Richard Harlem, Daniel Mokay and their conflicting theories as to what the Mokay case is about

Here is what attorney Richard Harlem told judge Elizabeth Garry on October 5, 2007 as to the essence of the Mokay litigation (see my blog posts "the Mokay saga"  and my posts from April 2015 to date:

Apparently, as of October 5, 2007, Richard Harlem indicated that he did not want the deeds in question to be put into the Estate of Andrew Mokay (his client since February of 2007) because the Mokay lawsuit had nothing to do with the Estate and had everything to do with the Mokay children enforcing their father's contract to make a will made in the father's divorce action in the Supreme Court. 

Of course, when the deeds were placed into the Estate, Richard Harlem appealed that decision on behalf of the children, making the Estate (Richard Harlem's client) an adverse party, then joined the Estate as a party (and his own client in the Mokay action) through a motion, while his appeal against the Estate was still pending.

When I sought a Bill of Particulars seeking to verify the standing of the Estate and to have the Mokay plaintiffs answer under oath, why the Estate was even joined as a Plaintiff in the action, Richard Harlem asked judge Becker to deny me the motion to compel production of the Bill of Particulars, and Judge Becker obliged.

At the February 29, 2012 hearing Judge Carl F.Becker (a Surrogate judge of 10 years by that time) claimed that when an Estate is added to the action, it is not the same as the decedent added to the action:

Then, at a pre-trial conference, I believe in 2013 in the Mokay action, Becker claimed that the Estate was "in privity" with the Mokay children.

Apparently, that should have meant, based on Richard Harlem's argument to Judge Garry (see snippet above) that the decedent and his Estate are suing in the Mokay action for breach of contract to make a will that was broken by the decedent.  The decedent or his Estate were definitely not and could not be, beneficiaries of the decedent's contract to make a will (rejected by Judge Becker as a Surrogate in 2007 when Judge Becker chose the "wrong" will of the decedent over the contract to make a will when both testamentary instruments were offered to Judge Becker for probate by Richard Harlem and Daniel Mokay as the decedent's Executor).

One more distinction is that - in Becker's understanding, when the Estate in the Mokay action sued, it was not the same as when the decedent sued.

Yet, when my husband sued the decedent, he had to sue his Estate in the Neroni v Harlem's action, and Judge Becker was presiding over that action, and still argued that when the Estate is suing (or is sued) for actions of the decedent, it is not the same as if the decedent is suing or is sued.

I am not surprised as to incompetence and lack of integrity of Judge Becker, it is legendary, and already caused Judge Becker (I believe) into an early resignation/retirement, 3.5 years before his actual mandatory retirement based on age.

What I do not accept as the rule of law though (not surprised, as I know that corruption in the judiciary system in this state and this country is also legendary) is that the entire judicial system, from clerks to appellate courts, play the fool to Judge Becker's incompetence and uphold anything Judge Becker says no matter how incompetent - only to rule against my husband and myself.

The sad irony is that, after the hearing of February 29, 2012, when Judge Becker stated:

two events occurred - Judge Becker recused in August of 2012, without rendering a decision that he reserved 6 months (!) prior while he had only 60 days, by law, to render that decision.

Apparently, the requirements of the law do not concern Judge Becker.

Moreover, in September of 2012 Defendant Robert Harlem (retired judge, father and law partner of Richard Harlem) died and - guess what? - Richard Harlem substituted his father's Estate as a defendant in the action, where suing the Estate was clearly the same as suing the decedent.

But the real bounder happened in May of 2015, when Richard Harlem's client Daniel Mokay, who by that time ditched Richard Harlem for another attorney in an action against the decedent/Estate for contribution or indemnification, based on the order of the Appellate Court designating the decedent as participant in the alleged fraud against the Mokay children, stated the following under oath:


So, in May of 2015, after the Mokay trial in April of 2015, Daniel Mokay suddenly claims that his father (and the decedent of the Estate whose will Daniel Mokay must carry out as his fiduciary and representative) committed wrongdoing and caused harm now to the beneficiaries OF THE ESTATE, because "he took from the beneficiaries property which he was obliged to give them".

Now, wait a minute.

On October 5, 2007 Daniel Mokay's attorney Richard Harlem argued to the court, Judge Garry, this:




In June of 2014, when testifying under oath, Richard Harlem reconfirmed that he is litigating on behalf of Mokay chidren as third party beneficiaries (the Estate of the decedent was certainly not a third party beneficiary under the decedent's contract to make a will that decedent has allegedly broken by writing a revocable will and having two deeds drafted - yet the Estate EXISTS BECAUSE Daniel Mokay and the Mokay children PROBATED THAT WRONG REVOCABLE WILL).

Richard Harlem obviously does not concern himself with such details in litigation.  After all, as a son of a judge, even a retired and late judge, he has had his privileges, such as that courts will give him anything he wants not matter how frivolous.

But here is what Richard Harlem said on June 23, 2014  on record, in front of Judge Kevin Dowd under oath as to the theory of the Mokay litigation:

So, in 2014, same as in 2007, the theory of the Mokay case was that the five children of the decedent Andrew Mokay were contract beneficiaries under the decedent's contract to make a will.

Of course, that theory did not explain presence of the Estate as a plaintiff in the action, but Judge Becker precluded me from seeking a Bill of Particulars verifying that issue, the Appellate Division affirmed without analysis of the issue, and Judge Dowd who got himself assigned to the Mokay case while recusing from a related Neroni v Harlem case, could not care less.

I must also indicate that Daniel Mokay was sort of the "main plaintiff" in the Mokay action.  At least, in answer to my question as to why there is no correspondence and billing statements sent to anybody other than Daniel Mokay, answers the following:

So, after the trial on the theory that Daniel Mokay and his five siblings were suing as third party beneficiaries under their father's contract to make a will, Daniel Mokay suddenly comes up with another theory, which he discloses also under oath - that the Mokay litigation was due to wrongdoing of his father, the decedent (whose Estate, remember, was added for an unknown reason as a plaintiff in the Mokay litigation while Daniel Mokay was appealing placement of the deed in the Estate, and while the Estate/decedent and Daniel Mokay were represented by the same attorney Richard Harlem, his father Robert Harlem and their law firm).

In May of 2015 the theory now is that Daniel Mokay's father for whom Daniel Mokay acts as a fiduciary/Executor, defrauded beneficiaries OF THE ESTATE, not third party beneficiaries under the contract to make a will.



So, what are we going to do now, after Judge Dowd makes a decision based on the old theory of litigation?  Back to court?  Maybe, just maybe, it will dawn upon the presiding judge to actually look at the applicable law and facts that are in the record - and toss the Mokay litigation, with an award of costs and attorney fees throughout it in favor of Mr. Neroni?

Who knows, maybe the rule of law is not yet a complete fiction in New York?

How does one award attorney fees against a counsel that LEFT THE CASE before the motion hearing?

As Judge Lebous' decision demonstrates - with ease, even though litigating something against attorney who is no longer attorney of record is obviously unlawful.

But, in my case, unlawfulness never stopped judges from acting, especially when the real reason is personal retaliation.

Is it legal for a judge to order an attorney to reimburse another attorney for the bribe paid to a disciplinary prosecutor

It is a rhetorical question, isn't it?

Of course, it is illegal.

So, this is then the answer as to the legality of Judge Ferris Lebous' judgment requiring me to pay the legal fees of the law firm (Hiscock & Barclay of Albany, NY) of my husband's disciplinary prosecutor John Casey when there is a huge appearance that the law firm was hired as a payoff to John Casey in exchange for non-prosecution of influential attorneys Richard Harlem and Robert Harlem by the attorney disciplinary committee of the Appellate Division 3rd Department.

And, the Appellate Division 3rd Department where the corruption occurred, is uniquely disqualified from hearing an appeal from this case - but I bet that they will hold onto it in a death grip.

My question is also - is it judicial misconduct for a judge, to order an attorney, within a 20 day period of time, to reimburse another attorney for the bribe he paid to a disciplinary prosecutor?

Will the NYS Commission for Judicial Conduct have the spunk to answer that question?  Will the feds?  Will the appellate court?

Reliance on legal authorities is overrated when the judge's own misconduct is the issue

Many times various judges pointed out to me that simply stating that something is not fair, or not constitutional in my legal opinion as a trained legal expert (which trained legal expert I will remain, by the way, whether the retaliative judicial system will or will not yank my law license) - is not enough, that I must provide legal authorities that would "support" my legal opinion.

That point of view is, of course, erroneous, because any reasonable individual, attorney or not, can have an ability to interpret the U.S. Constitution and claim its protections as a matter of due process of law.

In fact, courts may not amend the U.S. Constitution by interpretation and may not create rights that did not exist before that cannot be directly derived from the U.S. Constitution without the interim interpretation by the courts.

To hold otherwise is to give courts authority they are not given by that same U.S. Constitution.

To hold otherwise is to foreclose even a possibility of having cases of first impression and developing the law.

Yet, ability of anybody, attorney or not, judge or not, to directly interpret the law is not the point I am making now. 

The point I am making now is equality under the law and practicing what the courts preach, when the issue turns on the judge's own misconduct.

In a recent decision, Judge Ferris Lebous of Binghamton, NY, refusing to recuse because it was not him personally, but his chambers engaged in an ex parte communication with a person who WAS opposing counsel at the time before jurisdiction of the court abated due to the death of his client (at the time ex parte communication occurred), provided NO legal authority whatsoever - none - supporting his position that ex parte communications with a judge's "chambers" is not the same as ex parte communication with the judge himself and obviously, not within the prohibition for ex parte communications.

Also, Judge Lebous testified on behalf of my opponents and on his own and his staff behalf in the decision (unsworn testimony, of course) by stating what his rules are, what he allows his staff to communicate with attorneys and parties about - while Judge Lebous did not make a statement that he verified with the staff what the communication was about, and while the billing statements provided to the court clearly indicated that the communication was on the merits of the case and NOT about scheduling.

Once again my husband and I are given to understand that rules created by courts, and laws created by the New York legislature - are not for the courts to abide when we are concerned.

One more argument in favor of introduction of peremptory challenges to judges in New York

How much is too much for the judge to HAVE to recuse?

The U.S. Supreme Court has ruled in 2009 that accepting $3 mln in an election campaign and then casting a decisive vote to overturn a $50 mln dollar judgment on appeal for the parties who made the $3 mln contribution is a violation of opponent's due process of law.

So, refusal to recuse is not always only up to a judge.

Yet, New York court continued to believe it is.

I repeatedly catch judges in ex parte communications.

Some recuse, some adamantly continue - and retaliate.

It is nearly impossible to get through to the U.S. Supreme Court.

The U.S. Supreme Court does not consider cases interesting or important, oftentimes unless the issue has hit the press big times - or, as in Judge Benjamin's case, the issue is buying a judge through a campaign contribution for $3 mln.

So, if somebody bought YOUR judge for less - that somehow becomes less of a due process problem?

Or, if somebody engaged in an ex parte communication with the judge for a period of time suggesting discussion of the merits and not simply "scheduling" - it is still in judge's hands and "discretion" to decide whether he must or must not recuse, even though the court rules and the U.S. Supreme Court cases mandate recusal where there is an appearance of impropriety.

Yet, judges have a very permissive view of what does or does not appear improper to a reasonable and objective member of the public.  In fact, judges believe that THEY are that reasonable and objective member of the public, and that they are objective enough to analyze their own conscience (where existence of such conscience is unprovable and unverifiable).

And the stubborn refusal of clearly conflicted judges to recuse from cases where ex parte communications occurred, whether with judges directly, or with their "chambers", is one more argument in favor of introduction of:

1) peremptory challenges of judges;
2) voir dire of judges who are making any factfinding decisions.

A rule of Judge Ferris Lebous: when caught red-handed in an ex parte communication - attack the challenger

In the case Neroni v Harlem in Delaware County Supreme Court, Index No. 2011-547, my husband has sued Richard Harlem, his law partners, his law firms and his Mokay clients for fraud - based on their inconsistent statements between two courts, Supreme and Surrogate in the probate proceedings of the decedent Andrew Mokay.

Of course, since then, the inconsistent statements have grown many times, but at the lawsuit was contained to these two sets.

The now running from the office he sought so much Judge Carl F. Becker dismissed that lawsuit at the pre-answer stage, with sanctions against my husband and I for frivolous conduct - specifically, for invasion of privacy of members of a conspiracy to defraud a court, where all members of the conspiracy were either attorneys, or public figures working for the court system - a sitting Supreme Court justice, his law clerk and his secretary (in the future, his wife).  

Names of these people were Robert Harlem (the judge and father of Richard Harlem, Robert Harlem was also admittedly the mastermind of the frivolous 8-year-long Mokay litigation that becomes unglued after the ex parte secret trial as we speak), Robert Harlem's court secretary (and future wife, now widow) Irene Mann/Harlem, Robert Harlem's law clerk Dennis Dineen who now is still employed by the State of New York and paid by the taxpayers.

The lawsuit referenced open public records of the Otsego County Surrogate's Court, showing that what Richard Harlem and his father did in the Mokay litigation, defrauding my husband and several courts, was not an accident or mistake and that they've done it before and escaped unscathed.

Judge Becker has never been known as a good theoretician in law.  Neither was his law clerk.

That, combined with his hatred of my husband and myself, resulted in a stunning decision where he punished both of us for referencing open public records as evidence against the Harlem defendants and the Mokay defendants.  

Apparently, in Becker's view, referencing open public records was somehow invasion of privacy of retired judge Harlem, his wife (not a party to the proceeding) and his former law clerk (not a party to the proceeding).

The sanctions also showed an interesting side of the court-created rule of frivolous conduct - that judges have authority to protect individuals who are not both parties in litigation and not parties to litigation and thus become advocates in the proceedings.

The sanctions were imposed at the stage of pre-answer motion to dismiss where all statements of my husband (plaintiff in that action) were PRESUMED TRUE, and when all pleadings were supposed to be reviewed in the light most favorable to my husband.

Decisions on a pre-answer motion to dismiss are not deemed decisions on the merits.

Yet, Judge Lebous treated Judge Becker's decision as a decision on the merit, refusing to vacate it despite the fact that Judge Becker clearly exceeded his authority by sanctioning us for allegedly stating something untrue - when the law presumed the statements to be true - while dismissing the case without reaching the merits in the pleadings.

At the time he made the determination, Becker was a participant in the fraud that was alleged in the Neroni v. Harlem and was clearly disqualified from making any rulings.

When a judge exceeds his authority, an appeal is not necessary, an order made in excess of authority can be addressed by a simple motion to address lack of jurisdiction to make certain decisions.

That motion was made.

That motion was rejected by Judge Lebous on the basis of "collateral estoppel", as if the decision of Judge Becker was on the merits.

And it is clear WHY Judge Lebous fought so vigorously and un-valiantly to have us punished and to stick attorney's fees for fraudsters against us:

Judge Lebous, same as Judge Becker, same as Judge Dowd, engaged in ex parte communications with Richard Harlem's representative before he made his decision.

Of course, Judge Lebous tried to deny it by stating that his "chambers" were authorized to discuss "scheduling" with all attorneys.

Yet, when Richard Harlem's attorney provided a billing statement to the court, the billing statement did not indicate that the 12-minute (!) discussion with Judge Lebous' "chambers" was of scheduling.

Seriously, an attorney does not need to discuss "scheduling" with the judge's "chambers" twice, and especially at the time when the court's jurisdiction abated due to the death of that attorney's client (Robert Harlem - client of David Cabaniss) and when David Cabaniss lost authority to represent that client.

Moreover, discussing anything with the judge's personnel is an equivalent of discussing it with the judge himself - yet, Judge Lebous happily made a distinction in his order, stressing the work "chambers".

That means, for purposes of prohibition on ex parte communications, in Judge Lebous' view, that he can allow his personnel (including the law clerk who authors his decisions) to engage in ex parte communications - and then claim that he is free and clear and did not engage in the ex parte communications HIMSELF.

Of course, if the ex parte communications occurred through an agent of a judge, that did not make it any less improper than as if the judge did it himself.

Richard Harlem's attorney "explained away" the 12-minute communication with Judge Lebous' "chambers" by stating that he allegedly discussed with Judge Lebous' "chambers" certain scheduling.

Yet, at the time of the discussion, Judge Lebous had no authority to do anything in the case because at that point, one of the parties to the action (Robert Harlem) died, and his attorney David Cabanis was no longer his attorney, he lost his authority to represent anybody in the action until the substitution of Robert Harlem's estate into the action.

At the time of the ex parte communication, no such substitution was made, so no scheduling discussions could be held.

Moreover, the billing statements, submitted with an affirmation that they were true and correct and that they were "business records", did not require additional explanation (being "business records"), and clearly and unambiguously indicated that what was discussed was NOT scheduling, but was the MERITS of the case - which is within the core of the prohibition of the ex parte communication between judges and attorneys.

Of course, Richard and Robert Harlem's attorney David Cabaniss was caught, through his own billing statements, in ex parte communications not only with Judge Lebous' "chambers" - twice - but also with Judge Becker's "chambers", he talked with Judge Becker's "chambers" for 12 minutes on the day before the motion hearing.

Of course, Richard Harlem and his "trial counsel" James Hartmann were caught since then in ex parte communications with Judge Dowd's law clerk - who is authoring Judge Dowd's decisions and making and communicating e-mail orders for Judge Dowd.

If ANYBODY ELSE would be caught, repeatedly, in ex parte communications with judges in related actions - that attorney would be sanctioned and disciplined.

Not Richard Harlem or attorneys who he hires - because Richard Harlem very obviously has a special status in court, not only as a judge's son, but also as the landlord of many years for the influential Republican Senator James Seward - whose attention is now catered by Becker's buddy and aspiring successor Porter Kirkwood.

Yet, we have seen lately several people who were deemed "unsinkable" and yet who took a dive toward "early retirement"/resignation (Becker) or federal criminal charges for corruption (Silver and Skelos) because, very apparently, New York state does not recognize corruption in the government as a crime and assigns the New York State Attorney General to represent the corrupt officials instead of investigating and prosecuting them.

The feds are currently vigorously investigating corruption in New York State government.

I turned into the Federal Trade Commission the actions of John Casey, the disciplinary prosecutor of my husband AND of Richard and Robert Harlems, who sold his prosecutorial discretion in exchange for the right to have Richard Harlem and Robert Harlem as paying clients of his law firm.

By endorsing that deal by ordering my husband - and myself - to reimburse Richard Harlem for the bribe he paid to my husband's disciplinary prosecutor, after TWO ex parte communications with Richard Harlem's attorney and John Casey's law partner David Cabaniss  - Judge Lebous became a part of that federal crime of theft of honest services of a disciplinary prosecutor.

John Casey, partner of David Cabaniss, and, through that partnership, attorney for Richard Harlem - at the same time John Casey was supposed to investigate and prosecute Richard Harlem as a disciplinary prosecutor, on my husband's and my own complaint.

But once again - with all the support from the former disciplinary prosecutor, with all the support from the law firm Hiscock & Barclay employing NY Senator Neil Breslin, with all the support of Richard Harlem's landlord NY Senator James Seward, relying upon support of a New York Senator may prove imprudent, in view of suddenly rising statistics of NY Senators being charged and indicted for corruption by the feds.

So,  if I were Richard Harlem, I would not be that secure in the feeling that he is "unsinkable" because he is backed up by James Seward and by the law firm of Senator Neil Breslin...

Being backed up by a New York Senator may prove feeble protection these days...

As to Judge Lebous - an appeal will show just how correct Judge Lebous was in deeming his "chambers" as being separate from himself for purposes of ex parte communications, and I wonder what would the feds and the NYS Commission for Judicial Conduct will say about confirmed ex parte communications between Judge Lebous' "chambers" (as well as Judge Beckers, and Judge Dowd's) with Richard Harlem and his hired hands.

On the other hand, at the background of Judges Becker, Lebous and Dowd who were caught in ex parte communications and retaliated for being caught through court cases,  Judge Christopher Cahill of the Ulster County Supreme Court who "only" threatened to turn me into the disciplinary committee for challenging him on the spot as soon as he completed an ex parte communication with the opposing counsel Dolores Felice (Delice) Seligman of Kingston, NY, but recused from the case - seems nearly as a paragon of virtue (even though the NYS Court Administration destroyed court camera footage of Judge Cahill's misconduct in order not to give it to me on a FOIL request).

Well, well, well...  Aren't we all in the judicial system feeling insecure when we are confronted with a clear EVIDENCE of misconduct...

Judge Lebous' decision in trying to make a "distinction without a difference" between ex parte communications with "chambers" vs. himself surely qualifies (in my opinion) as such insecurity.

Judge Lebous: the Neronis should pay the fraudsters' attorney fees for "invasion of privacy" of the late judge Robert Harlem and his co-conspirators in fraud, for referencing public records of that fraud in court papers

Judge Ferris Lebous continues the legacy of the soon-to-be-retired Judge Becker by imposing attorney's fees, in the amounts of thousands of dollars, with a severely restricted deadline for paying them, for "frivolous conduct" consisting of violation of privacy of public officials by exposing their misconduct by referencing public records (open court records and records about their position and salary, also publicly available) in court proceedings.

Neither Judge Lebous nor Judge Becker paid any attention to the fact that such conduct is perfectly legal.

As to both Judge Lebous and Judge Becker there are documents showing that there were ex parte communications with their "chambers" by Richard Harlem's attorney for lengthy time and without any explanation, before the decisions imposing sanctions and/or attorney's fees were made.

It is obvious that, for Judge Lebous, it does not matter that he is imposing sanctions upon us for lawful conduct - as long as he imposes sanctions upon us, because my husband exposed Judge Lebous' ex parte communications with Richard Harem's attorney, and we are thus enemies of Judge Lebous that must be punished no matter what.

I definitely refuse to be used as an ATM machine for Richard Harlem and his crew, especially because one of the Mokay clients of Richard Harlem has recently came clean and undid the whole Mokay litigation, after the ex parte secret bench trial, and exposed the Mokay litigation (based on which Lebous imposed the sanctions) for the major fraud that it is - with just one sworn statement, posted here.