by the court.  A denial of consolidation means redoing the record and filing two $315.00 fees instead of one to perfect the appeal.

Similarly, a consolidation was denied in yet another case where the Delaware County Supreme Court, Judge Tormey, after NOT reading the underlying court cases before dismissing my lawsuit against an attorney who defamed and defrauded me (it is an established fact that Judge Tormey did not even sign out the court files to read them before he made his decision).

I appealed both the dismissal and award of attorney fees based on the dismissal.  Naturally, these two decisions came months apart.  Naturally, the records are connected and issues are related.  Naturally, this is a usual ground for consolidation.

I delivered a HUMUNGOUS record taking the entire back of a large station-wagon car to the court, along with a large heavy-duty carrier, THREE times:

(1) the first time on November 4, 2014, on the deadline of perfecting the appeal - but the court was closed for election day when majority of people were working;

(2) the second time the next day, November 5, 2014, when the record was accepted by the court, together with the filing fee - which has not been returned until now, even though the record was returned a couple of days ago - once again;

(3) the third time I redelivered the REDONE record on December 10, 2014 when I made corrections to the record in accordance to the directives of the court, even though required corrections were not required by the court rules and even though the court returned the record on a pretextual basis that I did not include certain required statements into the record, while such statements were in fact in the records with blue-and-red date-stamps of the court of November 5, 2014;

(4) the fourth time I will have to REDO the record once again when the court denied me, without an explanation, my motion to consolidate and the record was dumped on my porch for the second time - while the money for the filing fee was not returned.

The attorney involved in the last described action is a justice in a local justice court.  The attorney representing respondents in the Mokay action is a son of a judge.

For these people, rules of the Appellate court and rules of law are bent and broken and for me, their opponent, additional rules, rules increasing my stress, financial exposure, physical strain and exposing me to pure harassment, are created on the spot.

What remedy do I have for that? None under the law.

1) NYS Commission for Judicial Conduct is a glorified shredder of complaints against judges and courts dismissing without an explanation practically all meritorious claims it receives, and the person who filed the complaint has no standing to contest that;

2) Article 78 under the CPLR providing for a writ of mandamus against judges, does not provide for a writ of mandamus against appelllate judges and courts;

3) New York State Court of Appeals, the court higher than the Appellate Division, has a limited jurisdiction that does not include writs of mandamus against the Appellate Division;

4) suing in federal court is precluded by judicial immunity and by the section in the 42 U.S.C. 1983 (the Civil Rights Act) that does not allow lawsuits against judges in their official capacities.

And - since no legal remedy exists against Appellate courts, appellate courts can do with you whatever they want.  Which is a clear violation of due process of law of litigants in such courts. 

And such a lack of remedy should be legislatively cured.

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