KenmoreAssCriminal Landlord: 2007-10-14

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

KenmoreAssCriminal Landlord

Thursday, October 18, 2007

Dean M Roberts-Stone Criminal

Norris McLaughlin & Marcus-Fraud

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