misguided black robes

SUPREME COURT JUSTICE HELEN FREEDMAN - NY POST - RULE OR GET OFF THE BENCH

2007-11-26T06:50:00.000-08:00

NY POST NOVEMBER 26, 2007

RULE OR GET OFF THE BENCH

November 26, 2007 -- If state Supreme Court Justice Helen Freedman won't even issue a ruling on years-old legal moves to end decades- old court oversight of city homeless shelters, maybe she should do something really radical - like quit.

Alas, she's been the city's self-appointed shelter czar for 25 years now - and her recent decision to convene yet another panel to re-hash the issues all over again suggests that she has no intention of parking the gravy train.

Ever.

Let's be blunt: This case has become a farce - even by Gotham standards.

Judges are supposed to judge - not operate shelter systems.

Nearly every observer this side of Bellevue understands the long-overdue need to close this case and hand control of city shelters back to . . . the city.

Five years ago (when Freedman's self-ordered oversight of city shelters was only two decades old), she set up the first panel of experts to review the case.

Their unanimous opinion: End it right away - and do everyone a favor.

Even many "homeless" advocates - including a coalition of housing groups and the (cluelessly liberal) New York Times - have wanted the court to vacate the consent decree that's let Freedman run shelters for a quarter century.

Instead, she twiddled her thumbs, even though it was her own handpicked panel that said all the issues of the '83 case had been resolved long ago and that the matter should be put to rest.

Now, three years after that panel's recommendation, she finally issues a ruling - setting up yet another panel to study the case all over again.

And get this: She named a former head of the plaintiff group, the Legal Aid Society, to the three-member panel.

Where's the judicial "impartiality" in that?

Freedman has her teeth in this and won't let go. No doubt, if the new panel also demands an end to the case, she'll find some other way to delay yet again.

It's not right.

Never mind all the time and money wasted over 25 years.

The biggest problem is that her continued oversight actually makes it difficult for officials to improve the system.

Even the most minute changes must be crafted so as to pass muster with Freedman - right down to the kind of formula served to babies of families seeking aid.

Yet Freedman isn't a part of an administration elected by New York voters.

She doesn't have to worry about the budget or tax implications of her rulings.

And her reign over this issue means voters can't fairly hold City Hall accountable for its shelter policy.

Enough is enough.

Mayor Bloomberg and his Department of Homeless Services, building on Giuliani-era reforms, have created a fair and humane shelter system.

Freedman has no moral claim on the system, if she ever did.

As for the ethics of her obstinacy - well, maybe it's time for Judith Kaye, chief judge of the state Court of Appeals, to have a sidebar conference with her obdurate colleague.

Quite apart from the specifics of the case, Judge Freedman's conduct is disrespectful of the rule of law.

She needs to quit it.

JUSTICE JOAN LOBIS - DAILY NEWS - LESSON IN STUPIDITY

2007-09-15T13:43:00.000-07:00

NYDAILYNEWS.COM Thursday, September 13, 2007

Lesson in stupidity

Manhattan:
How ridiculous the Manhattan Family Court system looks by refusing to let Grace Yang Carter attend the good school her mother wants to send her to ("Lessons in bitterness," Sept. 7). The father is obviously using the child to punish the mother. Shame on Judge Joan Lobis for aiding and abetting this folly. What a disgrace.

Bridget Grace Marks
Mothers for Judicial Accountability

JUSTICE JOAN LOBIS - VICTIM # 5

2007-09-15T13:41:00.000-07:00

Exclusive: Third-grader Grace Yang Carter could be attending one of the city's top public schools - if it weren't for her parents' raging divorce battle." name=storyDesc>
Grace Yang Carter (l. with mother) is caught between
parents Esther Yang and Edward Carter.
Yang wants Grace to attend competitive PS 6,
while Carter wants her to stay at failing Staten Island school.

Exclusive –
http://www.nydailynews.com/news/2007/09/07/2007-09-07_divorce_battle_keeps_girl_from_top_city_-2.html

Divorce battle keeps girl from top city school
By NANCIE L. KATZDAILY NEWS STAFF WRITER
Friday, September 7th 2007, 4:00 AM

Third-grader Grace Yang Carter could be attending one of the city's top public schools - if it weren't for her parents' raging divorce battle.
Grace's mother won the girl a spot at the upper East Side's highly regarded Public School 6 under the federal No Child Left Behind program.
But Grace's dad, who lives on Staten Island, has refused to move the girl from PS 16, a failing school there, saying the commute to Manhattan is too long.
Grace's mom, Esther Yang, is furious.
"This is the most coveted waiting-list school in the city," she said. "I don't have the money to live in that zip code. How can any caring parent deny her this opportunity? I don't get it!"
Grace, 8, lives with her dad, Edward Carter, on Staten Island half the week, and with her mom in Manhattan the rest of the time.
As part of a 2004 divorce decree, Carter was granted the final say on Grace's education.
He accused Yang of wrongly applying to PS 6, 40 blocks from her Tudor City apartment, in effect bumping his applications to three high-performing schools 10 minutes from his home.
"I did not think it is in Grace's best interest to be riding in a yellow bus nearly 15 miles on the Brooklyn-Queens Expressway, approximately 1-1/2 hours each way, to and from school every day," the father said. "She'd become a commuter at 8 years old. Scores are one thing. But she also thrives on the stability, consistency and warmth of attending school close to me."
Yang countered that she commutes 18 miles to take Grace from her Manhattan apartment back to the failing school on Fridays and Mondays.
"I will gladly pick up Grace from his home and drop her at [PS 6] every day and back, whatever it takes," she said.
Yang begged a five-judge Appellate Division panel earlier this week to overrule Manhattan Supreme Court Justice Joan Lobis, who refused to force the transfer.
Yang, a Chinese-American yoga instructor, said Grace scored in the 92nd percentile in elite private school tests, and doesn't want her daughter at a school branded "in need of improvement" by the state.
Yang also charged Grace "got pushed down the stairs by the boys" at PS 16 in St. George. "Most of Grace's friends transfer out of that school to Manhattan," the mom said.
But Carter argued Grace would lose out on after-school play dates and activities like art lab at Snug Harbor along with "dance class, swim class, time with me at the park, zoo, library."
"She would miss time socializing with her classmates," he said. "All that would end. She'd be sitting on a bus."
Grace is enrolled in an accelerated dual Spanish-English language program, he said, and scored well on standardized tests at PS 16.

Grace was to begin class Tuesday at PS 6, where 90% of students test at or above grade level. But Carter reenrolled her at PS 16, calling it "the best of options available." Only half the students at PS 16 score at grade level and 86% qualify for free lunch.
He said he is working with the Education Department to move her to one of his school choices.
Exclusive
Whiz kid caught in parents' feud begs to attend better school

____________________________________________________________________
BY NANCIE L. KATZ - DAILY NEWS STAFF WRITER Sunday, September 9th 2007, 8:26 AM
Exclusive: The 8-year-old girl caught in an educational tug of war between her divorced parents wants to ditch her failing Staten Island school for a better-rated one in Manhattan." name=storyDesc>

Grace Yang Carter says Public School 6 in Manhattan is a 'better school' than Public School 16 in Staten Island
The 8-year-old girl caught in an educational tug of war between her divorced parents wants to ditch her failing Staten Island school for a better-rated one in Manhattan.
Grace Yang Carter said Public School 6 on the upper East Side, not too far from where her mom lives, is a "better school" than Public School 16 in St. George, close to her dad's home.
"My mom really wants me to to go [to PS 6] but I really want to go also," she told the Daily News.
"I like PS 16. But I'd rather go to school in Manhattan. I want to be challenged. I'm not challenged there. [PS 6] would be hard for me and that's what I want."
Even though she's taking sides on the issue, the bright, bouncy third-grader said she feels uneasy about her parents' battle.
"One parent says one thing, and one parent says one thing and I get stuck in the middle," Grace said. "Then I get all angry!"
Grace's mom, Esther Yang, won her daughter a coveted spot at highly regarded PS 6 through the federal No Child Left Behind act.
But her dad, Edward Carter, refused to yank her from failing PS 16 because the commute from Staten Island to PS 6 in a yellow bus would take about 90 minutes each way. He applied to three high-performing schools on Staten Island.
Grace splits her time between the two parents but under their 2004 divorce decree, Carter was granted the final say on Grace's education. So Esther Yang has asked a Manhattan appeals court to overrule Carter and let Grace go to PS 6.
Grace, who scored in the 92nd percentile on elite private school tests, said she's way ahead of her classmates at PS 16 - where half the kids read below grade level.
While she reads Nancy Drew books, her school chums are struggling through Dr. Seuss, she said.
Fellow students stumble over basic math, but "I get done really quick. I read or draw," she said.
"I try to do my work. Usually it's too loud and I can't do it. They [students] run around the room, throwing things, every day," she said.
"The older you get, the less-mannered they are. I found a way to figure out how to get everyone to be quiet! Scream on top of them: 'Be quiet!'"
Carter agrees that Grace should be in a better school.
But he accused his ex of wrongly applying to PS 6, which is 40 blocks from her Tudor City apartment, effectively nixing his applications to schools within 10 minutes of his home.
The dad said he does not want Grace to spend hours commuting or lose the "stability, consistency and warmth" of attending school close to him. If she goes to school in Manhattan, he said, she will miss out on play dates, afterschool activities and sleep.
Grace is less worried about the long trip to PS 6. "Mom will pick me up and take me," she chirped.
It was Grace's mom who alerted The News to her plight - which angered Carter.He accused the mom of exploiting and endangering their daughter. But Yang - who has asked the feds to intervene in her case - said she had no choice but to go public.
"I'm trying to protect her best interest," she said. "To do nothing would make me negligent as a parent."

JUDGE JUDITH GISCHE - RUDY GIULIANI

2007-09-02T22:53:00.000-07:00

Back to the Soaps
GOTHAM GAZETTE

Rudy Giuliani may make $195,000 a year, live in free housing (even if he's been exiled to a small guest room), and have funds tied up in real estate and retirement accounts, but his bank balance is a mere $7,000, his divorce lawyer, Raoul Felder, said in court yesterday. Felder did not take into account the mayor's $3 million book deal.
Meanwhile, Judge Judith Gische denied Felder's pleas that she remove herself from the closely watched divorce proceedings. The judge also rejected a request by Bruce Nathan, former husband of the mayor's very good friend, that she preside over his suit seeking custody of the Nathans' 16-year-old daughter. Another judge will hear that one.

JUDGE JUDITH GISCHE - SOFT SPLIT - NEW YORK TIMES

2007-09-02T22:48:00.000-07:00

For Arbiters in Custody Battles, Wide Power and Little Scrutiny
By Leslie Eaton
The New York Times
May 23, 2004

When warring parents head to court to fight over child custody in New York, their lawyers often let them in on a little secret: The most powerful person in the process is not the judge. It is not the other parent, not one of the lawyers, not even a child.
No, the most important person in determining who gets custody, and on what terms, is frequently a court-appointed forensic evaluator. Forensics, as they are often called, can be psychiatrists, psychologists or social workers; they interview the families and usually make detailed recommendations to judges, right down to who gets the children on Wednesdays and alternate weekends.
And the judges usually go along.
Forensic reports, which the parents pay for, can cost as much as $40,000 or even more. There are no standards for who can be an evaluator or what should go into an assessment. The court system does not track who gets these lucrative appointments, much less whether evaluators tend to favor fathers or mothers or joint custody.
Some lawyers and parents suspect that cronyism plays a big role in some appointments, but given the secrecy surrounding matrimonial cases, that is hard to prove, or disprove. Others say there is nowhere to lodge complaints about mistreatment. And many —— including some forensics —— question whether there is any scientific basis to justify the evaluators' recommendations.
In Suffolk County, judges repeatedly appointed a psychologist who was not licensed to practice in New York State. In Manhattan, an evaluator remained on a case even though there was evidence that he had had business dealings with one spouse's lawyer. In Westchester County, an expert charged parents $57,000 for a report that the judge found extremely biased toward the father.
Though they have been around for years, court-appointed forensics have become increasingly commonplace —— and controversial —— in New York, which may be the high-conflict custody capital of the nation. But similar debates about custody evaluators are going on across the country, experts say, as divorce rates continue to rise and courts try to cope with the needs of children caught up in a contentious process.
"It's boiling over everywhere," said Peter Salem, executive director of the Association of Family and Conciliation Courts, based in Madison, Wis.
In Arizona, the governor recently signed a law changing the state's process for investigating complaints about psychologists, in part because of controversy over forensic evaluations. In Louisiana, a committee of the state board governing social workers is considering creating standards for evaluations.
And over the last few years, California has adopted a series of court rules that require training for forensics, set standards for evaluations and provide mechanisms for filing grievances against evaluators, said Philip M. Stahl, a psychologist and frequent lecturer on custody evaluations. "It's the only state where the rules are very specific," he said.
In New York, forensics' roles are being debated at judicial conferences, psychiatric conventions and impromptu meetings of disgruntled parents. Even the court system has decided to take another look at them, through a commission appointed in February by the state's chief judge.
Forensics "have really become arbiters of what happens in a case," Raoul L. Felder, the divorce lawyer, said disapprovingly. "I just think somehow they've seeped into the judicial process."
Some people think that is as it should be. "With some exceptions, I didn't try a contested custody case without a forensic assessment," said Philip C. Segal, a former Family Court judge now in private practice. "They were extremely helpful, even critical."
Custody cases are difficult and emotionally fraught, he said, adding that judges need help "analyzing the family dynamics, analyzing the parents' respective abilities." Judges must decide custody cases based on the best interest of the child in question, and they can appoint a "neutral expert" whenever they think it would be helpful in making that decision.
Some judges ask the parties' lawyers to agree on a forensic or to provide a list of candidates; others simply name an evaluator. Some judges have very specific questions they want addressed; others just call for an evaluation. Many, though not all, want detailed recommendations.
The American Psychological Association's guidelines state that while evaluators may determine whether either parent has severe psychological problems, that is not their main goal. Rather, evaluators are supposed to judge the parties' "parenting capacity" and how that fits the psychological needs of the child.
Forensics themselves do not agree on how to conduct a proper examination. Some order psychological tests, while others avoid them; some interview baby sitters and teachers, while others do not.
In the end, the evaluator gives the court a report that usually makes detailed recommendations about custody arrangements. The parents are not generally given copies; in some cases, they are not even allowed to read the reports.
At that point, the parents usually settle, "which we would much prefer, for the parties' sake," said Justice Jacqueline W. Silbermann, the administrative judge for matrimonial matters in New York State. The reports' usefulness in encouraging settlements is one reason judges order them, she said.
But what pleases the judges sticks in the craw of some litigants, who say they feel bludgeoned into settling by a report that does not favor them, even when they believe that the report is deeply flawed. Some lawyers contend that the evaluations actually discourage settlements in certain cases because the favored party feels no need to compromise.
The only way to challenge a forensic report is to go through a full trial and then cross-examine the evaluator; parties can also hire their own experts to critique the court-appointed forensic, but generally cannot have the family evaluated by someone else.
In the meantime, judges are reading evaluators' reports and making decisions based on them, with no way to know whether the observations and conclusions are correct, said William S. Beslow, a prominent matrimonial lawyer in Manhattan.
"In eight years, I have not participated in a case with a forensic report that was not substantially erroneous in one of its major conclusions," Mr. Beslow said. "And some are so wrong that they have disastrous consequences for families."
Underlying all the concerns about forensic evaluators is the question of whether they are offering the court scientific expertise or unsubstantiated opinions.
Jeffrey P. Wittmann, a forensic who has done hundreds of evaluations, says that his colleagues have been giving the courts both, and that they should stick to the scientific evidence. Dr. Wittmann, co-director of the Center for Forensic Psychology in Albany, said he stopped making specific recommendations to judges six years ago, and has urged colleagues to do the same.
The reason, he said, is that forensics do not really know, with any degree of certainty, what is in a child's best interest. Little scientific research on the subject exists.
Forensics do provide courts with useful information, he said, but drawing conclusions about the child's best interest and making recommendations on custody and on visiting is inappropriate, even unethical. "We have become like mini-judges," he added, "and it's a big mistake."
Among psychiatrists and psychologists, Dr. Wittmann's argument is far from the most extreme. William O'Donohue, a psychology professor at the University of Nevada, Reno, is calling for a moratorium on forensic evaluations until more research is done.
"Psychologists don't have the knowledge to do what they attempt to do when they do custody evaluations," he said.
Many custody decisions, he said, involve not scientific findings, but competing values, like a father's wish that his child excel in sports versus the mother's emphasis on studying.
While mental health experts have been debating these issues for several years, the legal world has been slower to recognize them, at least in New York.
Enter Timothy M. Tippins, an Albany lawyer who increasingly specializes in cross-examining forensic experts. For almost a year, Mr. Tippins has been writing articles in The New York Law Journal questioning the role and expertise of forensic evaluators in custody cases. He has teamed up with Dr. Wittmann to write a paper titled "Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance."
Among its recommendations is a call for judges to "begin to help the psychology discipline rein in itself" by not demanding or accepting specific custody plans.
In March and April, the two presented their arguments to conferences of New York State judges; later this year, they will speak to judges at the state's appellate level.
Some judges have welcomed his arguments, Mr. Tippins said. "I think they had on their antennae that something was amiss with these reports."
In part as a response to Mr. Tippins, Dr. Alex Weintrob organized a symposium on the scientific basis of expert testimony in matrimonial disputes at the American Psychiatric Association's annual meeting this month in Manhattan.
Dr. Weintrob, a well-known child psychiatrist who does evaluations, said later that "there is more science than some people give us credit for." On the other hand, he added, "it is important that we be aware of our limitations," citing as an example the lack of follow-up studies to see if forensics' predictions worked out. "We all know it and are a little embarrassed by it."
Even proponents of forensic evaluations are troubled by the secrecy that envelops the business, and the large sums of money that change hands, by order of the court.
"It's an industry, and it's unregulated, and it affects precious family rights," said Andrew I. Schepard, director of the Center for Children, Families and the Law at Hofstra University. "It would be lots better if this process were more transparent."
The secrecy alone raises questions in the minds of some parents. One woman, a Manhattan financial analyst who spoke on the condition that her name not be used because her court case is continuing, said she had heard from other parents that the evaluator in her case had a history of recommending that custody go to fathers. But, she complained, there is no way to know for sure.
In Kaye v. Kaye, an extremely bitter divorce case in Manhattan, the mother discovered that her court-appointed forensic had participated in a business venture with four other people involved in her case, including her ex-husband's lawyer.
This gave her grave doubts about how neutral he truly was, she said, speaking on the condition that her first name not appear in print. Judges are required to disclose their ties, she said, "and the same should be true of neutral officers of the court."
Justice Judith J. Gische denied the woman's request for a mistrial, ruling that the business —— a limited partnership with a divorce-related Web site called SoftSplit.com, now defunct —— was a for-profit educational venture, and that the lawyers, forensics and others involved were not "in business" together. An appeal of that decision is pending.
But the conflict-of-interest allegations about SoftSplit, which were reported by The New York Post last year, are still stirring up such hard feelings among lawyers and forensics that Donald Frank, the lawyer for the mother, refused to discuss the case.
Few parents are willing to talk publicly about their experiences for fear of seeing painful family matters aired in the press, or of being dragged by into court by the other parent. They also say they are often dismissed as disgruntled litigants who are angry that the evaluator did not favor them (which, of course, they often are).
The American Psychological Association's ethics committee reports that a rising percentage of the complaints it receives involve forensic evaluations. And Dr. Spencer Eth, a member of the ethics committee of the American Psychiatric Association, said local branches of his group also investigate many complaints about forensic evaluations. While such complaints seldom result in a psychiatrist's being suspended or removed from the association, he said, doctors are sometimes reprimanded or educated about the proper way to conduct evaluations.
The association takes on this role in part, he said, because state licensing boards tend to be ill-equipped to deal with problems that crop up in psychiatric practices, including some that are almost etiquette issues: a doctor's rudeness, for example, or his failure to return telephone calls.
New York's court system does not have a formal mechanism for receiving complaints about forensics, and because they are officers of the court, they cannot be sued for malpractice.
The rules governing matrimonial matters are being re-examined by a commission appointed by the state's chief judge, Judith S. Kaye.
The commission will examine the role and use of forensic examiners, said Justice Sondra Miller, the appellate division judge who is leading the group. After holding public hearings, she said, it will make recommendations to Judge Kaye, probably in about a year.
In the meantime, however, some lawyers say they believe that judges are becoming more skeptical about forensic reports, and may use them a little less. One such lawyer is Norman M. Sheresky, who represented a mother who prevailed in a Manhattan court despite an evaluator's recommendation in favor of the father. The judge tossed out the report's findings as biased, he said.
"I think that will happen more and more," Mr. Sheresky said. "I think the judges are getting wise."

JUDGE JUDITH GISCHE - SOFT SPLIT - A group of highly paid experts, whose testimony has helped decide hundreds of child-custody cases in the city,...

2007-09-02T22:42:00.000-07:00

TUG-OF-LOVE TEMPEST
By Brad Hamilton
New York Post
May 18, 2003

A group of highly paid experts, whose testimony has helped decide hundreds of child-custody cases in the city, is under investigation over whether they disclosed to the court and clients that they had gone into business together, The Post has learned.
Sherrill Spatz, the matrimonial court's inspector general for fiduciary appoint-ments, is looking into whether any conflict-of-interest rules were broken when 37 supposedly independent shrinks and child guardians became affiliated through an Internet venture, yet were sometimes on opposing sides of custody wrangles.
The experts under examination include some that made big bucks in custody battles involving former Mayor Rudy Giuliani, Revlon CEO Ron Perelman and publishing queen Judith Regan.

The experts were recruited by a company called Soft Split LLC and were promoted on a Web site that offered tips on how to negotiate divorce and custody fights. Some experts also participated in online chat rooms accessed through the site.
That business link was never revealed in court when some of the experts were assigned by judges to at least eight known cases, according to a group of parents who pushed for the probe.
Members of the parents group suspect many more cases were affected.
One member of the group, who asked not to be named, was shocked to discover that her ex-husband's lawyer was part of Soft Split - along with all four experts assigned by the court to her case.
The woman's lawyer demanded a conflict-of-interest hearing in February, during which three Soft Split experts admitted that they had hoped to make money from their affiliation with the Web company.
Manhattan matrimonial Judge Judith Gische denied the conflict-of-interest motion after three Soft Split members testified they had not, at that point, profited from the venture.
But after that hearing, the company's Web site, www.softsplit.com, was closed down.
Prior to then, experts listed on the Web site as Soft Split "team members" included some of the biggest names in the divorce business - law guardian Jo Ann Douglas, psychiatrist Stephen Herman and psychologist April Kuchuk, all of whom can get six-figure paychecks from their court appointments.
Soft Split was launched in 2000 with half a million dollars in investments from various individuals, according to the company's former lawyer Peter Corrigan.
Former real-estate developer Richard Pink, the brains behind Soft Split, could not be contacted for comment. Attempts to contact other Soft Split officials also were unsuccessful.
The company is still an active corporation according to the state Department of State.
Financial agreements between Soft Split and its experts have not been released, but some Soft Split "team members" interviewed by The Post said they believed that they would eventually make money once the company took off.
But the company floundered when the dot-com bubble burst, and it seems Soft Split is not widely known in the legal world.
In an interview with The Post last week, Justice Jacqueline Silbermann, the administrative judge for the state's matrimonial courts, said she had never heard of Soft Split even though she officiated at the marriage of high-profile lawyer Robert Dobrisch, who was listed as a Soft Split "team member."
After the Gische ruling in February, members of the parents group decided to take their beef to Spatz.
Spatz wouldn't comment, but sources familiar with the complaint said her office was hoping more parents would come forward to help with the probe, which began 10 days ago.
The parents group has launched a Web site, www.familyjustice.com to find other cases.
"The fact that these people are in business together just isn't right," said Beth Cockrell, a financial consultant and member of the parents group.

INSIDER 'CLUB' GETS DIBS ON SPLITSVILLE $POILS
New York Post
May 18, 2003
-- Critics of New York's scarred matrimonial courts say the Soft Split probe will only scratch the surface of a troubled system.
Fee gouging, shoddy work and an insider's mentality have allowed a handful of lawyers and shrinks to cash in on all the top cases, they say.
"It's a little club, and these guys wouldn't consider [Soft Split] a conflict [of interest] because they're all in business together anyway," said civil-rights lawyer Richard Emery, whose bitter divorce from actress Lori Singer cost him hundreds of thousands of dollars.
Several lawyers of matrimonial and custody fights said judges award huge fees to a select number of experts - often without questioning their bills.

"You see the same names over and over," said Howard Benjamin, an expert on legal ethics who has testified that Soft Split members violated conflict-of-interest rules by not revealing that they had formed an online company to market their expertise.
Once an expert is assigned to a case, dueling parents are forced to pay his or her fees.
Psychiatrists can charge $5,000 a day. Guardians can get $300 an hour.
"It's all just ca-ching, ca-ching," said Judith Regan, who spent $100,000 on experts in her divorce and custody fight with ex-husband Robert Kleinschmidt.
But child-custody experts say their work and testimony is vital in allowing judges to decide kids' futures.

JUDGE JUDITH GISCHE - SEE EX-JUDGE MICHAEL GARSON, DISGRACED AND JAILED SUPREME COURT JUSTICE GERALD GARSON'S COUSIN

2007-09-02T22:23:00.000-07:00

The System Is the Crime
By Jesse Sunenblick
Posted 09-29-06
JUDICIAL REPORTS

Litigators sure seem to think the world of Judge Judith Gische — even those whom she's ruled against. The problem is that New York state's wretched judicial election system can make even a luminary of the bench appear to be conflicted.
Even if a judge is putatively brilliant, the particulars of his or her excellence can be overshadowed by surrounding failures that are essentially systemic. Witness Judith Gische, the Manhattan judge known for presiding over Rudolph Giuliani’s divorce case.By various accounts Gische, 50, is “just plain smart,” “understanding of the issues,” “rational,” “caring of her job,” and “engaged and prepared and very thoughtful.” “Practically every member of the matrimonial bar has appeared before Judith Gische,” said Raoul Lionel Felder, the divorce attorney for Giuliani. The former mayor was ordered in 2002 by Gische to pay his ex-wife, Donna Hanover, more than $6 million (plus yield their upper East Side apartment.) The settlement came after 18 months of courtroom acrimony.Yet notwithstanding that outcome, Felder, now the chair of the state Commission on Judicial Conduct, contributed $3,000 to Gische’s uncontested run for Civil Court in 2003, according to state Board of Elections records. The donation equaled the biggest among the more than $61,000 in contributions that Gische raised. According to binding rules set by the Office of Court Administration’s Judicial Campaign Ethics Center, judges should not learn who their donors are. But judges are also prohibited from taking contributions from parties who “may reasonably be expected to come before the candidate if elected” or parties who “have come before the candidate so recently that it manifests an appearance of impropriety.”Which raises a tidy little question: How are judges supposed to prevent courtroom appearances by donors whose identities they’re not supposed to know in the first place?“I would say that there is no statute or promulgated rule that prohibits a judge or a judicial candidate from knowing his or her contributors,” said Robert Tembeckjian, administrator and counsel for the judicial conduct commission. “This is a practice based on an advisory opinion from the state bar association from the 1970’s.”In reality, said Hofstra University School of Law ethics professor Monroe Freedman, “whoever is close enough to the judge to be handling the campaign and the financing is very likely to let the judge know. And the lawyers are likely to let the judge know, more or less subtly, that they have helped out. I don’t trust this kind of system. Some people might say I’m a cynic, some might say I’m a realist.”Referring to Felder’s contribution, Gische’s treasurer, attorney David B. Karel, said, “Judges don’t know who’s contributing to their campaigns. I never told her who contributed how much money. I think there are some attorneys who have such a belief in the judicial system that they feel the money is well spent. It’s commendable that somebody would make a large contribution to a candidate, despite the fact that the candidate will not know who contributed to their campaign.”When asked if she knew the identities of any of her donors — many of them matrimonial attorneys — Gische was emphatic. “I can’t, I wouldn’t, and I don’t. I’ve raised money, and I have an independent treasurer. But it’s a blind process. I’m not supposed to know, and I don’t know.”In fact, at least three of Gische's donors with contributions listed at the board of elections litigated before her shortly before or after she won reelection. The appearance by Allen Mayefsky (who gave $250) was confirmed by a staff member at his office. The appearances by the other two, Bernard E. Clair ($500) and Joel B. Mayer ($150), are on record at the New York County Supreme Court’s Trial Support Office.But is this an impropriety, or an absurd contradiction within the system?“If not lawyers, then who would contribute to campaigns?” said Gische. “I don’t think the general voting public would be making contributions to judicial elections.”In terms of jurisprudence, Gische garnered a reputation for independent-minded diligence in the Matrimonial Part, where she sat from 1997 until 2005.A cauldron of emotions — and, in Manhattan, media attention — the Matrimonial Part often produces decisions in heavily contested custody cases that revolve around “expert” reports on the parties and the children prepared by forensic psychiatrists.
“In the past, judges have rubber-stamped these reports too much,” said Donald Frank, a matrimonial lawyer at Blank Rome with more than 35 years of experience. “It used to be that whatever the forensic said, a judge did. I think Gische understood that whatever is said is not empirical or scientific. I think she did a good job making up her own mind, not abdicating her ultimate role by what the experts say.” In the cases Frank tried before Gische, he said, “she had keen insight into the parties, and what the dynamics were in the marriage. Let’s face it: The Matrimonial Part is not the easiest court to sit in day after day, year after year. . . but lawyers have always enjoyed appearing before her. They always felt they were being accorded respect and listened to.”Raised in Bayside, Queens, Gische grew up in a “pretty working class” neighborhood. “My parents had middle class values,” she said. “They were very pro-education.” Her father worked as a cutter and factory foreman in the garment business, and at one point had his own custom blinds business, while Gische’s mother was a bookkeeper. Gische received her undergraduate degree and law degree from the State University of New York at Buffalo. She then spent two years as a clerk at the Appellate Division, Third Department, and eight years after that at Richenthal, Abrams & Moss, a firm that specialized in real estate and commercial matters. In 1990, Gische responded to an advertisement in the New York Law Journal seeking nominees for Housing Court judgeships. She submitted an application and ultimately was appointed, after successfully navigating bar association and various screening panels and getting the nod from Deputy Supervising Judge Fern Fisher. “Doesn’t every lawyer want to be a judge?” Gische said, with the kind of humility admirers often point out. “I thought it was a good career move, but I was very uncertain my application would go anywhere.”In 1993, Gische was elected to Civil Court in Manhattan, but four years later Administrative Judge Jacqueline Silbermann offered a promotion, asking Gische to help organize the Bronx Civil Term’s Matrimonial Part, which was lagging administratively. Thus began an eight-year tenure as an Acting Supreme Court Justice handling matrimonial cases.After she learned she would face no opponent in 2003, Gische filed papers to campaign for the Supreme Court. She became eligible after being approved twice within four years by the Democratic Party’s screening panel.But she withdrew her name from consideration shortly before the party’s convention when it became clear, according to her consultant, Jerry Skurnik, that among district leaders “she was nobody’s first choice” for the two vacancies in Manhattan.If politics prevented an excellent judge from moving up the career ladder, in many ways Gische’s move to the General IAS Part is a return to what she knows best. Asked if the move required any brushing up on procedure, Gische said, “Everything. I’m always learning. A lot of labor law accident cases, I’ve had to learn that. And insurance cases. I’m always looking at the law.”As for pet peeves, Gische described herself as a time freak. “I like timeliness. It shows consideration for other people who are part of the trial process. Particularly when you have a jury.”Since her move to IAS, Gische has garnered praise for her handling of other cases. In Gherghinoiu v. ATCO Properties and Management Inc., which revolved around an issue of “special employment” in a worker’s compensation case, Gische denied defendant’s attorney Gail Ritzert’s motion to dismiss.
Yet Ritzert offered praise: “She was prepared. Every time we went before her — motions or conferences — she was familiar with the case and background. She did her homework.”In a recent civil rights case in which an Orthodox Jew sued California photographer Philip Lorca diCorcia for taking his picture without permission and then hanging it in a gallery, Gische impressed diCorcia’s attorney, Los Angeles corporate litigator Lawrence Barth. “It was a motion for summary judgment, and she gave us about an hour to argue, which I thought was generous. She was interested and engaged, and had obviously read the briefs thoroughly.”“It was a fascinating case,” said Gische. “The balancing of what constitutes privacy, which is important in our society, and the First Amendment rights of artists is a delicate balance. You don’t often have cases that bring issues like that together that frame the fabric of our society, define who we are as a society. I think the proof of this was, there wasn’t a lot of case law out there for me to depend upon and reach a conclusion in this issue.”On a more controversial note, in 2003, the New York Daily News and New York Law Journal reported on Gische’s role in overseeing the initial guardianship hearing that ultimately led to a scandal involving Brooklyn Supreme Court Justice Michael Garson. (His brother Gerald, who faces bribery charges in an unrelated case, said this week that he would not take a plea deal.) Currently suspended with pay, Michael Garson stands accused of using his power-of-attorney on behalf of his elderly aunt, Sarah Gershenoff, to steal hundreds of thousands of dollars from her. Gische presided over one part of the dispute and approved a settlement that the Law Journal described as “apparently favorable to the Garson wing.”Equally at issue, however, was Gische’s decisions to seal the court record and refrain from reporting Garson’s alleged wrongdoing to the judicial conduct commission.“If she’s a judge, she’s an officer of the law,” said Freedman, the Hofstra ethics professor. “She became aware in the course of a proceeding that there was at the very least a strong appearance of felonious conduct, certainly unethical conduct, and . . . at the very least she should not have covered it up by sealing the record and not having it investigated by a prosecutor or a judicial ethics body.”“That’s an opinion I’d expect from a professor,” said attorney Robert Kruger, whom Gische appointed to the role of financial guardian in the case. “In the practical world, people’s behavior can depart from the norm or a professor’s notion of what the norm should be. A professor is in a cocoon. I think their opinions are worthless.”In fact, Gische said, her main responsibility was to decide whether Ms. Gershenoff needed a guardian and then to appoint an independent party to serve that role, whose responsibility it was to investigate any claims Ms. Gershenoff might have had against anybody.“I had had a bunch of squabbling family members who were raising extravagant allegations back and forth,” Gische said. “I hadn’t made any findings, all I had were the allegations. There was nothing at that point that would have risen to the level that would have required me to report something to the Commission on Judicial Conduct.” “If every time somebody raises an allegation I have to send it to some grievance committee, then I would have been sending out all my cases. I think it has to rise to a level of substantial evidence, and we never got that far. I think what I did — I facilitated an investigation of the allegations by somebody independent. Just because I didn’t send it to the [judicial conduct] commission doesn’t mean I didn’t deal with it in a serious way, including not taking no for an answer of Garson’s claim that he couldn’t get the documents.”As for sealing the file, Gische noted that she did do so “by consent of all of the parties, adversarial parties, I might add.” She continued, alluding to the state mental hygiene law that deals with the appointment of guardians for incapacitated people. “In part — and this issue comes to light all the time, in the Brooke Astor case, for example — when you have these Article 81s that involve very sensitive information regarding elderly people with certain medical information, you don’t want to thrust it into the public.” In terms of statistical performance evaluation, Gische can definitely point to good numbers. According to the Office of Court Administration, in 2005 Gische’s backlog stood at 13.6 months — five months under the Manhattan Civil Terms’s average for that time period. Between 2000 and 2005, appellate courts reversed or modified Gische 16 times. Her reversal rate was 26.7 percent, compared to an average of 36.7 for her colleagues in the Manhattan Civil Term.“Honestly, Judith Gische is one of the most extraordinary people I’ve ever known,” said longtime matrimonial attorney Norman Sheresky, a $250 donor to Gische’s 2003 Civil Court campaign whose colleague at Sheresky Aronson & Mayefsky, Allen Mayefsky, was among the donors who appeared before Gische near the time of his own contribution. (Five of the firm’s 11 lawyers donated to Gische’s campaign.)
“I think she cares, really cares, about what’s in front of her,” continued Sheresky. “In fact, she might be the least pre-judgmental judge I’ve ever appeared before. You find good judges everywhere, but the percentage of highly knowledgeable judges is probably less in matrimonial. Everything’s an emergency that has to be handled: The light’s been turned out; the husband took the kids away; I’m about to be evicted . . . there’s one emergency after another.” In the weird interplay between a widely respected judge and the shabby election system that surrounds her, handicapping Sheresky’s sincerity is not easy. But he provided at least one anecdote that transcended the obsequious. “I’ll never forget,” he said. “I had a trial in front of her. Just before lunch, I objected to some testimony — I said it was confidential communications between husband and wife, under the New York statute, one of the finer points of matrimonial law. I don’t think she’d been in the part more than a couple of weeks. And she said, ‘Oh, let me look at that over lunch.’ She came back and she said, ‘You know, Mr. Sharesky, that was really interesting. Your motion is denied.’ She knew the statute perfectly by the end of lunch.”

JUDGE AMODEO - VICTIM # 1

2007-08-27T16:16:00.000-07:00

Why Parents Who Batter Win Custody
by Sarah Childress
Newsweek 2006

It took six years for Genia Shockome to gather the courage to leave her husband, Tim. He pushed her, kicked her and insulted her almost from the moment they married in 1994, she says. She tried to start over with their children when the family moved from Texas to Poughkeepsie, N.Y. It didn't last long. Tim called her constantly at work and, after they split up, pounded on her door and screamed obscenities, she alleged in a complaint filed in 2001. Tim was charged with harassment. As part of a plea deal, Tim agreed to a stay-away orderâ014but denies ever abusing her or the children. In custody hearings over the past six years, Tim has insisted that he's been a good father, and argued that Genia's allegations poisoned their children against him. The judge sided with Tim. This summer he was granted full custody of the kids, now 11 and 9. Genia was barred from contacting them.Genia is one of many parents nationwide who have lost custody due to a controversial concept known as parental alienation. Under the theory, children fear or reject one parent because they have been corrupted or coached to lie by the other. Parental alienation is now the leading defense for parents accused of abuse in custody cases, according to domestic-violence advocates. And it's working. The few current studies done on the subject consider only small samples. But according to one 2004 survey in Massachusetts by Harvard's Jay Silverman, 54 percent of custody cases involving documented spousal abuse were decided in favor of the alleged batterers. Parental alienation was used as an argument in nearly every case.This year the National Council of Juvenile and Family Court Judges denounced the theory as "junk science," and at least four states have passed legislation to curtail its use in custody cases involving allegations of domestic violence. "It's really been a cancer in the family courts," says Richard Ducote, an attorney in Pittsburgh who has represented abuse victims in custody cases for 22 years. "It's made it really difficult for parents to protect their kids. If you ask for protection, you're deemed a vindictive, alienating parent."
\u003cbr /\>It may seem hard to fathom how a judge could award custody to a parent accused of abuse. But battered spouses often don\'t file criminal chargesâ014so no judicial finding is made against their matesâ014and family-court judges typically aren\'t trained to referee the complexities of abusive relationships. (Although men are sometimes battered by their wives, women are the victims in the majority of abuse cases.) Judges often throw out documented evidence of spousal abuse, arguing that it is irrelevant in a custody case. And experts say that family-court judges often look favorably on the alleged abuser because he seems more willing to share custody than the accuserâ014who is hellbent on keeping the father away from the child. According to a survey by Geraldine Stahly, a psychology professor at California State University at San Bernardino, attorneys will caution battered spouses against reporting abuse in court so they don\'t lose their children. (Stahly and other academics say the parental-alienation argument has more legitimacy in custody disputes that don\'t involve charges of abuse.)\u003cbr /\>\u003cbr /\>Parental-alienation syndrome was first introduced by child psychiatrist Richard Gardner in the 1980s. Fathers-rights groups picked up on the idea and began trying it out in court. These groups condemn abusers. But Dan Hogan, executive director of Fathers & Families, a nonprofit group that advocates for joint custody, argues that all too often the accusers lie in order to win custody of their kids.\u003cbr /\>\u003cbr /\>\u003cbr /\>There\'s a small but growing movement to ban parental alienation in custody cases, sparked by embattled parents bonding online. They\'ve linked with lawyers and advocates for battered spouses across the country. At least four states, including California, have laws protecting parents who make good-faith abuse allegations. Others may soon follow their lead. Greg Jacob, an attorney who takes cases for abused parents pro bono, is drafting legislation to shop to Virginia and Maryland next month. Meanwhile, parents like Genia keep fighting. "It\'s so hard, having my children lost," she says, her voice breaking. "This was my lifeâ014my children."\u003cbr /\>\u003cbr /\>\u003cbr /\>Copyright © 2006 Newsweek\u003cbr /\>\u003cbr /\>Sent from my BlackBerry wireless handheld.\u003c/div\>",0]
);
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It may seem hard to fathom how a judge could award custody to a parent accused of abuse. But battered spouses often don't file criminal chargesâ014so no judicial finding is made against their matesâ014and family-court judges typically aren't trained to referee the complexities of abusive relationships. (Although men are sometimes battered by their wives, women are the victims in the majority of abuse cases.) Judges often throw out documented evidence of spousal abuse, arguing that it is irrelevant in a custody case. And experts say that family-court judges often look favorably on the alleged abuser because he seems more willing to share custody than the accuserâ014who is hellbent on keeping the father away from the child. According to a survey by Geraldine Stahly, a psychology professor at California State University at San Bernardino, attorneys will caution battered spouses against reporting abuse in court so they don't lose their children. (Stahly and other academics say the parental-alienation argument has more legitimacy in custody disputes that don't involve charges of abuse.)Parental-alienation syndrome was first introduced by child psychiatrist Richard Gardner in the 1980s. Fathers-rights groups picked up on the idea and began trying it out in court. These groups condemn abusers. But Dan Hogan, executive director of Fathers & Families, a nonprofit group that advocates for joint custody, argues that all too often the accusers lie in order to win custody of their kids.There's a small but growing movement to ban parental alienation in custody cases, sparked by embattled parents bonding online. They've linked with lawyers and advocates for battered spouses across the country. At least four states, including California, have laws protecting parents who make good-faith abuse allegations. Others may soon follow their lead. Greg Jacob, an attorney who takes cases for abused parents pro bono, is drafting legislation to shop to Virginia and Maryland next month. Meanwhile, parents like Genia keep fighting. "It's so hard, having my children lost," she says, her voice breaking. "This was my lifeâ014my children."

Copyright © 2006 Newsweek

JUDGE AMODEO APPOINTED CRIMINAL VIOLA STROUD

2007-08-27T16:12:00.000-07:00

RE: JUDGE AMODEO APPOINTED CRIMINAL VIOLA STROUD
TO SUPERVISE GENIA SHOCKOME.

Saturday, December 11, 2004

Children's supervisor shown sleeping on job
Gannett News Service

A videotape played in Dutchess County court Friday showed a court-appointed supervisor apparently sleeping while she was supposed to be overseeing a visit in Poughkeepsie between two children and their estranged mother. The tape, made by the children's mother, showed Viola Stroud of Mahopac sitting motionless on a couch, her eyes closed and her face tilted forward, as the children played a noisy game of air hockey several feet away. Later, Stroud is seen telling the mother to ''shut that off'' and hiding her face behind a handful of papers. She also demanded that the woman, Yevgenia Shockome, turn over the camera and the tape, and threatened to ''call the authorities.'' ''You're breaking the rules. Please don't take my picture,'' Stroud said. Stroud runs an organization called Little Angels Supervised Visitation, which provides court-ordered oversight of children and non-custodial parents accused of domestic violence, drug abuse or other problems. The private agency has received appointments in Westchester, Putnam and Dutchess counties. Checks written to self Stroud has also served as a court-appointed guardian for mentally incapacitated adults and, in September, published reports said she wrote tens of thousands of dollars in checks to herself, to ''cash'' and to Little Angels after she was given control over the finances of three Putnam women. Last month, the Putnam district attorney confirmed a criminal investigation of Stroud after a state judge ordered her to repay more than $30,000 to a Mahopac woman who suffered blindness and brain damage after a car crash. Stroud, 61, was not present in the courtroom Friday and did not return a telephone message left at her home. Her lawyer, Ronald Levine of Poughkeepsie, was not in his office late yesterday afternoon and did not return a message left with a receptionist. Shockome, who is involved in a bitter, four-year divorce case, said she made the tape at her Poughkeepsie condominium on Aug. 28. Shockome, 32, said her visitation rights were canceled afterward. Shockome said Stroud routinely slept during more than 20 previous supervised visits between Shockome and her children, whose father has sole custody. ''I liked it, because when she was sleeping I had more private time with my kids,'' Shockome said. At an Aug. 31 court hearing, Stroud denied sleeping during any of the visits, Shockome said. Dutchess County Family Court Judge Damian J. Amodeo, who appointed Stroud to Shockome's case and presided over Friday's hearing, did not comment on the content of the hourlong tape

NY TIMES - 1100 CASES FROM JAILED SUPREME COURT JUSTICE GARSON

2007-08-25T17:03:00.000-07:00

NY TIMES

October 12, 2004, Tuesday

By LESLIE EATON (NYT); Metropolitan Desk
“DISPLAYING ABSTRACT -

State Supreme Court Justice Gerald P Garson, former Brooklyn matrimonial judge, has pleaded not guilty to bribery charges and is awaiting trial; court officials say Garson granted over 1,100 divorces in his five years on bench; there has been no wholesale re-examination of Garson's cases; Administrative Judge Jacqueline W Silbermann has reopened only three of those cases so far; even in cases that involved Garson and Paul Siminovsky, lawyer who testified that he paid off Garson, rulings have not necessarily been scrutinized or overturned…”

MISGUIDED BLACK ROBE - Supreme Court Justice Jacqueline Silbermann ordered the release of the prisoners/ crimes - the rape,sodomy of boys & girls

2007-08-25T16:36:00.000-07:00

'Dirty Dozen' Sex Fiends Will Stay in Custody — for Now
The Associated Press New York PostNovember 18, 2005

ALBANY — A dozen sex criminals who won their conditional release in court after being ordered held in a psychiatric hospital by Gov. Pataki will instead remain in custody as the state appeals the court decision, the governor said Friday.
State Supreme Court Justice Jacqueline Silbermann on Tuesday ordered the release of the prisoners — whose crimes include the rape and sodomy of boys and girls — pending examinations of each inmate by two court-appointed psychiatrists. Pataki appealed that decision Friday, leading to a temporary stay on the judge’s order, Pataki’s office said.
The convicted sex offenders had been ordered held by Pataki. After years of failing to secure a law that would allow civil confinement of some sex offenders when their sentences end, Pataki decided to “push the envelope” of the law by ordering them held in a psychiatric hospital. Pataki used the state’s involuntary commitment law, which normally deals with the non-criminal mentally ill, to win extended confinement of the sex offenders.
Lawyers for the prisoners petitioned the court for their release, arguing their clients’ detentions were illegal because the state violated the law that governs the transfer of apparently mentally ill prisoners to hospitals.
“We feel very strongly that the state has to comply with the corrections law, which it simply didn’t do,” said Stephen Harkavy, deputy director of Mental Health Legal Services. He represented the 12 defendants. Harkavy said he will try to get the stay lifted by an appellate court.
The case will probably be argued early next week, he said. From there it could be appealed to the state’s highest court, and it could take months for the Court of Appeals to rule.
Pataki asserted he acted within his legal rights. “I’m going to do everything in my power as governor to keep these predators, when it’s appropriate and when it’s legally permissible, away from our children and away from society,” Pataki said during a TV appearance.
“I have no doubt I have the legal authority to take the steps I have taken.”
Richard Hamill, president of the New York State Alliance of Sex Offender Service Providers, said there are some offenders who are too dangerous for society, but civil commitment is “hugely expensive” and affects only a tiny fraction of pedophiles, rapists and other sex criminals.
“If you put 400 offenders in civil commitment, you’ve really addressed less than 2 percent of the registered sex offenders out there,” he said. “And there are probably 10 offenders out there for every one that has been arrested and registered. It’s not a potent way to make the community a lot safer.”
Hamill said lifetime probation is one idea that has been very effective in reducing the number of offenders who commit crimes after they are released from prison.

JUSTICE SILBERMANN - MISGUIDED BLACK ROBE - NO FAULT, NO CLUE - JUDICIAL REPORTS

2007-08-25T16:32:00.000-07:00

LexPress: Divorce Tort

By Jesse SunenblickPosted:08-13-07

The Appellate Division chides a Manhattan Supreme Court Justice's handling of a 2005 divorce. And, on the verge of becoming the longest-tenured chief prosecutor in the borough's history, Queens DA Richard "The Judge" Brown opens up to The Daily News, among other news.

NO FAULT, NO CLUE

The Appellate Division, First Department has chastised Manhattan Supreme Court Justice Jacqueline Silbermann and reversed her ruling in an uncontested 2005 divorce, when she awarded “everything,” according to The New York Post, to the former president of the Village Reform Democratic Club in Manhattan. Susan Gass has said she didn’t even know she was being sued for divorce (her husband, Thomas, claims he served her papers). In its decision, the Appellate Division said Silbermann "abused her discretion" when she ignored Gass's repeated attempts to fight the divorce, which gave child custody and the house to her husband. Silbermann is Administrative Judge of the Manhattan Civil Term and, statewide, Deputy Chief Administrative Judge for Matrimonial Matters.

JUSTICE SILBERMANN ABUSED HER DISCRETION - KUDOS TO THE FIRST DEPARTMENT FOR INCREASING PUBLIC FAITH

2007-08-25T16:14:00.000-07:00

Gass v Gass
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department

Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04

[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass,

Defendant-Appellant.
Susan Gass, appellant pro se.
Philip Groner, New York, for respondent.

Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.
Gass v Gass
2007 NY Slip Op 06252
Decided on July 26, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on July 26, 2007 Sullivan, J.P., Williams, Gonzalez, Sweeny, Kavanagh, JJ.
183 Index 309697/04
[*1]Thomas Gass, Plaintiff-Respondent, vSusan Gass, Defendant-Appellant.
Susan Gass, appellant pro se. Philip Groner, New York, for respondent.
Order, Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered August 3, 2005, which, inter alia, denied defendant's motion to vacate a default judgment, reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted with leave to file a late answer within 20 days of service of a copy of this order with notice of entry.
Initially, we find that the motion court properly confirmed the Referee's report, which clearly defined and addressed the issues raised, resolved matters of credibility, and made findings substantiated by the record (see Melnitzky v Uribe, 33 AD3d 373 [2006]). Plaintiff husband proved by a preponderance of the evidence, after a traverse hearing, that his attorney had properly served the wife with a copy of the summons with notice in this divorce action (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006] [declining to disturb hearing court's finding, supported by the record, that process server was more credible than defendant]).
The dissenting Justice accurately relates the facts, but erroneously rejects the credibility determinations made by the referee and confirmed by the motion court. Contrary to the dissent's assertion, neither the court nor the Referee based its credibility findings primarily on the process server's status as an attorney. Instead, the record shows that the Referee made explicit credibility findings for each of the three critical witnesses at the traverse hearing - the wife, the process server/attorney and Ms. Lee - and did so based on an evaluation of the traditional criteria for weighing the credibility of witness testimony.
For instance, the Referee found that the wife's testimony was "not credible" based on her obvious motive to deny being served with process (see NY Pattern Jury Instructions [PJI3d] 1:8 [in weighing testimony, jurors may consider the interest or lack of interest of any witness in the outcome of the case]), and further noted that the wife's two strongest pieces of evidence at the traverse hearing - the ATM receipt mentioned by the majority and Lee's testimony - were both "inconclusive" regarding the pivotal issue of whether service was accomplished.
Similarly, the Referee found Lee's testimony "suspect," asking rhetorically, "How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing?" It was perfectly appropriate for the Referee and the motion court to consider the probability or [*2]improbability of Lee's testimony, when considered in light of all the other evidence in the case (see PJI3d 1:8). In fact, the absurdity of Lee's testimony that she remembered the exact date and time of the wife's appearance at her laundromat six months earlier alone justifies this credibility determination made by the Referee.
Nor did the referee and motion court rely "decisively" on the process server's status as an attorney. Although the Referee certainly did question why "an attorney admitted to practice for over 30 years" would risk his law license by filing a perjurious affidavit of service, the dissent ignores the remainder of the Referee's statement, which points out that engaging in such a desperate falsehood to accomplish service on that particular evening would have been illogical and completely unnecessary, given that the attorney was personally familiar with the wife, lived in close proximity to her, and there was no imminent risk that the statute of limitations would expire if service had not immediately been effected.
In our view, the Referee's statements merely reflect an inquiry into the absence of logical reasons, given the potential risks, of engaging in such misconduct. We agree with his conclusion that the attorney had no discernible motive or logical reason to state falsely that he had properly served the wife, whom he knew personally and who would obviously deny service, since he easily could have accomplished the same result on another occasion.
Nevertheless, under the unique circumstances of this case, the order should be reversed and the default vacated because, apparently unbeknownst to the Referee who granted the default, the wife had appeared and filed a motion seeking affirmative relief in Supreme Court prior to the default being entered.
Although the wife's default in failing to timely answer the complaint is undisputed, the record amply demonstrates that she undertook several actions that should have placed both the court and the husband's counsel on notice that she intended to appear and defend the matrimonial action. First, on September 27, 2004, after allegedly learning of the divorce action for the first time during an appearance in Family Court, the wife served a notice of appearance (which included a demand for a copy of the divorce complaint and all other papers) and a request for judicial intervention on the husband's attorney by regular mail. Significantly, a copy of the wife's notice of appearance in the record includes a stamp stating "RECEIVED OCT 1 - 2004 TRIAL SUPPORT OFFICE." This indicates that Supreme Court, or at least the Trial Support Office of that court, received notice that the wife was appearing in the action on October 1, 2004, which is 11 days before the default judgment was signed.
Second, the record also shows that the husband's attorney received the wife's notice of appearance, as evidenced by his September 30, 2004 "Notice of Rejection," wherein he rejected service of the wife's papers as untimely. The notice of rejection further indicates by stamp that it was received by the Trial Support Office on September 30, 2004, 13 days before the default judgment was signed. These documents indicate that the husband's attorney was obviously aware of the wife's appearance in the action 12 days before the default judgment was signed.
In addition, the record shows that on October 6, 2004, the wife submitted a show cause order to vacate the husband's note of issue in the divorce action. Justice Stackhouse signed the order on October 8, and set a return date of October 18. Thus, four days before the default judgment was signed, the record shows that the wife had made a motion in Supreme Court seeking affirmative relief in the divorce action.
From these facts, it is evident that the court and the husband's attorney were or should [*3]have been aware of the wife's appearance and her request for affirmative relief several days before the default was signed. However, the papers filed by the husband's counsel in support of the default judgment, as well as the judgment itself, strongly indicate that this information was never brought to the attention of the referee who granted the default. Indeed, the husband's attorney's affirmation of regularity states that "[the wife] is in default for failure to serve a notice of appearance in this action in due time, and the time to answer has not been extended by stipulation, court order or otherwise." Further, the divorce judgment itself states that "Defendant has not appeared and is in default."
Although we recognize that the husband's papers in support of the default were prepared and filed before the wife's entry into the case, it remains a mystery to us why the Referee was apparently oblivious to her appearance. Equally puzzling is how a Referee can grant a default judgment in an "uncontested" matrimonial action at the same time a Supreme Court Justice has signed a show cause order, brought by the party allegedly in default, requesting vacatur of the note of issue in that action. If the Referee had been made aware of the wife's entry into the case, it is entirely possible that this default never would have been entered.
We note that in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce or ancillary relief (see Viner v Viner, 291 AD2d 398 [2002]; O'Brien v O'Brien, 149 AD2d 830, 831 [1989]). Accordingly, even assuming that the wife's allegations of a reasonable excuse and meritorious defense were insufficient by themselves to justify the standard for vacatur, under the unusual circumstances of this case, including the wife's pro se status and the fact that the Referee was apparently kept in the dark about her appearance in the case and intent to defend the action, we find that the motion court abused its discretion in refusing to vacate the default (id. at 831-832). We also note that the wife faithfully appeared during all Family Court proceedings and during her prior divorce action, and her motion to vacate her default was made promptly upon its entry.
Finally, our dissenting colleague is mistaken in suggesting that we implicitly find that the wife had perjured herself and suborned perjury. We find no such thing. As our opinion makes clear, we find that the Referee's credibility determinations were supported by the evidence at the traverse hearing, and, to that extent, his finding of proper service must be upheld. Unlike the dissent, we do not believe it is this Court's function to make an independent determination as to who, in fact, perjured themselves at the traverse hearing, and we offer no opinion thereon. Our vacatur ruling is based solely on the unfairness of granting a premature default against an unrepresented party in a matrimonial action. It has nothing to do with indulging any party's alleged misconduct.
All concur except Sullivan, J. who dissents in a memorandum as follows:
SULLIVAN, J. (dissenting) Contrary to the majority's view, this appeal from the denial of defendant-wife's motion to vacate a default judgment of divorce turns solely on the motion court's confirmation of a referee's report, after a traverse hearing, to the extent it determined that the wife had been personally served with a copy of the summons with notice, as indicated in the affidavit of [*4]service [FN1]. Since I believe that the Referee, as a matter of law, improperly assessed the credibility of the process server, who happened to the husband's attorney, I dissent and would reverse the referee's factual determination and grant defendant's motion to vacate the default and dismiss the complaint for lack of personal jurisdiction.
Before turning to the facts adduced at the traverse, some background leading to the challenged service of process is in order. The parties, married in 1987, have one child, a son, born in 1990. An incident in June 2003, in which the wife allegedly, in anger and in the husband's presence, punched the child about the face and body and threw a chair at him, brought the parties to Family Court, which issued a temporary order of protection pursuant to Article 8 of the Family Court Act in favor of the child and the husband. After a hearing, Family Court extended the order of protection and appointed a law guardian for the child. On August 6, 2003, the husband filed a custody petition and, following a hearing held that day, was granted custody of the child with continuation of the order of protection.
The wife thereafter commenced a divorce action in Supreme Court, New York County, seeking, inter alia, custody of the child, which prompted a transfer of the family offense and custody petitions to the Supreme Court for merger with the divorce action. A law guardian appointed for the child recommended that custody remain with the father. At a settlement conference with the Justice presiding, the wife discontinued her divorce action. The husband commenced the instant divorce action the same day - August 3, 2004 - by filing a summons with notice with the New York County Clerk. That night, the husband's attorney allegedly personally served a copy of the summons and notice, together with a copy of the Child Support Standards Act, upon the wife as she was walking near her Prince Street apartment in Soho. The attorney filed an affidavit of service with the New York County Clerk on August 4. The wife never appeared in her husband's divorce action.
The wife claims she first heard of the new divorce action on September 27, 2004, during a Family Court support hearing. On the same date, she filed a Request for Judicial Intervention (RJI) with a request for a preliminary conference, and on October 6, 2004 she filed a show cause order to vacate the husband's note of issue in this matter. On October 12, prior to the return date, a judgment of divorce was granted on default on the basis of the wife's cruel and inhuman treatment of her husband. The judgment also awarded custody of the child. According to the wife, the Referee who signed the judgment was unaware of the pending RJI and order to show cause.
On November 17, 2004, the wife moved to vacate the default judgment solely on the ground of lack of jurisdiction due to lack of service. She asserted that she never encountered the husband's attorney, whom she knew, on the date of the alleged service; nor was she served with a copy of the summons with notice. The court directed a traverse hearing before a Special Referee, which was held on February 16, 2005.
The husband's attorney, licensed to practice for 30 years, testified that he resides on Grand Street, on Manhattan's lower east side, and that on the evening of August 3, 2004, at approximately 9 P.M., he left his apartment to walk one and a half miles to the wife's apartment on Prince Street to serve her with a summons with notice. The attorney, a good friend of [*5]plaintiff, had known his client's wife socially for at least 10 years. In fact, he had attended various family functions, including their son's bar mitzvah. On the night in question, he observed the wife at the intersection of Prince and Wooster Streets, and handed her the summons with notice, stating, "Susan, I have a summons for you, along with the Standards of Child Support." According to the attorney, he asked the wife if she were in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?" The attorney noted that he and the wife were standing in front of a store, "Camper Shoes," located at 125 Prince Street, and that the time was approximately 9:45 P.M.
After completing the service, the attorney returned home by taxicab, arriving by 10 P.M., and immediately prepared an affidavit of service, as well as a diary entry noting the service. The affidavit of service, notarized and filed with the County Clerk the next day, reflected an August 3, 2004 service at 9:45 p.m. in front of 125 Prince Street. The attorney identified the wife as the person he had served at the time and place in question.
The wife testified that she knew the attorney socially and that she resided in an apartment at an address on Prince Street,[FN2] and was employed by J.P. Morgan Chase, with duties that included "computer information security." She stated that on the night in question, she left her apartment at "about 9 P.M." to bring her laundry to Kim's Laundromat, located approximately three blocks away at 207 Thompson Street, just north of Bleecker Street. After loading the washing machines, she left the laundromat to walk two blocks to a Citibank ATM machine located on LaGuardia Place, between Bleecker and West 3rd Streets, completed a transaction and walked directly back to the laundromat. She produced her ATM receipt showing a completed transaction at 9:35 P.M. She denied being at the intersection of Prince and Wooster Streets and having been served with a copy of the summons with notice. She also noted that her apartment was located approximately three and a half blocks away from the corner of Prince and Wooster Streets. The wife finished her laundry at about 10 P.M. and was assisted by "Antonio," a laundromat employee, in carrying several loads of laundry back to her apartment. On cross-examination, she stated that it would take "maybe about ten minutes" to walk the three and a half blocks from the Citibank ATM to the corner of Prince and Wooster Streets.
Hae Jung Lee, who worked at the laundromat, recalled the evening in question and confirmed that the wife arrived there "a little after nine o'clock in the evening." As she recalled, "After [the wife] put everything inside the machine, she said, I will go out, come back soon,' and she went out." According to Lee, a wash cycle takes 24 minutes. She estimated the wife's absence at "[a]bout ten minutes." She testified that after the wife returned, she finished her wash and left the laundromat a little after 10:30 P.M.
In his report, the Referee found that the husband met his burden to show, by a preponderance of the evidence, that the attorney had served the wife, finding him
the most credible witness. His testimony had a ring of truthfulness to it. Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service? Moreover, he knew defendant personally for over a decade and knew where she lived, which was within walking distance of his home. If he had not run into her on the night in question, he could have served her at some other time, there being no statute of limitations problem. His [*6]testimony concerning defendant's response to his query about whether she was in the armed forces of the United States, to which she responded, "Why are you asking that stupid question?", seems realistic.
Lee's testimony was suspect. How likely is it that she would independently remember whether defendant was a customer at the Laundromat on a particular night, months before the traverse hearing? Even if she did, her alibi testimony does not negate the possibility that [the attorney] did, in fact, serve the summons with notice on defendant while the latter admittedly had exited the Laundromat.
[The wife's] testimony was not credible. She had a motive to deny being served with process. The most probative bit of evidence, [the wife's] ATM receipt, is inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned.
With regard to the wife's testimony, the Referee noted in particular:
On cross-examination, the [wife] testified that the distance between her bank and the corner of Prince and Wooster Streets is 3½; blocks. . . . [The wife] further testified, over objection, that the distance can be walked in ten minutes. [The Wife] testified that the time on the ATM receipt indicates that the time of her banking transaction was at 2135 . . . 9:35 p.m.
The motion court confirmed the report, finding that the findings were "supported by the record" and that "the husband obtained jurisdiction over the wife by serving her as indicated in the affidavit of service."
The burden of proof on the issue of jurisdiction rests with the party asserting it (Lamarr R v Klein, 35 AD2d 248, 250 [1970], affd 30 NY2d 757 [1972]), and, after a hearing, must be established by a preponderance of the evidence (Elm Mgt. v Sprung, 33 AD3d 753 [2006]). "[T]he evidence must be of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1979], quoting Fisch on NY Evidence § 1090 [2d ed]). If substantiated by the record, a referee's determination will not be disturbed (Nager v Panadis, 238 AD2d 135 [1997]; see Marcus v Marcus, 4 AD3d 257 [2004]).
At the outset of the hearing, the wife's attorney, noting that the husband's sole witness was an attorney, asked the referee not to indulge in a "presumption based upon either the affidavit of service or the fact that the person who allegedly effected service is an attorney." This request was in keeping with the general rule in assessing a witness's credibility (see NY PJI3d 1:8, 1:41). Unfortunately, as his report shows, the referee based his decision as to credibility essentially on the process server's status as an attorney. Although he stated that the attorney's testimony had a "ring of truthfulness" to it, the basis of that conclusion is clear from the very next sentence: "Why would he, an attorney admitted to practice for over 30 years, risk his license by filing a perjurous affidavit of service?" While on the subject of rhetorical questions, one might ask, "Why would an attorney put himself in the position of acting as a process server for his client in a case such as this, given his relationship to the parties?" As to the wife's alleged [*7]response to the military service question - "Why are you asking that stupid question?" - its relevance to the attorney's credibility is unfathomable.
On the other hand, the Referee found the wife not credible because she had a motive to deny being served. This finding ignores the fact that the attorney also had an obvious interest - sustaining his claim of service and supporting his client's case. Furthermore, the Referee's reasoning is flawed in finding the ATM receipt "inconclusive as an alibi, since, by her own admission, [the wife] could have walked to where [the attorney] claimed he served her and still have returned to the Laundromat at the time Lee testified [the wife] returned." While this may be true, the Referee ignoring the only piece of unassailable documentary evidence offers no explanation as to why the wife would walk completely out of her way to the intersection of Prince and Wooster Streets (the alleged place of service, which was two blocks south of Bleecker Street) before returning to the laundromat, which was one street west of the ATM (both of which were north of Bleecker Street). In that regard, while both the Referee and the majority question Lee's credibility, particularly with respect to her recollection of the exact date and time in question, the Referee made no finding that the wife was not at the laundromat at that time. In any event, on cross-examination, Lee offered a plausible explanation for her specific recollection of the date and time.
Moreover, what reason would the wife have, if actually served, to ignore process? As she pointed out in argument, she had vigorously participated in those proceedings since their inception in Family Court in 2003 and had never defaulted. In fact, it was she who instituted the original divorce proceeding, which she discontinued only because of a lack of funds.
A judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations. Status in life cannot be the decisive factor in a "he said/she said" credibility contest. "General propositions do not decide concrete cases" (Lochner v New York, 198 U.S. 45, 76 [1905], Holmes, J., dissenting). Since status was decisive in this case, it cannot be said that the husband sustained his burden of proof that required - as to the challenged service - a preponderance of the evidence (Jacobs v Zurich Ins. Co., 53 AD2d 524, 525 [1976]).
The majority vacates the wife's default because of her efforts to appear in and defend the action prior to the entry of the default judgment. In my view, such a result is untenable. In upholding the Referee's determination at the traverse hearing, the majority agrees with the Referee's conclusions that the wife was served with the summons and that her testimony was incredible, and also with his assessment of Lee's testimony as "suspect." In short, the majority implicitly finds that the wife not only perjured herself but suborned perjury as well. While courts may be inclined to a more liberal attitude in vacating defaults in matrimonial actions (see e.g. O'Brien v O'Brien, 149 AD2d 830 [1989), no court has ever been so indulgent as to reward a party who has engaged in such conduct by granting affirmative relief.
The majority's disposition is also unsupportable because, despite the tendency toward a liberal policy in matrimonial proceedings, "it is still incumbent upon a party seeking vacatur to establish both a reasonable excuse for the default and a meritorious defense" (Estate of Allen v Allen, 258 AD2d 423 [1999]). There is no showing of a meritorious defense, and to the extent that the wife's claim of lack of service the only basis for her motion to vacate the default can be considered an excuse, this claim has been patently rejected by the majority.
In my view, the majority's route to the result reached is as tortured as it is inexplicable. [*8]
Accordingly, I would deny plaintiff's motion to confirm the referee's report, grant defendant's cross motion to disaffirm the report and her motion to vacate the default judgment, and dismiss the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 26, 2007
CLERK
Footnotes
Footnote 1:The Referee's recommendation regarding the ultimate disposition of the wife's motion was stricken as beyond the scope of the order of reference. Footnote 2:The attorney testified that the wife resided in an apartment with a different number.

MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS - VICTIM # 4

2007-08-25T16:12:00.000-07:00

ExclusiveDeadbeat ex-judge gets break in court

BY NANCIE L. KATZ

DAILY NEWS STAFF WRITER

Monday, May 7th 2007,

A Manhattan judge dropped her arrest warrant last week against a deadbeat dad who owes $250,000 in child support because the father - a former judge himself - said he was poor and depressed.Justice Joan Lobis' decision, just a month after approving the warrant, enraged the ex-wife of disgraced former jurist Reynold Mason."There is no justice! There are no laws!" fumed Tessa Abrams Mason, who has had to raise three kids without her ex-husband's help and now faces eviction from her Long Island home. "He knows how to work the system, and she's letting him do it. She's failing my kids."Lobis refused to explain her actions to the Daily News.Mason, now a real estate agent in Georgia, said in court papers that he had declared bankruptcy and become depressed after he was kicked off the bench in 2003 for dipping into a legal client's escrow account."All of my resources and energy were given to coping with the shock of the life-altering events swirling around me," Mason whined.He claimed he earned $68,000 over two years selling real estate - far less than his $136,700 annual salary as the first Caribbean-born state Supreme Court justice.That prompted Lobis to revoke the warrant Wednesday, ordering him instead to post $150,000 bond.

Lobis was far more harsh the following day - ordering sheriffs to her courtroom in an unrelated case to arrest a mom who owed $5,000 in child support. The woman dodged jail by borrowing the cash.nkatz@nydailynews.com

NY DAILY NEWS - MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS

2007-08-25T16:07:00.000-07:00

Ex-judge a real stiffOwes former wife & three kids 200G

BY NANCIE L. KATZ

Originally published on November 12, 2006

DAILY NEWS STAFF WRITER

A former Brooklyn judge whose shady dealing got him booted off the bench has embarked on a new career as a deadbeat dad, the Daily News has learned.Ex-judge Reynold Mason has refused to pay more than $200,000 in court-ordered child support and alimony to his former wife and their three children, records show.Now his one-time spouse, who struggles to get by on $9.45 an hour at WalMart, her daughter and two sons are facing eviction from the Long Island home."I am so frustrated," Tessa Abrams Mason, 46 told The News. "This should not have been. There's no end. This guy is free. It's like he has a new life and it's okay."A former city Civil Court judge who later made the jump to state Supreme Court, Mason, 55, was removed from office in 2003 after the state Commission on Judicial Conduct found that he had pocketed escrow funds and illegally sublet his rent-stabilized apartment.The couple met in 1989 when he was a landlord-tenant lawyer. They married in 1993. A year later, she led his campaign to become the first Caribbean-American on the Brooklyn Civil Court. In 1997, he was elected to the Supreme Court, where he earned $136,700 a year.That same year, he left Tessa pregnant with their third child, she said. The couple was divorced in 2004 in Manhattan, where the case was moved to avoid any conflict of interest.Up until he was tossed from the bench, she said, child-support payments of $2,600 a month were being garnished from Mason's paycheck. A $600 monthly alimony order was never paid.Mason soon pulled up roots and moved to Georgia where he obtained a real estate license and today sells homes for a large brokerage.His real estate Web site highlights his former judicial and legal career, plus teaching stints at three New York colleges.But there's no mention of his deadbeat ways, Abrams Mason noted.His tab has risen to $200,000 in child support plus alimony, according to city records.He has ignored repeated judgments issued by Manhattan Supreme Court Justice Joan Lobis.Reached by phone in Georgia last week, the ex-judge declined comment. "Send me a copy [of the article]," he said. "Say whatever you want."Abrams Mason said she has appealed to the city's child support enforcement unit and the city Law Department, which is supposed to alert officials in Georgia of Mason's debts.A Law Department official said that Georgia authorities have been notified.Yet Abrams Mason still struggles to live on $1,500 a month, and now must find another place to live because the small, affordable house a friend had rented her has been foreclosed."It's hurting our children," she said. "I can barely live on what I make. I can't take a second job, I have to take care of the kids."

MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS VICTIM # 3

2007-08-25T16:04:00.000-07:00

How My Ex-hubby Paid to Be Judge Former Wife Claims Cash & Bribery 'Package Deal'
By Nancy KatzNew York Daily News

January 23. 2007

Tessa Abrams Mason says her ex-husband, Reynold Mason, was expected to come up with cash for all comers.

Ex-Brooklyn Supreme Court Justice Reynold Mason found out early, his ex-wife says, that running for judge meant making big payoffs to pols and hiring people he was told to.

In a shocking new twist in the exploding "judgeships for sale" scandal, the ex-wife of a disgraced Brooklyn Supreme Court judge has revealed details of a systematic payoff scheme that bought her husband his seat on the bench.
Tessa Abrams Mason alleges the couple spent nearly $100,000 - some of it bribe money - to boost the legal career of her then-husband, former Supreme Court Justice Reynold Mason.
In a series of exclusive interviews, Abrams Mason implicated well-known Brooklyn Democrats in the deals - including former state Sen. Carl Andrews, who has close ties to Gov. Spitzer.
Brooklyn District Attorney Charles Hynes, who has been probing court corruption, was not familiar with Abrams Mason's story, said spokesman Jerry Schmetterer.
But Schmetterer added, "Based on the scope of our investigation, we take any allegations about corruption seriously."
The startling accounts were given to the Daily News over the past six months in dozens of interviews and in an explosive unpublished memoir.
Although other jurists have been caught up in the ever-widening probe, it is the details provided by Abrams Mason that make her story so compelling.
She tells how:
* Her husband had to buy a package deal of payoffs to secure the party's backing.
* Andrews allegedly took a $5,000 payoff in an
envelope at Mason's Brooklyn law office - for which no services were received.
* Mason had to hire a campaign manager and an election lawyer at the direction of the local party.
* Once elected, he had to hire a law clerk chosen by the party.
"They didn't care if Mason was competent," his ex-wife, 46, told The News. "All they cared about was [that] Mason had a deep pocket and could raise funds and throw around money without asking questions."
Caught dipping into escrow
Her ex-husband was stripped of his post in 2003 after she told the state Commission on Judicial Conduct that he dipped into an client escrow account to fund the campaign - an accusation that the commission substantiated.
Mason, 57, now a real estate agent in Georgia, has been ducking court-ordered child support payments for years. Recently a New York state judge threatened him with jail if he didn't show up to explain why he hasn't paid up the $200,000 he owed.
Reached by telephone last week, Mason vehemently denied the charges of his former spouse, whom he calls "a bitter woman."
"I never paid a bribe to anyone," he said. "What they do is meet with you [and say],
'If you want our help, you gotta do XYZ.' That's all they ever said."
"You work with them," Mason added. "You want to win. You bite the bullet and do what you have to do."
But his ex-wife's startling account of back-door deals and pay-for-play demands seems to mirror much of what Hynes has uncovered in a corruption probe now in its sixth year.
Hynes' work led to the toppling of once-powerful Democratic boss Clarence Norman and the indictment of three state Supreme Court justices and other elected officials.
Norman's lawyer said his client was focused on his next trial, due to get under-way today with jury selection. "Any other allegations are simply a scurrilous attempt to poison a jury pool," said attorney Edward Wilford.
First race an eye-opener
In 1994, Mason was a 46-year-old real estate lawyer just starting to make a name for himself in Brooklyn's West Indian community when he decided to run for the bench.
A native of Grenada, he had married Abrams Mason, who worked as his office manager and paralegal, a year earlier. The couple have three children.
Though Mason had dabbled in local politics, his entry into the judicial race proved an eye-opener for him and his new bride. In heavily Democratic Brooklyn, the primary was the real election and he faced stiff opposition.
Friends led him to pols with close ties to Norman. One of the first stops was a meeting with local Democratic district leader Marietta Small.
Small, who later held a top patronage post in Brooklyn Surrogate's Court, taught the couple the facts of life about judicial politics, Abrams Mason said.
"Small was not interested in money, but influence and power," she said. "Everyone else was interested in payoffs."
To get Norman's backing, Mason was told, he would have to take what his wife described as "the package deal."
That included a campaign manager selected by the bosses who would be paid $15,000, an election lawyer who would get $10,000 and inherit Mason's cases and clients if he was elected, and a law clerk handpicked by Small once he got on the bench.
"At one meeting, Mason was told you have to pay Andrews $5,000 cash and make donations to other candidates," his ex-wife said. "Whatever money politicians asked for, Mason had to have it right then and there. We ended up spending nearly $100,000."
Not all of it was reported by Mason's campaign, she added. Campaign finance records reviewed by The News show Mason's campaign spent $67,895.04.
But other expenditures, like the alleged payment to Andrews, "weren't accounted for in campaign records," she said.
At the time, Andrews was an active Democratic leader in Brooklyn and a close confidant of Norman. He was later elected to the state Senate, worked for Spitzer in the attorney general's office, but lost a bid for Congress despite Spitzer's backing.
Andrews was recently hired by Spitzer to work in his Office of Intergovernmental Affairs.
The Village Voice recently identified Andrews as the bagman for a bribe paid to Norman in 2001 to get another judge, Howard Ruditzky, a Supreme Court seat.
Andrews 'insulted' by query
Andrews, 50, did not return repeated calls for comment. But earlier, when asked about the Ruditzky allegation, he replied, "I'm insulted by the question and the implications behind that question. I guess my only crime is being Clarence Norman's friend. Guilt by association."
Yet Abrams Mason says she clearly recalls the day when Andrews showed up at Mason's law office on Glenwood Road in East Flatbush to pick up his cash.
"Mason was annoyed. He said, 'Why do we have to pay this guy $5,000? What is he going to do for me?'"
As it turned out, nothing. She recalled, "Mason took money out of the right-hand drawer of his desk, where we keep our cash and records. He put the $5,000 in an envelope and handed it to him. [Andrews] put it in his jacket pocket. He didn't stick around. That was it!"
"Mason and I thought he took the money to go neutral, because he did nothing. ... He didn't do anything for Mason's opponent either."
"We never saw him again, not even at a fund-raiser," she said.
In a telephone interview, Small also denied any wrongdoing.
"I have no knowledge of anyone taking any bribes," she said. "I would not ever be a part of that. I would never be a part of anything like that. That's the God's honest truth."
Abrams Mason insists thousands in cash went to politically connected operatives who supposedly spent it on such things as neighborhood get-out-the-vote campaigns.
Some of it went to district leaders who controlled large blocs of votes at local housing projects, where "the voters were told who to vote for, and this was a plus."
The support of Norman's army of regulars helped Mason eke out a win in the Civil Court primary by 145 votes.
By the time of his 1996 election to the state Supreme Court, the couple had split. But he would tell her later he had to pay the Democrats even more for that race.
With his expenses mounting, Mason eventually dipped into the client escrow account - a no-no that was exposed by his ex-wife.
The alleged wrongdoing - much of it also detailed in her unpublished memoir, "The Judge's Wife and the Political Mafia" - are unlikely to result in new criminal charges because the statute of limitations has run out.
She decided to go public because the court battle over financial support for their three children has dragged on.
When she could no longer afford a lawyer, she drew up legal papers herself. She eventually won a contempt order against him, demonstrating that of all his political foes, Mason's ex-wife has been the most formidable.
http://www.nydailynews.com/front/story/491095p-413659c.html

Judge Scandal Could Tarnish Spitzer Shine Anti-corrupt Gov Hiring Pol Tied to Norman?
By Lisa L. Colangelo, Nancie L. Katz and Adam LisbergNew York Daily News January 15, 2007

Clarence Norman

Gov. Spitzer took office two weeks ago with a corruption-busting promise - but yesterday he welcomed into his inner circle a man who has been named in connection with an exploding Brooklyn bribery scandal.
Former state Sen. Carl Andrews was one of several insiders who were invited into Spitzer's midtown offices following a news conference where the governor ducked a question about the corruption probe.
"With respect for the alleged improprieties that have been the subject of investigation in Brooklyn, obviously those cases continue and they proceed," Spitzer said.
Andrews is reportedly being considered for a high-ranking post in the Spitzer administration - and while the governor said little, his exit with the well-connected Andrews seemed to show Spitzer was not publicly distancing himself from him.
The Village Voice claimed in a story published Saturday that Andrews picked up a bribe in 2001 - either $25,000 in cash or $3,000 in postage stamps that could be used in a campaign - from a sex therapist named Norman Chesler, who was hoping to get his cousin, Civil Court Judge Howard Ruditzky, a seat on the state Supreme Court.
Andrews allegedly delivered it to his longtime confidant Clarence Norman, a corrupt Democratic Party boss who could be indicted for allegedly taking as much as $70,000 in bribes to put Ruditzky on the bench, The Voice reported.
Andrews told the Daily News yesterday he has never met Chesler - and when asked point-blank about collecting a bribe, said it was beneath his dignity to answer.
"I'm insulted by the question and the implications behind that question," he said. "I guess my only crime is being Clarence Norman's friend. Guilt by association."
Law enforcement sources told The News yesterday that Andrews is not a target in the long-running probe of whether Brooklyn judges have bought their way onto the bench.
Andrews held a community relations job under Spitzer when he was state attorney general. Andrews later served as a Brooklyn state senator and ran unsuccessfully for Congress last fall.
Ruditzky, Chesler and Norman declined to comment. Norman's lawyer Edward Wilford said he has not been contacted by Brooklyn District Attorney Charles Hynes about the allegations.
Prosecutors would not file any new charges against Norman until after his Jan. 23 trial on extortion charges, a law enforcement source said.
Spitzer's office did not respond to a request for comment.
With Nicole Bode and Tamer El-Ghobashy

DA: Norman Sold Judgeship for 50g - & 6g in Stamps
By Nancie L. Katz and Rich SchapiroNew York Daily NewsJanuary 14, 2007
Clarence Norman

Brooklyn prosecutors are seeking to indict deposed Brooklyn Democratic Party chairman Clarence Norman for allegedly selling a judgeship for at least $50,000 in cash and $6,000 in postage stamps, it was reported yesterday.
The alleged corruption, detailed by The Village Voice, has the potential to shake the Brooklyn political establishment and push the Legislature to overhaul how state Supreme Court judges are selected.
Norman - already sentenced to two to six years behind bars for unrelated felony campaign corruption - will be indicted by a grand jury for allegedly demanding payoffs to elevate former Civil Court Judge Howard Ruditzky to the state Supreme Court, The Voice says.
Sources told the Daily News that Ruditzky was granted immunity and recently testified before a grand jury, where he revealed he paid $70,000 for the judgeship.
"A sitting judge told a grand jury that he paid Clarence Norman $70,000 for the nomination," one of the sources said.
The Voice said it had pinpointed only $56,000 in payments.
District Attorney Charles Hynes' case against Norman, according to The Voice, revolves around the testimony of Ruditzky and three other witnesses: Jeff Feldman, the executive director of the Brooklyn Democratic Party; ex-Supreme Court Justice Michael Garson; and Ruditzky's millionaire cousin, an overweight sex therapist named Norman Chesler.
It was Chesler who was at the center of the alleged payoffs, according to The Voice.
In 2001, Chesler began helping Ruditzky in his bid to get reelected to the Civil Court. According to The Voice, Ruditzky wasn't planning to serve if reelected because Norman allegedly had promised to elevate him to the Supreme Court after the balloting.
Norman had the ability to promote Ruditzky because Supreme Court nominees are selected by judicial conventions, a system that allows a Democratic leader in a Democratic county to handpick jurists.
Norman was planning to promote Ruditzky and then select his replacement for Civil Court without having to run that candidate in a primary, The Voice reports.
"If Ruditzky wins reelection, we'll elevate him," Norman told Chesler, according to The Voice.
But that plan crumbled when Ruditzky lost. In stepped Chesler, who, according to The Voice, was allegedly told by Norman, "We could use money for activities in my community."
Chesler's first alleged payment to Norman came in the form of postage stamps, two $3,000 rolls he bought at a post office, The Voice reported.
Chesler, who refers to Ruditzky as "Rudy," also allegedly gave Norman $50,000 - delivering the first half "wrapped in a large brown envelope," according to The Voice.
Bank records reviewed by The Voice reveal a series of withdrawals totaling $43,950 that Chesler made from his company between July and November 2001. Notations contained with the record of the withdrawals, also reviewed by The Voice, said that "CN asked for Rudy to come up and give 50k for services," adding that "since they weren't getting it on their own, they asked for help."
Chesler began cooperating with Hynes' office after being indicted in a car insurance scam, The Voice says.
Ruditzky, Chesler and Norman's lawyer could not be reached for comment yesterday.
Sources told The News last week that Ruditzky's grand jury testimony is being reviewed by the state Commission on Judicial Conduct. Commission administrator Robert Tembekjian declined to comment last week.
David Bookstaver, spokesman for the New York State Office of Court Administration, told The News on Friday that "it would be inappropriate to comment about an alleged ongoing investigation."
Grand jury testimony is secret, and when The News asked Hynes on Dec. 21 about Ruditzky appearing before the panel, Hynes declared it was "untrue." Hynes' spokesman, Jerry Schmetterer, declined to comment Friday on whether the office knew about the alleged bribe.
The author of The Voice article, Wayne Barrett, revealed that his mentor, the late Jack Newfield, had been investigating Brooklyn courts before his death in 2004.
According to The Voice, Newfield had scrawled Ruditzky's name into a notebook that contained his last interview.
More than 30 years have passed since Newfield wrote in 1972, "It is common belief on the streets of this city that judgeships are bought and sold by politicians for cash, and that once on the bench, some judges continue to be up for sale - or at least for rent."

SECOND KUDOS TO THE FIRST DEPARTMENT FOR TRUMPING MISGUIDED SUPREME COURT JUSTICE JOAN LOBIS

2007-08-25T15:52:00.000-07:00

St. Clement v Casale 2006 NYSlipOp 03697

May 11, 2006 Appellate Division, First Department

Published by New York State Law Reporting Bureau: <http://www.courts.state.ny.us/reporter/> pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006 Courtney St. Clement, on Behalf of Taylor Ernest Casale, Appellant,vGerald Casale et al., Respondents.—[*1]Orders, Supreme Court, New York County (Joan B. Lobis, J.), entered April 12, 2002, September 23, 2002, on or about April 29, 2004, August 26, 2004 and November 19, 2004, which, respectively, inter alia, denied petitioner mother's application for temporary custody of the subject child, confirmed a Special Referee's report, denied her request to have the child evaluated by the Bellevue Hospital Child Protection Unit, denied her motion to renew, and denied her motion to subpoena the child's pediatrician; and order and judgment (one paper), same court and Justice, entered September 21, 2004, which, inter alia, awarded child support to respondent father Gerald Casale in the amount of $567 monthly, retroactive to April 16, 2001, the date of the judgment awarding the father custody, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a hearing before Supreme Court in order to reevaluate the best interests of the child, as well as the issues of child support. Family Court, during the pendency of this appeal, and in response to a petition filed by the Administration for Children's Services naming petitioner and respondents herein as respondents in that proceeding, has appointed a law guardian to represent the interests of the child. That law guardian is directed to continue to represent the child for the purposes of the Supreme Court proceeding directed herein.
In this matter, we find troubling respondents\' refusal, in the face of petitioner\'s allegations of abuse and sexual misconduct, to address the issue of the Web site postings in question, for if respondent Londa did, in fact, post these messages, a change in custody may very well be warranted. In addition, given the somewhat contradictory positions espoused by Dr. Prezioso, the child\'s pediatrician, both in support of, and in opposition to, petitioner\'s order to show cause, we find clarification of her observations necessary in order to make an informed determination regarding the child\'s best interests. Finally, we remand the issue of child support to Supreme Court, for as Supreme Court acknowledged in its decision, its ability to review the referee\'s conclusions was circumscribed by the parties\' failure to submit a transcript of the hearing, in violation of CPLR 4320. Concur—Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ.\u003cbr /\>\u003cbr /\>Sent from my BlackBerry wireless handheld.\u003c/div\>",0]
);
//-->
It is settled that the essential consideration in making an award of custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Faunteleroy v Mercado, 5 AD3d 482, 482-483 [2004]), and a court may direct a change in custody if the totality of the circumstances warrants a modification and such a change is in the best interests of the child (Matter of Mathis v Parkhurst, 23 AD3d 923, 924 [2005]; Matter of [*2]Dow v Dow, 306 AD2d 529, 530 [2003]). Some of the factors to be considered include "the quality of the home environment, parental guidance, financial status and ability to provide for the child as well as the ability to provide for the emotional and intellectual development of the child" (Matter of Luz Maria V., 23 AD3d 192, 193 [2005], lv denied 6 NY3d 710 [2006], citing Eschbach, 56 NY2d at 172). Moreover, the burden of establishing a change in circumstances requiring a modification of an existing custody order rests with the petitioner (Matter of Martin R.G. v Ofelia G.O., 24 AD3d 305, 305-306 [2005]; Matter of Millan v Vargas, 5 AD3d 602 [2004]).In this matter, we find troubling respondents' refusal, in the face of petitioner's allegations of abuse and sexual misconduct, to address the issue of the Web site postings in question, for if respondent Londa did, in fact, post these messages, a change in custody may very well be warranted. In addition, given the somewhat contradictory positions espoused by Dr. Prezioso, the child's pediatrician, both in support of, and in opposition to, petitioner's order to show cause, we find clarification of her observations necessary in order to make an informed determination regarding the child's best interests. Finally, we remand the issue of child support to Supreme Court, for as Supreme Court acknowledged in its decision, its ability to review the referee's conclusions was circumscribed by the parties' failure to submit a transcript of the hearing, in violation of CPLR 4320. Concur—Friedman, J.P., Sullivan, Nardelli, Williams and Sweeny, JJ.

KUDOS TO THE FIRST FIRST DEPARTMENT FOR DOING THE RIGHT THING - TRUMPING MISGUIDED BLACK ROBE SUPREME COURT JUSTICE JOAN LOBIS

2007-08-25T15:43:00.000-07:00

Cordula Bartha, Respondent-Appellant,
v
Nicholas Bartha, Appellant-Respondent.

State of New York, Appellate Division, First Department, January 27, 2005

APPEARANCES OF COUNSEL

Ira E. Garr, P.C., New York City (Jane R. Slavin and Ira E. Garr of counsel), for appellant-respondent.

Polly N. Passonneau, P.C., New York City (Donna E. Bennick and Polly N. Passonneau of counsel), respondent-appellant.

OPINION OF THE COURT
Saxe, J.

The determination of equitable distribution made by the Special Referee and incorporated in the court's judgment is both inequitable and unsupported by the record in numerous respects; in particular, the conclusion that plaintiff had no right to any portion of the marital residence or its appreciation in value was contrary to fundamental principles of equitable distribution. Reversal of the financial provisions of the judgment is therefore necessary.

Plaintiff Cordula Bartha, who was born in the Netherlands, emigrated with her family to Italy in 1960. She earned a Ph.D. in German literature from the University of Rome, after which she found employment as an assistant to a publisher. In 1973, she met defendant Nicholas Bartha, a medical student of Romanian and Hungarian heritage. The parties lived together in Rome until defendant graduated from medical school in April 1974, at which time they relocated to the United States and moved in with defendant's parents in a large house owned by defendant and his mother in Rego Park, New York. While defendant studied to pass the examination required of graduates of foreign medical schools, plaintiff worked in the cultural section of the Netherlands Consulate.

In 1976, defendant passed the test that entitled him to practice medicine in the United States, and began an internship at Elmhurst General Hospital in Queens, New York. At about the same time, plaintiff learned that she was pregnant, and the parties married on January 10, 1977. The couple's two children, born, respectively, on August 5, 1977 and December 11, 1978, are now adults.

Although plaintiff continued to work until shortly before their first child was born, she subsequently remained at home with the children until the youngest was approximately 11 years old. Plaintiff returned to work at the Consulate on a part-time basis in 1989, and resumed full-time status there in 1994. In the meantime, defendant completed his internship and residency, and from 1979 until the present has worked as an emergency room physician.

The family, along with defendant's parents, moved to Manhattan in 1986, to a townhouse located on East 62nd Street, which was purchased in 1980 for $395,000, with cash totaling $199,699 obtained from a variety of sources, including a check from defendant's parents and a payment of separate funds belonging to plaintiff; the seller took back a mortgage for the remainder. Once the renovations on the building were completed, this townhouse contained the duplex apartment in which the parties resided, another apartment for defendant's parents, a rental apartment, and a physician's office unit on the first floor. Title to the property was placed in the name of defendant's parents at the time of the purchase; subsequently, it was put jointly in defendant's and his mother's name. Although the parties disagree as to the source of the mortgage payments between 1980 and 1985, it is undisputed that by 1988 the mortgage payments were made from the parties' joint account, as were the costs of the extensive renovations made on the property prior to their taking residence.

In October 2001, plaintiff wife vacated the marital residence and commenced this action for divorce.

After a fault trial, a divorce was granted in favor of plaintiff. The economic issues were referred to a Special Referee to hear and determine.

The Referee found that the townhouse on East 62nd Street was not marital property, but [*2]was in part the separate property of defendant and in part belonged to the parties' children. It was noted that defendant obtained title to 50% of the marital residence as a gift from his father and another 25% as an inheritance from his mother, while the remaining 25% had been willed by his mother to the children of the marriage.

The Referee then found that plaintiff was entitled to a distributive award, calculated to include (1) half the money the marital estate would have received had they rented out the apartment supplied to defendant's parents (determined to be $400,000), (2) half the income lost to plaintiff because she stayed home instead of working while the parties' children were young (determined to be $550,000), (3) half of the $1,112,467 in marital funds which the couple put into the marital residence, and (4) the $196,500 in separate property which plaintiff contributed over the years to the marital residence. The total distributive award thus came to a total of $1,227,733.50.

The Referee also directed defendant to pay plaintiff maintenance of $2,000 per month for three years, and denied plaintiff an award of counsel fees.

We affirm the determination awarding a divorce to plaintiff on grounds of cruel and inhuman treatment. Plaintiff's proof, when viewed cumulatively, established by a preponderance of the credible evidence that defendant had engaged in a course of conduct which was harmful to the plaintiff's physical and mental health, thus rendering cohabitation unsafe or improper (Domestic Relations Law § 170 [1]).

This was not a case of ordinary marital dissatisfaction or even "riotous quarrels" as defendant suggests. Defendant intentionally traumatized plaintiff, a woman of Jewish origin born in Nazi-occupied Holland, with swastika-adorned articles and notes affixed around their home, and became enraged when she removed them. He ignored her need for support and assistance while she was undergoing surgery and treatment for breast cancer (see Siczewicz v Siczewicz, 92 AD2d 915, 916 [1983], appeal dismissed 59 NY2d 968 [1983]). He systematically cut off her access to marital funds and credit as a means of psychological abuse. Even plaintiff's assertion that defendant completely ceased speaking to her is not benign, but must be understood in the context of the prior years' verbal abuse.

Physical violence is not a prerequisite for a showing that plaintiff's physical or mental well-being rendered it unsafe or improper for her to continue cohabiting with defendant as required by Domestic Relations Law § 170 (1) (see Hessen v Hessen, 33 NY2d 406, 410 [1974]; Pfoltzer v Morris-Pfoltzer, 9 AD3d 615, 616-617 [2004]). Nor did plaintiff need an expert to prove that defendant's actions had the claimed effect on her mental condition (see Levine v Levine, 2 AD3d 498, 500 [2003]), particularly in view of her explanation that she is the type of person who finds it difficult to consider seeking psychological treatment.

However, the Referee's determination of the economic issues must be rejected.

With regard to the Manhattan townhouse on East 62nd Street, which was purchased in 1980 for $395,000, and was valued by the neutral appraiser in June of 2002 at $5 million, it was error to accept at face value the claim that initially placing the townhouse in the names of defendant's parents, and defendant's subsequently holding joint title with his mother, rendered the property nonmarital. [*3]

It is true that it was defendant's parents who took title to the townhouse when it was purchased in 1980, and that defendant's father thereafter purported to gift his half of the house to defendant, while the other half remained in his mother's name, until at her death in 1997, when defendant inherited 50% of her interest in the property, with the remainder willed to her granddaughters, the parties' children. However, the names in whom title was placed does not end the analysis, especially in circumstances such as these.

It is central to the Equitable Distribution Law that the term "marital property" includes property acquired by either spouse during the marriage "regardless of the form in which title is held" (Domestic Relations Law § 236 [B] [1] [c]). That one of the spouses acquired title to property jointly with another relative would not necessarily interfere with its being considered marital, at least to the extent of the spouse's established interest (see Antenucci v Antenucci, 193 AD2d 948 [1993]). Moreover, in this instance, the manner in which defendant's parents initially obtained title, and defendant then obtained title from his parents, supports the claim that the townhouse was truly the marital property of these parties, at least in part, from the outset, and that any additional interest that defendant acquired from his parents subsequently might similarly be considered marital property as well.

It is undisputed that $45,095 of the $199,699 cash used for the purchase of the townhouse came from plaintiff's separate property. Moreover, while $114,369 of the cash down payment came from a check from defendant's parents' account, in the context of the probate of his mother's estate, defendant took the position that at least $60,000 of that payment belonged to him and constituted marital assets. Indeed, that defendant considered the funds held in his parents' names to belong in part to himself and his wife was illuminated by the manner in which he and his family handled their finances generally. For instance, while defendant's mother alone received the rents on the Rego Park building that she and defendant had purchased jointly before the marriage, the building's expenses were paid by plaintiff and defendant, from marital earnings. Indeed, in the probate of his mother's estate, in which defendant successfully defended a challenge by his nephews to his right to inherit his mother's interest in the townhouse, defendant asserted that he and his parents had so thoroughly commingled their assets that while he had, technically, inherited property from his mother, the inheritance actually amounted to a repayment to him of financial loans that he and his wife had made to his mother over the course of many years.

There is a "presumption in favor of marital property, premised on the contemporary view of marriage as an economic partnership, crediting each party's contributions, whether monetary or not, to the growth and value of the marriage" (DeJesus v DeJesus, 90 NY2d 643, 648 [1997]). The term marital property must be broadly construed in order to give effect to the economic partnership concept (Price v Price, 69 NY2d 8, 11 [1986]), and assure that "to the extent that the appreciated value of separate property is at all 'aided or facilitated' by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution" (Hartog v Hartog, 85 NY2d 36, 46 [1995]).

To the extent defendant establishes that a portion of the down payment for the Manhattan townhouse was from funds of his parents which had not been intermingled with marital funds, or [*4]from his own separate property, he is entitled to a credit for that contribution; but, otherwise, the property, or at least the 75% interest therein currently held in defendant's name, is marital property[FN*] (see Heine v Heine, 176 AD2d 77, 84 [1992], lv denied 80 NY2d 753 [1992]). The appreciation of the value of the house, from $395,000 to $5 million, was unrelated to the down payments, but very much related to the complete gutting and renovation which was largely overseen by plaintiff, and paid for out of the parties' marital funds (id.). Furthermore, the mortgage payments were made entirely from marital funds, at least from 1988 on, and possibly during the earlier years as well.

As to the distributive award that the court granted to plaintiff, both parties agree that there is neither support nor sufficient explanation of how the Referee calculated the amounts of $400,000 for loss of rental income and $550,000 for plaintiff's loss of employment income. Even if we agreed with the characterization of the marital residence as defendant's separate property, a remand would be necessary on this basis in any event.

The need for reassessment of the equitable distribution award also necessitates reassessment of the court's maintenance award to plaintiff. We note, however, that the record fails to disclose how a maintenance award of $2,000 per month for three years will enable plaintiff, who currently lives in a small apartment in Washington Heights with her two adult daughters, to retain her predivorce standard of living (see Hartog v Hartog, 85 NY2d at 50-52; Summer v Summer, 85 NY2d 1014 [1995]). Finally, the question of whether or not plaintiff is entitled to an award of legal fees in connection with this matrimonial proceeding must also be reassessed in accordance with the final equitable distribution determination.

Accordingly, the judgment of divorce of the Supreme Court, New York County (Joan B. Lobis, J.), entered May 9, 2003, which, inter alia, granted plaintiff a divorce, provided for a distributive award to the wife, awarded her maintenance in the sum of $2,000 per month for a period of three years, and denied her application for attorney's fees, should be modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs.

Buckley, P.J., Tom, Andrias and Marlow, JJ., concur.

Judgment of divorce, Supreme Court, New York County, entered May 9, 2003, modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs.

Footnotes

Footnote *: While plaintiff challenges the authority of defendant's mother to bequeath 25% of the house to her granddaughters, she nevertheless does not want to challenge her daughters' ownership rights.

Source: New York State Courts

NY TIMES SUPREME COURT JUSTICE JOAN LOBIS

2007-08-25T15:13:00.000-07:00

How a Town House in N.Y. Went From Dream to Nightmare

NY Times By CARA BUCKLEY

Published: July 11, 2006

The graceful town house on East 62nd Street was more than a home to Nicholas Bartha. It was the culmination of his life’s work, proof that he had realized the classic immigrant’s dream.
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Dr. Nicholas Bartha is pulled from his town house. \
Multimedia

Photographs: Manhattan Building Collapses

Video: James Barron on the Collapse

Graphic: Anatomy of a Town House

Map: Aerial View of Area
Related
Blast Levels Manhattan Town House; Inquiry Focuses on Injured Owner (July 11, 2006)
The Rescue: 2 Firefighters, Persevering, Pull Owner From Rubble (July 11, 2006)
The Scene: The Day Disaster Arrived on East 62nd (July 11, 2006)
The Building: If These Walls Could Talk, What They Would Say Might Be Classified (July 11, 2006)
Text: Opinion in Bartha v. Bartha

Andrew Gombert/European Pressphoto Agency
More than 200 firefighters worked to get things under control after an explosion destroyed the four-story building at 34 East 62nd Street in Manhattan on Monday. More Photos >
Dr. Bartha, burned and barely conscious, was pulled from the ruins yesterday morning after the house was nearly leveled by a gas explosion, raining bricks on one of the city’s wealthiest streets and sending up thick columns of black smoke. Even before the fires were extinguished, police began focusing on Dr. Bartha as the most likely person to have caused the blast.
Just as his historic town house, a landmark used more than half a century ago by American spies, was no ordinary building, Dr. Bartha, 66, was embroiled in a marital split that by all accounts was no ordinary divorce. But he would have done anything to keep that house, including stay married, his lawyer said.
He lost one key battle last year when a court ruled that his wife deserved a share of the building, a decision he fought.
Then, in April, he was ordered to sell it so he could pay his wife more than $4 million. In court papers, she said he had repeatedly vowed in ominous tones that he would die in that house and that she would never get it.
Now there is no house.
“He wanted to stay married,” said Ira E. Garr, Dr. Bartha’s lawyer until last year. “He wanted to maintain the status quo so he could continue to live in this house,” he said, adding, “He wanted nothing other than to remain in this house for the rest of his life.”
Dr. Bartha was Romanian, and met his wife, Cordula Hahn, a native of the Netherlands, in 1973. He was studying medicine at the University of Rome, and she had just earned a doctorate in German literature. In 1974, they moved to the United States, and lived with Dr. Bartha’s parents in Rego Park, Queens.
Ms. Hahn took a job in the cultural section with the Netherlands Consulate General in New York while he studied for and passed exams enabling him to practice medicine in the United States. The couple were married early in 1977 and soon after had two daughters, Serena and Johanna. His wife stayed home to raise the children while he worked in hospital emergency rooms, where he developed a reputation for being a dour man with a gruff bedside manner.
“He only talked about work, a workaholic doctor,” said Dr. Paul Mantia, who shared an office with Dr. Bartha.
In 1980, Dr. Bartha first saw what would prove to be the love of his life, the four-story town house at 34 East 62nd Street, between Park and Madison Avenues.
According to divorce papers, he and his parents, Ethel and John Bartha, bought the house for $395,000, after cobbling together $199,699 in cash. Dr. Bartha, his young family and his parents moved into the house in 1986.
Dr. Bartha’s joy over the purchase was intense and immediate, Mr. Garr said. For him, it symbolized validation, proof of success.
“He told me, ‘I stood at the corner of 59th Street and Fifth Avenue and looked north, and said, “This is it. This is where I want to live the rest of my life,” ’ ” Mr. Garr said.
Dr. Bartha may have found his dream house, but his home life was far from idyllic.
As he worked, he grew increasingly estranged from his wife and daughters, his lawyer said. Silence pervaded the home. “There was two years of noncommunication,” Mr. Garr said. “They were like two ships in the night.”
In October 2001, his wife, who has resumed the use of her family name, filed for divorce and moved with her daughters to a small apartment in Washington Heights.
The divorce papers described a bizarre, markedly unhappy home life. Dr. Bartha put up “swastika-adorned articles” around the house, according to a court decision, “intentionally traumatizing” her because she is of Jewish descent and was born in “Nazi-occupied” Holland. Dr. Bartha became enraged when she took them down, according to the papers, which also said he ignored his wife as she was treated for breast cancer.
A judge granted her the divorce. He was ordered to pay $1.23 million, plus alimony of $2,000 per month for three years. But the referee in the case held that the couple’s home, then valued at $5 million, was not marital property and that Ms. Hahn had no claim to the home.
Then Dr. Bartha appealed the decision, a move that would ultimately cost him his house. He wanted to stay married, and would have had to sell or mortgage the house to pay the $1.2 million the court said he owed.
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Landmarks Preservation Commission via Associated Press
A file photograph of 34 East 62nd Street. More Photos >
Multimedia

Photographs: Manhattan Building Collapses

Video: James Barron on the Collapse

Graphic: Anatomy of a Town House

Map: Aerial View of Area
“He didn’t love her,” Mr. Garr said. “He was emotionally and constitutionally opposed to divorce. He was a man who worked all the time and couldn’t stand being alone.”
Early in 2005, the Appellate Division of State Supreme Court held that the town house was marital property. It was an unusual decision that the New York Law Journal noted on its front page, partly because the appellate court determined that the home was community property “regardless of the form in which the title is held.”
After the decision, Mr. Garr tried repeatedly to contact his client through letters and phone calls but failed “He disappeared,” Mr. Garr said.
Steadily, Dr. Bartha seemed to be swallowed by his own despondency. He had already begun a series of suicide attempts, according to an official, who would not speak for attribution because the investigation is under way.
In one instance, three or four years ago, the official said, Dr. Bartha barricaded himself inside his office and filled it with insecticide, and his secretary found him after breaking down the door. Once, within the last year, his partner found him in the basement, passed out with the gas on, the official said.
Finally, Dr. Bartha’s beloved town house slipped from his grasp.
In August 2005, Ms. Hahn received a judgment of $3.6 million, plus a property credit and lawyer’s fees, according to court papers. The total of all money judgments in the matrimonial action against Dr. Bartha came to more than $4 million. Ms. Hahn had complained in court papers that he “has fought me every step of the way in the divorce action,” and said she did not expect that he would satisfy the money judgments. The only way to ensure that he complied, she said, was to have the house sold.
“I have no doubt that respondent will ensconce himself in the marital residence and refuse to leave it after the auction is held,” she said. “He has said many times that he intends to ‘die in my house.’ ”
In April this year, Justice Joan B. Lobis of State Supreme Court ordered that his 75 percent interest in the house be sold at auction. The court also ordered that the sheriff evict him from the house no more than 10 days after the auction, and that the sheriff remove three pieces of property — two antique armoires and an antique desk — and turn it over to Ms. Hahn. The furniture belonged to her family, according to the order.
On Friday, a sheriff’s deputy arrived at the house with eviction papers, said Dr. Mantia, who shared his office. If Dr. Bartha was upset, he did not show it, Dr. Mantia said.
“He’s been up and down for two years since this divorce started,” Dr. Mantia said. “Sure, he was trying to commit suicide.”

Reporting for this article was contributed by Sewell Chan, Jim Dwyer, Anemona Hartocollis, Jo Craven McGinty, Mick Meenan, Aron Pilhofer and William K. Rashbaum.
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· An Earlier Case of a Gas Explosion After a Broken Relationship (July 12, 2006)
· THE SCENE; The Day Disaster Arrived on East 62nd (July 11, 2006)
· THE RESCUE; 2 Firefighters, Persevering, Pull Owner From Rubble (July 11, 2006)
· THE BUILDING; If These Walls Could Talk, What They Would Say Might Be Classified (July 11, 2006)

SUPREME COURT JUSTICE JOAN LOBIS - VICTIM 1

2007-08-25T15:01:00.000-07:00

War Over Boy Raised By Gays

Brad Hamilton – New York Post May 30, 2004

An ugly tug of war is raging over the fate of a 6-year-old boy being raised by a gay couple who won custody of the child in a landmark decision in 2000. Gays hailed the ruling as a major victory for same-sex couples, but the boy has since become a troubled kid who punches his teachers and repeatedly says he wants to kill himself, according to an expert's report requested by his school. The report has spurred the mother to fight for increased access to her son, who has lived with the two men since the ruling - the first time a New York court awarded custody to a gay couple over a woman they claimed to be a surrogate. The mother says she was never a surrogate and that she, the father - once a close friend who worked for her - and his live-in lover intended to raise the child as a parental trio. "I just hadn't met the right guy yet," said Courtney St. Clement, 52, who had never been identified in the press or spoken out about her experiences. "They held out that they had a lot of money, and at the time, I felt like I was marrying a doctor. They said, 'We're a family.' We were supposed to all live together, but we didn't get that far." St. Clement, who runs her own marketing and consulting firm and lives on the Upper West Side, had no inkling of how badly things would go for her son, whose name is being withheld by The Post. He punches and kicks his teachers, hits and bites himself, curses and says he wants to kill himself as often as twice a month, according to the new report, completed in January by NYU's Child Study Center. It also says he repeatedly kisses and touches classmates inappropriately and once ran around naked. "[He] is exhibiting significant behavioral problems at school," said the report, which was based on a personal evaluation of the boy by two experts, along with interviews with his teachers and both parents and their spouses. It blames his unruliness in part on the "hostility" between his parents. "His mother and father have always lived apart and have had remarkably significant disputes regarding custody and visitation from very early on," said the report, which recommended that the boy be appointed a law guardian. He was previously kicked out of PS 116 as a kindergartner in 2002 after just two weeks there and placed in a private special-needs school on the Upper East Side. St. Clement says the family arrangement broke down after the father, part-time substitute teacher Gerald Casale, 47, and his partner, a trusts and estates lawyer, Ernest Londa, 46, stopped her from seeing the 6-month-old infant in April 1998. She then sued for custody. The partners claimed they struck a deal with St. Clement in which she agreed to carry Casale's child to term, then step back and allow them to be sole parents. "I think Ms. Clement has a certain bent," said Phyllis Levitas, Casale's lawyer. "My client and I have given this some very careful consideration, and we believe that it's not in the child's best interest to discuss this case with the media." Last December, St. Clement challenged the custody ruling - made by Manhattan Supreme Court Justice Marylin Diamond - in light of the boy's disturbing behavior at school, and the boy's pediatrician requested a follow-up evaluation by a court-appointed specialist. In March, an appeals court ruled that the new judge in the case, Supreme Court Justice Joan Lobis, reconsider the custody question. But Lobis refused to take up the custody issue, denied the evaluation request and rejected the recommendation for a child guardian, spurring a motion in which the mother slammed Lobis for "abdicating her role as judge." Lobis' office did not respond to The Post's request for comment. The mother is part of the Alliance for Judicial Justice, a group of 200 litigants who suspect their cases were tainted by judges' personal interests, led by activist Anthony DeRosa.

http://nypost.com/news/regionalnews/24903.htm

NY DAILY NEWS - EX - SUPREME COURT JUSTICE MICHAEL GARSON, COUSIN OF JUDGE ROBIN GARSON AND JAILED SUPREME COURT JUSTICE GERALD GARSON

2007-08-25T14:52:00.000-07:00

Probe Judge Family Plot

By Nancie L. Katz

Daily News Friday, July 11th, 2003

The state's judicial watchdog agency is aggressively probing a Brooklyn judge accused of looting his elderly aunt's fortune, the Daily News has learned.
The Commission on Judicial Conduct could recommend the removal of Judge Michael Garson if it concludes he abused his power of attorney over the assets of Sarah Gershenoff, 91.
For more than 50 years, Gershenoff, a former law secretary, carefully built a nearly $1 million fortune for her retirement. She handed control of her assets to nephews Michael and Gerald Garson in 1997. By by the end of last year, barely $10,000 was left, and Michael Garson has yet to explain where the money went.
Now, Gershenoff's court-appointed guardian, Robert Kruger, is begging both judges for help to pay her bills, sources close to the case said.
Brooklyn District Attorney Charles Hynes, who indicted Gerald Garson for allegedly taking favors to fix divorce cases, is probing criminal allegations that Michael Garson looted his aunt's fortune to cover major stock market losses. He subpoenaed Michael Garson's income tax returns dating to 1997, a source said.
The commission is going after Michael Garson for possible ethical violations and abuse of his fiduciary obligations, according to a witness who has appeared before the commission. "They want him gone," said the witness, who requested anonymity.
Kruger declined to discuss the case but acknowledged that commission investigators interviewed him for more than two hours this week. Kruger has been trying to get Michael Garson to account for more than $600,000 he withdrew between 1997 and 2000.
Gerald Garson, and his wife, Judge Robin Garson - who is Gershenoff's personal guardian - also could face commission charges for allegedly failing to report Michael Garson's activities, a source familiar with the case said.
Another judge probed
Also under scrutiny is Manhattan Justice Judith Gische. She is being investigated for possible ethical violations for failing to report allegations of criminal conduct against Michael and Gerald Garson, who were being sued by another family faction. Relatives accused them of illegally pocketing funds belonging to Gershenoff.
Commission administrator Robert Tembeckjian declined comment. Michael Garson and his attorney did not return calls yesterday. Gerald Garson was unaware of any probe into his conduct, his lawyer said. Robin Garson also "has no knowledge," court spokesman David Bookstaver said.

NY POST - EX - SUPREME COURT JUSTICE MICHAEL GARSON, COUSIN OF JUDGE ROBIN GARSON AND JAILED SUPREME COURT JUSTICE GERALD GARSON

2007-08-25T14:47:00.000-07:00

Judge: Aunt Told Me to Blow Her $$
Dareh Gregorian

New York Post

December 16, 2003
An embattled Brooklyn judge took the witness stand in Manhattan yesterday, where he said he blew through his ailing aunt's fortune because that's what the nonagenarian wanted him to do.
Michael Garson was testifying before Manhattan Supreme Court Justice Walter Tolub to explain what happened to an unaccounted $178,000 that belonged his aunt, Sarah Gershenoff.
Gershenoff had close to $1 million in 1997, when Garson took control of her finances with his cousin, fellow Judge Gerald Garson, who's now embroiled in his own bribery scandal. Now she's almost broke.
The Garsons have accounted for most of the missing cash, saying they spent the bulk of it on taking care of Gershenoff, while the rest of it went to continue the "pattern of gift giving" she'd maintained throughout the years.
Michael Garson said they continued that pattern by giving "gifts" of tens of thousands of dollars to themselves.
"She wanted to see me and Gerald use" her money, he said, and to get to her income down to "Medicaid level."
Robert Kruger, the law guardian for the now-mentally incapacitated Gershenoff, wanted to question Garson under oath because he didn't have receipts to back his claims of what he spent on his aunt, as he was obligated to do.
Kruger wants Garson to pay the unaccounted for cash back to Gershenoff.

NY LAW JOURNAL EX - SUPREME COURT JUSTICE MICHAEL GARSON, COUSIN OF JUDGE ROBIN GARSON AND JAILED SUPREME COURT JUSTICE GERALD GARSON

2007-08-25T14:40:00.000-07:00

NY Judge Accused of Theft Testifies

By Daniel WiseNew York Lawyer

New York Law JournalOctober 20, 2004r

Brooklyn Justice Michael J. Garson made a second and final appearance yesterday before a grand jury investigating whether he stole hundreds of thousands of dollars from his elderly aunt, sources report.
Justice Garson has contended he acted properly under a power of attorney his aunt gave him to spend down her assets so she could qualify for Medicaid.
Sources said that Justice Garson's appearance yesterday indicated the grand jury is close to finishing its work and that a vote on an indictment will be taken soon.

Judge Robin Garson - wife of jailed Supreme Court Justice Gerald Garson, relative of the indicted ex - Supreme Court Justice Michael Garson

2007-08-20T15:11:00.000-07:00

Probe of Garson wife gets a push

BY NANCIE L. KATZ

DAILY NEWS STAFF WRITER
Wednesday, August 8th 2007,

She's the last Garson on the Brooklyn bench, and NOW wants her off. Four months after filing a complaint against Brooklyn Civil Court Judge Robin Garson, the National Organization of Women wants to know why the state's judicial watchdog hasn't moved. In a letter last week, NOW's state president, Marcia Pappas, asked the Commission on Judicial Conduct to take action to remove the wife of convicted divorce Judge Gerald Garson. "Several individuals have questioned why Robin Garson is still a sitting judge, and if any taxpayer money was spent for [her] during her husband's lengthy trial," Pappas wrote. "We wonder how much taxpayers' money will be saved if this commission had done any investigation of prior improprieties with the Garson family." The commission began probing Robin Garson four years ago after she told a grand jury that Brooklyn Supreme Court Justice Michael Garson - her husband's cousin - confessed to improperly taking $100,000 from his elderly aunt. Michael Garson, who resigned in December, has been indicted on grand larceny charges for allegedly looting the nearly $1 million fortune his Aunt Sarah Gershenoff saved over 50 years as a legal secretary. His trial is expected in October. Robin Garson, Gershenoff's personal guardian, also testified that the power of attorney Michael and Gerald Garson used to pilfer Gershenoff's money was forged. Ethical rules require judges to report criminal acts. She did not at the time. Gerald Garson is now serving three to 10 years for taking cash, cigars, free drinks and meals from crooked lawyer Paul Siminovsky in exchange for awarding lucrative appointments and fixing cases. Last April, NOW complained that Robin Garson "exploited her official status to obtain special privilege" during her husband's trial, passing notes to defense lawyers and entering the courtroom through special doors reserved for officials. In the Aug. 1 letter, NOW exhorted the commission to pursue Siminovsky's testimony that Gerald Garson asked him to help Robin Garson's election campaign as part of their corrupt relationship. "Please be transparent in your investigation," Pappas wrote. "Judicial canons require that judges maintain ethical standards and avoid any appearance of impropriety. Please help us rebuild our public faith and trust in the state judiciary." Commission administrator Robert Tembeckjian declined to comment, saying all investigations are confidential. "Robin Garson will be cleared of everything," said her lawyer, Richard Godosky. "There was no violation of any rule or ethics, moral or legal."

Justice Jacqueline Silbermann - Victim number 2 - Susan Gass

2007-08-13T21:33:00.000-07:00

DEM'S EX DEFEATS 'ABUSE' BY DIVORCE JUDGE
By JANON FISHER

August 12, 2007 -- She lost her son, her home and her job - but a Manhattan woman has fought and finally won an appeal to overturn the uncontested divorce that gave her politically connected husband everything.

After a three-year battle, Susan Gass, 50, won a ruling last month in which the appeals court blasted deputy chief matrimonial judge Jacqueline Silbermann for giving the husband everything without the wife even knowing she was being sued for divorce.
Gass, who was repeatedly told she couldn't fight the 2004 divorce, claims politics drove the judges' rulings. Her husband, Thomas Gass, is the former president of the Village Reform Democratic Club in Manhattan.

In its decision, the appeals court said Silbermann "abused her discretion" when she ignored Gass' repeated attempts to fight the divorce, which awarded child custody and the house to her husband.
"There was a complete lack of due diligence on the part of all the judges," Gass told The Post.
Susan Gass said her husband filed for an "uncontested divorce" without ever serving her; he has claimed he did.

Thomas Gass would not comment on the ruling.
Susan Gass refused to give up, even after Silbermann granted the terms of the divorce in 2005.
"I couldn't go to my grave letting them do this to me and get away with it," she said.
Now, she plans to head back to court and divorce her husband again.

JUDGE PANEPINTO AND JUDGE RACHEL ADAMS

2007-08-11T16:12:00.000-07:00

Guardianship Juggling Act
By Jason BoogPosted 06-08-07

The systems governing both the appointment of law guardianships and the oversight of judicial campaign donations are replete with often demanding protocols. But the recent conviction of an ex-judge and the intimacy of relationships in the small jurisdiction of Staten Island raise questions about the precision and effectiveness of those regulations.
During the sentencing of disgraced Supreme Court justice Gerald Garson earlier this week, one divorcee blasted the jurist for accepting bribes from her ex-husband’s divorce attorney. “Money and cigars are what determined your custody decisions,” Sigal Levy told the court in her angry victim’s statement.

Levy had told the Brooklyn District Attorney about Garson’s bribery and ex parte conversations with Paul Siminovsky — her ex-husband’s attorney and one of Garson’s favorite appointees for lucrative private law guardianships — during her divorce proceedings in 2003. Her testimony initiated a sting operation that landed Garson a three-to-ten-year prison term.
It also generated tougher public scrutiny of court arrangements in the Second Judicial District, which comprises Brooklyn and Staten Island courts. In an interview after the trial, Levy alleged that other private court appointed law guardians were wrapped up in webs similar to the one that ensnared Garson and Siminovsky. “The law guardians and everybody else are part of the system,” she said. “They wanted to appease him because he referred cases to them. People pay a lot of money to private law guardians.”
And, as the campaign coffers of at least on Staten Island justice reveal, law guardians donate more than a bit of money to judges.

GUARDIAN'S KNOT

Law guardians are attorneys hired by the court to advocate for the children during contentious divorces — ideally to give an unbiased perspective to the judge about the needs and wishes of the kids stuck between warring parents. Judges keep two lists of such advocates, one for couples that can afford higher-priced, private counsel, another for those who qualify for state-subsidized counsel, somewhat similar to the public defender system.In both cases, the judge approves hourly fees based on what the family can pay and what the judge deems appropriate. If any advocate earns $50,000 or more in one year for such appointments (including various other assignments, though not including public defender appointments), he or she is taken off the list for the next calendar year.

Although Garson is no longer part of that system, at least two of his former staffers now oversee such cases in the Second Judicial District.
And a disturbing number of political donations in that district match up with those plum guardianship assignments, according to the "Part 36 of the Rules of the Chief Judge database" — the digital warehouse where the court system stores the names and fees earned by "all persons and entities appointed by each appointing judge."

The problem is most visible in Richmond County. Out of the $204,000 of private law guardianship assignments made in Staten Island Supreme Court since 2003, well over $184,000 of those fees went to attorneys who had contributed to the campaigns of one or more of the Supreme Court justices who dole out the jobs.Harriet Weinberger is the law guardian director in the department that includes Brooklyn and Richmond Counties. While she wouldn't speculate on why judges pick one law guardian over another, she explained that the judges select them from a list of approved candidates."[The judges] should check the list of eligible private pay law guardians maintained by the OCA [Office of Court Administration]. They should also check the list of certified law guardians maintained by the Appellate Divisions," she said.

One of the state’s most prominent family court reform activists strongly disagreed. “It’s too easy for there to be a cozy relationship. They know that if they don’t play ball they won’t get appointed again,” said Patricia Duff, founder of the court reform group, Families for Justice. Duff became an activist following her highly publicized divorce from cosmetics magnate Ronald Perelman. In the following years, she has publicly criticized the lack of regulations for private law guardians.“For many of them, their entire practice is built on these assignments. It’s unseemly that they are allowed to give the judges political contributions,” Duff concluded.

RICHMOND COUNTY: A CLOSER LOOK

Since 2003, two judges have handed out private law guardian assignments in Richmond County, and one was a key player in Garson’s courtroom. The first (the one not affiliated with Garson) is acting Supreme Court Justice Barbara Panepinto. Since 2003, Justice Panepinto has doled out more than $68,000 in law guardian assignments — and every assignment went to an attorney who donated to Panepinto’s 2006 re-election campaign fund. (To see a spreadsheet of her assignments, click here.)Panepinto shares these responsibilities with acting Supreme Court Justice Rachel Amy Adams, who was Garson’s former law secretary. Although Adams’s last race for Civil Court occurred in 1999, just before new campaign finance disclosure rules kicked in, records do reveal that out of the $136,600 in law guardian whom Adams has appointed since 2003, $116,600 worth of those assignments went to attorneys who had donated to her colleague Panepinto's campaign.

Although the donation wasn’t sizable, Adams did receive $100 from matrimonial attorney Rosa Pannitto in a failed bid for the Democratic Party’s Supreme Court endorsement in 2002.
(To see a spreadsheet of Adams's assignments, click here.)While Acting Justice Panepinto did not respond to an interview request, Adams offered a glimpse into her law guardian selection process.The judge categorically denied that political considerations played any part in her law guardianship assignments: “I kept a written list of my [private law guardian] assignments. I wrote on a board in my chambers who was assigned and what date so I was mindful of who I assigned — so I could rotate through the list."Adams also explained that she sometimes looks for law guardians with special skills — anything from language abilities to social work experience — depending on specific cases.

“If there are allegations of sex abuse, a young girl might be more comfortable speaking with a woman,” the judge said as an example. “I look at the quality of their work: whether they are punctual and prepared and an effective advocate for their client. I look at all those factors,” she concluded. Adams was recently reassigned to New York City Family Court, and Supreme Court Justice Karen B. Rothenberg replaced her. Justice Rothenberg worked at Gerald Garson’s former law firm, Gerber & Garson, for two years.

MURKY WATER

Even though these assignments fall into an ethical gray area, neither judge has broken campaign finance law.

According to The 2006 Judicial Campaign Ethics Handbook, judges are permitted to raise money for election bids during a window period commencing nine months prior to the earliest of the following dates: the date of formal nomination; the date of a party meeting at which the candidate would be endorsed; or the date that the petition process begins.Last year, the window period opened in December — nine months prior to the September primary. Both Panepinto and Adams received their contributions within this timeframe during their respective judicial races. Campaign donations are generally solicited during fundraisers, in the hopes of insulating the judge from donors. Supporters usually pay for tickets that range $100-to-$500 and attend a dinner with a few carefully placed ringers — designed to insure that the judge doesn’t realize who contributed and who didn’t.

Catherine Wilson is a judicial activist and the ex-wife of the law secretary for Supreme Court Justice Nicholas Colabella in the Ninth Judicial District. She disagreed with the assumption that judges are sufficiently insulated from the political process, recalling some fundraisers she attended with her ex-husband. “These fundraisers are very intimate affairs.
A small room in a hotel maybe, with 50 or so people. It’s very easy meet everybody in the room. If a judge tells you they don’t know who contributed, then they are full of crap,” she said.

Out of the 13 attorneys assigned private law guardianships in Richmond County since 2003, three earned the lion’s share of the assignments. None of these attorneys answered calls for comment for this article. Private attorney Valerie J. Camacho topped the list with 43 assignments, earning $37,000 for her work since 2003. She donated $750 to Justice Panepinto’s campaign.

In second place was Anthony J. Morisano, who collected 20 assignments and earned $55,000 in that same time period. He donated $450 to Panepinto’s campaign and $250 to the Richmond County Democratic Committee.Attorney Veera V. Konka rounded out the list, receiving 15 assignments that earned her $42,000 since 2003. Konka donated $100 to Panepinto’s 2006 campaign.Whether the donations were known to their recipient is almost impossible to tell. And untangling the dynamic is even harder in such an intimate locale.

Explained Nancy Erickson, a staff attorney at the Brooklyn branch of Legal Services for New York City who has been involved with Richmond County guardian cases: “Staten Island is very insular. It’s its own little community, and everybody knows each other, even more so than the other boroughs. . . . I was certainly aware that I was an outsider. I felt like a carpetbagger in the South after the Civil War.”

____________________________________________________________________

Judge Panepinto

Appointee
Appointing Judge
Action or Proceeding
Approved Fee
Year Assigned
Committee Donated To:
Donation size
Year of Donation
CAMACHO, VALERIE J
PANEPINTO, B.
M/O C. PATRIZIO VS. R. PATRI
$4,818.32
2006
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O C WARD VS ROSEANNE WARD
$1,949.98
2006
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O JOYCE VS JOYCE
$2,533.31
2007
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O M. FRUSTACI VS ALANA FRU
$3,566.64
2006
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O VEGA VS VEGA
$2,399.99
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O LEYSON VS LEYSON
$449.99
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O ZAHRIYEH VS ZAHRIYEH
$3,392.96
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O MASUCCI VS MASUCCI
$666.66
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
PANEPINTO, B.
M/O FLEMMING VS FLEMMING
$3,399.98
2006
Barbara Panepinto
$750
2006
COHEN, FRANCINE P
PANEPINTO, B.
M/O C. KAPLAN VS CRAIG KAPLA
$910.00
2007
Barbara Panepinto
$125
2006
COHEN, FRANCINE P
PANEPINTO, B.
M/O A. L GARCIA VS WANDA GAR
$1,750.00
2007
Barbara Panepinto
$125
2006
GARRIGAN, KATHLEEN M
PANEPINTO, B.
M/O L. KASZUBSKI VS M. CARLS
$1,972.00
2007
Barbara Panepinto
$125
2006
KONKA, VEERA V
PANEPINTO, B.
M/O GARBARINO VS GARBARINO
$7,960.00
2006
Barbara Panepinto
$100
2006
KONKA, VEERA V
PANEPINTO, B.
M/O QUATRONE VS QUATRONE
$2,220.00
2005
Barbara Panepinto
$100
2006
KONKA, VEERA V
PANEPINTO, B.
M/O QUATRONE VS QUATRONE
$2,740.00
2005
Barbara Panepinto
$100
2006
KONKA, VEERA V
PANEPINTO, B.
M/O GARBARINO VS GARBARINO
$640.00
2004
Barbara Panepinto
$100
2006
KONKA, VEERA V
PANEPINTO, B.
M/O GARBARINO VS GARBARINO
$2,000.00
2004
Barbara Panepinto
$100
2006
LEDERMAN, PHYLLIS R
PANEPINTO, B.
M/O AMOROSE VS AMOROSE
$3,012.00
2005
Barbara Panepinto
$250
2006
LEDERMAN, PHYLLIS R
PANEPINTO, B.
M/O CIPRIANI VS CIPRIANI
$1,400.00
2005
Barbara Panepinto
$250
2006
LEDERMAN, PHYLLIS R
PANEPINTO, B.
M/O FALJEAN VS FALJEAN
$2,210.00
2005
Barbara Panepinto
$250
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O J TENAGLIA VS D. TENAGLI
$2,580.00
2007
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O SEAMAN VS SEAMAN
$3,460.00
2007
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O PACE VS PACE
$1,900.00
2006
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O CIRIANO VS CIRIANO
$2,060.00
2006
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O CUOCO VS CUOCO
$2,100.00
2005
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O TILLMAN VS TILLMAN
$2,380.00
2005
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O RIGNOLA VS RIGNOLA
$440.00
2005
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
PANEPINTO, B.
M/O CENNAMO VS CENNAMO
$1,120.00
2005
Barbara Panepinto
$450
2006
NEWMAN, MITCHELL P
PANEPINTO, B.
M/O D. MULLIGAN VS R. MULLIG
$2,000.00
2006
Barbara Panepinto
$125
2006
_____________________________________________________________________

Judge Rachel Adams

Appointee
Appointing Judge
Action or Proceeding
Approved Fee
Year Assigned
Committee Donated To:
Donation size
Year of Donation
CAMACHO, VALERIE J
ADAMS, R.
M/O SEZER VS SEZER
$3,028.03
2006
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O KASANA VS KASANA
$512.50
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$300.00
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O GALLO VS GALLO
$189.58
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O GALLO VS GALLO
$233.33
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O PFEIFFER VS PFEIFFER
$343.76
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O PFEIFFER VS PFEIFFER
$229.16
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O PFEIFFER VS PFEIFFER
$239.58
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O GALLO VS GALLO
$612.51
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O PFEIFFER VS PFEIFFER
$250.00
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O PFEIFFER VS PFEIFFER
$718.76
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O PFEIFFER VS PFEIFFER
$166.67
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$175.00
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$187.50
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$400.00
2005
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O VALENTINO VS VALENTINO
$225.97
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$75.00
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$697.50
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
MCPOLIN VS MCPOLIN
$791.67
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
M/O VALENTINO VS VALENTINO
$83.33
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$917.25
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$25.00
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$512.50
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
MCPOLIN VS MCPOLIN
$395.83
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$462.50
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$364.94
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
DESIMONE VS. YODICE
$37.50
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
MCPOLIN VS MCPOLIN
$20.83
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
OMDAHL VS OMDAHL
$383.34
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
OMDAHL VS OMDAHL
$100.00
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
OMDAHL VS OMDAHL
$500.01
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
MCPOLIN VS MCPOLIN
$166.67
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
OMDAHL VS OMDAHL
$416.67
2004
Barbara Panepinto
$750
2006
CAMACHO, VALERIE J
ADAMS, R.
MCPOLIN VS MCPOLIN
$125.00
2004
Barbara Panepinto
$750
2006
CONIGATTI, THOMAS R
ADAMS, R.
M/O CENTANZO VS CENTANZO
$945.00
2004
Barbara Panepinto $125
$375
2006
GARRIGAN, KATHLEEN M
ADAMS, R.
KIMBERLY J. NICASTRO VS. JAM
$1,531.00
2005
Barbara Panepinto $125
$125
2006
GARRIGAN, KATHLEEN M
ADAMS, R.
M/O FIGUEROA VS FIGUEROA
$1,620.00
2005
Barbara Panepinto $125
$125
2006
GARRIGAN, KATHLEEN M
ADAMS, R.
A CORRIERE VS C. CORRIERE
$2,435.11
2005
Barbara Panepinto $125
$125
2006
GARRIGAN, KATHLEEN M
ADAMS, R.
S. LANZA VS A. LANZA
$2,841.37
2005
Barbara Panepinto $125
$125
2006
KONKA, VEERA V
ADAMS, R.
M/O K. SQUILLARO VS G. SQUIL
$6,450.00
2007
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
M/O K. SQUILLARO VS G. SQUIL
$6,450.00
2007
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
GDNP ROMANO VS BENJAMIN
$2,887.75
2006
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
M/O LOGATTO VS LOGATTO
$1,875.00
2005
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
M/O RIVERA VS ROMAN
$1,522.50
2005
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
M/O EUGENE VS EUGENE
$1,837.50
2005
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
MIGNOSI VS ROMAN
$2,000.00
2005
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
M/O LICATA VS. LICATA
$1,582.50
2004
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
DEXTER VS DEXTER
$1,537.50
2003
Barbara Panepinto $125
$100
2006
KONKA, VEERA V
ADAMS, R.
DEXTER VS DEXTER
$727.50
2003
Barbara Panepinto $125
$100
2006
LEDERMAN, PHYLLIS R
ADAMS, R.
SIDNEY RUBINFELD VS. NAN RUB
$5,410.00
2006
Barbara Panepinto $125
$250
2006
LEDERMAN, PHYLLIS R
ADAMS, R.
SIDNEY RUBINFELD VS. NAN RUB
$100.00
2003
Barbara Panepinto $125
$250
2006
LEDERMAN, PHYLLIS R
ADAMS, R.
V. CARDIERI VS S. CARDIERI
$1,090.00
2005
Barbara Panepinto $125
$250
2006
LEDERMAN, PHYLLIS R
ADAMS, R.
V. CARDIERI VS S. CARDIERI
$390.00
2004
Barbara Panepinto $125
$250
2006
LEDERMAN, PHYLLIS R
ADAMS, R.
BENNETT VS BENNETT
$349.50
2004
Barbara Panepinto $125
$250
2006
LEDERMAN, PHYLLIS R
ADAMS, R.
BENNETT VS BENNETT
$724.50
2003
Barbara Panepinto $125
$250
2006
MORISANO, ANTHONY J
ADAMS, R.
M/O MILDRED AZRAK VS C. AZRA
$930.00
2006
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
M/O L. PALUMBO VS SAL PALUMB
$795.00
2006
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
M/O BLENDER VS SORKIN
$2,595.00
2006
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
M/O SMITH VS SMITH
$3,630.00
2006
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
M/O PRINCIPE VS PRINCIPE
$2,500.00
2005
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
J. RUANE VS P. RUANE
$10,326.00
2005
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
IANNUZZO VS. IANNUZZO
$3,675.00
2005
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
TUMMINIA VS. TUMMINIA
$6,280.00
2004
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
VITACCO VS VITACCO
$2,216.60
2004
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
J. RUANE VS P. RUANE
$2,266.00
2003
Barbara Panepinto
$450
2006
MORISANO, ANTHONY J
ADAMS, R.
M/O RAVKIN VS. RAVKIN
$3,885.00
2005
Barbara Panepinto
$450
2006
NEWMAN, MITCHELL P
ADAMS, R.
M/O KEANE VS KEANE
$2,587.50
2006
Barbara Panepinto
$125
2006
PANNITTO, ROSA A
ADAMS, R.
M/O K SANTIAMO VS PEGGY A GA
$1,380.00
2006
Barbara Panepinto
$100
2006
PANNITTO, ROSA A
ADAMS, R.
M/O K SANTIAMO VS PEGGY A GA
$4,140.00
2006
Barbara Panepinto
$100
2006
PANNITTO, ROSA A
ADAMS, R.
M/O GALLO VS GALLO
$3,442.00
2006
Barbara Panepinto
$100
2006
PANNITTO, ROSA A
ADAMS, R.
M/O P F SMITH VS N H. SMITH
$510.00
2006
Barbara Panepinto
$100
2006
PANNITTO, ROSA A
ADAMS, R.
PRINZI VS. TARANTO
$4,066.65
2004
Barbara Panepinto
$100
2006
SAMPEL, JAMES J
ADAMS, R.
CASTELLOTI VS. CASTELLOTI
$3,250.00
2003
Barbara Panepinto
$125
2006
BERK, MARC A
ADAMS, R.
M/O DIAZ VS DIAZ
$9,570.00
2006
none
$0
BERK, MARC A
ADAMS, R.
M/O GRANBERG VS. GRANBERG
$7,282.50
2006
none
$0
LEE, CYNTHIA A
ADAMS, R.
M/O KERRI DICERBO VS DEAN DI
$1,500.00
2006
none
$0
O'HALLORAN, BRIAN S
ADAMS, R.
M/O PAK VS PAK
$1,665.00
2005
none
$0

RAYMOND POWERS - JUDGE NICHOLAS COLLABELLA'S LAW SECRETARY

2007-08-11T16:09:00.000-07:00

Corruption in the White Plains Courts-
‘Everybody Loves Raymond”
Martinelli Publications
By Dan Murphy

Here is a chilling letter from one of our readers, which highlights her difficulties in theWestchester Court system.

“My ex-husband is Raymond Powers - the Law Secretary for Judge Nicholas Collabella, NYS Supreme Court. Thanks to Ray’s political connections, I am the victim of the power abuse in our divorce courts. “When Ray asked for divorce, he refused to leave our home. He spent the next eight months stealing my files and taking them into the courthouse. Ray rifled through my bags at night, and when I finally caught him in the act, Ray threw me into a wall. “Judge Edlitz removed Ray from the house - I got an order of protection after going through the process legitimately for two days. Ray countered by walkinginto Frank Nicolai’s office and immediately getting a counter order from Frank with no hearing, no evidence, no court reporter present, etc.
“Ray threatened to take me to trial with this order and put our kids on the stand if I didn’twithdraw mine.

I had no choice - no judge was going to go against an order from the administrative judge. Also, Frank never entered his order into the county clerks system. I complained to Lenny Spano about Frank’s cover-up; Len ignored me, too.
“Ray demanded a forensic psychologist be appointed in our case. Our judge, Will Sherwood, told us two months before he actually made the appointment that if he was to appoint forensics, he would appointDr. Pepper (yep, correct name!). I thought it was oddthat Sherwood told us who in advance. “I didn’t realize that he was giving Ray a headsup. Ray took this advance notice and pulled forensic cases from the courthouse to study this psychiatrist. Ray inadvertently faxed me a letter pertaining to a forensic evaluation he removed from the courthouse - the fax has his home fax number on top! This concerneda Dr. Popper assigned to a case for Judge Tolbert. (Ray probably misspelled the name in his Lexis search, but its close enough to be obvious as to exactly whathe was doing here).

“Ray had no authority to have this report – he works in civil, not matrimonial, and this wasn’t his case! I complained to Frank Nicolai that Ray, having these reports, gave him an advantage that any other litigant would not have. Second, I reminded JudgeNicolai that forensic information pertains to psychological analyses and are governed by HIPPA privacy laws. I even documented to Jonathan Lippman about the dangers of removing court documents and the exposure for disaster recovery of removed documents.Yet again, I was completely ignored.“I worked part-time for over 13 years in order to take care of our children. When Ray filed for divorce, he changed his work schedule to leave every day at 2:30 p.m. - to set himself up as a model Mr. Mom to contest custody and reduce his child support payments(a tactic that was rewarded!).

Ray’s abbreviated workday is with the full consent of Nick and Frank even though Ray’s $120,000 annual salary has not beenreduced in the slightest.“For the last 4 years, Ray has used the courthouse as his private office. I have faxes, emails, and phone calls from him sent on court equipment on taxpayers time. He makes copies of deposed documents and printouts using taxpayersequipment.“I complained to OCA, the NYS auditors, and the Inspector General about this unfair advantage and abuse - they ignored me. I calculated that this, and Ray’s abbreviated hours, have cost the taxpayers over $100,000! Judge Collabella even gave Ray his $3,000courthouse laptop to take home for his personal use.

“Judge Horowitz has stated that judges talk to each other about their cases. Unfortunately, I’ve heard those conversations, even in my own home whileentertaining members of the Courts. I am well award my divorce is subject to water-cooler gossip in the courthouse. So is Ray.“Ray has spread rumors about me that I am crazy and he has to get custody of our children for their safety. He knows such statements will eventually find their way to the judge on our case and the courthouse employees.“I tried filing again in Family Court this July and managed to get an initial hearing in August.

Ray responded by filing three counter petitions in Family Court, three motions to dismiss in Family Court, four motions in the Appellate Division, and one motion inSupreme Court. He spread his legal assault against me out among three different courts to hide the cumulative impact upon me.
“All of my responses were due at the same time - an impossible feat. And my latest request to Family Court for a follow-up hearing to present my case wasjust denied again. I called the court clerk to plead my case, she refused to allow me a hearing.
“Les Adler once laughed in my face and admitted to me that everybody loves Raymond. Not only can I not get a hearing in court, even if I could afford an attorney, I cannot hire them. The local lawyers all have cases before Ray and they know that Nicky doesn’twrite his own decisions, Ray does. As one lawyer admitted to me - to take my case would be politicalsuicide. They won’t risk their other clients for me.

“I asked to get my case transferred out of the district - Frank merely transferred it to Rockland, where the majority of the judges are from White Plains. Any transfer within the 9th district is worthless due to all the incestuous political connections. The Republican judge on our case, Will Sherwood, is up for reelection next year.“When NYS set up the matrimonial commission last year to investigate problems in the system, I applied to speak to this commission. Judge Miller, Ray’s coworker in White Plains, denied my request. This commission was smoke screen. It had no litigantsassigned to it!

“I spoke to Judge Ratner about the problems my children had with their Law Guardian (Kim Rayner) who wasn’t advocating for them. Judge Ratner agreed my teens were old enough to speak for themselves and advised me to have them write to the judge directly.Kim said their letter must have been coerced and charged me, with Ray’s help, with child abuse. Kim worked on Will Sherwood’s campaign. When he appointed her, he never put an hourly rate in the order so she set her own at three times the going rate (I found anappellate case where Will and Kim did this before). I was warned not to go up against a Law Guardian, a warning which proved true. When I dared question her bills, she filed a motion charging me with child abuse.“I cannot get my case to settle even though my ex is handling his own legal work and blatantly using the court system facilities as if they were his own. In 4 years I have incurred $160,000 in legal fees and over $100,000 in other debts and have lost my job twice. Yet I was not awarded sufficient legal costs to level the playing field.

“Ray has managed to get court orders contradicting our custody ruling - he once hadit overturned five times in as many months. Ray even got a court order the day before Christmas break taking my kids away from me for the holidays - he used our son to serve this order and the courts ignored this illegal act.“Even though I have lost my job, I have still not been awarded full child support. At one point I was only given 6% of Rays income even though the NYS formula calls for 25% for two children. But most amazing of all, in the middle of this divorce, Ray gotthe judge to force me to take out an equity line against our home for $75,000 - I took my share and paid some of what was owed the Law Guardian.

“Ray took his share and paid off his dating expenses on his credit cards. Sherwood then ruled that since I was living in the house, I should make the full payments on the equity line. I am now court order to pay the costs of Ray’s adultery!“In short, I am the victim of power abuse. Unfortunately I’m not the only one. A local lawyer told me he recently had a battered client who opted to go back to her abuser rather than continue to face the courts. Our system is so bad that women would rather be beaten physically than be battered in court.
“I also have a list on my home computer of lawyers and Republican Party contributors appointed by Ray with the help of Nick, to help handle cases.

If you wish to speak to me about this, or want a copy of what I call the kickback list, you can reach me,”Catherine Wilson.
The letter speaks for itself and is similar to many complaints we have been receiving over the past year about the handling of matrimonial cases here in Westchester. Perhaps it is time for any prominent female elected official to take a serious look at thisproblem.

JUDGE ROBIN GARSON

2007-08-11T16:07:00.000-07:00

Garson's wife may face rap on ethics
BY NANCIE L. KATZDAILY NEWS STAFF WRITER

Monday, April 30th 2007, 4:00 AM

The wife of disgraced Brooklyn judge Gerald Garson, who was convicted this month of accepting bribes for fixing divorce cases, could be soon facing her own legal problems, the Daily News has learned.

The state Commission on Judicial Conduct may begin investigating possible judicial ethical lapses by Robin Garson, a Civil Court judge, involving campaign funds and failing to report criminal behavior, a legal source said.

Her husband, 75, a former Supreme Court justice, was convicted on April 19 and faces up to 15 years behind bars at his sentencing on June 5.
"They decided to let the trial get over with, to let out what would be aired," said a well-informed source.

At Robin Garson's husband's trial, corrupt lawyer Paul Siminovsky testified that Gerald Garson asked him to solicit campaign contributions and provide free legal help for her 2002 judicial campaign.

In 2004, Robin Garson testified at a grand jury investigation of her husband's cousin, retired Supreme Court Justice Michael Garson, who was suspected of stealing thousands of dollars from his elderly aunt.
She said Michael Garson confessed to improperly taking $100,000 from his aunt Sarah Gershenoff. She also testified that a power of attorney the nephews used to pilfer Gershenoff's nearly $1 million fortune was forged, according to sources.

Robin Garson was Gershenoff's guardian at the time.
Ethical rules require judges to report criminal acts.

The commission is also reviewing a letter sent by the National Organization for Women about Robin Garson's behavior on the day of her husband's conviction.
The letter accused her of "exploiting her official status to obtain special privileges" at the trial, passing notes to defense attorneys and entering the courtroom through special doors reserved for officials.

Garson's lawyer, Richard Godovsky, dismissed the charges in the NOW letter.
"There is nothing against her," he said. "That's going to be clear."
The administrator of the judicial commission, Robert Tembeckjian, declined to comment, but confirmed the panel had received the NOW letter.
"We will deal with it as we deal with all complaints," he said.

Jailed Supreme Court Justice Gerald Garson

2007-08-11T16:02:00.000-07:00

Former Judge is convicted of bribery in Divorce Court
By MICHAEL BRICK Published: April 20, 2007

A former State Supreme Court judge was convicted yesterday of accepting bribes to manipulate the outcome of divorce proceedings in a case that led to a broad political and judicial corruption inquiry in Brooklyn.The judge Gerald P. Garson, 74, could face as many as 15 years in prison if he is sentenced consecutively on the three guilty verdicts, on bribery ain Divorce Court and two lesser charges. The jury acquitted him on four other counts after a four-week trial in State Supreme Court in Brooklyn.In his roughly five years on the bench in Brooklyn, Mr. Garson handled nearly 1,100 matrimony cases, making decisions on child custody and financial matters. In finding him guilty, the jury endorsed the prosecution theory that he had an agreement with a divorce lawyer to take cash, dinners and cigars in exchange for courtroom assignments and favored treatment.The verdict was a significant victory for the Brooklyn district attorney Charles J. Hynes, and for his chief of investigations, Michael F. Vecchione, a high-ranking assistant district attorney who prosecuted Mr. Garson as part of their larger corruption inquiry.

Outside the courtroom, Mr. Vecchione said the case had put public officials in the borough on notice. “I’m not sure there was any further message that needed to be sent, other than people need to do what’s right,” Mr. Vecchione said.He told reporters that the jury was probably swayed by surveillance recordings that showed Justice Garson doing “the things he did behind closed doors, and now it’s out in the open.” Mr. Garson, who is undergoing treatment for cancer, showed no reaction to the verdict and left the courthouse without comment. His lawyer, Michael S. Washor, said he would appeal.

“We’re disappointed with the verdict,” Mr. Washor said, adding, “It’s very painful, both emotionally and physically.”Mr. Garson was first charged in 2003, along with the divorce lawyer, Paul Siminovsky, as well as one of his clients, a court officer, a former clerk and a man described as a fixer. All six were charged with felonies.The case immediately reverberated throughout Brooklyn, from playpens and dinner tables to the upper echelons of politics. Divorce cases were reopened. Judges feared that their offices were wired for surveillance.

The system of nominating judges was ruled unconstitutional.The longtime Democratic Party leader, Clarence Norman Jr., who helped place Mr. Garson on the bench, was convicted on corruption charges and now faces jail time. Acting on statements Mr. Garson made when confronted with the evidence against him, Mr. Hynes vowed to expose a system in which judgeships were for sale, a charge he has yet to show.As the minor participants in the case pleaded guilty or were convicted, some agreeing to cooperate with prosecutors, Mr. Garson was suspended from the bench and eventually resigned.

Last year, he rejected an offer to plead guilty to two minor felonies in exchange for a 16-month sentence in a local jail, where he might have received treatment from his own doctors.After years of delay while a pretrial ruling was appealed and Mr. Garson sought medical treatment, the trial began last month in an outsized ceremonial courtroom in Downtown Brooklyn. The spectacle of a judge on trial — a matrimonial judge, no less — drew a sizable audience of lawyers, judicial officials and aggrieved divorcées.Prosecutors used financial records and video surveillance recordings to buttress testimony from the divorce lawyer, Mr. Siminovsky, who had pleaded guilty to a misdemeanor in exchange for his cooperation.

In the recordings, Mr. Siminovsky was seen relaxing in the judge’s robing room and handing over an envelope full of cash. In court, he recounted entertaining the judge with drinks and meals in exchange for favorable treatment.In his closing statement for the prosecution, Mr. Vecchione said on Tuesday, “Supreme Court Judge Gerald Garson became corrupt Supreme Court Judge Gerald Garson, disgraceful Supreme Court Judge Gerald Garson, disgraced Supreme Court Judge Gerald Garson.”The defense lawyer, Mr. Washor, portrayed Mr. Siminovsky as the architect of a scheme to manipulate the judge, turning on Mr. Garson and setting him up after his arrest.“He deliberately lied to you,” Mr. Washor told the jury in his closing statement.

Turning to the prosecutors, he added, “And he did so to curry favor with these gentlemen here.”Jurors deliberated for a day and a half. At mid-day yesterday, they sent out a note asking for clarification of the requirement for unanimity. They were considering one count of bribery in the third degree, a class D felony, and six counts of receiving a reward for official misconduct in the second degree, a class E felony. The lesser counts related to specific acts, while the bribery charge encompassed a pattern of behavior.Around 5:30 p.m., the jury foreman, a young man in a T-shirt and gold chain, stood and announced the verdict.Mr. Vecchione, who was assisted on the case by three assistant district attorneys, Bryan Wallace, Joseph Alexis, and Seth Lieberman, turned to the gallery and gave a thumbs-up sign.Mr. Washor, who during the trial repeatedly insulted and baited Mr. Vecchione, turned to the prosecutors and said, “Congratulations, gentlemen.”Mr. Vecchione asked the judge overseeing the case, Jeffrey C. Berry, to order Mr. Garson held without bail.

Mr. Washor argued that Mr. Garson had attended his court dates faithfully and was due in a doctor’s office today. Assured that Mr. Garson had turned over his passport to prosecutors, Justice Berry allowed him to remain free on $15,000 bond and ordered him to report weekly to probation officers. Then he turned to the defendant.“Gerald Garson, kindly stand, sir,” Justice Berry said.Taking his lawyer’s arm, Mr. Garson rose slowly but steadily to his feet. Justice Berry warned him to abide by his bail conditions and to report for sentencing on June 5.Outside the courtroom, Mr. Garson was hurried away by family members and supporters.

“Finally, we have justice,” said Frieda Hanimov, whose divorce case was handled by Mr. Garson and who wore a surveillance device to collect evidence against him. Adding that she and other victims were planning civil lawsuits, she said, “Now hopefully they’re going to learn and realize we have corruption everywhere.”

MISGUIDED BLACK ROBE - JUSTICE SILBERMANN

2007-08-11T15:56:00.001-07:00

THURSDAY, MAY 24, 2007 VOL. I NO. XXXXII Westchester’s Most Influential Weekly
Debra Weissman v Ronald H. Weissman

May 17, 2007
Debra C. Weissman
Armonk, New York 10504
Justice Jonathan Lippman
Chief Administrative Judge
Justice of the Supreme Court
New York State Supreme Court
Westchester County Courthouse
111 Martin Luther King, Jr. Blvd.
White Plains, New York 10601
Re: Emergency Request for Criminal Investigation Regarding Judge Silbermann’s Unethical Interference and infl uence over Judge Scarpino’s Judicial Authorities

I am writing you an open letter requesting that you intercede in a criminal activity that is currently taking place in the Matrimonial Part of the Westchester Supreme Court. I am requesting that you place a temporary stay on all of my pending proceedings in front of the lower and appellate court until we can meet and you can hear the tapes that I have regarding Justice Silbermann’s interference by inappropriately contacting and directing the honorable Judge Scarpino as to how to proceed. I am requesting that you handle the investigation because Judge Silbermann reports directly to you and we are no longer dealing with unethical referees but one of the highest judges in our court system. I sent Judge Silbermann a letter last week before I realized that she, not Judge Scarpino, was the culprit.

Aft er you hear my tapes, you will agree that she must be handled immediately and must refrain from intimidating judges who are overseeing my case. You are well aware of my case, in which you intervened more than two years ago, when my attorneys contacted you regarding the former Referee Montagnino’s unethical behavior toward me, a battered wife and ward of the Court. His rulings against me were so blatantly biased and egregious that I was forced to fi le a grievance against him in the latter part of 2004. When my attorneys accused him of having ex-parte relationships with Mr. Joel Bender, the defendant’s attorney, during my entire matrimonial proceedings, he had the audacity to sanction us approximately $70,000 for even broaching the subject in open court. For getting too close to the truth, I was punished while my ex-husband was granted an illegal Conversion Divorce without a grounds trial, and was allowed to retain 99% of the marital assets worth over $30 million dollars.
Fast forward to March 28, 2006, when Mr. Bender fi nally admitted under oath that he did have many meetings with James Montagnino and his wife because of his desire to become a Supreme Court Judge. Now, more than 3 years later, I have spent over $100,000 in legal fees trying to rectify the fi nancial damage done by these two co-conspirators, the former Referee Montagnino, and Mr. Bender, that transpired throughout the divorce proceedings.

I am experiencing déjà vu. However, this time it is with the head of the matrimonial division of the New York State Supreme Court, Jacqueline Silbermann, Judge Scarpino, and the unethical Mr. Bender.

As occurred in January 2005 when I had indisputable evidence regarding their ex-parte relationship, which they both denied, I now have evidence that Judge Silbermann has actually interceded in My Judicial Misconduct Motion by contacting and instructing Judge Scarpino not to decide my case, which, in essence, is a ruling in my ex-husband’s favor. Th e law fi rm of Bender, Jenson & Silverstein, LLP, and the former Special Referee have blatantly ignored the law, ethical mandates, and evidence of fraud committed by the defendant with his legal representatives.
One can only surmise Judge Silbermann pressured him this way because of her personal, long-time relationship with Mr. Bender. How disingenuous could a head ofmatrimonial matters, who is at the end of her career, be? She seems willing to not only destroy her career for the sake of a corrupt attorney, but also, far worse, attempt to ruin Judge Scarpino by unethically interfering with his judicial decision-making powers. I was contacted by diff erent sources who all informed me of her actions. At fi rst I did not believe it, but it was reconfi rmed. Please be advised that I have recorded their stories because I wanted to have proof of Judge Silbermann’s unethical behavior, knowing full well that no one would believe this. What makes it so appalling is that if my case, given all the publicity it has received, can be fi xed by the head of the matrimonial division, how many others were also fi xed?

To the public she touts herself as an advocate for victims of domestic violence, but nothing could be further from the truth. Although I never intended to confront Judge Silbermann given all of her power and infl uence, I feel I have no other choice. I am not going to spend the rest of my life in poverty and
shame as a result of the corruption that presently exists in the Matrimonial Part of the Westchester, Supreme Court. I do not deserve this type of treatment and I have always acted with dignity and respect to everyone I have encountered in the court system.

The CPLR mandates that newly discovered evidence be presented to the court in which the judgment being challenged originated. My attorneys and I have adhered to the letter of the law in every aspect of this litigation, but continue to have to fight against opposing counsel and the judges who are presiding over this case, who themselves fail to follow the law they have taken an oath to uphold. My September, 2006 motion asking the court to address the newly discovered evidence, resulted in
a decision where everything but the newly discovered evidence was addressed. Judge Scarpino’s attempt to avoid actually making a decision on the clear and convincing evidence is almost too incredible to believe, but could easily be explained if he was unduly infl uenced by his boss, Judge Silbermann. His attempt to “punt” and avoid having to actually address the fraud, misconduct, lying, and cheating which are pervasive and obvious can only lead to one logical conclusion.
Judge Scarpino has just recently accepted my ‘Motion to Reargue’ to address the fraud and misconduct committed by the defendant, the defendant’s attorneys and the former Referee Montagnino, but instead of allowing me to obtain the relief from their fraud and misconduct and allowing me to uncover additional documentation and provide the fi nancial relief I desperately need, and am entitled to, he rewards the defendant and his attorneys by striking any items of relief by allowing the defendant to be in contempt of court for the past 6 years.

Among the items of fraud that need to be addressed are millions of dollars of real estate and other
financial investments the defendant has been allowed to control and shift in his continuing eff orts to defeat any equitable distribution of the marital assets which I actively participated in accumulating. Specifi cally, Judge Scarpino is allowing the defendant, Dr. Ronald Weissman to continue to hide assets by striking from the motion the following:

• Th e purchase of a commercial building located at 15 North Broadway, White Plains, which was in the process of being purchased, with my active participation and marital assets.
• Money taken, in the form of a loan, from a marital investment account in Merrill
Lynch (850-19D82), which was never repaid, and was used as an initial payment for the property at 15 North Broadway.
• Failed to allow tracing of almost a half million dollars in investment accounts which were never disclosed in any Statements of Net Worth or any other documents.
• Address the misappropriation of the defendant’s contents of a Merrill Lynch (850-88808) IRA account in the amount of approximately $300,000.
• Address the failure of the defendant to provide life insurance in the amount of $1.8 million to cover payments due plaintiff .
• Address the fact that the defendant is conspiring with his insurance agent to provide false and misleading documents to the Court to show compliance with the requirement to provide life insurance to the plaintiff when, in fact, he has actually named someone else as the beneficiary.

One need only read the series of court papers submitted in my most recent attempt to have the Westchester Supreme Court address the misconduct and fraud committed by the defendant, the defendant’s attorneys and the former Special Referee, to be able to see, without a doubt, that the defendant had this case fi xed. Each and every allegation listed above of fraud and misconduct is not only backed up with evidence, but the evidence includes sworn statements by the guilty parties themselves, Mr. Joel Bender and former Special Referee James Montagnino. It is abundantly clear that the defendant’s attorneys have conspired with judges to obtain favorable decisions.

Judge Scarpino was brought into the Matrimonial parts last spring following an investigation by the Offi ce of the Inspector General of the bias and misconduct on the part of the former Special Referee Montagnino of which I was one of the leading complainants. For thirteen months (from January 2005 until the end of March 2006), my attorneys had attempted to elicit the truth from the defendant’s attorney, Joel Bender, and the former Referee Montagnino and have them admit to an improper ex-parte relationship which they had engaged in during the time of my divorce proceedings.

It was not until months aft er the judgment was entered, and my papers had been submitted to the Appellate Court, that Mr. Joel Bender fi nally admitted, while under oath, to the truth of his relationship with the former Referee. With this newly discovered evidence, my attorneys and I submitted a motion to Judge Scarpino to have him rule on the fraud and misconduct which was fi nally admitted by Mr. Bender. However, Judge Scarpino, denied my judicial misconduct motion
by stating that the relief being sought was the same as that which was pending before the Appellate Court despite the fact that almost 99 percent of the motion requested Judge Scarpino to address the newly discovered evidence of fraud and misconduct.

In his decision, Judge Scarpino skirted around the issue that underlies the integrity of the entire legal proceeding and addressed everything else. While the relief sought in the motion may have been the same as that which is before the Appellate Court, the facts, supported by the evidence he had before him, were not available at the time the appeal was perfected and could not have properly been included in the appeal since
SPECIAL Court Report ...cont’d from pg. 1
PAGE THE WESTCHESTER GUARDIAN THURSDAY, MAY 24, 2007
it had never been presented to a lower court to rule on. Judge Scarpino knew it was not possible in terms of the sequence of events, for the issue of ex-parte communications, meetings, etc. between the former Referee Montagnino and the law firm that represented the defendant to be included in my appeal. Mr. Bender and Montagnino conspired and intentionally concealed their relationship until Mr. Bender, who was taken by surprise at a sanction hearing and placed under oath, was finally forced to
reveal the truth after concealing it for months. The issue of these meetings between Mr. Bender and former Referee Montagnino are significant for several reasons. These ex-parte meetings took place during a period that Mr. Bender was appearing in front of former Referee Montagnino involving contested matrimonial cases. These meetings took place in Mr. Bender’s offices after hours. It
is mandatory that these types of meetings be brought to the attention of those who appear
in front of a Judge or hearing officer to insure that if a party feels they may be prejudiced by the relationship they can have the official recused. Not only was the relationship not presented by those individuals, but they intentionally concealed and lied about there being any ex-parte communication when directly questioned. Further, the purpose of these ex-parte communications was intended to support the former Referee Montagnino in his well-known attempt to obtain a nomination to become a Supreme Court Judge. Additionally, it was only after October 9, 2006 in his own affirmation that Mr. Bender finally confessed to having these clandestine meetings, but added details incriminating several other prominent Westchester attorneys also having meetings by naming names.

It was only after the damage was done and the defendant had obtained an illegal conversion divorce, was able to obtain all the marital assets and all the other assets he had hidden from me, tricked me, and manipulated the legal proceedings forcing me into an unconscionable stipulation (a stipulation which was clearly intended to have been formalized by a written agreement) that the former Referee Montagnino made me a ward of the Court. Another unbelievable act which was meant to further control and destroy me was to instruct his hand-picked court-appointed guardian to take the
limited funds that I received from the defendant and put them in trust to be dispersed with the assistance of the defendant. How corrupt is that?

Facts About My Case
I initiated my matrimonial action against my ex-husband, Ronald H. Weissman, MD following 25 years of abuse including many brutal physical beatings. The most serious of these beatings occurred in August 1998 when the defendant, punched me repeatedly in the face with such force that my brain was thrust against the inside of my skull many times, with such severity that he ruptured -literally ripped apart- the bridging veins between my cortex and my venous sinuses. The defendant, in an attempt to coverup this beating, began treating me as a patient, put me to bed, prescribed and administered medications which were contraindicated and failed to summon emergency medical
attention or to notify my own personal physician. As a direct result of the trauma, I suffered several strokes, which further weakened me physically and added to the damage caused during the beating. The strokes prevented part of my brain from getting the blood and oxygen needed thereby causing part of it to die. Only belatedly did I receive medical treatment, and that was only when a friend came by the house several weeks later and demanded that I be taken to the hospital immediately.

I have provided to the Court certified medical records of over 1,000 pages from three nationally recognized medical centers which have certified that my medical diagnosis is that of Traumatic Brain Injury. These certified records also contain admissions by the defendant, Dr. Ronald H. Weissman, that the cause of my Traumatic Brain Injury was the beating which he alone had administered. Despite the voluminous documentation and undisputable written proof by physicians and by independent medical providers, the defendant, the defendant’s attorneys and the former Referee continue to deny
that there was ever any spousal abuse, and that I suffer from Traumatic Brain Injury.

The certified proof I have submitted establishes that the defendant and his attorneys are liars. They must be held accountable for their intentional misrepresentation of the facts and the abuse I have been subjected to by the Court for the past six years, and they must be disciplined for years of malicious conduct which is unbecoming Officers of the Court. Every statement, every allegation I have made can be supported by written, certified, evidence. Every piece of evidence has been in both the Matrimonial Division of the Westchester Supreme Court, and the Second Department of the Appellate Division since 2001. The only ‘evidence’ the defendant and the defendant’s attorneys have to
present is his “denial” that there was ever any spousal abuse.

Yet, despite all the evidence and all the motions and court proceedings, the former Referee Montagnino and many of the former matrimonial judges have found ways to have ruled in the defendant’s favor at every opportunity they could. The have allowed him to control, from day one, over $30 million of marital assets. They have allowed him to submit almost blank Net Worth Statements from 2001 to the present. They have refused to prevent him from moving or selling assets which he continues to do in an obvious attempt to prevent their tracing. The defendant continues to buy major Westchester real estate properties and distributes our marital wealth unilaterally to others (See attached). All of these “Officers of the Court” continue to ignore the 800- lb. gorilla in the room, of a victim of spousal abuse who has been left with permanent physical and brain injuries as well as the testimonies from legal and medical experts/ institutions on domestic violence. The former Referee Montagnino has gone so far as to ignore his own hand-picked law guardian’s findings and recommendations and has actually accused me of making up this diagnosis in anticipation of my matrimonial action (Please see attached two decisions and orders dated 11/2005.)

Defendant’s brutality against me robbed me of a life and career that I worked my entire life to obtain. Despite the years of abuse, I was a dutiful wife and mother and worked hard to improve my husband’s career and our family’s life. In a cruel brutal and clearly criminal instant, my life was taken away from me. I will never be able to accomplish the goals I had aimed for in my life. While the defendant reaps the benefits of our marriage, I am left to face an uncertain future with serious physical disabilities and brain injury. I will never fully recover from the injuries I suffered. The defendant and his attorneys continue to mischaracterize and misrepresent, in a demeaning and disrespectful manner, the disability I suffer and the cruel and unconscionable treatment they have subjected me to during this litigation. Instead of obtaining the assistance of the courts to allow me to end an abusive marriage and leave with sufficient assets to be able to take care of myself and obtain the medical care I still desperately need, I have had to endure six years of fighting through the fraud and corruption with seemingly no end in sight.

My sources have informed me that Judge Scarpino will allow me to sell the house but put the proceeds in escrow and yet not direct that the defendant place $30 million in escrow as well. How fair is that? According to the fraudulent outline of settlement placed on record, I already have the right to sell the house but for the fact that the defendant sued my former realtor and by doing so, terrorized every other realtor in Westchester. It is not bad enough that I can’t get on with my life but that the courts
support my ex-husband in his actions that clearly violate the law. While this is going on, I am still responsible for paying my own legal fees although there is a clear disparity between the income levels of the defendant and myself. Instead of taking the judicial action this case calls for, in fairness and equity, and considering the years of abuse, and the fraud and misconduct which the defendant and counsel have carried on for over six years, Judge Scarpino suggested that I file a Plenary Action to obtain relief. This is quite upsetting given the fact that I can’t afford to pay for my own medical
coverage, and this action would be another legal expense, another waste of judicial resources
and would give the defendant more time to continue his lavish lifestyle while manipulating
the marital assets and blocking me from getting the proper medical attention I still need. I want to be able to plan for my future which now includes planning on how to manage with a severe disability.

You should be outraged that as a battered wife and a ward of the Court, Judge Scarpino did not afford me the legal protections mandated by state and federal laws and constitutions. Additionally, Judge Scarpino has failed to replace the Guardian Ad Litem who personally told me she was withdrawing because she could not deal with Mr. Bender’s unethical shenanigans, thus denying me the ability to have equal access to the courts and be able to protect myself and my property. Although this case is in Judge Scarpino’s hands, he is apparently being coerced by Judge Silbermann to not rule, but to defer a decision until the Appellate Court rules on the separate issues before it. As a Judge in the Supreme Court of New York State, he has a responsibility to follow the rules, laws and Constitutions of both New York State and the United States. It is his responsibility to protect those individuals who need protection. In this case, I not only need the protection of the Court, but sought it out. It is now time for
Judge Scarpino to do the right thing and rule on the evidence he has before him. A review of the papers the defendant and defendant’s counsel have submitted do not address the issues of fraud and misconduct that the plaintiff motion papers go into detail describing. Why is it that Mr. Bender does not submit an affirmation denying the allegations? The reason the defendant’s papers do not address the issues in the motion is because they already know the outcome. Reading the Order to Show Cause that Judge Scarpino signed May 1, 2007, it is clear what the outcome of the proceedings will be.

I am asking you to immediately investigate the actions of the judicial personnel in my case who have denied my rights, continue to deny my rights, and continue to victimize me for what appears to be both a fear of doing the right thing, and an expectation that the unethical thing will be advantageous for them personally. I now turn to you and request that on behalf of all victims, that you do the right thing by addressing this blatant and unconscionable treatment of an abused spouse and send a
message in no uncertain terms to the judges and the attorneys and court personnel in Westchester that fraud, corruption, and brutality will not be tolerated.

Yours Truly,
Debra C. Weissman
cc: The Westchester Guardian
SPECIAL Court Report