Judicial discipline in New York in 2015 - Part II . Drug-addicted sons of judges with tied kittens and lighters and their honorable parents

I continue to review judicial discipline in New York in 2015, as per the annual report of New York Commission for Judicial Conduct.

In my previous blog, I provided a table with a brief description of judicial discipline imposed by the Commission in 2015.

I would like to concentrate today on two cases where judges were involved in criminal behavior, but remained on the bench.

Those cases are:

1) the theft of the court funds case;
2) the kitten case.

The theft of court bail money case

In the theft of the court funds case, a judge, Thomas Kressly (Urbana Town Court, Steuben County) took $500 in bail money from the defendant's family, and the money disappeared. 

Judge Kressly did not provide a coherent explanation of the missing money, so Judge Kressly had to be charged with theft.

Judge Kressly was not charged with theft and remains on the bench.  First, it is a problem to keep on the bench a person who was caught in a theft before, for veracity reasons, and because a person who most likely committed a crime does not have the requisite character to be a judge.

Yet, Judge Kressly, who is not an attorney, remains on the bench.

The kitten case

This case is a disgrace, and I do not mean to rhyme.

Judge Daniel P. Sullivan, of Whitestown Town Court, Oneida County, had a 19-year-old son.

Judge Daniel P. Sullivan and his wife, according to the judge's own admission, spent all their life savings to cure their son of drug addiction.

Apparently, it did not work, because the son was caught by the police in the stall of a women's restroom of a parking lot of a public park after closing hours of the park, with "hog-tied" kittens and a lighter.

 So, Judge Sullivan was called to the scene to take his son home, so his son was already spared immediate charges, immediate arraignment and jailing - even though he was caught practically red-handed in the commission of a two violent felonies (cruelty to animals and arson).

Why was Judge Sullivan's son not immediately charged with a felony, arraigned and put in jail pending prosecution?  

Because he was a judge's son?

By the way, the judge's son was NEVER charged with a felony - he was only charged with a misdemeanor cruelty to animals, while he could very well be charged with an E-felony attempt to commit cruelty to animals with grave injury.

The next question is - why kittens were given "into the custody" of a defendant's son, who was taking kittens AND defendants someplace from the scene of the crime.

Why?

Wasn't it the duty of the police to take the kittens to the nearest shelter? 

Why give EVIDENCE, not to mention, live creatures, to the father of a criminal defendant just caught in the commission, once again, of two violent felonies?

That's quite a chain of custody for the evidence.

-  Where did you put the evidence of the crime, officer?

-  I gave it to defendant's father?

- Why?

- He is a judge.

 

And, my question is - where are the kittens now? 

Had they gone to a pound, there would be records as to what happened to them.

Since they went into the hands of the sadist's father covered with the shield of "honor" that puts him - and his son - above the law, where are the animals?  What happened to them?

Did Judge Sullivan throw them away "where his son found them", hog-tied by his son as they were?

Did Judge Sullivan give the kittens to his sadistic monster son - as a favorite toy - to finish what the son started?

Judging by the fact that Judge Sullivan had the audacity of calling the police and asking them not to charge his sonny boy with anything because he still believed his son was a good Sheriff's Department material, says it all.  Judge Sullivan's "fatherly love" makes him blind to the monster he continued to raise, so anything is possible.

 Now, Judge Sullivan, as a judge of a justice court, knew that what his son did was at least one violent felony (attempt at committing an act of cruelty to animals with severe injuries).  How would he know that?  Judges of justice courts handle arraignments and preliminary hearings in felony proceedings in New York.

So, Judge Sullivan, after he did whatever he did to the kittens given by the police into his "custody" at the crime scene, started to interfere with the court the very next morning, in the following way:

What the judge did qualified as obstruction of justice at the very minimum.

Was judge Sullivan charged with any crime for what he was doing?  No.

He was slapped on the wrist and allowed to remain on the bench.

And think about it - the judge was concerned that a charge of animal cruelty, after being caught red-handed, will ruin his son's chances of getting a job with the Oneida County Sheriff!

Given that mental health and employment records of police officers in New York are protected from disclosure by Civil Rights Law 50-a, and based on the judge's sadist son's case - how many more uncured drug addicts and sadists are walking and driving the streets in police uniforms, with tasers and guns?

Here's what happened to the judge's sadist drug-addicted son:

The sadist was charged with a misdemeanor instead of a felony.

Even with that low and inadequate charge, he was allowed to plead to a lesser misdemeanor of "carrying an animal in a cruel manner", which obscured the nature of the charge.

Even under the charge the son-of-a-judge pled to, he could be sent to jail for at least some time.

That did not happen.

He could be and should have been sent to a rehab again.

Before sentencing to a misdemeanor, the court has to consider a pre-sentencing report, and in a pre-sentencing report, drug addiction and unsuccessful prior treatment would have come into the court's view.  So, the sentencing court disregarded this information.

Why? 

Because the court was sentencing a son of a colleague, a fellow judge?

50 hours of community service, stay away from the park, have your father pay a fine and a surcharge and - now this is a real punishment - stay away from cats!

You can other small and helpless critters to your heart's desire, but stay away from cats only.

To escape a conviction for a violent felony, for an act of sadism to animals with a conditional discharge, a fine and surcharge, 50 hours of community service and a prohibition to come into a certain park and near cats?

And, this young man might still hope, as his father does despite everything that happened, to join the police force?

We really need to fight for the repeal of Civil Rights Law 50-a.

Imagine how many sadists and perverts with a badge are hiding behind this law.

As to Judge Sullivan, his son and the kittens.

Judge Sullivan is still on the bench.

His son escaped with a slap on the wrist.

And the kittens - where are they after they were put into the "custody" of the sadist's father?

Where are they?

And - as an afterthought...  While everybody coddles a sadistic brat because he is a son of a judge, we need to remember that homicidal maniacs started their "journeys" into killing sprees by first exercising on animals.

Temporary suspension of New York Senator John Sampson, no disbarment of Dean Skelos and Sheldon Silver. Really?

Here is attorney registration information for three former New York legislators:

• Senator John Sampson, former Chairman of the New York Senate's Judiciary Committee;
• Senator Dean Skelos, former New York State Majority Leader;
• Sheldon Silver, former New York State Assembly Speaker

Ok.  

John Sampson is "temporarily suspended" from the practice of law.

The other two are attorneys "in good standing" with "no record of public discipline".

Even though Dean Skelos was indicted for this - and convicted by the jury on 12/11/2015 for EIGHT felony counts, specifically for:

That's from extortion under the color of official right to solicitation of bribes, all federal felonies.

And here is the verdict sheet for Sheldon Silver:

Wire fraud, mail fraud, extortion under color of official right.

So, John Sampson was convicted for a felony in July.

New York law requires an automatic disbarment of an attorney convicted of a felony - WITHOUT disciplinary proceedings, as of the date of conviction.

John Sampson was not disbarred, as required by law.

Instead, disciplinary proceedings were instituted, and he was only temporarily suspended pending further disciplinary proceedings and "until further order of the court".

Why was John Sampson suspended while Dean Skelos and Sheldon Silver are not?

Sampson asked to postpone his suspension until the sentencing.

Yet, sentencing does not change the fact of his conviction (guilty verdict), nor does it change the same guilty verdicts for Silver or Skelos. 

This is what the court rebutted Sampson's objection to "interim suspension" before sentencing:

 The court then said that commission of a serious crime warrants an "interim suspension".

Once again - why only Sampson?

Why not Silver?

Why not Skelos?

The crimes for which they were already convicted by juries, the federal felonies - are not serious enough?

They can still proceed representing clients as "attorneys in good standing"?

Their connections still allow them to remain licensed attorneys "with no record of public discipline"?

Do you want to be represented by Skelos or Silver?

I bet you might want to - their connections can secure anything for you, law or no law.

Judges self-excusing themselves from work to go contributor-chasing

When a judge is elected to the bench, the judge's first and foremost duty is to be a judge.

Right?

Well, maybe.

A Wisconsin #judgeRebeccaBradley is being criticized for leaving the bench in the middle of the oral argument and adjourning such argument because she reportedly needed to meet with the state business lobby who would fund her re-election campaign.

It may be, as Judge Bradley's "spokeswoman said", that judges "routinely excuse themselves for personal or scheduling reasons".

There are four questions (at least) about that though:

1) with the caseload congestion claims being made by all courts in all states, how justified was the "self-excuse", and are there policies in courts across the country to monitor the "self-excuses" of judges "for personal and scheduling reasons";

2) Did Judge Bradley - and other judges who practice such "self-excuses" report their "self-excuses" in their time sheets and are also "excused" from being paid for the "self-excused" time.  I will try to verify whether Judge Bradley charged the state for the time of her "self-excuse" through a Freedom of Information request;

3) Did Judge Bradley had the decency to notify parties and attorney appearing in front of them that she will have to leave, and that the court dates will have to be adjourned.  With attorneys paid by the hour at hourly rates well exceeding $100/hr, it is a disservice to the parties to have them pay for their attorney's appearances (since it is contempt of court and attorney misconduct not to appear to a scheduled proceeding) and then be blatantly "advised" that the judge "excused herself" in the middle of an oral argument for "personal reasons" not related with disability, and they have to come again, inconvenience themselves again, ask their employers to allow them to take time off work again - and pay their attorneys again.

Reportedly, the judge "read the briefs" and "had no questions", but that's not the point.

An "opportunity to be heard" includes a right to an oral argument of the brief, and that right may only be waived by the party and not by the judge.

Did Judge Bradley offer to pay for the lost time and for attorney fees incurred by parties because of her abrupt disappearance in the middle of a court session, her self-excuse and self-adjournment?

I know, I know, it is a rhethorical question.  But it should not be.

Judges should not be allowed to act as if they can do whatever they want with the taxpayer-paid time, and there should be some real accountability for misconduct such as Judge Bradley's.

Judge Bradley who is so head-over-heels to get to the sources of funding for her election campaign that she has left her job in the middle of a court session (in order to get funds to retain her job, makes a lot of sense, doesn't it), is also known for hateful speech as a student.

After election of Bill Clinton she reportedly wrote this:

""Either you condone drug use, homosexuality, AIDS-producing sex, adultery and murder and are therefore a bad person, or you didn't know that he supports abortion on demand and socialism, which means you are dumb. Have I offended anyone? Good — some of you really need to wake up."

Adultery?

Bad person?

Huh?

Judge Bradley reportedly condoned adultery by engaging in an extramarital affair with a married man while representing him in a child custody proceedings.

Is she a self-described bad person? 

What disgusts me is that such people as Judge Bradley remain on the bench forever, because, no matter what misconduct and ethical violations they engage in, they know which side their bread is buttered.

Judge Bradley knew parties and attorneys appearing in front of her are helpless to hold her accountable for "self-excusing" from oral arguments where they arrived, having spent time, money for travel and money lost in days off work.

But, Judge Bradley also knew that she will lose money if she does not make it on time to her potential sources of funding for re-election.

And funding won over Judge Bradley's service as a judge.

As to whether Judge Bradley also charged the state for the time when she "excused herself" to go elsewhere for personal business, I will try and use Wisconsin access-to-records law, will try to verify that information and will publish the results on this blog.

Stay tuned.

Not making a motion to recuse as a badge of honor

I have been researching the issue of motions to recuse in this country for a long time.

I have been reading motions to recuse of different attorneys from various states, and I have been reading materials from disciplinary proceedings against attorneys who made such motions - where such materials are available.

Time after time, I get across the same or nearly the same phrase in those motions:

"in my long career spanning XYZ years this is my very first motion to recuse". 

This phrase is presented to the court as - what?

An apology?

A humble proof of due diligence?

A proof of being "a good girl/boy"?

An announcement that the attorney believes that all judges are good and this is an exception?

First of all, when a judge is caught in committing misconduct, telling that judge that all other judges are good (no motions to recuse were made by the attorney in XYZ years, and such motions are extremely rare), but this particular judge is then what - bad, because for him the attorney makes an exception and makes the motion to recuse?

Why an apology?

Why such a long string of explanations?

Why the tail-between-legs position from the outset?

A client the attorney is being paid to represent has a constitutional right to impartial judicial review.  Period.  It is the attorney's duty to enforce that right for her client.

Unapologetically so.

Apologies are not due to judges who commit misconduct.

Apologies are not due to judges who appear to be partial, or who fail to disclose conflicts of interest.

But, the tail-between-legs position while even making the motion to dismiss shows how far we went in making attorney regulation a tool of suppression of human rights litigation when attorneys, addressing issues of judicial misconduct, must humbly scrape and bow and say - in 20 odd years of my career, this is my very first motion to recuse, Your Honor, and I profusely apologize for even making it.

I will not believe for a second that an attorney who lived his life in courts for those years fails to see rampant judicial misconduct that goes on in American courts every single day. 

Attorneys are not stupid, they know what is going on.

For that reason, I have been advocating for a very long time for introduction of peremptory challenges against judges, as well as for rotation of judges, shortening their terms so that they do not become entrenched, making judicial duty same as jury duty - on a rotational per diem basis for all citizens, and canceling regulation of the legal profession and especially taking it out of the hands of the judiciary, so that the lawyer would not look over her shoulder whether or not to make a motion to recuse, and whether or not to fear for her livelihood if she does it.

But, "excuse me, your Honor, you must be a spectacular scoundrel since I have to make a motion to recuse you while I never made such motions against other judges in my whole XYZ years of legal career" - by way of an apology - does not sound right.

No matter how you look at it.

And especially when you look at it from the point of view of short-changed clients on whose behalf such motions had to be made, but were not, because the cases were not "sufficiently egregious" for an attorney to risk his/her law license.

A motion to recuse is a motion is a motion.

You do not wear a badge of honor for never making a motion to dismiss.

Not making a single motion to recuse, as a matter of self-preservation and survival as an attorney, in the context of rampant judicial misconduct in American courts, for the "whole long legal career" is no badge of honor either.

The case of #BarbaraO'Sullivan: #OneDeadDog and the #DelawareCountySopranos

I wrote extensively about my friend Barbara O'Sullivan's case.

After Barbara O'Sullivan reported misconduct of Delaware County Judge Carl Becker in Glenford Hull's murder trial, Barbara, her family and her friends suffered the following repercussions:

1) custody of granddaughter was taken from her daughter - by Judge Becker;

2) death threat against her was dismissed contrary to her wishes (and despite the Delaware County DA's policy of always consulting victims before dismissing complaints) by Judge Becker's former law partner John Hubbard;  John Hubbard reprimanded Barbara for hiring me for her daughter's custody case and told her that whatever Becker decides must be right;

3) Becker used the death threat against Barbara to punish her further to block her from seeing her granddaughter - without her even being a party of the proceedings or being notified; that decision was reversed by a Pennsylvania court;

4) vehicular assault and attempted murder upon her by Delaware County Deputy Sheriff Derek Bowie (nephew of Delaware County DA's investigator Jeff Bowie) never brought;

5) the Delaware County financing, at taxpayers' expense, opposition to the lawsuit  of Barbara O'Sullivan against Bowie and had Judge Lambert vacate the clear default by Bowie - which had nothing to do with the County, Barbara did not sue the County, and the County did not owe any indemnification to Bowie when he was sued for intentional misconduct;

6) Criminal charges were fabricated by Derek Bowie against Barbara O'Sullivan and prosecuted by Dick Northrup and then John Hubbard - until Judge Gumo was caught fabricating the arrest warrant, and charges were dismissed;

7) Barbara's daughter Alecia Bracci was criminally charged on fabricated charges, went all the way to a jury trial and was acquitted by the jury.

8) Derek Bowie tried to destroy the evidence of his wrongdoing and tried to get the dog killed through a "dangerous dog" proceeding - that Gumo refused to do, dismissing that case on a technicality. 

9) A Binghamton TV station that initially reported the arrest of Barbara and her daughter - on the false warrant from Gumo - first told Barbara that they will call the initial reporter to the phone, then immediately claimed she is no longer working with the paper, and refused to run an announcement that Barbara's case was dismissed.

10) At the beginning of Barbara's criminal case, right after Judge Gumo, who was supposed to dismiss it at the stage of the felony hearing because he knew that the warrant was fabricated, committed her to jail - and the jail that is permeated by relatives and friends of Derek Bowie immediately invented for me a new rule not applicable to other attorneys, that my attorney files must be subject to search if I want to see my client, see also the audio recording of my conversation with Delaware County Chief-of-Jail Lt. Stanton and Delaware County Attorney Porter Kirkwood about search policies of attorney files here.

11) My law license was suspended, just in time not to be able to help Barbara out at her criminal trial.

12) In early February of 2016, Alecia was acquitted by a jury - reportedly quite unexpectedly for Judge Gumo who facially expressed frustration and then blocked release of security tapes that would show it.

13) Right after the acquittal, Alecia received a threatening text message that the police refused to investigate.

14) At the end of February, 2016, the fabricated case against Barbara was dismissed.

And - you know what happened then?

First, Christmas lights were cut up on the outside of Barbara's house that is located in a remote wooded area, and those Christmas lights was the only lighting available, on the perimeter of the house.  
The lights were cut not once, but twice. 

Then, when the two women started to let their dogs out at night on their own, on March 8, 2016, the International Women's day, one of Alecia's dogs was killed outside, under circumstances suggesting that the dog was killed intentionally.

Here is what Barbara wrote on her blog on March 8, 2016.

These people who are doing all of this to Barbara and Alecia are cowards.

They are retaliating against two innocent women at night, and they are hitting where it hurts the most, against the innocent pets, members of the family.

And, dear residents of Delaware County, if you do not get up and demand the local government to find perpetrators who are making life hell to a person who is trying to clean up the government in your county, anything can happen to anybody in the same position.

Do you want to be ruled by fear? 

It is not the "Sopranos" show.

It is life and it is getting too serious.

So, what should we expect next in our glorious Delaware County?

Neroni v Follender - #SanctionsForTrueCriticismOfJudidicalMisconduct in New York

On March 3, 2016, in Neroni v Follender I was punished by the Appellate Division 3rd Department with a $2,000 fine, a $8,000 attorney fee and an anti-filing injunction for presumed-true statements criticizing actions of a person who is a judge in New York state, see also my blogs today here, here and here.

My statements were actually true, because they were supported by court transcripts and court records, and legally presumed to be true, because the action was dismissed at a pre-answer stage, and on a pre-answer motoin to dismiss, statements in the complaint are presumed as true.

The U.S. Supreme Court ruled, again and again, most recently in Reed v Town of Gilbert in June of 2015, that content based restrictions are subject to strict scrutiny under the 1st Amendment.

Yet, nearly a year after Reed, the 3rd Department defied the law, defied the U.S. Supreme Court precedent, defied the 1st Amendment of the U.S. Constitution that each judge of the panel was sworn to uphold, and upheld punishment of an attorney for criticizing a judge in a presumed-true statement.

A judge must maintain integrity and fitness in and out of office.

Thus, my statements criticizing Jonathan Follender, even though an attorney, were statements criticizing a judge, because when he was engaged in that misconduct, Jonathan Follender was and still is a judge and should have comported himself, even off the bench, in accordance with his judicial status.

Punishment for true criticism of , ladies and gentlemen, this must end somewhere,  and I am going to the U.S. Supreme Court, if necessary, with this issue.

About defaults and defaults, and about discrimination against pro se litigants in New York courts

I already wrote on this blog that defaults in New York are granted or denied depending on the identity of who asks for it.

For example, Jonathan Follender made a motion for a default judgment without providing to the court proof of service of the motion - and it was granted by judge Eugene Peckham (now partner in Levene, Gouldin and Thompson out of Binghamton, NY), after Eugene Peckham also granted to Jonathan Follender a motion to substitute a client nunc pro tunc due to his death - the client was and remained a corporation, and corporations do not die, but Jonathan Follender is also a judge, so a judge grants to a judge anything one judge asks of another without thinking, that's the law in New York.

Then, Jonathan Follender filed a double action - a homestead petition and an additional civil lawsuit for money - on an order to show cause.

The homestead petition can be filed on an order to show cause, while a civil complaint cannot, and the two cannot be joined, Jonathan Follender joined them anyway.

Jonathan Follender did not provide to the court proof of service of the petition and proof of personal service of the civil complaint, and jurisdiction over the homestead petition was gone by the time of the first appearance - but Judge Becker satisfied the joined complaint anyway, jurisdiction or no jurisdiction, proof of service or no proof of service - as a default.

Barbara O'Sullivan sued police officer Derek Bowie for battery and assault with a police vehicle, in his individual capacity.  Derek Bowie was personally served by his own employer the Delaware County Sheriff and failed to appear within 21 days of personal service.  Barbara O'Sullivan called a default.  

The court denied a default because the Delaware County, at taxpayers' expense, appeared on behalf of an employee sued for intentional misconduct for which Delaware County was not responsible, and Derek Bowie's attorneys' illegally paid for by Delaware County taxpayers, made a motion to vacate the default frivolously claiming that the same Sheriff's office who served Derek Bowie with the lawsuit and provided to Barbara O'Sullivan an affidavit of service, was not aware of the lawsuit, and for that reason, the default should be vacated.  It was, by Judge John Lambert.

So, there was a clear default, but, since the beneficiary of that default was Barbara O'Sullivan, my close friend, Judge Lambert denied it.

When I sued in Neroni v Follender, Follender was supposed to either timely file an answer or timely file and serve a motion to dismiss.

Follender served the motion to dismiss himself, while being a party to the action.

As the 3rd Department stated in Neroni v Follender "... CPLR 2103(a) requires service to be made by a person who is not a party to the action...".

So, the 3rd Department recognized that CPLR 2103(a), a statute, requires something.

Yet, the 3rd Department then stated, see the full phase: "Although CPLR 2103(a) requires service to be made by a person who is not a party to the action, a violation of this provision 'is a mere irregularity which does not vitiate service' where, as here, no resulting prejudice is shown, with a reference to the case Matter of Conti v Clyne, 120 Ad3d 884, 886 (2014).

First, I do not have a rat's ass what Matter of Conti v Clyne said, because every 1st year law students knows that statutory language controls over the court's interpretation of it, and the court has no authority to carve out an exception to a mandatory statute.

Second, in Conti v Clyne the 3rd Department recognized disagreement among appellate divisions as to whether failure to satisfy a mandatory statutory provision is merely a "technical irregularity".

Third, failure to abide by clear language of a statute on point is certainly not a "technical irregularity".

Now, let's see whether it was correct for the court to say that "no resulting prejudice was shown".

As a result of a default, all affirmative defenses are waived and all factual claims asserted in the complaint are deemed true as a matter of law.

Yet, the 3rd Department proceeded to rule on the affirmative defense of the statute of limitation, which was not only granted, but granted with sanctions and attorney's fees against me for bringing a claim "barred" by a statute of limitations.

Yet, there is no prohibition of bringing a claim to which the affirmative defense of statute of limitations may apply if such a defense is not waived - and attorney Follender waived it on behalf of himself and his clients, by serving his motion to dismiss himself, which was in violation of the clear requirements of CPLR 2103(a).

So, I was sanctioned for completely legal conduct, while the defaulting party was granted $10,000 against me in sanctions and legal fees - and that is not a prejudice?

Once again, when Follender asks for a default, even when he provides NO proof of service - NONE - the default is granted, even when it is fraudulently based on an incomplete record, and even when it is granted by a court that lacks subject matter jurisdiction, like it was in the homestead petition.

When it is Barbara O'Sullivan who claims the default, even though it is clear on the record, it is denied.

When I claim a default, even though it is clear on the record, it is denied, and then laws are bent and rules invented as to how to justify punishing me for my lawful actions, and attorney fees are awarded to the defaulted parties.

But, since there is a noted disagreement in the way CPLR 2103(a) is interpreted by the Appellate Division, this is not the end of story.  I will continue fighting against Follender for my own and for other people's right to equal protection of laws and will report on that fight here.

Because, if any one of pro se litigants in New York who is not an attorney attempts to serve their own process under these circumstances, and then claims that it was a "mere irregularity", a default will be declared against such a pro se litigant without any doubt.

The only reason why this exception was carved out by the 3rd Department is because of who it favored, a private attorney who was also a judge.

And that is a violation of equal protection of laws, of the principle of separation of powers not allowing courts to interpret statutes outside of their strict language, and of the federal constitutional clause prohibiting the creation of titles of nobility and privilege in the United States.

I will continue to cover my fight over equal protection of laws in New York courts and will cover it on this blog.

This is the statute that the 3rd Department said attorney (and judge) Follender may violate to his heart's desire:

 The only exceptions to the requirements of this statute is "except where otherwise prescribed by law or order of court". 

The law that is providing an exception to statutory law must also be statutory.

There is no statute mentioned as an exception to this in the court pleadings below.

Follender did not obtain a prior permission of the court to serve the way he did, so the exceptions clearly did not apply.

If Follender, a party to the action, can serve pleadings himself, anybody else should be able to, and the CPLR 2103(a) is simply cancelled by the Appellate Division 3rd Department.

Moreover, where there is a statutory exception, it must be clearly and strictly defined.

The Appellate Division 3rd Department only says "where, as here, there is no prejudice", and that is not a clear definition, but the decision as to the prejudice is given to the court, to decide and its whim, and is subject to arbitrary enforcement.

It was not difficult for Follender to actually comply with CPLR 2103(a).  He simply had to have somebody else serve the pleadings.  He didn't do it, because he never considered service of process important, because no matter how he violated statutory requirements of service, courts always forgave it to him and granted whatever he wanted without compliance with the law.  

Follender did not comply with the law and waived his own and his clients' rights in litigation.  It was malpractice.  I didn't have to pay for his mistake. 

And, it is quite suspicious that an exception such as this is carved out for the benefit of a private attorney who is a judge, and that is the second exception carved out for this attorney/judge, the first being that he was granted absolute JUDICIAL immunity in a case where he is a PRIVATE attorney, indicating that all exceptions are attached to his status as a judge, even in his cases litigated as a private attorney and a party not sued in his judicial capacity or regarding anything he did as a judge.

For all of you, pro se folks, the MANDATORY rule of court remains - the person serving court papers MUST be not a party in the litigation (note that CPLR 2103(a) is not restricted to just service of papers commencing a lawsuit, but all papers served within the lawsuit):

Remember, you are not nobility like Follender, to you written statutory laws apply.

So, New York continues to provide privileges to judges in how it applies the law, and I will continue to fight it.