KenmoreAssCriminal Landlord: 2007

Thursday, November 29, 2007

Thursday, October 18, 2007

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, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
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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

Friday, September 14, 2007

Kevin McClanahan Federal District Judge

CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART
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KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
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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 ‘§ 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

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"

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.

Kevin McClanahan Landlord Judge

Friday, August 31, 2007

Kevin McClanahan Crooked Landlord Judge

TRANSCRIPT #071507/07 & 52851/06 August 9, 2007 12:08-12:25 PM New York City Housing Court Part H Room 1164B Judge Kevin McClanahan. Kenmore V. Tenant
Line 1; For Petitioner: Mia Falls esq,, Norris, McLaughlin & Marcus
Line 2; For Respondent:3; NY, NY 10010
Line 4; McClanahan "I have your Omnibus Motion to Dismiss, I have your
Line 5; Affirmation in Opp., and then I have your Affidavit and Cross-motion.
Line 6: Tenant "Your Honor I asked before to to um, there is a page missing, I'm
Line 7; sorry, it is the fourth page, Staples decided to redact my Reply to
Line 8; Opposition, it's the fourth page. I served the..
Line 9; Falls "Yes, I did receive it."
Line 10; Tenant "You can see that, you can tell"
Line 11; McClanahan "Okay, alright, now but there's no cross-motion is there?
Line 12; Falls "I think there might be another motion of his that he named a cross-Line 13; motion but no it's not a cross-motion."
Line 14: McClanahan "This is a cross-motion? No it's not it hasn't been filled with Line 15; the Court and you can't cross-move against your own motion."
Line 16; Tenant "I was cross-moving against their Opposition."
Line 17; McClanahan "You don't cross-move against Opposition. You're Opposing, Line 18; you're just applying, you're saying why what they're saying is wrong."
Line 19; Tenant "Then can I withdraw those motions without prejudice."
Line 20; McClanahan "yea, it's withdrawn without prejudice, now let's deal with
Line 21; your motion. Alright make your argument."
Line 22; Tenant "Your Honor if I could speak first."
Line 23; McClanahan "That's what I'm asking you to do sir."
Line 24; Tenant "You have before you the Omnibus Motion to Dismiss with
Line 25; Prejudice. It's certainly what you can call a substantive and dispositive
Line 26; motion which petitioner did reply to. And I, of course, served my, we
Line 27; appeared in court previously, I guess it was Mr. Dean Roberts, for the
Line 28; petitioner. And obviously I believe their Opposition, did not, if you want to Line 29; review my reply, I believe did not answer any of the motions that I put
Line 30; forward, especially with regard to Section 8 Fraud. They didn't address it Line 31; at all. Obviously the main reason we are here today though is my
Line 32; contention that we have a case of Res Judicata. We have an identical
Line 33; case before, I believe it's actually before Judge Schneider. This case was Line 34; not dismissed. There was an alleged decision, obviously you can see on
Line 35; the front page of my reply, as well as my exhibits. My first exhibit shows
Line 36; that and I was down there at 9:30 this morning, that case is not only on, it Line 37; is not even off calendar."
Line 38; McClanahan "What case are you talking about. Index Number 52851 of
Line 39; 06 or is there another one?"
Line 40; Tenant "No that's the case." Falls "Yes" Tenant "That case is still on."
Line 41; McClanahan "That case is dismissed." Tenant "That's a misinformation."
Line 42; McClanahan "No, that's her Order. Did you read her Order?"
Line 43; Tenant "The Order was never served on the parties or the Court."
Line 44; McClanahan "I don't care were it was served. I know it was written. Judge
Line 45; Maria Milin ruled as follows 'This proceeding and motion sequence
Line 46; numbers 4,5 and 6 are marked off within three months of the date set
Line 47; forth below. If the parties do not move to restore the case or the motions
Line 48; within the time frame set forth above, then the proceeding and the
Line 49; motions shall be respectively dismissed and denied without prejudice. The
Line 50; parties were directed to submit further papers to the court with regard to
Line 51; the disposition of this proceeding by order dated 7/27/06. As of the date Line 52; set forth below no submissions have been made by either side.'"
Line 53; Tenant "Your Honor in that case we appeared before yourself on the 21st
Line 54; of August of last year and Ms. Falls was the representative for the other Line 55; party. They had to do a final reply by order of Judge Schneider. They
Line 56; never did a reply on that date even though they acknowledged on the
Line 57; record that it was due."
Line 58; McClanahan "August of what date? What are you talking about?"
Line 59: Falls "He's still taking about the 2006 case. I believe he is confused about Line 60; what happened." Tenant "This case is the actual case your honor. This
Line 61; case is still on." McClanahan "Sir I need to know if anything happened
Line 62; after December 12th of 06. That's when Maria Milin made her motion,
Line 63; her decision." Tenant "I have no information that there was anything done. Line 64; Your Honor I was never served with this alleged Order. The Court did not Line 65; docket this Order. It is not part of the Record. I don't know were it came Line 66; from." McClanahan "It's in the file sir." Tenant"well it's not in file 52851,
Line 67; which is the one thats allegedly dismissed." McClanahan "Any other
Line 68; arguments sir?" Tenant "Well, your Honor that case is on. You can see that Line 69; attachment here, this was done by a Court Attorney, that this case, the
Line 70; case 52851 has not been dismissed. We have two identical cases with
Line 71; identical cause of action and identical parties. I acknowledge that Ms. Milin Line 72; we did appear before her on two occasions." McClanahan "Sir did you pay Line 73; the rent? "Tenant "I did not pay any rent your Honor." McClanahan "Thank
Line 74 ; you." Falls "Our opposition is that, with regard to the 2006 case the
Line 75; dismissal is not res judicata. Neither one of us actually ended up receiving Line 76; Judge Milin's decision. I guess before she transfered it just wasn't mailed Line 77; to us, but I do acknowledge that it's there. By the time we found the case Line 78; some time has passed, we commenced this action. As you can see by the
Line 79; Order it was deemed dismissed without prejudice. He hasn't paid any rent, Line 80; that's why we brought this now 2007 case." McClanahan "Alright, tell me
Line 81; about your RICO claim." Tenant "Your Honor, they're quite substantive.
Line 82; Obviously, I did serve an Amended Answer in the case that I still contend Line 83; is on and is the relevant case and I'm certainly willing to discuss that case"
Line 84; McClanahan "Tell me how what they are doing violates the RICO statues
Line 85; sir." Tenant "Your Honor, I have approximately thirty pages of information Line 86; on their various violations." McClanahan "I need you to condense it to at Line 87; least five statements." Tenant "Basically, mostly Fraud, but basically
Line 88; Corruption and various Criminal Acts." McClanahan "What are the
Line 89; Criminal Acts sir?" Tenant "Well, False Arrest of Tenants, Corrupting of the
Line 90; Police Department." McClanahan "How does that relate to your rent?"
Line 91; Tenant "Well also actually of course, I did content a violation of the
Line 92; Warranty of Habitability. There's approximately 6 B violations in the
Line 93; apartment. I have twelve defenses in the previous case that I believe is Line 94; still ongoing. And I wanted to point out too that obviously the reason they Line 95; did not reply was, part of the issue was the Jury Demand. I did make
Line 96; substantive arguments with regard to my right to a Jury Demand. They
Line 97; have an alleged Lease, within the lease has a prohibited Lease provision,
Line 98; waiver of jury trial authorization for a landlord to waive" McClanahan "Why
Line 99; is it prohibited?" Tenant "Well this was part of, I was required to sign a
Line 100; lease rider. I had no lease in fact. I was a tenant since 1989. In this
Line 101; apartment since 1992. But for Section 8, they required a lease rider,
Line 102; which I did in fact sign and of course, under the law I consider that a
Line 103; renewal lease. But obviously, in the lease they are going to attempt to,
Line 104; they have not added it to the record yet, I believe they will, it will show on Line 105; page 4" McClanahan "Wait a minute, do I have the agreement? In the
Line 106; papers." Tenant "Was the Lease ever supplied?" McClanahan "It's your
Line 107; motion." Falls "It's your obligation, so you have to supply the document."
Line 108; Tenant "Well actually, in your Opposition it says, you quote the lease."
Line 109; McClanahan "Sir, did you bother to give me a copy of the lease, that's all Line 110; I need to know." Tenant "To be honest with you your Honor, I was never
Line 111; served with a copy of the lease so I am not necessarily sure any of the
Line 112; lease is in effect. I believe at least some of it was perhaps forged or
Line 113; added to. It was done under duress and it was done at a time I was
Line 114; illegally evicted and also it was a renewal lease. It was a lease, I was Line 115; already a tenant. It was without consideration and obviously a renewal
Line 116; lease has to be done on the same terms or better. I consider all aspects Line 117; of any alleged lease, or actual lease, to be in effect only to the extent Line 118; that it improves on my rights under rent stabilization laws." Falls "Your Line 119; Honor just generally, our position is that with regard to his motion to
Line 120; dismiss, he hasn't asserted a basis to dismiss the action. With regard to Line 121; his RICO claim, our position is that it isn't the place for Housing Court.
Line 122; He also hasn't alleged any actual violations. While he's provided a Thirty Line 123; page motion, it's still, nothing is distilled with regard to the RICO claims.
Line 124; He also claimed that we violated the Thirteenth Amendment of the
Line 125; Constitution. Which again we're denying all of the Federal claims. Our
Line 126; position is that there's no place at this Housing Court proceeding as to Line 127; his Affirmative Defenses. That our position is is something to set forth Line 128; at the time of trial." Tenant "Well your Honor I did in the previous case Line 129; asked that it be moved to Federal Court. Obviously I believe that Federal Line 130; Court is the proper venue for a case involving Federal Claims, Federal
Line 131; Constitutional Defenses. I also claimed that the Federal Government is
Line 132; the actual owner of the property. They of course do not have any
Line 133; Standing. There is also no Personal Jurisdiction. I was improperly served Line 134; in this case. Twice in two previous cases, the cases were dismissed for Line 135: improper service. I believe they will be in this case, the one that is before Line 136; you today, which is 071507. And also, so I claim lack of Personal
Line 137; Jurisdiction, Court Jurisdiction, lack of Standing. Obviously I believe
Line 138; there's innumerable Predicate RICO Acts involving as well, the Counsel
Line 139; itself. The law firm of Norris, McLaughlin and Marcus, as you see as
Line 140; exhibit, it says 'This is by far the most egregious case of Civil Conspiracy Line 141; in the body of law.' For Morganroth and Morganroth versus Norris
Line 142; McLaughlin and Marcus wherin they engaged in Felonies involving John Line 143; Z. Delorean, a Convicted Cocaine Drug Trafficker, identical to the
Line 144; claimed landlord in this property, who is also a convicted Drug Trafficker.
Line 145; In this case John Z. Delorean and Norris McLaughlin and Marcus
Line 146; engaged in Conspiracy. They were Convicted of this Conspiracy by the
Line 147; Third Circuit of the United States Court of Appeals. And they were
Line 148; involved in this Racketeering enterprise, where Fraudulent Money
Line 149; Laundering was involved. And I believe this is an additional Predicate
Line 150; felony. I had approximately, well I'm just estimating, thirty to forty
Line 151; Predicate Felonies involved by alleged landlord, Kenmore Associates,
Line 152; a.k.a. Housing and Services Incorporated, a.k.a. Kenmore Housing
Line 153; Development Corporation, Kenmore Housing Corporation and any other,
Line 154; I mention any other, Shell Corporations or Money Laundering
Line 155; Organizations involved with. Your Honor, they're a complete Criminal
Line 156; Enterprise, involving all types of Fraud, involving the original stealing
Line 157; of the building from the People of the United States, without
Line 158; Consideration, by Corruption of various individuals, including Civil
Line 159; Servants, I happen to be a Civil Servant myself, as well as, apparently Line 160; Elected Officials. Your Honor these were never answered in the previous Line 161; case and I am sure they will not answer them in this case either.
Line 162; Obviously, I asked for a Federal Grand Jury, an Independent Special
Line 163; Prosecutor and obviously I do believe, upon Information and Belief, that Line 164; it's already being investigated. The previously landlord, Claire Haaga, left Line 165; under suspicious circumstances, a very wealthy woman, for owning
Line 166; these so called non-profits. I believe the government, State, Federal and Line 167; local, as well as other Organizations are being looted by this so called Line 168; nonprofit organization." McClanahan "Alright thank you Mr. Tenant, your Line 169; motion is denied in all respects. Jury trial is waived. The affidavit of
Line 170; service of the Predicate and Petition rebut the claim of lack of personal Line 171; jurisdiction. Trial is set for September, please pick a date, either the 18th Line 172; or the 20th. I also found the that the decision/order of Judge Milin
Line 173; prevents the application of res judicata, as that proceeding was deemed Line 174; dismissed without prejudice. Please pick a date." Falls "Is September
Line 175; 20th okay with you?" Tenant "Your Honor I ask leave for an Interlocutory Line 176; Appeal." McClanahan "I can't grant an Interlocutory Appeal. You can
Line 177; certainly go to the Appellate Term, 60 Centre Street. And if they so
Line 178; chose they can grant that relief. Please pick a trial date in the event that Line 179; they do decline your Interlocutory Appeal." Tenant "Your Honor,
Line 180; Thursdays are always a good day for me." McClanahan "September
Line 181; 20th." Falls "September 20th will be fine." Tenant "September 20th." Falls Line 182; "Mr. Tenant he's going to give you a copy of the decision." Tenant "Your Line 183; honor, you understand I haven't put an answer in this case." Falls "You Line 184; attached it to your motion." Tenant "That was in the former case."
Line 185; McClanahan "You said you filed an Amended Answer." Tenant "I did in the Line 186; previous case, but you said that case is dismissed. " McClanahan "You
Line 187; can't have not filed an Answer, you'd be in default." Tenant "This is a Pre- Line 188; Answer Motion to Dismiss." McClanahan "Answer to be served, ten
Line 189; days." Tenant "So Your Honor, you're denying my Jury Demand before I
Line 190; made the Jury Demand in my Answer?" McClanahan "Yes" Falls "Thank
Line 191; you"

KenmoreAssCriminal Landlord