Judge Kevin Dowd strikes back for today's blogs and attempts to punish a female immigrant attorney for being on a legitimate medical leave

Today I started to publish my analysis of the trial transcript of the ex parte and secret Mokay trial.

I published two blog posts early in the morning pointing out incompetence and bias of Judge Kevin Dowd which was clear from the record of the transcript.

One thing that a litigant and a litigant's attorney can count on regarding Judge Dowd is his consistency in striking out in revenge against those who he does not like.

I already blogged about outrageous behavior of Judge Dowd pertaining to a pro se litigant in a divorce action where Judge Dowd, even judging by the transcript created by a stenographer who was Judge Dowd's law clerk's Facebook friend, was outrageous.

Here, Judge Dowd struck against me in a lightning-speed strike.

It took Judge Dowd from April 7, 2015 to June 18, 2015 to send me a decision in the Mokay trial - of course, it was dated June 12, 2015, but I wonder what made the judge sign the order on Friday, June 12th and then wait to deliver it to me by e-mail no less until the next Thursday, June 18, 2015.  Looks more like a backdated decision to me, especially that it was accompanied by a decision dated today requiring me to "show cause" why I should not be punished for not appearing at trial - while the court had from me a file medical excuse from work, filed the day prior with the court.

The beauty of the situation is that as of June 12, 2015 when the court has rendered a FINAL decision on damages, without rendering any decision on sanctions, the court has lost subject jurisdiction over proceedings, if it ever had it and if the ex parte trial is to be considered legitimate, and Judge Dowd's knee-jerk reaction to my blogs of June 18, 2015 was completely illegal.

The judge simply did not have any further jurisdiction after he decided the case allegedly on June 12, 2015. 

There are two phases in each civil litigation - liability stage and damages stage.

Once both stages are resolved, and resolved without any decisions on sanctions, the court lacks authority to proceed in the case.

Judge Dowd made a decision on damages - which were in their entirety attorney fees of the conflicted law offices of Richard Harlem (whose client, since the trial date, already filed with another court a sworn affidavit that undermined the entire testimony at trial on April 7, 2015).  That decision, by law, has to be final.

Yet, Judge Dowd apparently thinks that his jurisdiction over a civil case - when he wants it to continue - is practically permanent and never-ending.

Apparently, Judge Dowd's law clerk Claudette Newman did teach Judge Dowd well on the law.

And just think about it - Judge Dowd decided that he needs to issue an additional decision, 6 days after the date of the final decision on damages where no sanctions were mentioned, and "coincidentally" on the date when I published several blogs criticizing his incompetence in this particular litigation.  And Judge Dowd now wants punish me because I:

(1) was injured;
(2) was diagnosed by a doctor as injured - of which there was NOTHING in the decision of Judge Dowd (a subpoenaed witness in the case);
(3) notified the court one day prior that I was injured, have a medical excuse from work and will not be able to appear.

Judge Dowd is now attempting to punish me - for what? - because I did not humiliate myself by CRAWLING into the courthouse writhing in pain from my wrenched back?  I do not think Judge Dowd's power of a judge stretches that far.

Yet, Judge Dowd's June 18, 2015 decision which I provide here in full demonstrates me that Judge Dowd lacks elementary decency as a human being, man, attorney and judge and that if anybody is unworthy of his robe, it is Judge Dowd.

His decision retaliating against me for raising issues of his misconduct in blogs is indecent and dishonorable.

I wonder if the NYS Commission for Judicial Conduct will be able to stomach this behavior of a judge as proper and "within judicial discretion".

Not to mention that I represent a plaintiff suing Judge Dowd in federal court in his individual capacity for money damages, for behavior AFTER he recused from a case, which means that the judge is not covered by judicial immunity in those actions.

By the way, I've read in the transcript of the ex parte Mokay trial that Judge Dowd was on a vacation up until the day of the trial - and I filed today, by e-mail a FOIL request about Judge Dowd's vacation schedule from September 1, 2012 to present date.  I wonder what I will find there that upset Judge Dowd so much.

I posted today's blogs about Judge Dowd sometime around 7 am my time, and FOILed the NYS Court Administration at 10:38 am.

The decision was sent to me by Brenda Beckwith, secretary to Judge Dowd (and also a subpoenaed witness at the trial that Judge Dowd refused to adjourn despite my documented illness) at 2:37 pm today, about 4 hours after I FOILed the NYS Court Administration for Judge Dowd's vacation schedule.

Looks pretty much like retaliation to me.

Here is the decision of Judge Dowd demanding me to answer him why he should not sanction me for not appearing at trial while he knew I was sick and had a medical release from my doctor (which was filed with the court the day prior to trial):

Or maybe Judge Dowd did not like being legitimately criticized by me for the appearance of cronyism and corruption in his assignments?

One thing is undeniable - Judge Kevin Dowd is consistently vindictive against those who criticize him, I will give him that.

But, same as Judge Carl F. Becker, a judge of legendary temper tantrums, rudeness, challenged ethics (an understatement of the century) and with a legendary record of misconduct and reversals which no authorities in the State of New York wanted to properly address, had to finally "retire" (see here and here) for unknown real reasons many years before the end of his term, even with mandatory retirement, Judge Dowd may not be as invincible as he thinks he is.

The future will show, won't it?

Claudette Newman at it again

In the transcript of the Mokay trial I see that Judge Dowd's law clerk Claudette Newman was allowed by Judge Dowd to make statements on record during the pre-trial conference.

This is the second transcript I see of court proceedings where Claudette Newman is allowed to make statements on record.

Law clerks NEVER make statements on record in court proceedings.  If they are present, they are present as observers, not as participants.

Claudette Newman is not a witness, is not an attorney for the party and is not a party litigant in the proceedings.

She should not be allowed to make any statements in the proceedings, yet, she is - and she is making statements to prompt the judge into actions, which judge appears to comply with.

As I said before, Claudette Newman is apparently wagging the judge - and that is not an acceptable situation.

Moreover, the transcript suggests that Claudette Newman not only was making decisions instead of Judtge Dowd in the Mokay proceedings in the days preceding the trial, but was doing it when Judge Dowd had no authority to make any decisions - when he was vacationing in Virginia.

So much for the rule of law.

What happens if a case goes to trial in Judge Lambert's court

In my previous blog post I indicated how Judge John F. Lambert conferences cases to death to force settlements upon litigants, potentially through financially draining them by having to pay their counsel to appear for the endless conferences that they did not ask for.

Yet, when people actually go to trial in Judge Lambert's court, what happens is that a decision may be produced where the judge does not even care to articulate parties right clear enough for the appellate court to understand them.

If the appellate court does not understand the parties' rights, surely the parties cannot either, and not every case from Family Court goes to the Appellate Division, many people simply give up or cannot afford to appeal, so there may be a lot more cases out there like this one.

It is a shame, because when Judge Lambert started out, I could see he was making efforts to be fair.  Then, increasingly, he became snappy and disrespectful to litigants and attorneys - apparently, learning from his judicial colleagues and from the concept of judicial immunity that allows judges in the State of New York and in this country to do anything they want on the bench, with complete lack of accountability.

What is also alarming about this judge is the rate of reversals.  There are simply too many recently:

April 3, 2014 - People v Fancher, a partial reversal;

July 3, 2014 - Town of Delhi v Telian, a reversal on the law (there were valid points for the defendant Telian, but not pertaining to standing to sue, but, as far as I know, pertaining to the fact that defendant was not the owner of the property that was subject to code enforcement at the time of alleged violations, but that issue does not seem to be discussed in the appellate decision);

January 8, 2015 - Beardslee v. Beardslee, a modification on the law for failure to allow the defendant in a divorce proceedings credit for separate property contributed toward marital debt;

January 22, 2015 - People v Tubbs, a reduction of sex offender level from III to II for improper attribution of factors;

June 4, 2015 - Dumond v Ingraham, reversal on the law.

FIVE reversals or modifications in the last year?  Is Judge Lambert getting sloppy in his work? No wonder he tries to conference litigants to death - possibly fearing yet another reversal or modification on appeal which will reflect badly upon his judicial reputation?

It is a pity what is happening. 

Once again, at the beginning of his career Judge Lambert was visibly trying to be a good and a fair judge. 

I am a witness to how Judge Lambert had the courage and decency in one of the cases I tried in front of him to acknowledge the error in law that he made at the previous day of trial in his ruling, saving the parties time and effort to have to appeal the ruling (admission of hearsay evidence in child protective proceedings at the fact-finding hearing).  I know that attorneys present in that case greatly appreciated such judicial candor, as did I.  I only respected Judge Lambert more for that correction.

Yet, I also know that, as Judge Lambert's career developed, he became increasingly snappy against attorneys and parties, including, sadly, as far as I know, being rude to female attorneys who are older than the judge (and I do not mean myself), and increasingly sloppy in his rulings.

As they say, absolute power corrupts absolutely.

I wonder whether there is still potential for Judge Lambert to return to where he started his judicial career - by trying to be fair to people and diligent in application of the law.

For the sake of the people appearing in front of Judge Lambert, I hope there is still such a potential.

Conferencing clients to their financial death to coerce settlements in Judge John F. Lambert's court

Every attorney who regularly appears in front of a certain judge knows the judge's (and his law clerk's) little and not-so-little quirks.

A big quirk of Judge John F. Lambert (of Otsego County, but he is assigned all over the place, Delaware County included) is - conferences.

Remember, people pay from $150.00 an hour upwards to their attorneys to handle their cases.  For many people this is a very serious financial burden.

Yet, Judge Lambert, in his pursuit of "resolutions" for both civil and criminal cases (in other words, in pursuit of settlements), conferences these cases to death, thus very possibly causing litigants to be drained of financial resources after conferences and leaving no financial resources to pay their attorney for the trial preparation and to go to trial.

Example # 1.  Criminal cases.

A criminal case in the County Court in New York is pretty much streamlined procedure-wise - or at least, it should be.

There is an arraignment.

There is discovery.

There is an omnibus motion to be filed within 45 days of the arraignment, and a decision to be made by the court within 60 days of the returnable date of the motion.

There are motion hearings, if any were ordered by the court as a result of the motion.

There is a trial.

That's it.

Not in Judge Lambert's court.

The majority of appearances the Judge Lambert ORDERS for criminal defendants and their counsel to appear at (and if they do not appear, criminal defendants may be arrested and put in jail for non-appearance), are for conferences.

Even if the criminal defendants and their attorneys did not ask for conferences, and do not want to seek a plea bargain.

The judge still makes them appear at the conference, once again, at the threat of a disciplinary violation for the counsel and at the threat of a bench warrant for the defendant.

What happens at those conferences?

I've been to a number of them and I can tell you.

Attorneys only are being called in a succession into the judge's chambers.

The situation is grossly unfair because your client is not there, but the judge allows presence of police officers and representatives of probation department, all possible witnesses at the future proceedings.

Such conferences are important stages of criminal proceedings, yet, in Judge Lambert's court they are held off record and without the criminal defendant's presence.

It has been very recently reported to me that a criminal defendant asked the criminal defense counsel to NOT engage in conferences with Judge Lambert off record and without the defendant's presence, and the judge still did - as recently as this week.

In my view, this is a gross constitutional violation. 

Not only there should be no resolution of a criminal case when the criminal defendant does not know what is discussed behind his back, but it is grossly inappropriate for the court to require the criminal defense counsel to come to court, and forcing the criminal defendant to pay for those trips, which ultimately may result in draining of the defendant's limited funds and inability to proceed to trial - which may be Judge Lambert's way of "attaining resolutions" of criminal cases, especially that conferences in Judge Lambert's court in criminal proceedings are called often, wthout any given reasons and without any apparent necessity for such conferences.

Example # 2.  Civil cases.


If in criminal cases Judge Lambert at least "graces" the counsel only with his presence at the conferences, this does not happen in no-less numerous conferences called by Judge Lambert in civil cases.

In those cases, Judge Lambert's law clerk Mark Oursler handles such conferences.

Mark Oursler is not a bad guy - but he is known to be talking incessantly of his own personal interests during the conferences, and attorneys, even though they loathe the waste of time, are afraid to voice their objection against this practice, for fear of jeopardizing their clients' cases.

When I was at conferences with Mark Oursler, he usually talked about Russia - obviously, because I am Russian.

Mark Oursler did not appear to know much about Russia, but he discussed the Russian history trying to claim that he did know it.  Mark Oursler was especially invigorated when two Russian attorneys were present at the same time - then he inevitably discussed Russia, and for a long time.

Conferences like that were held off record, and there is no way for the clients later on to verify what was discussed.

To tell Mark Oursler, politely or impolitely, to shut up and get down to business for which the court ORDERED attorneys and clients to drop other business and appear - was out of the question, once again, for fear of what would happen to your clients' case if you do tell Mark Oursler to get down to business.

From my conversations with other attorneys, I know that it is a regular practice, known by attorneys, for Mark Oursler  to discuss his personal interests in conferences.  Mark Oursler cannot by any stretch of imagination to be called stupid or not knowing court rules, the law, or rules of attorney ethics.

For sure, he knows what he is doing - and I am wondering whether the practice of conferencing civil cases to death, in the absence of clients, off record, while Mark Oursler discusses his personal interests - at a hefty cost to clients - is just a tactic to force "resolution" of cases, in other words, force settlements to clear Judge Lambert's calendar.

And that is for the Committee for Attorney Discipline and for the Commission for Judicial Conduct to investigate - if the will dare to do their jobs and investigate a judge and an attorney working for the judge.

After all - what is at stake?  "Only" constitutional rights of litigants that both Judge Lambert and attorney Oursler are sworn to protect.

Since nearly everybody in this country has been sworn to do something, and misconduct in office is rampant, meaning that sworn oaths of office do not mean much for a lot of people, constitutional rights of litigants are usually the last thing that such committees and commissions want to look at.

And that situation needs to be changed.

Did Judge Dowd acknowledge his incompetence by raising the defense of absolute judicial immunity - based on Richard Harlem's legal viewpoint, he might have

In the ex parte secret Mokay trial, Richard Harlem was testifying as a witness as to the legal fees of his two law firms that he claimed as the only damages for the plaintiffs (by the way, plaintiffs' presence was not noted on record).

 

 

He was claiming, as damages, legal fees in "having to oppose" a motion that I made on behalf of Mr. Neroni - asking the court to apply the newly created precedent from the case where I sued an attorney for defamation, fraud and fraud upon the court.

 

 

In that case, the same court (another judge), Delaware County Surpeme Court, has granted the private attorney absolute judicial immunity for deceitful acts during litigation.

 

 

That was exactly the same as Mr. Neroni was sued for.

 

Absolute judicial immunity is, as applied by all courts, a jurisdictional bar to the court proceedings.

 

 

In other words, if absolute judicial immunity applies, the courts consider such immunity as stripping the courts of jurisdiction, and the courts have no longer any authority to proceed with the action on the merits.

 

 

That is exactly what I asserted in the motion.

 

 

Here is Richard Harlem's comment about that in his testimony at the ex parte secret Mokay trial on April 7, 2015 which was held without my presence, when I was at home with a back injury, after having duly notified the court of that injury and after presenting to the court a doctor's note releasing me from work.

 

 



Richard Harlem claims that by raising the defense of absolute judicial immunity, which was just granted to another attorney in the same Delaware County Supreme Court, Mr. Neroni somehow acknowledged misconduct.

That statement says a lot about competence, or rather, incompetence of Richard Harlem who apparently does not distinguish between juridictional defenses and arguments on the merits of a case.

Yet, when applied to judges who routinely claim absolute judicial immunity when sued for civil rights violations, that would then mean that judges acknowledge misconduct alleged in the court actions against them by raising that defense?

And, since Judge Dowd was sued by Mr. Neroni in a pro se civil action (dismissed based on absolute judicial immunity rasied by Judge Dowd), Judge Dowd acknowledged his misconduct that Mr. Neroni sued him for by raising that defense?

It is interesting how Judge Dowd will rule on this new rule formulated by Richard Harlem - when you raise a jurisdictional defense, you acknowledge allegations in the complaint on the merits.

Looks like Richard Harlem would benefit from another trip to law school, for an extended period of time.

Readers Digests for judge Kevin Dowd

I received the transcript of the Mokay trial that was held in an ex parte and secret manner on April 7, 2015 - see my blog posts from end March and beginning of April on the topic.

There are many interesting things to report from the transcript, and I will run several blog posts about how that ex parte secret trial was held.

Before I go into any in-depth analysis though, it is interesting to mention that trial counsel for the plaintiffs in the Mokay case considered it necessary to give Judge Dowd summaries of pleadings that they claimed to be the basis of their claim of damages (wholly consisting of legal fees of Harlem & Harlem and Harlem & Jervis law offices).

Richard Harlem, in his sworn testimony, called one such summary a "Readers' Digest" version of what he is going to testify about (Richard Harlem's words, not mine).

Richard Harlem also calls the "Readers Digest" summaries of what he was testifying about as "posters":

The "posters" summarized the "legal activitity" of the Harlem & Harlem and then Harlem & Jervis law firm in the Mokay case.

Of course, given the level of misconduct of Richard Harlem, his father and their law firms in the Mokay case that I already wrote about and that I am going to write about based on the transcript that I received, activity of Harlem & Harlem and Harlem & Jervis law firm can hardly be called "legal"...

Richard Harlem claimed that the charts ("posters") of his two law firms' "legal activity" in the Mokay case will assist the court in "following" his testimony.

Apparently, Judge Dowd needs "Readers Digest" version of pleadings to follow the testimony at trial, and attorneys who know the judge know it.

The judge was appreciative, and, as the scan above shows, received the "Readers Digests" into evidence without question.

The judge was, in fact, so appreciative of Richard Harlem's efforts that at the end of trial, when Richard Harlem acknowledged that he failed to provide to the court what he is asking for in treble damages, the court humbly requested Richard Harlem to, please, provide the breakdown of what he is asking AFTER the trial, and apologized to Richard Harlem for inconveniencing him.

I will remind the readers that Judge Kevin Dowd is the judge who ranted about somebody building a urinal in his honor during discussion of custody and visitation of a child in divorce proceedings, so he may be completely off upstairs.

Evidently, Judge Dowd needs "Readers Digest" versions of the testimony to be able to comprehend and follow it, and attorneys who know him openly state that on record.

And this is the judge who holds in his hands property rights, custody rights of children and liberty of litigants appearing in front of him.

If that is not a condemnation of the farce that the New York judicial system has become, I do not know what is.

NYS Appellate Division Third Department legalizes ex parte motions

I've written on this blog already about the illegal way of how my disciplinary case was transferred from the Appellate Division Third Judicial Department to the Appellate Division Fourth Judicial Department.

I've written on this blog that I was never served with the "application" for that ex parte order of transfer, that the "application" was never transferred with the rest of the court record to the transferee court, Appellate Division Fourth Department, and that the Appellate Division Third Department adamantly refuses to provide to me access to that particular portion of the court record, while Appellate Division Fourth Department proceeds (without authority) on an incomplete record.

This is a response to my motion - denied, no explanation given. 

Not good enough. 

The motion was based upon my affirmation, the court has no proof of service of the "application and papers filed in support" of the application, there was no opposition to my motion, so the court had a legal obligation to follow the law and to grant my motion by default and as a matter of law.

Moreover, I asked for sanctions for frivolous conduct against the attorneys and the attorney disciplinary committee of the Third Department who admittedly made an ex parte motion.

Yet, this is not how the Third Department operates. 

The Third Department participated in misconduct, decided an illegal ex parte motion made by the 3rd Department attorney disciplinary committee, then recused from my disciplinary case - and yet sticks like glue to my other cases, despite a well established rule - a judge recuses from one case involving a party, there must be a recusal from all other cases, because the judge's impartiality may already reasonably be questioned.

Now the Third Department refused to grant sanctions for making an ex parte motion - which motion was UNOPPOSED and was supposed to be granted BY DEFAULT. Nothing like protecting the disciplinary committee - which means bias - which means the court should not have even been reviewing and deciding this motion because of its obvious involvement in misconduct described in the motion, the actual reason for the motion.

The Third Department positioned itself as an arbitrary ruler who is above the law because - guess what - what are my chances that the 3rd Department's decision will be overturned on appeal in the NYS Court of Appeals and that my petition for certiorari will be granted by the U.S. Supreme Court - right, the chances are negligibly small.

Therefore, the Third Department can adamantly and obnoxiously flaunt in my face a decision, without an explanation, reasoning or legal grounds, an illegal and unconstitutional decision saying - here, what can you do about it - nothing?

In fact, I can do something. 

First, I can write about it and I can contribute to the growing awareness of corruption and open and adamant misconduct and incompetence in courts throughout this state and this country, on all levels. 

Second, since I consider such a decision, especially in view of what kind of motion is denied without an explanation, and what kind of circumstances were the basis for the motion - as adamant, obnoxious, unlawful and unconstitutional.


The court must at the very least provide legal grounds upon which such motions are denied, if they are denied.  It is a litigant's due process right, and I will be asserting it by available legal means - and some legal means, believe it or not, are still available to me.

What the court did instead is that it created a self-serving precedent legalizing what constitutes both attorney misconduct and judicial misconduct - an ex parte motion made by a party, reviewed and decided by the court, and where the court and the party continue to refuse, for a year now, to release papers upon which the order was based and which are clearly identified in that order.

Stay tuned as to how the situation develops.