For example, Jonathan Follender made a motion for a default judgment without providing to the court proof of service of the motion - and it was granted by judge Eugene Peckham (now partner in Levene, Gouldin and Thompson out of Binghamton, NY), after Eugene Peckham also granted to Jonathan Follender a motion to substitute a client nunc pro tunc due to his death - the client was and remained a corporation, and corporations do not die, but Jonathan Follender is also a judge, so a judge grants to a judge anything one judge asks of another without thinking, that's the law in New York.
Then, Jonathan Follender filed a double action - a homestead petition and an additional civil lawsuit for money - on an order to show cause.
The homestead petition can be filed on an order to show cause, while a civil complaint cannot, and the two cannot be joined, Jonathan Follender joined them anyway.
Jonathan Follender did not provide to the court proof of service of the petition and proof of personal service of the civil complaint, and jurisdiction over the homestead petition was gone by the time of the first appearance - but Judge Becker satisfied the joined complaint anyway, jurisdiction or no jurisdiction, proof of service or no proof of service - as a default.
Barbara O'Sullivan sued police officer Derek Bowie for battery and assault with a police vehicle, in his individual capacity. Derek Bowie was personally served by his own employer the Delaware County Sheriff and failed to appear within 21 days of personal service. Barbara O'Sullivan called a default.
The court denied a default because the Delaware County, at taxpayers' expense, appeared on behalf of an employee sued for intentional misconduct for which Delaware County was not responsible, and Derek Bowie's attorneys' illegally paid for by Delaware County taxpayers, made a motion to vacate the default frivolously claiming that the same Sheriff's office who served Derek Bowie with the lawsuit and provided to Barbara O'Sullivan an affidavit of service, was not aware of the lawsuit, and for that reason, the default should be vacated. It was, by Judge John Lambert.
So, there was a clear default, but, since the beneficiary of that default was Barbara O'Sullivan, my close friend, Judge Lambert denied it.
When I sued in Neroni v Follender, Follender was supposed to either timely file an answer or timely file and serve a motion to dismiss.
Follender served the motion to dismiss himself, while being a party to the action.
As the 3rd Department stated in Neroni v Follender "... CPLR 2103(a) requires service to be made by a person who is not a party to the action...".
So, the 3rd Department recognized that CPLR 2103(a), a statute, requires something.
Yet, the 3rd Department then stated, see the full phase: "Although CPLR 2103(a) requires service to be made by a person who is not a party to the action, a violation of this provision 'is a mere irregularity which does not vitiate service' where, as here, no resulting prejudice is shown, with a reference to the case Matter of Conti v Clyne, 120 Ad3d 884, 886 (2014).
First, I do not have a rat's ass what Matter of Conti v Clyne said, because every 1st year law students knows that statutory language controls over the court's interpretation of it, and the court has no authority to carve out an exception to a mandatory statute.
Second, in Conti v Clyne the 3rd Department recognized disagreement among appellate divisions as to whether failure to satisfy a mandatory statutory provision is merely a "technical irregularity".
Third, failure to abide by clear language of a statute on point is certainly not a "technical irregularity".
Now, let's see whether it was correct for the court to say that "no resulting prejudice was shown".
As a result of a default, all affirmative defenses are waived and all factual claims asserted in the complaint are deemed true as a matter of law.
Yet, the 3rd Department proceeded to rule on the affirmative defense of the statute of limitation, which was not only granted, but granted with sanctions and attorney's fees against me for bringing a claim "barred" by a statute of limitations.
Yet, there is no prohibition of bringing a claim to which the affirmative defense of statute of limitations may apply if such a defense is not waived - and attorney Follender waived it on behalf of himself and his clients, by serving his motion to dismiss himself, which was in violation of the clear requirements of CPLR 2103(a).
So, I was sanctioned for completely legal conduct, while the defaulting party was granted $10,000 against me in sanctions and legal fees - and that is not a prejudice?
Once again, when Follender asks for a default, even when he provides NO proof of service - NONE - the default is granted, even when it is fraudulently based on an incomplete record, and even when it is granted by a court that lacks subject matter jurisdiction, like it was in the homestead petition.
When it is Barbara O'Sullivan who claims the default, even though it is clear on the record, it is denied.
When I claim a default, even though it is clear on the record, it is denied, and then laws are bent and rules invented as to how to justify punishing me for my lawful actions, and attorney fees are awarded to the defaulted parties.
But, since there is a noted disagreement in the way CPLR 2103(a) is interpreted by the Appellate Division, this is not the end of story. I will continue fighting against Follender for my own and for other people's right to equal protection of laws and will report on that fight here.
Because, if any one of pro se litigants in New York who is not an attorney attempts to serve their own process under these circumstances, and then claims that it was a "mere irregularity", a default will be declared against such a pro se litigant without any doubt.
The only reason why this exception was carved out by the 3rd Department is because of who it favored, a private attorney who was also a judge.
And that is a violation of equal protection of laws, of the principle of separation of powers not allowing courts to interpret statutes outside of their strict language, and of the federal constitutional clause prohibiting the creation of titles of nobility and privilege in the United States.
I will continue to cover my fight over equal protection of laws in New York courts and will cover it on this blog.
This is the statute that the 3rd Department said attorney (and judge) Follender may violate to his heart's desire:
The only exceptions to the requirements of this statute is "except where otherwise prescribed by law or order of court".
The law that is providing an exception to statutory law must also be statutory.
There is no statute mentioned as an exception to this in the court pleadings below.
Follender did not obtain a prior permission of the court to serve the way he did, so the exceptions clearly did not apply.
If Follender, a party to the action, can serve pleadings himself, anybody else should be able to, and the CPLR 2103(a) is simply cancelled by the Appellate Division 3rd Department.
Moreover, where there is a statutory exception, it must be clearly and strictly defined.
The Appellate Division 3rd Department only says "where, as here, there is no prejudice", and that is not a clear definition, but the decision as to the prejudice is given to the court, to decide and its whim, and is subject to arbitrary enforcement.
It was not difficult for Follender to actually comply with CPLR 2103(a). He simply had to have somebody else serve the pleadings. He didn't do it, because he never considered service of process important, because no matter how he violated statutory requirements of service, courts always forgave it to him and granted whatever he wanted without compliance with the law.
Follender did not comply with the law and waived his own and his clients' rights in litigation. It was malpractice. I didn't have to pay for his mistake.
And, it is quite suspicious that an exception such as this is carved out for the benefit of a private attorney who is a judge, and that is the second exception carved out for this attorney/judge, the first being that he was granted absolute JUDICIAL immunity in a case where he is a PRIVATE attorney, indicating that all exceptions are attached to his status as a judge, even in his cases litigated as a private attorney and a party not sued in his judicial capacity or regarding anything he did as a judge.
For all of you, pro se folks, the MANDATORY rule of court remains - the person serving court papers MUST be not a party in the litigation (note that CPLR 2103(a) is not restricted to just service of papers commencing a lawsuit, but all papers served within the lawsuit):
Remember, you are not nobility like Follender, to you written statutory laws apply.
So, New York continues to provide privileges to judges in how it applies the law, and I will continue to fight it.
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