AUTHOR NOTE
This Brief could not be submitted (and was not submitted) to the Federal Court of Appeals Second Circuit because of a fraudulent (fraud on the court) sua sponte order of the following ultra leftist Soviet-Stalinist 3 judge panel of the Court of Appeals: Chester j. Straub, Robert D. Sack and Raymond J. Lohier, Jr., that dismissed the Plaintiff Appellant’s Appeal prior the opportunity of submitting the Brief to the Court. The Order of aforementioned judges is a clear display of racketeering activity of federal judges as associates in the Enterprise headed by former Attorney General of New York State, Andrew Cuomo, presently, governor of New York State, running for re-election as governor in November 2014, with ambition and support of Marxist-Leninist political groups masquerading as liberal and progressive. The Order of the aforementioned 3 judges of the federal Court of Appeals is irrational, illogical and lacking sense of any lucid person who otherwise would be diagnosed by any psychiatrist as suffering of paranoid schizophrenia. The Order, inter alia, states: “Upon due consideration it is hereby ORDERED that the appeal is Dismissed because it lacks an arguable basis in law or fact” (capitalization by the Court). The enclosed Brief of appellant Mircea Veleanu’s is proof that the above stated ORDER is actually a display of violation of human rights in US of America, a “kangaroo court” violating the elementary due process and equal rights under law of an American citizen deprived of Constitutional rights supposedly guaranteed by the 5th Amendment and 14th. Amendment of US Constitution. The Sua sponte Order was without notice to Plaintiff Appellant and did not allow any opportunity to the Appellant to argue in his behalf and present the Brief as evidence. This Order is clear representation of unconscionable abuse of discretion and irrational, arbitrary and capricious judicial action of a biased and prejudiced court. Thus, the Order of the aforementioned judges of the Court of Appeals is typically a Soviet-Stalinist style pre-determined order of brutal repression of the human rights of an American citizen. While this legal case is a civil and not a criminal case, these 3 judges, associates in the racketeering activity of Andrew Cuomo, invoked the precedent of 2 criminal cases; one of a criminal illegal immigrant accused of former several acts of criminal activity and fighting the deportation under a previous government administration (Pillay v. INS, 45 F3d, 13, 17 (2d Cir 1995), and the second case, the precedent of an inmate prisoner in federal prison (Neitzke v. williams, 490 US 319, 325 (1989) arguing in the Supreme Court of violation of his constitutional rights. Ironically, these 2 legal cases are representative of the opposite of what the Court of Appeals wants to argue for. Did these 3 judges read the details of the cited legal case???. In reality, these 2 cases are true illustartion in favor of the defendants in these 2 legal cases that there were argued by the judges as frivolous. The present case, while being a civil and not a criminal case, and especially, not alleged as a frivolous case, is in limine sua sponte judicial action in response to the Appellant’s procedural motions to correct deliberate distortions and deceitful acts committed by the clerk of the Court of Appeals to cover up fraud on the court of deliberate, intentional changes of the caption of the appeal case as: change of the nature of the suit, change of the principal defendant in the case with an imaginary, confabulated defendant, naming the clerk of the Appellate Court of NYS Supreme Court as a justice of the Supreme Court, naming the single complainant that is a pro se listed by fraud as a defendant, listed as a free of charge defendant, failure to charge the defendant Janet Spiridonakos for contempt of court, etc., etc. The Federal Rules of the Appeal Procedures requires that the caption that appeared in the District Court should not be changed in the Court of Appeals. By fraud on the Court, the Court of Appeals clerk (or legal team in charge of the processing of the appeal), changed the caption listing Andrew Cuomo, AG of NY State et al. (principal defender), to Eric Schneiderman, AG of NY State et al. It is obvious that Andrew Cuomo did not want his name to appear as defendant in the RICO racketeering charges under federal law 15 USC Sec 15c, as the criminal charges demand his impeachment from the office, disbarring, fines and imprisonment for committal of felonies criminal acts copiously described in the attached Brief to this blog. Nonetheless, AG Schneiderman was never listed as a defendant in this suit, was not served with the process, summons or waiver. The second deliberate deceitful and fraudulent change of the nature of suit was listing in the docketing as contract dispute, instead of RICO racketeering. Another fraud on the court committed by the clerk of Court of Appeals was listing as a defendant, Aprilanne Agostino, Clerk of the Supreme Court of NY, Appellate Division Second Department, as a justice of the Supreme Court. Such fraud is obvious as the clerk of court is not a justice of the Supreme Court of NY (who has absolute immunity), in contrast to the clerk of the court who lacks even the qualified immunity when performing the mandatory, ministerial function as in this case. Another fraud on the court brought to light by the Appellant’ s motion to the Court of Appeals was the deceiving and false listing of Janet Spiridonakos, sole complainant as a defendant in this legal case. Nonetheless, Spiridonakos was never named as a defendant in this legal case under appeal, never served with the summons or waiver, rather she was sued for breach of contract and fraud in a different legal case in the District Court. In a conspiracy of racketeering acts, the clerk of the District Court, Ruby Krajick, listed Spiridonakos in the District Court case under appeal as a “ghost” defendant when she was sued. This was not an innocent error of the clerk of court, rather deliberate inclusion of criminal racketeering associate, Spiridonakos, in a case where she is not a defendant, only with the fraudulent intention that by her listing as being a defendant, the OAG ( legal team to defend the Enterprise headed by former AG, Andrew Cuomo) would defend her for free (legal expenses are prohibitive). Nonetheless, the counsel of former AG of NY Cuomo, in an act of impressing honesty, refused to defend Spiridonakos and the Corporation (Freeboard International, Inc. owned by her husband, funds she used for private purchases), for the obvious reason that she was not sued in this legal case!. Finally, the Court of Appeals listed Spiridonakos’ corporation as a defendant, however, Freeboard International, Inc., failed to appear by counsel and subsequently defaulted, despite an extension by the Court of Appeals in addition to the extension granted by the corrupt judge of the District Court, Nelson S. Roman, who by fraud on the court dismissed the case against Spiridonakos, despite that Spiridonakos as a defendant, defaulted as a matter of fact and a matter of law, by failure to submit an answer to the Complaint, or a motion. The corrupt justice in the NY State Supreme Court of New York and the federal District Court, as well as the Court of Appeals, make a mockery of justice of the justice in US of America. The federal district court in New York features in the foyer of its impressing building, a giant statue of Justice holding the balance. It would be more appropriate to have a statue of Fuehrer Adolf Hitler shaking the hands of Joseph Visarionovich Stalin as true exponents of the justice in US of America!!!. The grounds on which such egregious and criminal acts were performed in different tribunals in a supposedly democratic country, is the fact that there is a political basis. Cuomo is running for re-election as governor of NY State with perspective to be nominated by the Democrat Party to be the next president of US of America. Obviously, all judges involved in the federal court were nominated for life by Democrat Presidents and have all the interest not to discredit a member of their party. This legal case will remain forever as a symbol of oppression, repression of civil and human rights in the US of America that is represented in the whole world as a symbol of democracy. preservation of constitutional rights of its citizens and bastion of freedom, democracy and liberty. While Congress encted the federal law 15 USC Sec. 15 to combat the racketeering. the federal law 15 USC Sec 15 c State Attorney General, was enacted specifically to eradicte racketeering in the court of justice and limit the power of the state Attorney General. Nonetheless, it is highly apparent that the Executive branch and Judiciary branch are completely ignoring the laws enacted by the elected representatives of American people. The unlimited power of the court of justice ignoring the laws of this country is de facto representation of Soviet/Stalinist, or fascist oppresion and reppresion of American citizens. After all said, Soviet Union, Eastern European countries behind the Iron Curtain, as well as North Korea, Cuba, and theocratic repressive regimes, had and have also a Constitution and laws in their countries that conveniently ignore….
God bless America!!!
God save America!!!
June 18, 2014
_________________________________________________
13-4787
UNITED STATES COURTS OF APPEALS
FOR THE SECOND CIRCUIT
_____________________________________________
MIRCEA VELEANU
Plaintiff- Appellant,
V.
Andrew Cuomo former Attorney General of NY State, G. Nicholas Garin, Assistant Attorney General, James Brands, Thomas Dolan, James Pagones, Peter Forman, Justices of the Supreme Court of NY, Reinaldo Rivera, Daniel Angiolillo, Ariel Belen, Sherri Roman, Randall Eng, Cheryl Chambers, Robert Miller, Justices of the Appellate Division of the Supreme Court of NY, and Aprilanne Agostino, Clerk of the Appellate Division, Supreme Court of
NY.
Defendants-Appellees
____________________________________________________
On Appeal from the United States District
for the Southern District of New York
___________________________________________________________
BRIEF OF PLAINTIFF APPELLANT
Mircea Veleanu, Pro Se
Telephone: 000-000-0000
Email:
TABLE OF CONTENTS
Page(s)
Table of contents …………………………………………………………… ……i
Table of authorities ………………………………………………. ii, iii, iv, v, vi
Articles, publications, books in involved legal matter ………….. vii
Statutes ……………………………………………………………………. viii, ix, x
Laws ……………………………………………………………………………. xi, xii
Rules ………………………………………………………………………….. xiii, xiv
Regulations ……………………………………………………………………….. xv
Doctrines ……………………………………………………………………………. xvi
Statement of Subject Matter and Appellate Jurisdiction………………… 1
Statement of the Issues presented for review……………………………… 2
Statement of the Case…………………………………………………………….. 6
Statement of the Facts………………………………………………………….. 42
Summary of the Argument……………………………………………………. 52
Argument…………………………………………………………………………… 57
Conclusion…………………………………………………………………………. 75
Certificate of Compliance……………………………………………………………
i
Certificate of Service………………………………………………………………….
ii
TABLE OF AUTHORITIES
Abrams v. 11 Cornwell Co., 695 F2d 38, 39 (2d Cir. 1982) … 57
Alfred L. Snapp & Son, Inc., v. Puerto Rico, ex rel Baretz, 458 US 592, 600 (1982) at 607 ……………………………………… 57, 59
Anghel v. NY State Dept of Health et al, 2:12 CV 03484 (ADS) (WDW), (EDNY 2013 LI Office) …………………………. 75
Anthony v. Baker, 767 F2d 657, 660 (10th. Cir. 1985) ……..74
Buckley v. Fitzimmons, 509 US 259, 269 (1993) …………67
Cliff v. Vacco, 267 AD 2d 699, 731 NYS 2d 791 (3rd Dept. 1999)
Colon v. Coughlin, 58 F2d, 865, 870 n3 (2d cir. 1995) ….. 70
Davidson v. Capuano, 792 F2d 275, 278-79 (2d Cir. 1986) …..70
De Jesus v. Sears Roebuck & Co., 87 F3d 65, 70 (2d Cir. 1996)…………………………………………………………………… 59
Finnegan v. Fountain, 915 F2d 817, 823 (2d Cir. 1990) ……72
Ganim v. Smith & Wesson Corp., 780 A2d98, 108 (Conn. 2001) …………………………………………………………………………. 65
iii
Harlow v. Fitzgerald, 457 US 806, 818 (1982) ………… 67, 72
Kalina v. Fletcher, 522 118 (1997) ……………………… 67
Kaushal v. State Bank of India, No. 82 C 7414 (ND III 1983) ..61
Keko v. Hingle, 318 F3d, 639, 642 (5th. Cir. 2003) ………….. 74
Matter of Legal Aid Society of Sullivan County v. Scheinman, 53 NY 2d 12, 16 …………………………………………….. 18. 25, 27
Mosher-Simmons v. County of Allegany, 94 CV 374 S, 1997 WL 662512 at *6 (WDNY 1997) ……………………………..72, 73
New York v. Microsoft Corp., 209 F Sup. 2d 132, 149-150 (DDC 2002) …………………………………………………………….. 60
Payne v. City of Lompoc, 160 F3d 564-65 (9th Cir. 2000) ….. 73
People v. Peter & John’s Pump House, Inc., 914 F Supp.809, 811, 812, (NDNY 1996) at 812 ………………………………..58
Ricciardi v. Con Edison, 161 Misc.2d 917, 918, 615 NYS 2d 854, 855 (1994) …………………………………………………… 73
Ricciutti v. NY City Transit Authority, 124 F3d 123, 131 (2d Cir.
iv
1997) ………………………………………………………………..
Rotella v. Wood et al. certiorari to the US Court of Appeals 5th Circuit No. 98-896 (2000) …………………………….. 64
An Filippo v. US trust C., 737 F2d 246, 255 (2d Cir. 1984) …..74
Schumer v. Holtzman, 60 NY 2d 46, 55 (1983) ………. 26
State Employees Bargaining Agent Coalition v. Rowland, 494 3d 74 (2d Cir. 2007 ………………………………………………… 1
Table Bloof Reservation (Wyot Tribe) v. Philip Morris, Inc., 256 F3d, 879, 885 (9th Cir. 2001) ………………………………59
US V. Forsythe , 560 F2d 1127, 1136 (3rd. Cir. 1977) ……… 61
US v. Nerone, 563 F2d 836 (7th. Cir. 1977) cert denied ……62
US V. Stofsky, 409 F Supp 609, 614 (SDNY 1973), affd., 527 F2d 237 (2d Cir.1995), Cert. denied ………………………. 62
Wheeler v. Cosden Oil & Chemical Co., 734 F2d 254, 261 (5th. Cir.
1984) ………………………………………………………………….74
v
White v. Frank, 855 F2d, 956, 961 (2d Cir. 1988) …………. 74
Ying Jing Gan v. City of NY, 996 F2d 522, 530 (2d Cir. 1993) …………………………………………………………………….. 67
vi
ARTICLES, PUBLICATIONS, BOOKS IN LEGAL MATTER
State Parens patriae Authority: The evolution of the NY State Attorney General Office: by Jay L. Himes, Chief Antitrust Bureau, Office of NY State Attorney General (April 23, 2004) …….58.
Civil RICO and Parens Patriae: Lowering litigation Barriers Through State Intervention” by Beth Schipper, William and Mary Review, Vol. 24, Issue 3, Article 4………………………………60
Racketeer influenced and corrupt organizations (RICO). Basic concepts-Criminal and civil remedies” by Blakey and Gettings. 53 Temp. LQ 1004, 1023-28 (1980) …………………………..60
Straffer, Massumi & Skolnick: “Civil RICO in the Public Interest: Everybody’s Darling”. 19 AM. Com. L. Rev. 655, 656, 657 (1982) ……………………………………………………………………… 61
vii
STATUTES
28 USC Sec. 1331 ………………………………………….Page 1
28 USC Sec. 1343. ………………………………………….. 1
28 USC Sec. 1964 c ………………………………………… 1
28 USC Sec. 1291 ……………………………………………… 1
28 USC Sec. 455 (B)(5) (ii) …………………………………3, 25
28 USC Sec 45 (b) (5) (i) …………………………………….26
28 USC Sec 455 (b) (5) (iv) ………………………………. 26
28 USC Sec 455 (b) (5) (iii) ………………………………..26
18 USC Sec. 1505 ……………………………………………… 10
18 USC Sec. 201 (b) (3) …………………………………….. 11
18 USC 1349 ……………………………………………………….53
18 USC Sec 1961(1) ……………………………………… 60
18 USC Sec. 1962 (1976) …………………………………….61
18 USC Sec. 1962 c ……………………………………. 64
18 USC Sec. 1964 (a) (1976) ………………………………61
viii
18 USC Sec. 1964 (b) …………………………………………62
18 USC Sec. 1964 c ………………………………………… 62
18 USC Sec. 201 ………………………………………….. 63
18 USC Sec. 401 ………………………………………….. 73
18 USC Sec. 1001 ………………………………………… 63
18 USC Sec. 1343 ……………………………………….. 63
18 USC Sec. 2 …………………………………………….. 63
18 USC Sec. 1957 ……………………………………….. 63
18 USC Sec. 1505 ……………………………………….. 73
18 USC Sec. 1509 ……………………………………….. 73
18 USC Sec. 1510 ………………………………………….. 64
18 USC Sec. 1512 ………………………………………. 64
18 USC Sec. 1621 ………………………………………. 64
18 USC Sec. 1623 ………………………………………… 64
18 USC Sec. 1622 ……………………………………….. 64
18 USC Sec. 1624 ……………………………………….. 64
ix
18 USC Sec. 402 ……………………………………………. 64
18 USC Sec. 241 …………………………………………… 64
18 USC Sec. 242 ………………………………………….. 64
26 USC Sec. 7206 ……………………………………….. 63
28 USC Sec. 1332 …………………………………………. 21
x
LAWS
42 USC Sec. 1983.…………………………………….. 1, 55, 70, 72
42 USC Sec. 1985.……………………………………………. 1
42 USC Sec. 1988 …………………………………………… 1, 72
Title 15 USC Sec 15 c ………………… 1, 35, 61, 65, 66, 67
Title 15 USC Sec 15 c (a) (2) (A) ……………………………. 8
15 USC Sec. 15 c (a) (2) (B) ……………………………….. 65
15 USC Sec. 15 c (2) C …………………………………….. 13, 66
15 USC Sec. 15 c (a) (D) (2) …………………………… 66
1st Amendment of USC ………………………………………….. 56
5th Amendment of USC ……………………………….. 56
6th Amendment of USC ………………………………….. 56
7th Amendment of USC …………………………………..56
8th Amendment of USC ………………………………….. 56
11th Amendment of US Constitution …1, 35, 36, 61, 66, 67, 71, 75
xi
14th Amendment of US Constitution ………… 5, 25, 55, 56, 72
4th. Amendment of USC …………………………………….11
NY State General Business Law 349 ………………6, 8. 43, 57
NY State General Business Law 350 (d) …………………… 11
NY State Executive Law 63.12 …………………6, 8, 43, 57
NY State Judiciary Law Sec. 43 (2) ……………………… 11
NY State Judiciary Law Sec. 44 (4) ……………………… 11
NY State Judiciary Law Sec. 42 ………………………….. 12
NY State Judiciary Law 17 …………………………………. 26
NY State Judiciary Law 14 ………………………………….. 26
NY State Judiciary Law 701 ………………………………… 15 USC Article III ………………………………………………….. 60
116 Cong. Rec. 35, 227 (1970) ………………………… 62
xii
RULES
FRAP 3 (A) ……………………………………………………… 1
Rule 12 (b) (6) ……………………………………………… 1, 22, 70
NY State CPLR 70 ……………………………………………. 9
NY State CPLR 5525 (d) ……………………………………. 10
NY State CPLR 105 (u) ……………………………………… 12
NY State CPLR 205 …………………………………………… 14
NY State CPLR 5015 (a) (3) ……………………………….. 15, 27
NY State CPLR 5015 (a) (4) ………………………15, 18, 19, 27
NY State Article 78 (CPLR 7801-7806) …16, 18, 19, 20, 23, 27,28
29, 34, 71
NY State CPLR 3215 ………………………………………… 17
NY State CPLR 4511 ………………………………………… 17
NY State CPLR 7801 …………………………………….. 18, 69
NY State CPLR 5013 …………………………………………. 19
NY State CPLR 5012 …………………………………………. 20
xiii
NY State CPLR 7804 ………………………………….. 24
FRCP Rule 60 (b) ………………………………………………. 18
FRCP Rule 54 ……………………………………………………. 20
FRCP Rule 4 (d) …………………………………………………… 23
FRCP Rule 6 (b) (1) (B) …………………………………………… 23
FRCP Rule 55 (a) ……………………………………………………. 38
FRCP Rule 55 (b) (1) …………………………………………..38, 52
FRCP Rule 55 (b) (2) …………………………………………. 39, 52
SDNY Local Civil Rule 12.1 ……………………………………30
ABA Rule of Professional Conduct 1.1 ……………………..46
ABA Rule of Professional Conduct 1.2 ……………………..46
ABA Rule of Professional Conduct 2.2 …………………… 47
ABA Rule of Professional Conduct 2.2 (4) …………………47
xiv
REGULATIONS
ABA Cannon 2.11 (6)(d) …………………………………….. 20
ABA Cannon 2.11 (2) (b) ……………………………….. 25, 40
ABA Cannon 2.11(6) (2) …………………………………..40
ABA Cannon 2.5 (4) ………………………………………… 40
Cannon 2.5 (B) ………………………………………………41
Cannon 2.6 …………………………………………………….41
xv
DOCTRINES
Res Judicata ………………………………………………………. 50
Collateral Estoppel ………………………………………………50, 75
Rooker Feldman ………………………………………… 50, 70, 71
Parens Patriae ……………………. 52, 57, 58, 59, 60, 65, 67
xvi
STATEMENT OF SUBJECT MATTER AND
APPELLATE JURISDICTION
This appeal raises federal questions jurisdiction under 28 USC Sec. 1331; federal jurisdiction under Titles 42 USC Sec. 1983, 42 USC Sec. 1985, 42 USC Sec. 1988, under 28 USC Sec 1343, and Title 15 USC. Sec. 15 c, under 18 USC Sec 1964 (c). This action represents an Appeal from the Memorandum and Order rendered by judge Nelson S. Roman in District Court Southern District of NY, dated November 12, 2013 dismissing Plaintiff’s amended complaint with prejudice, and Judgment decreed by Clerk of Court, Ruby Krajick, dated November 13, 2013.
Plaintiff Appellant contends that as a result of these actions, inter alia, he has been deprived of his constitutional rights. This Appeal was timely filed on December 11th 2013, pursuant to FRAP Rule 3 (a) within 30 days after district court’s entry of its Order and judgment dated November 13, 2013. Therefore, this Court has appellate jurisdiction under 28 USC Sec. 1291.
STATEMENT OF STANDARD OF REVIEW
The appropriate standard of review over a district court’s dismissal of complaint under Rule 12 (b) (6) is de novo or plenary. Vartanian v Monsanto Co., 14 F 3d 697, 700 (1st Cir. 1994). This standard applies also
1
to district court’s denial to grant leave to amend the complaint and review de novo of District Court denial of complaint on 11th Amendment immunity grounds. See State Employees Bargaining Agent Coalition v Rowland, 494 F 3d 74 (2d Cir 2007)
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether District Court not erred, rather committed fraud on the court by judge Nelson S. Roman who dismissed the Amended Complaint, by willingly and knowingly disconsidering as inexistent the prior default of all defendants in this legal action.
2. Whether District Court presided by judge Roman, abused discretion in denial of a leave to amend the complaint, thus violating the constitutional rights of Plaintiff for due process.
3. Whether judge Roman, acted in unconscionable abuse of discretion and irrational arbitrary decree of a Memorandum & Order dismissing the action with prejudice, when the Court did not have the jurisdiction due to prior default of defendants by failure to timely submit an answer or motion to dismiss.
4. Whether judge Roman acted in unconscionable abuse of discretion and
2
irrational arbitrary action by granting the dismissal of the Amended Complaint with prejudice to complainant Janet Spiridonakos who requested a mooted dismissal of complaint by her prior default, not only in her legal case of breach of contract where she defaulted by failure to timely submit an answer or motion, but also, in the present case where she was not named as a defendant, was not served with the Amended Complaint, Summons or Waiver of service, and there were no causes of action for her to defend.
5. Whether District Court judge Nelson S. Roman committed fraud on the court by acting as a lawyer in his court and consequently violated 28 USC Sec. 455 (B) (5)(ii) that requires his recusal.
6. Whether District Court judge Roman acted in contempt of court by violating Memorandum and Order of previous judge, Vincent Briccetti, who denied the complainant Janet Spiridonakos’ motion for consolidation of cases 13 CV 5693 with 13 CV 5566. Judge Roman in conspiracy with Clerk of Court violated the order of judge Briccetti by consolidating aforementioned cases, thus, decreeing a single order bearing both captions and dismissing both cases with prejudice by fraud on the court.
7. Whether judge Roman’s actions as a lawyer in his court by supporting
3
former AG Cuomo’s representation of all defendants, represents an act of quid pro quo bribery solicited by the defendants and accepted by Cuomo.
8. Whether District Court judge Roman committed abuse of discretion and fraud on the court favoring Plaintiff’s opponent party, by decreeing Order and directing judgment using false and deceiving citations of law not applicable to this case, and where the evidence did not show any endorsement of the conclusions of law masquerading as evidence, rather false documentary posing as evidence.
9. Whether judge Roman committed fraud on the court, by denying without reasoning or dictum, plaintiff’s motion to strike Attorney General’s counsel’s Motion to dismiss, and request for a conference to settle the Defendants’ Default’s stipulations.
10. Whether knowingly and willingly, District Court’s judge Roman’s dismissal of the Amended Complaint at the irrational request of a non defendant in this case represents an illogical arbitrary action, unconscionable abuse of discretion and fraud on the court.
11. Whether dismissal with prejudice of this case by judge Roman, with knowledge of judgment being void by prior default of all defendants,
4
represents fraud on the court.
12. Whether willing and knowing falsification of background rendition of this case by judge Roman’s Memorandum & Order dismissing the action, represents fraud on the court.
13. Whether judge Nelson Roman violated the constitutional rights under Fourteenth Amendment of USC of Plaintiff’s due process, by prematurely terminating Plaintiff’s submission of evidence and legal proceedings in a sua sponte intervention in behalf of defendants, with reiteration of the same arguments of AG’s counsel, already rebutted by plaintiff.
14. Whether judge Nelson S. Roman’s aforementioned actions demonstrate bias and prejudice requiring recusal, but he failed to do so.
15. Whether judge Nelson Roman continuation of legal proceeding without standing by ignoring defendants’ default and granting of a mooted motion to dismiss represents unconscionable abuse of discretion, irrational arbitrary action and fraud on the court.
16. Whether rubber stamp plagiarism of Memorandum and Order of legal case 2: 12 CV 03484 (ADS) (VDW), Dr. Maria-Lucia Anghel, Plaintiff v. NY State Dept. of Health et al(docketed on 05/29.2013 in US Easter District
5
NY Long Island Office) to the Memorandum and Order of judge Nelson Roman of present legal case represents fraud on the court by judge Roman.
STATEMENT OF THE CASE
1. This legal case has roots in Supreme Court of NY Dutchess County (SCDC), initiated by former AG Andrew Cuomo’s suit against the plaintiff in August 2009, invoking GBL 349 and Executive Law 63.12, commenced without probable cause and without standing in lack of injury of the single complainant, Janet Spiridonakos, who falsely claimed misrepresentation of 7 jadeite art carvings, sold by Plaintiff as Tibetan rosaries mala.
2. Spiridonakos in conspiracy with NY State former AG, Andrew Cuomo, devised a scheme to defraud and extort the plaintiff by misbranding the mala as “carved head necklaces”, terminology never used by Plaintiff in the sale of the items. The misbranding was done fraudulently, to qualify the mala to be examined by gemological testing, done exclusively on jewelry items (jadeite art carvings are authenticated only by mineralogical testing). Spiridonakos fraudulently claimed that term “fei tsui used in the description of a jadeite mala is synonymous with “imperial Jade”. Actually, “fei tsui” in
6
Chinese is synonymous with ordinary jadeite and not “imperial jade”.
3. Spiridonakos in racketeering action, submitted to AAG Nicholas Garin a complaint that had attached a forged gemological testing done by AGTA company, that went out of business a few weeks later. The forged testing had identical photograph of 2 different mala.
4. Spiridonakos in racketeering activity, forged by counterfeit. an unsigned invoice of a jewelry company in Massachusetts, in which Spiridonakos inflated the cost of the gemological testing to about 3 times higher than average price of testing.
5. Spiridonakos submitted a fraudulent affidavit actually written by AAG Garin, which disclosed legal details known only to Garin, as Exhibit numbers and content of his petition, impossible for Spiridonakos to know.
6. Plaintiff impeached Spiridonakos’ Affidavit by proving that affidavit contained contradictory statements disproving former statements.
7. Spiridonakos in racketeering action, committed perjury by declaring contradictory statements under oath and swearing affidavit as her own.
8. Former AG, Andrew Cuomo, made inflammatory false and deceiving statements to media in 2 separate occasions, assassinating Plaintiff’s
7
immaculate personal and professional reputation. Such libelous declarations to media inflicted irreparable pecuniary, physical and psychological damage to plaintiff known internationally as a scholar in oriental arts and author of 4 reference books to collectors. Cuomo and Garin, in brazen contempt of court, violated the gag order on media, decreed by JSC James Brands.
9. In bad faith, Cuomo contumaciously commenced and continued a vexatious legal action invoking GBL 349 and Executive Law 63.12, by lack of standing in absence of injury to complainant Spiridonakos and lack of probable cause. Garin failed to serve Plaintiff with service of process, thus, denied Court’s personal jurisdiction and subject matter jurisdiction. The prosecutor knew and it was obvious that the charges were not supported by a probable cause and lack of standing to sue, in lack of grounds to charge the statutory fraud due to absence of injury to the single complainant. See RICO anti-racketeering federal law15 USC Sec 15 c (2) (A).
A. Garin in racketeering actions, conspired with the sole complainant, Janet Spiridonakos, to charge Plaintiff with fabricated charges, blackmail, defraud and extort the plaintiff. AG Andrew Cuomo conspired with Spiridonakos to perform racketeering acts including but not limited to accepting bribery,
8
solicitation, aiding and encouraging Spiridonakos to breach the commercial contract with the seller (Plaintiff), by offering illegal punitive to Plaintiff bribe of incentive retroactive interest of 9 %, to purchase money years back to the date of purchase. The bribery extended to soliciting former customers that did not claim misrepresentation of purchased items, were not aggrieved, but were attracted by high retroactive interest. As such, AG convinced 3 former customers to request refunds when they could legally request the refunds according to the commercial contract they breached in order to unjustly enrich. These customers were not aggrieved, did not allege misrepresentation, but willingly and knowingly breached the contract in order to benefit from the large reward of bribery that allowed in addition to 9 % retroactive interest, a full refund including the auction’s commissions and all third parties charges. As all these persons purchased the items at auctions held by Go Antiques Company in Ohio where the Plaintiff was a consignor rather than the seller, the bribe offered by AG was substantial, not only including the refund, but also the refund of all expenses that were all, not the responsibility of the consignor. 2 of the items purchased by Spiridonakos were also obtained at the auctions where Plaintiff was not the
9
seller. Former AG Cuomo violated CPLR 70 by commencing a vexatious suit in behalf of persons that did not consent to a suit in their behalf and had no standing.
B. AG uttered to the court forged and mislabeled forensic evidence with full knowledge that the evidence was false and misrepresenting.
C. Garin in racketeering acts, committed subornation of perjury by submitting to the court the impeached and perjured affidavit of Spiridonakos.
D. In racketeering act, Garin committed perjury by stating in his Alternative Statement in lieu of stenographic transcripts pursuant to CPLR 5525 (d), that he was not aware that gemological reports were forged and mislabeled until Plaintiff answered the petition.
E. In racketeering activity, Cuomo and his legal counsel, Garin, committed the criminal acts of forgery and concealment of exculpatory evidence by altering forensic evidence interposing a photograph over an exculpatory text in 2 separate occasions. Such criminal act is liable under 18 USC Sec. 1505 Antitrust Civil act and clear demonstration of racketeering obstruction of justice, fraud on the court and violation of constitutional rights of Veleanu
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for a fair and equitable litigation.
F. In quid pro quo racketeering acts, AG requested and obtained from AJSC James Pagones the award of illegal penalties and court fees based on GBL 350 (d). Nonetheless, AG did not invoke a cause of action under GBL 350 (d) upon which such penalties could be awarded, in lack of advertising. Thus, AG Cuomo violated Plaintiff’s constitutional rights under 8th. amendment of USC and committed fraud on the court.
G. In racketeering quid pro quo, AG requested and obtained from AJSC Pagones punitive illegal retroactive interest of 9 %, not endorsed by any statute, awarded as bribery incentive, not only to co-conspirator Spiridonakos, but also to 3 former customers that did not allege misrepresentation and were not aggrieved. AG committed racketeering acts of bribery of witnesses, crime punishable under 18 USC Sec. 201 (b) (3).
H. In racketeering activity, AG issued 4 subpoenas, of which only one was directed to obtaining evidence. The subpoenas were used as a tool for malicious prosecution and abuse of process and attest to violation of constitutional rights of Plaintiff under 4th Amendment of USC. AG exceeded his power under NY Judiciary Law Sec. 43 (2) and Sec. 44 (4) and violated
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Section 42 of the Judiciary Law that prohibits the “fishing expeditions”.
I. Cuomo requested and obtained relief from the court of a list of former customers for the preceding 6 years that is beyond the statute of limitation for statutory fraud. As such, AG illegally extended the list of customers to request refund.
J. Cuomo in his non-advocatory role and devoid of immunity, maliciously released to media false and deceiving statements, in 2 separate occasions during the active phase of trial. The libelous statements had a double intention: 1. Recruit more former customers to request refunds and breach the contract by fraudulently frightening them, and (2) Cause tremendous injury by collateral abuse of process and malicious prosecution preventing Plaintiff to further seek justice in an obvious prejudiced and biased court.
K. Cuomo in clear contempt of court, violated the gag order on media rendered by justice James Brands, by releasing information about TRO and impending permanent injunction.
L. Garin threatened AJSC Dolan not to dismiss the petition, on the false argument that Plaintiff’s pleadings and motions to dismiss were not “sworn”, ignoring that the pleadings and motions to dismiss were in form of declaration under penalty of perjury legal under CPLR 105 (u). 12
M. In racketeering activity, Garin conspired with a former customer, Diana Norton to request a refund with a bribe well exceeding the contract‘s refund. With full support and AG‘s abetting, she committed theft of merchandise substituting the purchased nephrite jade carving with a valueless fake. In addition, she committed perjury in her affidavit and breached the contract with the Plaintiff. AG in racketeering act, committed misprision, extrinsic fraud and fraud on the court in his investigative function, by serving as an accessory to the crime, aiding and facilitating the commission of criminal acts of this person.
N. In pursuit of his “fishing expeditions” AG engaged in dilatory tactics and defaulted by failing to submit and docket the order and judgment of AJSC Dolan, within 60 days. AG engaged in impermissible laches, was grossly negligent to restart the legal action within 6 months since the void judgment of AJSC Dolan, and defaulted again. Accordingly, AG in commission of racketeering acts, violated federal law 15 USC Sec 15 c (2) c that specifies: “Whether in the course of action involved…(e)ither party’s representative, engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof”. The AG reprehensible dilatory behavior
13
explains the delay of litigation in the state courts for almost 4 years.
10. JSC James Brands decreed a TRO in absence of personal jurisdiction upon Plaintiff and thereafter recused for conflict of interest.
11. AJSC Thomas Dolan who was assigned to this case, decreed a summary judgment lacking the jurisdiction and decreed a permanent injunction violating the statutory requirement for a hearing prior decreeing a permanent injunction.
12. AG failed to submit and enter the permanent injunction and judgment of AJSC Dolan and after 60 days, the judgment became null as AG defaulted. In accordance with NY State CPLR 205, Cuomo could restart the legal action within 6 months, but failed to do so by engagement in laches in order to increase the cost of litigation. Thus, AG Cuomo defaulted second time.
13. In November 2010, AJSC James Pagones was assigned, and again, without service of process required as a legal action de novo, AJSC Pagones decreed a void Order and Judgment against Plaintiff due to complete lack of jurisdiction. Despite that Plaintiff was represented by legal counsel arguing for reargument/renew, AJSC Pagones by committing fraud on the court, denied the reargument motion for vacatur (in view of presence of issue of
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material fact that precludes summary judgment).
14. Plaintiff appealed the order and judgment to the Appellate Court Second Department (hereto AC), within 30 days.
15. AC’s justices: Rivera, Belen, Angiolillo and Sherri Roman affirmed the trial court judgment by ruling that there was no triable issue of material fact, despite the clear and convincing evidence to the opposite, precluding the court’s judgment. Plaintiff moved for reargument and in alternative permission to appeal to the Court of Appeals that were denied by the AC. The argument raised by Plaintiff, that the trial court absolutely had no jurisdiction, was disregarded as inexistent by the aforementioned panel of justices. AC could not confer jurisdiction to the Supreme Court of NY in a nunc pro tunc decision but by fraud on the court, in facto did.
16. Plaintiff pursuant to CPLR 5015 (a)(4) and 5015 (a)(3), moved for vacatur of the order and judgment of AJSC Pagones based on void order and judgment for lack of jurisdiction and multiple acts of fraud committed by the opposing party. AJSC Peter Forman who was assigned to case, tried to moot the motion, by delaying to act upon for more than 96 days, and finally, denied the motion as moot, in clear fraud on the court, unconscionable
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abuse of discretion and irrational arbitrary action, despite that the application was active and not mooted by abandonment or appeal.
17. Subsequently, Plaintiff moved to AC pursuant to Article 78, for a writ of mandamus and prohibition against AJSC Forman, as well as to the other acting justices of the trial court, also including former AG Cuomo and his counsel, Garin. The counsel of AG, AAG Joshua Pepper, submitted a Memorandum of Law that solely consisted in all the orders and judgments decreed by judges of the Supreme Court of NY, with false and deceiving allegations that the AC, even so biased toward plaintiff, denied it. In support of his Memorandum of Law, counsel AAG Pepper, submitted the Affirmation of AAG Nicholas Garin. Nonetheless, under NY State law, an Affirmation of an attorney does not have any probative action unless the attorney is an actual witness to the disputed facts. As Garin was not an actual witness of the events, he was prohibited to render an Affirmation or Affidavit. Obviously, OAG’s counsel could subpoena complainant Janet Spiridonakos, that was the only actual witness to the disputed facts, or any of the justices of the Supreme Court who rendered orders and/or judgments. Nevertheless, the involved justices opted not to appear in court and
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Spiridonakos was not a reliable person being accused of committing criminal acts of racketeering in conspiracy with former AG Cuomo.
18. On June 12, 2013, Plaintiff submitted to the Appellate Court (AC) a motion for summary judgment based on AG’s counsel’s default by failure to answer the averments of Plaintiff and failure to rebut the contentions of the motion, by not opposing the motion. On July 9th, 2013, pursuant to CPLR 3215, Plaintiff requested AC to enter the judgment based on defendants’ default, by resubmitting the application together with Judicial Notice of Law pursuant to CPLR 4511, that never was responded by court. It is un-rebuttable the fact that, Aprilanne Agostino, clerk of court, held the application for summary judgment for 3 weeks allowing interim, the justices of the AC to decree a fraudulent judgment in favor of defendants, lacking standing, void ab initio and mooted by prior defendants’ default. Thus, the decision and order of AC was illegal as had no standing being mooted by uncontested defendants’ default.
19. The decree of the order and judgment was dated June 19, 2013 that is 8 days past Plaintiff’s application for summary judgment that preceded the judgment. In an act of fraud on the court, clerk of court Aprilanne Agostino,
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held Plaintiff’s application for summary judgment, failed to act upon the motion, and frivolously returned the application to Plaintiff without any explanation. Clerk of court is sued in the present action for racketeering actions of obstruction of justice and failure to perform her non-discretionary ministerial and mandatory functions.
20. Nonetheless, AC denied Plaintiff’s motion by dictum that the Plaintiff lacked the clear right of mandamus. This decision represents obvious fraud on the court, as the request for mandamus was based on CPLR 5015 (a) (4), that is un-waiveable, based on irrefutable complete lack of jurisdiction of the court. AC’s justices Eng, Miller, Chambers, and Roman commited fraud on the court and decreed an order and judgment displaying unconscionable abuse of discretion and arbitrary irrational action based on fraudulent citation of a single legal case of “Matter of Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12, 16; case that lacked the clear right to mandamus, as not qualifying under CPLR 7801 (that specifies that a proceeding under Article 78 shall not be used to challenge a determination that is not final and that could be adequately reviewed by appeal to a body, or officer to review the matter upon motion of the applicant). In contrast,
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Plaintiff’s request for writ of mandamus, was to compel AJSC Forman to perform his mandatory and ministerial duty of acting upon a non discretionary motion pursuant to CPLR 5015 (a) (4), similar to almost identical to Rule 60 (b) (4), where he had no discretion to deny it. In addition, AJSC Peter Forman was disqualified by law to act upon a motion where he was named as defendant. As the citation of case of Matter of Legal Aid Society was false and deceiving, the Order and Judgment of the AC in Article 78 represent clear and conclusive demonstration of extrinsic fraud, unconscionable abuse of discretion, irrational arbitrary action and fraud on the court committed by AC’s justices Eng, Chambers, Miller and Roman. The aforementioned justices of the AC rendered a judgment “on the merits”, decree that is false and misleading in opposition to CPLR 5013 that states: “A judgment dismissing a cause of action before the close of the proponent evidence is not a dismissal on the merits”. Accordingly, AC’s order and Judgment in the Article 78 proceeding, had no standing as mooted by prior defendants’ default, was improper and illegal, as did not precede the motion for summary judgment of the Plaintiff. In addition, the judgment on merits, requires the adjudication of all causes of action of the petition.
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Plaintiff’s petition in Article 78 had 5 pleaded causes of action with multiple respondents. Irrefutably, the order and judgment of the AC could not resolve all causes of action. CPLR 5012 (similar if not identical to Rule 54) is conclusive in prescribing that in case that the court orders a severance, may direct judgment upon one or two causes of action, but not of all and a final judgment requires the adjudication of all causes of action and leaves the court with only execution of judgment.
21. Justice Sherri Roman was precluded by law and prohibited by Canons of judicial conduct to sit in a panel deciding a legal case in which she previously sit (she participated in Plaintiff’s appeal and decided against the same Plaintiff appearing now in article 78 proceeding). Justice Roman violated ABA Canon 2.11 (6) (d): “Previously presided or participated as a judge over the matter in another court”. Moreover, the presiding justice in Article 78 proceeding, Randall T. Eng, was appointed as a justice to the AC by former AG, now governor Andrew Cuomo. The conflict of interests would oblige justice Eng to disqualify in a case where Andrew Cuomo is a defendant, nonetheless, justice Eng did not disqualify himself and the Order and Judgment decreed by him and justice Sherri Roman
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represents a TRAVESTY OF JUSTICE. When the highest court in NY State (Court of Appeals is reserved for exceptional cases) is a kangaroo court with 2 disqualified by law justices rendering false dicta, it signifies the death of a nation based on constitutional rights and democracy!!! . Sham!!!
Statement of the case in the Federal Southern District New York Court.
22. On August 9, 2013, Plaintiff filed a complaint with SDNY, amended on August 14, 2013, when the defendant Janet Spiridonakos was removed from the Complaint and correctly sued under federal jurisdiction pursuant to 28 USC Sec. 1332, based on citizenship diversity. By fraud on the court, clerk of court Ruby Krajick, did not remove Spiridonakos from the Docket of the Amended Complaint where she still appeared as defendant.
23. After a faulty assignment of this case to Manhattan court, this legal case was assigned to judge Vincent Briccetti in White Plains Court. All the defendants were served with waiver of service between August 15, 2013 to August 18, 2013 with the exception of judge Thomas Dolan, who instructed Supreme Court of NY Dutchess County (SCDC) to return to sender any
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papers addressed to him. Judge Dolan was served with Summons and Complaint on October 4, 2013, responded on October 24, 2013 and received by Plaintiff on October 29. All the other defendants sent the waivers of service through AAG Pepper, on September 9th, 2013 that is within 30 days as prescribed by law.
24. On October 11, 2013 (received by Plaintiff on October 17, 2013), AAG Joshua Pepper sent a letter to judge Vincent Briccetti notifying that he represents all the Defendants in case 13 CV 5566 and the letter was accompanied by a Motion to Dismiss based by matters outside the Pleadings, Memorandum of Law in support of Motion and Notice to Pro Se Litigant who opposes a Rule 12 Motion. Dkt. # 22-23-26. However, the Motion to Dismiss in accordance with Rule 12 of FRCP was untimely and late. Subsequently, former AG Cuomo and his Counsel, Garin defaulted, as well as all the other defendants who signed the Waivers on September 9, 2013. In accordance with the Manual for Pro Se litigants of the Southern District New York, dated January 2011, published and copyrighted by the District Executive Office US District Court of NY, the Chapter Answer on page 69 entitled TIME LIMITATIONS TO RESPOND TO A
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COMPLAINT, COUNTERCLAIM OR CROSS-CLAIM
,
inter alia, specifies: “ A defendant (other than the United States) that has waived service under the procedure in Federal Rule of Civil Procedure 4 (d) (discussed on page 57) has thirty (30) days after sending the waiver to file an answer or motion to dismiss. If no response to complaint is filed within the required time period, the plaintiff should file a motion for default judgment”
According to the prescription of the Manual, the Motion to Dismiss was due on or prior October 9, 2013. Thus, the default of the defendants in case 13 CV 5566 is irrefutable, as a matter of law and factual evidence.
25. In accordance with FRCP Rule 6 (b) (1) (B), the counsel to the defendants failed to ask for an extension of time to respond to the Complaint, and acknowledged that he negligently failed to submit the motion to dismiss at an earlier date. Counsel Joshua Pepper engaged in similar dilatory tactics he used in the state court of Article 78 proceeding, where he defaulted as well, by failure to rebut Plaintiff’s contentions of the Petition and summary judgment motion.
26. On September 25, 2013, Plaintiff submitted to the court an application
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requesting the disqualification of the AG to represent the other defendants. Dkt. # 7. The arguments raised by Plaintiff (Dkt. # 8) were as follows: 1. In the prior legal action in the NY State AC Second Department pursuant to Article 78, AG appeared as Pro Se defendant, adjudicated by justices that in this legal case appear as co-defendants. The justices of the trial court (SCDC) attempted to request their defense by AG and Plaintiff argued successfully against the representation by AG’s Office of the acting justices on basis of the conflict of interest. On a Notice pursuant to CPLR 7804 (I), John McConnell, attorney for justices of trial court, stated that the defendants elected not to appear in the proceeding and refer the Court to the Decisions and Orders. See Exhibits. Although it appeared that the acting justices of SCDC lacked the defense, the justices of AC’s panel , intervened in a sua sponte order and judgment that prematurely terminated Petitioner’s submittal of evidence, and the chance for a fair opportunity to litigate.
2. The Order and Judgment decreed by the AC named AG and his counsel as defendants prose. Obviously, a defendant prose cannot represent and defend another prose defendant, as the terminology indicates the personal defense. As the AC denied AG’s counsel the motion to dismiss and the justices of
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SCDC declined to appear in the case against them, they were deprived of representation by AG’ s counsel consequent to Plaintiff’s request for disqualification, it appeared inevitable that Plaintiff was entitled to judgment as a matter of law. Nevertheless, by sua sponte intervention in behalf of the justices of the trial court, the AC’s justices fraudulently acted as defense lawyers in their court and terminated the legal procedure by invoking the case of “Matter of Legal Aid Society of Sullivan County v Scheinman, that as a motion in limine, even did not satisfy final judgment requirement of CPLR 7801. AC’s justices violated Canon 2.11(2)(b): “acting as lawyers in the proceeding”. Appellate Court (AC) of NY State violated the due process and human rights constitution guaranteed rights of equal protection under 14th Amendment of USC. In the present legal case, identically, AG was precluded to defend justices that previously decided the case in which the AG appeared in their Court as defendant prose.
27. Plaintiff’s motion for disqualification of AG was based on irrefutable conflict of interest of violation of the Canons of judicial conduct, as well as federal laws. It is obvious that the solicitation of the judges to a former defendant who appeared in their court, to have gratis legal representation,
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clearly represents a request for bribe and proof of racketeering acts. Any order and judgment that affected the outcome of the proceeding decreed by such justices is null and invalid and subject to impeachment from office for soliciting, or accepting bribery from a former defendant that appeared in their court. Secondly, 28 USC Sec. 455 (b) (5) is pertinent to this legal case in the following subsections: (i) Is a party to the proceeding; (ii) Is acting as a lawyer in the proceeding; (iii)Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding”.
NY State judiciary laws prohibit a judge acting as an attorney or counselor in any action, claim, matter, motion or proceeding which has been before him in his official character. See Judiciary Law Sec. 17. In addition, Judiciary Law Sec 701 prescribes that the prosecutor is disqualified from fulfilling the duty because of actual prejudice arising from a demonstrated conflict of interest. See Schumer v Holtzman, 60 NY 2d 46, 55 (1983). The most specific NY State law is Judiciary Law Sec. 14 that states that a judge shall not sit or take any part in the decision of an action, matter, claim, motion or proceeding to which he is a party, or in which he has been an
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attorney or counsel, or in which he is interested.”.
This law applies to acting justice Peter Forman who was a defendant in Plaintiff’s motion pursuant to CPLR 5015 for annulment of void judgment of acting justice Pagones. AJSC Forman refused to recuse when he denied Plaintiff’s motion pursuant to CPLR 5015(a)(4) and 5015(a)(3). In egregious and clear fraud on the court, AC denied the writ of mandamus to compel AJSC Forman, based on fraudulent invocation of case “Matter of Legal Aid” . Judiciary Law 14 also applies to justice Sherri S. Roman who sat on the AC’s bench on Plaintiff’s Appeal and sat again in the Article 78 proceeding. In addition, AG was precluded as a matter of law to appear and defend the justices of the AC in which AG had a double appearance, one as a defending party in Plaintiff’s Appeal, and again as a defendant in Article 78 proceeding. Presiding justice in Article 78 proceeding (Justice Randall Eng) was appointed by governor Andrew Cuomo as a Chief Administrative Judge. As Andrew Cuomo appeared as a defendant in justice Eng’s court (he was the presiding of the panel), justice Eng was precluded as a matter of law to preside or participate in the panel of 4 judges. In addition, justice Sherri Roman, was precluded by conflict of interest to sit in a panel of justices, when she previously sat and
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decided against Plaintiff in Article 78 proceeding as well as Plaintiff‘s Appeal
. Justice Eng knew or should have known, that the Canons of judicial conduct sanction impropriety, nepotism and favoritism, should disqualify him as a matter of law, to act in a judicial action where Cuomo appeared as a defendant, but justice Eng failed to do so in a sham judicial action to the disgrace of American justice in NY State!.
28. On November 14, 2013, Plaintiff submitted a motion to strike defendants’ pleading of motion to Dismiss submitted by AG’s counsel and requested a conference to settle defendants’ default stipulations. Dkt. # 49-50. Plaintiff contended that the motion was insufficient for defense and consisted in false, deceiving and distorting factual evidence, as well as redundant and immaterial allegations without basis of facts. Most important and constituting the basis of request for striking the motion to Dismiss, is the deliberate disregard of the fact that all the defendants in this legal case defaulted as a matter of law by failure to answer or submit a motion to dismiss within the limits of time provided by law. On November 20, 2013, judge Roman denied the motion to strike and request for conference without a reasoning or dicta. Dkt. # 51. Counsel Pepper did
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not oppose the motion, and according to the law, the motion was deemed to be rendered in favor of Plaintiff.
Counsel Joshua Pepper’s default was not the first one. In June 2013, AAG Pepper failed to respond and oppose Plaintiff’s summary judgment motion in the Article 78 state proceeding. As the default of all defendants is based on a legal endorsement by the official manual for the litigants published by the Southern District Court, counsel Pepper had no other choice than to mitigate the default by stating that “Default judgments are generally disfavored, and case doctrine strongly prefers resolving disputes on the merits”, with the inevitable citation of a common law case that may illustrate anything implausible as a real fact endorsement. See “Defendants’ Memorandum of Law in opposition to Plaintiff’s motion for default judgment” dated October 29, 2013 (Dkt. # 39-40). Although counsel Pepper tried to persuade the court that the parties should resolve the dispute on “merits”, he rather submitted a Motion to Dismiss that contains “affirmative defenses” that acknowledge the acceptance of the Amended Complaint as true and correct, but tried to dismiss the complaint on confabulated, false and deceiving allegations of imaginary and incorrect Matters outside of
29
pleadings. AG’s counsel was honest enough to state that he does not represent Janet Spiridonakos and Freeboard International, Inc. appearing as defendants in the docket sheet, as they are not named defendants in the Amended Complaint. See Page 7 of AAG Pepper’s Motion to Dismiss. The same document on page 6, counsel Pepper makes the laudable statement that “although defendants are serving … the Notice to Pro Se litigants as required by Local Civil Rule 12.1, this Court need not convert the instant motion to one for summary judgment”.
Counsel Joshua Pepper, made redundant, immaterial, false and distorting the evidence, or purposely ignoring Plaintiff’s rebuttal and inviting another redundant rebuttal in his memorandum of law, prompting Plaintiff to submit the motion to strike. As Plaintiff’s motion for default judgment did not have any plausible opposition and default could not be contested by negations without supporting evidence, it appeared that there is not necessary to rebut any other motion lacking standing submitted by AAG Pepper, pending the court decision pertinent to default. Nevertheless, despite that the legal case terminated in favor of Plaintiff and was not necessary to rebut any of the defendants’ applications after the default, Plaintiff thought that was
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necessary to request the court to strike the pleading for dismissal of action as frivolous, made with the purpose to harass and cause unnecessary delay and increase the cost of litigation. The counsel, used the impermissible tactic of raising any defense, regardless whether any factual basis exists. Such dilatory actions are prone to be sanctioned by any court, demanding impositions of penalties against Defendants and their counsel for filing defenses without factual or legal basis. Counsel Pepper made false and deceiving allegations in each of his “Memorandum of Law”, by false citations of Amended Complaint which were inexistent, or completely distorting the paragraphs’ text. Such irrational confabulation is fraudulent inducing an unbiased reviewer to believe that the Amended Complaint might contain such fabricated statements posing as real. In other allegations, counsel Pepper “dumbs him down” by claiming ignorance of clear evidence in Plaintiff’s Amended Complaint that requires in return redundant rebuttal. Such dilatory acts create unnecessary rebuttals and delays with increase of legal cost.
29. The docket of case 13 CV 5566 contains also applications and responses pertinent to case 13 CV 5693. Due to fraudulent consolidation of these legal
31
cases, this Court needs to make also a decision pertinent to case 13CV 5693.
30. On November 7, 2013, judge Roman denied Plaintiff’s motion to disqualify AG to represent the co-defendants, and he completely disregarded as inexistent, Plaintiff’s contentions that such representation is a conflict of interest. Dkt. # 45.
31. On October 23, 2013, Plaintiff submitted an Affirmation in opposition to Motion for dismissal of Plaintiff’s Complaint and Reply to AG’s motion that opposes Plaintiff’s motion to disqualify counsel. This application was fraudulently returned to Plaintiff by the Pro Se Office of Clerk on November 5, 2013, without any plausible explanation for the frivolous and illegal return, most likely done with the intention to prevent Plaintiff to oppose the defendants’ motion for dismissal of complaint and facilitate the court to order summary judgment for failure to respond and oppose the defendants’ motion. This motion was docketed on November 7, 2013, more than 2 weeks past the initial submittal of the application. Dkt. # 46. Due to the default of all defendants, defendants’ motion to dismiss the complaint, was mooted and lacked the standing. Nonetheless, based on prior experience with the biased and prejudicial state courts’ former actions and in
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consideration of judge Nelson Roman’s frivolous and biased order denying Plaintiff’s motion for disqualification of AG to represent the defendants, in arguendo, Plaintiff responded by rebuttal of counsel Pepper’s false and deceiving allegations. Although the present litigation has roots in the prior proceedings in the state courts, this legal action is not a revival of the state litigation and the claims and issues and most of the defendants are different than the state litigation. The litigation in the state courts was illegal, based on ex parte orders and judgments, lacking any hearing or conference, in typical kangaroo courts, lacking personal and subject matter jurisdiction, and ultimately, ending in void orders and judgments that are null ab initio. 32. On November 4, 2013, AG’s counsel, submitted Defendants’ Reply Memorandum of Law in further support of their motion to Dismiss. Dkt. # 43-44. In this mooted Memorandum of Law and lacking standing, AG’s counsel did not provide any new supporting allegations, rather the same conclusory and self serving allegations he made in the motion for dismissal of complaint, already rebutted by the Plaintiff. The most egregious, false and misleading confabulation of the Amended Complaint’s contentions, is counsel’s Pepper statement that: “Plaintiff seeks annulment of all previous
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orders, judgments and injunctions imposed upon the plaintiff’. Am. Compl. At p.49. Thus, in his own words, “Plaintiff seeks to relitigate issues and claims that the state court decided”. Nonetheless, as all the other citations by Counsel Pepper of the Complaint, there is no such contention of “annulments of previous orders, judgments and injunctions”, neither on page 49 or ¶ 49 with such specification. Thus, AAG Pepper committed egregious lie and egregious fraud on the court by an officer of the court. Moreover, counsel Pepper ignored that his allegations of res judicata and collateral estoppel he already raised in the state’s Article 78 proceeding, precluded him to raise these allegations again in the federal court. Also he ignored that the state AC dismissed his Memorandum of Law based on the same doctrines. He brushes away Plaintiff’s contention as “This is of no moment” as has no plausible argument. Counsel Pepper again, unsuccessfully raises irrational and implausible arguments. The Manual for pro se litigants published and copyrighted by the SDNY, clearly states the time limitations to respond to a complaint in Chapter Answer page 69 of this Manual with the instruction to the plaintiff to file a motion for default judgment, if no response to the complaint is filed within the required
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time period
. See Exhibit. Obviously, counsel Pepper cannot allege that SDNY’s Manual is wrong, intended to deceive the pro se plaintiff.
33. On November 12, 2013, judge Nelson Roman, in a Memorandum & Order granted the mooted motion to dismiss of the defendants with prejudice, by willingly and knowingly disregarding the existence of the prior default of all Defendants. This Order and directed Judgment decreed by clerk of court, Ruby Krajick, are appealed in this Court.
34. The citations of the Amended Complaint in chapter background of judge Roman’s Memorandum is a sham, judge Roman confabulated inexistent paragraphs contentions, or distorted the contentions to ridicule. In his Memorandum’s Discussion, he reiterates counsel Pepper’s allegations without any plausible basis to sustain his false allegations and without adding any supplemental allegations. Judge Roman’s allegations of Eleventh Amendment and absolute immunity were already rebutted by Plaintiff. Even without prior factual rebuttal of identical allegations brought by counsel Pepper, the 11th Amendment and absolute immunity are not applicable due to the fact that former AG Cuomo is sued in his official capacity under 15 USC Sec. 15c, and also in his personal capacity lacking
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absolute immunity and 11th Amendment preclusion. His final statement “that the Plaintiff failed to properly plead any cause of action” represents a TRAVESTY OF JUSTICE, and clear proof of fraud on the court, unconscionable abuse of discretion chilling the equitable justice, and irrational arbitrary action. Further on, the dismissal of the present legal case as well as 13 CV 5693 on irrational request basis of Janet Spiridonakos, who is not a defendant, was not served with summons, waiver of service and Complaint in present case, makes a mockery of the justice in federal court, unconscionable abuse of discretion, illogical arbitrary and capricious action and fraud on the court. 35. On November 25, 2013, Plaintiff submitted a motion with attached Memorandum of Law and Affidavit, requesting recusal of judge Nelson Roman, based on manifest actions denoting bias and prejudice toward Veleanu, unconscionable abuse of discretion & illogical arbitrary and capricious actions, as well as numerous acts of fraud on the court. Dkts. # 52-53. The motion also requested the reconsideration of the order of judge Roman and judgment decreed by clerk of court Krajick. The Plaintiff’s affidavit, despite that was stamped as received on November 25, 2013 was negligently never docketed.
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On January 16, 2014, Plaintiff checked the open and closed records of White Plains courthouse and discovered that this document was not docketed. The document was handed to the clerk of court for docketing and this explains the date of entering of January 16, 2014 (Dkt. # 60), (well beyond the date of recusal of judge Roman). Judge Roman in conspiracy with clerk of court, consolidated cases 13 CV 5566 with 13 CV 5693 in contempt of judge Briccetti Memorandum & Order that denied the consolidation of cases. On November 25, 2013, Plaintiff went to Pro Se Office in Manhattan to submit directly the Memorandum of Law for reconsideration and recusal of judge Roman. At that time, Plaintiff brought the attention to the clerk of court that there was a “blackout” of case 13 CV 5566 in Pacer. The search of case 13 CV 5566 in Pacer, between November 5th to November 30, 2013 showed the case as inexistent. On November 30, 2013, 13 CV 5566 re-appeared on Pacer with only the docket # 52 and 53 existent. At the inquest of inexistent case 13 CV5566, a clerk of the Pro Se Office, named Ms. Noriega, advised Plaintiff that as case 13CV5566 is closed, to submit any applications to case 13 CV5693 that was open and write both captions of cases on the application. It appears as a deliberate
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action of clerk of court to support the consolidation of both cases and fraudulent resolution of both legal cases in a final judgment. The Pro Se Office clerks were inquired by Plaintiff without any clue about the whereabouts of motion for default judgment of defendant Spiridonakos under Rule 55(a) and 55(b)(1) to be acted upon by clerk of court, Ruby Krajick. Judge Roman in his order dismissed not only her case, 13 CV5693, but also dismissed at Spiridonakos request, case 13 CV5566, with prejudice. Therefore, judge Roman directed the clerk of the court to close the docket No.6 and 8 in CV5693. Plaintiff’s Pacer account showed that Docket # 29 in present case remained un-acted upon and described as Motion for Default judgment as to Janet Spiridonakos and Freeboard International, Inc. The examination of closed and open records revealed that Docket # 29 in 13 CV 5566 actually represents the motion for default judgment supposed to be acted by judge Roman. The intrigue was resolved by identifying docket # 6 in case 13 CV5693 as the motion for default judgment submitted by Plaintiff on October 18, 2013 pursuant to Rule 55 (b) (1) to be acted upon by clerk of court, Krajick, that she never did. The records clearly show that after more than 4 weeks of failure to act upon the motion by Krajick, judge
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Roman willingly and knowingly, by fraud on the court, acted upon this motion, not addressed to be acted by him. Nonetheless, by doing so, judge Roman failed to act upon Plaintiff’s motion pursuant to Rule 55(b)(2) specifically addressed to his action and docketed in 13 CV5566 under Dkt. 29. The records show that judge Nelson Roman recused in case 13 CV5693, but did not recuse in the present case. As the motions were submitted under the caption of both consolidated cases, the motion for judge Roman’s recusal dated November 25, 2013 and docketed under Dkt. # 52, as well as the motion for annulment of order and judgment of judge Nelson S. Roman in this legal action, docketed under Dkt. # 55 remained un-acted upon, for several weeks, with the obvious intention to moot the motions by delay past the limits of time that plaintiff could appeal at the Court of Appeals, and then deny them. In Memorandum and Order of judge Roman dated December 31, 2013, judge Roman denied the aforementioned motions as moot despite that the applications brought controversial facts that he timely failed to act upon, and remained active based on his prior void order and judgment. His disqualification in this case is mandatory as he did in the parallel case 13 CV5693, because involved the conflict of interest as judge
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Roman cannot exculpate himself. The abuse of discretion and illogical arbitrary action is chilling effectual reasonable and equitable adjudication. By his prejudicial actions toward Pro Se Plaintiff, judge Roman violated several Canons of judicial conduct as : Canon 2.11.(6)(2): “A judge’s obligation to hear or decide motions in which disqualification required applies, regardless of whether a motion to disqualify is filed. Judge Roman violated Canon 2.9 C: “A judge shall not investigate facts in a matter independently and shall consider only the evidence presented and any facts that were properly noticed”. Judge Roman violated Canon 2.11(2) (b): “Acting as a lawyer in the proceeding”. Judge Roman violated Canon 2.5(4): “A judge shall monitor cases in ways that reduce or eliminate dilatory practices, avoid delays and unnecessary costs”.
36. On December 6, 2013, Plaintiff submitted under caption of both consolidated legal cases, a Memorandum of Law for further support of previous Memorandum of Law for reconsideration of order and judgment of judge Nelson S. Roman and recusal of judge Roman from this legal action, based on manifest legal actions denoting bias and prejudice toward pro se Plaintiff Mircea Veleanu, unconscionable abuse of discretion and illogical
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arbitrary and capricious actions, as well as numerous acts of fraud on the court. See Dkt. # 54. This application requested oral argument, As to the previous 2 applications, oral argument request was ignored as inexistent, as well as the default of all Defendants. This application, in view of the default of the defendants in both legal cases, requested the Court the transfer of these 2 legal cases to Eastern District Court, to be adjudicated by a magistrate judge, with a fair and reasonable opportunity to litigate and exchange information in the discovery for a rapid disposal of these 2 civil legal cases. Judge Roman violated Canon 2.5 (B) and Canon 2. 6: “Right to be heard. A. A judge shall accord to every person who has a legal interest in a proceeding. The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protected the right to be heard are observed. Canon 2.5 (B): “”disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay”. Judge Roman unreasonably delayed to act upon Plaintiff’s applications to court for relief, while promptly acting in applications benefiting the opposite party. For
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example, Plaintiff’s motion for disqualification of AG to represent the other defendants, submitted on September 25, 2013, was denied within 13 days following reassignment of judge Roman, while the motion submitted on November 25, 2013, requesting judge’s recusal, was not denied until December 30, 2013.
37. The sua sponte order and judgment of judge Roman, prematurely terminated Plaintiff’s right to fairly litigate and prevented Plaintiff to plead his contentions, thus a violation of due process and violation of constitutional rights. Judge Roman intentionally delayed all Plaintiff’s applications for relief in dilatory mooting tactics to prevent the appeal.
38. On December 11, 2013, Plaintiff timely filed a Notice of Appeal in the Southern District Court, appealing the Memorandum and Order dated November 12 and directed Judgment of judge Nelson S. Roman, dated November 13, 2013, which dismissed the Amended Complaint in this case, as well as the Complaint in case 13 CV 5693 using the caption of both legal cases in a definite unconscionable fraud on the court.
STATEMENT OF THE FACTS
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FORMER ATTORNEY GENERAL ANDREW CUOMO, IN BAD FAITH, CONTUMACIOUSLY COMMENCED A LEGAL ACTION LACKING STANDING AND PROBABLE CAUSE.
39. On August 7, 2009, former AG of NY State, Andrew Cuomo, acting under color of state law, commenced and continued in bad faith, a frivolous and vexatious legal action pursuant to GBL 349 and Executive Law 63.12 that did not satisfy the Exec Law 63.12. The alleged action was not directed to consumers at large and represented a rather particular and individualized commercial dispute that could be resolved based on the existent conditions of the commercial contract. It lacked the materiality as complainant was advised that an art carving is not a jewelry item. The Second Circuit has interpreted that the “lack of probable cause generally raises an inference of malice sufficient to withstand summary judgment” See Ricciutti v NY City Transit Authority, 124 F3d 123, 131 (2d Cir. 1997). AG Cuomo falsely invoked the Parens Patriae doctrine, based on fraudulent and deceiving allegations of a single complainant named Janet Spiridonakos, in lack of standing to support the statutory fraud due to lack of injury. The complainant was protected by the conditions of sale of commercial contract that provided lifetime warranty and refund. The clear and convincing
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evidence has shown that AG in racketeering actions, conspired with Spiridonakos to charge Plaintiff with fabricated charges, blackmail, extort and defraud him. AG bribed Spiridonakos not only with refund including the auction company’s commissions of 27.5 %, where the Plaintiff was the consignor, rather than the seller, but also with illegal retroactive interest of 9 % years back and other third parties cost.
DISMISSAL WITH PREJUDICE OF THE AMENDED COMPLAINT BY DISTRICT COURT’S JUDGE NELSON S. ROMAN IS A VOID ORDER AND JUDGMENT DUE TO LACK OF STANDING AS A MOOT LEGAL ACTION DUE TO PRIOR DEFAULT OF THE DEFENDANTS.
40. The district federal court case had constitutional authority to resolve actual dispute, however cannot continue after the matter at issue has been resolved leaving no live dispute for the court to resolve. The matter was moot as further legal proceeding after the defendants’ default is invalid. Former AG Cuomo and all the defendants defaulted as a matter of fact and matter of law. The continuation of the proceeding by judge Roman after
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defendants’ default is null and invalid, moot ab initio, moreover, by a void order and judgment.
41. Defendants defaulted as a matter of law without rebuttal by the defendants’ counsel of the objective legal evidence submitted by Plaintiff showing beyond any reasonable doubt that the defendants failed to submit an answer or motion to dismiss within the time limits established by Southern District of New York. Thus, hypothetical arguments cannot be entertained as Article III of US Constitution limits jurisdiction of all federal courts to live controversies. This legal case should terminate in favor of Plaintiff and any attempts to continue the litigations are moot as a matter of law!!!.
42. Judge Roman presiding the court, did not legally provide any reasoning that defendants did not default, did not provide any reasoning that Southern District’s Manual for Pro se litigants is illegal, thus, the default of all defendants stands and can not be cured by a nunc pro tunc order nullifying the default as inexistent. Defendants’ counsel did not ask the Court for an extension of time to submit an answer, or resubmit the motion to dismiss. Thus, gross negligence of counsel cannot be overlooked as inexistent.
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Furthermore, judge Roman by acting as a lawyer in his court, did not reason that the default did not occur, or the default miraculously could be cured by his intervention in behalf of the defendants. His Statement: “Because Defendants timely moved to dismiss, the Court DENIES (judge’s majuscules) default judgment against any of the defendants. By nunc pro tunc decision, judge Roman cannot deny factual event. The knowing and willing disregard of defendants’ default by judge Roman clearly and convincingly represents an irrational arbitrary action, unconscionable abuse of discretion and egregious fraud on the court. The Order and Judgment of judge Roman dismissing the Complaint is a sham and denotes TRAVESTY OF JUSTICE!!!.
43. Judge Nelson Roman violated the following ABA Rules of Professional Conduct: RULE 1.1: “Compliance with the law. A judge shall comply with the law, including the code of judicial conduct”. RULE 1.2: “Promoting confidence in the judiciary. A judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of the impropriety. Actual improprieties include violations of law, court rules, or
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provisions of the Code. The test of impropriety is whether the conduct would create in reasonable mind a perception that the judge violated this code or engaged in other conduct that affect adversely the judge’s honesty, impartiality or fitness to serve as a judge”. Further on, Canon 2, Rule 2.2 states: “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially”. Rule 2.2 (4): “it is not a violation of this Rule for a judge to make reasonable accommodations to ensure Pro Se litigants the opportunity to have their motion fairly heard”. Judge Roman repeatedly denied the request for a conference in Plaintiff’s motions. Dkt. # 49-50, 54. Two other motions requesting oral arguments were ignored as inexistent by judge Roman.
DEFENDANTS SOLICITED AS BRIBE, THE FREE LEGAL REPRESENTATION BY FORMER AG CUOMO AND HIS OFFICE IN CLEAR QUID PRO QUO ACT.
44. All 11 judges sued by Plaintiff, adjudicated legal cases where AG appeared as a litigant (Prosecutor Plaintiff in state trial courts and defendant prose, in state appellate courts). The free legal representation by a former
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litigant clearly represents de facto bribe to a judge
. It is inconceivable that a judge who solicits the legal representation from a former prose defendant in his court, might ever render a negative decision against that litigant. The quid pro quo doctrine inspires and generates corruption and prevents an unbiased and impartial arbiter of law to act in preserving neutrality of judiciary.
DISTRICT COURT JUDGE ROMAN ACTED IN CONTEMPT OF COURT BY CONSOLIDATING 2 DIFFERENT LEGAL CASES IN VIOLATION OF PREVIOUS JUDGE’S ORDER.
45. On September 4th, 2013, the assigned judge, Vincent Briccetti, rendered a Memorandum of Law and Order, denying a former defendant in the complaint, Janet Spiridonakos’ motion to consolidate the legal case against her for breach of contract and fraud, with present case. The amended complaint terminated her status of defendant. By fraud on the court, clerk of court, Ruby Krajick, maintained on the docket Spiridonakos’ listing as defendant, despite that the amended complaint did not list Spiridonakos as a defendant. She falsely claimed to be a witness who provided testimony
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against Plaintiff in trial state court. This allegation was false, as she did not provide any testimony in any court. A pre-trial affidavit she provided, was impeached by Plaintiff showing controversial statements contradicting prior statement she made, thus, she committed perjury. In addition, her affidavit was written by AG’s counsel, Nicholas Garin who included intimate petition details, Spiridonakos was unable to know. Judge Roman in contempt of court order, conspired with clerk of the District Court, violated judge Briccetti’s order and consolidated both cases in order to decree a single order and judgment dismissing both cases.
DISTRICT COURT JUDGE ROMAN ABUSED HIS DISCRETION AND RENDERED AT SPIRIDONAKOS’ REQUEST, AN IRRATIONAL ARBITRARY ORDER DISMISSING NOT ONLY SPIRIDONAKOS’ CASE BASED ON BREACH OF CONTRACT AND FRAUD, BUT ALSO PRESENT CASE. HIS ACTIONS CLEARLY REPRESENT EGREGIOUS FRAUD ON THE COURT.
Spiridonakos was served with waiver of service on August 15, 2013 and did not submit a motion to dismiss or answer till October 22, 2013 when she irrationally submitted a motion requesting to dismiss both legal cases
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without any RATIONAL basis. She defaulted as a matter of law by failure to timely respond to the complaint. Her default mooted any further applications she made to the court that lacked the live controversy and are moot. On October 30, 2013, Spiridonakos submitted a Memorandum of Law in which irrationally and senseless, claimed res judicata, collateral estoppel, Rooker Feldman preclusion doctrine, and witness immunity for providing testimony in court. Nonetheless, she never was sued by Plaintiff (res judicata, collateral estoppel and Rooker Feldman doctrine do not apply), and never provided any testimony in court. Thus, in arguendo by admitio ad absurdum that she did not default, her illogical and irrational allegations would prevent any unbiased judge, or any member of a jury, to consider such irrational and bizarre allegations.
JUDGE NELSON ROMAN ACTED AS A LAWYER IN BEHALF OF DEFENDANTS IN A SUA SPONTE MEMORANDUM AND ORDER DISMISSING PLAINTIFF’S COMPLAINT, IN CLEAR AND CONVINCING VIOLATION OF PLAINTIFF’S DUE PROCESS
47. In an irrational arbitrary action and abuse of discretion, judge Roman
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used the fraudulent consolidation of both legal cases to render a single order dismissing WITH PREJUDICE not only the complaint against Spiridonakos, but at her illogical request, dismissed the amended complaint, despite that she was not a defendant in the case. Judge Roman violated Plaintiff’s constitutional right of due process, by prematurely terminating legal proceedings and prevented Plaintiff to litigate his meritorious case. Dismissal with prejudice is reserved only to the most reprehensible cases, in present legal case proof of judge’s prejudice and bias toward the Plaintiff.
JUDGE NELSON ROMAN IN EGREGIOUS ABUSE OF DISCRETION AND FRAUD ON THE COURT, DECREED AN ORDER AND INSTRUCTED COURT’S CLERK TO DECREE A JUDGMENT VOID AB INITIO DUE TO PRIOR DEFAULT OF THE DEFENDANTS HE IGNORED AS EXISTENT.
48. Judge Roman decreed an invalid order and directed a judgment, lacking the standing, disregarding that all the defendants already defaulted as a matter of fact and law.
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JUDGE ROMAN COMMITED FRAUD ON THE COURT BY FAILING TO ACT UPON PLAINTIFF’S MOTION PURSUANT TO FRCP 55 (b) (2) AND FRAUDULENTLY DENIED PLAINTIFF’S MOTION PURSUANT TO FRCP 55 (b) (1) THAT CLERK OF COURT FAILED TO ACT.
49. Judge Roman covered up clerk of court’s gross negligence to act upon a timely and correctly submitted application pursuant to FRCP 55 (b) (1) and denied this application without a reasoning. Clerk of court failed to perform the mandatory function to act upon application of litigants. The cover up continued by judge Roman’s failure to act upon a timely application of Plaintiff pursuant to FRCP 55 (b) (2) concealed by clerk of court.
SUMMARY OF THE ARGUMENT
49. This is a legal case commenced in bad faith, and contumaciously continued by former AG, Andrew Cuomo, in lack of probable cause and lack of standing. Cuomo invoked his authority as parens patriae, to fraudulently prosecute a respected member of community well known for his research and publications in oriental arts. Cuomo’s invocation of parens patriae was false, lacked standing, not based on any legal basis and certainly lacking the
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understanding of scientific truth. His prosecutorial misconduct is based on misrepresentation and deceit, in legal actions demonstrating racketeering activities of criminal acts of felonies, most of them committed in his investigative functions where is not protected by the absolute prosecutorial immunity. Knowingly and willingly, Cuomo and his counsel, Garin, conspired with criminal person Spiridonakos to commit, inter alia, criminal acts of blackmail, extortion and fraud on the Plaintiff by knowingly and willingly using mislabeled (misbranded) and forged forensic evidence, forged evidence by counterfeit of hand writing, perjury and subornation of perjury, etc. With full knowledge of the lack of probative value, Cuomo and Garin, in racketeering acts, committed obstruction of justice, uttered to the court forged, concealed and fabricated evidence, in conspiracy with Spiridonakos, charging Plaintiff with concocted and confabulated charges. Cuomo and Garin in the non-advocatory function violated federal penal law 18 USC Sec. 1349: “Any person who attempts or conspires to commit any offense in this chapter, shall be subject to the same penalties as those prescribed for the offense, the commission of which was the subject of the attempt or conspiracy“. In accordance with penal law 18 USC 1349, Cuomo
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and Garin are liable to imprisonment of up to 20 years, fines or both. In addition, malfeasance in the office demands their disbarment and impeachment from the office. Although investigative activity entitles to good faith qualified immunity, the criminal acts committed in the absence of absolute immunity, do not absolve the perpetrators of crimes from criminal prosecution. In this process of investigative function, Cuomo and Garin, criminally forged evidence by obstruction from view and concealed exculpatory evidence, abetting, supporting and encouraging the committal of felonious acts, blackmailing and defrauding the Plaintiff, abetting the theft of precious merchandise by substitution of the purchased item with valueless fake, bribing potential witnesses by soliciting them to request refunds and breach the contract toward the offering of an illegal retroactive interest of 9 % to the date of purchase without claiming misrepresentation of the purchased items, even request refund of the auction commissions where Plaintiff was not responsible as being a consignor. In his non advocatory function and devoid of absolute immunity, the prosecutor libeled Plaintiff in 2 releases to media by false and deceiving statements, with full knowledge that the statements were false and intended to degrade, assassinate the
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immaculate personal character of Plaintiff and attempt to attract former customers into asking for refunds with the opportunity to enrich themselves from the considerable offered bribe. In a contempt of court, Garin and Cuomo, violated the gag order imposed by court regarding the TRO. In most egregious action in the investigative function devoid of immunity, Cuomo committed malicious prosecution and abuse of process violating due process rights under USC 14th amendment and USC Sec 1983. Cuomo proceeded toward execution of Plaintiff’s home and thereafter, execution of the property based on a void ab initio and unenforceable order and judgment of AJSC Pagones that lacked any jurisdiction. Cuomo and Garin solicited an international “flamer” to attack Plaintiff on the Internet and solicit former customers to request refunds. Cuomo’s felonies committed in the non judicial and non investigative of media’s libel activities deprived the prosecutor of his qualified immunity.
50. Cuomo commenced the legal action without service of legal action and subsequently, the orders and judgments decreed in absence of jurisdiction, were void as a matter of law due to lack of personal and subject matter jurisdiction. JSC James Brands decreed a TRO in absence of jurisdiction.
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Similarly, AJSC Thomas Dolan decreed a judgment without jurisdiction and illegally decreed a permanent injunction without a hearing. Cuomo engaged in dilatory actions in order to delay the proceedings, accummulate more illegal retroactive interest and harass Plaintiff. Cuomo failed to enter the judgment of AJSC Dolan within 60 days and subsequently defaulted. He did not restart the legal action within 6 months, and defaulted again. AJSC James Pagones was assigned more than 10 months after the judgment decreed by judge Dolan and again, failed to obtain jurisdiction of the court by failure of AG to serve Plaintiff with de novo legal action. Subsequently, the decree and judgment of judge Pagones was void ab initio for lack of jurisdiction. Neither of the judges of SCDC who decreed orders and judgments instituted a conference or hearing, thus, the orders and judgments were ex parte orders and judgments, void and null without any authority to enforce them. SCDC decreed orders and judgments typically rendered in “kangaroo courts” of autocratic regimes, lacking of any civil rights. Plaintiff’s constititional rights under 1st, 5th. 6th. 7th, 8th, and 14th amendments of USC were violated in SCDC kangaroo courts, as well as in
Southern District of NY and 2d Circuit Court of Appeals federal courts.
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ARGUMENT
51. Former AG of NY State, Andrew Cuomo, commenced in bad faith a legal action against Mircea Veleanu, invoking the Parens Patriae doctrine, authority delegated under GBL 349 and Executive Law 63.12. Nonetheless, this legal case does not qualify under Parens Patriae doctrine that requires a 3 steps test entitlement: 1. The state must articulate a quasi-sovereign interest that is distinguishable from the interest of private parties. See Abrams v 11 Cornwell Co., 695 F2d at 38-39 (2d Cir. 1982). In the present legal case, former AG Cuomo, did not substantiate by any argument that the state has any quasi-sovereign interest in behalf of state, other than fraudulently intervening in a case where the complainant who is not a citizen of NY State, had no standing in lack of injury, and was protected by a commercial contract with the seller, claimed irrational and false allegations not supported by any plausible grounds. 2. The second step in testing the eligibility of standing of AG to claim Parens Patriae doctrine, is that the state must allege injury to a substantial segment of the population, or threatened with injury by the defendant conduct. See Alfred L. Snapp & Son, Inc., v. Puerto Rico, ex rel Baretz, 458 US 592, 600 (1982), at 607. See
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also, People v Peter & John’s Pump House Inc., 914 F Supp 809, 811, 812 (NDNY 1996), at 812. In this legal case, AG Cuomo failed to sustain the requirement of this legal step, as far from lack of involving a sizable segment of population, merely, only one single case of a complainant who breached the contract, committed criminal acts of mislabeling of forensic evidence, forgery by counterfeit of the evidence, accepted bribery from Cuomo, blackmailed, extorted and defrauded the seller, even when secured by a commercial contract of her customer rights, and committed perjury. Cuomo failed to exercise due diligence by investigating her fraudulent allegations prior commencing the legal suit against Plaintiff. 3. The third step in determining the standing of AG to claim Parens Patriae doctrine, requires AG to substantiate that the involved individuals who sustained injury, could not obtain a relief through a private suit. See “State Parens Patriae Authority; The evolution of the NY State Attorney General Office” by Jay L. Himes, Chief Antitrust Bureau, office of NY State Attorney General (April 23, 2004). The Parens Patriae doctrine does not involve the state stepping in to represent the interests of private citizens who for different reasons cannot represent themselves. If the state is only a nominal
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party without a real interest of its own, then it will not have standing under the Parens patriae doctrine.
Snapp at 601. See also Cliff v. Vacco, 267 AD 2d 731, 699 NYS 2d 791 (3rd Dept. 1999)( AG’s authority under NYS Exec Law 63 does not extend to the representation of private individuals in matters involving the enforcement of private rights ). Plaintiff avers that standard of review is de novo and that all properly pleaded factual allegations must be considered as true. De Jesus v Sears, Roebuck & Co., 87 F 3d , 65. 70 (2d Cir. 1996) (conclusionary allegations or legal conclusions masquerading as factual conclusions need not be accepted”). All allegations in the AG’s counsel in his Memoranda of Law, as well as judge Roman’s Memoranda were conclusionary, lacking any factual evidence, other than stating legal cases without any relationship to factual representation of present case issues. The standing of Parens Patriae requires AG to show in addition to injury to a substantial segment of population, a quasi-sovereign interest that is distinct from the interest of particular private citizens. In Table Bloof Reservation (Wyot Tribe) v Philip Morris, Inc., 256 F3d, 879, 885(9th Cir 2001), the Ninth Circuit held that before any could sue under Parens Patrae, the Plaintiff Tribe “must allege
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injury in fact to the citizens they purport to represent”. Because the Tribes had failed to show injury to their members, the Court found that they lacked Parens Patriae standing. Id Accord New York v Microsoft Corp., 209 F Sup 2d 132, 149-50 (DDC 2002) (Parens Patriae must establish that Article III standing requisitions were met). In sum, Cuomo failed to meet all 3 requirements for standing under Parens Patriae and Plaintiff is entitled to full relief.
52. RICO is a criminal and civil statute designed to eliminate the influence of organized crime and any corrupt practice. See “Civil RICO and Parens Patriae: Lowering litigation barriers through State intervention” by Beth Schipper. William & Mary Law Review, Vol 24, Issue 3, Article 4. An “enterprise includes government entities”. See US v Turkette, 452 US 576 (1981). See also: Blakey & Gettings: “Racketeer influenced and corrupt organizations (RICO). Basic concepts-Criminal and civil remedies“. 53 Temp LQ 1004 1023-28 (1980). 18 USC Sec 1961 (1) defines racketeering activity as any serious state felony, or violation of federal law as bribery, counterfeiting, interstate theft, extortion, mail or wire fraud, obstruction of justice, etc., exactly the criminal acts that Plaintiff is invoking in this legal
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action. See Straffer, Massumi & Skolnick: “Civil RICO in the Public Interest: “Everybody’s Darling”. 19 AM. Com. L. Rev. 655, 656-57 (1982). Because Racketeering activities are state and federal offenses, RICO Congress’ legislation under 15USC Sec.15 created new remedies to deal with RICO offenses. The statute permits individuals to act as private attorney general and sue for treble damages. See Kaushal v State Bank of India, No. 82 C 7414 (ND Ill 1983). RICO arose from deep concern of Congress over white collar crime and mostly over government corruption.
53. Because RICO prohibits conduct, not states (See US v Forsythe, 560 F2d 1127, 1136 (3rd. Cir 1977), its civil remedies are integrated broadly. See 18 USC Sec. 1962 (1976). 18 USC Sec. 1964 (a) (1976). It confers jurisdiction on the federal district court to hear civil RICO actions and precludes State AG to invoke 11th Amendment and absolute immunity.
This legal case litigation by Plaintiff is exactly following the prescription of 15USC Sec 15c that federal court acts in joinder with the state interests represented by State Attorney General and private Plaintiff’s legal action in eradicating the deep corruption of New York State Courts including the State Appellate Court, bypassing the authority of the Appellate Court.
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54. 18 USC Sec 1964 (b) provides for a civil RICO action allowing State AG to institute proceeding under this section; while 18 USC Sec 1964 c, provides for an aggrieved person to sue in the federal court. This statute prescribes: “Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fees“. By enacting the RICO laws, Congress was extremely effective in preventing and rectifying economic harm to individuals and companies, and furthering the public purpose of preventing improper commercial practices”. 116 Cong. Rec. 35, 227 (1970). This case fits the pre-requisites of racketeering pattern of at least 2 acts occurring within 10 years, interrelated by a common scheme to form a pattern. Cuomo controlled the enterprise through the racketeering, and the act of racketeering caused injury to plaintiff. See US v Stofsky, 409 F Supp 609, 614 (SDNY 1973), aff’d., 527 F2d 237 (2d Cir 1995), cert. denied. The proof of the link between the activity and injury is essential See US v Nerone, 563 F2d 836 (7th Cir 1977) cert. den’d.
55. In their investigative function devoid of absolute immunity, Cuomo and Garin, inter alia, committed the following federal crimes, all proof of
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racketeering activity: 1. Bribery of witnesses (punishable under 18 USC Sec. 201; 2. False statements to the media (punishable under 18 USC Sec 1001); 3. Fraudulent activity through the media (TV, Radio, wire, Internet), punishable under 18 USC Sec 1343; 4. Aiding and abetting criminal activity (see theft of property and substitution with valueless fake by Diana Norton) punishable under 18 USC Sec 2;
5. Engaging in monetary transactions in property derived from specific unlawful activity (funds originated from illegal punitive penalties decreed by AJSC Pagones distributed to RICO colaborators) punishable under 18 USC Sec 1957; 6. Fraud and false statements offenses involving the integrity of investigative process (false declarations under penalty of perjury, aid and assistance of procurement of false or fraudulently executed entries and documents by judges, removal or concealment with intent to defraud, withholding, falsifying or destroying documents, etc.), punishable under 26 USC Sec 7206; 7. Obstruction of justice by obstruction of proceeding under the Anti-trust Civil Process Act, punishable under 18 USC Sec 1505; 8. Obstruction of court order (contempt of court by violation of gag order of judge Brands) punishable under 18 USC Sec. 1509;
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9. Obstruction of criminal investigation (Re-Diana Norton theft of property) punishable under 18 USC Sec. 1510; 10. Tampering with witnesses, punishable under 18 USC Sec. 1512; 11. Destruction, alteration, or falsification of legal records; 12. Perjury, punishable under 18 USC Sec. 1621; 13. Subornation of perjury punishable under 18 USC Sec. 1622; 14. False declaration before a court, punishable under 18 USC Sec. 1623; 15. Criminal contempt punishable under 18 USC Sec. 402; 16. Racketeering conspiracy punishable under 18 USC Sec 1962 c, etc. 17. Conspiracy against constitutional rights under Sec. 1983 punishable under 18 USC Sec. 241; deprivation of constitutional rights punishable under 18 USC Sec. 242;
The objective of RICO is to turn any victim in private prosecutors AG’s acting in behalf of people to eliminate racketeering activity. See Rotella v Wood et al. certiorari to the US Court of Appeals for the 5th. Circuit No. 98-896 (2000). While judge Roman claims that Spiridonakos is a witness of prosecution, this case is proof of racketeering where Spiridonakos was an associate of the racketeering acts and committed criminal acts in behalf of the Enterprise. Plaintiff is a victim of racketeering acts of Spiridonakos and a witness against the Enterprise rather than vice versa. Nevertheless, Plaintiff did not sue Spiridonakos for her racketeering criminal acts, rather
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for the breach of contract and frauds committed to cover up the breach of contract by fraud.
57.The initial requirement for standing under Parens patriae is the show of injury that affects not only the private parties, but the state itself as a quasi-sovereign interest apart from the private parties interests. Many appellate courts have concluded that a state does not have a standing because the damages sustained by the state were “derivative”, or “too remote”. E,g. Ganim v Smith & Wesson Corp., 780 A2d 98, 108 (Conn. 2001). In the present legal case, Cuomo did not allege any injury sustained by the state in its quasi sovereign interest to satisfy Parens patriae doctrine.
58. The defendants’ counsel did not try to debate or bring any arguments against USC15 Sec. 15c that allows the Plaintiff to sue the AG in his official capacity when AG deviates from his official duties, “making motions or asserted claims or defenses so lacking in merit as to show that such party or representative acted intentionally for delay or otherwise acted in bad faith” (See 15 USC Sec.15 (a) (2)(A). Moreover, 15 USC Sec 15c (a) (2)(B) prescribes that “whether, in the course of the action involved, such State or the opposing party, or either the party’s representative, violated any
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applicable rule, statute, or court order providing for sanctions for dilatory behavior or otherwise providing for expeditious proceeding”.
Finally, 15 USC 15c specifies in Paragraph (a) (2) C: “whether such state or the opposing party, or either the party’s representative, engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof”. The above 3 paragraphs of this Title, on base of the evidence provided, irrefutably apply to this legal case and the State representative (former AG Andrew Cuomo is liable for the violations clearly shown in this Title that demand his prosecution as a felon). Further on, this Title under paragraph (d) (2) provides that “the court may, in its discretion, award a reasonable attorney’s fee to a prevailing defendant upon a finding that the State Attorney General has acted in bad faith, vexatiously, wantonly, or for oppressive reasons”.
Plaintiff is entitled to relief against former AG Andrew Cuomo acting in his personal capacity where 11th Amendment and absolute immunity do not apply.
59. It is well settled that AG and his counsel (OAG) are entitled to absolute immunity when acting in his advocatory function (other than unlawfully
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acting under Parens Patriae doctrine when sued under federal 15USC 15 C where 11th Amendment and absolute immunity do not apply). Nevertheless, the prosecutor is not covered by absolute immunity when performing investigative function. In this legal case, most of the illegalities, felonious acts and fraud acts were committed by Cuomo in the investigative role. Qualified immunity protects prosecutors unless their conduct violates clearly established constitutional rights or statutory of which a reasonable person would have known. See Harlow v Fitzgerald, 457 US 806, 818 (1982). In Buckley v Fitzimmons, 509 US 259, 269 (1993), Supreme Court held that prosecutors are not entitled to absolute immunity against claims when “they conspired to manufacture false evidence”. Buckley 509 US at 272. Supreme Court noted that the alleged fabricated evidence “was entirely investigative in character”. Id at 274. The absolute immunity of prosecutor “depends principally on the nature of the function performed, not on the office itself”. See Ying Jing Gan v City of NY, 996 F2d 522, 530 (2d Cir 1993); see also Kalina v Fletcher, 522 118 (1997). The qualified good faith immunity does not protect AG when performing the non advocatory functions in the pre-trial phase. Obviously, committal of felonies by former
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AG Cuomo makes him liable for the criminal acts with mandatory imposition of fines, imprisonment or both, and impeachment from office for malfeasance. Even when not invoking 15USC Sec 15c, 11th amendment preclusion does not apply to the prosecutor acting in his personal capacity, performing the non advocatory function as present case’s release of false and deceiving statements to media, violation of state and federal laws, codes, rules and regulations. Cuomo and Garin made libelous statements to the media, violated the gag order of justice James Brands in contempt of court and committed several criminal acts already stated. In sum, Cuomo and Garin acting in their personal capacity are not protected by absolute immunity, and good faith immunity does not apply and protect for commital of criminal acts. 11th. Amendment does not apply in Congress edict statute 15USC Sec. 15c, where equally, state AG is entitled to relief, as well as the state citizen whose rights were violated by AG.
State judges sued in the District Court lacked the personal and subject matter jurisdiction, thus, all orders and judgments decreed are null and void ab initio due to complete lack of jurisdiction.
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60. The order and judgment decreed by AJSC Dolan and AJSC Pagones in SCDC are null and void due to lack of personal and subject matter jurisdiction, as well as disputed territorial jurisdiction.
61. The orders decreed in State’s Appellate Court Second Department (AC) are void and invalid as lacking the standing. An Appellate Court cannot confer jurisdiction nunc pro tunc to a void trial court judgment lacking the jurisdiction. AC decreed an order dismissing Plaintiff’s Appeal by fraud on the court by failing to review the trial court’s proceeding, by not answering to the posed questions and ignoring Plaintiff’s Brief’s contentions. Furthermore, AC committed several frauds on the court in the proceeding of Article 78 as follows: invoking a common legal case that is not applicable to requirements of Article 78 (CPLR 7801), prematurely terminating the proceeding in a fraudulent sua sponte decision and order that was moot due to Plaintiff’s motion for summary judgment that preceded by 7 days the order and judgment of Article 78.
62. Rooker Feldman doctrine do not apply as the State Court’s Article 78 proceeding is limited in jurisdiction and the procedures in state courts did not adjudicate the multiple causes of action. Obviously, the federal suit has different causes of actions, different defendants and not applicable to
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Rooker Feldman doctrine. NY state preclusion claim does not apply to Article 78 proceeding that lacks power to award the relief available in Sec. 1983 litigation. See Davidson v Capuano, 792 F2d 275, 278-79 (2d Cir. 1986); see also Colon v Coughlin, 58 F2d 865, 870 n3 (2d Cir 1995). Issue preclusion pertinent to Rooker Feldman doctrine applies only when the issue in question was actually decided in the prior state proceeding and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue. Obviously, Plaintiff did not have the opportunity to fairly litigate in a biased court that violates the due process by prematurely ending Article 78 in a sua sponte order.
Most importantly, this legal case does not request review of federal court of state legal proceedings, a pre-requisite of Rooker Feldman doctrine.
FORMER AG CUOMO DEFENSE IN FEDERAL COURT BASED ON RULE 12 (b) (6) OF FRCP INVOKING RES JUDICATA,
COLLATERAL ESTOPPEL, ROOKER FELDMAN DOCTRINE, 11TH AMENDMENT AND ABSOLUTE IMMUNITY DOES NOT HAVE STANDING.
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63. Cuomo through his counsel invoked the above stated defense allegations in the state AC article 78 proceeding. In the District Court proceeding he is precluded by law to invoke the same defense allegations. Moreover, state AC denied his motion for dismissal of proceeding based on the above stated allegations. Cuomo lost the defense in the state tribunal, thus, Rooker Feldman doctrine precludes him and all the defendants he represents to claim the same defense in the federal court.
Egregious and biased intervention of judge Roman as a lawyer in behalf of the defendants in this legal action precludes him as well, to claim res judicata, collateral estoppel, absolute immunity and 11th Amendment with the belief that he can do a better job than counsel Pepper, (these defenses were already used by AAG Pepper in the State Article 78 proceeding and now precluded in District Court). Judge Roman in clear fraud on the court, prematurely terminated Plaintiff’s rights to present evidence in court, in a fraudulent sua sponte order, and directed judgment to clerk of court. The fraud on the court consisted in rendering a void Order and Judgment due to prior default of all defendants to submit a timely Answer to Amended complaint or motion to dismiss. See Exhibits.
CLERK OF STATE AC, APRILANNE AGOSTINO, ACTING UNDER
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THE COLOR OF STATE LAW VIOLATED PLAINTIFF’S CONSTITUTIONAL RIGHTS UNDER 14 AMENDMENT, SEC. 1983 AND 1988, AND IN CONSPIRACY WITH JUSTICES OF AC HELD PLAINTIFF’S APPLICATION FOR SUMMARY JUDGMENT BY ARBITRARILY FAILING TO ACT UPON THE MOTION.
64. By failing to act upon Plaintiff’s motion for relief in her ministerial and mandatory function, she allowed AC’s justices to render a fraudulent judgment that did not precede Plaintiff‘s motion for SUMMARY JUDGMENT. Government employees as Agostino enjoy qualified immunity when they performed discretionary functions insofar as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known”. See Harlow V Fitzgerald, 457 US 800, 818-19 at 815. See also Finnegan v Fountain, 915, F2d 817, 823 (2d Cir 1990). Agostino acted in bad faith committing willful misconduct and gross negligence for which she is devoid of immunity. See Mosher-Simons v County of Allegany, 94 CV 374S, 1997 WL 662512 at *6 (WDNY 1997). (“gross negligence undermines the presumption of good faith performance and prevents the invocation of immunity”). “Gross negligence is defined as
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an aggravated disregard for the rights and safety and others”. Moshers-Simons, 1997 WL 662512 at *6, quoting Ricciardi v Con Edison, 161 Misc. 2d 917, 918, 615 NYS 2d 854, 855 (1994). Clerk of Court Agostino is sued in present action for obstruction of justice under 18 USC Sec. 1509, 18 USC Sec 1505, and failure to perform her mandatory and ministerial
function devoid of any immunity punishable under 18 USC Sec. 401. Agostino acted as an associate in the racketeering scheme of the Enterprise conducted by Cuomo.
65. Janet Spiridonakos did not provide testimony in court for AG Cuomo and is not a witness in a racketeering case. In opposition to Cuomo’s allegations, Plaintiff is rather the witness and victim of the racketeering acts and not Spiridonakos who is a willing and active participant in the racketeering acts of Enterprise headed by AG Cuomo. Witnesses not testifying at trial are not entitled to absolute immunity. Moreover, complaining witnesses were never afforded absolute immunity. See Payne v City of Lompoc, 160 F3d 564-65 (9th Cir 2000) (Witness’ absolute immunity does not shield an out-of-court pre-trial conspiracy to engage in non-testimonial acts such as fabricating a physical or documentary evidence, or
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suppressing the identities of potential witnesses). Spiridonakos never testified in court and Plaintiff never had the opportunity to cross examine her. Further more, in Keko v Hingle, 318 F3d 639, 642 (5th Cir 2003), absolute immunity was denied to a witness as the testimony was not offered at trial, but at a hearing; police officers who act as complaining witnesses do not have absolute immunity. See White v Frank, 855 F2d 956, 961 (2d Cir 1988); Anthony v Baker, 767 F2d 657, 660 (10 Cir 1985) (Court refusal to extend absolute immunity to grand jury witnesses); San Filippo v US Trust Co., 737 F2d 246, 255 (2d Cir. 1984) (no absolute immunity for alleged conspiracy between prosecutor and witness to secure false testimony before grand jury); Wheeler v Cosden Oil & Chemical Co., 734 F2d 254, 261 (5th Cir 1984) (denying absolute immunity to witness who testified at probable cause hearing).
JUDGE ROMAN IN HIS MEMORANDUM ORDER DISMISSING THE CASE COMMITTED LEGAL PLAGIARISM BY IDENTICAL COPYING OF ENTIRE SECTIONS OF US DISTRICT COURT MEMORANDUM OF DECISION AND ORDER 2:12 CV 03484 (ADS) (WDW) DATED MAY 29, 2013.
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Although legal citations of common law cases’ content is at American jurisprudence basis, copying of identical sections of legal decisions without citation is unethical, illegal and criminal if any material benefit is derived from. Judge Roman’s Memorandum & Order dismissing this case contains word-by-word identical duplication of several issues raised in case Anghel v NY State Department of Health et al. For example: collateral estoppel of page 8 of Memorandum, Chapter IV Eleventh Amendment and Chapter V Absolute immunity. The Conclusion is identical with the exception of judge’s signature and date. This unethical and illegal judicial action is rather a rubber-stamp fraudulent dismissal of a legal case on basis of a dissimilar legal case whose dictum was plagiarized.
CONCLUSION
Based on the factual rendition of this case supported by legal irrefutable grounds, Appellant respectfully requests that this Court reverse the order and judgment of the district court with a finding of fact in favor of the appellant. In the alternative, this Court should remand the case for a fair and impartial trial before an unprejudiced jury on proper evidence and under correct judicial instructions of a neutral arbiter of law, as is just and proper.
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God Bless America!
God Save America!
April 2014 Respectfully submitted
Mircea Veleanu, Pro Se
Plaintiff Appellant
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