The latest interesting news are that - after 8 years of litigation of a completely meritless case, the six plaintiffs got a $156,290 judgment against themselves.
The case started in Delaware County Supreme Court in June of 2007.
A partial summary judgment on liability was made in 2008.
In 2009, the New York State Court of Appeals allowed to charge attorney fees as damages in litigation.
In the Mokay case, the ONLY items charged as damages at the ex parte trial in April of 2015 were attorney fees of two law firms: Harlem & Harlem and Harlem & Jervis.
There was no retainer agreement in the record for Harlem & Jervis.
There was no consent to change counsel in the record for the change of counsel from Harlem & Harlem to Harlem & Jervis, notarized by each one of the six plaintiffs in the action.
Judge Kevin Dowd did not care about such pesky issues as retainer agreements and consent to change counsel.
He was irate because of the length of litigation - against Mr. Neroni, of course, not against Harlem & Jervis.
And, in order to "make Plaintiffs whole", Judge Kevin Dowd has awarded $156,290 in actual damages based on attorney fees of these two law firms chargeable by Harlem & Jervis and Harlem & Harlem against their clients.
Yes, of course, Judge Dowd made the judgment against defendant Frederick Neroni. Yet, by saying that Plaintiffs claimed that those attorney fees are their damages against Mr. Neroni, Judge Dowd also acknowledged that Plaintiffs agreed to those attorney fees by Harlem & Harlem and Harlem & Jervis.
Which made Plaintiffs liable to Harlem & Harlem and Harlem & Jervis for those legal fees, jointly and severally. In other words, the money judgement acknowledging attorney fees of $156,290 as "actual damages" of the Plaintiffs, is a money judgment by Plaintiffs' alleged attorneys against the Plaintiffs. Against each and every one of them.
So, as of June 12, 2015, the date of the decision of Judge Kevin Dowd,
1) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Daniel Mokay individually, and against his property;
2) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Andrew Mokay individually, and against his property;
3) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff David Mokay individually, and against his property;
4) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Patricia Knapp individually, and against her property;
5) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Christine Reed individually, and against her property;
6) $156,290 money judgment became collectable by Harlem & Jervis against Plaintiff Estate of Andrew Mokay Sr, and against its property (and the property of all of its beneficiaries) - and that is in addition to attorney and Executor fees of Harlem & Jervis and the Executor Daniel Mokay charged against the Estate in the probate proceedings.
But the beauty of it all is that Judge Dowd created this money judgment of $156,290 against the Plaintiffs without any testimony from the Plaintiffs!
That's right, none of the Plaintiffs testified in the ex parte Mokay trial (where the public was also not allowed, I have an affidavit from a witness who was duped by the court personnel into believing that the trial was adjourned and not happening, when it was happening at the very same time as the witness asked to go observe it).
None of the Plaintiffs came forward at the trial to say:
1) yes, I hired Harlem & Harlem to represent me in this litigation;
2) yes, I hired Harlem & Jervis to represent me in this litigation;
3) yes, I am aware of every billing item that Harlem & Harlem and Harlem & Jervis presented to this court today;
4) yes, I approved of these billing items as MY legitimate costs of litigation;
5) yes, I am aware that the money judgment that I am seeking against Defendant Mr. Neroni is also collectable by Harlem & Harlem and Harlem & Jervis against me, as attorney fees against a client;
6) yes, Harlem & Harlem and Harlem & Jervis advised me of the potential conflict of interest in obtaining such a money judgment in this trial against Mr. Neroni, which will also be enforceable against each one of the plaintiffs;
7) yes, I agreed in writing for Harlem & Harlem and Harlem & Jervis to proceed to trial and obtain a money judgment against Mr. Neroni that will also be collectable against me by Harlem & Harlem and Harlem & Jervis.
None of the Plaintiffs testified.
And Judge Dowd rubber-stamped boxes of evidence supplied to him during and after (!) trial by Harlem & Jervis, simply because they were submitted against the much hated Mr. Neroni who sued Judge Dowd and whose wife sued Judge Dowd on behalf of client (not Mr. Neroni) - without any verification of the above issues by any of the Plaintiffs through testimony.
The only testimony upon which this money judgment was entered against Mr. Neroni and against the Plaintiffs was testimony of a non-party with interest in the money judgment, attorney Richard Harlem, son of a judge.
Of course, Judge Dowd's "brain", his law clerk Claudette Newman (who is also a local town justice, a judge in her own right), could not sit with him on that bench and could not advise him how to rule while he was dreaming of urinals built by law schools in his honor - that's what he has put on record in a custody proceedings several years ago, and I do not think his mental capacity has improved since then.
Yet, the decision of June 12, 2015 was made two months after the trial ended. Judge Dowd's "brain" had enough time to function and not to make a money judgment enforceable against the Plaintiffs where Plaintiffs did not testify, and THE ONLY witness who did testify was a non-party with interest in the money judgment, whether against Mr. Neroni or against the Plaintiffs - attorney Richard Harlem.
Good job, Judge Dowd.
Good job, Claudette Newman.
Good job, Richard Harlem.
Good job, James Harmann, the "trial counsel" for the Plaintiffs.
Good job, Michael Getman, another son of a judge, who stated before the trial began that his client Connie Mokay's interests
(Connie Mokay was a co-defendant in the action
and a beneficiary of the Plaintiff Estate of Andrew Mokay
as a widow with a right to an elective share of 1/3 of
the Estate, reduced in half by agreement with
Mr. Getman without any consideration)
are "aligned with the Plaintiffs" and then left the trial - thus allowing Judge Dowd to create, without any objections, to enter a money judgment of $156,290 enforceable by Harlem & Jervis against the Estate in which Michael Getman's client Connie Mokay has interest as a widow with an elective share.
As I said above, the Mokay saga is quickly becoming a black comedy - or a vaudeville.
Yet, serious researchers of Judiciary Law 487 and Amalfitano v Rosenberg, the New York State Court of Appeals case that allowed attorney fees as damages in Judiciary Law 487 claims, need to at least take note that, if attorney fees incurred by plaintiffs and chargeable against plaintiffs by their attorneys are advanced as damages at trial on behalf of plaintiffs,
- a conflict of interest is present where attorneys have interest in obtaining a money judgment not only against the defendant in the action, but against their own clients;
- such a conflict of interest must be discussed with the client;
- a written consent for the attorneys to proceed must be signed by each plaintiff;
- plaintiffs - at the very minimum - must testify at trial to confirm that they DID hire these attorneys who have an interest in a money judgment against their own clients, and that they DID approve legal fees of these attorneys claimed as damages.
Because - otherwise we get what we got in the Mokay saga.
A $156,290 money judgment against each and every one of the Plaintiffs, enforceable against them by allegedly their attorneys Harlem & Jervis and obtained against them while their presence is not mentioned in the trial transcript (in their absence) and without their testimony.
Just think about the potential of abuse - an attorney walks into the courtroom, gets on the witness stand and testifies that A, B, C, D, E and F owes him hundreds of thousands of dollars, and the court approves a money judgment that goes both against the A, B, C, D, E and F's alleged opponent and against them, too.
And, the court, without hearing out the testimony of A, B, C, D, E and F, grants the hundreds of thousands of dollars against the defendant, but also by the attorney against A, B, C, D, E and F - without their testimony or even presence.
Here, "to make Plaintiffs whole" (or rather, to make a hole in Plaintiffs' pocketbooks), Judge Dowd created a money judgment of $156,290 against each one of them, enforceable against them by son-of-a-judge Richard Harlem, in their absence and without their testimony.
That decision, by far, beats the decision about the urinals built by law schools in Dowd's honor - as part of a custody proceeding.
All in all, it was really well worth the 8 years of litigation in Mokay v Mokay - for Richard Harlem, not for the Plaintiffs.
I wonder when Richard Harlem will start collecting his hard-earned judgment of $156,290 against Daniel Mokay, David Mokay, Andrew Mokay, Christine Reed and Patricia Knapp.
But, that will be part of the black comedy genre.
I will report further on this case as information becomes available.
Stay tuned.
No comments:
Post a Comment