Reply to Opposition

1. As to MOTION TO DISMISS , on June 8, 2006 the parties (Respondent pro-se &

Dean Roberts, petitioner's counsel) appeared before The Honorable Judge Maria

Milin wherein respondent was ordered to serve ANSWER on petitioner on or

before June 19, 2006, which was complied with, and to appear on June 29, 2006,

before which petitioner was to serve REPLY. Petitioner did not, and on June 23rd

respondent served first OMNIBUS MOTION on petitioner's counsel. On June 29th

the same parties appeared before The Honorable Jean Schneider and

respondent served AMENDED ANSWER (two additional pages) on petitioner and

Court, which was accepted. Petitioner by counsel then requested additional time

and an adjournment to serve OPPOSITION & CROSS-MOTION which was granted,

over respondent's objections, to be served on respondent by July 7, 2006 and for

respondent to REPLY by or on next appearance which was jointly agreed to by

Respondent and Dean Roberts esq. on the record as July 13, 2006. On July 6,

2006 respondent served 2nd OMNIBUS MOTION on petitioner's counsel. On July

13, after receiving no papers from petitioner by counsel, respondent appeared at

Part A room 523 at 9:30 am. After 11:00 am (default time) and no appearance by

petitioner by counsel, the court attorney called Dean Roberts at his office. While not

a party to the call, respondent understands that Mr. Roberts refused to appear

before the court that day or send anyone from his firm, obviously desiring a

DISSMISSAL by default. Over the objections of respondent, Mr. Roberts was

instead put on the record, over the phone, in front of The Honorable Judge Maria

Milin. On the record, as an officer of the court, Mr. Roberts chose to Willfully

Misrepresent & Perjure himself before the Court as to outstanding Court Orders,

stating that July 13, 2006 was for service of papers, when he knew it was for

appearance. Mr. Roberts then stated that petitioner's OPPOSITION & CROSS-

MOTION was "in the mail" which he knew was Affirmative and Outrageous Perjury,

as they were not completed or sent, by mail, until July 26, 2006. Given said

Perjury, an adjournment was granted to petitioner to allow respondent to REPLY

by next Court date of July 27, 2006. Respondent's Oral MOTION TO DISMISS for

reasons of default was denied. On July 21, 2006 respondent again served

petitioner's counsel with 2nd OMNIBUS MOTION (EQ689017332) as it appeared to

have gone unacknowledged by petitioner. On July 27, 2006, after again having

received no papers, respondent appeared at Part A at 9:30 am. Mia Falls esq. for

petitioner and respondent went on the record before The Honorable Judge Jean

Schneider wherein respondent made oral MOTION TO DISMISS for petitioners

failure to comply with Court Orders and Perjury. Ms. Falls possessed a single copy

of petitioner's CROSS-MOTION and admitted that it was sent by regular mail to

respondent only the day before (respondent received it on July 28, 2006) and

further that she had no knowledge of any previous agreements by or Court Orders

to Mr. Roberts. Respondent reiterates that the Court should and must DISMISS

instant case, with or without prejudice, for egregious behavior, failure to comply

with Court Order and Perjury by Dean Roberts, petitioner's counsel, and

appropriate sanctions.

2. As to Eleventh Affirmative Defense, Petitioners continuous, ongoing and

notorious employment of Illegal Aliens (Predicate Felonies) engaged in

Conspiracies, Violent Felonies, Terrorism, etc. against tenants and others.

Respondent REQUESTS and DEMANDS of the court INJUNCTIVE RELIEF i.e.

halting petitioner's current use and/or attempt to use Unqualified, Unlicensed,

Incompetent, Undocumented, Malicious, Criminal, Violent Felon, Illegal Alien

Terrorists to further destroy respondent's apartment and instead Verified, Licensed,

Certified, Master Plumbers, Electricians, and Carpenters as required by New York

Laws (see D.O.B) to cure outstanding violations, as agreed to in outstanding

unperformed stipulation between parties.

3. Petitioner was lawfully served with granted pre-answer MOTION TO DISMISS

which was mailed to lawful and correct address of petitioner's counsel and returned

to respondent "undeliverable" due apparently to interference by counsel's landlord.

4. Petitioner served two different motions on court and respondent, which were

defective as well.

5. Petitioner by counsel apparently considers Murder, Racketeering, Corruption,

Fraud, Forgery, Money Laundering, Tax Evasion, Terrorism, Identity Theft, Home

Invasion, Theft, Harassment and innumerable other Predicate (RICO) Felonies

committed against lawful Tenants and others as irrelevant i.e. not in the interest of

their criminal enterprise to expose.

6. Petitioner fails to state what relief "has already been denied" and is Willful

Misinformation and Perjury. Blithe (1.carefree and lighthearted 2.lacking or

showing a lack of due concern) is what respondent would call petitioner by

counsel's response to and/or aiding and abetting of petitioners Racketeering and

Corrupt Organization.

7. Petitioner failed to dispute and by default affirms respondent's request for jury

trial on jurisdictional motions. Respondent requests and demands of Court that all

Motions not answered be deemed stipulated to.

8. Respondent believes this is and/or will become a Federal Criminal (and Civil)

Case. Facts will be decided with proper discovery.

9. This is again Perjury by petitioner's counsel and willful misinformation stated to

Obstruct Justice. There was no request for discovery but judge approved, duly

served subpoena's duces tecum which were never delivered to court or respondent

or respondent's counsel. If this is a request for collateral estoppel it is petitioners

burden to supply complete record, evidence of respondent's request and court's

denial, none of which exist. Furthermore, as is known to petitioner's counsel,

respondent has duly served and filed lawful NOTICE OF APPEAL. The Validity of

said decision is also being challenged. Some relevant precedents to follow.

10. Petitioner by counsel fails to state why claims are "factually and legal[sic]

defective and improper".

11. If by non-responsive or irrelevant the RICO means not in their interest

respondent would have to agree. If by quoting res judica[sic] the RICO petitioner

means the instant case is an identical cause of action to a previous decision it

should be taken as a dispositive statement against interest and case DISMISSED

with prejudice. If collateral estoppel (issue preclusion) is meant, burden is on

petitioner as to what issues are or would be barred in the non-final, appealed

decision that didn't even preclude respondents affirmative defenses or

counterclaims in that case (other than warranty of habitability (one of grounds for

appeal)).

12. If collateral estoppel, burden of proof from the record is again on petitioner

(Vella v Hudgins). Any Federal Issues could not have been addressed whether

included or not (they were not) as Affirmative Defenses in previous case (McNeir v

Wallace)(Bottini v Sadore)(7Witkin). There was no "final decision" as the case

(61431/03) is being appealed (Lucindo v Superior Court). Validity of said decision

is also being challenged due to, among other reasons, no jury trial after being

awarded right by Honorable Peter Wendt, incompetent, corrupted or conflicted

counsel, lack of subpoenaed documents etc.. Even if all that were not the case

petitioners alleged "prima-facia"[sic] would fail as the same argument could be

used by former owner Trong Dihn Tran who had a non-payment case in 1992

(99325/92) against respondent and "proved" his prima facie and could thus forever

thereafter could bring cases against respondent for rent for a building he does not

own and respondent could not use his non-ownership as a defense and any other

former owner of rental property could sue any tenant previously sued and

ownership could not be challenged as an Affirmative Defense. Respondent has

evidence unlawful "ownership" has changed since service of AMENDED ANSWER

in previous case.

13. Petitioner (RICO) fails again to state why claim is "factually defective and

jurisdicataly(sic(a new word?)) improper" and why "is[sic] would not be a proper

defense". Proper Discovery is needed for more evidence.

14. As previously stated burden of proof in collateral estoppel is on petitioner and

the case is being appealed.

15. Petitioner fails to state why facts are irrelevant or why or what "Statute of

Limitations" apply. Previous statements on collateral estoppel and future citations

apply. Petitioner (RICO) again fails to state why discovery need are "improper and

not relevant".

16. As to "res judicial"[sic] or collateral estoppel respondent again refers to

previous statements and upcoming citations.

17. Petitioner again fails to state why claim is "without out [sic] merit in fact or law

and is improper".

18. As to "res judicata" or collateral estoppel respondent again refers to previous

statements and upcoming citations and precedent.

19. Petitioner served NOTICE OF PETITION & PETITION after one year of

claimed rents. Petitioner should not be allowed to abrogate settled law on doctrine

of laches because they lost and/or withdrew previous cases. Any excess "rents

due" could simply be brought before other civil courts.

20. Petitioner again fails to state why Defense "is simple illogical".

21. As to collateral estoppel respondent again refers to previous statement and

following citations and precedent. Respondent also refers to Forged, Undated,

Unwitnessed, Unnotarized, Uncertified "lease" included in CROSS-MOTION shows

rents to be $215.00 per month and should be considered a dispositive statement

against interest.

22. Petitioner (RICO) again fails to state why Counter-Claims "are simple[sic] a

repetition" "Factually and legally defective" or "merit less"(sic) or why punitive

damages are "without merit in either fact or law".

23. Respondent has had two recent HPD inspections that found additional

violations created willfully by petitioners employees including violations ID

#6205532, 6205533, 6205534, and 6205535, all B violations like the outstanding

VID # 4957755 and 4957757 from 2004 which admittedly pale in comparison to the

buildings 279 open violations including 12 C violations.

24. Finally we can agree and stipulate.

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, 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 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.)

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.

"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.)

WHEREFORE, respondent prays for the granting of an Order from the Court
dismissing petitioner's Motion in its entirety, granting respondent's Motion and for
all such and further relief that this Court may deem just and appropriate.