This is Part 7 of the article series #TheCrimeOfBeingNamedMelania, about the apparent collusion between some local, state court and now federal public officials to ruin the business and undermine the real estate value, for easy takeover, of a prime piece of real estate belonging to a Romanian American couple, Melania and Nicolae Pervu, in the middle of a business district of the City of Oneonta, New York.
Part 4 - #TheCrimeToBeNamedMelania. The case of The City of Oneonta v Melania and Nicolae Pervu, Part 4. How the City of Oneonta tried to stamp out "a Russian crime family" supporting Trump - can be read here.
Part 5 - #TheCrimeToBeNamedMelania. Part 5. No immigrant farmer will own prime real estate in the middle of the business district of Oneonta, New York. A special kind of due diligence necessary before buying property in Oneonta, New York and Otsego County - can be read here.
This is Section 1001 of the Civil Practice Law and Rules of the State of New York, or CPLR 1001.
Because of this rule, dictated by the 14th Amendment (due process requirement of a notice and opportunity to be heard for all affected parties), in all foreclosure actions and actions where an eviction is possible, tenants of a building to be foreclosed on must be:
- included as named parties into the proceedings;
- be served in accordance with the law, with the initial lawsuit papers and with all other papers, throughout the proceedings.
"Do not worry if your name is on the papers. This does not mean that you have to move out.
The point is, you don’t have to do anything right now."
Why are these pieces of advice from NY courts to tenants in foreclosure proceedings (and any other similar proceedings which may result in eviction of tenants) misleading?
Because when people are included into the lawsuit as necessary parties, they are included to make the adjudication COMPLETE.
And COMPLETE means that the tenants have a right to:
- intervene into the proceeding even if they are not included as necessary parties;
- file counter-claims in proceedings (against the plaintiff);
- file cross-claims in proceedings (against co-defendants).
Because tenants have A RIGHT to do that, they may be precluded from seeking that right in any other court at any other time.
That is called "collateral estoppel", or "claim preclusion".
Now, this is the front page of the petition in City of Oneonta v Pervu.
Note only 2 respondents, Melania Pervu and Nicolae Pervu.
This is page 5 of the same petition.
Note paragraphs 9 and 10.
This is as far as any judge of minimal competence and integrity should have read this petition before tossing it for lack of jurisdiction, for failure to include necessary parties, the tenants of the "approximately 20 rental units that are occupied with either single or multiple tenants", while the City mentioned that there were actually "approximately 40 residential units on floors 2 through 5".
It does not matter whether the City knew or did not know the identities of those tenants - the City had a proactive obligation to verify those identities, as any other Plaintiff has, before filing a lawsuit in court, to verify identities of defendants who are necessary parties in the action.
Tenants of 20 rental units in the middle of a business district on the Main Street of a city are not ghosts, their identities are easily ascertainable.
Moreover, identities of these particular tenants in this particular case were KNOWN by the City of Oneonta - since the City actively sought it out and gave them legal advice HOW TO SUE Melania and Nicolae Pervu - in a court other than where the City, or, rather, husband and wife Merzigs, have filed their petition.
These are excertps from a small claims court case, Calderson v Pervu, litigated in front of Judge Lucy Bernier in Oneonta City Court:
The plaintiffs say there:
"Under the supervision of the Assistant District Attorney Michael F. Getman.
My husband and I spoke to him when we first received the City letter. We were told we should never have been obliged to pay rent to live in an unsafe place, and that we should not continue to pay until the property was up to code and the order to vacate diminished. Take that money and put it towards a new apartment and the moving costs".
Witnesses reported to me that Judge Lucy Bernier had the good grace to look shocked when this piece of information was presented to her in court.
So, from the very beginning of the litigation filed by husband and wife Merzigs in the Otsego County Supreme Court, the prosecutor for the City of Oneonta (and the benefactor of many businesses of that city, through the Dewar Foundation, distributing money to businesses he likes), Michael Getman, son of a late judge actually GAVE LEGAL ADVICE to the necessary OPPOSING parties in the Supreme Court litigation, which was a conflict of interest and an ethical violation, as to how to sue the Pervus in another court - while the City "forgot" to include them right in the Supreme Court litigation, AS DEFENDANTS, under the requirements of CPLR 1001.
Because, had they been included as defendants, it would have been clear that the City cannot possibly give legal advice to them, and especially not at the time when the case was still only filed, only at the very beginning, and the City did not prove its case in court yet.
If the tenants had any right to sue the Pervus for rent recovery, they had to do that within the pending litigation, in the Supreme Court, as cross-claims, not outside of that litigation, in another court, and especially not prompted by the ghost legal advice of Michael F. Getman, the city prosecutor.
Under the circumstances, Judge Lucy Bernier had no jurisdiction to review that case, she should have dismissed the claim as having been filed in the wrong court.
Now, my question is - how did it happen that not 1, but 2 judges, Michael V. Coccoma, a judge with 40 years of experience as an attorney
and 24 years of experience as a judge,
and John F. Lambert, a judge with 20 years of experience as an attorney,
and 10 years of experience as a judge,
both educated in expensive private law schools, both with many years of experience presiding over foreclosure actions, not only accepted a jurisdictionally defective petition, but made multiple orders on it, the final one, of February 5, 2019, by Judge Lambert, being to evict, WITHIN A SPAN OF TWO DAYS, an uncertain number of UNNAMED tenants, into the street, IN THE MIDDLE OF WINTER, who were not even included as necessary parties or served with the Petition as the law requires, and never had an opportunity to be present in court and oppose the eviction?
First, Judge Lambert cannot even spell one of the parties' names correctly - making the validity of the order questionable. The Respondent's name is Nicolae, not Nicolas.
But, also look at the deceptive wording of Judge Lambert's order:
"ORDERED, that the Respondents Melania Pervu and Nicolas Pervu shall immediately cause to be vacated each and every person from all of the residential apartments located on floors 2-5 of the building located at 195 Main Street, Oneonta, New York, and that the vacating of the said premises of all persons shall be accomplished no later than 4:30 p.m. on Thursday, February 7, 2019".
I already wrote about how wrong it was for Judge Lambert - as far as the Pervus were concerned - to:
- advise the City, through his law clerk, to file a contempt of court Order to Show Cause, and what documents to support it with;
- sign the Order to Show Cause that he taught the City how to file;
- allow the Pervu attorneys to abandon them in the middle of that contempt proceeding;
- proceed on the merits in that proceeding after the attorneys withdrew, and while
- the Pervus, by law, had to have 30 days to replace them (thus, proceedings on the merits had to STOP once the attorneys were released), not to mention that
- the Pervus, by law, were entitled to a notification from Judge Lambert, that, in contempt proceedings they are entitled to:
- a free attorney assigned at no charge to them, if they are eligible, and that if they do not have funds for an attorney (and the judge had every reason to expect they do not since he has just released their private attorneys complaining of their inability to pay them), they should apply for a free counsel, to be assigned by Judge Lambert;
- a separate evidentiary hearing, with testimony of witnesses and the burden of proof on the City of Oneonta, in a contempt proceeding
- rubber-stamp the order prepared by Kehoe & Merzig (with the stamp of that law firm on the order), attorneys for the City of Oneonta and for U.S. Rep. Antonio Delgado, who was opening an office next door on February 7, 2019 and needed their hotel to be rid of the poor by that date - directing the Pervu to evict their low-income tenants, in the middle of winter, in 2-days' time;
The Pervus, of course had no right to "cause" anybody to be evicted.
A landlord cannot be ordered by a court to barge into suites rented as people's residences and "cause" them "to be evicted".
How were the Pervus supposed to actually do that? Grab people and their stuff and physically throw them out?
But, a gross injustice was also done by Judge Lambert upon the residents of, possibly, 40 residential units, who never got a chance to speak in court as to what kind of conditions their residences actually were, and whether they should or could have been evicted in 2 days' time or not.
Because being a necessary party means having a right to that same 14th Amendment due process, the notice and opportunity to be heard, to speak in the Supreme Court, in front of Judge Lambert, AGAINST THE EVICTION.
Given, of course, that those people were poor, and the general disdain that Judge Lambert and all local judges have against the poor, it is apparent that for Judge Lambert the poor do not have faces, identities, or rights.
He did not even order THEM to leave their residencies.
Instead, he ordered their LANDLORDS to "cause" them "to be evicted", en masse, as unnamed and unnumbered inanimate objects. As just that much of garbage, right into the streets, in the middle of winter.
And, Judge Lambert did not even write this order - he simply signed an order written for him by Kehoe & Merzig, attorneys not only for the City of Oneonta, but mainly for the U.S. House Rep. Antonio Delgado (D) who wanted 195 Main evicted by February 7, 2019, so that he could open his luxury business office without having to think about the poor living next door.
So, the court completely merged with the City of Oneonta in this case:
1. the court, prohibited to practice law by the New York State Constitution, required to be neutral and impartial and prohibited to act as a court and as a party in the same case, gave the City legal advice as to how to litigate, how to file a Show Cause order for contempt proceedings and what to include there; and
2.The City wrote orders instead of a judge, with the City attorney's stamp, which the court included into its order.
Judge Lambert was too lazy to even have his clerk RETYPE the order so that it would at least APPEAR as if the order was actually written by a judge - he simply rubber-stamped it the way it was, with a Kehoe & Merzig, PC stamp on the margins.
And, that order said:
"ORDERED, that upon the failure of the Respondents to comply with the provisions of this Order to Vacate, and upon an ex-parte application, a Warrant of Eviction shall issue from this Court to the Otsego County Sheriff to have any remaining persons forthwith removed from residential apartments, located at 195 Main Street".
Now let's recall that a Sheriff is a County law enforcement officer sworn to uphold the law and the U.S. and the State Constitutions.
As such, a County Sheriff must have a minimal training in constitutional law, a requirement for his job, and to understand his own constitutional oath of office.
Note that this order was not ordered served upon the County Sheriff.
Instead, it was served upon its authors, Kehoe & Merzig, and upon the FORMER attorneys of the Pervus.
Not upon the Pervus.
Not upon the tenants to be evicted.
And not upon the Sheriff's Office.
And, by this order, Judge Lambert allows himself to act upon an EX PARTE APPLICATION, whose, the order does not say. The City of Oneonta's? The County Sheriff's?
EX PARTE means - without notice to anybody, just between the applicant and the judge.
Such ex parte communications are NOT ALLOWED by law.
And, the Sheriff is ordered by the judge "to have any remaining persons forthwith removed from residential apartments" - without their names or numbers - and such an "eviction warrant" is supposed to be legally valid?
Has Judge Lambert completely lost his mind in order to provide a favor to U.S. Rep. Delgado?
And, look at those who Judge Lambert ordered to serve with this so-called Order of February 5, 2019.
Judge Lambert, again, did not care to remove the stamp Kehoe & Merzig PC from the margins of his order - indicating who actually wrote the order.
Nor did Judge Lambert care to change who the order is to be served upon.
Obviously, Kehoe & Merzig prepared the draft of the order when Ryan T. Donovan was still the Pervus' attorney.
This order the judge needs to serve upon two pro se parties.
Yet, he does not care a fig whether these parties, whom he rendered pro se in the middle of a contempt of court proceedings that he taught the City of Oneonta to bring, and then continued to rule on the merits of contempt proceedings against two pro se parties, without giving them a chance of substitution of counsel or assigning counsel to them for free, or giving them information that they are entitled to such free counsel - whether these two pro se parties are served with this order at all or not.
The order by which Judge Lambert orders them to "cause" people from 40 residential apartments to "be evicted".
Judge Lambert may not have even read that draft.
Since the signature was electronic, it could have been the same law clerk Mark Oursler who taught the City of Oneonta how to file the Contempt motion who signed the order granting it, instead of Judge Lambert.
The case was prejudged before it was filed, so neither Lambert, nor Oursler give a fig about the people who suffered.
They do not give a fig about anybody's "constitutional rights", in fact, they may laugh you in the face if you mention such things.
Lambert did not even care to print out the damned order for signing - he received the draft from Merzig by e-mail and signed it or had his law clerk sign it for him electronically, without looking what was in it - including the law firm stamp and the former attorneys instead of the pro se parties to be served.
Judge Coccoma who has issued the first order in this proceeding allowing it to go forward and shifting the burden of proof to the Pervus, as well as Judge Lambert and his law clerk Mark Oursler cannot be sued - because judges gave themselves immunity for malicious and corrupt acts, since 1975.
Lambert and Coccoma can only be turned into the New York State Judicial Conduct Commission and the Attorney Grievance Committee of the Appellate Division 3rd Judicial Department - with a request to take the bastards off the bench and disbar them.
Coccoma, Lambert and their law clerks can be prosecuted criminally, though - the U.S. Attorney can prosecute them under 18 U.S.C. 242, for the crime of violating of civil rights of multiple people, in a gross manner and under the color of law.
As it is appropriate, in my opinion, for the U.S. Attorney to prosecute criminally David Merzig, his client Rep. Antonio Delgado and Judges Coccoma and Lambert, as well as Lambert's law clerk Mark Oursler, for a conspiracy to deprive the Pervus and their tenants of honest services of two judges, under 18 U.S.C. 1346.
I hope that the bastards are charged, convicted and put into federal prison where they belong.
I hope that the tenants file petitions in the Otsego County Supreme Court to intervene into these proceedings, with accompanying motions to recuse Judge Lambert, vacate all orders in the case and dismiss the City's petition as jurisdictionally defective, for failure to include necessary parties, with sanctions against the City of Oneonta's Chairperson of the Board of Public Service Margery Merzig and her husband who brought the petition on her behalf, the City of Oneonta attorney David Merzig.
I also hope that the tenants and the Pervus would file a federal civil rights lawsuit under 42 U.S.C. 1983, with a demand for a jury trial, for multiple violation of their constitutional rights by the City, County and the Sheriff, in the U.S. District Court for the Northern District of New York, pro se, if necessary, and ask for waivers of the hefty filing fees, as the court allows for low-income individuals.
These people can be taught only by lawsuits, and only when they are sued in their individual capacity, and hit by such lawsuits right in their own pockets.
They have no conscience and no honor.
