The "relaxed" rule of law in upstate New York courts...

A reader asked two questions on Avvo.

Avvo is an attorney rating website where anybody can rate any attorney's performance and/or ask legal questions that willing lawyers registered with Avvo answer, if they can and wish.

So, once again, a reader asked two questions on Avvo pertaining to legality of a judge's actions.

Question # 1

I already raised this question in my blogs pertaining to the case O'Sullivan v Bowie, Delaware County Index No. 2014-911, where the judge accepts motions from a police officer sued in his individual capacity for misconduct (vehicular assault) and where the police officer is not an indigent.

There, not only the fee was waived by the Delaware County Supreme Court (County Clerk Sharon O'Dell, presiding judge John F. Lambert, court attorney Mark Oursler, see my blogs about him and what he is doing /or not doing/ during court conferences here - and it was Mark Oursler who refused to put on record, despite my request, a court conference in a case where attorney Andrew Van Buren, political supporter of Judge Becker, was verbally harassing me, thus preventing me from having evidence of that harassment), but Mark Oursler, reportedly, made it his business to call people in charge of the Delaware County building at 111 Main Street and brokered for a rent-free room so that Derek Bowie's attorney could have a deposition at the building, at the County taxpayer's expense - and that is after the audit by the NYS Comptroller that already pointed out tremendous waste by Delaware County officials. 

 Remember, two of Delaware County officials, County Attorney Porter Kirkwood who ok'd the rent-free depositions, and the District Attorney Richard Northrup who employs Derek Bowie's uncle Jeff Bowie and refuses to prosecute Derek Bowie for vehicular assault and attempted murder of Barbara O'Sullivan ( a critic of judicial misconduct) while instead unlawfully prosecuting Barbara O'Sullivan for a made-up crime where Derek Bowie is an alleged witness, are currently running for two judicial seats in the upcoming Delaware County elections.

This is what attorneys answered on Avvo to the question above - whether a filing fee must be paid before the Order to Show Cause is signed:

So, the law is:  no, the motion filing fee must be paid and the Order to Show Cause must be filed with the County Clerk (instead of being sent directly to the judge's chambers without paying any filing fees), and a judge in a New York court simply cannot sign an Order to Show Cause without such a filing and without a fee, unless (as to the fee only) the litigant asking for such signing is an indigent (which should be separately established).

Of course, Derek Bowie is not an indigent, of course, no application for the Order to Show Cause was filed (because the County Clerk immediately scans all filings, and nothing appeared in the record when the application for the Order to Show Cause to undo the default of Derek Bowie was made), and the filing fee was still waived, the Order to Show Cause was still signed by Judge John F. Lambert, heard without proof that it was properly served, and granted, and a motion to vacate that decision because it was unlawfully made was denied by Judge Lambert, raising questions of applicability of the rule of law in Delaware County (especially to critics of judicial misconduct suing police officers for crimes pertaining to citizen safety), as well as to competence and impartiality of Judge Lambert.

Question # 2

Several answers were posted to this question by NY-licensed attorneys.

The answer by the attorney Terry Horner of Poughkeepsie, NY, floored the reader who reported the answer to me.

Note that all three answering attorneys indicated that what the judge did was wrong.

One of the attorneys stated that such conduct by a judge is grounds for mistrial.

Another stated that an attorney may have no choice but to proceed if the judge wants to disregard the failure to file a note of issue.

Yet another stated that such a failure may happen because cases get "procedurally confused" when "a computer puts" the cases on the trial calendar with the trial Note of Issue filed and served.  So, now computers, not people, put cases on trial calendars - and computers are to blame for procedural violations.

Attorney Terry Horner, though, took the bull by the horns (no pun intended) by stating that "procedure upstate is, shall we say, more relaxed than in Southeastern NY".

That is another way of saying that such violations by upstate New York judges are to be expected, which prompted the reader to make the following comment:

I do not think any attorney in New York can, in good faith, say the "Wild West" comment was not true...