MEMORANDUM
PRELIMINARY STATEMENT
As per Local Rule 28: Honorable George B. Daniels S.D.N.Y. District Judge ruled on Petitioner/non Removant's letter and/or Sua Sponte Dismissing a Notice of Removal (case # 08 Civ. 02431(GBD)(KNF)) from Defendant/Removant. Removant is appealing this final decision as well as Denied Motion to Renew/Reargue before said Judge. Original "Decision And Order" was filed on July 1, 2008 and timely appeal to the Second Circuit on July 30, 2008. Removant requests to inform the Court that instant case was Not Remanded by Judge Daniel's Order, but Dismissed (see Title 28 § 1447, requirements of Remand).
JURISDICTIONAL STATEMENT
Tenant, Respondent/Removant pro-se, brought this action pursuant to Title 28, Part IV, Chapter 89, § 1441(a)-(f). The state (New York) case removed was #071507/07, Kenmore v. Tenant. A decision only on the warrantee of habitability defense was decided by state jury, resulting in 62% abatement. The outstanding counterclaims and twenty five other defenses, for the most part federal, are waiting to be heard in district court. There was no final judgement as that decision was appealed to the Appellate Term, as advised in court by Judge Daniels. The Notice of Removal was served and filed well before the voir dire or the jury trial and the district court was informed by letter of the upcoming trial.
Mitskovski v. Buffalo and Fort Eire Public Bridge Authority
Removant requests review of dismissed removal, Kenmore v. Tenant with regard to Binding Precedent of Mitskovski v. Buffalo 435 F.3d 127, 2005 US App (2nd) 353. The Precedential Desision was argued on Friday, the 23rd of September, 2005 and Decided on January 11, 2006. The Jurisdiction was the Second Circuit. Sitting for the Court were Honorable Appellate Justices Jon O. Newman and Sonia Sotomayor and sitting by designation was Honorable George B. Daniels of the U.S. District Court for the Southern District of New York. Respondent/Removant acknowledges that instant case involves Dismissal, with no reference to Statute Authority or Common Law, nevertheless issues of timeliness of Sua Sponte and by motion Remands are most similar and precedential. Due to the Dismissal, no Remand, this case is by definition and without controversy appealable, unlike in Mitskovski v. Buffalo or James G. Hamilton, v. AETNA LIFE and Casualty Company 5 F.3d 642, 1993 US App (2nd) 390 under 28 U.S.C. .§ 1447(d). As for statement by the Court in Memorandum Decision and Order 08 Civ. 2431(GBD), " This Court neither has jurisdiction over this matter nor was the notice of removal timely filled", Removant understand this is the Courts reference to Respondent's contention in all legal papers to lack of personal jurisdiction over defendant. There was no Traverse hearing and this issue admittedly remains, but no subject matter jurisdiction lack was mentioned in dismissal, logically because of the infinite degree of federal subject matter jurisdiction. To start with, the subject property is owned by the People of the United States- please review UNITED STATES of America v.ALL RIGHT, TITLE AND INTEREST IN REAL PROPERTY AND
APPURTENANCES, thereto known as 143-147 East 23rd Street, New York, New York, Listed as Block 879, Lot 27, which includes the Kenmore Hotel, Defendants, Jude Hotel Corporation, Claimant-Appellant.77 F.3d 648. This issue was decided by Honorable Second Circuit Judges Van Graafeiland, Kearse and Miner, granting "All Right, Title and Interest" in subject property to the People, including Land Patents. Please review "A patent is the highest evidence of title and is conclusive as against the government and all claiming under junior patents or titles” U.S. v. Stone 2 US 525. The land patents remain with the People, which is without dispute, and an ongoing attempt to fraudulently convey "color of title" through un-notarized deed without consideration is a 18 U.S.C. § 371—Conspiracy to Defraud the United States offense. See also Morganrogh & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406 (3d Cir. (N.J.) 2002), wherein Petitioners (RICO) were convicted of unlawful attempt to convey property "color of title" in order to defraud and evade Court Order.
"Synopsis: This is by far the most egregious case of civil conspiracy in the body of law. This case really illustrates the fine line between an attorney giving counsel to a client, and the attorney’s outright illegal and unethical participation. In the case at bar, the plaintiffs, Morganroth & Morganroth, a Michigan law firm, and Mayer Morganroth, sued John DeLorean in a federal court in Michigan for legal services rendered over approximately ten years. The plaintiffs brought the instant suit against Norris, McLaughlin & Marcus, P.C., a New Jersey law firm, as well as Victor S. Elgort and Daniel R. Guadalupe its employees or affiliates, who represent DeLorean. Plaintiff’s complaint alleges that they actively, knowingly, and intentionally participated in their client's unlawful efforts to avoid execution on his property. In order to be successful under a claim for civil conspiracy one must look to see if there is an underlying tort to support the conspiracy claim. Mere agreement to do a wrongful act can never alone amount to a tort, whether or not it may be a crime. However, the court in this case held that the behavior of defendant law firm was so egregious that it did rise to the level of conspiracy."
TIMELINESS
Respondent filled Notice of Removal on March 10, 2008, significantly more than 30 days after Plaintiff filled case # 071507/07, as can be seen by the case number itself. It was even less timely regarding the still current Res Judicata, same cause of action and parties, case # 52851/06, which respondent is requesting be joined with instant case. It was also filed well prior to state jury trial and not "after final judgement was entered against the pro se defendant", which was appealed and thus not final. Defendant informed Court by letter sufficiently prior to said jury trial requesting action (removal to District Court). This letter was not acted upon. Judge Daniels signed appealed Order on June 26, 2008, 108 days after served and filled Notice of Removal, thus also untimely under 28 U.S.C. § 1447(c). Please review Mitskovski v. Buffalo and Hamilton, v. AETNA or Air-Shields, Inc. v. Fullam, 891 F.2d 63, 65 (3d Cir.1989).
MOTION
There was no motion or motions filled in District Court in the instant case
by Plaintiff. See Mitskovski v. Buffalo "a motion asserting a procedural defect must be . . . made within 30 days of removal, and a court of appeals may not delay the litigation by reviewing the grant of such a motion. In the same vein, a district court may not act to remand on its own motion more than 30 days after removal in the absence of a party's timely remand motion, and if it does so, a court of appeals may review and correct the improper remand.
The court did not state in appealed order(s) whether or not they were Sua Sponte.
CONCLUSION
While the innumerable Federal Subject Matter issues are admittedly complex, a competent Federal District Jury is requested. The issues before the Court today are simpler. Respondent/Removant is requesting review and reversal of Judge Daniel's Order. This will ensure defendant's Constitutional (Seventh Amendment) and Due Process rights. Reversal will not violate any Statute (see above) or Res Judicata as the District Civil Jury Trial should cover all non warrantee of habitability issues, including substantial counterclaims, non of which have been heard or tried by Triers of Fact. Respondent requests joining of actual Res Judicata, two identical cases filled by the RICO Enterprise, # 071507/07 and #52851/06, which is not dismissed. And for all other relief the Court deems just and appropriate. All rights reserved without prejudice U.C.C. § 1-308.
Dated: December 5, 2008 _________________________
Petitioners counsel: Tenant, Removant Pro se
Dean M. Roberts 145 east 23rd street
Norris Mclaughlin & Marcus New York, NY 10010
875 Third avenue Fl 18
New York, NY 10022
Tuesday, February 03, 2009
Monday, March 10, 2008
War Criminals
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART H
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KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE V
: JURY DEMAND
, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
Tenant, Respondent, sworn to on the 7rd day of March, 2008, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1164(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 11th day of March, 2008 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE and/or LIMITED
APPEARANCE be granted to challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Dismiss for Fourth CPLR §2214 Violation and Default (No Defense) of OMTDWP IV.
(4) Motion for Damages under 22 NYCRR §130-1 for continued Perjury and willful misrepresentation.
(5) Motion for Renewal/Reargument of February 21, 2008 Order and relevant
Motions under CPLR § 2221.
(6) Motion for Jury Fees to allow transfer of paid in fees from Index #52851/06
to index #071507/07 or additional payment (see att.).
(7) Motion to add Affirmative Defense(s)/Counterclaim(s) under Title 42 Chapter 21 Subchapter I § 1983, 1985, 28 U.S.C. § 1331,1332, 1343, Title 18 U.S.C. § 241 and numbered Federal Constitutional Defenses & Counterclaims,
separately Amendments I, IV, V, VI, VII, IX, X, XI, XIII, XIV.
(8) Motion to add Affirmative Defense/Counterclaim of Diminution of Services.
(9) Motion In Limine to strike Forged, Without Consideration, Undated,
Unwitnessed, Un-Notarized, Unverified, Unserved, No Chain of Custody, No
Foundation, Too Small Print, Under Duress (Illegally Evicted), Renewal "Lease"
as restricting on actual original lease, i.e. no lease.
(10) Motion In Limine to strike same as unconscionable "lease" clause(s) all
that restrict rights under original (no) lease, i.e. Rent Stabilization Laws etc..
(11) Motion To Allow Expert Witness to additionally prove RICO Forgery & small print Violation.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition with prejudice, granting
respondent's Motion(s) and for all such and further relief that this Court may
deem just and appropriate. All Rights Reserved Without Prejudice U.C.C. §1-308.
_______________________
, Respondent pro se
145 east 23rd street Petitioners counsel: New York, NY, 10010 Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated March 7, 2008
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE V
: JURY DEMAND
, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
Tenant, Respondent, sworn to on the 7rd day of March, 2008, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1164(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 11th day of March, 2008 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE and/or LIMITED
APPEARANCE be granted to challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Dismiss for Fourth CPLR §2214 Violation and Default (No Defense) of OMTDWP IV.
(4) Motion for Damages under 22 NYCRR §130-1 for continued Perjury and willful misrepresentation.
(5) Motion for Renewal/Reargument of February 21, 2008 Order and relevant
Motions under CPLR § 2221.
(6) Motion for Jury Fees to allow transfer of paid in fees from Index #52851/06
to index #071507/07 or additional payment (see att.).
(7) Motion to add Affirmative Defense(s)/Counterclaim(s) under Title 42 Chapter 21 Subchapter I § 1983, 1985, 28 U.S.C. § 1331,1332, 1343, Title 18 U.S.C. § 241 and numbered Federal Constitutional Defenses & Counterclaims,
separately Amendments I, IV, V, VI, VII, IX, X, XI, XIII, XIV.
(8) Motion to add Affirmative Defense/Counterclaim of Diminution of Services.
(9) Motion In Limine to strike Forged, Without Consideration, Undated,
Unwitnessed, Un-Notarized, Unverified, Unserved, No Chain of Custody, No
Foundation, Too Small Print, Under Duress (Illegally Evicted), Renewal "Lease"
as restricting on actual original lease, i.e. no lease.
(10) Motion In Limine to strike same as unconscionable "lease" clause(s) all
that restrict rights under original (no) lease, i.e. Rent Stabilization Laws etc..
(11) Motion To Allow Expert Witness to additionally prove RICO Forgery & small print Violation.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition with prejudice, granting
respondent's Motion(s) and for all such and further relief that this Court may
deem just and appropriate. All Rights Reserved Without Prejudice U.C.C. §1-308.
_______________________
, Respondent pro se
145 east 23rd street Petitioners counsel: New York, NY, 10010 Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated March 7, 2008
Satanic Criminal Political Corruption
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, (Tenant), Respondent in this Action, being duly
sworn, hereby depose and state: As to Motions 1 & 2 Respondent continues to deny Personal
Jurisdiction due to Specific Denial of Receipt and Demands continued Special and/or Limited
Appearance status. Respondent states no personal service attempt was made and no Certified
or Registered mailed copy of N. of P. & Petition was received and no regular (First Class) mailed
copy was received to this day. Jury Trial Demand is as of Right and it is within the power of a
Just Court to grant Trial on the Instant Motion (CPLR §2218).
As to Violation/Default of fourth straight CPLR § 2214 Demand Noticed within Omnibus Motion
to Dismiss with Prejudice IV by RICO, respondent Moves for Dismissal with Prejudice and
sanctions. Motions not answered are deemed stipulated to. (The law is clear...that 'failing to respond to a fact attested in the moving papers...will be deemed to admit it', Siegel, New York Practice, §281 (1999 ed., p. 442)- citing Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 599 (1975), itself citing Laye v. Shepard, 265 N.Y.S.2d 142 (1965), aff'd 267 N.Y.S.2d 477 (1st Dept. 1966) and Siegel, McKinney,s Consolidated Laws of New York Annotated, Book 7F., CPLR §3212:16. 'If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it' id. undenied allegations will be deemed to be admitted. Whitmore v. J. Jungman, Inc., 129 N.Y.S. 776, 777 (S.Ct, Ny Co. 1911)".
As to Motion for Damages, the RICO's continued abuse of the Court and/or respondent due to
its belief that we are under the Rule of Men and not Law("The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.") must be sanctioned. The amount of Perjury/Obstruction of Justice by the RICO is epic.
Respondent requests sanctions in both concurrent cases between parties based on identical
causes of action.
As to Motion to Renew/Reargue, Respondent must compliment the court for it's thorough and
erudite Order defeating any (prospective?) Motion to Strike Jury Demand. Respondent would
add Collateral Estoppel regarding previous decisions, by Judges Peter M. Wendt and Kevin
McClanahan, with the same award (see papers). The only problem(s) with the Jury Demand
Decision, though not in a way that would reverse or negatively affect that part of the Order, is with
the "Introduction" and "Factual Background". Respondent bases his Right to a Jury on State and
Federal Constitution and Statute and Common Law, not on Forged alleged "lease", which is, at
best, a Renewal Lease, as a Matter of Law, as Defendant was a longstanding tenant in 1997.
Respondent acknowledges signing a "Section 8" Lease Rider and nothing else was signed or
offered. The foregoing explains why and to what extent that "Rider" is in effect. The largest error
on the part of the Court involves ongoing Section 8 Fraud. The RICO, among its other ongoing,
Serial, Predicate Felony Crimes, is committing rampant Section 8 Fraud. Respondent prays the
court is not as indifferent to this merely additional ongoing Predicate RICO Felony(s) as the
instant RICO, and requests referral to appropriate Grand Jury or Investigator. Respondent
suggests review of Predicate Felony "by far the most egregious case of civil conspiracy in the body of law" Conviction (Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406 (3d Cir. (N.J.) 2002)(att.). As in the instant case, rampant Fraud and Forgery of documents
took place by the RICO in order to win cases and make or save money. Respondent has
included into Record four separate Chain of Custody documents evidencing Fraud and which
may have been missed and should be reviewed(att.). There is and will be no contrary evidence
submitted, even though theoretical exculpatory evidence is, or would be, in control of the RICO
by simply opening their books-all their books. In addition they could comply with outstanding
requests for voucher and vendor numbers on "Section 8 " checks received. Respondent does not
believe he and/or the taxpayer should have to pay his (incorrect) rent twice even if it does benefit
criminals(RICO). As to part of Order denying Respondent's OMTDWP III & IV and granting RICO's
Motion to Strike, this is a complete and, Defendant believes, Reversible Error. To strike even one
of Respondent's admittedly numerous defenses prior to trial that an Appellate Court adjudges
could have and should have been allowed will necessitate Dismissal and/or Retrial at
considerable costs to both parties and the Court. Logic would direct the Court to allow all
Defenses, even if the Court adjudges one or more as dubious or unlikely or unusual. The Trier
of Law, after Trial, could strike or instruct Jury as to any Affirmative Defense or Counterclaim that
remains un or insufficiently proven. The Trial Judge would not be usurped and the Appellate
Courts would not have to call for a "Do Over", which is a lose-lose.
Respondent's First Defense includes Improper Service and Reiterates that no attempt at
personal service was made by server and no Certified/Registered Notice of Petition & Petition
was sent or same by regular mail as required. Respondent points out that two previous cases
were dismissed for Improper Service (075758/05 by Honorable Judge Ernest Cavallo &
86806/05 by Honorable Judge Peter M. Wendt). Petitioner(RICO) failed to sign Petition and the
time to do so is defaulted, as well as case. Initial unsigned "affirmation" must be struck and case
again defaulted.
As to Second Affirmative Defense, property was awarded to the United States by Judge Pollak,
one of the Appellate Judges that Convicted RICO (see Att.), and no consideration has been paid
for it and the Land Patents, ultimate Title, remain with The People. RICO has unpaid Court
Judgement of $102 million and if they did own property it would revert to Mr. Rispler. RICO
violated no consideration "agreement" with The People, which is now null and void.
As to Third Affirmative Defense, Respondent reprises position that he is still covered by State
and Federal Constitutions and is disappointed that protections have been stripped (see Dred
Scott v. Sandford,[1] 60 U.S. (19 How.) 393 (1856).
As to Doctrine of Laches Defense, Petitioner(RICO) waited TWO YEARS TO FILE CASE and
well exceeds time allowed in precedential Case Law. Respondent notes RICO, in concurrent,
identical (parties & cause of action) case #52851/06 FAILED TO PROSECUTE (Unclean Hands)
and should not be rewarded for this default/fault . See Gramford Realty Corp. vs. Valentin 71 Misc 2d 784, Rodriguez v. Torres, NYLJ 1/22/03 22:1, McLaughlin v. Timms, NYLJ 11/30/84 4:3 1st Dept., Airco Alloys Division v. Niagara Mohawk 76 A.D.2d 68, 430 N.Y.S.2d 179 (4th Dep't 1980), 220-55 46th Ave. Owners v. National Ventures NYLJ 3/11/92 25:6, Gabmar Realty Corp v. Titronics NYLJ 8/14/96 27:5 and Glen Cove v. Tillman NYLJ 5/27/77 13:1, City of New York v. BetanCo 79 Misc. 2d 907, 362 N.Y.S.2d 728 (App. Term 1974), Maxwell v. Simons 77 Misc. 2d 184, 353 N.Y.S.2d 589 (NYC Civ Court 1973) wherin the THREE MONTH RULE was
established. RICO offered no reason to strike this defense.
As to Seventh Affirmative Defense, forged alleged "lease" proffered as exhibit by RICO states
"rent" to be $215 per month which Respondent requests the Court take as a Statement Against
Interest. It is nonsensical, at best, to suggest a Defendant may not even raise correct and
stipulated to rent amount as defense and Respondent is at a loss as RICO offered no reason to
strike and the Court offered none as well. Respondent requests this FACT along with all other
facts be adjudged by Triers of Fact.
As to Eighth Affirmative Defense, either the Court will allow Federal Discrimination Claims or it
will not, please see RPAPL § 743 "Any Affirmative Defenses or Counterlaims". RICO offered no
Law or precedent as to why this and/or other Federal Defenses/Counterclaims should not be
allowed and neither did the Court.
Ninth Affirmative Defense is, at this time, moot.
As to Eleventh Affirmative Defense, Section 8 Fraud, the Court will either exalt RICO's ongoing
Satanic Criminal Political Corruption or it will not. Please review aforesaid and attached exhibits.
RICO ignored/ignores these Predicate Felony Acts and is awarded with success.
As to Twelfth Affirmative Defense, the Consiglieri's amount of ongoing Perjury, Malfeasance,
and lack of Due Diligence, should be in Guinness Book of World Records and would necessitate
Encyclopedia Britannica sized documentation. Basically, Consiglieri Roberts is a pathological
liar.
As to Thirteenth Affirmative Defense, FDCPA is an accepted defense and again a Reversible
Error, see Romea v. Heiberger & Assocs., 988 F Supp 715, 716-17 (S.D.N Y 1998). This should
be left for the Trial Judge and Jury. Respondent will require appearance/subpoena of Debt
Collector that signed Predicate Notice.
As to Fourteenth Affirmative Defense, RICO's ongoing Racketeering Fraud and False Claims
violate Federal, State and City Laws and Respondent believes this is evidences by "Section 8 "
Fraud etc.. Just because the Court may see this as a novel defense, it should not automatically
be struck, without comment, creating additional Reversible Error. It should again be left for Trial
Judge/Jury.
As to Fifteenth Affirmative Defense, RICO's willful knowing ongoing use of illegal aliens is/are
additional Predicate Conspiracy Acts and these Criminal Acts should not be imposed on
Respondent in his own home. Respondent is a Civil Servant and should not be forced to violate
Federal Law or be engaged in a conspiracy to cover up same. These illegal aliens are
additionally violating State Licensing laws for Plumbers and/or Electricians etc. and if applauded
by the Court will allow unlicensed illegal alien Lawyers and Doctors-and eventually Hearing
Officers and Judges. Respondent believes obeying the law is always a legitimate defense,
however novel, and in keeping with RPAPL § 743.
As to Sixteenth Affirmative Defense, RICO's ongoing acts of Terrorism against Tenant and
others. Amir El-Hadidy, main actor, is, upon information and belief, a Convicted Violent Criminal,
a member of Muslim Brotherhood, and possibly wanted for questioning in his native Egypt for
acts of Terrorism. RICO profited off of September 11(see Olive Leaf quackery). Again a, possibly
novel, legitimate defense, please leave for trial.
As to Seventeenth Affirmative Defense RICO's ongoing violations of numerous State and City
Rules and Law within instant case constitute grounds for dismissal and thus a legitimate defense.
RICO's violation's of three previous stipulations between parties constitute separate grounds for
dismissal. RICO's not timely, or at all, answering Motions to Dismiss constitute stipulation to
Dismissal. As to Eighteenth Affirmative Defense, RICO's ongoing violations of Building Codes
and Licensing requirements for Plumbers and Electricians etc. impinge upon Respondent and
constitute legitimate defense. This should be left for Trial Judge/Jury.
As to Twentieth Affirmative Defense, Legal Precedent from a higher Court, Weisert v.
Subaqua, from Supreme Court Justice Barbara Kapnick stated Landlord could not sue for
possession of apartment as Tenant was included on blacklist and would not be able to find
another apartment. On on information and belief, Respondent is included on same blacklist. As to
Counterclaims, these are either allowed or not. RPAPL § 743 states "The Answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgement for the amount found due on counterclaim." No reasons, from Court or RICO, were given for striking
Counterclaim and burden of proof is on Racketeers.
As to OMTDWP III, the whole motion was not answered, i.e. stipulated to and is new
evidence. Please review "failing to respond" case law on first page.
As to OMTDWP IV, The whole motion was not answered and Respondent considers case
dismissed. See above.
As to Jury Fees, these have already been paid in the original, active, concurrent, identical
cause of action and identical parties case, i.e. index #52851 (see attached exhibit) and
defendant moves that these same fees be considered as paid for instant case, which is in fact the
same case. If the Court, in its wisdom, sees this as unjust, illogical or unlawful, then respondent
moves for leave to again pay fees to Court Clerk for this Identical concurrent case, i.e. 071507/07.
As to Motion to add Affirmative Defense(s)/Counterclaim(s) please review all previous papers
for full context and reasons, especially Answer and Affidavits, to reduce redundant information.
As to Motion to add Diminution of Services as Defense/Counterclaim, Respondent states that
all Crimes/Unconstitutional Acts/Torts/Conspiracies committed ongoing by the RICO constitute
Diminution of Services. Please reference previous papers.
As to Motion In Limine to strike, Respondent reiterates that Undated, Unwitnessed, Un-
Notarized, Unverified, no Chain of Custody ("found?"), Lack of Foundation, No Consideration
"boilerplate lease" was FORGED. This Criminal Conspiracy to deny Respondent Constitutional,
Civil, Rent Stabilization and Common Law Rights are additional reasons to add Federal
Defenses/Counterclaims. Respondent states, under oath, that proffered "boilerplate lease" and
riders were not signed or seen by defendant and that said documents, without consideration as
respondent was already a tenant and by definition a renewal lease, were/are a FORGERY. The
print on the "Boilerplate" forgery violates CPLR § 4544. Respondent requests leave to add
Affidavit from expert stating same. The same "boilerplate lease" states at the top "the Landlord and Tenant agree as of........................................................19........to lease the Apartment as follows"
and thus there is no agreement. .....................................................19......... is not an effective date and
on this basis alone alleged "lease" and all restrictive clauses are null and void. At end of second
page of same the statement "Signatures, effective date Landlord and Tenant have signed this Lease as of the above date. It is effective when Landlord delivers to Tenant a copy signed by all parties." There is no "above date" and no "effective date" which means the date a contract/lease
takes effect, in this case never. The "lease" was never "delivers to Tenant" or "signed by all
parties". The "lease" was not Witnessed, or Notarized, or Verified. Respondent acknowledges
signing, similar to provided, a "Section 8 lease rider" while illegally evicted from temporary
"room(without bathroom)" he was sentenced to during admitted building-wide Major Capitol
Improvement. This criminal act constituted extreme Duress (see Rispler v. Kenmore).
Nevertheless, Defendant acknowledges all aspects of real signed "Section 8 Lease" as in effect
to the extent it equals or exceeds rights under Rent Stabilization and/or other Laws, Statute or
Common and/or Constitutions or Charter. Nevertheless, Respondent stipulates that $215 per
month rent mentioned prominently throughout "lease" is the correct rent.
In addition to the foregoing respondent requests striking of all Unconscionable Lease Clauses
(RPL §235-c), which in the instant context are all that restrict Defendant's Rights under all Law or
Constitutions. Respondent acknowledges the Court has already struck Clause 17 and thus
Counterclaims are allowed. Nevertheless, there is a conflict wherein Defendant's Counterclaims
are apparently struck along with the clause. Respondent again requests the Court restore all
Counterclaims. Respondent again restates that "boilerplate" was never seen or signed, was
without consideration, undated, too small print, etc..
As to Motion for Expert Witness, Respondent requests leave to admit expert Affidavit and/or
Testimony to additionally prove Forgery as well as too small print in "Boilerplate".
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.
WHEREFORE, Respondent prays for the granting of an Order from the Court Granting
Respondent's Motion(s) in full, Dismissing Case(s) with prejudice, denying Plaintiff's Cross-
Motion in full, and for all such and further relief that this Court may deem just and appropriate.
All Rights Reserved Without Prejudice U.C.C. §1-308.
______________________________
Respondent Pro-Se
145 east 23rd street
New York, NY 10010
Sworn Before me on the
7th Day of March, 2008
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, (Tenant), Respondent in this Action, being duly
sworn, hereby depose and state: As to Motions 1 & 2 Respondent continues to deny Personal
Jurisdiction due to Specific Denial of Receipt and Demands continued Special and/or Limited
Appearance status. Respondent states no personal service attempt was made and no Certified
or Registered mailed copy of N. of P. & Petition was received and no regular (First Class) mailed
copy was received to this day. Jury Trial Demand is as of Right and it is within the power of a
Just Court to grant Trial on the Instant Motion (CPLR §2218).
As to Violation/Default of fourth straight CPLR § 2214 Demand Noticed within Omnibus Motion
to Dismiss with Prejudice IV by RICO, respondent Moves for Dismissal with Prejudice and
sanctions. Motions not answered are deemed stipulated to. (The law is clear...that 'failing to respond to a fact attested in the moving papers...will be deemed to admit it', Siegel, New York Practice, §281 (1999 ed., p. 442)- citing Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 599 (1975), itself citing Laye v. Shepard, 265 N.Y.S.2d 142 (1965), aff'd 267 N.Y.S.2d 477 (1st Dept. 1966) and Siegel, McKinney,s Consolidated Laws of New York Annotated, Book 7F., CPLR §3212:16. 'If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it' id. undenied allegations will be deemed to be admitted. Whitmore v. J. Jungman, Inc., 129 N.Y.S. 776, 777 (S.Ct, Ny Co. 1911)".
As to Motion for Damages, the RICO's continued abuse of the Court and/or respondent due to
its belief that we are under the Rule of Men and not Law("The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.") must be sanctioned. The amount of Perjury/Obstruction of Justice by the RICO is epic.
Respondent requests sanctions in both concurrent cases between parties based on identical
causes of action.
As to Motion to Renew/Reargue, Respondent must compliment the court for it's thorough and
erudite Order defeating any (prospective?) Motion to Strike Jury Demand. Respondent would
add Collateral Estoppel regarding previous decisions, by Judges Peter M. Wendt and Kevin
McClanahan, with the same award (see papers). The only problem(s) with the Jury Demand
Decision, though not in a way that would reverse or negatively affect that part of the Order, is with
the "Introduction" and "Factual Background". Respondent bases his Right to a Jury on State and
Federal Constitution and Statute and Common Law, not on Forged alleged "lease", which is, at
best, a Renewal Lease, as a Matter of Law, as Defendant was a longstanding tenant in 1997.
Respondent acknowledges signing a "Section 8" Lease Rider and nothing else was signed or
offered. The foregoing explains why and to what extent that "Rider" is in effect. The largest error
on the part of the Court involves ongoing Section 8 Fraud. The RICO, among its other ongoing,
Serial, Predicate Felony Crimes, is committing rampant Section 8 Fraud. Respondent prays the
court is not as indifferent to this merely additional ongoing Predicate RICO Felony(s) as the
instant RICO, and requests referral to appropriate Grand Jury or Investigator. Respondent
suggests review of Predicate Felony "by far the most egregious case of civil conspiracy in the body of law" Conviction (Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406 (3d Cir. (N.J.) 2002)(att.). As in the instant case, rampant Fraud and Forgery of documents
took place by the RICO in order to win cases and make or save money. Respondent has
included into Record four separate Chain of Custody documents evidencing Fraud and which
may have been missed and should be reviewed(att.). There is and will be no contrary evidence
submitted, even though theoretical exculpatory evidence is, or would be, in control of the RICO
by simply opening their books-all their books. In addition they could comply with outstanding
requests for voucher and vendor numbers on "Section 8 " checks received. Respondent does not
believe he and/or the taxpayer should have to pay his (incorrect) rent twice even if it does benefit
criminals(RICO). As to part of Order denying Respondent's OMTDWP III & IV and granting RICO's
Motion to Strike, this is a complete and, Defendant believes, Reversible Error. To strike even one
of Respondent's admittedly numerous defenses prior to trial that an Appellate Court adjudges
could have and should have been allowed will necessitate Dismissal and/or Retrial at
considerable costs to both parties and the Court. Logic would direct the Court to allow all
Defenses, even if the Court adjudges one or more as dubious or unlikely or unusual. The Trier
of Law, after Trial, could strike or instruct Jury as to any Affirmative Defense or Counterclaim that
remains un or insufficiently proven. The Trial Judge would not be usurped and the Appellate
Courts would not have to call for a "Do Over", which is a lose-lose.
Respondent's First Defense includes Improper Service and Reiterates that no attempt at
personal service was made by server and no Certified/Registered Notice of Petition & Petition
was sent or same by regular mail as required. Respondent points out that two previous cases
were dismissed for Improper Service (075758/05 by Honorable Judge Ernest Cavallo &
86806/05 by Honorable Judge Peter M. Wendt). Petitioner(RICO) failed to sign Petition and the
time to do so is defaulted, as well as case. Initial unsigned "affirmation" must be struck and case
again defaulted.
As to Second Affirmative Defense, property was awarded to the United States by Judge Pollak,
one of the Appellate Judges that Convicted RICO (see Att.), and no consideration has been paid
for it and the Land Patents, ultimate Title, remain with The People. RICO has unpaid Court
Judgement of $102 million and if they did own property it would revert to Mr. Rispler. RICO
violated no consideration "agreement" with The People, which is now null and void.
As to Third Affirmative Defense, Respondent reprises position that he is still covered by State
and Federal Constitutions and is disappointed that protections have been stripped (see Dred
Scott v. Sandford,[1] 60 U.S. (19 How.) 393 (1856).
As to Doctrine of Laches Defense, Petitioner(RICO) waited TWO YEARS TO FILE CASE and
well exceeds time allowed in precedential Case Law. Respondent notes RICO, in concurrent,
identical (parties & cause of action) case #52851/06 FAILED TO PROSECUTE (Unclean Hands)
and should not be rewarded for this default/fault . See Gramford Realty Corp. vs. Valentin 71 Misc 2d 784, Rodriguez v. Torres, NYLJ 1/22/03 22:1, McLaughlin v. Timms, NYLJ 11/30/84 4:3 1st Dept., Airco Alloys Division v. Niagara Mohawk 76 A.D.2d 68, 430 N.Y.S.2d 179 (4th Dep't 1980), 220-55 46th Ave. Owners v. National Ventures NYLJ 3/11/92 25:6, Gabmar Realty Corp v. Titronics NYLJ 8/14/96 27:5 and Glen Cove v. Tillman NYLJ 5/27/77 13:1, City of New York v. BetanCo 79 Misc. 2d 907, 362 N.Y.S.2d 728 (App. Term 1974), Maxwell v. Simons 77 Misc. 2d 184, 353 N.Y.S.2d 589 (NYC Civ Court 1973) wherin the THREE MONTH RULE was
established. RICO offered no reason to strike this defense.
As to Seventh Affirmative Defense, forged alleged "lease" proffered as exhibit by RICO states
"rent" to be $215 per month which Respondent requests the Court take as a Statement Against
Interest. It is nonsensical, at best, to suggest a Defendant may not even raise correct and
stipulated to rent amount as defense and Respondent is at a loss as RICO offered no reason to
strike and the Court offered none as well. Respondent requests this FACT along with all other
facts be adjudged by Triers of Fact.
As to Eighth Affirmative Defense, either the Court will allow Federal Discrimination Claims or it
will not, please see RPAPL § 743 "Any Affirmative Defenses or Counterlaims". RICO offered no
Law or precedent as to why this and/or other Federal Defenses/Counterclaims should not be
allowed and neither did the Court.
Ninth Affirmative Defense is, at this time, moot.
As to Eleventh Affirmative Defense, Section 8 Fraud, the Court will either exalt RICO's ongoing
Satanic Criminal Political Corruption or it will not. Please review aforesaid and attached exhibits.
RICO ignored/ignores these Predicate Felony Acts and is awarded with success.
As to Twelfth Affirmative Defense, the Consiglieri's amount of ongoing Perjury, Malfeasance,
and lack of Due Diligence, should be in Guinness Book of World Records and would necessitate
Encyclopedia Britannica sized documentation. Basically, Consiglieri Roberts is a pathological
liar.
As to Thirteenth Affirmative Defense, FDCPA is an accepted defense and again a Reversible
Error, see Romea v. Heiberger & Assocs., 988 F Supp 715, 716-17 (S.D.N Y 1998). This should
be left for the Trial Judge and Jury. Respondent will require appearance/subpoena of Debt
Collector that signed Predicate Notice.
As to Fourteenth Affirmative Defense, RICO's ongoing Racketeering Fraud and False Claims
violate Federal, State and City Laws and Respondent believes this is evidences by "Section 8 "
Fraud etc.. Just because the Court may see this as a novel defense, it should not automatically
be struck, without comment, creating additional Reversible Error. It should again be left for Trial
Judge/Jury.
As to Fifteenth Affirmative Defense, RICO's willful knowing ongoing use of illegal aliens is/are
additional Predicate Conspiracy Acts and these Criminal Acts should not be imposed on
Respondent in his own home. Respondent is a Civil Servant and should not be forced to violate
Federal Law or be engaged in a conspiracy to cover up same. These illegal aliens are
additionally violating State Licensing laws for Plumbers and/or Electricians etc. and if applauded
by the Court will allow unlicensed illegal alien Lawyers and Doctors-and eventually Hearing
Officers and Judges. Respondent believes obeying the law is always a legitimate defense,
however novel, and in keeping with RPAPL § 743.
As to Sixteenth Affirmative Defense, RICO's ongoing acts of Terrorism against Tenant and
others. Amir El-Hadidy, main actor, is, upon information and belief, a Convicted Violent Criminal,
a member of Muslim Brotherhood, and possibly wanted for questioning in his native Egypt for
acts of Terrorism. RICO profited off of September 11(see Olive Leaf quackery). Again a, possibly
novel, legitimate defense, please leave for trial.
As to Seventeenth Affirmative Defense RICO's ongoing violations of numerous State and City
Rules and Law within instant case constitute grounds for dismissal and thus a legitimate defense.
RICO's violation's of three previous stipulations between parties constitute separate grounds for
dismissal. RICO's not timely, or at all, answering Motions to Dismiss constitute stipulation to
Dismissal. As to Eighteenth Affirmative Defense, RICO's ongoing violations of Building Codes
and Licensing requirements for Plumbers and Electricians etc. impinge upon Respondent and
constitute legitimate defense. This should be left for Trial Judge/Jury.
As to Twentieth Affirmative Defense, Legal Precedent from a higher Court, Weisert v.
Subaqua, from Supreme Court Justice Barbara Kapnick stated Landlord could not sue for
possession of apartment as Tenant was included on blacklist and would not be able to find
another apartment. On on information and belief, Respondent is included on same blacklist. As to
Counterclaims, these are either allowed or not. RPAPL § 743 states "The Answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgement for the amount found due on counterclaim." No reasons, from Court or RICO, were given for striking
Counterclaim and burden of proof is on Racketeers.
As to OMTDWP III, the whole motion was not answered, i.e. stipulated to and is new
evidence. Please review "failing to respond" case law on first page.
As to OMTDWP IV, The whole motion was not answered and Respondent considers case
dismissed. See above.
As to Jury Fees, these have already been paid in the original, active, concurrent, identical
cause of action and identical parties case, i.e. index #52851 (see attached exhibit) and
defendant moves that these same fees be considered as paid for instant case, which is in fact the
same case. If the Court, in its wisdom, sees this as unjust, illogical or unlawful, then respondent
moves for leave to again pay fees to Court Clerk for this Identical concurrent case, i.e. 071507/07.
As to Motion to add Affirmative Defense(s)/Counterclaim(s) please review all previous papers
for full context and reasons, especially Answer and Affidavits, to reduce redundant information.
As to Motion to add Diminution of Services as Defense/Counterclaim, Respondent states that
all Crimes/Unconstitutional Acts/Torts/Conspiracies committed ongoing by the RICO constitute
Diminution of Services. Please reference previous papers.
As to Motion In Limine to strike, Respondent reiterates that Undated, Unwitnessed, Un-
Notarized, Unverified, no Chain of Custody ("found?"), Lack of Foundation, No Consideration
"boilerplate lease" was FORGED. This Criminal Conspiracy to deny Respondent Constitutional,
Civil, Rent Stabilization and Common Law Rights are additional reasons to add Federal
Defenses/Counterclaims. Respondent states, under oath, that proffered "boilerplate lease" and
riders were not signed or seen by defendant and that said documents, without consideration as
respondent was already a tenant and by definition a renewal lease, were/are a FORGERY. The
print on the "Boilerplate" forgery violates CPLR § 4544. Respondent requests leave to add
Affidavit from expert stating same. The same "boilerplate lease" states at the top "the Landlord and Tenant agree as of........................................................19........to lease the Apartment as follows"
and thus there is no agreement. .....................................................19......... is not an effective date and
on this basis alone alleged "lease" and all restrictive clauses are null and void. At end of second
page of same the statement "Signatures, effective date Landlord and Tenant have signed this Lease as of the above date. It is effective when Landlord delivers to Tenant a copy signed by all parties." There is no "above date" and no "effective date" which means the date a contract/lease
takes effect, in this case never. The "lease" was never "delivers to Tenant" or "signed by all
parties". The "lease" was not Witnessed, or Notarized, or Verified. Respondent acknowledges
signing, similar to provided, a "Section 8 lease rider" while illegally evicted from temporary
"room(without bathroom)" he was sentenced to during admitted building-wide Major Capitol
Improvement. This criminal act constituted extreme Duress (see Rispler v. Kenmore).
Nevertheless, Defendant acknowledges all aspects of real signed "Section 8 Lease" as in effect
to the extent it equals or exceeds rights under Rent Stabilization and/or other Laws, Statute or
Common and/or Constitutions or Charter. Nevertheless, Respondent stipulates that $215 per
month rent mentioned prominently throughout "lease" is the correct rent.
In addition to the foregoing respondent requests striking of all Unconscionable Lease Clauses
(RPL §235-c), which in the instant context are all that restrict Defendant's Rights under all Law or
Constitutions. Respondent acknowledges the Court has already struck Clause 17 and thus
Counterclaims are allowed. Nevertheless, there is a conflict wherein Defendant's Counterclaims
are apparently struck along with the clause. Respondent again requests the Court restore all
Counterclaims. Respondent again restates that "boilerplate" was never seen or signed, was
without consideration, undated, too small print, etc..
As to Motion for Expert Witness, Respondent requests leave to admit expert Affidavit and/or
Testimony to additionally prove Forgery as well as too small print in "Boilerplate".
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.
WHEREFORE, Respondent prays for the granting of an Order from the Court Granting
Respondent's Motion(s) in full, Dismissing Case(s) with prejudice, denying Plaintiff's Cross-
Motion in full, and for all such and further relief that this Court may deem just and appropriate.
All Rights Reserved Without Prejudice U.C.C. §1-308.
______________________________
Respondent Pro-Se
145 east 23rd street
New York, NY 10010
Sworn Before me on the
7th Day of March, 2008
Thursday, November 29, 2007
The Midas of Corruption
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE IV
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
Tenant, Respondent, sworn to on the 28th day of November, 2007, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1164(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 6th day of December, 2007 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE and/or LIMITED
APPEARANCE be granted to challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Dismiss for Third CPLR §2214 Violation and Default (No Defense) of OMTDWP III
(4) Motion for Damages under 22 NYCRR §130-1 for continued Perjury and willful misrepresentation.
(5) Motion for Subpoena Duces Tecum CPLR § 2301-5 for Land Patent(s) for
143-147 East 23rd Street New York, New York a. k. a. Manhattan Block 879, Lot
27, Building Identification Number #1018044,
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition with prejudice, granting
respondent's Motion(s) and for all such and further relief that this Court may
deem just and appropriate.
________________________
Tenant, Respondent pro se
145 east 23rd street #4R Petitioners counsel: New York, NY, 10010 Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated November 28, 2007
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE IV
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
Tenant, Respondent, sworn to on the 28th day of November, 2007, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1164(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 6th day of December, 2007 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE and/or LIMITED
APPEARANCE be granted to challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Dismiss for Third CPLR §2214 Violation and Default (No Defense) of OMTDWP III
(4) Motion for Damages under 22 NYCRR §130-1 for continued Perjury and willful misrepresentation.
(5) Motion for Subpoena Duces Tecum CPLR § 2301-5 for Land Patent(s) for
143-147 East 23rd Street New York, New York a. k. a. Manhattan Block 879, Lot
27, Building Identification Number #1018044,
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition with prejudice, granting
respondent's Motion(s) and for all such and further relief that this Court may
deem just and appropriate.
________________________
Tenant, Respondent pro se
145 east 23rd street #4R Petitioners counsel: New York, NY, 10010 Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated November 28, 2007
Satanic Criminals
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, (Tenant), Respondent in this Action, being duly
sworn, hereby depose and state: As to Motions 1 & 2 Respondent continues to deny Personal
Jurisdiction due to Specific Denial of Receipt and Demands continued Special and/or Limited
Appearance status. Jury Trial Demand is as of Right and it is within the power of a Just Court to
grant Trial on the Instant Motion (CPLR §2218).
As to Violation/Default of third straight CPLR § 2214 Demand between parties by RICO,
respondent Moves for Dismissal with Prejudice and sanctions. Motions not answered are
deemed stipulated to. (The law is clear...that 'failing to respond to a fact attested in the moving papers...will be deemed to admit it', Siegel, New York Practice, §281 (1999 ed., p. 442)- citing Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 599 (1975), itself citing Laye v. Shepard, 265 N.Y.S.2d 142 (1965), aff'd 267 N.Y.S.2d 477 (1st Dept. 1966) and Siegel, McKinney,s Consolidated Laws of New York Annotated, Book 7F., CPLR §3212:16. 'If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it' id. undenied allegations will be deemed to be admitted. Whitmore v. J. Jungman, Inc., 129 N.Y.S. 776, 777 (S.Ct, Ny Co. 1911)".
As to Motion for Damages, the RICO's continued abuse of the Court and/or respondent due to
its belief that we are under the Rule of Men and not Law("The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.") must be sanctioned. The amount of Perjury/Obstruction of Justice by the RICO
approximates googolplex. Respondent requests sanctions in both concurrent cases between
parties based on identical causes of action.
As to Motion for Subpoena Duces Tecum, respondent Demands Land Patent(s) for Real
Property claimed by RICO, which respondent certifies is owned by the People of the United
States. Se: “A patent of the United States…[A]s a deed its operation is that of a quitclaim or rather of a conveyance of such interest as the United States possessed in the land…[T]his record, [the patent] so long as it remains unvacated, is conclusive.” Beard v. Federy, 70 U.S. 478, 3 Wall, 478, 18 L.Ed.88. (1865).
“A patent to land, issued by the United States under authority of law, is the highest evidence of title, something upon which its holder can rely for peace and security in his possession. It is conclusive evidence of title against the United States and all the world. ..” 2 The American Law of Mining, § 1.29 at 357. Nichols v. Rysavy, (S.D. 1985) 610 F. Supp. 1245.
"Congress has the sole power to declare the dignity and effect of titles emanating from the United States… and [Congress] [D]eclares the patent the superior and conclusive evidence of legal title." Langdon v. Sherwood, 124 U.S. 74 (1888).
[The patent] “[P]assing whatever interest the United States has in the premises and thereby settling any question of sovereign ownership….” Pueblo of Santa Ana v. Baca (CA10 NM) 844 F2d 708; Whaley v. Wotring (Fla App D1) 225 So 2d 177; Dugas v. Powell, 228 La 748, 84 So 2d 177. [quote at 28 Am. Jur. 2D, F. 2 § 49]. Note: In this case a particular individual assignee.
The "Warranty Deed" is merely a "color of title". Color of Title means: "That which is a semblance or appearance of title, but not title in fact or in law." Howth v. Farrar, C.C.A. Tex.; 94 F.2d 654, 658; McCoy v. Lowrie, 42 Wash. 2d 24, Black's Law Sixth Ed.
In the history of the United States no Land Patent has ever lost an appellate review in the courts. In Summa Corp. v California, 466 US 198 the Supreme Court ruled that the Land Patent would always win over any other form of title. In that case the land in question was tidewater land and California's claim was based on California's constitutional right to all tidewater lands.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.
WHEREFORE, Respondent prays for the granting of an Order from the Court Granting
Respondent's Motion(s) in full, Dismissing Case(s) with prejudice, denying Plaintiff's Cross-
Motion in full, and for all such and further relief that this Court may deem just and appropriate.
______________________________
Respondent Pro-Se
145 east 23rd street
New York, NY 10010
Sworn Before me on the
28th Day of November, 2007
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, (Tenant), Respondent in this Action, being duly
sworn, hereby depose and state: As to Motions 1 & 2 Respondent continues to deny Personal
Jurisdiction due to Specific Denial of Receipt and Demands continued Special and/or Limited
Appearance status. Jury Trial Demand is as of Right and it is within the power of a Just Court to
grant Trial on the Instant Motion (CPLR §2218).
As to Violation/Default of third straight CPLR § 2214 Demand between parties by RICO,
respondent Moves for Dismissal with Prejudice and sanctions. Motions not answered are
deemed stipulated to. (The law is clear...that 'failing to respond to a fact attested in the moving papers...will be deemed to admit it', Siegel, New York Practice, §281 (1999 ed., p. 442)- citing Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 599 (1975), itself citing Laye v. Shepard, 265 N.Y.S.2d 142 (1965), aff'd 267 N.Y.S.2d 477 (1st Dept. 1966) and Siegel, McKinney,s Consolidated Laws of New York Annotated, Book 7F., CPLR §3212:16. 'If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it' id. undenied allegations will be deemed to be admitted. Whitmore v. J. Jungman, Inc., 129 N.Y.S. 776, 777 (S.Ct, Ny Co. 1911)".
As to Motion for Damages, the RICO's continued abuse of the Court and/or respondent due to
its belief that we are under the Rule of Men and not Law("The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.") must be sanctioned. The amount of Perjury/Obstruction of Justice by the RICO
approximates googolplex. Respondent requests sanctions in both concurrent cases between
parties based on identical causes of action.
As to Motion for Subpoena Duces Tecum, respondent Demands Land Patent(s) for Real
Property claimed by RICO, which respondent certifies is owned by the People of the United
States. Se: “A patent of the United States…[A]s a deed its operation is that of a quitclaim or rather of a conveyance of such interest as the United States possessed in the land…[T]his record, [the patent] so long as it remains unvacated, is conclusive.” Beard v. Federy, 70 U.S. 478, 3 Wall, 478, 18 L.Ed.88. (1865).
“A patent to land, issued by the United States under authority of law, is the highest evidence of title, something upon which its holder can rely for peace and security in his possession. It is conclusive evidence of title against the United States and all the world. ..” 2 The American Law of Mining, § 1.29 at 357. Nichols v. Rysavy, (S.D. 1985) 610 F. Supp. 1245.
"Congress has the sole power to declare the dignity and effect of titles emanating from the United States… and [Congress] [D]eclares the patent the superior and conclusive evidence of legal title." Langdon v. Sherwood, 124 U.S. 74 (1888).
[The patent] “[P]assing whatever interest the United States has in the premises and thereby settling any question of sovereign ownership….” Pueblo of Santa Ana v. Baca (CA10 NM) 844 F2d 708; Whaley v. Wotring (Fla App D1) 225 So 2d 177; Dugas v. Powell, 228 La 748, 84 So 2d 177. [quote at 28 Am. Jur. 2D, F. 2 § 49]. Note: In this case a particular individual assignee.
The "Warranty Deed" is merely a "color of title". Color of Title means: "That which is a semblance or appearance of title, but not title in fact or in law." Howth v. Farrar, C.C.A. Tex.; 94 F.2d 654, 658; McCoy v. Lowrie, 42 Wash. 2d 24, Black's Law Sixth Ed.
In the history of the United States no Land Patent has ever lost an appellate review in the courts. In Summa Corp. v California, 466 US 198 the Supreme Court ruled that the Land Patent would always win over any other form of title. In that case the land in question was tidewater land and California's claim was based on California's constitutional right to all tidewater lands.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.
WHEREFORE, Respondent prays for the granting of an Order from the Court Granting
Respondent's Motion(s) in full, Dismissing Case(s) with prejudice, denying Plaintiff's Cross-
Motion in full, and for all such and further relief that this Court may deem just and appropriate.
______________________________
Respondent Pro-Se
145 east 23rd street
New York, NY 10010
Sworn Before me on the
28th Day of November, 2007
Thursday, October 18, 2007
Dean M Roberts-Stone Criminal
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, ( ), Respondent in this Action, being duly
sworn, hereby depose and state: As to Motions 1 & 2 Respondent continues to deny Personal
Jurisdiction due to Specific Denial of Receipt and Demands continued Special and/or Limited
Appearance status. Jury Trial Demand is as of Right and it is within the power of a Just Court to
grant Trial on the Instant Motion (CPLR §2218).
As to Violation of third straight Written Stipulation between parties by RICO Consiglieri
respondent Moves for Dismissal with Prejudice and sanctions. Admittedly RICO Eviction Mill/
Consiglieri has made hundreds of Citizens Destitute/Homeless for alleged Violation(s) of
Stipulation. Nevertheless it reserves to itself the unmitigated "right" to violate all Law and Lawful,
Enforceable Agreements Unilaterally, without Remedy. Respondent requests of Court, as
Remedy, for case(s) to be dismissed with Prejudice and monetary damages against RICO/
Plaintiff and/or the right to Unilaterally Prospectively violate any Law/Agreements between
parties without Remedy, as admittedly Respondent has retrospectively complied. Petitioner
(RICO) was required to, by Agreement, SERVE Opposition to Omnibus Motion II & Answer by
October 9, 2007 (see Attached). This did not occur. Cross-Motion/Opposition was mailed by
First Class Mail on October 9th, 2007 or later and is in perfect violation of CPLR §2103 (b) 2 where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period; A stamp may have been purchased (if
not reset) from in-office Pitney Bowes machine on 10/09/07(see att.) and affirmation is dated (no
Notary) on same, nevertheless Respondent believes it was actually mailed on 10/12/07,
nevertheless, it was late and defaulted regardless.
As to Motion for Damages for Perjury, Plaintiff/RICO continues to LIE , Obstruct Justice and
Willfully Misrepresent to the Court all Facts and/or Law. The endless lies would fill Encyclopedia
Britannica. We can start with the Appellate Term Order, wherein only a Motion to Stay was
(temporarily) denied (A Lie in PG. 4 page 2). Next, the RICO LIED in pg. 9 page 3 about Section 8
payments (more Fraud) as Respondent included four Documents showing payments through
2007. Admittedly Respondent never received Section 8 benefits as they were/are sent Directly
to the RICO and Respondent never received receipts, even upon request. Respondent now
again Demands Compelling Section 8 Voucher/Vendor numbers to assist Comptrollers Office
Investigation and Discovery. To Respondent, the most Criminal act(s) by RICO/Consiglieri
involve a so far successful attempt to deprive Respondent of Federal and State Constitutional
Rights to Trial By Jury. Alexander Hamilton in Federalist Paper No. 83 -"The friends and adversaries of the plan of the [constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government."Thomas Jefferson's views were much stronger! -"I consider trial by jury the only anchor yet imagined by man, by which a government can be held to the principles of it's constitution." If you think that Jefferson overlooked the right to elect our representatives, you should consider a second quote of Jefferson, from a letter written in 1789, while serving. as ambassador to France: "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say that it is better to leave them out of the Legislative." Within Addendum to alleged "lease" are three pages which include pg. 1 (B). Conflict With Other Provisions Of Lease.
In case of any conflict between the provisions of this section of the Lease and any other provisions of the Lease, the provisions of this section shall prevail.
pg. 3 (N) Prohibited Lease Provisions:
Notwithstanding anything to the contrary contained in the Lease, any provision of the Lease which falls within the classifications below shall be inapplicable.
pg. 4 (6) Waiver of Jury trial, Authorization to the Landlord to waive the tenant's right to trial by Jury.
Admittedly these FACTS do not help the RICO due to there (deserved) pathological hatred of
Juries, apparently related to the outstanding unpaid $102,000,000 Judgment against them.
As to the Federal and State BIll of Rights regarding the ABSOLUTE RIGHT TO A JURY TRIAL,
Respondent believes the other party and the Court are or should be aware of this.
Respondent requests review by the Court of any actual Authority, and if so what Statute or
Precedent, is being relied upon for denial of Lawfully Requested Jury Trial for review by Court Of
Appeals.
As to Motion in Limine Respondent requests of the Court prospective and retrospective barring
of Uncertified, Un-notarized, Unverified "documents" without cross-examinable testimony/
evidence as to chain of custody and/or foundation. This includes any alleged "order"s,
"documents" showing no consideration was paid for property etc.. Additionally, Respondent
requests barring any alleged illegal ex parte "order" not served on parties or docketed with Court
Clerk to dispute undisputable Res Judicata CPLR §3211 (4) . There is another action pending between the same parties for the same cause of action in a court of any state or the United States; .
As to Motion to Stipulate, Respondent requests of Court that RICO/Consiglieri be forced to
Stipulate that their "by far the most egregious case of civil conspiracy in the body of law" Federal
Felony Conviction be considered Predicate RICO Felony under said statute, Title 18, Chapter 96, U.S.C., §1961-§1968.
As to Motion for Change of Venue to Federal Court, under U.S. Code Title 28, Part IV, Chapter
89, §1441. Actions removable generally, Respondent, Due to uncountable Federal Defenses,
Claims, Counterclaims, Constitutional issues, Federal ownership, etc., it is as of Right.
As to Motion to Dismiss & Sanctions for Obstruction of Justice, RICO/Consiglieri's attempt to
insert into record alleged "found" illegal ex parte unserved (admitted) un-docketed "order" in
order to (so far) successfully defeat unarguable (check Court Clerk) Res Judicata amounts to
Obstruction of Justice and must be sanctioned and case(s) Dismissed with Prejudice.
As to Motion to Vacate Alleged Order as Irregular see CPLR §2220 Entry and filing of order; service. (a) Entry and filing. An order determining a motion shall be entered and filed in the office
of the clerk of the court where the action is triable, and all papers used on the motion and any opinion or memorandum in writing shall be filed with that clerk unless the order dispenses with such filing. When a statute or civil practice rule requires such filing and entry in a county other than that in which the order was made, the party prevailing on the motion shall file the order and the papers used on the motion with the proper clerk after receiving them. If a party fails to file any
papers required to be filed under this subdivision, the order may be vacated as irregular, with costs. (b) Service. Service of an order shall be made by serving a copy of the order.
With regard to Defaulted Affirmation pg. 1 Respondent reiterates Opposition is Untimely and in
Violation of Stipulation and must be Struck/Barred.
As to pg.2 the proceedings (plural) commenced in 2006 under index # 52851/06 despite
RICO's admitted "Failure to Prosecute. The RICO is not allowed to have two concurrent cases
with Identical Causes of Action and Parties in order to Judge/Forum Shop.
As to pg. 3, Respondent believes that Judge McClanahan's appointment to the Federal Bench,
while laudable, was not in conformance with U. S. Constitution.
As to pg. 4 there is a pending Motion to Dismiss for Defective Predicate Notice due to lack of
Signature as required by CPLR §2101(a) Beneath each signature shall be printed the name signed. There is again sad and unfortunate Perjury involving Willful Mischaracterization of
Appellate Term Order, which involved only a Motion to Stay Proceedings as Requested Relief.
As to pg. 5 RICO apparently does not believe it is the "Plaintiff" and if so these two cases should be
Dismissed with Prejudice for no Cause of Action, no Relief or Jurisdiction.
As to pg. 6, with continued Perjury, "Plaintiff" (RICO) has supplied the predicted alleged "lease"
which includes the list of PROHIBITED LEASE PROVISIONS Waiver of Jury Trial on
aforementioned pages. This is new evidence. The RICO's outrageous BIG LIE are causing Dr.
Paul Joseph Goebbels to flip in his grave.
As to pg. 7 Respondent is informed this issue may, in fact, be moot.
As to pg. 8 the law is U.S Code Title 28, Part IV, Chapter 89, §1441 and facts are decided by
that bad thing (a "Jury"). Continued Perjury, this time Judge McClanahan's Order, where he
clearly did not say "the claim of a federal issue does not necessarily make it so" and is a brutal
intentional mischaracterization which means nothing. The alleged (un-notarized) "signature" on
Predicate Notice was of Debt Collector, lacking FDCPA Validation Notice and Violating "Williams
Consent Judgement". In an apparent attempt to create "Incompetent Counsel" defense, RICO
Consiglieri pretends to misapprehend RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim, or is it again Perjury?
As to pg. 9 the Racketeer Influenced Corrupt Organization/Consiglieri slithers around (like the
Serpent) it's Predicate Felony Section 8 Fraud. Simply ignoring admitted evidence previously
supplied, the Virtual Person states "he has not received them since well before January 2005",
which while technically true, is due to the fact that these payments GO DIRECTLY TO THE RICO.
Additionally no receipts have ever been given for these payments. Respondent requests
assistance of the Court to crush this ongoing Fraud and again requests the Independent Special
Prosecutor for the uncountable Felonies.
As to pg. 10 this is nonsensical. RICO/Consiglieri would have quoted any Law or Precedent
supporting this canard but did not as there is none.
As to pg. 11 the Perjury continues as Rico's own copy of Answer shows Service on August 20,2007. RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim.
As to pg. 12 ?
As to pg. 13 On what grounds?RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim.
As to pg. 14 This first and second sentence is finally correct, we knew you could do it RICO!
This Lawyers Trick of denying and conceding the same point in the third sentence should be
panegyrized. "These issues" were not addressed in Judge McClanahan's Order.
As to pg. 15 RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim. Facts are decided by a Jury, please do not continually usurp.
As to pg. 16, additional continual Perjury. Respondent stated in Pre-Answer Omnibus Motion to
Dismiss with Prejudice Affidavit (first paper) " Notice of Petition & Petition were defective and unlawfully served. Petition to Recover Possession of Real Property is UNSIGNED (att. fax to NM&M) and NoP&P was not sent by certified/registered and regular mail and no attempts at personal service were made." A specific denial of proper service under RPAPL §735.
As to pg. 17 " Notice of Petition & Petition were defective and unlawfully served. Petition to Recover Possession of Real Property is UNSIGNED (att. fax to NM&M) and NoP&P was not sent by certified/registered and regular mail and no attempts at personal service were made." Petition
for Possession of Real Property is without ANY SIGNATURE.
As to pg. 18 " Notice of Petition & Petition were defective and unlawfully served. Petition to Recover Possession of Real Property is UNSIGNED (att. fax to NM&M) and NoP&P was not sent by certified/registered and regular mail and no attempts at personal service were made." RPAPL §735; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,
As to pg. 19 RICO/Consiglieri is either incompetent or Perjurious as any simple reading of Pre-
Answer OMDWP Affidavit and said RPAPL §735 would contradict this Lie.
As to pg. 20 we have repetition of the BIG LIE that would make Heir Dr. Goebbels proud.
As to pg. 21 the alleged un-notarized, unwitnessed, unverified, uncertified, lack of foundation,
lack of chain of custody "deed" is, upon information and belief, a forged instrument as stated in
Answer. Nevertheless this "document" should be considered by the Trier of Fact as an admission
against interest Re; lack of Consideration, (Nudum Pactum) i.e no contract. "All surplus
Federal Property must be put up for lawful, proper advertised Auction." 40 U.S.C. §484 (a)-(e).
RICO has additionally violated any (Nudum Pactum) "contract" with the People via
Innumerable Criminal Acts.
As to pg. 22 RICO did "delayed in pursuing it rent claims" by FAILURE TO PROSECUTE actual
current (52851/06) case by failing to supply to Court or Party TO THIS DAY its final motion reply
due FOR OVER ONE YEAR. There were additional cases Dismissed/Withdrawn by RICO due to
accusations of (other) Forged Documents Entered into Evidence (by Judge Ernest Cavallo
(075758/05)) and Perjury by alleged server (86806/05 Dismissed by Judge Peter Wendt).
As to pg. 23 RICO commits additional Perjury by its Justice Obstructing Canard Re: "a final
judgement" while acknowledging the existence of an appeal. The document allegedly created by
Judge Milin would be in violation of CPLR §2220. Index #52851/06 is still not dismissed.
As to pg. 24 RICO alleges "document" "was not found until May of 2006" which Respondent is
willing to Stipulate to as it was obviously created by RICO- at whatever time and violates CPLR
§2220. This "document" would violate CPLR §3216, §3404, Uniform Rule 202.27 (22 NYCRR 202.27) and NYCRR §208.14[c]). RICO could still file extremely untimely Reply to Opposition in
case #52851/06 as it gets away with default at every opportunity, without remedy, including
instant Cross-Motion & Reply, instead of having CONCURRENT CASES WITH IDENTICAL
CAUSES OF ACTION AND PARTIES (CPLR 3211(a)4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States; ).
As to pg. 25 Respondent has indeed "indicated a demand for a jury trial" on all papers,
including Pre-Answer Motion, Answer (first and last page" Jury Demand Respondent hereby
demands a Trial by Jury.") etc.. This again continual Goebbels like Perjury to state Jury Demand
is not "expressly requested". There is, of course, additional Perjury involving payment of Jury Fee
as IT WAS ALREADY PAID (see att.) in what Respondent still contends is the ACTUAL CASE
(52851/06). RICO would apparently have Respondent pay Jury fee twice for the SAME CASE
(same cause of action & parties), which respondent is willing to do, if necessary to secure
Constitutional Rights, and with approval by Court.
As to pg. 26, the Perjury continues, like an Amazon River of Lies. Respondent requested, by
Motion and identical to instant motion, that Pre-Answer Omnibus Motion be heard by Jury under
CPLR §2218. This relief was unarguably denied as it was well within the Courts right to do. THE
ISSUE OF A JURY TRIAL FOR THE CASE ITSELF WAS NOT BEFORE THE COURT. THERE
WAS AND IS NO MOTION TO STRIKE JURY DEMAND. THERE IS NO VALID JURY WAIVER.
pg. 1 (B). Conflict With Other Provisions Of Lease.
In case of any conflict between the provisions of this section of the Lease and any other provisions of the Lease, the provisions of this section shall prevail.
pg. 3 (N) Prohibited Lease Provisions:
Notwithstanding anything to the contrary contained in the Lease, any provision of the Lease which falls within the classifications below shall be inapplicable.
pg. 4 (6) Waiver of Jury trial, Authorization to the Landlord to waive the tenant's right to trial by Jury.
As to pg. 27 see above, additionally . Respondent has not "expressly" or in any other way
waived admitted"right to a jury trial". "Occupancy agreement" is undated and again Perjury by
petitioners counsel. The "signature" of signer is different from respondent's signature as seen
on court documents and instead a cheap forgery by the RICO to deny Civil and
Constitutional Rights as enumerated in AMENDED ANSWER pg21. Furthermore at
the bottom of the Unwitnessed, Unnotarized, quoted page effective date is no date
and "lease" was never served on tenant. A similar "rent rider to lease" was signed
by respondent under extreme illegal duress (pg21 Answer) after over eight years
without lease and without consideration. Respondent considers any "lease" signed
to be a renewal lease which as a matter of fact and law must be on the same terms
or better than the original lease (no lease). In the properly dated but apparently
forged "Addendum to lease" page 4 PROHIBITED LEASE PROVISIONS (6)
WAIVER OF JURY TRIAL: AUTHORIZATION TO THE LANDLORD TO WAIVE
THE TENANT'S RIGHT TO TRIAL BY JURY.
Additionally, in regard to "jury waivers", petitioner must show that alleged "jury
waiver was knowingly, intelligently, voluntarily, and intentionally made. 407-88
Associates v Sawyer, 83 Misc. 2d 300, 371 N.Y.S.2d 748 (City Civ. Ct. 1975); 1202
Realty Assoc. v. Evans, 126 Misc. 2d 99, 481 N.Y.S.2d 208 (City Civ. Ct. 1984). A
"jury waiver clause" written in small or illegible type or less than eight points in
depth on the Merganthaler scale (as in this case) is unenforceable. CPLR 4544;
Koslowski v. Palmieri, 98 Misc. 2d 885, 414 N.Y.S.2d 599 (App. Term 1979); Old
New York one Corp. v. Szabo, NYLJ 5/26/93, 23:3 (Civ Ct. NY County). Additionally
, the burden of proof that a valid jury waiver exists is on petitioner. Williams v.
Mascitti, 71 A.D.2d 813, 419 N.Y.S.2d 404 (4th Dep't 1979); L. G. J. K. Realty Corp.
v. Hartford Fire Ins. Co., 48 A.D.2d 670, 367 N.Y.S.2d 564 (2d Dep't 1975).
Additionally, respondents in summary eviction proceedings have a common
law right to trial by jury. NY Const. art. I, § 2; Glass v. Thompson, 51 A.D.2d 69, 379
N.Y.S.2d 427 (2d Dep't 1976). Jury trials in summary eviction proceedings are
authorized in RPAPL "at the time the petition is noticed to be heard, a party
demands a trial by jury, in which case trial shall be by jury." RPAPL § 745(1). There
are situations in which courts have refused to enforce jury trial waivers. Because
the right to trial by jury is so fundamental, courts should indulge every reasonable
presumption against waiver and should strictly construe jury waiver clauses. Aetna
Ins. Co. v. Kennedy to Use of Bogash, 301 U.S. 389, 57 S. Ct. 809, 81 L. Ed. 1177
(1937); Barrow v. Bloomfield, 30 A.D.2d 947, 293 N.Y.S2d 1007 (1st Dep't 1968).
Jury waiver clauses are prohibited for leases in federally assisted housing.
See 24 CFR Part 882, Subpart B, App I (Section 8 Housing); 24 CFR § 966.6(f)
(Public Housing).
As to pg.28 Respondent requests of court collateral estoppel regarding any
MOTION TO STRIKE JURY DEMAND as having been denied by Hon. Judge
Peter Wendt on December 8, 2004.
As to pg. 29 additional continual Perjury with regard to the sophistic "final judgement". If RICO is claiming Collateral Estoppel :
"Applied to a §1324b case before an ALJ, Worton defeats collateral estoppel because, despite McNier’s having pleaded § 1324b in his state case, the California courts necessarily only addressed race discrimination, § 1324b issues being exclusively reserved for the federal forae. Citizenship status discrimination and any cognate retaliation issues are not matters that might or could have been urged in support of the cause of action or claim in litigation in McNier’s state case. None of McNier’s other authorities (including criminal cases which turn essentially on due process considerations) reach the question, as here, of a totally different statutory cause of action the critical element of proof for which, i.e., citizenship status discrimination in violation of § 1324b, could not as a matter of exclusive federal jurisdiction have been in play in the state action." McNeir v Wallace 9 OCAHO#1074, Warton v Warton, 234 Cal. App. 3d 1638 (1991)
Iron Workers Local 455 v. Lake Construction & Development Corp., 7 OCAHO no. 964, 632, 658 (1997) “[t]he proponent of collateral estoppel has the burden of showing that the issue in the prior proceeding was identical and decisive”)
Collateral estoppel prevents the parties from re-litigating any issue actually litigated and finally decided in the earlier action. Lucindo v Superior Court (1990) 51 Cal.3d 335, 341, fn 3; Flynn V Gorton (1989) 207 Cal.App.3d 1550, 1554.
"The doctrine of collateral estoppel is one aspect of the concept of res judicata. In modern usage, however, the two terms have distinct meanings." (Lucindo v Superior Court, supra, 51 Cal.3d at p. 341, fn. 3.
Where "issues overlap but are not identical," collateral estoppel cannot be applied. Capital Telephone Co., 451 N.Y.S.2d at 15.
Discussing the right to a jury trial, the Supreme Court held that the district court’s resolution of issues raised by a former employee’s equitable claims did not collaterally estop relitigation of the same issues before a jury in context of the employee’s legal claims, where the district court first resolved the equitable claims solely because it had erroneously dismissed the legal claims. Lytle, 494 U.S. at 555-56.
The party seeking the benefit of collateral estoppel bears the burden of proving that an identical issue has been previously litigated and decided. Kaufman v. Eli Lilly and Co., 492 N.Y.S.2d 584, 588 (Ct. App. 1985); Capital Telephone Co. v. Pattersonville Telephone Co., 451 N.Y.S.2d 11, 14 (Ct. App. 1982)
In Capital Telephone, supra, the New York Court of Appeals ruled that if a second proceeding is to adjudge the same activity under a different legal standard than the first, no preclusion will occur if that activity could be found lawful under one standard and unlawful under the other. Capital Telephone, 451 N.Y.S.2d at 14
For collateral estoppel to preclude the litigation of a federal civil rights claim "[t]he court in which the first action was brought must have been willing and able to consider the theory that is advanced in the second action." Bottini v. Sadore Management Corp., 764 F.2d 116, 119 (2d Cir. 1985)
the issue must have been "actually determined in the prior proceeding." (Matter of Halyalkar v Board of Regents of State of N. Y., 72 NY2d 261, 268).
Prior litigation by the same parties on a different cause of action has a collateral estoppel effect only as to those issues litigated and determined in the prior action. (7 Witkin, Cal.Procedure (3d ed.1985) Judgment, section 253, p.691.)
The party asserting collateral estoppel has the burden to show from the record of the prior action that the asserted issue was previously litigated and determined. (Vella v. Hudgins (1977) 20 Cal.3d 251, 257-58.)
As to pg. 30 the RICO/Consiglieri, apparently practicing "plausible deniability" with regard to
uncountable ongoing Felonies, pretends to not have read Respondents papers, which would
violate Due Diligence and Model Rules of Conduct. Respondent Stipulates to complying with
2005 Stipulation, unfortunately for Respondent, RICO, of course, did not. That stipulation was, for
the most part, to pay for and ensure repair of outstanding violations by licensed Plumbers,
Electricians and Carpenters, as required by law, which, of course, never happened (see Answer
pg. 20)
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.CPLR §2214(b)Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time.
WHEREFORE, Respondent prays for the granting of an Order from the Court Granting
Respondent's Motion(s) in full, Dismissing Case(s) with prejudice, denying Plaintiff's Cross-
Motion in full, and for all such and further relief that this Court may deem just and appropriate.
______________________________
, Respondent Pro-Se
145 east 23rd street #4R
New York, NY 10010
Sworn Before me on the
17th Day of October, 2007
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, ( ), Respondent in this Action, being duly
sworn, hereby depose and state: As to Motions 1 & 2 Respondent continues to deny Personal
Jurisdiction due to Specific Denial of Receipt and Demands continued Special and/or Limited
Appearance status. Jury Trial Demand is as of Right and it is within the power of a Just Court to
grant Trial on the Instant Motion (CPLR §2218).
As to Violation of third straight Written Stipulation between parties by RICO Consiglieri
respondent Moves for Dismissal with Prejudice and sanctions. Admittedly RICO Eviction Mill/
Consiglieri has made hundreds of Citizens Destitute/Homeless for alleged Violation(s) of
Stipulation. Nevertheless it reserves to itself the unmitigated "right" to violate all Law and Lawful,
Enforceable Agreements Unilaterally, without Remedy. Respondent requests of Court, as
Remedy, for case(s) to be dismissed with Prejudice and monetary damages against RICO/
Plaintiff and/or the right to Unilaterally Prospectively violate any Law/Agreements between
parties without Remedy, as admittedly Respondent has retrospectively complied. Petitioner
(RICO) was required to, by Agreement, SERVE Opposition to Omnibus Motion II & Answer by
October 9, 2007 (see Attached). This did not occur. Cross-Motion/Opposition was mailed by
First Class Mail on October 9th, 2007 or later and is in perfect violation of CPLR §2103 (b) 2 where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period; A stamp may have been purchased (if
not reset) from in-office Pitney Bowes machine on 10/09/07(see att.) and affirmation is dated (no
Notary) on same, nevertheless Respondent believes it was actually mailed on 10/12/07,
nevertheless, it was late and defaulted regardless.
As to Motion for Damages for Perjury, Plaintiff/RICO continues to LIE , Obstruct Justice and
Willfully Misrepresent to the Court all Facts and/or Law. The endless lies would fill Encyclopedia
Britannica. We can start with the Appellate Term Order, wherein only a Motion to Stay was
(temporarily) denied (A Lie in PG. 4 page 2). Next, the RICO LIED in pg. 9 page 3 about Section 8
payments (more Fraud) as Respondent included four Documents showing payments through
2007. Admittedly Respondent never received Section 8 benefits as they were/are sent Directly
to the RICO and Respondent never received receipts, even upon request. Respondent now
again Demands Compelling Section 8 Voucher/Vendor numbers to assist Comptrollers Office
Investigation and Discovery. To Respondent, the most Criminal act(s) by RICO/Consiglieri
involve a so far successful attempt to deprive Respondent of Federal and State Constitutional
Rights to Trial By Jury. Alexander Hamilton in Federalist Paper No. 83 -"The friends and adversaries of the plan of the [constitutional] convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government."Thomas Jefferson's views were much stronger! -"I consider trial by jury the only anchor yet imagined by man, by which a government can be held to the principles of it's constitution." If you think that Jefferson overlooked the right to elect our representatives, you should consider a second quote of Jefferson, from a letter written in 1789, while serving. as ambassador to France: "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say that it is better to leave them out of the Legislative." Within Addendum to alleged "lease" are three pages which include pg. 1 (B). Conflict With Other Provisions Of Lease.
In case of any conflict between the provisions of this section of the Lease and any other provisions of the Lease, the provisions of this section shall prevail.
pg. 3 (N) Prohibited Lease Provisions:
Notwithstanding anything to the contrary contained in the Lease, any provision of the Lease which falls within the classifications below shall be inapplicable.
pg. 4 (6) Waiver of Jury trial, Authorization to the Landlord to waive the tenant's right to trial by Jury.
Admittedly these FACTS do not help the RICO due to there (deserved) pathological hatred of
Juries, apparently related to the outstanding unpaid $102,000,000 Judgment against them.
As to the Federal and State BIll of Rights regarding the ABSOLUTE RIGHT TO A JURY TRIAL,
Respondent believes the other party and the Court are or should be aware of this.
Respondent requests review by the Court of any actual Authority, and if so what Statute or
Precedent, is being relied upon for denial of Lawfully Requested Jury Trial for review by Court Of
Appeals.
As to Motion in Limine Respondent requests of the Court prospective and retrospective barring
of Uncertified, Un-notarized, Unverified "documents" without cross-examinable testimony/
evidence as to chain of custody and/or foundation. This includes any alleged "order"s,
"documents" showing no consideration was paid for property etc.. Additionally, Respondent
requests barring any alleged illegal ex parte "order" not served on parties or docketed with Court
Clerk to dispute undisputable Res Judicata CPLR §3211 (4) . There is another action pending between the same parties for the same cause of action in a court of any state or the United States; .
As to Motion to Stipulate, Respondent requests of Court that RICO/Consiglieri be forced to
Stipulate that their "by far the most egregious case of civil conspiracy in the body of law" Federal
Felony Conviction be considered Predicate RICO Felony under said statute, Title 18, Chapter 96, U.S.C., §1961-§1968.
As to Motion for Change of Venue to Federal Court, under U.S. Code Title 28, Part IV, Chapter
89, §1441. Actions removable generally, Respondent, Due to uncountable Federal Defenses,
Claims, Counterclaims, Constitutional issues, Federal ownership, etc., it is as of Right.
As to Motion to Dismiss & Sanctions for Obstruction of Justice, RICO/Consiglieri's attempt to
insert into record alleged "found" illegal ex parte unserved (admitted) un-docketed "order" in
order to (so far) successfully defeat unarguable (check Court Clerk) Res Judicata amounts to
Obstruction of Justice and must be sanctioned and case(s) Dismissed with Prejudice.
As to Motion to Vacate Alleged Order as Irregular see CPLR §2220 Entry and filing of order; service. (a) Entry and filing. An order determining a motion shall be entered and filed in the office
of the clerk of the court where the action is triable, and all papers used on the motion and any opinion or memorandum in writing shall be filed with that clerk unless the order dispenses with such filing. When a statute or civil practice rule requires such filing and entry in a county other than that in which the order was made, the party prevailing on the motion shall file the order and the papers used on the motion with the proper clerk after receiving them. If a party fails to file any
papers required to be filed under this subdivision, the order may be vacated as irregular, with costs. (b) Service. Service of an order shall be made by serving a copy of the order.
With regard to Defaulted Affirmation pg. 1 Respondent reiterates Opposition is Untimely and in
Violation of Stipulation and must be Struck/Barred.
As to pg.2 the proceedings (plural) commenced in 2006 under index # 52851/06 despite
RICO's admitted "Failure to Prosecute. The RICO is not allowed to have two concurrent cases
with Identical Causes of Action and Parties in order to Judge/Forum Shop.
As to pg. 3, Respondent believes that Judge McClanahan's appointment to the Federal Bench,
while laudable, was not in conformance with U. S. Constitution.
As to pg. 4 there is a pending Motion to Dismiss for Defective Predicate Notice due to lack of
Signature as required by CPLR §2101(a) Beneath each signature shall be printed the name signed. There is again sad and unfortunate Perjury involving Willful Mischaracterization of
Appellate Term Order, which involved only a Motion to Stay Proceedings as Requested Relief.
As to pg. 5 RICO apparently does not believe it is the "Plaintiff" and if so these two cases should be
Dismissed with Prejudice for no Cause of Action, no Relief or Jurisdiction.
As to pg. 6, with continued Perjury, "Plaintiff" (RICO) has supplied the predicted alleged "lease"
which includes the list of PROHIBITED LEASE PROVISIONS Waiver of Jury Trial on
aforementioned pages. This is new evidence. The RICO's outrageous BIG LIE are causing Dr.
Paul Joseph Goebbels to flip in his grave.
As to pg. 7 Respondent is informed this issue may, in fact, be moot.
As to pg. 8 the law is U.S Code Title 28, Part IV, Chapter 89, §1441 and facts are decided by
that bad thing (a "Jury"). Continued Perjury, this time Judge McClanahan's Order, where he
clearly did not say "the claim of a federal issue does not necessarily make it so" and is a brutal
intentional mischaracterization which means nothing. The alleged (un-notarized) "signature" on
Predicate Notice was of Debt Collector, lacking FDCPA Validation Notice and Violating "Williams
Consent Judgement". In an apparent attempt to create "Incompetent Counsel" defense, RICO
Consiglieri pretends to misapprehend RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim, or is it again Perjury?
As to pg. 9 the Racketeer Influenced Corrupt Organization/Consiglieri slithers around (like the
Serpent) it's Predicate Felony Section 8 Fraud. Simply ignoring admitted evidence previously
supplied, the Virtual Person states "he has not received them since well before January 2005",
which while technically true, is due to the fact that these payments GO DIRECTLY TO THE RICO.
Additionally no receipts have ever been given for these payments. Respondent requests
assistance of the Court to crush this ongoing Fraud and again requests the Independent Special
Prosecutor for the uncountable Felonies.
As to pg. 10 this is nonsensical. RICO/Consiglieri would have quoted any Law or Precedent
supporting this canard but did not as there is none.
As to pg. 11 the Perjury continues as Rico's own copy of Answer shows Service on August 20,2007. RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim.
As to pg. 12 ?
As to pg. 13 On what grounds?RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim.
As to pg. 14 This first and second sentence is finally correct, we knew you could do it RICO!
This Lawyers Trick of denying and conceding the same point in the third sentence should be
panegyrized. "These issues" were not addressed in Judge McClanahan's Order.
As to pg. 15 RPAPL §743 The answer may contain any legal or equitable defense, or counterclaim. The court may render affirmative judgment for the amount found due on the counterclaim. Facts are decided by a Jury, please do not continually usurp.
As to pg. 16, additional continual Perjury. Respondent stated in Pre-Answer Omnibus Motion to
Dismiss with Prejudice Affidavit (first paper) " Notice of Petition & Petition were defective and unlawfully served. Petition to Recover Possession of Real Property is UNSIGNED (att. fax to NM&M) and NoP&P was not sent by certified/registered and regular mail and no attempts at personal service were made." A specific denial of proper service under RPAPL §735.
As to pg. 17 " Notice of Petition & Petition were defective and unlawfully served. Petition to Recover Possession of Real Property is UNSIGNED (att. fax to NM&M) and NoP&P was not sent by certified/registered and regular mail and no attempts at personal service were made." Petition
for Possession of Real Property is without ANY SIGNATURE.
As to pg. 18 " Notice of Petition & Petition were defective and unlawfully served. Petition to Recover Possession of Real Property is UNSIGNED (att. fax to NM&M) and NoP&P was not sent by certified/registered and regular mail and no attempts at personal service were made." RPAPL §735; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,
As to pg. 19 RICO/Consiglieri is either incompetent or Perjurious as any simple reading of Pre-
Answer OMDWP Affidavit and said RPAPL §735 would contradict this Lie.
As to pg. 20 we have repetition of the BIG LIE that would make Heir Dr. Goebbels proud.
As to pg. 21 the alleged un-notarized, unwitnessed, unverified, uncertified, lack of foundation,
lack of chain of custody "deed" is, upon information and belief, a forged instrument as stated in
Answer. Nevertheless this "document" should be considered by the Trier of Fact as an admission
against interest Re; lack of Consideration, (Nudum Pactum) i.e no contract. "All surplus
Federal Property must be put up for lawful, proper advertised Auction." 40 U.S.C. §484 (a)-(e).
RICO has additionally violated any (Nudum Pactum) "contract" with the People via
Innumerable Criminal Acts.
As to pg. 22 RICO did "delayed in pursuing it rent claims" by FAILURE TO PROSECUTE actual
current (52851/06) case by failing to supply to Court or Party TO THIS DAY its final motion reply
due FOR OVER ONE YEAR. There were additional cases Dismissed/Withdrawn by RICO due to
accusations of (other) Forged Documents Entered into Evidence (by Judge Ernest Cavallo
(075758/05)) and Perjury by alleged server (86806/05 Dismissed by Judge Peter Wendt).
As to pg. 23 RICO commits additional Perjury by its Justice Obstructing Canard Re: "a final
judgement" while acknowledging the existence of an appeal. The document allegedly created by
Judge Milin would be in violation of CPLR §2220. Index #52851/06 is still not dismissed.
As to pg. 24 RICO alleges "document" "was not found until May of 2006" which Respondent is
willing to Stipulate to as it was obviously created by RICO- at whatever time and violates CPLR
§2220. This "document" would violate CPLR §3216, §3404, Uniform Rule 202.27 (22 NYCRR 202.27) and NYCRR §208.14[c]). RICO could still file extremely untimely Reply to Opposition in
case #52851/06 as it gets away with default at every opportunity, without remedy, including
instant Cross-Motion & Reply, instead of having CONCURRENT CASES WITH IDENTICAL
CAUSES OF ACTION AND PARTIES (CPLR 3211(a)4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States; ).
As to pg. 25 Respondent has indeed "indicated a demand for a jury trial" on all papers,
including Pre-Answer Motion, Answer (first and last page" Jury Demand Respondent hereby
demands a Trial by Jury.") etc.. This again continual Goebbels like Perjury to state Jury Demand
is not "expressly requested". There is, of course, additional Perjury involving payment of Jury Fee
as IT WAS ALREADY PAID (see att.) in what Respondent still contends is the ACTUAL CASE
(52851/06). RICO would apparently have Respondent pay Jury fee twice for the SAME CASE
(same cause of action & parties), which respondent is willing to do, if necessary to secure
Constitutional Rights, and with approval by Court.
As to pg. 26, the Perjury continues, like an Amazon River of Lies. Respondent requested, by
Motion and identical to instant motion, that Pre-Answer Omnibus Motion be heard by Jury under
CPLR §2218. This relief was unarguably denied as it was well within the Courts right to do. THE
ISSUE OF A JURY TRIAL FOR THE CASE ITSELF WAS NOT BEFORE THE COURT. THERE
WAS AND IS NO MOTION TO STRIKE JURY DEMAND. THERE IS NO VALID JURY WAIVER.
pg. 1 (B). Conflict With Other Provisions Of Lease.
In case of any conflict between the provisions of this section of the Lease and any other provisions of the Lease, the provisions of this section shall prevail.
pg. 3 (N) Prohibited Lease Provisions:
Notwithstanding anything to the contrary contained in the Lease, any provision of the Lease which falls within the classifications below shall be inapplicable.
pg. 4 (6) Waiver of Jury trial, Authorization to the Landlord to waive the tenant's right to trial by Jury.
As to pg. 27 see above, additionally . Respondent has not "expressly" or in any other way
waived admitted"right to a jury trial". "Occupancy agreement" is undated and again Perjury by
petitioners counsel. The "signature" of signer is different from respondent's signature as seen
on court documents and instead a cheap forgery by the RICO to deny Civil and
Constitutional Rights as enumerated in AMENDED ANSWER pg21. Furthermore at
the bottom of the Unwitnessed, Unnotarized, quoted page effective date is no date
and "lease" was never served on tenant. A similar "rent rider to lease" was signed
by respondent under extreme illegal duress (pg21 Answer) after over eight years
without lease and without consideration. Respondent considers any "lease" signed
to be a renewal lease which as a matter of fact and law must be on the same terms
or better than the original lease (no lease). In the properly dated but apparently
forged "Addendum to lease" page 4 PROHIBITED LEASE PROVISIONS (6)
WAIVER OF JURY TRIAL: AUTHORIZATION TO THE LANDLORD TO WAIVE
THE TENANT'S RIGHT TO TRIAL BY JURY.
Additionally, in regard to "jury waivers", petitioner must show that alleged "jury
waiver was knowingly, intelligently, voluntarily, and intentionally made. 407-88
Associates v Sawyer, 83 Misc. 2d 300, 371 N.Y.S.2d 748 (City Civ. Ct. 1975); 1202
Realty Assoc. v. Evans, 126 Misc. 2d 99, 481 N.Y.S.2d 208 (City Civ. Ct. 1984). A
"jury waiver clause" written in small or illegible type or less than eight points in
depth on the Merganthaler scale (as in this case) is unenforceable. CPLR 4544;
Koslowski v. Palmieri, 98 Misc. 2d 885, 414 N.Y.S.2d 599 (App. Term 1979); Old
New York one Corp. v. Szabo, NYLJ 5/26/93, 23:3 (Civ Ct. NY County). Additionally
, the burden of proof that a valid jury waiver exists is on petitioner. Williams v.
Mascitti, 71 A.D.2d 813, 419 N.Y.S.2d 404 (4th Dep't 1979); L. G. J. K. Realty Corp.
v. Hartford Fire Ins. Co., 48 A.D.2d 670, 367 N.Y.S.2d 564 (2d Dep't 1975).
Additionally, respondents in summary eviction proceedings have a common
law right to trial by jury. NY Const. art. I, § 2; Glass v. Thompson, 51 A.D.2d 69, 379
N.Y.S.2d 427 (2d Dep't 1976). Jury trials in summary eviction proceedings are
authorized in RPAPL "at the time the petition is noticed to be heard, a party
demands a trial by jury, in which case trial shall be by jury." RPAPL § 745(1). There
are situations in which courts have refused to enforce jury trial waivers. Because
the right to trial by jury is so fundamental, courts should indulge every reasonable
presumption against waiver and should strictly construe jury waiver clauses. Aetna
Ins. Co. v. Kennedy to Use of Bogash, 301 U.S. 389, 57 S. Ct. 809, 81 L. Ed. 1177
(1937); Barrow v. Bloomfield, 30 A.D.2d 947, 293 N.Y.S2d 1007 (1st Dep't 1968).
Jury waiver clauses are prohibited for leases in federally assisted housing.
See 24 CFR Part 882, Subpart B, App I (Section 8 Housing); 24 CFR § 966.6(f)
(Public Housing).
As to pg.28 Respondent requests of court collateral estoppel regarding any
MOTION TO STRIKE JURY DEMAND as having been denied by Hon. Judge
Peter Wendt on December 8, 2004.
As to pg. 29 additional continual Perjury with regard to the sophistic "final judgement". If RICO is claiming Collateral Estoppel :
"Applied to a §1324b case before an ALJ, Worton defeats collateral estoppel because, despite McNier’s having pleaded § 1324b in his state case, the California courts necessarily only addressed race discrimination, § 1324b issues being exclusively reserved for the federal forae. Citizenship status discrimination and any cognate retaliation issues are not matters that might or could have been urged in support of the cause of action or claim in litigation in McNier’s state case. None of McNier’s other authorities (including criminal cases which turn essentially on due process considerations) reach the question, as here, of a totally different statutory cause of action the critical element of proof for which, i.e., citizenship status discrimination in violation of § 1324b, could not as a matter of exclusive federal jurisdiction have been in play in the state action." McNeir v Wallace 9 OCAHO#1074, Warton v Warton, 234 Cal. App. 3d 1638 (1991)
Iron Workers Local 455 v. Lake Construction & Development Corp., 7 OCAHO no. 964, 632, 658 (1997) “[t]he proponent of collateral estoppel has the burden of showing that the issue in the prior proceeding was identical and decisive”)
Collateral estoppel prevents the parties from re-litigating any issue actually litigated and finally decided in the earlier action. Lucindo v Superior Court (1990) 51 Cal.3d 335, 341, fn 3; Flynn V Gorton (1989) 207 Cal.App.3d 1550, 1554.
"The doctrine of collateral estoppel is one aspect of the concept of res judicata. In modern usage, however, the two terms have distinct meanings." (Lucindo v Superior Court, supra, 51 Cal.3d at p. 341, fn. 3.
Where "issues overlap but are not identical," collateral estoppel cannot be applied. Capital Telephone Co., 451 N.Y.S.2d at 15.
Discussing the right to a jury trial, the Supreme Court held that the district court’s resolution of issues raised by a former employee’s equitable claims did not collaterally estop relitigation of the same issues before a jury in context of the employee’s legal claims, where the district court first resolved the equitable claims solely because it had erroneously dismissed the legal claims. Lytle, 494 U.S. at 555-56.
The party seeking the benefit of collateral estoppel bears the burden of proving that an identical issue has been previously litigated and decided. Kaufman v. Eli Lilly and Co., 492 N.Y.S.2d 584, 588 (Ct. App. 1985); Capital Telephone Co. v. Pattersonville Telephone Co., 451 N.Y.S.2d 11, 14 (Ct. App. 1982)
In Capital Telephone, supra, the New York Court of Appeals ruled that if a second proceeding is to adjudge the same activity under a different legal standard than the first, no preclusion will occur if that activity could be found lawful under one standard and unlawful under the other. Capital Telephone, 451 N.Y.S.2d at 14
For collateral estoppel to preclude the litigation of a federal civil rights claim "[t]he court in which the first action was brought must have been willing and able to consider the theory that is advanced in the second action." Bottini v. Sadore Management Corp., 764 F.2d 116, 119 (2d Cir. 1985)
the issue must have been "actually determined in the prior proceeding." (Matter of Halyalkar v Board of Regents of State of N. Y., 72 NY2d 261, 268).
Prior litigation by the same parties on a different cause of action has a collateral estoppel effect only as to those issues litigated and determined in the prior action. (7 Witkin, Cal.Procedure (3d ed.1985) Judgment, section 253, p.691.)
The party asserting collateral estoppel has the burden to show from the record of the prior action that the asserted issue was previously litigated and determined. (Vella v. Hudgins (1977) 20 Cal.3d 251, 257-58.)
As to pg. 30 the RICO/Consiglieri, apparently practicing "plausible deniability" with regard to
uncountable ongoing Felonies, pretends to not have read Respondents papers, which would
violate Due Diligence and Model Rules of Conduct. Respondent Stipulates to complying with
2005 Stipulation, unfortunately for Respondent, RICO, of course, did not. That stipulation was, for
the most part, to pay for and ensure repair of outstanding violations by licensed Plumbers,
Electricians and Carpenters, as required by law, which, of course, never happened (see Answer
pg. 20)
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.CPLR §2214(b)Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time.
WHEREFORE, Respondent prays for the granting of an Order from the Court Granting
Respondent's Motion(s) in full, Dismissing Case(s) with prejudice, denying Plaintiff's Cross-
Motion in full, and for all such and further relief that this Court may deem just and appropriate.
______________________________
, Respondent Pro-Se
145 east 23rd street #4R
New York, NY 10010
Sworn Before me on the
17th Day of October, 2007
Norris McLaughlin & Marcus-Fraud
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE III
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
, Respondent, sworn to on the 17th day of October, 2007, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1164(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 25th day of September, 2007 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE and/or LIMITED
APPEARANCE be granted to challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Dismiss for Third Stipulation Violation and Default (No Defense) &
Cross-Motion/Reply be struck for same (untimely).
(4) Motion for Damages under 22 NYCRR §130-1 for continued Perjury and
willful misrepresentation.
(5) Motion to Review Constitutionality of all Laws, Statute and/or Common, stated
or unstated, used to deny Trial by Jury, past, current and prospective.
(6) Motion to Review Constitutionality of Courts Authority to deny Trial by Jury
under State and Federal Constitution.
(7) Motion in Limine preventing Plaintiff/RICO from proffering "documents" lacking
Foundation, Verification, Certification, Notarization and/or Chain of Custody with
Testimony/Proof thereof.
(8) Motion in Limine preventing Plaintiff/RICO from proffering "found", not
Foundation, ex parte "order" regarding Res Judicata at issue (CPLR §3211(a)4).
(9) Motion for Stipulation that Plaintiff/Consiglieri has been convicted of Predicate
RICO Felony (Fraud, Perjury, etc.) Morganrogh & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406 (3d Cir. (N.J.) 2002) 2003 U.S. App. LEXIS 10808,*; 331 F.3d 406. (Att.)
(10) Motion for Change of Venue under U.S Code Title 28, Part IV, Chapter 89, § 1441. Actions removable generally
(11) Motion to Dismiss & Sanctions for Obstruction of Justice regarding alleged
ex parte "order" under U.S. Fifth & Fourteenth Amendments etc..
(12) Motion to Vacate Alleged Index #52851/06 Order as Irregular for violation of
CPLR §2220.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition with prejudice, granting
respondent's Motion(s) and for all such and further relief that this Court may deem
just and appropriate.
________________________
, Respondent pro se
145 east 23rd street
Petitioners counsel: New York, NY, 10010
Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated October 17, 2007
COUNTY OF NEW YORK : HOUSING PART H
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE III
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
, Respondent, sworn to on the 17th day of October, 2007, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1164(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 25th day of September, 2007 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE and/or LIMITED
APPEARANCE be granted to challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Dismiss for Third Stipulation Violation and Default (No Defense) &
Cross-Motion/Reply be struck for same (untimely).
(4) Motion for Damages under 22 NYCRR §130-1 for continued Perjury and
willful misrepresentation.
(5) Motion to Review Constitutionality of all Laws, Statute and/or Common, stated
or unstated, used to deny Trial by Jury, past, current and prospective.
(6) Motion to Review Constitutionality of Courts Authority to deny Trial by Jury
under State and Federal Constitution.
(7) Motion in Limine preventing Plaintiff/RICO from proffering "documents" lacking
Foundation, Verification, Certification, Notarization and/or Chain of Custody with
Testimony/Proof thereof.
(8) Motion in Limine preventing Plaintiff/RICO from proffering "found", not
Foundation, ex parte "order" regarding Res Judicata at issue (CPLR §3211(a)4).
(9) Motion for Stipulation that Plaintiff/Consiglieri has been convicted of Predicate
RICO Felony (Fraud, Perjury, etc.) Morganrogh & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406 (3d Cir. (N.J.) 2002) 2003 U.S. App. LEXIS 10808,*; 331 F.3d 406. (Att.)
(10) Motion for Change of Venue under U.S Code Title 28, Part IV, Chapter 89, § 1441. Actions removable generally
(11) Motion to Dismiss & Sanctions for Obstruction of Justice regarding alleged
ex parte "order" under U.S. Fifth & Fourteenth Amendments etc..
(12) Motion to Vacate Alleged Index #52851/06 Order as Irregular for violation of
CPLR §2220.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition with prejudice, granting
respondent's Motion(s) and for all such and further relief that this Court may deem
just and appropriate.
________________________
, Respondent pro se
145 east 23rd street
Petitioners counsel: New York, NY, 10010
Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated October 17, 2007
Friday, September 14, 2007
Kevin McClanahan Federal District Judge
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, (Tenant ), Respondent in this Action, being duly
sworn, hereby depose and state: That the Court (The Honorable Kevin McClanahan), Hearing
Officer or not (see Att. Met Council v. Crosson), has releases itself from Judicial Immunity by
operating outside its Jurisdiction (Federal) as well as without Personal Jurisdiction over
Respondent. Bias was evidenced in both appearances (see Transcripts) and see following:
"Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction." Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). Pulliam v. Allen (1984) 466 U.S. 522, the Supreme Court Justices held:
There is little support in the common law for a rule of judicial
immunity that prevents injunctive relief against a judge. There is
even less support for a conclusion that Congress intended to limit the
injunctive relief available under § 1983 in a way that would prevent
federal injunctive relief against a state judge.
In Pierson v. Ray, 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213
(1967), the Court found no indication of affirmative congressional
intent to insulate judges from the reach of the remedy Congress provided
in Section 1983. Nothing in the legislative history of § 1983 or
in this Court’s subsequent interpretations of that statute supports a
conclusion that Congress intended to insulate judges from prospective
collateral injunctive relief.
Congress enacted § 1983 and its predecessor, § 2 of the Civil
Rights Act of 1866, 14 Stat 27, to provide an independent avenue for
protection of federal constitutional rights. The remedy was considered
necessary because “state courts were being used to harass and
injure individuals, either because the state courts were powerless to
stop deprivations or were in league with those who were bent upon
abrogation of federally protected rights.” Mitchum v Foster, 407 US 42
225, 240, ... (every member of Congress who spoke to the issue assumed
that judges would be liable under Ԥ 1983).
Subsequent interpretations of the Civil Rights Acts by this Court
acknowledge Congress’ intent to reach unconstitutional actions by
all state actors, including judges. ... Judicial immunity is no bar to
the award of attorney’s fees under 42 U.S.C. § 1988.
Citing Pulliam v. Allen (1984) 466 U.S. 522, the Ninth Circuit held in
Dykes v. Hosemann, 743 F.2d 1388 (9th Cir. 1984):
It is clear that a judge who acts in the absence of subject matter
jurisdiction may be held liable for his judicial acts. Stump v. Sparkman,
435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Bradley v.
Fisher, 13 Wall.335, 20 L.Ed. 646 (1872). ... The rationale for this
limitation on judicial immunity is set out in Bradley v. Fisher and reiterated
in Stump v. Sparkman: “Where there is clearly no jurisdiction
over the subject-matter any authority exercised is a usurped authority,
and for the exercise of such authority, when the want of jurisdiction
is known, no excuse is permissible.”
An absence of personal jurisdiction may be said to destroy “all
jurisdiction” because the requirements of subject matter and personal
jurisdiction are conjunctional. Both must be met before a court
has authority to adjudicate the rights of parties to a dispute.
If a court lacks jurisdiction over a party, then it lacks “all jurisdiction”
to adjudicate that party’s rights, whether or not the subject
matter is properly before it. See, e.g., Kulko v. Superior Court, 436
U.S. 84 ... [i]t has long been the rule that a valid judgment imposing
a personal obligation or duty in favor of the plaintiff may be entered
only by a court having jurisdiction over the person of the defendant”)
(citations omitted) ... Because the limits of personal jurisdiction
constrain judicial authority, acts taken in the absence of personal
jurisdiction do not fall within the scope of legitimate decision
making that judicial immunity is designed to protect. See Gregory v.
Thompson, 500 F.2d at 63. We conclude that a judge who acts in the
clear and complete absence of personal jurisdiction loses his judicial
immunity.
Because the issues of whether Judge Hosemann knew he lacked
personal jurisdiction or acted in the face of clearly valid statutes or
case law expressly depriving him of jurisdiction are matters for initial
determination in the district court, we reverse the order dismissing
the claim against Judge Hosemann and remand to the district
court for further proceedings not inconsistent with this opinion.
The issue raised in the instant action, that also requires a jury trial,
is whether the defendants knew that they, and the lower court judges,
that they were (1) acting without jurisdiction; and (2) whether they
knew that they, and the other judges they protected, were acting in
the face of clearly valid statutes, case law, and federal question
rights. A jury trial is required on this basis alone.
Title 18 U.S.C. § 241 Conspiracy against rights of citizens. If two or
more persons conspire to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having so exercised
the same; ... They shall be fined ... or imprisoned ... or both;
Additional relevant Law and Case Law:
Title 28 U.S.C. § 1343,Title 42 U.S.C. § 1983, Title 42 USC § 1985, 28 U.S.C. § 144
28 U.S.C. § 455, United States v. Gigax, 605 F.2d 507 (10th Cir. 1979), Code of Judicial Conduct Canon 2, New York Judiciary Law §14, State and Federal due process rights to a neutral and detached jurist, to a fair hearing, and to the right to confront the witnesses against them (see, NY Const, art I, § 6; US Const 6th, 14th Amends), Johnson v. District Court, 674 P.2d 952 (1984), Rules of the Chief Administrator §100.3(E) (a) (i) the judge has a personal bias or prejudice concerning a party;
Respondent continues to deny Personal Jurisdiction due to Specific Denial of Receipt and
Demands continued Special and/or Limited Appearance status. Jury Trial Demand is as of Right
(see Att. Motion to Stay) and it is within the power of a Just Court to grant Trial on the Instant
Motion (CPLR §2218).
As to Motion to Recuse, the obvious bias by the court (Hon. Kevin McClanahan), on the record,
("He's really weird FOR A TENANT (lines 3 etc.)) show a hatred for tenants in general and this
Respondent in particular, either for reasons of Race, Ethnicity, Creed, Sex, Age and/or (partial
(Photophobia & Myopia)) Disability. Judge and/or Hearing Officer McClanahan is perhaps
unaware that this Court has no Jurisdiction over Federal Constitutional Claims, Federal Law, or
Federally owned property, which was not disputed by petitioner. Pending Complaint before the
Commission on Judicial Conduct and issues before Appellate Term, First Department are
additional grounds for Mandated Recusal of the Court.
As to Motion to Clarify Hearing Officer versus Judicial Authority see attached (Met Council v. Crosson 84 N.Y.2d 328, 642 N.E.2d 1073, 618 N.Y.S.2d 617 (1994).
As to Motion to Dismiss for violation of CPLR § 2214, petitioner failed to respond to lawfully
served original Omnibus Motion to Dismiss With Prejudice in a timely manner and thus was/is in
default. As to Defective Petition, It was not signed, as all Court Papers are required to be (CPLR § 2101 (see Boyd v. Kellman, 225 5th LLC v Fiori Fiori Inc., NYLJ, Feb. 16, 2005, at 22, col 3 (Civ Ct, NY County, Gesmer, J.).). Petitioner was noticed of this defect within two days of improper
service as required (see att.).
As to Motion to Dismiss for failure to include other Parties (CPLR § 3221(a)10), due to Section
8 status (att.), agreement between petitioner and HUD and Section 8 "lease rider". No
Certification procedure compliance (see the Williams consent decree).
As to Motion to Renew/Reargue Respondent again points to lack of Personal and Actual
(Federal) Jurisdiction over this case. Case # 52651/06 is still active and not off calendar. Plaintiff
failed to answer Omnibus Motion in unsigned "affirmation" in Opposition or in Court and thus
must be deemed stipulated to (see Motion to Stay). Respondent believes Vacatur of lawful
Stipulation (July 5, 2007) between parties lacks legal Authority and/or reason.
As to Motion to Dismiss for defective Predicate Notice, it was not signed by "landlord" or
petitioners counsel but by petitioners Debt Collector (see 8201 Realty Assoc. v. Navas).
As to Motion to Compel, Respondent, in the Interest of Justice and Federal and State Due
Process Rights, Demands sufficiently before trial to prepare, Plaintiff(RICO)'s witness list, any
Documentary and/or other evidence to be introduced at trial, and a Reply to Lawfully served
Answer.
As to Motion for Change of Venue, Respondent Demands that case(s) be moved to SDNY
Federal Court , as Court of Proper Jurisdiction, at Petitioner's expense. This need is evidenced by
all Federal Laws, U.S. Constitutional Defenses, and Unrebutted Federal Ownership Allegation
included in all respondents papers.
Respondent realizes there exists as much chance of winning any Motion in this Biased Court
(unless a Virtual Person) as Appalachian St. has of beating Michigan, and as a Subway
Motorman, Respondent is aware of being Railroaded. Nevertheless, without options, hope
springs eternal, and Respondent prays for Remedy/Relief aforesaid.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Petition in its entirety, and for all such and further relief that this
Court may deem just and appropriate.
______________________________
Tenant, Respondent Pro-Se
145 east 23rd street
New York, NY 10010
Sworn Before me on the
12th Day of September, 2007
COUNTY OF NEW YORK : HOUSING PART
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)
SS: I,____________________, (Tenant ), Respondent in this Action, being duly
sworn, hereby depose and state: That the Court (The Honorable Kevin McClanahan), Hearing
Officer or not (see Att. Met Council v. Crosson), has releases itself from Judicial Immunity by
operating outside its Jurisdiction (Federal) as well as without Personal Jurisdiction over
Respondent. Bias was evidenced in both appearances (see Transcripts) and see following:
"Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction." Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). Pulliam v. Allen (1984) 466 U.S. 522, the Supreme Court Justices held:
There is little support in the common law for a rule of judicial
immunity that prevents injunctive relief against a judge. There is
even less support for a conclusion that Congress intended to limit the
injunctive relief available under § 1983 in a way that would prevent
federal injunctive relief against a state judge.
In Pierson v. Ray, 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213
(1967), the Court found no indication of affirmative congressional
intent to insulate judges from the reach of the remedy Congress provided
in Section 1983. Nothing in the legislative history of § 1983 or
in this Court’s subsequent interpretations of that statute supports a
conclusion that Congress intended to insulate judges from prospective
collateral injunctive relief.
Congress enacted § 1983 and its predecessor, § 2 of the Civil
Rights Act of 1866, 14 Stat 27, to provide an independent avenue for
protection of federal constitutional rights. The remedy was considered
necessary because “state courts were being used to harass and
injure individuals, either because the state courts were powerless to
stop deprivations or were in league with those who were bent upon
abrogation of federally protected rights.” Mitchum v Foster, 407 US 42
225, 240, ... (every member of Congress who spoke to the issue assumed
that judges would be liable under Ԥ 1983).
Subsequent interpretations of the Civil Rights Acts by this Court
acknowledge Congress’ intent to reach unconstitutional actions by
all state actors, including judges. ... Judicial immunity is no bar to
the award of attorney’s fees under 42 U.S.C. § 1988.
Citing Pulliam v. Allen (1984) 466 U.S. 522, the Ninth Circuit held in
Dykes v. Hosemann, 743 F.2d 1388 (9th Cir. 1984):
It is clear that a judge who acts in the absence of subject matter
jurisdiction may be held liable for his judicial acts. Stump v. Sparkman,
435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Bradley v.
Fisher, 13 Wall.335, 20 L.Ed. 646 (1872). ... The rationale for this
limitation on judicial immunity is set out in Bradley v. Fisher and reiterated
in Stump v. Sparkman: “Where there is clearly no jurisdiction
over the subject-matter any authority exercised is a usurped authority,
and for the exercise of such authority, when the want of jurisdiction
is known, no excuse is permissible.”
An absence of personal jurisdiction may be said to destroy “all
jurisdiction” because the requirements of subject matter and personal
jurisdiction are conjunctional. Both must be met before a court
has authority to adjudicate the rights of parties to a dispute.
If a court lacks jurisdiction over a party, then it lacks “all jurisdiction”
to adjudicate that party’s rights, whether or not the subject
matter is properly before it. See, e.g., Kulko v. Superior Court, 436
U.S. 84 ... [i]t has long been the rule that a valid judgment imposing
a personal obligation or duty in favor of the plaintiff may be entered
only by a court having jurisdiction over the person of the defendant”)
(citations omitted) ... Because the limits of personal jurisdiction
constrain judicial authority, acts taken in the absence of personal
jurisdiction do not fall within the scope of legitimate decision
making that judicial immunity is designed to protect. See Gregory v.
Thompson, 500 F.2d at 63. We conclude that a judge who acts in the
clear and complete absence of personal jurisdiction loses his judicial
immunity.
Because the issues of whether Judge Hosemann knew he lacked
personal jurisdiction or acted in the face of clearly valid statutes or
case law expressly depriving him of jurisdiction are matters for initial
determination in the district court, we reverse the order dismissing
the claim against Judge Hosemann and remand to the district
court for further proceedings not inconsistent with this opinion.
The issue raised in the instant action, that also requires a jury trial,
is whether the defendants knew that they, and the lower court judges,
that they were (1) acting without jurisdiction; and (2) whether they
knew that they, and the other judges they protected, were acting in
the face of clearly valid statutes, case law, and federal question
rights. A jury trial is required on this basis alone.
Title 18 U.S.C. § 241 Conspiracy against rights of citizens. If two or
more persons conspire to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having so exercised
the same; ... They shall be fined ... or imprisoned ... or both;
Additional relevant Law and Case Law:
Title 28 U.S.C. § 1343,Title 42 U.S.C. § 1983, Title 42 USC § 1985, 28 U.S.C. § 144
28 U.S.C. § 455, United States v. Gigax, 605 F.2d 507 (10th Cir. 1979), Code of Judicial Conduct Canon 2, New York Judiciary Law §14, State and Federal due process rights to a neutral and detached jurist, to a fair hearing, and to the right to confront the witnesses against them (see, NY Const, art I, § 6; US Const 6th, 14th Amends), Johnson v. District Court, 674 P.2d 952 (1984), Rules of the Chief Administrator §100.3(E) (a) (i) the judge has a personal bias or prejudice concerning a party;
Respondent continues to deny Personal Jurisdiction due to Specific Denial of Receipt and
Demands continued Special and/or Limited Appearance status. Jury Trial Demand is as of Right
(see Att. Motion to Stay) and it is within the power of a Just Court to grant Trial on the Instant
Motion (CPLR §2218).
As to Motion to Recuse, the obvious bias by the court (Hon. Kevin McClanahan), on the record,
("He's really weird FOR A TENANT (lines 3 etc.)) show a hatred for tenants in general and this
Respondent in particular, either for reasons of Race, Ethnicity, Creed, Sex, Age and/or (partial
(Photophobia & Myopia)) Disability. Judge and/or Hearing Officer McClanahan is perhaps
unaware that this Court has no Jurisdiction over Federal Constitutional Claims, Federal Law, or
Federally owned property, which was not disputed by petitioner. Pending Complaint before the
Commission on Judicial Conduct and issues before Appellate Term, First Department are
additional grounds for Mandated Recusal of the Court.
As to Motion to Clarify Hearing Officer versus Judicial Authority see attached (Met Council v. Crosson 84 N.Y.2d 328, 642 N.E.2d 1073, 618 N.Y.S.2d 617 (1994).
As to Motion to Dismiss for violation of CPLR § 2214, petitioner failed to respond to lawfully
served original Omnibus Motion to Dismiss With Prejudice in a timely manner and thus was/is in
default. As to Defective Petition, It was not signed, as all Court Papers are required to be (CPLR § 2101 (see Boyd v. Kellman, 225 5th LLC v Fiori Fiori Inc., NYLJ, Feb. 16, 2005, at 22, col 3 (Civ Ct, NY County, Gesmer, J.).). Petitioner was noticed of this defect within two days of improper
service as required (see att.).
As to Motion to Dismiss for failure to include other Parties (CPLR § 3221(a)10), due to Section
8 status (att.), agreement between petitioner and HUD and Section 8 "lease rider". No
Certification procedure compliance (see the Williams consent decree).
As to Motion to Renew/Reargue Respondent again points to lack of Personal and Actual
(Federal) Jurisdiction over this case. Case # 52651/06 is still active and not off calendar. Plaintiff
failed to answer Omnibus Motion in unsigned "affirmation" in Opposition or in Court and thus
must be deemed stipulated to (see Motion to Stay). Respondent believes Vacatur of lawful
Stipulation (July 5, 2007) between parties lacks legal Authority and/or reason.
As to Motion to Dismiss for defective Predicate Notice, it was not signed by "landlord" or
petitioners counsel but by petitioners Debt Collector (see 8201 Realty Assoc. v. Navas).
As to Motion to Compel, Respondent, in the Interest of Justice and Federal and State Due
Process Rights, Demands sufficiently before trial to prepare, Plaintiff(RICO)'s witness list, any
Documentary and/or other evidence to be introduced at trial, and a Reply to Lawfully served
Answer.
As to Motion for Change of Venue, Respondent Demands that case(s) be moved to SDNY
Federal Court , as Court of Proper Jurisdiction, at Petitioner's expense. This need is evidenced by
all Federal Laws, U.S. Constitutional Defenses, and Unrebutted Federal Ownership Allegation
included in all respondents papers.
Respondent realizes there exists as much chance of winning any Motion in this Biased Court
(unless a Virtual Person) as Appalachian St. has of beating Michigan, and as a Subway
Motorman, Respondent is aware of being Railroaded. Nevertheless, without options, hope
springs eternal, and Respondent prays for Remedy/Relief aforesaid.
PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice
and affidavits. A notice of motion and supporting affidavits shall be served at least eight days
before the time at which the motion is noticed to be heard. Answering affidavits shall be served at
least two days before such time.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Petition in its entirety, and for all such and further relief that this
Court may deem just and appropriate.
______________________________
Tenant, Respondent Pro-Se
145 east 23rd street
New York, NY 10010
Sworn Before me on the
12th Day of September, 2007
Kevin McClanahan Crooked Hearing Officer
CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE II
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
Tenant, Respondent, sworn to on the 12th day of September, 2007, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1162(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 20th day of September, 2007 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE be granted to
challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Recuse Judge Kevin McClanahan ("The Court") "in the clear absence of jurisdiction", and for Bias.
(5) Motion as to whether Court is operating under Authority (Rules and Law) of Hearing Officer or Judge.
(6) Motion to Dismiss for violation of CPLR § 2214 and Defective Petition.
(7) Motion to Dismiss for failure to include DHPD and/or NYCHA and/or HUD as parties (CPLR §3211).
(8) Motion to Renew/Reargue Omnibus Motion to Dismiss and Vacatur of Stipulation.
(9) Motion to Dismiss for defective Predicate Notice (no "landlords" signature).
(10) Motion to Compel production of witness list, any evidence for Trial and Reply to Answer.
(11) Motion for Change of Venue to SDNY Federal District Court at Plaintiff's Cost, if not Moot.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition in its entirety, granting
respondent's Motion(s) and for all such and further relief that this Court may deem
just and appropriate.
________________________
Tenant, Respondent pro se
145 east 23rd street
Petitioners counsel: New York, NY, 10010
Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated September 12, 2007
COUNTY OF NEW YORK : HOUSING PART
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : OMNIBUS
v. : MOTION TO
: DISMISS WITH
: PREJUDICE II
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affidavit of ____________
Tenant, Respondent, sworn to on the 12th day of September, 2007, and upon
all exhibits & papers annexed hereto, the undersigned (respondent) will move this
Court at a Motion term held before Room 1162(b) at the New York County (Civil)
Courthouse located at 111 Centre Street, on the 20th day of September, 2007 at
9:30 A.M. , for an order: (1) That SPECIAL APPEARANCE be granted to
challenge lack of PERSONAL JURISDICTION Book Review, New York Civil Practice, Vol.112 U.Pa.L.Rev. pp. 1222, 1230 (1963)(CPLR § 3211).
(2) That JURY TRIAL be granted for instant motion (CPLR §2218).
(3) Motion to Recuse Judge Kevin McClanahan ("The Court") "in the clear absence of jurisdiction", and for Bias.
(5) Motion as to whether Court is operating under Authority (Rules and Law) of Hearing Officer or Judge.
(6) Motion to Dismiss for violation of CPLR § 2214 and Defective Petition.
(7) Motion to Dismiss for failure to include DHPD and/or NYCHA and/or HUD as parties (CPLR §3211).
(8) Motion to Renew/Reargue Omnibus Motion to Dismiss and Vacatur of Stipulation.
(9) Motion to Dismiss for defective Predicate Notice (no "landlords" signature).
(10) Motion to Compel production of witness list, any evidence for Trial and Reply to Answer.
(11) Motion for Change of Venue to SDNY Federal District Court at Plaintiff's Cost, if not Moot.
WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Notice of Petition & Petition in its entirety, granting
respondent's Motion(s) and for all such and further relief that this Court may deem
just and appropriate.
________________________
Tenant, Respondent pro se
145 east 23rd street
Petitioners counsel: New York, NY, 10010
Norris McLaughlin & Marcus, P.A.
875 Third Avenue Fl 18
New York, NY 10022
Dated September 12, 2007
Kevin McClanahan Gang-Star
TRANSCRIPT #071507/07 & 52851/06 July 26, 2007 10:15-10:20 a.m. New York City Housing Court Part H Room 1164B Judge Kevin McClanahan. Kenmore V. Tenant
Line 1; Court Attorney, "He was supposed to serve the opposition papers by today,
Line 2; because he didn't, that's why the tenant wants to dismiss the case. Um he's
Line 3; real weird." McClanahan "RICO?" Court Attorney "He's weird for a tenant."
Line 4: McClanahan "I know how that works. I know what to expect." C.A. "I've
Line 5: seen him here before." McClanahan "Yea, he's been here. O and have
Line 6: Mort see him in Part R." C.A. "Go to Trial Part? Really?, mmm"
Line 7: McClanahan "So" C.A. "I tried to conference it." McClanahan "No I
Line 8: understand. I'm just trying to figure out what I got here. So there was
Line 9: another proceeding." C.A. "Yea, but it was just that, what they did, and Line 10: because the landlord admitted, he agreed that he didn't serve it on time.
Line 11: So whatever the Tenant wanted to do, he wanted more time to put in an
Line 12: Answer, and the Tenant what he said is he wanted to dismiss the case."
Line 13: McClanahan "Okay....Court calls the matter of Kenmore Associates
Line 14: against Tenant. Who's here for the Petitioner?" Roberts "Petitioner, your Line 15: Honor, Dean M. Roberts, Norris McLaughlin and Marcus, 875 Third
Line 16: Avenue New York, New York 10022" McClanahan "Who's here for the
Line 17: Respondent?" Tenant "My name is Tenant, Respondent pro-se 145
Line 18: East 23rd Street, New York, New York,10010."
Line 19: McClanahan "Alright, I understand that there's an initial issue.You have a Line 20: Motion to Dismiss pursuant to at least several RICO Statute and other
Line 21: provisions. There was a Stipulation. I gather Opposition was to be served Line 22: by July 17th." Roberts "That's correct your Honor" McClanahan " And
Line 23: when were they served?" Roberts "They weren't. They were prepared.
Line 24: Because of a mistake of my office, which I'll admit fault, it wasn't served on Line 25: Mr. Tenant." McClanahan "Alright" Tenant "Alright, I Move the Court for a Line 26: Motion to Dismiss for a violation of the Stipulation. McClanahan "Alright, Line 27: your application is denied. Court prefers a resolution of the disputes on Line 28: the merits. I will accept the Opposition. If you want more time to time to Line 29: put in a Reply, you can certainly have that. Please serve your adversary."
Line 30: Roberts "Certainly your Honor." McClanahan "Mr. Tenant, do you want time
Line 31: to put in a written reply?" Tenant "A, yes your Honor. Obviously I need
Line 32: adequate time to review this motion that I haven't received yet.
Line 33: So...obviously for a return date, your Honor, Thursdays are very good for Line 33: me. I work for the Transit Authority and I'm not always able to get days Line 33: off." McClanahan "Alright, today is the 26th. The next two weeks will be Line 33: August 9th, which is a Thursday." Tenant "August 9th? That will be
Line 34: acceptable your Honor." McClanahan "And you can bring your Reply into
Line 35: Court." Roberts "Thank you, your Honor" Court Attorney "What
Line 36: happened?" McClanahan "Yea, it went okay. I gave him time to put in a
Line 37: Reply. He's hung." C. A. "Okay, poor chump"
Line 1; Court Attorney, "He was supposed to serve the opposition papers by today,
Line 2; because he didn't, that's why the tenant wants to dismiss the case. Um he's
Line 3; real weird." McClanahan "RICO?" Court Attorney "He's weird for a tenant."
Line 4: McClanahan "I know how that works. I know what to expect." C.A. "I've
Line 5: seen him here before." McClanahan "Yea, he's been here. O and have
Line 6: Mort see him in Part R." C.A. "Go to Trial Part? Really?, mmm"
Line 7: McClanahan "So" C.A. "I tried to conference it." McClanahan "No I
Line 8: understand. I'm just trying to figure out what I got here. So there was
Line 9: another proceeding." C.A. "Yea, but it was just that, what they did, and Line 10: because the landlord admitted, he agreed that he didn't serve it on time.
Line 11: So whatever the Tenant wanted to do, he wanted more time to put in an
Line 12: Answer, and the Tenant what he said is he wanted to dismiss the case."
Line 13: McClanahan "Okay....Court calls the matter of Kenmore Associates
Line 14: against Tenant. Who's here for the Petitioner?" Roberts "Petitioner, your Line 15: Honor, Dean M. Roberts, Norris McLaughlin and Marcus, 875 Third
Line 16: Avenue New York, New York 10022" McClanahan "Who's here for the
Line 17: Respondent?" Tenant "My name is Tenant, Respondent pro-se 145
Line 18: East 23rd Street, New York, New York,10010."
Line 19: McClanahan "Alright, I understand that there's an initial issue.You have a Line 20: Motion to Dismiss pursuant to at least several RICO Statute and other
Line 21: provisions. There was a Stipulation. I gather Opposition was to be served Line 22: by July 17th." Roberts "That's correct your Honor" McClanahan " And
Line 23: when were they served?" Roberts "They weren't. They were prepared.
Line 24: Because of a mistake of my office, which I'll admit fault, it wasn't served on Line 25: Mr. Tenant." McClanahan "Alright" Tenant "Alright, I Move the Court for a Line 26: Motion to Dismiss for a violation of the Stipulation. McClanahan "Alright, Line 27: your application is denied. Court prefers a resolution of the disputes on Line 28: the merits. I will accept the Opposition. If you want more time to time to Line 29: put in a Reply, you can certainly have that. Please serve your adversary."
Line 30: Roberts "Certainly your Honor." McClanahan "Mr. Tenant, do you want time
Line 31: to put in a written reply?" Tenant "A, yes your Honor. Obviously I need
Line 32: adequate time to review this motion that I haven't received yet.
Line 33: So...obviously for a return date, your Honor, Thursdays are very good for Line 33: me. I work for the Transit Authority and I'm not always able to get days Line 33: off." McClanahan "Alright, today is the 26th. The next two weeks will be Line 33: August 9th, which is a Thursday." Tenant "August 9th? That will be
Line 34: acceptable your Honor." McClanahan "And you can bring your Reply into
Line 35: Court." Roberts "Thank you, your Honor" Court Attorney "What
Line 36: happened?" McClanahan "Yea, it went okay. I gave him time to put in a
Line 37: Reply. He's hung." C. A. "Okay, poor chump"
Wednesday, September 12, 2007
Next Court Date September 20
In Front of our Hero, Room 1164B 111 Centre Street NY, NY 9:30am. Please contact poster at finmaccool(at)gmail.com. Show up to see the Corrupt.
Friday, September 07, 2007
Kevin McClanahan, Worlds Most Crooked Judge
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM, FIRST DEPARTMENT
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/2007 &
HOUSING & SERVICES INC. & : Index # 52851/2006
Norris McLaughlin & Marcus :
Petitioner-Appellee : AFFIDAVIT
v. :
Tenant , :
:
Tenant- Appellant :
---------------------------------------------------------X
(State of New York)(County of New York)
SS: I,____________________, (Tenant), Appellant in this Action, being duly
sworn, hereby depose and state: Honorable Judge Kevin McClanahan, in an Order
(att. ex. 1) dated August 9, 2007 ended Access to Courts and the need for Federal
Bench/Courts. In the most Corrupt, Incompetent and/or Biased Order since the
Hammurabi Code, the right to cross-examine the alleged signer of an Affidavit or the
non-signer of an "Affirmation" has ended. No longer must an alleged landlord supply
any "lease" or evidence showing the existence of a valid Jury Waiver, or even request a
Motion to Strike Jury Demand, in violation of CPLR § 2219(A) fixed on the Order page.
Judge (Hearing Officer?(see Met Council v Crosson, 84 N.Y.2d 328, 642 N.E.2d 1073, 618 N.Y.S.2d 617 (1994)(att.) October 27, 1994), Babigian v Wachtler, 133 Misc 2d 111, affd 126 AD2d 445, affd 69 NY2d 1012, Glass v. Thompson, 51 A.D.2d 69, 74-75, 379 N.Y.S.2d 427,. 433-34 (1976)) McClanahan apparently anointed himself to and/or
usurped the Power, Jurisdiction and/or Authority of the SDNY Federal Court. Judge
McClanahan additionally decided a case that was not before him (index #52851) as
well as issues not before him (Title 18, Chapter 96, United States Code, §1961-§1968,
Federal and State Constitutional right to a Jury Trial, etc.). Federal Section 8 Fraud is
now apparently legal (USHA of 1937, 42 U.S.C.A. §§ 1437f, 64 Fed. Reg. 26631, 24 CFR Ch. VII (4–1–02 Edition) §792).
In regard to denial of Traverse Hearing, Appellant included in Affidavit in Support of
Motion to Dismiss, a Specific Denial of Receipt (see att. ex.3)(MMM Assoc., LLC v.
Chang). In regard to standing (property is owned by Federal Government (U.S. v. All
Right, Title and Interest in Real Property and Appurtenances Thereto Known as 143-147
East 23rd Street, 94 Civ. 4148) Omnibus Motion #14 disputed unsigned "Petition"'s pg. 1
statement of ownership. This was disputed further in attached Amended Answer &
Affidavit from case index #52851/06 and was not responded to in unsigned "affirmation"
or in court by opposing counsel and thus should be deemed stipulated to (The law is clear...that 'failing to respond to a fact attested in the moving papers...will be deemed to admit it', Siegel, New York Practice, §281 (1999 ed., p. 442)- citing Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 599 (1975), itself citing Laye v. Shepard, 265 N.Y.S.2d 142 (1965), aff'd 267 N.Y.S.2d 477 (1st Dept. 1966) and Siegel, McKinney,s Consolidated Laws of New York Annotated, Book 7F., CPLR §3212:16. 'If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it' id. undenied allegations will be deemed to be admitted. Whitmore v. J. Jungman, Inc., 129 N.y.S. 776, 777 (S.Ct, Ny Co. 1911)".
As to plea/claim of Res Judicata by Appellant, Judge McClanahan apparently ruled
on the status of a case not before him (index #52851) by stating "The Case is
dismissed" (see Line 41 Transcript (att.)) when in fact and according to evidence
attached to Omnibus Motion (att.) and Appellant's testimony (lines 31 on) it is still on and
not even off calendar but simply "Reserved for Judgment". Judge McClanahan, acting
for the Court, could have combined the cases, or dismissed the one in front of him, as
the previous (and current) case is farther along, but he chose to do neither. The
Honorable Maria Milin may, or may not, have written an order for case #52851/06, but
regardless, it was not served on the parties or the Court. This was admitted to by both
parties in court (see lines 75,76). Likely, the reason Judge Milin did not serve the Order
is that there simply was no basis in law for the prospective dismissal (see CPLR §3216, §3404, Uniform Rule 202.27 (22 NYCRR 202.27) and NYCRR §208.14[c]).
Appellant did request in the instant Omnibus Motion to Dismiss With Prejudice a Jury
Trial FOR THE MOTION(CPLR §2218) which was possibly disputed in the unsigned
"Affirmation" in Opposition (pg. 10 (see att.)), which states "His occupancy agreement
dated November _[sic], 1997" and for which no supporting "occupancy agreement" was
submitted (CPLR §2219(A)). Admittedly, the alleged Order by Judge Milin was also not
included as an attachment/exhibit for Appellant, but apparently was included in the
Court's copy, putting Appellant at great disadvantage, as was apparently the intent.
There was no Motion to Strike Jury Demand in case #071507/07 and the alleged writer
of the unsigned "Affirmation" in Opposition was not in Court. Judge McClanahan's
apparent girlfriend, Mia Falls esq. for petitioner, did not dispute CPLR §2218 request.
Judge McClanahan, apparently acting as lead co-counsel for Appellee and/or
retained Agent for the Rent Stabilization Association and/or Federal District Court Judge,
decided to hold a trial on Federal RICO Act claims not yet advanced in the case before
him. Appellant did attach, as evidence of Res Judicata, in the instant Omnibus Motion,
papers from the case His Honor claims is Dismissed (it is not), which include among the
Affirmative Defenses Predicate Felonies performed by Plaintiff. Appellant was required,
by the World's Most Crooked Judge, without notice, to argue any RICO Act claims and/or
evidence IN FIVE SENTENCES OR LESS AN ISSUE THAT WAS NOT BEFORE HIM.
The Judge and the Court, in what may extend into criminality, did not have Jurisdiction
over any RICO issues or the actual Federal Laws that were included in the instant
Omnibus Motion, including Federal Consent Judgment (Motion #7), Fair Debt Collection
Practices Act (#6), Federal False Claims Act, (#9) as well as the Section 8 Fraud (#8)
which was proven with attached evidence and not disputed.
The Court refused to allow CPLR §2221 Motion to Renew/Re-argue Vacatur of
Stipulation without logic,as well as Motion to Dismiss for CPLR §2214 violation.
At the risk of being redundant Appellant includes previous (from case #52851/06)
Motion to Strike Jury Demand reply below: (From #52851/06 Reply to Opposition)
"25. Respondent has not "expressly" or in any other way waived admitted"right to a
jury trial". "Occupancy agreement" is undated and again Perjury by petitioners
counsel. The "signature" of signer is different from respondent's signature as seen
on court documents and instead a cheap forgery by the RICO to deny Civil and
Constitutional Rights as enumerated in AMENDED ANSWER pg21. Furthermore at
the bottom of the Unwitnessed, Un-notarized, quoted page effective date is no date
and "lease" was never served on tenant. A similar "rent rider to lease" was signed
by respondent under extreme illegal duress (pg21 AA) after over eight years
without lease and without consideration. Respondent considers any "lease" signed
to be a renewal lease which as a matter of fact and law must be on the same terms
or better than the original lease (no lease). In the properly dated but apparently
forged "Addendum to lease" page 4 PROHIBITED LEASE PROVISIONS (6)
WAIVER OF JURY TRIAL: AUTHORIZATION TO THE LANDLORD TO WAIVE
THE TENANT'S RIGHT TO TRIAL BY JURY.
26. Additionally, in regard to "jury waivers", petitioner must show that alleged "jury
waiver was knowingly, intelligently, voluntarily, and intentionally made. 407-88
Associates v Sawyer, 83 Misc. 2d 300, 371 N.Y.S.2d 748 (City Civ. Ct. 1975); 1202
Realty Assoc. v. Evans, 126 Misc. 2d 99, 481 N.Y.S.2d 208 (City Civ. Ct. 1984). A
"jury waiver clause" written in small or illegible type or less than eight points in
depth on the Merganthaler scale (as in this case) is unenforceable. CPLR 4544;
Koslowski v. Palmieri, 98 Misc. 2d 885, 414 N.Y.S.2d 599 (App. Term 1979); Old
New York one Corp. v. Szabo, NYLJ 5/26/93, 23:3 (Civ Ct. NY County). Additionally
, the burden of proof that a valid jury waiver exists is on petitioner. Williams v.
Mascitti, 71 A.D.2d 813, 419 N.Y.S.2d 404 (4th Dep't 1979); L. G. J. K. Realty Corp.
v. Hartford Fire Ins. Co., 48 A.D.2d 670, 367 N.Y.S.2d 564 (2d Dep't 1975).
27. Additionally, respondents in summary eviction proceedings have a common
law right to trial by jury. NY Const. art. I, § 2; Glass v. Thompson, 51 A.D.2d 69, 379
N.Y.S.2d 427 (2d Dep't 1976). Jury trials in summary eviction proceedings are
authorized in RPAPL "at the time the petition is noticed to be heard, a party
demands a trial by jury, in which case trial shall be by jury." RPAPL § 745(1). There
are situations in which courts have refused to enforce jury trial waivers. Because
the right to trial by jury is so fundamental, courts should indulge every reasonable
presumption against waiver and should strictly construe jury waiver clauses. Aetna
Ins. Co. v. Kennedy to Use of Bogash, 301 U.S. 389, 57 S. Ct. 809, 81 L. Ed. 1177
(1937); Barrow v. Bloomfield, 30 A.D.2d 947, 293 N.Y.S2d 1007 (1st Dep't 1968).
Jury waiver clauses are prohibited for leases in federally assisted housing.
See 24 CFR Part 882, Subpart B, App I (Section 8 Housing); 24 CFR § 966.6(f)
(Public Housing).
28. Respondent requests of court collateral estoppel regarding petitioner's
MOTION TO STRIKE JURY DEMAND as having been denied by Hon. Judge
Peter Wendt on December 8, 2004 (see att.)."
Additionally with regard to Access to Courts:
1. "The Right to a Jury Trial is a Fundamental Liberty Essential to Our Scheme of
Justice. The right to jury trial has deep historical roots, imbedded in the English
civil tradition and later transplanted, and jealously guarded, in America by its
earliest settlers. William Blackstone cited the Magna Carter for the establishment of
the civil jury trial as "the principle bulwark of liberties… [and] it was ever
esteemed, in all countries, a privilege of the highest and most beneficial nature. "
William Blackstone, 3 Commentaries on the Laws of England 349-50 (1765). He
believed it to be a bulwark against state power, writing that "it is the most
transcendent privilege which any subject can enjoy, or wish for, that he cannot be
affected either in his property, his liberty, or his person, but by the unanimous
consent of twelve of his neighbors and equals." Id. at 379. This Court agreed with
the check against arbitrary power Blackstone assigned jury trials, holding that "
those whose emigrated to this country from England brought with them this great
advantage as their birthright and inheritance, as a part of that admirable common
law which had fenced around and interposed barriers on every side against the
approaches of arbitrary power." Duncan v. Louisiana, 391 U.S. 145, 154 (1968)
(quotations and footnote omitted). This country's Founders listed the denial of the
right to a jury trial among those reasons justify their independence from Great
Britain. On October 14, 1774, the First Continental Congress adopted the
Declaration and Resolves, which declared that "the respective colonies are
entitled to the common law of England, and more especially to the great and
inestimable privilege of being tried by their peers of the vicinage, according to the
course of that law." Declarations and Resolves of the First Continental Congress
(Oct. 14, 1774), in Gordon Lloyd & Margie Lloyd, The Essential Bill of Rights 169
(1998). In drafting the Declaration of the Causes and Necessities of Taking Up
Arms, the colonists gave as one of their principal grievances the denial "of the
accustomed and inestimable privilege of trial by jury, in cases affecting both life
and property." Declaration of Causes and Necessity of Taking Up Arms (July
6, 1775), in Richard L. Perry, Sources of Our Liberties (rev. ed., 1978). In the
1776 Declaration of Independence, the United States, in listing "injuries and
usurpations" of King George III, included the denial of the benefits of trial by jury.
Id. at 296. Of the eleven States who ratified new constitutions in the decade
following the Declaration of Independence, all "retained charter provisions for the
right to trial by jury in both criminal and civil cases." Paul D. Carrington, The
Civil Jury and American Democracy, 13 Duke J. Comp. & Int'l L. 79, 83 (2003).
"In fact, the right to trial by jury was probably the only one universally secured by
the first American state constitutions." Charles W. Wolfram, The Constitutional
History of the Seventh Amendment, 57 Minn. L. Rev. 639, 655 (1973). The fact
that the Constitution, as proposed to the States for ratification, did not pertain
provisions protecting, among other rights, the right to trial by jury, almost was
condemning its successful adoption by the country. Hamilton wrote that: "The
friends and adversaries of the plan of the convention, if they agree on noting else,
concur at least in the value they set upon the trial by jury; or if there is any
difference between them it consists of this: the former regard it as a valuable
safeguard to liberty; the latter represent it as the very palladium of free
government." The Federalist No. 83 (Alexander Hamilton). Given this historical
context, it is easy to understand this Court's holding that: "The right of jury trial in
civil cases at common law is a basic and fundamental feature of our system of
federal jurisprudence which is protected by the Seventh Amendment. A right so
fundamental and sacred to the citizen, whether guaranteed by the Constitution or
provided by statute, should be jealously guarded by the courts." Jacob v. City of
New York, 315 U.S. 752, 752-53 (1942). Then-Justice Rehnquist went on to write:
"The founders of our Nation considered the right of trial by jury in civil cases an
important bulwark against tyranny and corruption, a safeguard too precious to be
left to the whim of the sovereign, or, it might be added, to that of the judiciary…
Trial by jury of laymen rather than by the sovereign's judges was important to the
founders because juries represent the layman's common sense, the —passional
elements in our nature," and thus keep the administration of law in accord with the
wishes and feelings of the community. Parklance Hosiery Co. v. Shore, 439 U.S.
322, 343 (Rehnquist, J. dissenting) (quoting O. Wendell Holmes, Collected Legal
Papers 237 (1920)) (footnote omitted). In Duncan v. Louisiana, 391 U.S. 145
(1968), this Court held that "a general grant of jury trial…is a fundamental right,
essential for preventing miscarriages of justice and for assuring that fair trials are
provided for all..." Id. at 154-58. The Duncan Court provided at least nine different
ways that the jury trial was essential to a fair trial, stating that it was "(1)
fundamental to the American scheme of justice, (2) granted in order to prevent
oppression by the Government, 93) to protect against judges too responsive to the
voice of higher authority, (4) to provide protection against arbitrary action, (5) to
provide the common-sense judgment of a jury to the more tutored but perhaps less
sympathetic reaction of the single judge, (6) to reflect a fundamental decision about
the exercise of official power–a reluctance to entrust plenary powers of the life and
liberty of the citizen to one judge or to a group of judges, (7) to alleviate the fear of
unchecked power, so typical of our State and Federal Governments in other
respects, found expression in this insistence upon community participation in the
determination of guilt or innocence, (8) to prevent miscarriages of justice, and (9) to
assure that fair trials are provided for all defendants. James L. —Larry" Wright,
Remember the Alamo: The Seventh Amendment of the United States Constitution,
The Doctrine of Incorporation, and State Caps on Jury Awards, 45 STXLR 449,
516-17 (2004). 2. The Province of the Jury. Though the right of a trial by jury has
been firmly established in this Court's jurisprudence, the question remains "
whether a particular issue occurring within a jury trial…is itself necessarily a jury
issue, the guarantee being essential to preserve the right to a jury's resolution of the
ultimate dispute." Markman v. Westview Instruments, Inc., 517 U.S. 370, 377
(1996). This Court has repeatedly held the answer to this question: "Must depend
on whether the jury must shoulder this responsibility as necessary to preserve ”the
substance of the common-law right of trial by jury." Tull v. United States, supra,
at 426, (emphasis added) (quoting Colgrove v. Battin, 413 U.S 149, 156 (1973));
see also Baltimore v. Carolina Line, supra, at 657. Id. "Only those incidents
which are regarded as fundamental, as inherent in and of the essence of the system
of trial by jury, are placed beyond the reach of the legislature." Tull v. United
States, 481 U.S. 412, 426 (1987) (internal citations and quotations omitted); see
also Galloway v. United States, 319 U.S. 372 (1943). Thus, this Court had held
that "[t]he two most important attributes of the right to trial by jury are (1) the
right of the parties to have the jury decide mixed questions of law and fact, and (2)
the right of the parties to have the jury draw inferences from the evidence." William
V. Dorsanenno, III, Reexamining the Right to Trial By Jury, 54 SMULR 1694,
1698 (2001). In regards to Rule 12(b)(6) motions to dismiss, the right to trial by
jury means at least this, that the courts are constitutionally mandated to show
judicial restraint in granting said motions."Bell Atlantic Corporation, et al. v.
William Twombly, et al., Supreme Court of the U.S., Sup. Ct. No. 05-1126.
Justice Black, "Under our constitutional system, courts stand against any
winds that blow as havens of refuge for those who might otherwise suffer because
they are helpless, weak, outnumbered, or because they are nonconforming victims
of prejudice and public excitement. Due process of law, preserved for all by our
Constitution, commands that no such practice as that disclosed by this record shall
send any accused to his death. No higher duty, no more solemn responsibility, rests
upon this Court than that of translating into living law and maintaining this
constitutional shield deliberately planned and inscribed for the benefit of every
human being subject to our Constitution -- of whatever race, creed or persuasion. "
[p*242]" Chambers v. Florida, 309 U.S. 227 (1940).
Justice Marshall in Chauffeurs, Teamsters and Helpers, Local No. 391 v.
Terry, 494 U.S. 558, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990) "The Seventh
Amendment provides that "[i]n Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved." The right to a jury trial includes more than the common-law forms of
action recognized in 1791; the phrase "Suits at common law" refers to "suits in
which legal rights [are] to be ascertained and determined, in contradistinction to
those where equitable rights alone [are] recognized, and equitable remedies [are]
administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830); see also ibid. ("[T]he
amendment then may well be construed to embrace all suits which are not of equity
and admiralty jurisdiction, whatever may be the peculiar form which they may
assume to settle legal rights"). The right extends to causes of action created by
Congress. Tull v. United States, 481 U.S. 412, 417 (1987). Since the merger of the
systems of law and equity, see Fed. Rule Civ. Proc. 2, this Court has carefully
preserved the right to trial by jury where legal rights are at stake. As the Court
noted in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501 (1959),
"`Maintenance of the jury as a fact-finding body is of such importance and
occupies so firm a place in our history and jurisprudence that any seeming
curtailment of the right to a jury trial should be scrutinized with the utmost
care'" (quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935))."
Chief Justice Marshall "[The] government of the United States has been
emphatically termed a government of laws, and not of men. It will certainly cease
to deserve this high appellation, if the laws furnish no remedy for the violation of a
vested legal right. ." William Marbury v. James Madison, Secretary of State of the
United States 5 U.S. 137; 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352.
Appellant redacted #52851/06 Amended Answer from OMTDWP as it is wholly
included in #071507/07 Answer and replaced #52851 Verification of Case Status with
more recent but otherwise identical one. The included Transcript has not been approved
by opposing counsel or the Court. PLEASE TAKE FURTHER NOTICE that pursuant to
CPLR §2214(b)Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time.
WHEREFORE, Appellant prays for the granting of an Order from the Court Staying Civil
(Housing) Court Order, and for all such and further relief that this Court may deem just
and appropriate.
APPELLATE TERM, FIRST DEPARTMENT
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/2007 &
HOUSING & SERVICES INC. & : Index # 52851/2006
Norris McLaughlin & Marcus :
Petitioner-Appellee : AFFIDAVIT
v. :
Tenant , :
:
Tenant- Appellant :
---------------------------------------------------------X
(State of New York)(County of New York)
SS: I,____________________, (Tenant), Appellant in this Action, being duly
sworn, hereby depose and state: Honorable Judge Kevin McClanahan, in an Order
(att. ex. 1) dated August 9, 2007 ended Access to Courts and the need for Federal
Bench/Courts. In the most Corrupt, Incompetent and/or Biased Order since the
Hammurabi Code, the right to cross-examine the alleged signer of an Affidavit or the
non-signer of an "Affirmation" has ended. No longer must an alleged landlord supply
any "lease" or evidence showing the existence of a valid Jury Waiver, or even request a
Motion to Strike Jury Demand, in violation of CPLR § 2219(A) fixed on the Order page.
Judge (Hearing Officer?(see Met Council v Crosson, 84 N.Y.2d 328, 642 N.E.2d 1073, 618 N.Y.S.2d 617 (1994)(att.) October 27, 1994), Babigian v Wachtler, 133 Misc 2d 111, affd 126 AD2d 445, affd 69 NY2d 1012, Glass v. Thompson, 51 A.D.2d 69, 74-75, 379 N.Y.S.2d 427,. 433-34 (1976)) McClanahan apparently anointed himself to and/or
usurped the Power, Jurisdiction and/or Authority of the SDNY Federal Court. Judge
McClanahan additionally decided a case that was not before him (index #52851) as
well as issues not before him (Title 18, Chapter 96, United States Code, §1961-§1968,
Federal and State Constitutional right to a Jury Trial, etc.). Federal Section 8 Fraud is
now apparently legal (USHA of 1937, 42 U.S.C.A. §§ 1437f, 64 Fed. Reg. 26631, 24 CFR Ch. VII (4–1–02 Edition) §792).
In regard to denial of Traverse Hearing, Appellant included in Affidavit in Support of
Motion to Dismiss, a Specific Denial of Receipt (see att. ex.3)(MMM Assoc., LLC v.
Chang). In regard to standing (property is owned by Federal Government (U.S. v. All
Right, Title and Interest in Real Property and Appurtenances Thereto Known as 143-147
East 23rd Street, 94 Civ. 4148) Omnibus Motion #14 disputed unsigned "Petition"'s pg. 1
statement of ownership. This was disputed further in attached Amended Answer &
Affidavit from case index #52851/06 and was not responded to in unsigned "affirmation"
or in court by opposing counsel and thus should be deemed stipulated to (The law is clear...that 'failing to respond to a fact attested in the moving papers...will be deemed to admit it', Siegel, New York Practice, §281 (1999 ed., p. 442)- citing Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 599 (1975), itself citing Laye v. Shepard, 265 N.Y.S.2d 142 (1965), aff'd 267 N.Y.S.2d 477 (1st Dept. 1966) and Siegel, McKinney,s Consolidated Laws of New York Annotated, Book 7F., CPLR §3212:16. 'If a key fact appears in the movant's papers and the opposing party makes no reference to it, he is deemed to have admitted it' id. undenied allegations will be deemed to be admitted. Whitmore v. J. Jungman, Inc., 129 N.y.S. 776, 777 (S.Ct, Ny Co. 1911)".
As to plea/claim of Res Judicata by Appellant, Judge McClanahan apparently ruled
on the status of a case not before him (index #52851) by stating "The Case is
dismissed" (see Line 41 Transcript (att.)) when in fact and according to evidence
attached to Omnibus Motion (att.) and Appellant's testimony (lines 31 on) it is still on and
not even off calendar but simply "Reserved for Judgment". Judge McClanahan, acting
for the Court, could have combined the cases, or dismissed the one in front of him, as
the previous (and current) case is farther along, but he chose to do neither. The
Honorable Maria Milin may, or may not, have written an order for case #52851/06, but
regardless, it was not served on the parties or the Court. This was admitted to by both
parties in court (see lines 75,76). Likely, the reason Judge Milin did not serve the Order
is that there simply was no basis in law for the prospective dismissal (see CPLR §3216, §3404, Uniform Rule 202.27 (22 NYCRR 202.27) and NYCRR §208.14[c]).
Appellant did request in the instant Omnibus Motion to Dismiss With Prejudice a Jury
Trial FOR THE MOTION(CPLR §2218) which was possibly disputed in the unsigned
"Affirmation" in Opposition (pg. 10 (see att.)), which states "His occupancy agreement
dated November _[sic], 1997" and for which no supporting "occupancy agreement" was
submitted (CPLR §2219(A)). Admittedly, the alleged Order by Judge Milin was also not
included as an attachment/exhibit for Appellant, but apparently was included in the
Court's copy, putting Appellant at great disadvantage, as was apparently the intent.
There was no Motion to Strike Jury Demand in case #071507/07 and the alleged writer
of the unsigned "Affirmation" in Opposition was not in Court. Judge McClanahan's
apparent girlfriend, Mia Falls esq. for petitioner, did not dispute CPLR §2218 request.
Judge McClanahan, apparently acting as lead co-counsel for Appellee and/or
retained Agent for the Rent Stabilization Association and/or Federal District Court Judge,
decided to hold a trial on Federal RICO Act claims not yet advanced in the case before
him. Appellant did attach, as evidence of Res Judicata, in the instant Omnibus Motion,
papers from the case His Honor claims is Dismissed (it is not), which include among the
Affirmative Defenses Predicate Felonies performed by Plaintiff. Appellant was required,
by the World's Most Crooked Judge, without notice, to argue any RICO Act claims and/or
evidence IN FIVE SENTENCES OR LESS AN ISSUE THAT WAS NOT BEFORE HIM.
The Judge and the Court, in what may extend into criminality, did not have Jurisdiction
over any RICO issues or the actual Federal Laws that were included in the instant
Omnibus Motion, including Federal Consent Judgment (Motion #7), Fair Debt Collection
Practices Act (#6), Federal False Claims Act, (#9) as well as the Section 8 Fraud (#8)
which was proven with attached evidence and not disputed.
The Court refused to allow CPLR §2221 Motion to Renew/Re-argue Vacatur of
Stipulation without logic,as well as Motion to Dismiss for CPLR §2214 violation.
At the risk of being redundant Appellant includes previous (from case #52851/06)
Motion to Strike Jury Demand reply below: (From #52851/06 Reply to Opposition)
"25. Respondent has not "expressly" or in any other way waived admitted"right to a
jury trial". "Occupancy agreement" is undated and again Perjury by petitioners
counsel. The "signature" of signer is different from respondent's signature as seen
on court documents and instead a cheap forgery by the RICO to deny Civil and
Constitutional Rights as enumerated in AMENDED ANSWER pg21. Furthermore at
the bottom of the Unwitnessed, Un-notarized, quoted page effective date is no date
and "lease" was never served on tenant. A similar "rent rider to lease" was signed
by respondent under extreme illegal duress (pg21 AA) after over eight years
without lease and without consideration. Respondent considers any "lease" signed
to be a renewal lease which as a matter of fact and law must be on the same terms
or better than the original lease (no lease). In the properly dated but apparently
forged "Addendum to lease" page 4 PROHIBITED LEASE PROVISIONS (6)
WAIVER OF JURY TRIAL: AUTHORIZATION TO THE LANDLORD TO WAIVE
THE TENANT'S RIGHT TO TRIAL BY JURY.
26. Additionally, in regard to "jury waivers", petitioner must show that alleged "jury
waiver was knowingly, intelligently, voluntarily, and intentionally made. 407-88
Associates v Sawyer, 83 Misc. 2d 300, 371 N.Y.S.2d 748 (City Civ. Ct. 1975); 1202
Realty Assoc. v. Evans, 126 Misc. 2d 99, 481 N.Y.S.2d 208 (City Civ. Ct. 1984). A
"jury waiver clause" written in small or illegible type or less than eight points in
depth on the Merganthaler scale (as in this case) is unenforceable. CPLR 4544;
Koslowski v. Palmieri, 98 Misc. 2d 885, 414 N.Y.S.2d 599 (App. Term 1979); Old
New York one Corp. v. Szabo, NYLJ 5/26/93, 23:3 (Civ Ct. NY County). Additionally
, the burden of proof that a valid jury waiver exists is on petitioner. Williams v.
Mascitti, 71 A.D.2d 813, 419 N.Y.S.2d 404 (4th Dep't 1979); L. G. J. K. Realty Corp.
v. Hartford Fire Ins. Co., 48 A.D.2d 670, 367 N.Y.S.2d 564 (2d Dep't 1975).
27. Additionally, respondents in summary eviction proceedings have a common
law right to trial by jury. NY Const. art. I, § 2; Glass v. Thompson, 51 A.D.2d 69, 379
N.Y.S.2d 427 (2d Dep't 1976). Jury trials in summary eviction proceedings are
authorized in RPAPL "at the time the petition is noticed to be heard, a party
demands a trial by jury, in which case trial shall be by jury." RPAPL § 745(1). There
are situations in which courts have refused to enforce jury trial waivers. Because
the right to trial by jury is so fundamental, courts should indulge every reasonable
presumption against waiver and should strictly construe jury waiver clauses. Aetna
Ins. Co. v. Kennedy to Use of Bogash, 301 U.S. 389, 57 S. Ct. 809, 81 L. Ed. 1177
(1937); Barrow v. Bloomfield, 30 A.D.2d 947, 293 N.Y.S2d 1007 (1st Dep't 1968).
Jury waiver clauses are prohibited for leases in federally assisted housing.
See 24 CFR Part 882, Subpart B, App I (Section 8 Housing); 24 CFR § 966.6(f)
(Public Housing).
28. Respondent requests of court collateral estoppel regarding petitioner's
MOTION TO STRIKE JURY DEMAND as having been denied by Hon. Judge
Peter Wendt on December 8, 2004 (see att.)."
Additionally with regard to Access to Courts:
1. "The Right to a Jury Trial is a Fundamental Liberty Essential to Our Scheme of
Justice. The right to jury trial has deep historical roots, imbedded in the English
civil tradition and later transplanted, and jealously guarded, in America by its
earliest settlers. William Blackstone cited the Magna Carter for the establishment of
the civil jury trial as "the principle bulwark of liberties… [and] it was ever
esteemed, in all countries, a privilege of the highest and most beneficial nature. "
William Blackstone, 3 Commentaries on the Laws of England 349-50 (1765). He
believed it to be a bulwark against state power, writing that "it is the most
transcendent privilege which any subject can enjoy, or wish for, that he cannot be
affected either in his property, his liberty, or his person, but by the unanimous
consent of twelve of his neighbors and equals." Id. at 379. This Court agreed with
the check against arbitrary power Blackstone assigned jury trials, holding that "
those whose emigrated to this country from England brought with them this great
advantage as their birthright and inheritance, as a part of that admirable common
law which had fenced around and interposed barriers on every side against the
approaches of arbitrary power." Duncan v. Louisiana, 391 U.S. 145, 154 (1968)
(quotations and footnote omitted). This country's Founders listed the denial of the
right to a jury trial among those reasons justify their independence from Great
Britain. On October 14, 1774, the First Continental Congress adopted the
Declaration and Resolves, which declared that "the respective colonies are
entitled to the common law of England, and more especially to the great and
inestimable privilege of being tried by their peers of the vicinage, according to the
course of that law." Declarations and Resolves of the First Continental Congress
(Oct. 14, 1774), in Gordon Lloyd & Margie Lloyd, The Essential Bill of Rights 169
(1998). In drafting the Declaration of the Causes and Necessities of Taking Up
Arms, the colonists gave as one of their principal grievances the denial "of the
accustomed and inestimable privilege of trial by jury, in cases affecting both life
and property." Declaration of Causes and Necessity of Taking Up Arms (July
6, 1775), in Richard L. Perry, Sources of Our Liberties (rev. ed., 1978). In the
1776 Declaration of Independence, the United States, in listing "injuries and
usurpations" of King George III, included the denial of the benefits of trial by jury.
Id. at 296. Of the eleven States who ratified new constitutions in the decade
following the Declaration of Independence, all "retained charter provisions for the
right to trial by jury in both criminal and civil cases." Paul D. Carrington, The
Civil Jury and American Democracy, 13 Duke J. Comp. & Int'l L. 79, 83 (2003).
"In fact, the right to trial by jury was probably the only one universally secured by
the first American state constitutions." Charles W. Wolfram, The Constitutional
History of the Seventh Amendment, 57 Minn. L. Rev. 639, 655 (1973). The fact
that the Constitution, as proposed to the States for ratification, did not pertain
provisions protecting, among other rights, the right to trial by jury, almost was
condemning its successful adoption by the country. Hamilton wrote that: "The
friends and adversaries of the plan of the convention, if they agree on noting else,
concur at least in the value they set upon the trial by jury; or if there is any
difference between them it consists of this: the former regard it as a valuable
safeguard to liberty; the latter represent it as the very palladium of free
government." The Federalist No. 83 (Alexander Hamilton). Given this historical
context, it is easy to understand this Court's holding that: "The right of jury trial in
civil cases at common law is a basic and fundamental feature of our system of
federal jurisprudence which is protected by the Seventh Amendment. A right so
fundamental and sacred to the citizen, whether guaranteed by the Constitution or
provided by statute, should be jealously guarded by the courts." Jacob v. City of
New York, 315 U.S. 752, 752-53 (1942). Then-Justice Rehnquist went on to write:
"The founders of our Nation considered the right of trial by jury in civil cases an
important bulwark against tyranny and corruption, a safeguard too precious to be
left to the whim of the sovereign, or, it might be added, to that of the judiciary…
Trial by jury of laymen rather than by the sovereign's judges was important to the
founders because juries represent the layman's common sense, the —passional
elements in our nature," and thus keep the administration of law in accord with the
wishes and feelings of the community. Parklance Hosiery Co. v. Shore, 439 U.S.
322, 343 (Rehnquist, J. dissenting) (quoting O. Wendell Holmes, Collected Legal
Papers 237 (1920)) (footnote omitted). In Duncan v. Louisiana, 391 U.S. 145
(1968), this Court held that "a general grant of jury trial…is a fundamental right,
essential for preventing miscarriages of justice and for assuring that fair trials are
provided for all..." Id. at 154-58. The Duncan Court provided at least nine different
ways that the jury trial was essential to a fair trial, stating that it was "(1)
fundamental to the American scheme of justice, (2) granted in order to prevent
oppression by the Government, 93) to protect against judges too responsive to the
voice of higher authority, (4) to provide protection against arbitrary action, (5) to
provide the common-sense judgment of a jury to the more tutored but perhaps less
sympathetic reaction of the single judge, (6) to reflect a fundamental decision about
the exercise of official power–a reluctance to entrust plenary powers of the life and
liberty of the citizen to one judge or to a group of judges, (7) to alleviate the fear of
unchecked power, so typical of our State and Federal Governments in other
respects, found expression in this insistence upon community participation in the
determination of guilt or innocence, (8) to prevent miscarriages of justice, and (9) to
assure that fair trials are provided for all defendants. James L. —Larry" Wright,
Remember the Alamo: The Seventh Amendment of the United States Constitution,
The Doctrine of Incorporation, and State Caps on Jury Awards, 45 STXLR 449,
516-17 (2004). 2. The Province of the Jury. Though the right of a trial by jury has
been firmly established in this Court's jurisprudence, the question remains "
whether a particular issue occurring within a jury trial…is itself necessarily a jury
issue, the guarantee being essential to preserve the right to a jury's resolution of the
ultimate dispute." Markman v. Westview Instruments, Inc., 517 U.S. 370, 377
(1996). This Court has repeatedly held the answer to this question: "Must depend
on whether the jury must shoulder this responsibility as necessary to preserve ”the
substance of the common-law right of trial by jury." Tull v. United States, supra,
at 426, (emphasis added) (quoting Colgrove v. Battin, 413 U.S 149, 156 (1973));
see also Baltimore v. Carolina Line, supra, at 657. Id. "Only those incidents
which are regarded as fundamental, as inherent in and of the essence of the system
of trial by jury, are placed beyond the reach of the legislature." Tull v. United
States, 481 U.S. 412, 426 (1987) (internal citations and quotations omitted); see
also Galloway v. United States, 319 U.S. 372 (1943). Thus, this Court had held
that "[t]he two most important attributes of the right to trial by jury are (1) the
right of the parties to have the jury decide mixed questions of law and fact, and (2)
the right of the parties to have the jury draw inferences from the evidence." William
V. Dorsanenno, III, Reexamining the Right to Trial By Jury, 54 SMULR 1694,
1698 (2001). In regards to Rule 12(b)(6) motions to dismiss, the right to trial by
jury means at least this, that the courts are constitutionally mandated to show
judicial restraint in granting said motions."Bell Atlantic Corporation, et al. v.
William Twombly, et al., Supreme Court of the U.S., Sup. Ct. No. 05-1126.
Justice Black, "Under our constitutional system, courts stand against any
winds that blow as havens of refuge for those who might otherwise suffer because
they are helpless, weak, outnumbered, or because they are nonconforming victims
of prejudice and public excitement. Due process of law, preserved for all by our
Constitution, commands that no such practice as that disclosed by this record shall
send any accused to his death. No higher duty, no more solemn responsibility, rests
upon this Court than that of translating into living law and maintaining this
constitutional shield deliberately planned and inscribed for the benefit of every
human being subject to our Constitution -- of whatever race, creed or persuasion. "
[p*242]" Chambers v. Florida, 309 U.S. 227 (1940).
Justice Marshall in Chauffeurs, Teamsters and Helpers, Local No. 391 v.
Terry, 494 U.S. 558, 110 S.Ct. 1339, 108 L.Ed.2d 519 (1990) "The Seventh
Amendment provides that "[i]n Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved." The right to a jury trial includes more than the common-law forms of
action recognized in 1791; the phrase "Suits at common law" refers to "suits in
which legal rights [are] to be ascertained and determined, in contradistinction to
those where equitable rights alone [are] recognized, and equitable remedies [are]
administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830); see also ibid. ("[T]he
amendment then may well be construed to embrace all suits which are not of equity
and admiralty jurisdiction, whatever may be the peculiar form which they may
assume to settle legal rights"). The right extends to causes of action created by
Congress. Tull v. United States, 481 U.S. 412, 417 (1987). Since the merger of the
systems of law and equity, see Fed. Rule Civ. Proc. 2, this Court has carefully
preserved the right to trial by jury where legal rights are at stake. As the Court
noted in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501 (1959),
"`Maintenance of the jury as a fact-finding body is of such importance and
occupies so firm a place in our history and jurisprudence that any seeming
curtailment of the right to a jury trial should be scrutinized with the utmost
care'" (quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935))."
Chief Justice Marshall "[The] government of the United States has been
emphatically termed a government of laws, and not of men. It will certainly cease
to deserve this high appellation, if the laws furnish no remedy for the violation of a
vested legal right. ." William Marbury v. James Madison, Secretary of State of the
United States 5 U.S. 137; 1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352.
Appellant redacted #52851/06 Amended Answer from OMTDWP as it is wholly
included in #071507/07 Answer and replaced #52851 Verification of Case Status with
more recent but otherwise identical one. The included Transcript has not been approved
by opposing counsel or the Court. PLEASE TAKE FURTHER NOTICE that pursuant to
CPLR §2214(b)Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time.
WHEREFORE, Appellant prays for the granting of an Order from the Court Staying Civil
(Housing) Court Order, and for all such and further relief that this Court may deem just
and appropriate.
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