An alert to the clients of Hiscock & Barclay LLP of Albany, NY and of Harlem & Jervis of Oneonta, NY

I am in receipt of documentary evidence (billing statements) from two law firms, Hiscock & Barclay LLP of Albany, NY and from Harlem & Jervis of Oneonta, New York, which conclusively indicate that the law firms continued to bill their clients at the time when one of the parties in the action died and jurisdiction of the court "abated" (stopped, stayed), and continued to so bill before jurisdiction restored through substitution of legal representative of a deceased part, CPLR 1015.  

The period of abatement of jurisdiction during which both law firms continued to bill their clients continued from September 2012 to May 2013, for 8 months.

Improper billing of clients during abatement of jurisdiction of the court, to me, is a matter of serious public concern which I consider my duty to disclose to the public.

These two law firms have protected status in courts because they are owned and employ relatives of the judiciary and are in business relations with New York State Senators - NYS State Senator Neil Breslin is "of counsel" in Hiscock & Barclays, M. Cornelia Cahill, spouse of the New York State Chief Judge of the Court of Claims Richard Sise is a member (co-owner) of Hiscock & Barclays, LLP; 
Harlem & Jervis was founded by the now deceased former judge Robert Harlm, former Chief Administrative Judge of the 6th Judicial District and by his son Richard Harlem,  Richard Harlem is a long-time landlord to NYS Senator' James Seward's district office in Oneonta, NY.

It is my personal experience that New York civil courts have been consistently changing and subverting court rules, statutes, common law principles and even application of constitutional law in order to grant relief and attorney's fees to these powerful and politically connected law firms, no matter what kind of misconduct the law firms engaged in.

I do not expect civil courts to suddenly change their course and start holding these law firms to the rule of law.  It did not happen before, I doubt that it is going to happen any time soon. 

Since courts seem to be asleep at the wheel and there is no expectation that the courts will ever hold these law firms accountable, I consider it my duty to directly inform the public of these improper billing practices that the public may fall victim to. 

Moreover, Hiscock & Barclays LLP was hired in the case I am talking about by an insurance company.  Thus, any improper billings by Hiscock & Barclays LLP to the insurance company at the time jurisdiction of the court abated and no billing was allowed, should be investigated by the Insurance Fraud Bureau of the NYS Attorney General's office, which is exactly what I am asking the Attorney General to do.

I am turning these two law firm into the appropriate authorities to investigate propriety of the practices described herein.

Stay tuned as to what the authorities have to say about this and if these powerful law firms will even be investigated or prosecuted for their billing practices.

There is no effective legal remedy in New York to stop an appellate court from engaging in an unlawful conduct

I have a problem, for which there is no legal remedy in New York - or on the federal level, for that matter.

And since I am sure that not only I have such a problem, but many litigants, but it "escapes judicial review", for lack of an appropriate remedy, I believe that New York State legislators need to look into creating such a legal remedy, because it is a due process violation for a state not to provide a legal remedy for injuries, especially for injuries involving violations such a fundamental constitutional right as access to courts.

On June 11, 2014, by an ex parte order, the New York State Appellate Division 3rd Judicial Department recused from a case where I was a party.

When a court recuses from one case of a party, it must recuse from all other cases where that party appears.

The 3rd Department refused to recuse from several other appeals pending before the court where I was a party or an attorney, and so far granted three appeals against me in cases where it should have recused and is arbitrarily denying me consolidation of large records on two more appeals, thus harassing me and causing me stress and financial loss.

Usually consolidation of appeals with large records and similar issues is liberally granted.

Appellate Division 3rd Department bent over backwards for attorney (and former judge, now deceased) Robert Harlem and his son Richard Harlem when it dragged a perfected appeal from the court calendar set for oral argument and consolidated it with an unperfected appeal on request from Robert Harlem and Richard Harlem, in violation of its own rules.

Yet, when I asked consolidation in the same case Mokay v. Mokay of two appeals, from a denial of a motion to vacate and from an award of attorney fees stemming from the same decision denying motion to vacate, consolidation was denied to me without any explanation, in violation of my due process right to a reasoned decision by the court.  A denial of consolidation means redoing the record and filing two $315.00 fees instead of one to perfect the appeal.

Similarly, a consolidation was denied in yet another case where the Delaware County Supreme Court, Judge Tormey, after NOT reading the underlying court cases before dismissing my lawsuit against an attorney who defamed and defrauded me (it is an established fact that Judge Tormey did not even sign out the court files to read them before he made his decision).

I appealed both the dismissal and award of attorney fees based on the dismissal.  Naturally, these two decisions came months apart.  Naturally, the records are connected and issues are related.  Naturally, this is a usual ground for consolidation.

I delivered a HUMUNGOUS record taking the entire back of a large station-wagon car to the court, along with a large heavy-duty carrier, THREE times:

(1) the first time on November 4, 2014, on the deadline of perfecting the appeal - but the court was closed for election day when majority of people were working;

(2) the second time the next day, November 5, 2014, when the record was accepted by the court, together with the filing fee - which has not been returned until now, even though the record was returned a couple of days ago - once again;

(3) the third time I redelivered the REDONE record on December 10, 2014 when I made corrections to the record in accordance to the directives of the court, even though required corrections were not required by the court rules and even though the court returned the record on a pretextual basis that I did not include certain required statements into the record, while such statements were in fact in the records with blue-and-red date-stamps of the court of November 5, 2014;

(4) the fourth time I will have to REDO the record once again when the court denied me, without an explanation, my motion to consolidate and the record was dumped on my porch for the second time - while the money for the filing fee was not returned.

The attorney involved in the last described action is a justice in a local justice court.  The attorney representing respondents in the Mokay action is a son of a judge.

For these people, rules of the Appellate court and rules of law are bent and broken and for me, their opponent, additional rules, rules increasing my stress, financial exposure, physical strain and exposing me to pure harassment, are created on the spot.

What remedy do I have for that? None under the law.

1) NYS Commission for Judicial Conduct is a glorified shredder of complaints against judges and courts dismissing without an explanation practically all meritorious claims it receives, and the person who filed the complaint has no standing to contest that;

2) Article 78 under the CPLR providing for a writ of mandamus against judges, does not provide for a writ of mandamus against appelllate judges and courts;

3) New York State Court of Appeals, the court higher than the Appellate Division, has a limited jurisdiction that does not include writs of mandamus against the Appellate Division;

4) suing in federal court is precluded by judicial immunity and by the section in the 42 U.S.C. 1983 (the Civil Rights Act) that does not allow lawsuits against judges in their official capacities.

And - since no legal remedy exists against Appellate courts, appellate courts can do with you whatever they want.  Which is a clear violation of due process of law of litigants in such courts. 

And such a lack of remedy should be legislatively cured.

What is attorney misconduct in Florida warranting disbarment without reinstatement, is business as usual in New York for retired judges and sons-of-judges

It is an interesting reading about an attorney disbarred without permission to be reinstated - ever - by the Florida Supreme Court, for engaging in a conflicted representation - of a close corporation and some of its shareholders.

In New York, attorney Richard A. Harlem of Oneonta, NY, son of retired (and now deceased) judge Robert Harlem, former Chief Judge of the 6th Administrative District, landlord to NY Senator James Seward, represented by a law firm Hiscock & Barclay that employes another NY Senator, Neil Breslin, represents in TWO court cases alleged victims of fraud and alleged perpetrator of the same fraud:

Estate of Andrew Mokay Sr. and children of Andrew Mokay Sr..

Case names are:

Mokay v. Mokay, et al., Delaware County Index No. 2007-695;

Frederick J. Neroni v. Richard Harlem et al., Delaware County Index No. 2011-547.

An appellate decision of January 22, 2015 in Mokay v. Mokay describes the decedent  as one of the "trio" engaged in fraud against the decedent's children.

Richard A. Harlem and his father, a retired judge, started first to represent the decedent (perpetrator) in the Surrogate's Court, then started an action in the Supreme Court on behalf of decedent's (perpetrator's) children and alleged victims, and then, when the deeds were placed in the Estate of the decedent, added the Estate (equivalent of adding the decedent) as co-Plaintiff with decedent's alleged victims.

And continue to happily represent these absolutely incompatible clients, 5 plaintiffs and one de fact defendant, in the same action for 8 (!) years.

Not to mention that one of the Plaintiffs in the Supreme Court Mokay v. Mokay action, David Mokay, is suing the Estate in Surrogate's Court in a related action commenced before Mokay v. Mokay, and Richard A. Harlem is opposing there David Mokay Pro Se, their own client in the Mokay v. Mokay action.

Here is the timeline:

January of 2007    Richard Harlem undertakes to represent the Estate (decedent) in the Delaware

                              County Surrogate's Court

June 2007             the same Richard Harlem files the Mokay v. Mokay action in the 

                             Delaware County Supreme Court on behalf of ONLY the decedent's children

                             claiming on their behalf the "scheme to defraud" where Richard Harlem's client

                             from the Surrogate's Court the decedent is part of the "trio" of the alleged

                             fraudsters.  Of course, that is already a conflict of interest, but who cares.  

                             After all, Robert Harlem, one of the attorneys of record in both of the above

                            cases (died in September of 2012), is a retired judge and is "owed deference" by his                             fellow judges

                        

October 2007     The deeds that are the center of the controversy in the Mokay v. Mokay proceedings

                           are placed. on consent of the decedent's new wife and now widow Connie Mokay

                           into - the horror! - the decedent's Estate.  Richard A. Harlem argues on record

                           to Judge Elizabeth Garry (now Justice of the Appellate Division 3rd Judicial

                            Department) AGAINST putting the deeds into his client the decedent's Estate.  Yet

                            another conflict of interest.

December 2007  Richard Harlem files an appeal of Judge Garry's decision putting the deeds

                           not directly with the decedent's adult children (Richard A. Harlem's clients 

                           in the Mokay action in the Delaware County Supreme Court), but into 

                           decedent's Estate (Richard Harlem's client in the Delaware County Surrogate's

                           Court).  Nobody punishes Richard Harlem for representing clients

                           with irreconcilable conflicts of interest

January 2008     While the appeal is pending, Richard Harlem now moves to merge his two

                           irreconcilable groups of clients into one case and makes a motion to

                           add the decedent's Estate (the perpetrator) as the co-plaintiff with

                           the decedent's children (perpetrator's victims) in the Mokay action. That is

                           one more irreconcilable conflict of interest.

October 2008     Richard Harlem obtains a partial summary judgment on liability against

                           Mr. Neroni for all of his clients.  Thus, one of the "trio" of the perpetrators

                           obtained a summary judgment on liability against one of the two other

                           alleged perpetrators.  For what? For fraud.  For whose fraud? For

                           decedent's own fraud.  Does it make sense? No, of course, it doesn't.

                            But, to shut Mr. Neroni and his counsel up, 

•                            discovery in the case is blocked
•                             demand for a Bill of Particulars is blocked
•                             motions to vacate the summary judgment in favor of the decedent are blocked
•                            Mr. Neroni and I are sanctioned for even raising these issues

A detail: the only damages that Richard Harlem claims on behalf of all the incompatible clients in the Mokay action are - surprise! - Richard Harlem's own legal fees, the whole reason for this frivolous litigation. 

April 2011           Mr. Neroni finds out that 

                              David Mokay was suing the Estate in Surrogate's Court,

                             and that Richard Harlem did not disclose, yet another conflict of interest

                              That Richard Harlem attempted to get a judgment of damages in

                              the Mokay action (Supreme Court) on an ex parte basis in the Surrogate's Court

                              behind Mr. Neroni's back

                              Mr. Neroni sues Richard Harlem, his father Robert Harlem, their law partner

                             Eric Jervis, their law firms Harlem & Harlem and Harlem & Jervis for

                             fraud upon the court (same as they were suing him for) and their

                              clients in the Mokay action for fraud

                              Richard Harlem and Robert Harlem hire to represent them in that action -

                              surprise! - the law firm of Mr. Neroni's disciplinary prosecutor who 

                              apparently used his prosecutorial position to pick paying influential

                              clients out of attorneys referred to him for discipline and "honoring"

                              his client's wishes by disbarring those who referred them for discipline

                              to begin with.

                             So, Judge Becker, at that point the Acting Delaware County Supreme Court

                            Justice who assigned himself to all actions where Mr. Neroni and I were parties,

                             in order to retaliate against us,  grants the motion to dismiss to Richard Harlem's                                  attorneys Hiscock & Barclay of Albany, NY,  after

                             John Casey, member in Hiscock & Barclay and thus private attorney for 

                             Richard Harlem and Robert Harlem, does his "job' for Richard and Robert                                            Harlems, dismisses Mr. Neroni's complaint against Richard Harlem

                             and Robert Harlem and obtains disbarment of Mr. Neroni without a hearing

                             based on non-final decision in the Mokay case that Richard Harlem

                             obtained by not telling the judge that Plaintiff David Mokay represented

                             by Richard Harlem is suing in Surrogate's Court in a related action 

                             the Estate, Richard Harlem other client, the co-Plaintiff in the Mokay action.

All judges in the case looked the other way as to Richard Harlem and his father Robert Harlem's conflicts of interest.

All judges in the case disregarded the law in favor of Mr. Neroni.

Richard A. Harlem represented in the action, for 8 years (!) both the alleged perpetrator of fraud and his victims.

Let us look once again and compare.

An attorney is disbarred without a right to be reinstated in the State of Florida for representing, at the same time, a close corporation and some of its shareholders, a conflict of interest.

Richard Harlem represents in Mokay v. Mokay action five adult children of a deceased former client of Mr. Neroni, and the decedent himself, the perpetrator of fraud upon his children, as claimed by the children and by Richard Harlem.

And if you are a son of a judge, you can do it in New York, a landlord of a NY Senator and a client of a law firm employing (1) NY Senator Breslin and (2) wife of NY Chief Judge of the Court of Claims M. Cornelia Cahill - you can do it.

Where is Preet Bharara for all this corruption, I keep wondering.

Once again about attempted torts, pretended incompetence of judges and the need for effective judicial discipline

Here is a snippet from the Mokay v. Mokay appellate decision that was used as a collateral estoppel ground to disbar my husband Frederick J. Neroni, a trial lawyer of 37 years, without a hearing in 2011, while the Mokay v. Mokay case, the source of "collateral estoppel" in the order of disbarment which is usually applied only to FINAL decisions on the merits, was and still is pending to this day:

The Appellate Division 3rd Judicial Department clearly relies in its decision on the Court of Appeals case "Amalfitano v. Rosenberg, 12 NY3d 8, 2009 and claims that a tort of fraud upon the court may be established simply by showing "intent to deceive", without a resulting injury.

In fact, the court, in the same sentence, claimed that it is only necessary to establish "attorney's intent to deceive" for purposes of Judiciary Law 487, while citing not only to Amalfitano v. Rosenberg, but also to Scarborough v. Napoli, Kaiser & Bern, LLP, 63 AD3d 1531 (2009), a 4th Department Case decided on June 5, 2008, after the judge already told Mr. Neroni on record in May of 2008 that the summary judgment on liability against him is already granted, but providing, contrary to Amalfitano (decided later, in February of 2009 and overruling Scarborough) that deceit (injury) is necessary to establish a civil claim under Judiciary Law 487.

Thus, the 3rd Department has lumped together a 4th Department case Scarborough that was in favor of Mr. Neroni (because his deceipt was not established on record) and the Court of Appeals case Amalfitano that overruled Scarborough and amended a New York statute, for which Court of Appeals had no authority

Any 1st year law student will tell you that injury and damages resulting from the injury and not from the intent to inflict injury, is the necessary element of a tort without which a finding of liability cannot be made.

The motion for a summary judgment for liability against Mr. Neroni was made in 2008.

Therefore, application of a 2009 case drastically changing the law was, as far as Mr. Neroni is concerned, a violation of the ex post facto clause of the U.S. Constitution, a fundamental constitutional error.

It is apparent that nowhere in the country and at no time in legal jurisprudence did private parties have a right of a private cause of action punishing a person for "intent to deceive" with no necessity to show a real injury.

Yet, that is what the Appellate Division 3rd Department says.  And it is clear that both the Court of Appeals decision in Amalfitano v. Rosenberg and the 3rd Department decision is clearly wrong, at least because the Appellate Division 3rd Department applied Amalfitano against Mr. Neroni retroactively.

Moreover, in January of 2015, the same court has described actions of Mr. Neroni, the decedent who was a party in the divorce action and Mr. Neroni's client in that divorce action, and the decedent's new wife and now widow Connie Mokay as "the trio" who allegedly planned and perpetrated the fraudulent scheme.

Obviously, in accordance with the decision of the Appellate Division 3rd Judicial Department, "the trio" should be on one and the same side of the caption, as defendants, all three participants in the "trio" - Mr. Neroni, Connie Mokay and the decedent.

Yet, one of the "trio", the decedent's Estate, is on the opposite side of the lawsuit's caption, as a Plaintiff and co-Plaintiff with his own victims - represented by the same attorneys as his victims, and where the only damages claimed in litigation are legal fees of these now obviously disqualified attorneys.

Here are the judges who have made the January 22, 2015 decision in Mokay v. Mokay.

 Here are the judge who have made the November 18, 2009 decision in the same Mokay v. Mokay relying on Amalfitano that, without authority, changed the statutory law from what the summary judgment judge was deciding.

As the statement at the beginning of the November 18, 2009 decision indicates, it reviewed and affirmed two court orders - of March 18, 2008 and of October 2, 2008.  Thus, it had no review what the judge did in 2008 in reliance on a case that drastically changed the law since then in 2009.

The judges who decided my husband's fate in 2009 were:

• The authoring justice John A. Lahtinen, who, judging by his date of admission to the bar of 1971, was born around 1945 and is due to retire this year;
• The now deceased Anthony Cardona, at that time Presiding Justice of the NYS Supreme Court Appellate Division 3rd Judicial Department, who died of cancer on December 4, 2011;
• Karen Peters, the now presiding Justice of the NYS Supreme Court Appellate Division 3rd Judicial Department appointed in 2012, after disbarment of my husband in 2011;
• Justice Bernard Malone who retired on December 31, 2012;
• Leslie Stein who later decided a case, coincidentally, against both of us on a property issue brought against the NYS Department of Environmental Conservation (part of New York Executive branch of the government) 6 days after NYS Chief Executive Officer Andrew Cuomo nominated her to the New York State Court of Appeals;

1 judge died, 1 retired, 1 is soon to be retired, and two (Karen Peters and Leslie Stein) were elevated, Karen Peters to the Chief Judge of the NYS Appellate Division 3rd Judicial Department and Leslie Stein to the New York State Court of Appeals.

Please, note the same judge Peters who decided the November 18, 2009 case that became a basis of the order of disbarment.

Please, note the same judge McCarthy who, 5 years down the road on January 22, 2015 suddenly decided about the "trio" which would have required him to disqualify counsel for the Plaintiffs back in 2009 and turn them into the Court's own Committee for Professional Conduct for the conflicted representation.

One more thing is notable.

In 2015 McCarthy, as a presiding judge, claims that "title to parcels passed to Mokay by operation of law".   Any 1st year student will tell you that title to real property in New York does not pass without delivery of the deed.  You can record the deed 500 times, but if it was not delivered, the title does not pass.  There was in 2009 and there still is no proof of delivery of the deeds in the record of Mokay v. Mokay.

A court reviewing a summary judgment has an obligation to SPOT unresolved triable issues of fact, and once such an issue is found, DENY the motion.  The court has no authority to RESOLVE triable issues of fact on a motion for a summary judgment, that would be judicial misconduct and an unauthorized act, usurping the authority of a jury.

The summary judgment court in my husband's case, Judge Molly R. Fitzgerald out of Binghamton, NY was serving her first year on the bench when she decided the partial motion for a summary judgment against Mr. Neroni.  Judge Fitzgerald decided that the title passed, so she presumed that the deed was delivered, where there was no evidence of that in the record.  So, Judge Fitzgerald, as all other judges affirming her decision and relying upon it, are acting as advocates for the Plaintiffs because they are CREATING evidence not in the record, a gross judicial misconduct.

Thus, contrary to Justice McCarthy's statement in his January 22, 2015 decision, title to the two parcels never "passed by operation of law".

So, in order to decide against my husband and strip him of his law license, justices of the Appellate Division, all with shining credentials paraded in their official biographies on the court's website, claimed they did not know the most fundamental rules of law:

(1) that a tort may not be brought where there is no injury, and where, as in Mr. Neroni's case, the deed was not delivered, there was not injury to be claimed, and thus no damages;

(2) an attorney may not represent clients who are de facto plaintiffs and de facto defendants in the same action, the alleged perpetrator and the alleged victim, such representation is attorney misconduct that must subject attorneys to discipline and disgorgement and/or forfeiture of all legal fees (and only legal fees of Harlem & Jervis are claimed in the Mokay v. Mokay action);

(3) recording of the deed does not ensure passing of the title, title to real estate does not pass without delivery;

(4) IF the deed is delivered (which did not happen in this case), a recording creates constructive notice in all members of the public, including those with potential interest, and there is no requirement in the law to record with publication.

(5) Recording without publication of a deed that WAS DELIVERED and which thus passes legal title, creates constructive notice of the new legal rights established by the DELIVERED and RECORDED deed, whether the deed was recorded with or without publication.

 (6) Collateral estoppel may apply only to the FINAL judgment on the merits in a case, not to intermediate judgments where, as here in the Mokay action, the jury did not decide the issue of damages yet.  Thus, since there is no final adjudication on the merits until now in the Mokay action, the disciplinary proceedings against Mr. Neroni on the basis of the Mokay action could not even been brought as yet (especially that the 3rd Department's Committee told me numerous times that it is their "policy" to wait until the conclusion of litigation, together with appeals, before bringing disciplinary charges against an attorney).

And the above is in addition to other problems the Mokay case has that I enumerated elsewhere on this blog.

How much hatred and desire to deprive my husband of his livelihood should the "honorable" judicial system have to break elementary rules of law in order to "get" Mr. Neroni.

Which begs the question - are judges of the Appellate Division are incompetent to such a degree that they make mistakes that a 1st year student will get canned from law school for, or are they committed to engage in any possible misconduct and disregard any rule of law and illegally fill any gaps in the evidence, only to "get" my husband and strip him (unlawfully) of his law license?

If this is being done to my husband, how many more people are victimized by this judges the same way?

Isn't it time to create laws providing for efficient and transparent discipline for judicial shenanigans such as these?

Moreover, judicial discipline should also presuppose a legal remedy for the victims of judicial misconduct, a remedy that judges took away at this time by giving themselves an all-encompassing absolute judicial immunity, for even malicious and corrupt acts on the bench (and, as this immunity is applied, it reaches actions of judges far off the bench and far outside judicial proceedings).

The government? To apologize? For mistakes? Or to correct them? Never!!!

With all the mess, fraud, stupidity and misconduct that occurred so far in my disciplinary case, there might be one graceful thing for the prosecution to do - apologize and withdraw the disciplinary petition.

But for the government? To acknowledge its own mistakes? To apologize for them? To correct them?

Only in the dream world.

But, it is getting more and more interesting to see how the government messes up my disciplinary proceedings more and more and more and more...

New York Judiciary Law 90(10) stops normal functioning of the courts, the legal profession, their clients and their client's business and makes the statutory scheme of attorney admissions and discipline in New York unconstitutional

New York State Judiciary Law 90(10) provides:

     "10.  Any  statute or rule to the contrary 

      notwithstanding, all papers, records and 

      documents upon the application or examination 

      of any  person for  admission  as  an  attorney  

      and  counsellor  at  law  and upon any complaint, 

      inquiry, investigation or proceeding relating 

      to the  conduct or discipline of an attorney 

      or attorneys, shall be sealed and be deemed
      private  and  confidential.  However,  upon  

      good cause being shown, the justices of the 

      appellate division having jurisdiction 

      are empowered, in their discretion, 

      by written order, to permit to be divulged all 

      or any part of such  papers, records and documents. 

      In the discretion of the presiding or acting 

      presiding justice of said appellate  division,  

      such order may be made either without notice 

      to the persons or attorneys to be affected 

      thereby or upon such notice to them as he may

      direct.  In furtherance of the purpose of 

      this subdivision, said justices are also
      empowered, in their discretion, from time 

      to time to make such rules as they may deem 

      necessary. Without regard to the foregoing, 

      in the event that charges are sustained 

      by the justices  of  the  appellate  division
      having  jurisdiction  in  any  complaint,  

      investigation or proceeding relating to 

      the conduct or discipline of any attorney, 

      the records and documents in relation 

      thereto shall be deemed public records.

My disciplinary case showed that this is quite a spectacular statute in the way it may be applied and used, because in my case the court, Appellate Division 4th Judicial Department, issued an order of December 17, 2014 "sealing" the order itself and several motions with supporting papers upon which the order was made.  

The supporting papers provided both by the prosecution and by myself in the proceeding included a lot of court cases from New York, federal and even international courts (there was a case from the United Nations court and a case from the European Court of Human Rights), there were multiple public documents from this state, from other states and from other countries, there were newspaper articles published on the Internet by newspapers and public advocacy organizations operating in this state, nationally and in other countries.  

All of these "documents and records", pursuant to Judiciary Law 90(10) are "deemed sealed".

I am being criminally prosecuted at this time for violating that "sealing order" with a claim that it was a "lawful mandate of the court", so, I understand, Judiciary Law 90(10) is strictly applied and enforced.

Yet, it appears that it is strictly enforced only against me.  Had it been strictly enforced as it is written, the New York court system would have stopped functioning by now, and I will explain why, below.

The plain text of Judiciary Law 90(10) provides that, once a secret inquiry about an attorney starts, all "documents and records" upon which such a secret inquiry starts are "deemed sealed" without a court order.  

To start or not to start inquiries against an attorney is within sole discretion of attorney disciplinary committees, unelected bodies where the super-majorities of members are private attorneys, and where members are handpicked by judges of the 4 Appellate Divisions in New York.

What is "deemed sealed" under the plain application of the law is not available to the public for any use.

Thus, disciplinary committees have power to take out of public use documents and records such as judgments of divorce, orders of custody, money judgments, foreclosures or dismissals of foreclosures etc., which are the basis of legal rights of numerous members of the public who are not subject of the inquiry against the particular attorney.

The disciplinary committees have the sole discretion of sealing such records without a court order and for an indefinite time.

I do not believe New York State Legislature had any right to delegate SUCH power to the attorney disciplinary committees or Appellate Courts, but that's exactly what the Judiciary Law 90(10) provides for, by its plain text.

Thus, if a complainant turns in his own attorney (as an example) and complains about the attorney's alleged mishandling of a court case or a business transaction, and the particular attorney disciplinary committee deems the complaint meritorious enough to start an inquiry upon it, as soon as the inquiry is started, all documents pertaining to the court case that was the subject of the complaint (a case which may be still pending, and if concluded, the order is used by at least two opposing parties to establish their legal rights) are "deemed sealed" and are unusable for any purpose, and the same applies to all documents from the business transaction.

 Judiciary law 90(10) is also unique by at the same time providing for confidentiality of attorney disciplinary proceedings and blowing it: 

on the one hand, confidentiality of attorney disciplinary proceedings are protected by Judiciary Law 90(10) because inquiries and proceedings against an attorney, together with all documents and records upon which the proceedings are based, are "deemed sealed";

on the other hand, if the records are public records from business transactions or court cases of the subject attorney's clients, "sealing" of all "documents and records" upon which the inquiry and proceeding is based must seal the "documents and records" where they are kept by their custodians, and such sealing is impossible without notification of custodians of such records.

So, the statute is made in such a way that it provides for confidentiality of attorney disciplinary proceedings by (1) necessarily blowing that same confidentiality through the necessary notification of the custodians of public records that such records are now sealed; and (2) by stopping the businesses and court cases which are subject of inquiries and proceedings against attorneys.

It is obvious that the statute is stupid, unlawful, unconstitutional, if it is applied properly it will prevent establishing legal rights of untold (literally) number of New York residents and business and will stop an untold (number) of court cases from proceeding or judgments from such cases from being used in any way. 

 Moreover, "documents and records" sealed under Judiciary Law 90(10) are sealed forever until and unless one of two events happen:

(1) somebody who actually knows that certain "documents and records" are "deemed sealed" makes and wins a motion to the Appellate Division where the secret inquiry or proceeding against the attorney commenced that triggered the sealing of "documents and records", or

(2) the inquiry against the attorney culminates into a proceeding and a public decision on attorney discipline is made, then all papers upon which the decision was made are again "deemed" public records.

It is clear from the text of Judiciary Law 90(10) that if the inquiry or proceeding against the attorney are decided in attorney's favor, the sealing of "documents and records" continues forever.

And the cases and documents are "deemed sealed" without a court order, without knowledge of or notification to attorneys' clients, opponents, opposing counsel or courts of record handling those "documents and records".

As demonstrated by the analysis above, Judiciary Law 90(10) is clearly unconstitutional, on its face, the way it is written, as it stops in its tracks the functioning of the New York State court system, business transactions and ability to prove legal rights of people through court decisions and business documents as soon as a body of unelected officials handpicked by an appellate court (attorney disciplinary committees) decides to start an inquiry about an attorney that is based on those court records and business documents.

Please, notice that Judiciary Law 90 does not have what is called a "severance clause" providing that if one part of the statute is pronounced unconstitutional, others survive.

Judiciary Law 90 is the basis of (1) attorney admissions and (2) attorney discipline in New York.

If a portion of a statute that does not contain a severance clause is unconstitutional (and Judiciary Law 90(10) is clearly unconstitutional on its face), the whole statute is unconstitutional.

Judiciary Law 90 provides for attorney admissions and discipline, and if Judiciary Law 90(10) must fall, the entire Judiciary Law 90 must fall, too - but I am sure disciplinary committees will fight tooth and claw against any claims that the underlying statute upon which they operate is unconstitutional.  Too much power is involved to let it go easily.


The interesting part is that there is no way of verifying the scope of the disaster where courts and transactions proceeded and decisions were and are being made FOR YEARS upon documents that were "deemed sealed" pursuant to Judiciary Law 90(10) as triggered by inquiries against attorneys.

I will double-check through letters to custodians of the records sealed in my case whether they were notified that the records involved in my inquiries are sealed as a matter of law, without a court order and will publish responses from custodians of the "deemed sealed" "documents and records" on this blog.

Stay tuned.

The U.S. Court of Appeals for the 2nd Circuit made yet another non-precedential decision against Mr. Neroni, which it had not right to do under its Article III power

I was alerted by a friend today that the U.S. Court of Appeals for the 2nd Circuit has issued a "summary order" on my husband's pro se appeal in his pro se case Neroni v. Coccoma, a shameful case where a federal court connected with multiple ties to the defendants and their law firms made a decision for law firms under circumstances clearly suggesting disqualifying conflicts of interest.  My husband did not receive a copy of the decision in the mail yet. 

Yet, the 2nd Circuit swept the case of potential judicial corruption under the rug under the guise that a judge is allegedly the arbiter of his own recusal.  Not in federal court, where such a recusal is governed by federal statute and by federal Constitution.   

The federal appellate court, instead of doing its job and providing a proper review on the appeal of Mr. Neroni's civil rights case, did what it usually does on civil rights appeals - did a "summary order", most likely without reading the record, and providing a 2-page decision (it is actually a 4.1 page decision, but 2 pages were taken by the caption) which the court finds not binding upon itself in the future (non-precedential).

That was in denial of Mr. Neroni's right to a full analysis, full appellate review (as of right!) and full precedential decision with a de novo review of all issues upon which the appeal was made.

Legal scholars have been in an active debate for quite some time that the policy of making "non-precedential" decisions on federal appeals, and especially targeting civil rights appeal for this "practice" and "policy", is in violation of federal court's grant of power under Article III of the U.S. Constitution, and are violating litigants' due process, equal protection and access to courts rights.

Moreover, the court refused to certify questions of state law that the lower federal district court resolved instead of the highest New York court, and while resolution of the federal question heavily relied upon issues of state law.

I understand that the courts are either lazy, or overwhelmed with cases, or both.  But, if they take people's filing fees and pretend that it is an appeal as of right, the review of the appeal should be fit to the appeal "as of right" and should result in a precedential decision.

Of course, in this particular case where the lower court heavily catered for the wife of a high-ranking New York State judge, and at the time when Mr. Neroni raised issues of misconduct of the New York State Attorney General where the district court judge's son is employed, the appellate court may not have wanted to touch this case with a 10-foot fishing pole and to create a precedential decision.

But, if one does not want to do one's designated job, one should step down and let other people to do that.  Otherwise one is violating one's oath of office.

I will blog later about what Mr. Neroni will do in furtherance of his case.