A rule of Judge Ferris Lebous: when caught red-handed in an ex parte communication - attack the challenger

In the case Neroni v Harlem in Delaware County Supreme Court, Index No. 2011-547, my husband has sued Richard Harlem, his law partners, his law firms and his Mokay clients for fraud - based on their inconsistent statements between two courts, Supreme and Surrogate in the probate proceedings of the decedent Andrew Mokay.

Of course, since then, the inconsistent statements have grown many times, but at the lawsuit was contained to these two sets.

The now running from the office he sought so much Judge Carl F. Becker dismissed that lawsuit at the pre-answer stage, with sanctions against my husband and I for frivolous conduct - specifically, for invasion of privacy of members of a conspiracy to defraud a court, where all members of the conspiracy were either attorneys, or public figures working for the court system - a sitting Supreme Court justice, his law clerk and his secretary (in the future, his wife).  

Names of these people were Robert Harlem (the judge and father of Richard Harlem, Robert Harlem was also admittedly the mastermind of the frivolous 8-year-long Mokay litigation that becomes unglued after the ex parte secret trial as we speak), Robert Harlem's court secretary (and future wife, now widow) Irene Mann/Harlem, Robert Harlem's law clerk Dennis Dineen who now is still employed by the State of New York and paid by the taxpayers.

The lawsuit referenced open public records of the Otsego County Surrogate's Court, showing that what Richard Harlem and his father did in the Mokay litigation, defrauding my husband and several courts, was not an accident or mistake and that they've done it before and escaped unscathed.

Judge Becker has never been known as a good theoretician in law.  Neither was his law clerk.

That, combined with his hatred of my husband and myself, resulted in a stunning decision where he punished both of us for referencing open public records as evidence against the Harlem defendants and the Mokay defendants.  

Apparently, in Becker's view, referencing open public records was somehow invasion of privacy of retired judge Harlem, his wife (not a party to the proceeding) and his former law clerk (not a party to the proceeding).

The sanctions also showed an interesting side of the court-created rule of frivolous conduct - that judges have authority to protect individuals who are not both parties in litigation and not parties to litigation and thus become advocates in the proceedings.

The sanctions were imposed at the stage of pre-answer motion to dismiss where all statements of my husband (plaintiff in that action) were PRESUMED TRUE, and when all pleadings were supposed to be reviewed in the light most favorable to my husband.

Decisions on a pre-answer motion to dismiss are not deemed decisions on the merits.

Yet, Judge Lebous treated Judge Becker's decision as a decision on the merit, refusing to vacate it despite the fact that Judge Becker clearly exceeded his authority by sanctioning us for allegedly stating something untrue - when the law presumed the statements to be true - while dismissing the case without reaching the merits in the pleadings.

At the time he made the determination, Becker was a participant in the fraud that was alleged in the Neroni v. Harlem and was clearly disqualified from making any rulings.

When a judge exceeds his authority, an appeal is not necessary, an order made in excess of authority can be addressed by a simple motion to address lack of jurisdiction to make certain decisions.

That motion was made.

That motion was rejected by Judge Lebous on the basis of "collateral estoppel", as if the decision of Judge Becker was on the merits.

And it is clear WHY Judge Lebous fought so vigorously and un-valiantly to have us punished and to stick attorney's fees for fraudsters against us:

Judge Lebous, same as Judge Becker, same as Judge Dowd, engaged in ex parte communications with Richard Harlem's representative before he made his decision.

Of course, Judge Lebous tried to deny it by stating that his "chambers" were authorized to discuss "scheduling" with all attorneys.

Yet, when Richard Harlem's attorney provided a billing statement to the court, the billing statement did not indicate that the 12-minute (!) discussion with Judge Lebous' "chambers" was of scheduling.

Seriously, an attorney does not need to discuss "scheduling" with the judge's "chambers" twice, and especially at the time when the court's jurisdiction abated due to the death of that attorney's client (Robert Harlem - client of David Cabaniss) and when David Cabaniss lost authority to represent that client.

Moreover, discussing anything with the judge's personnel is an equivalent of discussing it with the judge himself - yet, Judge Lebous happily made a distinction in his order, stressing the work "chambers".

That means, for purposes of prohibition on ex parte communications, in Judge Lebous' view, that he can allow his personnel (including the law clerk who authors his decisions) to engage in ex parte communications - and then claim that he is free and clear and did not engage in the ex parte communications HIMSELF.

Of course, if the ex parte communications occurred through an agent of a judge, that did not make it any less improper than as if the judge did it himself.

Richard Harlem's attorney "explained away" the 12-minute communication with Judge Lebous' "chambers" by stating that he allegedly discussed with Judge Lebous' "chambers" certain scheduling.

Yet, at the time of the discussion, Judge Lebous had no authority to do anything in the case because at that point, one of the parties to the action (Robert Harlem) died, and his attorney David Cabanis was no longer his attorney, he lost his authority to represent anybody in the action until the substitution of Robert Harlem's estate into the action.

At the time of the ex parte communication, no such substitution was made, so no scheduling discussions could be held.

Moreover, the billing statements, submitted with an affirmation that they were true and correct and that they were "business records", did not require additional explanation (being "business records"), and clearly and unambiguously indicated that what was discussed was NOT scheduling, but was the MERITS of the case - which is within the core of the prohibition of the ex parte communication between judges and attorneys.

Of course, Richard and Robert Harlem's attorney David Cabaniss was caught, through his own billing statements, in ex parte communications not only with Judge Lebous' "chambers" - twice - but also with Judge Becker's "chambers", he talked with Judge Becker's "chambers" for 12 minutes on the day before the motion hearing.

Of course, Richard Harlem and his "trial counsel" James Hartmann were caught since then in ex parte communications with Judge Dowd's law clerk - who is authoring Judge Dowd's decisions and making and communicating e-mail orders for Judge Dowd.

If ANYBODY ELSE would be caught, repeatedly, in ex parte communications with judges in related actions - that attorney would be sanctioned and disciplined.

Not Richard Harlem or attorneys who he hires - because Richard Harlem very obviously has a special status in court, not only as a judge's son, but also as the landlord of many years for the influential Republican Senator James Seward - whose attention is now catered by Becker's buddy and aspiring successor Porter Kirkwood.

Yet, we have seen lately several people who were deemed "unsinkable" and yet who took a dive toward "early retirement"/resignation (Becker) or federal criminal charges for corruption (Silver and Skelos) because, very apparently, New York state does not recognize corruption in the government as a crime and assigns the New York State Attorney General to represent the corrupt officials instead of investigating and prosecuting them.

The feds are currently vigorously investigating corruption in New York State government.

I turned into the Federal Trade Commission the actions of John Casey, the disciplinary prosecutor of my husband AND of Richard and Robert Harlems, who sold his prosecutorial discretion in exchange for the right to have Richard Harlem and Robert Harlem as paying clients of his law firm.

By endorsing that deal by ordering my husband - and myself - to reimburse Richard Harlem for the bribe he paid to my husband's disciplinary prosecutor, after TWO ex parte communications with Richard Harlem's attorney and John Casey's law partner David Cabaniss  - Judge Lebous became a part of that federal crime of theft of honest services of a disciplinary prosecutor.

John Casey, partner of David Cabaniss, and, through that partnership, attorney for Richard Harlem - at the same time John Casey was supposed to investigate and prosecute Richard Harlem as a disciplinary prosecutor, on my husband's and my own complaint.

But once again - with all the support from the former disciplinary prosecutor, with all the support from the law firm Hiscock & Barclay employing NY Senator Neil Breslin, with all the support of Richard Harlem's landlord NY Senator James Seward, relying upon support of a New York Senator may prove imprudent, in view of suddenly rising statistics of NY Senators being charged and indicted for corruption by the feds.

So,  if I were Richard Harlem, I would not be that secure in the feeling that he is "unsinkable" because he is backed up by James Seward and by the law firm of Senator Neil Breslin...

Being backed up by a New York Senator may prove feeble protection these days...

As to Judge Lebous - an appeal will show just how correct Judge Lebous was in deeming his "chambers" as being separate from himself for purposes of ex parte communications, and I wonder what would the feds and the NYS Commission for Judicial Conduct will say about confirmed ex parte communications between Judge Lebous' "chambers" (as well as Judge Beckers, and Judge Dowd's) with Richard Harlem and his hired hands.

On the other hand, at the background of Judges Becker, Lebous and Dowd who were caught in ex parte communications and retaliated for being caught through court cases,  Judge Christopher Cahill of the Ulster County Supreme Court who "only" threatened to turn me into the disciplinary committee for challenging him on the spot as soon as he completed an ex parte communication with the opposing counsel Dolores Felice (Delice) Seligman of Kingston, NY, but recused from the case - seems nearly as a paragon of virtue (even though the NYS Court Administration destroyed court camera footage of Judge Cahill's misconduct in order not to give it to me on a FOIL request).

Well, well, well...  Aren't we all in the judicial system feeling insecure when we are confronted with a clear EVIDENCE of misconduct...

Judge Lebous' decision in trying to make a "distinction without a difference" between ex parte communications with "chambers" vs. himself surely qualifies (in my opinion) as such insecurity.