Trial rules of Judge Kevin Dowd: jurisdiction on damages may be never-ending, for the right kind of attorney

As I stated in my previous post, Judge Kevin Dowd creates his own law and his own rules in "his own courtroom", disregarding existing rules and existing law as "brouhaha" (his words in the transcript of the Mokay trial about my legal argument asking the court to follow the rules).

One of the most interesting trial rules of Judge Kevin Dowd is that Kevin Dowd considers a trial on damages in a civil case to be a continuous thing.

In the ex parte trial on damages and in his decision as to that ex parte trial, Kevin Dowd stated the following:

(1) Judge Kevin Dowd ended the trial on April 7, 2015, but allowed post-trial evidentiary submissions, accepted post-trial evidentiary submissions on May 8, 2015 and relied upon them in his trial decision;

 

(2) Judge Kevin Dowd gave the plaintiffs "leave" for continued jurisdiction of the court for future "applications" for more damages, after the trial on damages has ended;

(3) Judge Kevin Dowd gave the plaintiffs "leave" to apply for damages not in another trial, but through a motion. 

None of these "rules" comply with existing New York state law that requires that the issue of damages be tried, and tried in one single trial.

Judge Dowd apparently is involved in legal innovation - he created the concept of unending jurisdiction of the court on the issue of money damages where the only damages claimed are legal fees of politically connected attorneys, such as the son of a judge Richard Harlem (also the landlord to New York Senator James Seward).

So, litigants and counsel, beware of this rule - especially if you feel and have evidence, like I do, that Judge Dowd dislikes you or your client.  In my case, Judge Dowd "dislikes" me to the point of not believing medical diagnosis of my injury, holding a trial despite of medical leave documents submitted to the court, in my presence as attorney of record and attempting to punish me for not appearing at trial while injured and on a legitimate medical leave. 

Publication of trial rules of Judge Kevin Dowd will continue and may in the future be published in a separate book.

Stay tuned.

Trial rules of Judge Kevin Dowd: control your stenographer

I am starting to publish a set of trial rules of Judge Kevin Dowd discernible from Judge Dowd's behavior before and during the ex parte trial in the Mokay case and the most peculiar circumstances surroudning the case, the trial, the transcript of the trial and the trial exhibits.

I will start with the identity of the chosen trial stenographer, her ties to Judge Dowd's court personnel and interesting omissions the stenographer made in the transcript she provided to me.

Normally, a stenographer in a trial must be a neutral person, for obvious reasons - the transcript, noting testimony and admission or rejection of evidentiary exhibits is the ONLY source of information about the underlying court proceedings available on appeal, and must come from a neutral, disinterested party.


For that reason, the stenographer should not be a friend of any parties in the action - or of a judge or judge's court personnel. 

A stenographer should not be a friend of any witnesses subpoenaed in a trial either.

Furthermore, normally, a stenographer must note appearances of parties as well as counsel on the front page of the transcript.

That makes a difference in determining whether a certain party was in default by not coming to the proceedings or not.

Normally, a stenographer must provide the following table of contents as part of the transcript:

• Of any direct or cross-examination of witnesses;
• A list of exhibits introduced at trial with a short description of each exhibit.  It is the stenographer's duty to mark each exhibit before it is introduced at trial, and the stenographer makes a list of exhibits for the transcript at trial.

It is the normal practice of stenographers in courts in the State of New York, and I personally observed stenographer Brenda Friedel (as well as other stenographers) create a list of exhibits as she marked exhibits in various trials in which I participated as counsel, and then see the list of admitted exhibits in transcripts created by Brenda Friedel, the trial stenographer in the ex parte Mokay trial.

Something prevented Brenda Friedel from doing her job properly in the Mokay case and creating a list of trial exhibits though - or a table of contents.

In the Mokay case that I've been describing on this blog (see my blog post the Mokay saga, or you can run the work "Mokay" in the search window of this blog) and in several of my previous posts this month, the following "irregularities" occurred:

The stenographer chosen by the judge (because nothing happens in Judge Dowd's court without his permission or choice) was Brenda Friedel.

Brenda Friedel is a Facebook friend of Judge Dowd's law clerk Claudette Newman.

Judge Dowd, Claudette Newman and Judge Dowd's secretary Brenda Beckwith were subpoenaed witnesses at the Mokay trial.

The stenographer Brenda Friedel provided a transcript to me of the Mokay trial that did not contain these required features:

(1) appearances of parties - it contained only appearances of "trial counsel";

Compare with the front page of a hearing in the same Mokay case where appearances of parties were noted as required by law and as is the usual practice of New York courts.  The stenographer in June, 2014 trial was not a Facebook friend of Claudette Newman - and she did the right thing by indicating appearances of parties, as well as of attorneys.

Given that a court observer from the public was misled by the court personnel into believing that the Mokay trial is over when she came to the courthouse at 11:00 am when the trial was going on as a bench trial (non-jury trial), and thus was prevented from observing the trial, I have a right to claim that the plaintiffs were not present in the proceedings.

Failure of plaintiffs to show up at their own trial on damages required a dismissal of the case.  Not that Judge Dowd cared.


2) Lack of table of contents.

The transcript provided to me by Brenda Friedel, of a trial on damages no less, contained no table of contents whatsoever.  In fact, any transcript of any hearing must contain such a table of contents, including a list of exhibits introduced at trial.

3) Lack of the list of exhibits admitted at trial.

You can read in my previous post containing links to audio recordings of my communications with the Delaware County Supreme Court Clerk's office that Judge Dowd ordered the court clerk not to release to me the list of exhibits, or disclose to me contents of trial exhibits that were admitted at the Mokay trial - either before he made a decision based on those Exhibits, or after the decision was made.

The exhibits, as I stated in my previous posts, contained of pleadings in the case that were to be marked by the Plaintiffs' counsel and filed with the court several days before trial, and made available for my review - which did not happen.

Apparently, Judge Dowd makes his own rules in "his own" court of which he obviously considers himself a king.

But, a court with the regular rules not followed and with "rules" instead spontaneously made by the judge, and a judge subpoenaed as a hostile trial witness by a defendant is not a court - it is a Star Chamber.

And, the situation with the stenographer, the transcript and with non-reporting and hiding the trial exhibits and their description and contents, indicates that the main trial rule of Judge Dowd is - control the stenographer for the party you are favoring.

Which suggests to me that Judge Dowd had a stake in the outcome of the proceeding, and I am going to ask the feds to investigate, what kind of stake that was.

Apparently, state authorities in the State of New York are unable - or unwilling - to curb judicial misconduct and corruption, so maybe, just maybe, the feds will.

Audio recordings of my conversations with Delaware County Supreme Court Clerk's office showing how Judge Dowd blocked my access to trial exhibits, after the trial and after the trial decision was in

The ex parte trial in the Mokay case (during my legitimate medical leave due to injury) was held on April 7, 2015.  At the trial, over 270 exhibits were allegedly admitted, at least judging by the "trial minutes" filed with the court by Kelly Sanfilippo, and according to the transcript provided to me by the stenographer Brenda Friedel (without list of exhibits, which is highly irregular for a trial transcript - but what would you expect from a transcript created by a Facebook friend of the judge's law clerk, when the judge, his law clerk and his secreatry were subpoenaed witnesses in the case).

My first conversation with Kelly Sanfilippo, Chief Clerk of Delaware County Supreme Court in Delhi, New York on May 22, 2015 (the audio recording is here):

Dialing
Kelly Sanfilippo:	Supreme and County Court, this is Kelly, can I help you?
Tatiana Neroni:	Hello, Kelly, this is Tatiana Neroni calling, how are you?
Kelly Sanfilippo:	I am good, how are you?
Tatiana Neroni:	I am not bad, thank you.  I am calling about Mokay trial exhibits.
Kelly Sanfilippo:	Ok.
Tatiana Neroni:	Ok…  Because I saw in the index of the case of the case, you know, a line "court exhibits", and I looked at what was filed, and it was not the exhibits that were mentioned in the trial minutes, it's like 1 to 270 something, so my question is where the exhibits are now, so that I can look at them.
Kelly Sanfilippo:	The court exhibits should be in the County Clerk's file.
Tatiana Neroni:	The exhibits that were filed? One to two hundred seventy three or whatever?
Kelly Sanfilippo:	Oh, no, no, no, I've just meant the court exhibits.  Let me check on the other… (Hurriedly) Let me check on the other one, if the exhibits are in the office, so let me make sure…
Tatiana Neroni:	Thank you very much.
Kelly Sanfilippo:	Sure, hold on.  (Pause).  So, the other exhibits are here.
Tatiana Neroni:	The two hundred seventy something, right?
Kelly Sanfilippo:	Probably (?), there's two boxes (2:16)
Tatiana Neroni:	All right, ok, thank you.
Kelly Sanfilippo:	Ok?
Tatiana Neroni:	Thank you, I will, probably, come, not today, but I will, probably, come on Monday.
Kelly Sanfilippo:	Can you call ahead of time, just so that we can make sure there's going to be somebody around, with you in the room?
Tatiana Neroni:	I will, probably, come at about 10 o'clock, on Monday.
Kelly Sanfilippo:	Tuesday there's going to be…. This is a holiday weekend…
Tatiana Neroni:	Oh! ok, ok…
Kelly Sanfilippo:	Tuesday I don't believe I can have anybody who could sit with you…
Tatiana Neroni:	Ok, today I just cannot do that…
Kelly Sanfilippo:	Ok.  Tuesday I just have two courts going, so I just won't have backup on Tuesday.
Tatiana Neroni:	Ok.
Kelly Sanfilippo:	We can shoot for … Wednesday might be able to if that's ok with you.
Tatiana Neroni:	Wednesday is fine, 10 o'clock then.
Kelly Sanfilippo:	Ok, we will plan for that.
Tatiana Neroni:	Ok, and can I ask you also a question, did the exhibits… did those exhibits ever leave the… your office, I mean, were they taken out after the trial or not?
Kelly Sanfilippo:	After the trial, they've been here.
Tatiana Neroni:	The whole time, right?
Kelly Sanfilippo:	Right.
Tatiana Neroni:	Thank you very much.
Kelly Sanfilippo:	Ok.
Tatiana Neroni:	Thank you.
Kelly Sanfilippo:	Ok, bye.
Tatiana Neroni:	Bye.

 

Several minutes after the above conversation, when Kelly Sanfilippo made an appointment for me to review the file, she called me back and left this message on my office answering machine (the audio recording is here):

Kelly Sanfilippo:

Hi, Ms. Neroni, it is Kelly.  I am calling you back on the Mokay exhibits, so I wanted to let you know that I just let Judge Dowd know that you wanted to come see the exhibits, and he said that you, you know, not able to see them at this time, as it's pending a decision for the court, and the exhibits are deemed with the judge… ah… at this time you are not able to see the exhibits, ok? Thank you so much, bye.

 

I called Kelly Sanfilippo back as soon as I got the message, to verify how come that the exhibits which were in her office, which were already admitted by the court at trial, were not available for the review of defendant's counsel, even under the court personnel's supervision, even though, according to Kelly Sanfilippo's own admission, the exhibits never left her office and, consequently, were never claimed for review by Judge Dowd.

In other words, what could I do to the exhibits, while reviewing them under supervision of court personnel, AFTER they were officially admitted into the record of a trial against my client, that could destroy their integrity.  Could I "despoil" them by simply looking at them?

Here goes the transcript of our conversation with Kelly Sanfilippo on that subject (the audio recording is here):

Dialing
Women's voice:	Supreme and County Court, Nicole speaking.
Tatiana Neroni:	Is it Nicole? This is Tatiana Neroni speaking, how are you?
Nicole:	Good, how are you?
Tatiana Neroni:	Not bad.  I received a phone call from Kelly regarding the Mokay exhibits.  I asked to review the exhibits, and she just called and left a message that the judge did not allow me to see them, because they are "deemed with the judge".
Nicole:	Right.
Tatiana Neroni:	Ok.  Well, I already received three of them, because they were filed with the court, and I received them from the County Clerk's office.
Nicole:	Ok…
Tatiana Neroni:	So, my question is, why can I receive the three and cannot receive the two hundred and seventy of other exhibits, and then why they are not filed with the court?
Nicole:	That I don't know, if you want me to have you speak with Kelly?
Tatiana Neroni:	Well, is there a list of exhibits filed with the court right now that I can take a copy?
Nicole:	I won't have any of that information with me.  Kelly is the one who … ah… is dealing with it, so if you want to speak to her?
Tatiana Neroni:	No, can you, please, look up in the file yourself right now? I just need the list of exhibits, I need a copy of the list of exhibits on file with your office.
Nicole:	Let me put you on hold for one second, ok?
Tatiana Neroni:	Thank you.
Nicole:	You are welcome.
Kelly Sanfilippo:	Hello, it's Kelly.
Tatiana Neroni:	Hello, Kelly, I've got your message that I am not allowed by the judge to see the exhibits, right?
Kelly Sanfilippo:	Right.
Tatiana Neroni:	The thing is that the three exhibits I not only saw, but have a copy of, because they were filed with the County Clerk?
Kelly Sanfilippo:	Yes, they are, probably, court exhibits?
Tatiana Neroni:	Yes, they are.  And my question is, why can I have copies of three exhibits and cannot even look at the 270 and why they were not filed with the Clerk?
Kelly Sanfilippo:	Because, I think, they came in from a party, so those are here for the judge to review if he needs to, and when they are done we will send them back to the party.
Tatiana Neroni:	Well, is the judge reviewing it on Tuesday when I wanted to come?
Kelly Sanfilippo:	I am not certain, but they are telling me that you are not permitted to review them.
Tatiana Neroni:	Ok, is there a list of those 270-something exhibits, you know, what they contain, with your office? And can I get a copy of it?
Kelly Sanfilippo:	It's not yet, it's not filed yet, so when the judge is done with the exhibits, then I will file the list of exhibits.
Tatiana Neroni:	So, do you in your office right now a list of what is in each exhibit?
Kelly Sanfilippo:	I do, but I cannot turn it over to you yet, because it's not filed yet with the County Clerk.
Tatiana Neroni:	Well, it was submitted to the court, wasn't it, on April 7th, right, so why can't you give it to me now?
Kelly Sanfilippo:	Exhibit sheet?
Tatiana Neroni:	Yes.
Kelly Sanfilippo:	It is the form that I created.  I did not file it yet with the County Clerk and it is with the exhibits I am going to go with what Judge Dowd said about the exhibits, you can't view it yet.
Tatiana Neroni:	You did not file the motion minutes either, but you gave copy to me, didn't you?
Kelly Sanfilippo:	And I filed that the same day, because I thought that should have been filed, this should… I am gonna leave the exhibit sheet with the exhibits, until there is a decision coming from the judge, and once I get the decision, then I'll file it…
Tatiana Neroni:	So, I cannot even know what is in the exhibits?
Kelly Sanfilippo:	I am assuming so from what, you know, judge's Chambers told me…
Tatiana Neroni:	Ok, thank you very much, Kelly.
Kelly Sanfilippo:	Ok.
Tatiana Neroni:	Thank you, bye.
Kelly Sanfilippo:	Bye.

 

Kelly Sanfilippo indicated that she will file the exhibit sheets, with exhibits after the judge makes the decision.

The judge made the decision on June 12, 2015.

On June 19, 2015, a week after the decision was signed, I called Kelly Sanfilippo's office and, once again, asked for access to trial exhibits.

I was denied access again, now Kelly was hiding from me and I had a discussion with her assistant (the audio recording is here):

Dialing
Woman's voice:	Supreme and County Court
Tatiana Neroni:	Hello, this is Tatiana Neroni speaking, an attorney.  Can I, possibly, speak to Kelly?
Woman's voice:	You try and hold on a minute please?
Tatiana Neroni:	Yes, thank you.
Woman's voice (after a pause of approximately a 4.5 minutes)	Ms. Neroni? (4:45 on the recording)
Tatiana Neroni:	Yes?
Woman's voice:	She is in the middle of something, she'll call you back in a little bit, ok?
Tatiana Neroni:	Well, I am not in the state of New York right now, so I am just calling… I might ask you… I am calling… I will soon be in the State of New York, or my agent will be, and I need access to the exhibits in the Mokay trial, now that the decision is in.  So, I want to…
Woman's voice:	I can ask her…
Tatiana Neroni:	What?
Woman's voice:	I can try to ask her if she has a minute… If you would hold on…
Tatiana Neroni:	Yes, thank you.
Woman's voice:	Hold on.
Tatiana Neroni:	Thank you.
Woman's voice:	(Pause on the recording from 5:17 to 5:49, for 32 seconds).  Ms Neroni?
Tatiana Neroni:	Yes.
Woman's voice:	You still cannot review that.
Tatiana Neroni:	And why is that?
Woman's voice:	I am really not sure.
Tatiana Neroni:	Well, the judgment is in, so why cannot I review the exhibits upon which the judgment is based?
Woman's voice:	It's just what I've been told.
Tatiana Neroni:	By Kelly?
Woman' voice:	Yes.
Tatiana Neroni:	Ok, thank you very much.
Woman's voice:	You are welcome.
Tatiana Neroni:	Bye.

So, I was not allowed to see the so-called trial exhibits, unless I would agree to extortion of Richard Harlem and review them under supervision of his paralegal, at a cost of $100/hr for my client, even though the exhibits in question were certified records of the court.

I was on a legitimate sick leave, yet, the judge who was a subpoenaed witness in the case, proceeded without me – and is now trying to punish me for not coming to trial despite a medically documented injury and a legitimate medical leave.

The stenographer Brenda Friedel, Facebook friend of Judge Dowd's law clerk Claudette Newman (another subpoenaed witness), did not provide the list of exhibits, as she was supposed to, with the transcript of the Mokay trial.

The clerk of the court Kelly Sanfilippo first made an appointment for me on May 22, 2015 to review the trial exhibits that were in her office, review them under supervision of the court personnel, then somehow felt it necessary to consult with the judge whether I could review the records that were already filed in a supposedly public trial and should have been open to public review, not only mine as the attorney of record for the defendant.

Kelly Sanfilippo also did not file the list of trial exhibits that she "created" and had in her office, nor did she file exhibits with the court, because she claimed she was waiting for the judge to make a decision to file the list of exhibits.

Then, Kelly Sanfilippo cancelled the appointment upon a directive from Judge Dowd's chambers and indicated to me that I may not see the trial exhibits, already admitted into evidence, and even under supervision of court personnel, because the exhibits that were in her office were "deemed to be with the judge", even though Sanfilippo was not sure if the judge was coming on the same day as I was to review exhibits.

Yet, even a week after the judge actually made the decision in the case, Kelly Sanfilippo still did not allow me access to the trial exhibits.

Now, let's go back to the characterization by Judge Dowd in the trial that my concern about trial exhibits is "a little brouhaha".

 

 

Had it been that "little brouhaha", the judge would not have bent over backwards to prevent my access to the exhibits or from even knowing what was in there, right?

 

By the way, by rules of court "marked pleadings" (and Richard Harlem claimed at trial that all trial exhibits other than billing statements were pleadings in the case) must be filed with the court 3 days before trial - and served upon the opposing counsel (that never happened).

 

For Judge Dowd rules of court is "a little brouhaha".

I am turning the whole crew participating in the Mokay trial and in blocking my access to the court to the feds.

I am tired of this crap.