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.

Audio recordings show misconduct of plaintiffs' attorney Richard Harlem (son of a judge) in the Mokay case

I am publishing here a part of my conversation with Patrick Orr, paralegal at Harlem & Jervis, recorded at their office under the following circumstances on March 26, 2015.

On that date, according to prior agreement with Harlem & Jervis, my assistant and I arrived at Harlem & Jervis law office in Oneonta, NY, to review trial exhibits.

That was highly irregular for at least these reasons:

·       Richard Harlem was not listed as trial counsel, James Hartmann, of Delhi, was, but James Hartmann did not have trial exhibits in his office;

·       Trial exhibits consisted of certified records from a governmental entity, the Delaware County Clerk's office, and preservation of integrity of the exhibits required that those exhibits be filed directly with the court from the Clerk's office, while the alleged certified records that I never saw were somehow directed to the office of the interested witness.

When we arrived to Harlem & Jervis on the  morning of March 26, 2015, a large box of potential trial exhibits which were claimed to be certified files from the Delaware County Clerk's office was brought by paralegal Patrick Orr into the room where I and my assistant were directed to by Harlem & Jervis personnel. Patrick Orr indicated to me that there is another box, the same size, that he will bring in after I have finished review of exhibits in the first box.   

Paralegal Patrick Orr also indicated to me that he will be manually taking exhibits, one at a time, out of the box, and giving them to me for review.  This way, Patrick Orr said, Harlem & Jervis wanted to be sure as to integrity of the exhibits – in other words, so that I would not tamper with exhibits.

That certifications by the Delaware County Clerk left the hands of the Delaware County Clerk and were held with the trial witness most interested in the outcome of the proceedings (Richard Harlem whose legal fees were claimed as the only damages at trial), was obviously not a concern as to integrity of Delaware County Clerk's certifications – not for anybody, including the court, as further correspondence and interactions with the court will show.

At the point when Patrick Orr's supervision was being forced upon me and knowing from the history of that litigation that Richard Harlem attempts to charge services of Patrick Orr at $100.00/hr or more against my client, I refused and indicated that I will ask the court to have the exhibits filed with the court before trial for my review.

Patrick Orr then disappeared, consulted with Richard Harlem (whom he calls "Rich") and then came back with this statement:

Patrick Orr	Rich told that we will give you every opportunity to go through every document.
Tatiana Neroni	I understand, but that's a costly opportunity.
Patrick Orr	Right. Rich reminds me, and you, that if you need to go through the trial, you understand there are two attorneys at that trial, and that will be more expensive than to review it here.

You can hear the recording of my conversation with Patrick Orr here.

Apparently, Richard Harlem engaged in extortion against my client, claiming to me that if I do not agree to review of trial exhibits (which could require two full days – 16 hours or more, judging by the size of one of two boxes where exhibits were contained)

Since there was a claim made by Richard Harlem who communicated his message to Patrick Orr, that there were two attorneys at the trial whose services are going to be charged against my client, on the same day, March 26, 2015, I made a phone call to James Hartmann, Esq., the only trial counsel in the case that was announced to me by that date.  This is the transcript of my conversation with Mr. Hartmann that day.

Dialing sound
Woman's voice	Good afternoon, Jim Hartmann's office
Tatiana Neroni	Hello, can I, please, speak to James Hartmann, this is Tatiana Neroni?
Woman's voice	Sure, one moment, please.
James Hartmann	Hello
Tatiana Neroni	Hello, Mr. Hartmann?
James Hartmann	Yes
Tatiana Neroni	This is Tanya Neroni calling, how are you?
James Hartmann	Good, how are you?
Tatiana Neroni	Not bad, thank you.  I just have a question, who is the second trial counsel in this case, in Mokay case?
James Hartmann	I don't believe there is a second trial counsel.
Tatiana Neroni	Oh, ok, thank you very much.
James Hartmann	Ok
Tatiana Neroni	Bye.

You can hear the recording of my conversation with James Hartmann here.

The recording, and the Affirmation from me indicating that Richard Harlem is engaging in fee inflation, while, according to the recent decision by the Appellate Division (January 22, 2015, representation of the decedent/ Estate brings Richard Harlem into irreconcilable conflict with the Mokay children as co-plaintiffs in the Mokay trial and requires the court to order forfeiture of Richard Harlem's fees claimed as damages and dismissal of the Mokay proceedings) was provided to Judge Dowd in my pre-trial cross-motion.

Judge Dowd disregarded my motion and my claims that I was deprived of access to pretrial exhibits calling these claimed "a little brouhaha":

 

Yet, if exhibits, the way they were issued, certified and introduced at trial, or if they even exist, were all good and above board, my question is - why Judge Dowd blocked my access to them after the trial, before he made a decision in the Mokay case, and even after he made that decision?

It was clear from the recording with James Hartmann (unopposed and provided to the court) that Richard Harlem lied to me,  through Patrick Orr, and was engaged in clear extortion when he claimed that, if I refused to review alleged certified records of Delaware County Clerk's office in Harlem & Jervis office, at the potential cost of $100.00/hr for "supervision services" of Patrick Orr, my client will have to pay for the same time at the rate of "two attorneys" at the trial.

Apparently, when the trial counsel does not know there is another trial counsel in the case, and that is 10 days before trial, Richard Harlem was clearly lying to me, in order to have me review the records which should have been filed with the court to begin with, since they were certified records of a governmental entity and should not have been held before trial at the office of an interested witness.

I then wrote to the court this letter pertaining to trial exhibits and trial counsel, asking the court to compel Richard Harlem to file trial exhibits with the court for my review – supervision of court personnel for such review could not possibly be charged against my client as Richard Harlem's fee claimed as plaintiffs' only damages.

 

Richard Harlem responded with this letter, claiming that I either misunderstood or am trying to mislead the court claiming that he is disqualified and that he is not a trial counsel.

 

Unbeknownst to me, Judge Dowd could have been on a vacation in Virginia at this time, at least he admitted he was on such a vacation up until April 6, 2015 (in a trial transcript), but Judge Dowd's office never indicated to me that Judge Dowd was on a vacation.

Instead, Judge Dowd's law clerk wrote me a letter claiming that the judge has no authority to issue orders based on letters.  The honest thing to say was that the judge was on a vacation and had no authority to issue orders on a vacation at all, and that my letter was forwarded to another judge for review.  That was, of course, never done.

The trial counsel saga continued at the trial.

This is the front page of the transcript of the ex parte Mokay trial showing only James Hartmann as trial counsel.

Yet, Richard Harlem, in his testimony, claimed – and the court awarded him - $35,000.00 for trial preparation on three occasions where the trial was adjourned, and where trial counsel were people other than Richard Harlem.

In August of 2012 – John Scarzafawa was plaintiffs' trial counsel, but the trial was adjourned because of recusal of Judge Becker;

In November of 2013 – James Hartmann was plaintiffs' trial counsel, and the case was adjourned, at Richard Harlem's request, when Richard Harlem notified the court 3 days before trial that James Hartmann was in a hospital for nearly a month – and Richard Harlem continued "trial preparation" anyway, inflating fees for his clients – to be charged against Mr. Neroni.

In May of 2014 – James Hartmann was plaintiffs' trial counsel, and the case was adjourned, at Richard Harlem's request, once again because of James Hartmann alleged illness.

So, $35,000 awarded to Richard Harlem, who was NOT a trial counsel in the Mokay case, for trial preparation for adjourned trial dates, one of them adjourned for reasons beyond control of any party, and two of them adjourned at Richard Harlem's own request.  Nothing like a little bit of fee inflation and corruption going on here.

Why a witness, and not the trial counsel, was doing trial preparation, nobody knows.

Moreover, judging by actions of James Hartmann in the Mokay trial, James Hartmann had no clue what the case was about, what the initiating document for the case (the 2nd Amended complaint) was about, what was claimed in damages, or even whether all of his clients could claim all of the damages they were claiming, for the time period they were claiming them. 

As one example, James Hartmann claims in his opening statement that the case is by Mokay children (without mentioning the Estate of Andrew Mokay) and because they were hurt as the Estate's beneficiaries.

Compare that to the argument of Richard Harlem to Judge Garry in 2007 claiming that the Estate has nothing to do with the case and that the Mokay children's claim in the litigation is only and exclusively as contract beneficiaries under the contract to make a will.

Compare it to statements that Daniel Mokay, one of the Mokay children suing through Richard Harlem as their attorney in the Mokay action, and the executor of the Estate of Andrew Mokay, said about the essence of the Mokay litigation (which was completely contrary to what Richard Harlem said to judge Garry and completely conflicted out Richard Harlem, requiring him to forfeit ALL legal fees in the Mokay action).  Daniel Mokay stated under oath and under guidance by another counsel (looks like he sacked Richard Harlem after all) that it was the misconduct of the decedent, his father, that brought on Mokay litigation.  Yet, his father/Estate of his father, is suing in the Mokay action as a plaintiff, represented by Richard Harlem, along with Daniel Mokay, and claiming a completely different legal theory of children suing as contract beneficiaries and not as beneficiaries of the Estate.

The confusion gets even better when you consider testimony of Richard Harlem at the ex parte Mokay trial where Richard Harlem testified under oath that the "subject" of litigation in the Mokay action did not change from the Amended Complaint (Judge Garry) to 2nd Amended Complaint when the Estate was joined.

 So why the Estate was joined into the litigation where Mokay children are suing as "contract beneficiaries", because their father (the Estate's decedent) breached that same contract as part of the "trio" recognized by the Appellate Division on January 22, 2015 as a trio of people engaged in fraud - nobody knows.

Yet, Richard Harlem did add the Estate, and many judges did agree with it, and Judge Dowd did rubber-stamp damages for the Estate as plaintiff in the Mokay action for Richard Harlem's representation of Mokay children long before the Estate was joined and at the time Richard Harlem was claiming to the court that the Estate had nothing to do with the case.

As another example, James Hartmann put on testimony that ALL legal fees by Richard Harlem's two law firms were claimed as damages by ALL plaintiffs in the Mokay case. 

That means that legal fees generated by Harlem & Harlem in representation of 5 plaintiffs since June of 2007 when the case initially commenced were charged as damages of the sixth plaintiff, too, the Estate of Andrew Mokay that was joined into the action in March of 2008 only.  The complete impossibility that the Estate of Andrew Mokay could, factually or legally, incur such fees, for the time it was not part of litigation and was not represented in the Mokay litigation by Richard Harlem's law firm, did not apparently enter the minds of James Hartmann or Richard Harlem.

It did not enter the mind of Judge Dowd either, who rubber-stamped those fees for the Estate and had the arrogance of calling all the plaintiffs, including the Estate, "generous" to defendant in its claims of damages.

So, I was not permitted to review two boxes of trial exhibits before the Mokay trial because I did not agree to extortion by Richard Harlem that I had to review those trial exhibits under supervision of Patrick Orr that would be charged against my client at $100.00/hr or more, because my choice (in Richard Harlem's opinion) was to either agree to that kind of paid supervision, or being slapped by a fee of "two attorneys" at trial for the same amount of time required for review of the exhibits before they were supposed to be introduced.

When I got sick, and on a legitimate medical leave, of which I notified the court ahead of time, with the same advance notice as Richard Harlem gave Judge Dowd about James Hartmann's alleged illness in November of 2013, Judge Dowd, without seeing me, but after seeing my doctor's note, rejected my doctor's diagnosis, called my reasons not to appear without merit, dismissed the jury, held a bench trial, allowed introduction of the alleged trial exhibits in bulk, at the whopping 19 seconds per exhibits for review – if one considers the entire length of trial by court records, in fact there was obviously no review at all, because the transcript shows that hundreds of exhibits were admitted by Judge Dowd "in bulk" as soon as they were offered.

Whether there was a trial at all, is a big question, because my court observer was led to believe by the court personnel, at about 11:00 am, that the trial is not going on, while the transcript indicates that the trial proceeded at that time, and the trial transcript was created by Facebook friend of Judge Dowd's law clerk, a subpoenaed witness in the case.

I will report the story of how Judge Dowd blocked my access to trial exhibits AFTER they were introduced "in bulk" at the alleged secret ex parte trial, and even after he rendered his decision upon those exhibits and no longer needed review of those exhibits, with recordings of my conversations with Delaware County Supreme Court Clerk's office, in my next blog post.

Apparently since there is no way to subpoena court personnel or get it to testify truthfully about judge's instructions to them, and Judge Dowd refuses to give written orders of his "directives" to the clerks to block my access to the file, to prevent my client from appealing those orders, I have to record my conversations with the court personnel.

As I said, I will publish the recordings of my conversations with court personnel about access to trial exhibits in my next blog post.

Stay tuned.

In the Mokay case, pre-judgment and denial of access to the court records is the rule of Judge Kevin Dowd's court

The mixed issue of law and fact as to what could or could not constitute damages in the Mokay trial was supposed to be decided by the jury, and a litigant cannot be held to have waived his state constitutional right for a jury trial becuase his counsel got sick and was diagnosed by her physician as such, with a legitimate release from work that no court can overrule without seeing me and without trying the issues pertaining to my illness.

Apparently, what the jury was supposed to decide was prejudged years before the jury trial was supposed to happen (and it is still supposed to happen in the future, because the ex parte trial in the Mokay case is clearly illegal and the judgment from that trial must be overturned - and I will ask the NYS Commission for Judicial Conduct to take Dowd off the bench for his shenanigans in this case, as well as I am going to ask the feds to investigate if Dowd got a cut from the $300,000.00 judgment he imposed as a result of the ex parte trial). 

Judge Becker pre-judged the issue of damages, before even going into the damages trial, in 2012, the Appellate Division 3rd Department prejudged the issue of damages in 2013, and Judge Dowd rubber-stamped those two decisions on June 12, 2015.

That is just one reversible error out of many that Judge Dowd made aplenty in the Mokay case.  So far, I counted more than 30 reversible errors, and my analysis of the case is far from complete.

I will publish a full table of issues that constituted, in my view, reversible errors (with legal grounds for my view) a little later.  By the way, Dowd and other courts that decided those issues, never bothered to provide any legal grounds for not following the law throughout the litigation in the Mokay case.

Which brings me to this thorny issue.  There are simply too many of mistakes, for them to be a coincidence, when stakes in litigation are so high and when the only damages claimed are legal fees of a conflicted law firm headed by a son of a judge.

When a judge decides one, or even several issues, not many, against the law, even when judge makes a couple of reversible errors - that is bad, but does not necessarily smack of corruption.

When a judge disregards, ignores or shrugs off as "brouhaha" every single law applicable to the case, state or federal, constitutional and statutory, rules of ethics and civility, lack of proof in the record - only to award nearly half a million in judgment in a case when not a penny could be awarded as a matter of law - that SMACKS of corruption to me.

Moreover, when Judge Dowd attempted to punish me for not appearing at a trial for being injured and having a doctor's diagnosis and medical release from work (and Dowd had my doctor's report a day before trial, and injuries happen without asking us when to happen), and when Dowd attempted to punish me 6 days after his final decision in the case (when, if he claims he had jurisdiction to conduct a trial without my presence, he lost jurisdiction in the case after he made the decision on damages), Dowd really hit the bottom of judicial misconduct.

Moreover, the attempt to punish me "coincidentally" came on the same date when I commented on Judge Dowd's incompetence in this very case, (see here and here) which appears far from being coincidental to me (see also my blog here).

When Dowd directed the court not to give me access to trial exhibits that were admitted by him "in bulk" on April 7, 2015 (at least that is what the trial transcript shows), after he already made his decision based on those exhibits and after they no longer were or could be in use by him - when his jurisdiction over the case ceased, as of the date of his final decision of June 12, 2015 - that is only proving that something is rotten.

By the way, Dowd's office so far ignored my request for Dowd's vacation schedule that I made yesterday, and Delaware County Supreme Court Clerk Kelly Sanfilippo ignored my request for access to the file or for an explanation why access was denied.

Yet, issues that I raise in the Mokay litigation are all issues of public concern, and I will do my best to get to the bottom of misconduct and, in my view, corruption in this case - for the benefit of my client, and for the benefit of the public.

Sent an email to Judge Dowd's secretary requesting dates of Judge Dowd's vacation that allegedly ended on April 7, 2015

Judge Dowd's chambers have failed to communicate to me as counsel in the Mokay case that Judge Dowd was on a vacation out of state immediately before the trial and thus could not handle my pre-trial requests.

I FOILed Judge Dowd's vacation schedule with the NYS Court Administration and asked Judge Dowd's secretary, by e-mail, to give me Judge Dowd's vacation dates for the vacation that allegedly ended on April 7, 2015.

I wonder what the answer will be, if at all.

Stay tuned.

Delaware County Supreme Court/ Judge Kevin Dowd continue to deny me access to trial exhibits upon which Judge Dowd based his decision in the Mokay case

On May 22, 2015 Kelly Sanfilippo, Court Clerk of the Delaware County Supreme Court denied me access to trial exhibits admitted by the court on April 7, 2015 in the Mokay trial, and of the list of exhibits created by herself that she said she had, but did not file waiting for the decision in the case.

Prior to that, Richard Harlem's office "allowed" me access only under supervision of his paralegal, to be paid by my client at over $100/hour (review required at least two full days - it was two full boxes of certified records claimed to be from the Delaware County Clerk's office).

I asked the court to compel Richard Harlem to file the records allegedly certified by the court's clerk Sharon O'Dell with the court where such certified records belonged.  The court did not indicate to me whether the judge was on a vacation or not at the time of my inquiry, but Claudette Newman indicated to me that the judge may not grant orders based on letters. 

Judge Dowd did grant orders based on letters before and after my letter, only to Richard Harlem and NYS Attorney General, Judge Dowd's own counsel in a case where AG's office represents Judge Dowd sued in his individual capacity.

Access  to trial exhibits was denied to me by Sanfilippo on May 22, 2015 despite Sanfilippo's admission that exhibits were on file in her office and despite my request to review exhibits under supervision of court personnel.  Sanfilippo also could not conclusively state that the judge was going to be at the courthouse on my requested review date, so there was no indication that I would interfere, by reviewing the trial exhibits, with the judge's work on the decision.

Nor was there any indication that I would be able to tamper with exhibits, since the request was made to review the exhibits under supervision of Sanfilippo's office and Sanfilippo was willing to provide such supervision and made an appointment for me initially (until she talked to Judge Dowd, called back and cancelled the appointment).

Sanfilippo advised me that there was no written order from Judge Dowd denying me access to the file or sealing the exhibits, when I asked for a written order.

The decision in the case arrived yesterday.

Today I called Sanfilippo's office once again.

First, I was put on hold by Sanfilippo's assistant for a long time.

Then, Sanfilippo's assistant told me that Sanfilippo was busy and will call me at a later time.

When I asked the assistant to deal with the issue of access to exhibits directly, since the decision in the Mokay case is already in, she said she will consult Sanfilippo.

After consulting Sanfilippo, the assistant told me that Sanfilippo still denied me access to exhibits.

I've sent an e-mail to Sanfilippo demanding access to exhibits upon which a court decision and judgment have already been made, exhibits ALLEGEDLY admitted into evidence by the court on April 7, 2015 ("allegedly" - because (1) the stenographer was a Facebook friend of the judge's law clerk who was subpoenaed as a witness in that case, because (2) a court observer from the public was misled by the court personnel into believing that the trial was over when the trial proceeding, thus precluding her from observing the trial, and because (3) my access to trial exhibits was blocked before and after the decision was made after the ex parte trial).

Stay tuned as to what, if anything, Sanfilippo will answer.

Judge Kevin Dowd's decisions during out of state vacations

In the transcript of the Mokay trial that I received recently, Judge Dowd acknowledges that he was not in the State of New York on the day immediately prior the day of trial, April 7, 2015:

Yet, Judge Dowd's law clerk Claudette Newman never notified me or Mr. Neroni of that fact and transmitted to me alleged instructions of Judge Dowd as if he was in office and not on a vacation, including an alleged order to appear on April 7, 2015 despite a legitimate medical leave from work, and a threat that if I do not so appear, the court will use "legal means" to "secure my attendance".

Very obviously, that threat could not legitimately come from a judge because the judge has no power to overrule a medical diagnosis even when in office.

When the judge is out of office, he has no authority to make any decisions, especially the decision threatening an injured attorney to appear despite her injury, or else her "attendance will be secured".

Yet, for Judge Dowd, he is always a judge, even when on vacation.

The law may differ with Judge Dowd's view on that point, but what is the law to Judge Dowd?

Judge Dowd indirectly acknowledged that he had no power, while on vacation, to issue any orders, by explaining that an Order to Show Cause (that was never submitted, as regular procedure requires, to the clerk of Delaware County before coming to the judge's chambers), was signed by another judge because Judge Dowd was on a vacation. 

Judge Dowd claims that the Order to Show Cause was signed by Judge Cawley "on [Judge Dowd's] behalf".  Yet, the Order to Show Cause says nothing about being signed on Judge Dowd's behalf.

So, in Judge Dowd's mind there are "orders and orders".  Those orders which have to be signed while he is on a vacation, are signed by another judge - recognizing that a judge on a vacation has no authority to ISSUE or sign orders.

Yet, Judge Dowd, without disclosing his "on vacation" status, issued other orders, through his law clerk Claudette Newman, who knew very well that the judge was on a vacation and has no authority to issue any orders.

I am more than sure that Claudette Newman who committed attorney misconduct by transmitting such illegal orders by e-mail, will not be disciplined by the attorney disciplinary committee - because of their unspoken policy not to touch employees of judges.

I FOILed Judge Dowd's vacation schedules and will report them here, and I am turning in Judge Dowd and Claudette Newman for sure - and we will see how the system will stomach this type of misconduct.

Stay tuned.

And - be vigilant when you receive any "instruction", "order" or "direction" from a judge, his secretary or law clerk.  Check if the judge is actually on a vacation at that time.  Because if he is, the order is illegal.