"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, March 10, 2016

Judiciary Law 487 gutted and evidence put on its head for the benefit of a private attorney who is also a judge

I wrote about a case that I brought against a local attorney Jonathan Follender (who is also a judge of a justice court in the County of Ulster, and thus is fiercely protected by the court system no matter what he does wrong), and about his shenanigans that were never sanctioned as frivolous conduct (the theories of "frivolous default", "death of a corporation" /in a motion for substitution nunc pro tunc/, "loss of companionship of a dog" /a non-existent cause of action in New York/).

I received a decision affirming dismissal of my lawsuit against Follender for defamation and fraud upon the court, affirming also sanctions and attorney fees - $10,000 - imposed by Judge Tormey who Follender asked to punish me because I sued Tormey in federal court (on behalf of myself and 3 clients) and because I generally sue judges, and Tormey obliged Follender.

Of course, I was not the only one woman who sued Tormey for misconduct, and Tormey was sued before me by a female attorney, court employee, a lawsuit that lasted 4.5 years and resulted in a $600,000 settlement out of taxpayers' pockets and not Tormey's, even though his misconduct had nothing to do with his duties as a judge, and after I sued him, by a court interpreter.  

I note that the Appellate Division 3rd Department affirmed the appeal right after my husband filed a motion to sanction the Chief Judge of that court for frivolous conduct in a federal court that I published in full here.  

In his Respondent's brief Follender repeated the maneuver meant to inflame the court that worked with Tormey by asking the 3rd Department to affirm the appeal because I sued the 3rd Department - as an attorney, on behalf of a client, Mr. Neroni.  And it worked again.

I also wrote on this blog that courts do not distinguish which of the hated Neronis it is in front of them - and sanction my husband for my actions as an attorney and vice versa.

I was punished for my husband's motion to recuse in environmental administrative proceedings, and that sanction was used to suspend my law license.

The first (and most important charge) in my disciplinary proceedings that resulted in suspension of my license (withdrawn by the disciplinary committee in January of 2015, but it is not reflected in the order of suspension) was for my non-appearance in a deposition and non-reaction to a motion for a default judgment in 2008 when I was not admitted to the bar and could not be the individuals' attorney.  In fact, my husband was those people's attorney, he appeared at the deposition, and he did not have to oppose the motion that was never properly served upon him, but all of that did not matter to any court.

Recently, the U.S. Court of Appeals for the 2nd Circuit indicated that both my husband and I were parties in all lawsuits that Mr. Neroni brought in the U.S. District Court for the Northern District of New York.  That was not true, my husband brought two lawsuits pro se, but that did not really matter for the 2nd Circuit - if my husband's name was on those lawsuits, the court had to attach my name to it anyway.

By the way, the 2nd Circuit attached me to my husband's two pro se lawsuits without my last name - "Mr. Neroni and his wife Tatiana".  Apparently, I am just an appendage to my husband without any last name.

I wonder if the court could say the same talking about people like, let's say, "Dennis Blazer and his wife Janet" (DiFiore, the Chief Judge of the Court of Appeals).

I thought that women have a separate identity from their husbands, and are entitled to a last name when identified in court papers.  The 2nd Circuit differs and treats me as a minor not entitled to a last name.

The U.S. District Court for the Northern District of New York punished my husband for my litigation in a criminal case (that is not subject to sanctions), after my husband was not a licensed attorney, and thus had nothing to do with that criminal case.

All of the above said, when punishing us, judges lose the sense of reality and forget that certain things they do have a precedential effect, and that when punishing one of the Neronis, they can help another.

Affirming the dismissal of Neroni v Follender was exactly such a thing, while it hurt me, it helped my husband's case in his upcoming appeal in Mokay v Mokay, because the 3rd Department, in its rage against me gutted Judiciary Law 487, the fraud upon the court statute used against my husband.

This is how the Appellate Division 3rd Department did it.

I sued Jonathan Follender under two parallel legal theories:

1) defamation;
2) Judiciary Law 487 (fraud upon the court).

My theory was that Follender made his false statements to the court, but after the court lost its subject matter jurisdiction (in a homestead sale proceeding after the underlying money judgment was satisfied) - therefore, no matter which path the court takes, one of the theories applies.

If the court lost jurisdiction by the time of the false statements, defamation applies, but Judiciary Law 487 does not.

If the court had jurisdiction by the time of the false statements, defamation is protected by litigation privilege, but Judiciary Law 487, with its longer statute of limitations, 6 years, still applies.

Follender claimed in those proceedings that I represented Respondents (I did not) and that I allegedly frivolously caused - gasp! - premature satisfaction of a money judgment before Follender could sell the people's home - as well as that I frivolously defaulted by not appearing in the court proceedings, where, again I was never retained as an attorney.

The false statements were reflected in court papers very clearly, in several transcripts that I presented to the court.

I must also state here that Judge Tormey applied absolute judicial immunity to private attorney Jonathan Follender, which created a jurisdictional bar for all claims, including a claim of Judiciary Law 487, thus gutting Judiciary Law 487 and destroying that statute completely.

I was eagerly awaiting how the 3rd Department will deal with this situation on Judiciary Law 487.

Apparently, the 3rd Department was so busy in its rage to punish me that it did not notice that its decision was a conceptual disaster.

First, the caption reflects that it took the panel of 5 judges less a mere month-and-a-half to render a decision on an extremely complex case with a very large record.

Nowhere in the text of the case will you find a clear and distinct statement that there were two separate and distinct court cases that my lawsuit dealt with, one where I was an attorney of record (on motions to vacate a judgment of default) and another where I wasn't an attorney of record (homestead sale petition).

Nowhere in the text of the case will you find a legal analysis whether I was an attorney of record in the homestead case of not, which was a central issue in determination of the issues on the appeal.

Nowhere in the text of the case will you find a jurisdictional analysis of the homestead case verifying whether the court had jurisdiction over the case when Follender was making his statements, and that made a difference whether the "litigation privilege" to the defamation claims applied or not.

Without such jurisdictional analysis (which was a must, because argument was asserted in the court below and on appeal, based on irrefutable court records, that the underlying money judgment was satisfied before the homestead petition came to be heard, and thus the court was without subject matter jurisdiction to hear that petition from the first appearance date), the court made the following statement:

So, the court made a determination that a defamation claim that was not barred by the 1-year statute of limitations, was made in the course of a "prior court proceeding", and that was in 2013.

The money judgement was satisfied in 2011, so the "court proceeding" that was not covered in 2014 by a one-year statute of limitations for defamation could only be the homestead proceeding where appearances (without my participation, since I was not an attorney of record and asserted it every time there was an attempted to yank me into those proceedings) continued until 2013, even though jurisdiction was lost in 2011.

Of course, the 3rd Department did not take it upon itself to specify which of the two "prior court proceedings" that were subject of Neroni v Follender were meant, but the dates make it clear.

Also, the 3rd Department affirmed dismissal of defamatory statements other than one dismissed on "absolute privilege", on the 1-year statute of limitations.

Great job.

Yet, conceptual problems then loom.

How much more specific can one get when one, with transcripts, not simply alleges (as required for the pre-answer pleading stage), but proves beyond ANY doubt that the following false and defamatory statements were made to a court by an attorney:

1) that I was attorney of record in a case where I wasn't;
2) that I abandoned my clients by non-appearance;
3) that I caused a frivolous premature satisfaction of a money judgment that prevented Follender from selling the people's home - which, apparently, was wrong for me to do, even though I didn't have a hand in satisfaction of that money judgment, and even if I did, there is nothing wrong about it;

By the way, my law license was suspended (and the 3rd Department that recused from that case, relied on the suspension by the 4th Department affirming Neroni v Follender) based on sanctions of Judge Becker for allegedly delaying satisfaction of the money judgment.

Go figure - 

Becker sanctioned me $1,250, on request of Follender, 
for delaying satisfaction of the money judgment, 

then, immediately after the judgment was satisfied, Follender asked Becker to sanction me, in a homestead petition proceeding that already lost jurisdiction because the money judgment was satisfied by one of my two prior clients that had nothing to do with me, for "causing a premature satisfaction" of that same money judgment;

then, Follender continued to run his mouth to Judge Becker and then to Judge Dowd, in proceedings that lost jurisdiction before it started, that I must be sanctioned for "abandoning my clients", "causing a frivolous default" (whatever it is), even though I never appeared in that action and never had to, since I was never retained for that separate proceeding with a separate index number, where - once again - jurisdiction died because of satisfaction of the money judgment before the very first hearing.

Then, when I lost patience and sued Follender for defamation and fraud upon the court, I was punished by Tormey for suing Follender (also a judge) and for suing Tormey himself in federal court (on request of Follender), and then the 3rd Department affirmed the sanctions because Follender asked the 3rd Department to punish me because I sued the 3rd Department.

Makes a lot of sense.

But, can it be more specific than proving, at the pleading stage, with court records, that an attorney made false statements to the court that I was an attorney of record in a case where I wasn't, that I am responsible for "frivolous behavior" of (1) delaying satisfaction of a money judgment and (2) causing the satisfaction of the money judgment too soon, right after I was sanctioned for delaying satisfaction of that same money judgment, and that (3) I abandoned individuals who never retained my services in the homestead petition by not appearing in that proceeding, and not frivolously causing a default and loss of jurisdiction (!) by the court - Follender stated that, too, to Judge Becker!

To say that what Follender claimed in various cases was, if all combined, crazy, is an understatement of the century - yet, each court buys it because whatever crazy stuff comes out of Follender's mouth is necessary to punish me, and New York courts can punish me for my last name and nothing else.

So, whenever I am concerned, the 3rd Department rejects irrefutable proof through transcripts and affirms sanctions for pleading with lack of specificity - thus creating a separate pleading standard, and a bill of attainder, for me alone.

I am honored.

Yet, when the 3rd Department made an interesting misstep that can constitute gutting of the entire Judiciary Law 487, and created a precedent for all attorneys sued in the 3rd Department under Judiciary Law 487.

Tormey gave Follender, a private attorney, an absolute judicial immunity for false claims made to the court.  That immunity is a jurisdictional bar that destroyed the statute, Judiciary Law 487, and made it unenforceable.

The 3rd Department affirmed that determination, while versing it an "absolute privilege".  The 3rd Department did not say what kind of privilege it is, and, since the 3rd Department did not indicate that Tormey's grant of absolute judicial immunity was wrong and affirmed Tormey's decision in its entirety, it affirmed absolute judicial immunity for private attorneys sued under Judiciary Law 487.

Thank you, the 3rd Department.

Now you will have to apply that same determination you've just made in Neroni v Follender to my husband's case in Mokay v Mokay, give my husband that same absolute judicial immunity you just gave Follender and dismiss that case for lack of jurisdiction.

I would also like to point out that the 3rd Department says nothing about the 6-year statute of limitations for fraud upon the court, when the 3rd Department is talking about a 1-year statute of limitations for defamation claims and applying an "absolute privilege" to false statements of an attorney made to the court.

I just wanted to stress once again what occurred.

The 3rd Department claimed that defamatory false statement made by an attorney to a court (which was without jurisdiction at the time of the claims) are "absolutely privileged" and cannot be reached either by defamation claims or by Judiciary Law 487 claims.

Thus, Judiciary Law 487 claims was reduced to nothing by the 3rd Department.

I bet, attorneys currently sued under Judiciary Law 487 and whose appeals are currently pending in the 3rd Department, will be thrilled.  

My husband included.

Last, but certainly not least, I would like to compare the panel that affirmed Neroni v Follender and the panel that recused from my disciplinary case:

First, please, note that where the U.S. Court of Appeals for the 2nd Circuit adds me, without last name, as a party to Mr. Neroni's pro se lawsuits and affirms punishment of Mr. Neroni for constitutional arguments and for still-pending civil rights lawsuits (case No. 14-4765):

the 3rd Department added Mr. Neroni as a party to my disciplinary proceedings where Mr. Neroni was not a party, without notice or opportunity to be heard, without authority to do that, long after Mr. Neroni was disbarred by the same court.

By the way, since the 3rd Department adamantly refused to release to the 4th Department court the application for the ex parte order mentioned in that order, or to give access to Mr. Neroni or myself to that order, jurisdiction over my disciplinary proceeding could not fully pass to the 4th Department from the 3rd Department (because the 3rd Department refused to fully relinquish the complete record of  my disciplinary proceedings to the 4th Department), which makes my order of suspension illegal and made without jurisdiction.

While the 3rd Department is keeping hidden part of the record of my disciplinary proceedings from which it recused, the 3rd Department's refusal to recuse from Neroni v Follender case is even more interesting.

Since the illegal ex parte June 11, 2014 order decided by judge Lathninen, McCarthy, Stein, Garry and Rose,

judges  that failed to fully transfer jurisdiction over my case to the 4th Department, but declared a recusal of the 3rd Department from my cases, the 3rd Department made several appellate decisions adverse to me:

1) On October 23, 2014, Neroni v Grannis which I blogged about before here as a case of brazen judicial corruption - by judges Clark, Stein, J.P., McCarthy, Egan Jr. and Lynch, JJ;

2) Kilmer v Moseman, Case No. 518903 on January 29, 2015 by judges 

Lahtinen, J.P., Garry, Rose and Devine, JJ. - where the court refused to sanction a judge's wife for obvious fraud upon the court, and refused to sanction another judge's law firm for participating in the case where the judge, Eugene Peckham, presided before his retirement, joined the firm as a law partner, and the law firm did not notify the court of that fact, and Eugene Peckham continued to also be a "judicial hearing officer" for the same court which disqualified his law firm from appearing in that court.  Sanctions were not imposed upon Peckham and his law firm despite the fact that his law firm was disqualified by court order from representing anybody in that action - I had to make a motion for that, Peckham and his law firm resisted disqualification, even under these circumstances!!!


3) Neroni v Follender decided on March 3, 2016 by judges 

McCarthy, Garry, Lynch, Devine and Clark.

In all of the above three panels previously recused judges participated, which undermined the New York constitutional rule that a decision by an appellate court must be done by a quorum of at least 4 judges (meaning judges who are not disqualified), and participation of a previously recused judge in the case is the equivalent of a re-entry of the recused judge into a recused case.

Here, the entire court recused from my case in June of 2014, thus requiring recusal of the court from all other cases where I was a party.  I made several motions to recuse in Neroni v Follender, which were all denied without an explanation by the 3rd Department.

A recused judge has no "discretion" to continue to preside over cses of the same litigant if the judge recused from the litigant's other cases.

In Neroni v Follender, Judge McCarthy had the audacity to rely upon my suspension, based on the sanction imposed for allegedly delaying satisfaction of money judgment while dismissing my claim of fraud upon the court when Follender was inviting upon me sanctions for frivolously causing to satisfy that judgment too soon.

I understand that Judge McCarthy who was presiding in Neroni v Follender, was in too much of a hurry to punish me whatever the record was, after my husband asked the U.S. District of New York to punish the 3rd Department's Chief Judge Karen Peters for frivolous conduct in litigation.

But, when two judges out of the Neroni v Follender panel recused, on behalf of the entire 3rd Department, on June 11, 2014, from my disciplinary case while keeping from the new court the application upon which the June 11, 2014 order was made, it was highly inappropriate for the recused judges to rely upon a decision made by another court upon an incomplete record - incomplete record being caused by misconduct of those same 3rd Department judges.

And that's exactly what Judge McCarthy brazenly did in a footnote in Neroni v Follender:

So, McCarthy says by relying on that footnote - because I was sanctioned, on request of Follender, for "delaying satisfaction of money judgment" in the "breach of contract case", it was ok for Follender to ask to sanction me for "premature satisfaction" of that same money judgment, right after the previous sanction was imposed ( the sanction which the same 3rd Department affirmed and for which I was suspended by the 4th Department).

And, McCarthy says by relying on that footnote - it is ok for a court to withhold part of the record when transferring a case to another court, and then to rely upon the decision of that other court which the relying court knows is unlawful because it is based on the incomplete record.  I wonder what the Judicial Conduct Commission will say about it.

And it is ok for McCarthy to say that there was no enough "specificity" in the claims of fraud upon the court when the same attorney makes diametrically opposite statements to court seeking sanctions against me for both delaying satisfaction of the money judgment and allegedly causing to satisfy that same money judgment "too soon".

Yet, such two diametrically opposite views, of the same court, are simply unsustainable, and, of course, I will address that through appropriate legal process.

We have a saying in Russian - you can weave a rope for a long time, but there will be an end to it.

I do not know whether the crap the 3rd Department stepped into by affirming absolute judicial immunity for Jonathan Follender, a private attorney, will be the beginning of the end of our saga where laws favorable to us do not apply, and evidence favorable to us is simply ignored (as the 3rd Department did with multiple records in multiple proceedings in order to punish us, including Neroni v Follender).

Of course, the 3rd Department will continue to try to wiggle out of inconsistencies in its legal theories.

The good part is that the 3rd Department is not the only Appellate Division in the State of New York, and that litigation under Judiciary Law 487 vigorously continues in other Departments, too, creating precedents that, due to department splits, will have to be eventually heard by the New York State Court of Appeals, and will apply to us, too.

So, we will see how this exciting thing called the "law" in New York will develop.

Stay tuned.

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