Kevin McClanahan Federal District Judge

CIVIL COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK : HOUSING PART
----------------------------------------------------------X
KENMORE ASSOCIATES, L.P. & : Index # 071507/07 & HOUSING & SERVICES INC. & Norris : Index # 52851/06
McLaughlin & Marcus :
Petitioner, : AFFIDAVIT
: JURY DEMAND
Tenant, :
:
Respondent. :
---------------------------------------------------------X
State of New York)
(County of New York)

SS: I,____________________, (Tenant ), Respondent in this Action, being duly

sworn, hereby depose and state: That the Court (The Honorable Kevin McClanahan), Hearing

Officer or not (see Att. Met Council v. Crosson), has releases itself from Judicial Immunity by

operating outside its Jurisdiction (Federal) as well as without Personal Jurisdiction over

Respondent. Bias was evidenced in both appearances (see Transcripts) and see following:

"Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction." Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). Pulliam v. Allen (1984) 466 U.S. 522, the Supreme Court Justices held:
There is little support in the common law for a rule of judicial
immunity that prevents injunctive relief against a judge. There is
even less support for a conclusion that Congress intended to limit the
injunctive relief available under § 1983 in a way that would prevent
federal injunctive relief against a state judge.
In Pierson v. Ray, 386 US 547, 18 L Ed 2d 288, 87 S Ct 1213
(1967), the Court found no indication of affirmative congressional
intent to insulate judges from the reach of the remedy Congress provided
in Section 1983. Nothing in the legislative history of § 1983 or
in this Court’s subsequent interpretations of that statute supports a
conclusion that Congress intended to insulate judges from prospective
collateral injunctive relief.
Congress enacted § 1983 and its predecessor, § 2 of the Civil
Rights Act of 1866, 14 Stat 27, to provide an independent avenue for
protection of federal constitutional rights. The remedy was considered
necessary because “state courts were being used to harass and
injure individuals, either because the state courts were powerless to
stop deprivations or were in league with those who were bent upon
abrogation of federally protected rights.” Mitchum v Foster, 407 US 42
225, 240, ... (every member of Congress who spoke to the issue assumed
that judges would be liable under Ԥ 1983).
Subsequent interpretations of the Civil Rights Acts by this Court
acknowledge Congress’ intent to reach unconstitutional actions by
all state actors, including judges. ... Judicial immunity is no bar to
the award of attorney’s fees under 42 U.S.C. § 1988.
Citing Pulliam v. Allen (1984) 466 U.S. 522, the Ninth Circuit held in
Dykes v. Hosemann, 743 F.2d 1388 (9th Cir. 1984):
It is clear that a judge who acts in the absence of subject matter
jurisdiction may be held liable for his judicial acts. Stump v. Sparkman,
435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Bradley v.
Fisher, 13 Wall.335, 20 L.Ed. 646 (1872). ... The rationale for this
limitation on judicial immunity is set out in Bradley v. Fisher and reiterated
in Stump v. Sparkman: “Where there is clearly no jurisdiction
over the subject-matter any authority exercised is a usurped authority,
and for the exercise of such authority, when the want of jurisdiction
is known, no excuse is permissible.”
An absence of personal jurisdiction may be said to destroy “all
jurisdiction” because the requirements of subject matter and personal
jurisdiction are conjunctional. Both must be met before a court
has authority to adjudicate the rights of parties to a dispute.
If a court lacks jurisdiction over a party, then it lacks “all jurisdiction”
to adjudicate that party’s rights, whether or not the subject
matter is properly before it. See, e.g., Kulko v. Superior Court, 436
U.S. 84 ... [i]t has long been the rule that a valid judgment imposing
a personal obligation or duty in favor of the plaintiff may be entered
only by a court having jurisdiction over the person of the defendant”)
(citations omitted) ... Because the limits of personal jurisdiction
constrain judicial authority, acts taken in the absence of personal
jurisdiction do not fall within the scope of legitimate decision
making that judicial immunity is designed to protect. See Gregory v.
Thompson, 500 F.2d at 63. We conclude that a judge who acts in the
clear and complete absence of personal jurisdiction loses his judicial
immunity.
Because the issues of whether Judge Hosemann knew he lacked
personal jurisdiction or acted in the face of clearly valid statutes or
case law expressly depriving him of jurisdiction are matters for initial
determination in the district court, we reverse the order dismissing
the claim against Judge Hosemann and remand to the district
court for further proceedings not inconsistent with this opinion.
The issue raised in the instant action, that also requires a jury trial,
is whether the defendants knew that they, and the lower court judges,
that they were (1) acting without jurisdiction; and (2) whether they
knew that they, and the other judges they protected, were acting in
the face of clearly valid statutes, case law, and federal question
rights. A jury trial is required on this basis alone.
Title 18 U.S.C. § 241 Conspiracy against rights of citizens. If two or
more persons conspire to injure, oppress, threaten, or intimidate any citizen in
the free exercise or enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having so exercised
the same; ... They shall be fined ... or imprisoned ... or both;

Additional relevant Law and Case Law:
Title 28 U.S.C. § 1343,Title 42 U.S.C. § 1983, Title 42 USC § 1985, 28 U.S.C. § 144
28 U.S.C. § 455, United States v. Gigax, 605 F.2d 507 (10th Cir. 1979), Code of Judicial Conduct Canon 2, New York Judiciary Law §14, State and Federal due process rights to a neutral and detached jurist, to a fair hearing, and to the right to confront the witnesses against them (see, NY Const, art I, § 6; US Const 6th, 14th Amends), Johnson v. District Court, 674 P.2d 952 (1984), Rules of the Chief Administrator §100.3(E) (a) (i) the judge has a personal bias or prejudice concerning a party;

Respondent continues to deny Personal Jurisdiction due to Specific Denial of Receipt and

Demands continued Special and/or Limited Appearance status. Jury Trial Demand is as of Right

(see Att. Motion to Stay) and it is within the power of a Just Court to grant Trial on the Instant

Motion (CPLR §2218).

As to Motion to Recuse, the obvious bias by the court (Hon. Kevin McClanahan), on the record,

("He's really weird FOR A TENANT (lines 3 etc.)) show a hatred for tenants in general and this

Respondent in particular, either for reasons of Race, Ethnicity, Creed, Sex, Age and/or (partial

(Photophobia & Myopia)) Disability. Judge and/or Hearing Officer McClanahan is perhaps

unaware that this Court has no Jurisdiction over Federal Constitutional Claims, Federal Law, or

Federally owned property, which was not disputed by petitioner. Pending Complaint before the

Commission on Judicial Conduct and issues before Appellate Term, First Department are

additional grounds for Mandated Recusal of the Court.

As to Motion to Clarify Hearing Officer versus Judicial Authority see attached (Met Council v. Crosson 84 N.Y.2d 328, 642 N.E.2d 1073, 618 N.Y.S.2d 617 (1994).

As to Motion to Dismiss for violation of CPLR § 2214, petitioner failed to respond to lawfully

served original Omnibus Motion to Dismiss With Prejudice in a timely manner and thus was/is in

default. As to Defective Petition, It was not signed, as all Court Papers are required to be (CPLR § 2101 (see Boyd v. Kellman, 225 5th LLC v Fiori Fiori Inc., NYLJ, Feb. 16, 2005, at 22, col 3 (Civ Ct, NY County, Gesmer, J.).). Petitioner was noticed of this defect within two days of improper

service as required (see att.).

As to Motion to Dismiss for failure to include other Parties (CPLR § 3221(a)10), due to Section

8 status (att.), agreement between petitioner and HUD and Section 8 "lease rider". No

Certification procedure compliance (see the Williams consent decree).

As to Motion to Renew/Reargue Respondent again points to lack of Personal and Actual

(Federal) Jurisdiction over this case. Case # 52651/06 is still active and not off calendar. Plaintiff

failed to answer Omnibus Motion in unsigned "affirmation" in Opposition or in Court and thus

must be deemed stipulated to (see Motion to Stay). Respondent believes Vacatur of lawful

Stipulation (July 5, 2007) between parties lacks legal Authority and/or reason.

As to Motion to Dismiss for defective Predicate Notice, it was not signed by "landlord" or

petitioners counsel but by petitioners Debt Collector (see 8201 Realty Assoc. v. Navas).

As to Motion to Compel, Respondent, in the Interest of Justice and Federal and State Due

Process Rights, Demands sufficiently before trial to prepare, Plaintiff(RICO)'s witness list, any

Documentary and/or other evidence to be introduced at trial, and a Reply to Lawfully served

Answer.

As to Motion for Change of Venue, Respondent Demands that case(s) be moved to SDNY

Federal Court , as Court of Proper Jurisdiction, at Petitioner's expense. This need is evidenced by

all Federal Laws, U.S. Constitutional Defenses, and Unrebutted Federal Ownership Allegation

included in all respondents papers.

Respondent realizes there exists as much chance of winning any Motion in this Biased Court

(unless a Virtual Person) as Appalachian St. has of beating Michigan, and as a Subway

Motorman, Respondent is aware of being Railroaded. Nevertheless, without options, hope

springs eternal, and Respondent prays for Remedy/Relief aforesaid.

PLEASE TAKE FURTHER NOTICE that pursuant to CPLR §2214(b) Time for service of notice

and affidavits. A notice of motion and supporting affidavits shall be served at least eight days

before the time at which the motion is noticed to be heard. Answering affidavits shall be served at

least two days before such time.


WHEREFORE, respondent prays for the granting of an Order from the Court

dismissing petitioner's Petition in its entirety, and for all such and further relief that this

Court may deem just and appropriate.



______________________________
Tenant, Respondent Pro-Se
145 east 23rd street
New York, NY 10010



Sworn Before me on the
12th Day of September, 2007