SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM, FIRST DEPARTMENT
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KENMORE ASSOCIATES, L.P. & : Index # 071507/2007 &
HOUSING & SERVICES INC. & : Index # 52851/2006
Norris McLaughlin & Marcus :
Petitioner-Appellee : AFFIDAVIT
v. :
Tenant , :
:
Tenant- Appellant :
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(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.
Friday, September 07, 2007
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