Memorandum of law in support of motion for relief of judgment

MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT VELEANU’S MOTION FOR RELIEF FROM JUDGMENT

Respondent Mircea Veleanu submit as his Memorandum in support of his motion for leave to Relief of Judgment pursuant to CPLR Article 50, Rule 5015 (a) as the following:
3. The affiant is seeking the court order granting leave pursuant to CPLR
R5015 upon the following grounds:
1. R5015(a)(3). Fraud, misrepresentation, or other misconduct of the adverse party.
2. R5015 (a) (4). Lack of jurisdiction to render the judgment.
3. R5015 (a) (2). Newly discovered evidence which if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under CPLR 4404 (b).

STATEMENT OF PRIOR PROCEEDINGS

1. Petitioner, People of the State of New York, by Andrew Cuomo, Attorney General of the State of New York (hereinafter, “AG”), commenced the proceeding with a Petition for an Order to Show Cause against Respondent, Mircea Veleanu, hereinafter “Veleanu”) pursuant to GBL Sec. 349 and Executive Law 63 (12). The Petition requested leave from the court of a TRO that was granted and in which defendant Veleanu was prevented to sell or advertise objects made of jade without a gemological identification test. The petition was not served, or improperly served to Veleanu in violation of CPLR 403, or in alternative, CPLR 307, 308, 310, 311 or 312, as well as CPLR 3012 (b), or CPLR 2103. While CPLR 403 (d) allows an Order to Show Cause to be served in lieu of a Notice of Petition at a time and in a manner specified therein, definitely will not allow such service of petition by telephone about 3 hours prior the appearance in court. In any situation, the service of the respondent would not be appropriate if the defendant would not have time to learn about the charges of the legal suit and given the opportunity to defend himself. Such infraction, if ever done as in this case, represents a violation of respondent’s constitutional rights for due process and equal protection of laws under constitution of US, 14th amendment.
Veleanu was lured to the court under false pretense of appearance for a
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request for a temporary restraining order (hereinafter TRO) and with no mention whatsoever of serving of a petition. CPLR 320 provides as follows: Defendant’s appearance under 320 c: When appearance confers personal jurisdiction, in certain actions; limited appearance; clearly and without ambiguity specifies: “(W)hen the court’s jurisdiction is not based upon personal service on the defendant, an appearance is not equivalent to personal service upon the defendant” . Accordingly, the petitioner, AG, never accomplished serving of the legal process with the notice of petition. Supreme Court of NY, Dutchess County, (hereinafter named SCDC), never had personal jurisdiction upon respondent Veleanu. Veleanu was notified by phone about a “hearing” in the SCDC, 3 hours prior the “hearing”. As Veleanu lives most of the time in Somers, NY, he appeared in the court on August 7, 2009, shortly before the court opening and at that time Assistant Attorney General (hereinafter AAG) Nick Garin, AKA G. Nicholas Garin, handed Veleanu a large bundle of documents that Veleanu did not have a chance to read even the first page and had no opportunity to present an adequate representation of the facts to the court presided by judge James Brands. While Veleanu believed that the papers where only in connection to Temporary Restraining Order, (hereinafter named TRO), when had the opportunity at home to examine the packet of documents, Veleanu realized that the papers actually represented a petition, rather than the TRO documentation related to the order to show cause at the court for a TRO appearance. As Veleanu’s appearance was not related to the service of the petition, rather to the TRO, there is no ground that the petition was served to him. CPLR 6311 provides that a preliminary injunction may be granted only upon notice to the defendant, thus, AG not only violated CPLR 6311, but most importantly, violated constitutional right of Veleanu for due process as he was not given the opportunity to learn in sufficient time about the allegations and prepare for a defense related to granting a TRO. CPLR 403 (b) provides that a notice of petition and service should be done at least 8 days prior the petition to be heard, while the Order to Show Cause “shall be served at a time and manner specified therein”. Nevertheless, CPLR 403 was not intended to violate the constitutional rights of a defendant. The gist of the action is not the notification of the respondent for a court appearance 3 hours prior the appearance for unknown allegations, but the fraudulent notification for a court appearance allegedly related to the issuance of a TRO as related by phone by AG, when instead it represented a concealment
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of the service of the petition. The concept of notice is critical to the integrity of legal proceedings. Due process forbids a legal action against a person unless the person has been given notice and an opportunity to be heard. Anyone who is not served is not bound by the decisions in the legal case. A person who believes that proper service has not taken place may generally challenge the service without actually making an appearance in the court. This legal action is typical for the abuse of process tactics used by AG in this legal case. Veleanu had the choice of not answering the allegations in the petition due to improper service and risk the default, or answering the complaint and denying the service of the petition in the pleadings and motion(s) to dismiss, as done by Veleanu in consideration of the extreme bias and prejudice of the court toward Veleanu. CPLR 6314 “Vacating or modifying preliminary injunction or temporary restraining order” provides that “An order granted without notice and vacating or modifying a temporary restraining order shall be effective when, together with the papers upon which it is based, it is filed with the clerk and served upon the plaintiff”. CPLR 6313 Temporary Restraining Order provides that “Upon granting a temporary restraining order, the court shall set the hearing for the preliminary injunction at the earliest possible time”. The SCDC, never set up any hearing in relationship to the TRO, or any hearing whatsoever. The “hearing” on August 7, 2009 and a follow up “hearing” on September 14, 2009, were labeled by judge James Brands as “calendar calls” in the “Statement in lieu of stenographic transcripts”, as the stenographic transcripts were missing, or were not taken. See Exhibit 12 page 15. In accordance with CPLR 320 (b), Veleanu objected to the personal jurisdiction in both, his answer to the petition and also motion to dismiss pursuing 404 (a) raising an objection in the point of view and also CPLR 3211 (a) (8). CPLR R6301 specifies that “A TRO may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. In this legal action, petitioner did not serve the defendant Veleanu with a notice and no hearing ever took place not only for TRO, but no hearing whatsoever prior decreeing a permanent injunction. AAG Garin violated the constitutional right of due process by violating CPLR Art 4, R403 regarding the notice of petition or the order to show cause to be served in a manner specified therein, however not in a manner to sanction violation of the constitutional right of due
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process and the right to be informed about charges in time to allow preparation for a defense. 2 judges of the Supreme Court of Dutchess County decreed judgments in favor of the petitioner without any hearings, conference, calendar call and even without seeing the defendant or the attorney representing the defendant Veleanu. These judgments are considered to be ex parte judgments as the respondent had no chance to defend or participate and are void ab initio. The violations of constitutional rights of Veleanu specify that every person has access to justice without sale, denial or delay and every person’s rights are guaranteed unless denied by the statutes. The right to dispute, to deny, to defend and when injured, to seek the remedy, where flagrantly and totally violated or ignored by the 4 involved judges of the Supreme Court of Dutchess County. First judge, Judge James Brands accepted as material evidence documents that defendant Veleanu averred were criminally forged and criminally mislabeled. The fact that petitioner used criminally forged and mislabeled material evidence with full knowledge of their falsity and misrepresentation represents a criminal act known as uttering and punishable under Federal law with imprisonment and fines. AG action of presenting forged evidence is proof of FRAUD UPON THE COURT. The petitioner presented at the calendar call of August 7, 2009, inadmissible evidence without any probative value as copies of pages of the inventory of Objets D’Art Uniques Internet store without showing that any misrepresentation of the items offered for sale ever occurred. In the same context, the petitioner AAG Garin, presented inadmissible evidence as comments or reviews of defendant’s published books on Amazon.com. As the positive reviews were omitted and the identity and personal interests of the commentators were unknown, the malicious and falsity of the publications represented pure libel and certainly without any probative value. Another “evidence” submitted by petitioner Garin with no probative value at all, was the confabulation of complainant Janet Spiridonakos that she was sold 2 items she alleged were made of glass rather than jadeite. However, she never consulted anybody else about authenticity of these 2 items and was not sure about her own suspicion as after the return and refund of these 2 items (months prior start of the legal action), she implored the defendant to re-sell the items. Providently, this transaction did not take place. The only material evidence consisting in gemological reports of AGTA company, not only that represented inadmissible evidence of criminal tampering, fraudulent forgery
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and mislabeling, but also represented sheer ignorance to level of stupidity by using gemological testing for ornamental art carving, testing that is reserved exclusively to jewelry grade semi-precious or precious stones. Gemological testing were never used for authentication of ornamental jadeite art carving and the use of such inappropriate testing in the court of justice represents legal fraud. It is reasonable that a fact finder is not knowledgeable in scientific matters and in this case it would be necessary that the proponent of a temporary injunction and thereafter a permanent injunction, would require that an expert should be consulted prior starting the legal action as is required in the medical malpractice cases. In medical malpractice legal cases, an expert needs to certify a certificate of merit, signed by the plaintiff’s attorney and filed with the complaint in the civil suit declaring that the plaintiff’s attorney has conferred with at least one competent expert and afterward concluded that the suit has merit. In the absence of the certificate of merit, the suit is deemed to be a frivolous suit and as such dismissed. While the TRO is a temporary action meant to maintain a status quo prior hearings to determine the plausibility of charges, it is in itself a degrading and unjust legal action that affects the legal rights of the accused person granted by the Constitution and destroys person’s moral character, social status, professional authority, credibility and inflicts irreversible damages on the accused. When no hearings were instituted whatsoever as in the present case, the court acted in a “show trial” or so called “kangaroo court” in an unethical, immoral, reprehensible and unacceptable behavior in any democratic society of the world free of tyranny of a dictatorial regime.
2. In the legal case of Pfau V Forster & Garbus et al, 2008-2009 Index 8236, Erie County Supreme Court, AG with cooperation of Administrative Judge Pfau, eradicated a fraudulent group of debt collectors. This is what Andrew Cuomo as Attorney General said regarding this case that was almost contemporary to the present legal case:
“OUR LEGAL SYSTEM IS DEFINED BY DUE PROCESS AND THE GUARANTEE THAT EVERY NEW YORKER WILL GET THE CHANCE TO DEFEND HIMSELF (HERSELF) IN COURT”.
The above declaration of the Attorney General represents a noble and legal right of the American citizens to defend themselves when facing wrong charges. However, this represents a pure demagoguery and political propaganda when Andrew Cuomo acted against the principles he is
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teaching (preaching) to the citizens of New York State and citizens of USA, if ever Andrew Cuomo would run for a higher office. Judge James Brands properly recused for conflict of interest. However, it appears from Judge Brands statement in lieu of stenographic transcript, pursuant to CPLR 5525 (d), that “the TRO would be signed pending the return date, September 14, 2009”. See attached Exhibit 12, p16. Further on, judge Brands stated “Thereafter it came to the court’s attention that the Principal Court Attorney was acquainted with the respondent having represented his former wife in the matrimonial action. Accordingly, the undersigned recused from further consideration of this matter”. See Exhibit 12 p17.The above statements of judge Brands imply that at the beginning of the legal procedure, he was not aware of the conflict of interest. However, the signature of TRO at a later date than August 7, 2009, assumes that the Principal Court Attorney was involved in the study, research and preparation of TRO including the submission of the TRO documents and as such impartiality and lack of bias can not be proven. In such situation, the ethical approach would be to apply the nolle prosequi doctrine and nullify the decree of TRO already granted. According to NYS Law 22 NYCRR 100.3 (E) (1), a judge should disqualify himself in a procedure in which the impartiality might reasonably be questioned. A judge has an obligation to report to the appropriate disciplinary committee an attorney who either notarized a document or knowingly submitted altered documents to the court, whether there is a substantial violation, rests with the judge, concluding that the attorney involved engaged in a deliberate deception intended to perpetrate fraud and deceive a party. The matter should be reported to the attorney disciplinary committee. The rules governing judicial conduct require that “(a) judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action”. See 22 NYCRR 100.3 (D) (2). Judge James Brands violated NY DR 7-102 (B); Clear knowledge of fraud requires to trigger reporting duty. Under DR 7-102-(B), disclosure of fraud is required if the lawyer has knowledge on which would clearly establish the existence of fraud.
Judge Brands was made aware by the undersigned that the prosecutor did not notify him about the TRO until 3 hours prior the calendar call of 8/7/2009 and did not mention whatsoever about a personal serving at the time of TRO ‘s appearance, and as such Veleanu did not know anything
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about the charges against him other than the request for the TRO. Judge Brands states on page 16 of Exhibit 12: “Dr. Veleanu appeared and stated that he had just received the order to show cause and petition moments before the appearance and did not have sufficient time to prepare an answer”. The failure to serve the defendant is a major violation of the due process that judge Brands should know or should have known at that time, but did not take any measure to correct the injustice of substantial violation of the constitutional rights of the defendant. Handing by the prosecutor to respondent of the petition and order to show cause a few minutes prior appearance in the court for an unrelated issue, is clearly a violation of due
process cause. Nevertheless, respondent was lured to the court for the TRO and was no mention whatsoever that respondent was notified about an order to show cause or petition. According to CPLR 320, an appearance in the court for an unrelated issue is not considered service. In addition, judge Brands was notified by the undersigned at the appearance of 8/7/2009 of the forged and mislabeled evidence that AAG Garin uttered to the court. Judge Brands did not take any measure to report the uttering to the disciplinary committee, and even more, decreed the TRO based on submitted fraudulent evidence.
3. Following the recusal of judge Brands, Judge Thomas Dolan was assigned to this legal case. Judge Dolan violated the undersigned’s constitutional rights under 14th amendment of USC, by decreeing a permanent injunction against the undersigned without any hearings whatsoever, and even without seeing the undersigned. Decreeing a decision/order and judgment without any hearing (in the entire length of all legal proceedings there were no hearings whatsoever) represents an egregious act and the most blatant violation of the “due process”, as the defendant had no chance to defend himself. The due process is the legal requirement that the state must respect all the legal rights that are owed to that person. Due process balances the power of law and protects an individual from it. When an officer of the court that represents the government of the state harms a person without following the exact course of the law proceeding, it constitutes a due process violation which offends the rule of the law and as such, the officer of the court acted extra-judicial and is stripped of his immunity. This clearly represents an extrinsic legal fraud that is defined as inducing one person not to present a case in the court, or deprives an individual of the opportunity to be heard. In this
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particular action, involves fraud upon the court. Whenever an officer of the court commits fraud during a procedure in the court, he is engaged in fraud upon the court. See Bulloch v. United States 763 F 2d 1115, 1121 (10th Cir. 1985). Fraud upon the court makes void the orders and judgments of that court. It is well settled law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. See People of the State of Illinois v. Fred E. Sterling 357 Ill. 354, 192, NE 229 (1934); “(t)he maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions”). Under Federal law, when an officer of the court committed “fraud upon the court”, the orders and judgments of that court are void, of no legal force or effect. The judge who committed
“fraud upon the court” acted without jurisdiction, and this suggests that he has engaged in criminal acts of treason against the Constitution and may be engaged in extortion and the interference with interstate commerce. Since both treason to the Constitution of United States and interference with interstate commerce are criminal acts, the judge acted without jurisdiction and has no absolute immunity protection. It is well settled that courts possess the inherent authority to ensure the integrity of the judicial process and guard against the procurement of judgments based on fraudulent claims. See Lyons v. Goldstein 290 NY 19, 25, (1943); also Matter of Holden 271 NY 212, 218, (1936); Furman v. Furman 153 NY 309, 314, (1897). According to the Code of Judicial Conduct, all judges have taken an oath of office to support and defend the state and federal Constitution. Specifically, a judge must not deny anyone, of their rights to due process of law, access to the courts, freedom of speech, freedom of press, freedom of religion and many of the rights set out in the state and federal Constitution. A government official, as in this case, the Attorney of New York State, Andrew Cuomo and his office subordinates, may deprive an individual of Constitutional rights, rightly or wrongly, but only a judge can deny the rights bestowed to the citizens of New York State and United States. The above applies not only to judge Thomas Dolan, but applies to judge James Pagones who issued a Decision/Order/Judgment without any hearing, without seeing the defendant and/or his lawyer and decreed his judgment based on a previous judgment of judge Dolan, judgment that was not entered or docketed and as such, was null and void due to abandonment by default. The following canons of judicial conduct were violated by the 2 judges of the SCDC who issued decisions/orders/judgments: Judge Thomas
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Dolan and Judge James Pagones, as well as judge Peter Forman:
1. A judge shall uphold the integrity and independence of the judicial.
2. A judge shall avoid impropriety and the appearance of impropriety in all judge’s activities.
3. A judge shall perform the duties of judicial official impartially and diligently. 3. A judge shall perform the duties of judicial official impartially and diligently.
Attorney General knowingly and willingly fabricated false evidence, demonstrating a willful and egregious disregard for the Code of Professional Conduct to which he is bound by oath. Nobody is above the law regardless of the position in the government and authority. Such conduct impedes the course of justice, degrades the court and the legal
profession and damages the public trust in the institution of judiciary. Title 18, US Code Section 1001 (a)defines: “It is a crime to knowingly and willfully make any material false, fictitious or fraudulent statement or representation in any matter within the jurisdiction, within the executive, legislative or judicial branch of the US. Conspiracy to violate the civil rights of an accused individual. See FRCP 6 (a) and 56(c); also Code of Professional Conduct Canons, NY.
4. Judges Thomas Dolan and James Pagones decreed judgments without hearings; as such, the orders and judgment decreed are considered to be ex-parte and such ex-parte judgments are invalid, null and void.
Judge Thomas Dolan and Judge James Pagones granted judgments in the absence of notice to the adverse party, Veleanu. It is an error of law and denial of the due process by the trial court to grant an application on a substantive matter absent a failure to serve a notice of motion (order to show cause) and an opportunity to be heard as required by CPLR 2214 (b). Failure to give a timely notice of motion as required by CPLR 2214, deprives the court of jurisdiction and renders the order granting the motion (as in this case was the order to show cause) and subsequent the relief requested by petitioner, jurisdictionally void. See Golden v. Golden 128 AD 2d 672; Beck v. Gooday 24 AD 2d 1016 (2d Dept 1965). A motion or notice is made when a notice of motion or order to show cause is served.
One of the most egregious unconscionable, capricious and irresponsible abuse of discretion was the denial of the defense of the undersigned, consisting in the pleadings and a conscience shaking violation by judge Thomas Dolan of the CPLR 409 (a) and CPLR 409 (b) by granting a
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permanent injunction upon the undersigned. His judicial act is clear fraud upon the court. Judge Thomas Dolan in an unconscionable abuse of discretion and reckless disregard to the truth, willingly and with full knowledge of the fraud upon the court of the prosecutor, accepted fraudulent, forged and mislabeled AGTA gemological reports as bona fide evidence upon which he granted a permanent injunction. Judge Dolan judicial action is an obvious FRAUD on the court. He also disregarded the rebuttal of the prima facie evidence of AGTA reports that identified the 7 rosary mala as species “natural quartz”, by GIA reports that did not confirm the presence of species “natural quartz” in its gemological identification reports, rather species quartzite, that is not the same as quartz.
The pleading consisting in the answer to the petition, informed the fact finder that the evidence introduced by prosecutorial fraudulent misconduct was not admissible as having no probative value, as was based on criminal acts of forgery and mislabeling. The answer to the petition by the undersigned brought solid scientific evidence that refuted the intellectually defective and ignorant at the level of stupidity and absurdity of the prosecutor and his complainant witness. Even more, the prosecutor was devoid by the legal support of his allegations by the impeachment of the affidavit testimony due to perjury of the single witness of the prosecution. Judge Dolan illegally and biased at extreme, dismissed the pleadings of the undersigned as being not “sworn“. In his Decision/Order/Judgment, Judge Dolan, inter alia states: “Respondent has submitted lengthy, albeit unsworn or improperly affirmed responses to this petition. These responses are generally lacking in any evidentiary value as they are not properly sworn to, are speculative and conclusory, and consist mainly of denials and self serving statement unsupported by any evidentiary material in proper admissible form…Based upon its review of this matter, this court finds said complaints to be without a valid basis”. See pages 3-4 of the Decision/Order/Judgment. In other words, the holding of judge Dolan was not based on veracity of the documentation in the pleadings. The documentation submitted by Veleanu in his responsive pleadings could not be considered “conclusory” as the evidence consisting in scientific articles, reference treatises are objective evidence of proof that AG did not controvert with any documentary scientific evidence to rebut Veleanu’s objective evidence. Amazingly, judge Dolan probably was referring to AG’s petition when he wrote that the pleading was “conclusory, speculative and
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self serving as the court found said complaints to be without a valid basis”. Obviously, respondent’s Veleanu motions for dismissal submitted to the court were not “complaints”, rather requests to the court to dismiss a frivolous petition failing to state a cause of action. Thus, a “complaint” represents the petition itself, and cannot be the answer to the petition, that evidently is not a “complaint“. Judge Dolan willingly and knowingly denied the pleading of the defendant Veleanu by making false declarations completely void of any legal or factual ground, and as such are obviously biased and discriminatory and represent FRAUD UPON THE COURT. Judge Dolan knew or should have known as an officer of the court and fact finder about the existence of CPLR 105. Under paragraph 105 (u) Verified pleading specifies that a “verified pleading” may be utilized as an affidavit wherever the latter is required. CPLR 105(b) states: “in a special proceeding, and the words “summons and complaint” include the notice of petition and the petition respectively, in a special proceeding”. Accordingly, undersigned Veleanu submitted the pleadings to the court in the form of verified pleading where the oath is substituted with declaration under perjury. Verified pleading is accepted and used in all federal court proceedings pursuing 35 USC Sec 25 or 28 USC Sec 1746 that provides that the verified declaration under penalty of perjury could be used wherever the sworn oath of affidavit is required, as well as in all NY State courts proceedings.
Judge Thomas Dolan violated NY EC 7-25 that provides: “Rules of evidence and procedure are designated to just decisions and are part of the framework of the law. Thus, while a lawyer may take steps in good faith and within the framework of the law to test the validity of rules, the lawyer is not justified in consciously violating such rules and should be diligent in his or her efforts to guard against unintentional violations of them”.
Further on, the scientific evidence consisting in a plethora of scientific articles, textbooks dealing on the subject can’t be labeled “conclusory” and certainly not “speculative”. The prosecutor did not offer any scientific
evidence to refute the scientific evidence provided by Veleanu and as such his pleading (petition) is conclusory, irrelevant and speculative. Judge Dolan reference to the common law standard brings an exculpatory citation as follows: “(A)s to the claims alleging deceptive business practices or false advertising under General Business Law 349 and 350, the Attorney General was required to establish that respondent(s) engaged “in an act or practice
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that is deceptive or misleading in a material way that (the consumer) has been injured by reason thereof”. Small v. Lorillard Tobacco Co. , 94 NY 2d 43, 55 (1999), quoting Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 NY 2d 20, 25 (1995); accord Solomon v. Bell Atlantic Corp., 9 AD 3d 49, 54 (2004)”. This statement proving common law standard cases, clearly shows that Attorney General is required to prove that the consumer has been injured as a result of alleged violation of statutory fraud. Nonetheless, in the present case, the single complainant did not prove any injury (pecuniary damage). The only proof of “damages” was an invoice that was forged, amounts overcharged as a rip off of the merchant, and criminally fraudulent due to forgery and counterfeiting of the document, and fraudulent as the complainant was entitled to a refund in accordance to the conditions of sale. See Exhibit 1 page 2. She breached the contract by unilaterally decided not to accept the conditions of the contract she was aware of. As the conditions of sale of the contract offered Spiridonakos lifetime guarantee with full privileges of refund or exchange, she could not claim that she was “injured”. Accordingly, this legal case has no standing for lack of being aggrieved. This legal case is typical of extortion, blackmail, commercial and legal fraud, forgery by counterfeit of invoice, perjury and other illegal activities committed by the single complainant. The undersigned brings judicial notice to the court of the crimes and fraudulent illegalities of Janet Spiridonakos and demands that the court exercise its unbiased and honest discretion and award the undersigned punitive and reparatory damages for the pecuniary, physical and psychological injury caused by the reckless and illegal actions of Janet Spiridonakos. This legal case represents a typical commercial private dispute between a customer and the merchant, it is particular to this case, it lacks materiality, is not addressed to the consumers at large and could be resolved amicably based on conditions of sale of the contract Janet Spiridonakos was aware of. Judge Dolan knew or should have known as a fact finder and lawyer admitted to practice law in the courts of NY State, about the existence of CPLR 105. In a biased and reckless disregard to NY State law CPLR 105, judge Dolan denied the undersigned’s pleadings and the attached motions for the dismissal of the petition, invoking the fraudulent statement that they ”were unsworn”. His actions are to be considered a miscarriage of justice and fraud upon the court.
5. The decision/order/judgment of the third judge assigned to this case,
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judge James Pagones, is even more egregious in his judicial acts. Judge Pagones after his assignment, did not institute any hearings, conference calls, calendar calls, did not see the defendant’s attorney Clinton Calhoun, or the undersigned, despite that his order and judgment states that “the petitioner having appeared by their attorney, Andrew Cuomo, Attorney General of the State of New York, G. Nicholas Garin, of counsel and the respondent having appeared by his attorney Brucetti, Calhoun and Lawrence, Clinton W. Calhoun, of counsel”. The statement gives the false impression that the adversaries appeared in the court, unspecified sometime. The decision/order/ judgment of judge Pagones of 10/6/2010, as he stated, adhered to the decision/order/judgment of judge Dolan. However, the decision/order/judgment of judge Dolan was never entered and docketed and in accordance to NYCRR 202.48 was abandoned by default. Judge Dolan never directed to submit or settle after the negotiations failed. The prosecutor based on laches failed as a prevailing party to expeditiously submit judgment’s entry for docketing, and for lack of prosecution, the legal action was terminated by abandonment. Judge Pagones did not institute any hearings, conferences, calendar calls on his legal case assigned to him and as the previous legal action was abandoned by default, he was supposed to start de novo this legal action as the permanent injunction order decreed by judge Dolan was not entered and docketed, and as such was null and void. Judge Pagones willingly and knowingly, in a biased action, violated CPLR 2219 (a) and CPLR R2220(a). Judge Pagones completely ignored the wealth of scientific documentary evidence submitted in the reargument/renew memorandum of law of respondent’s attorney Clinton Calhoun and respondent’s affidavit in support of the motion, wrongly labeling the reargument motion as rather “renew” in a fraudulent misinterpretation of CPLR 2221. Judge Pagones as a fact finder and a lawyer admitted to practice law in NY State Courts should know, or should have known CPLR 2221. According to CPLR 2221, the renew motion shall be based upon new facts not offered on the prior motion that would change the determination. In opposition, the motion to reargument is based on matters of law overlooked or misapprehended by the court. Obviously, a reargument can not be a “renew”, as such, the knowingly and willingly misinterpretation of the law by judge Pagones is unlikely to be ignorance, rather callous disregard to the statutes of NY State, reckless and biased unconscionable abuse of discretion and a travesty of justice. Judge Pagones legal action is a
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legal fraudulent action and is a FRAUD UPON THE COURT.
Judge James Pagones violated NY EC 9-4 that provides: “Because the very essence of the legal system is to provide procedures by which matters can be presented in an impartial manner so that they may be decided solely upon the merits, any statement or suggestion by a lawyer that the lawyer can or would attempt to circumvent these procedures is detrimental to the legal system and tend to undermine public confidence in it”.
Undersigned’s lawyer, attorney Calhoun, naively thought that the court overlooked and misapprehended the exculpatory evidence because was not submitted in the form of an oath sworn affidavit, as judge Dolan stated in his judgment; but ignored the obvious fact that the court was biased and prejudiced, unwilling to accept evidence that represented bona fide issues of material fact that would preclude the grant of summary judgment in any form that would be submitted to the court.
6. The last judge involved in this legal case was judge Peter M. Forman that was apparently assigned to this case following the judgment decree of judge Pagones in November 2010. Defendant Veleanu submitted to the Court an Order to Show Cause entered in the Clerk of Dutchess County Office on January 23, 2012 with request for a leave to relief, and enforce, the already granted by default Stay of Judgment by the Supreme Court of Dutchess County of November 12, 2010 in accordance with CPLR 5519. Judge Peter M. Forman failed to make a decision regarding defendant’s motion to obtain relief and prevent the sale of property at a public auction by the Sheriff. As such, judge Forman violated CPLR R2221 (a) (1) and also CPLR R2219 (a) by not making a determination within 20 days for this provisional remedy order. On April 24, 2012 (that is more than 90 days since the submission of the application), judge Forman issued a decision and order that denied the discretionary relief requested by Veleanu pursuant to CPLR 5519, C as moot. Of course that an emergency relief requested in an Order to Show Cause became moot after more than 3 months since the application was submitted and represents FRAUD UPON THE COURT. Accordingly, the judicial action of judge Forman was perverse, biased, timely improper and irregular. In his Decision and Order, judge Forman made a false statement that defendant filed the application of the Order to Show Cause with the Appellate Court-Second Division on November 12, 2010. The evidentiary proof however, shows that the application for relief in the Order to Show Cause of November 12, 2010 was actually filed, and deemed as entered by
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the SCDC while the unperfected appeal was pending before the Appellate Court. See Exhibit 13 p1-p3. As such, the application to the SCDC could not be denied by the Appellate Court and is clear representation of FRAUD UPON THE COURT. See page 4 of judge Forman Decision and Order, Exhibit 14. The most egregious judicial act committed by judge Peter Forman was denial to sign an Order to Show Cause submitted by respondent Veleanu, in which Veleanu requested leave for a TRO to prevent distribution of the undertaking funds cashed by the AG, due to the fact that all customers who requested refunds, including the complainant Spiridonakos, are out-of-state residents and a premature distribution of the funds would make difficult if not impossible to retrieve and retrieve the proceeds in case of respondent’s proof of frauds and illegalities. Judge Forman refused to sign the Order to Show Cause invoking his discretionary power. Nonetheless, judge Forman act was definitely biased, pro-prosecutorial, arbitrary, unconscionable and capricious, and represents abuse of discretion. The wrong and biased judicial action of Judge Forman violated NY State CVR Civil Rights Article 2 (10) that provides: “ Justice to be administered without favor and speedily. Neither justice nor right should be sold to any person, nor denied, and writs and process ought to be granted freely and without delay to all persons requiring the same, on payment of the fees established by law.
7. The summary judgment was inappropriate due to the presence of numerous issues of material fact.
The undersigned’s motions for dismissal of the petition enclosed with the pleadings were discarded and not taken in consideration not because they lacked the merit, rather because were labeled “unsworn”, in a capricious and unconscionable abuse of discretion. If would be unbiased, judge Dolan had the judicial responsibility to bring the attention to the respondent to correct the submitted documentary evidence papers according to CPLR 405 that Judge Dolan knowingly and deliberately violated. Nevertheless, the respondent’s pleadings in the form of verification under penalty of perjury were legally correct and the summary judgment should be vacated. Pursuing CPLR 404, respondent raised an objection in the point of law by setting it forth in his answer to the petition and timely submitted motions for dismissal of the suit attached to the pleadings:
Acting under CPLR 3211, respondent moved for dismissal of the suit under
CPLR 3211 as follows:
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E. CPLR 3211 (a) (7). The petitioner’s pleadings failed to state a cause of
action.
F. CPLR 3211 (a) (8). The court has no jurisdiction on the person of the defendant.
A.CPLR 3211 (1) (a). A defense is founded upon documentary evidence profusely provided in the pleadings.
B. CPLR 3211 (1) c. Evidence permitted ; immediate trial; motion treated as one for summary judgment in favor of respondent.
C. CPLR 3211 (1) (d). Facts unavailable to opposing party that appeared from affidavits submitted in opposition to a motion made under subdivision (a).
D. CPLR 3211 (1) (e). Motion to plead over upon a ground specified in paragraph 1, paragraph 7 and paragraph 10.
G. CPLR 3211 (a) (10). The court should not proceed in the absence of the person who should be a party.
Either one of the above motions for dismissal of the cause of action were sufficient to dismiss the petition. The court in an unconscionable abuse of confidence and miscarriage of justice denied respondent’s defense, and acted by violation of his constitutional rights under 14th amendment.
The summary judgment was biased and illegally granted, inter alia, by disregarding the following issues of material fact that precluded the grant:
1. The court had no jurisdiction on the defendant due to the lack of service.
2. The court maliciously, biased and in an illegal action denied the defendants defense through fraud upon the court by violating CPLR 105 (u).
3. The court in a biased and malicious action, through fraud upon the court, denied the motions for dismissal of action that were based on CPLR 105 (u), and were meritorious.
4. The court accepted as prima facie through fraud upon the court evidence, illegal and fraudulent documents based on forgery, mislabeling, sheer ignorance and intellectually defective misinterpretation of findings.
5. The prima facie evidence submitted by the prosecutor was destroyed by incontrovertible evidence of the undersigned that made the summary judgment inappropriate as follows:
A. Gemological testing was never done in ornamental jade carving by any standard of ethical jade merchants. Such requirement is scientifically absurd, irrational and moronic due to the fact that the ornamental jadeite rock is rather of a large proportion and constituted of
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several minerals and chemical elements that preclude the gemological testing that is done in a single specific and minute area of the rock, and as such, the results are unpredictable and different, like in the present case. AG did not provide with an example of a single case that such absurd use of gemological examination was ever done by a seller of ornamental art jadeite carving. AGTA findings of a single mineral identified as “natural species quartz” was not confirmed by GIA reports that did not mention in any reports the finding of quartz.
8. The scientific explanation of the findings of different minerals is based on the genesis of jadeite from another mineral, albite. Under ultra-high pressure metamorphism, albite disintegrates with the formation of jadeite and quartz. This may explain the omni-presence of the quartz mineral in rocks containing jadeite. See Exhibit 19, p. 1.
In China, the jadeite is found in areas where under tremendous ultra-high-pressure and relative moderate temperature originated from continental collision in the Triassic period between the Sino-Korean and Yangtze cratons. The jadeite is found as jadeite/quartzite as both are metamorphic rocks originating under similar conditions of ultra-high-pressure and relatively moderate temperature. See Exhibit 19, p.2. Quartzite that is a metamorphic rock contains several minerals and is associated with jadeite as jadeite/quartzite or jadeitite in areas of the globe where ultra-high-pressure and relative moderate temperature preceded the formation of the metamorphic jadeite/quartzite rocks. The finding of quartzite or quartz does not preclude the existence of jadeite in the rock, rather the appearance and mineralogical testing attest to the presence of the jadeite in the rock that is poly-mineral.
9. The Federal laws of Tariff Act of July 24, 1897, Schedule N Sec. 1, c 11 regarding the importation of semi-precious stones, specify that articles as bowls, vases, trays, wine pitchers, teacups, altar sets, flower stands and other articles manufactured from jade by cutting, carving or other means are not “precious stones” within paragraph 435, Schedule N, but are dutiable under paragraph 97, Schedule B, 30 Stat 156 covering articles composed wholly and in chief value of mineral substances. The federal government tariff on semi-precious stones as jade makes a distinct difference between jade intended for use as jewelry purposes and jade used as utilitarian or ornamental use that are dutiable under a much lower scale. This explains the price difference between jadeite of jewelry grade that contains pure jadeite
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and jadeite of ornamental art carving grade that is composed of jadeite/quartzite, or jadeitite found in the regions were jadeite is mined.
B. there was a discrepancy between the weight reported by the 2 gemological laboratories involved in this case that might point toward inaccuracy of one lab reports toward the other in measuring the weight of the rosaries mala. The standard of authentication of any jade seller is to perform the mineralogical examination consisting in the examination of the item under a high power lens, determining the Moh’s test (hardness) and in some situation, the determination of specific gravity. The obligation to submit an ornamental jade carving for gemological testing is absurd, idiotic, senseless and against the decency to follow scientific objectives. A fact finder should act as any reasonable person in normal state of mind, acting under fundamental recognition of the standards followed by commercial sellers of jade. If in case of ignorance, doubt, lack of scientific information, the court should ask the prosecutor to bring evidence that such gemological testing is necessary to authenticate an ornamental art carving that is not of jewelry grade. Jewelry grade jadeite is routinely authenticated by gemological testing, as the jadeite in this items contains almost exclusively jadeite and the testing will always yield to the finding of jadeite. The imported jadeite from China invariably has color enhancement that can’t be detected by regular examination. When the enhancement is known, the seller of jade has the obligation to reveal this to the potential buyer. In the present case, the undersigned was not aware about the color enhancement that is practically universal.
10. Article 32 of CPLR 3212 specifies: “The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts and it shall show that there is no defense to the cause of action or that the cause of action, or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision C of this rule, the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact…C. Immediate trial. If it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages, or if the motion is based on any of the grounds enumerated in subdivision (a) or (b) of rule 3211, the court may, when appropriate for the expeditious disposition of the controversy, order an
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immediate trial of such issues of fact raised by the motion, before a referee, before the court, or before the court and a jury, whichever may be proper“. Analyzing the above script of CPLR R3212, it appears as objectively evident that the summary judgment against the undersigned was granted on faulty, fraudulent judicial interpretation, or failure to interpret, but reflects extreme bias against the respondent and obvious violation of CPLR 3212. First of all, this frivolous legal action does not have any relationship to GBL 349 and Executive Law 63-12 regarding the statutory fraud. This case represents a private commercial dispute between a dishonest buyer acting in bad faith that had as objective, defrauding, extorting the merchant, on one side, and on the other side, a merchant acting in good faith under the conditions of sale of the contract that the buyer breached. There was no fraud whatsoever, as the buyer was offered a refund according to the conditions of sale of the contract. The merchant promised a full satisfaction and refund that the buyer turned it down. Spiridonakos used fraudulent misrepresentation alleging that she was sold a mala labeled as fei tsui that she fraudulently claimed that fei tsui is synonymous with “imperial jade”. Nonetheless, fei tsui signifies in Mandarin Chinese as ordinary jadeite and not imperial jadeite, or a better or higher grade than regular jadeite. She fraudulently submitted mislabeled jadeite rosary mala as “carved head necklaces” in order to qualify them for submission for gemological examination that is not proper for ornamental jadeite items. In summary, this legal case represents a private commercial dispute, not consumer oriented and without broad impact to the consumers at large. See Oswego Laborers Local 214 Pension Fund V. Marine Midland Bank 85 NY 2d, 20, 25. This commercial dispute as being private, is unique to the parties and does not fall within the gambit of the State. See Oswego Id at 25; Jacov v. United Lubavitch Inc., 53 NY 2d 700, 800 (1981); 2011 NY Supp op. 50060 (30 Misc. 3d 1213 (A) (2), 2011. In support of the unique aspect of this private dispute is the fact that no other jadeite mala were offered for sale or sold by respondent’s store Objets D’Art Uniques, or any other outlets for sale. As a matter of fact, all ornamental jade carvings sold by the defendant were nephrite jade that have a different appearance, different chemical composition and usually not used in the jewelry as jadeite does. Most significant is the fact that no other jadeite mala were offered for sale by Veleanu. All 3 customers who requested a refund at the petitioner’s solicitation, bought nephrite jade carvings and not jadeite and the nephrite
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carvings were not mala. Under the statute R3212 for summary judgment, the motion should be denied if the adversary party shows facts sufficient to require a trial of any issues of material fact. In view of the numerous issues of material fact brought by the defendant in his pleadings and the motions for dismissal of the petition, the summary judgment was improperly granted to the petitioner in a biased and unconscionable abuse of discretion by judge Thomas Dolan and judge James Pagones. According to CPLR R3211, and R3212, the summary judgment should be awarded to defendant Veleanu, or at least in the presence of numerous issues of material fact, the motion for summary judgment should be denied and an immediate trial should be instituted for resolution of unresolved triable issues of material fact, before the court and an impartial jury The issues of material fact raised by the undersigned were not controverted by the petitioner with solid scientific and objective evidence. In view of the incontrovertible evidence of presence of issues of material fact that make the summary judgment improper and illegal as violating several statutes, the granting of summary judgment by the SCDC was unconscionably biased against the defendant and a fraud upon the court. The court violated the constitutional rights and NY State civil rights laws for the right of a fair trial and unbiased, by failure to act under CPLR R3212 for dismissal of judicial action, or an immediate trial by a jury and bringing the sole witness for court testimony and cross examination.
In a fraudulent action, judge Thomas Dolan disregarded the answer to the petition and motion to dismiss enclosed in Veleanu’s pleading as “unsworn”. 11. This legal action is considered a FRAUD UPON THE COURT as Veleanu was prevented to exercise his defense in this legal case. The denial of the motion to dismiss and leave to answer based on illegal and fraudulent representation of the pleadings and motions to dismiss as “unsworn”, when in reality, the defense based on pleadings and motions to dismiss of Veleanu were legal as declaration under penalty of perjury and accepted under CPLR 105 (u) as legal substitute for the antiquated notary seal in all legal proceedings in New York State. Judge Thomas Dolan as well as judge Pagones and judges, officers of court and attorneys admitted to practice law in New York States, knew or should have known that under CPLR 105 (u), the declaration under penalty of perjury has as much authority and legal power as the notary sworn declaration. Judge Thomas Dolan and judge Pagones acted extra-judicially in their personal capacity and as such their
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actions were unconstitutional, biased, partial and represented a travesty of justice. The personal jurisdiction has two components. 1. Service of the process which implicates due process requirements of notice and the opportunity to be heard (Keane v Kamin, 94 NY2d 263, 265 (1999). 2. Second component involves the power or reach of a court over a party, so as to enforce the judicial decree to which all parties consent.
The parties are entitled to protection of their due process rights to notice and opportunity to be heard, which they have not waived. See Alfred E. Mann Living Trust v Etire Aviation SARL 2010 NY Slip Op 074121. Respondent Veleanu was deprived of the right of the opportunity to be heard in this “show trial” where judge Thomas Dolan as well as judge Pagones decreed Decision/Order/Judgment on October 14, 2009 and November 4, 2010 without any hearing, conference call or even calendar call. Judge Dolan and judge Pagones, in a definite miscarriage of justice granted summary judgments without giving an opportunity to respondent Veleanu to have a hearing or even see the judge. In his responsive pleadings to the petition, Veleanu raised numerous issues of material fact that made the summary judgment inappropriate and in an unconscionable, capricious, biased and prejudicial action that is pure FRAUD UPON THE COURT, denied the pleadings as “unsworn” and the motions for dismissal pursuing CPLR 3211 (a) ( 1), 3211 (a) (7), 3211 (a) (8), and CPLR 3211 (a) ©, also as unsworn”. Judge Dolan and judge Pagones committed fraud upon the court by violating CPLR 409 (b) Hearing that specifies that: “The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised“ that evidently preclude the court to grant the summary judgment. Veleanu showed several evidentiary material as objective facts in admissible form under CPLR 105 (u) that fraudulently were dismissed by judge Dolan as “unsworn”. The evidentiary proof offered to the court by Veleanu precluded the summary judgment as a matter of law and the evidence required a trial of each issue of material fact raised by Veleanu in his pleadings and motions that fraudulently were dismissed as not in admissible form. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. See Werner v Nelkin 206 AD2d 422; Friends of Animals v Assoc. Farm. Mfgs. 46 NY2d, 1065, 1067, 1068; Indig v Finkelstein 23 NY2d, 728, 296 NYS2d 370 (1968). On a motion for summary judgment , an affirmation by counsel is of no probative value. See Zuckerman v City of New York, 49, NY2d at 562
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(1980). In addition, the affirmation by counsel (as in this legal case) is without evidentiary value as failed to demonstrate personal knowledge and being eyewitness to the cause of action and is unavailing. See Columbia Ribbon & Carbon Mfg. Co, v A-1A Corp. 42 NYS2d, 496, 500; Israelson v Rubin, 20 AD2d 668; Lamberta v Long Island RR 51 AD2d 730. Affidavits must be by someone with personal knowledge of the facts. An affidavit or affirmation by an attorney (as in this legal case) who has no personal knowledge of the pertinent facts lacks probative value. PPG Indus. V AGP Sys. 235 AD2d 979 (3rd. Dept. 1997). Submitting an answer without certified transcript and or affidavit, or other written proof demonstrating the respondent determination is not sufficient to satisfy the requirements and may result in entry of default judgment. The petition must contain factual allegation indicating the existence of a cause of action; conclusory and speculation alone like in the present case are insufficient. See Matter of Kirk v Bahou, 73AD2d, 770, 771 (3rd. Dept. 1979); 51 NY2D 867 (1980); Nassau County Correction Offices Benevolent Ass’n v Nassau County Pub. Employment Relations Bd., 63AD2d 670, 671 (2d dept. 1978); Matter of Park v Lewis, 139 AD2d 961(4th Dept. 1988). Fact underlying conclusory allegations in petition may be developed by affidavits. In re Waxman, 96 AD2d 906 (2d Dept 1983; People ex rel Dew v Reid, 82 Misc. 2d 583, 585 (Sup. Ct. Oneida County 1975). Motions to dismiss based on failure to state a cause of action where the legal insufficiency of the petition is apparent without a review of the record. See Matter of State of NY v King 36 NY2d 59 (1975); Matter of Stannard v Axelrod, 100 Misc. 2d 702 (Sup. Ct. Broome County 1979). The proceeding is totally defective when the petition is made by an attorney rather than the client, unless the attorney demonstrates personal knowledge of the facts. Matter of Klein v Haft, 68 AD2d, 872 (1st Dept. 1979).
12. A judgment was entered on November 4, 2010 in the Supreme Court of
Dutchess County in favor of petitioner in the amount of $32.506.32. This judgment of judge James Pagones, adhered to a judgment of Judge Thomas Dolan that was abandoned by default due to failure to enter and docket the judgment within the limits of time established by legislation.
Nevertheless, the abandoned by default judgment of judge Thomas Dolan did not grant any fine, penalties, court cost, or retroactive interest of 9 % from the date of purchase of the items. An additional payment of $4127.85 of undertaking was requested by prosecutor Garin representing additional
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interest from November 4, 2010 until April 1, 2012, negligently and fraudulently omitting the fact that the undertaking of $32.506.32 was paid on February 1, 2012 and as such, stopped accumulation of any further interest. Granting by judge Pagones of punitive fines including interest of 9 % years back to the date of purchase of the jade items represents FRAUD UPON THE COURT as was not substantiated by any statute, law or rule. In the same context, granting of penalties, cost was not warranted by any recognizable cause of action as such penalties and cost were based on violation of GBL 350 (d). Nonetheless, AG did not allege any violation of GBL 350 in his 2 causes of action; thus, all penalties, cost, including the interest assessed on penalties and assessed from the date of docketing of the judgment were assessed illegally and fraudulently and are null, void ab initio and represent FRAUD UPON THE COURT by judge Pagones.
13. The first fraud perpetrated upon undersigned Mircea Veleanu was by the single complainant against Veleanu, Janet Spiridonakos. Spiridonakos
bought over a period of 2 years, starting in January 2007, 7 Tibetan jadeite rosary mala, 2 of them acquired at auctions where the seller was Go Antiques Company in Ohio State and where Veleanu was the consignor; and the remainder 5, bought directly from Veleanu’s Internet virtual store, Objets D’Art Uniques. In November 2008, Spiridonakos bought from Veleanu 2 jadeite handles Chinese scholar calligraphy brushes. Upon receipt of brushes, wrongly she believed that the brushes were made from glass, rather than jadeite. Upon her request, she returned the brushes and was refunded. Spiridonakos did not consult with anybody about the authenticity of brushes and was not sure about her belief. As a matter of fact, she implored Veleanu to re-sell the brushes. Providently, this transaction never took place.
In a planned scheme, Spiridonakos conspired with her friend, Tim McClellan to defraud and extort Veleanu.
The contract of sale of Objets D’Art Uniques Internet store of which Spiridonakos was well aware, as she already returned jadeite items to Veleanu for refund in 2 separate occasions, allowed returns of the purchased items for any reasons as a lifetime guarantee for the authenticity of the sold items (See Exhibit 1 p.1 and p.2). As practically all items were paid through intermediary of Paypal, the returns after 60 days incur the Paypal fees of 3 % and become the responsibility of the buyer as Paypal does not refund after 60 days. Lifetime guarantee of Objets D’Art Uniques even allows full refund after 60 days as a credit toward an exchange with another item from
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the Internet store. As Spiridonakos claims that was suspicious about the authenticity of the 7 jadeite mala, instead of returning the mala for refund or exchange, she submitted the 7 mala through jeweler Tim McClellan for a gemological testing by a gemological laboratory named AGTA. Rather than shipping the 7 mala by registered mail to AGTA as is customary, Tim McClellan went to her home in Winsted, Connecticut, brought the mala to AGTA lab. in New York City, picked them up from AGTA and brought them to his store in Great Barrington, Massachussettts, from where Spiridonakos picked them up.
14. The gemological testing is reserved solely to jewelry grade items and never used for authentication of ornamental jadeite art carving for the reason that ornamental jadeite art carvings are of large proportions and as a rock, are made of several minerals and chemical elements in addition to the jadeite. It is elementary and plausible that a gemological examination if ever would be done to such carving from a rock with multiple mineral composition, would yield to unpredictable and variable findings as such
examination would be done in a specific small area. The Exhibit 28 shows a photograph representing a sagittal section through a jadeite/quartzite rock similar to the composition of the rock the 7 jadeite mala were made of. The photo shows the intricacy and intimately close intermingling of quartz, jadeite and quartzite. It is obvious and reasonable to any person who does not have knowledge about mineralogy, jade, or jewelry including any reasonable, unbiased fact finder, to understand that a gemological examination in one area could yield to the finding of presence of quartz or quartzite in that area and the gemological examination in an adjacent area could yield to the finding of jadeite. This is a conclusive PROOF of futility and inappropriate use of gemological examination in jadeite that is not of jewelry grade that contains almost pure mineral jadeite.
15. Tibetan rosary mala are carved in relief in shape of a head of a Buddhist monk and each head is different than the others. The value of the mala is based on the quality of the carving and not the material mala is carved from. Accordingly, some mala carved from wood, bone or other semi-precious stones as agate, rock crystal, amethyst, carnelian, malachite, etc., are more valuable than jadeite mala. As there are 16 large carved beads representing different monks’ heads with different facial expressions, it is easy to understand that the master carver took an enormous amount of time to carve
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a single bead.
16. Fraudulently, Spiridonakos mis-labeled (mis-branded) the 7 rosaries mala as “carved head necklaces” in order to qualify them as bona fide jewelry items. Obviously, the 7 jadeite mala are not of jewelry grade and not suitable for gemological examination due to the presence of several minerals in their constituency. The fraudulent scheme exhibited by Spiridonakos is demonstrated by the modality of transportation and submitting the mala for examination by AGTA, rather than shipping the mala by registered mail as is customary. She used the services of jeweler Tim McClellan whose affiliation and interest in business with AGTA is unknown. All the information this case is based upon was rendered from Spiridonakos’ numerous emails sent to Veleanu and his responses over a period of 2 years, as provided by the plaintif in his petition. Even the fact that Spiridonakos saved all the email correspondence with Veleanu over such long period of time, in itself is a proof of the intention to defraud as is unheard that a customer would save trivial correspondence with a merchant for over a period of 2 years. On 3/28/2009, Spiridonakos notified the undersigned that she received the rosaries mala back from AGTA and the mala were not identified as jadeite and subsequently, requested a refund. On 3/29/2009, the undersigned assured her that she will receive the refund upon the receipt of the gemological reports. She did not communicate with the undersigned until 5/9/2009, when she emailed him she has the AGTA reports. Nevertheless, all AGTA reports were dated between April 14 to April 22, 2009, when the mala would have been in Spiridonakos home by her own admission, and impossible that at the same time would be tested by AGTA in New York City. The incriminating fraud factor is the fact that Spiridonakos did not respond to undersigned’s email of 3/29/2009 (asking to produce the gemological reports) for more than 6 weeks. As Spiridonakos complained with the Attorney General that she was defrauded, this is not a behavior of a person who claims fraud. Another factor pointing toward fraud, blackmail and extortion is based on repeat questioning by Spiridonakos of undersigned, about assurance that the mala are genuine and unaltered. See petition’s Exhibit 9, p3. The undersigned’s response is the most relevant: “I don’t sell anything that I am not sure what is and never, never I would sell something that I have doubt about authenticity”. See Petition’s Exhibit 10, page 17. Spiridonakos email of 5/10/209 states that she paid $1000 for the gemological testing, but it did not claim it for refund.
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See Exhibit 2 enclosed. On her last email to undersigned dated 5/18/2009, Spiridonakos claimed that she was defrauded, and stated again she paid $1000 for the gemological reports, and she is contacting NYS Attorney General. See Petition’s Exhibit 17; this paper Exhibit 3. Spiridonakos committed perjury when in her sworn affidavit, she declared that paid $1540 to Tim McClelland firm for the gemological reports. Her sworn affidavit statement contradicts the previous 2 statements that she paid $1000. As shown above, this represents perjury and is a crime punishable by fines and imprisonment of 5 years or both. See Title 18 USC Part 1 Chapter 79 Section 1623 – Perjury. False declaration before grand jury or court. Under NY State CPLR R4514, the contradictory statements under oath impeached Spiridonakos as a witness. The customary fees for a gemological testing ranged between $40 to $80 (fee charge by GIA laboratory) in 2009. Accordingly, the total cost for the gemological testing of the 7 mala should not exceed $550. The amount of $1540 claimed by Spiridonakos in her sworn affidavit is about 3 times higher than what a gemological laboratory as GIA charged and this represents rip-off, clear example of extortion and blackmail. Spiridonakos produced as evidence an invoice of the firm McTeigue and McClelland dated April 23, 2009, one day after the last dated gemological report of AGTA that was dated 4/22/2009. It looks impossible that the bill if sent by mail arrived so early, even if was hand-delivered to Spiridonakos. The invoice is not signed, not marked paid and is described as: “Jade testing + Reports“. However, according to the records, Tim McClelland and his firm did not perform any jade testing and reports. See Petition’s Exhibit 14; present paper Exhibit 4. The evidence submitted by Spiridonakos as proof of damages (injury), is incompatible with CPLR 4533-A Prima Facie proof of damages.
17. Complainant Janet Spiridonakos committed forgery of a legal document. The most important evidence of fraud committed by Spiridonakos is forgery by counterfeiting of a document used in the court for obtaining judgment
against Veleanu (proof of injury). The graphological examination of the hand writing of the invoice reveals that Spiridonakos fraudulently and criminally wrote the invoice herself, rather than by a representative of the firm of McTeigue and McClelland. See Exhibit 4. The handwriting below the invoice representing Spiridonakos hand writing is the same as the hand writing of the person who wrote the invoice itself. For example: 1. the word
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“testing” written in the invoice as “jade testing” is identical to the word “testing” written outside of invoice and below in “AGTA testing”. 2. The number “4” in the date and the amount written in the invoice is identical to number “4” written by Spiridonakos on the paper below the invoice. See also copy of the invoice on AG petition Exhibit 14. Other examples of handwriting of the invoice identical to Spiridonakos handwriting is seen on petition’s Exhibit 3 where the numbers 2, 9, 1, 4 of Spiridonakos are identical with invoice’s same numbers; also, the general handwriting including numbers 2, 3, 9, 0, 5 written by Spiridonakos below the Paypal receipt are identical to same numbers in the invoice, See AG petition’s Exhibit 4; also, in Paypal receipt, the general handwriting including numbers 5, 3, 0, 4, 1, especially letters e and s that are particular to Spiridonakos handwriting. See AG petition‘s Exhibit 8; also, Exhibit 8, p2, the numbers 2, 9, 0, that are identical to the invoice’s same numbers, etc., etc. Forgery by counterfeiting of a legal document submitted as “prima facie” of injury as in the present legal case, is a criminal offense punishable by fines and imprisonment. Under New York law, forgery is commonly defined as an illegal act with complete knowledge and intent of creating, using and or altering false and fake documents with sole purpose to defraud and deceive another person or group of individuals and is subject to New York Penal Law Article 170. Janet Spiridonakos violated the federal law under the statute of USC Title 18 Sec. 514 Counterfeiting and forgery that it is a crime to use a fraudulent document: “(a) whoever…with the intent to defraud, 1. Draws, prints, processes, publishes or otherwise makes an attempt or causes the same with like intent…2. possesses, utters, presents, offers… attempts or causes the same…3. utilizes interstate or foreign commerce, including the use of the mails, or wire…or other electronic communications to transmit…any false or fictitious instrument document…”.
18. Janet Spiridonakos also violated federal statute Title 26 USC 7206 (1). Any person who…1. Declaration under penalty of perjury. Willfully makes and subscribes any return statement, or other document, which contains or is verified by a written declaration that is made under penalty of perjury, and he (she) does not believe to be true and thereof; shall be imprisoned…, or fined…, or both.
Janet Spiridonakos violated the federal law Title 18 USC Part 1, Chapter 73, Sec. 1515 as follows: (a) (1) the term “official proceedings” means- A
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“proceeding before a judge or court of the US… (a) (3) the term “misleading conduct” means (A) knowingly making a false statement, (E) with intent to to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged or altered, or other ways lacking in authenticity; (D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen… photograph…, or other object that is misleading in a material respect, and (E) knowingly using a trick, scheme or device with intent to mislead.
19. Complainant committed the criminal ofense of mislabeling (misbranding).
Knowingly and willingly, Janet Spiridonakos submitted 7 jadeite mala for gemological testing under the label of “carved head necklaces”, terminology that was not used in the title of any of the 7 mala sold to Spiridonakos at the Go Antiques auctions, or by the Internet store, Objets D’Art Uniques. While it appears that the false labeling was used to qualify the mala that are ornamental carvings and not subject to be examined by gemological examination, the mis-labeling or mis-branding represents fraudulent means for eligibility of the items for an improper gemological examination and the possibility that items that were in fact fraudulent substitutions of “carved head necklaces”, were used for the gemological examination. The federal criminal offense of mislabeling, clearly appears hereby as an act committed with the intention to deceive, mislead and defraud.
20. Complainant Janet Spiridonakos breached the contract and the conditions of sale in order to defraud, extort and blackmail undersigned Mircea Veleanu.
The conditions of sale of the Internet store, Objets D’Art Uniques, clearly specify that the buyer is entitled under lifetime guarantee to return for refund any purchased item, for any reason whatsoever, with full refund including Paypal fees (if paid through Paypal) within 60 days. After 60 days, Paypal fees that were paid by the seller are not more refunded by Paypal and become the responsibility of the buyer. After 60 days, the full refund is still possible in form of credit for the exchange with another item
from the store inventory with the same value, or higher value with the difference paid by the buyer ; shipping fees are not refundable as well as the auction‘s commissions if item was sold at auction by Go Antiques as a seller. See Exhibit 1 p1 and Exhibit 1 p.2. According to the conditions of
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sale above mentioned, Spiridonakos could return the 7 mala for an exchange with other items from Objets D’Art Unique inventory without any penalty. As 2 mala were purchased at an auction by Go Antiques as a seller, any request for refund of commissions should be addressed to the seller, Go Antiques, rather than the consignor, Objets D’Art Uniques. Spiridonakos was fully aware of the conditions of sale of the contract, but recklessly, she breached the contract. See AG Petition Exhibit 16 p2, present action Exhibit 1 p.2. As clear evidence of conspiracy to defraud and extort the undersigned, Spiridonakos complained with NY State Attorney General even when the undersigned offered a full satisfaction for Spiridonakos request for refund according with the conditions of sale of the contract See Exhibit 1, p.1. Rather than exchanging the 7 mala with other items from the Objets D’Art Uniques Internet store, she recklessly breached the contract in her scheme to defraud and extort money from the undersigned.
21. Complainant Spiridonakos committed perjury by lying under oath in her affidavit.
Perjury is a crime under New York State laws, and federal laws, and as a resident of another state, under Title 18 USC Sec. 1621 and also Title 18 Chapter 79 Section 1623 when Spiridonakos’ affidavit was offered as evidence in the court for the judicial procedure. Under the above statutes she is liable for imprisonment up to 5 years, fines, or both. In her affidavit (See Exhibit 5 page 5, paragraph 13) she submitted a statement that contradicted 2 previous statements regarding the amount of money paid for the gemological reports and subsequently, her action impeached her as a witness for the prosecution. This was not the sole perjured evidence submitted by Spiridonakos. Her affidavit, paragraph 3 page 2 she states: “In his listing of the mala for $1500, he describes it as follows: ‘Antique green feitsui jadeite rosary (mala)’. This description is highly significant because fei tsui jadeite is also known as imperial jade which is the highest quality jadeite in the world. Attached as Exhibit 18 is a primer on jade that is useful in evaluating Dr. Veleanu’s various misrepresentations about what he sells as jade. Fei tsui is referenced on p.4 of Exhibit 18 and a fei tsui jade ring is featured on p. 13 of Exhibit 18”. Spiridonakos committed perjury by
submitting as evidence for prosecution in the court, false material statements with full knowledge that the provided information is false. The undersigned in his pleadings proved without any possibility of doubt that such information was false, malicious and used in bad faith to prosecute the
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undersigned. In the answer to the petition, the undersigned provided documentary evidence that fei tsui is ordinary jadeite in Mandarin Chinese and known as jadeite in the Western literature. In addition, it is not clear if the Attorney General or Spiridonakos accuses Veleanu of misrepresentation. The affidavit does not appear to be written by Spiridonakos as the eyewitness of the alleged misrepresentation. The affidavit reveals intimate knowledge of a person who prepared the petition as: Exhibit numbers, locations of such proceedings in the petition, like Spiridonakos wrote the petition or is the prosecutor in the judicial action. Her above statement is a reiteration of identical statement made by Attorney General in his Affirmation in support of his TRO and petition. This evidence is prima facie proof that AG conspired with complainant Janet Spiridonakos to defraud, extort and blackmail Veleanu. There is no plausible possibility that Spiridonakos would have knowledge about Exhibits, Exhibits numbers, evidence contained in the exhibits, etc., etc., without close collaboration with the AG in supporting, aiding, facilitating and submission to the court of perjured and fraudulent allegations of Spiridonakos. Another perjured statement was made by complainant Spiridonakos in her sworn affidavit: “On May 18, 2009, I sent Dr. Veleanu my final email saying I was going to the authorities to report his fraud. I have never received a response from Dr. Veleanu, nor have I received restitution from him”. See paragraph 14 of her affidavit Exhibit 5, p.6. This statement is a perjured statement and an outrageous lie disproved by the records provided by Spiridonakos herself. First of all, how could expect complainant Spiridonakos that any reasonable person in clear state of mind would respond to such insulting email, when she clearly states that she is complaining with authorities, including not only NY State Attorney General, but also Connecticut Attorney General, Better Business Bureau, Fishkill police, etc. See Exhibit 17 of the petitioner; Exhibit 3 of present paper. She was notified by the undersigned on the last email dated May 14, 2009 that he would be abroad until May 23, 2009 “and hope to resolve this matter upon my return”. See Exhibit 3 verso p.2. This email shows good faith and goodwill to resolve the commercial private dispute in a manner that will please Janet Spiridonakos. She knew that the undersigned is going to be abroad when 4 days later she wrote the above cynical email.
22. Complainant Spiridonakos enriched tremendously as a result of her criminal and fraudulent activities.
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AAG Garin stated in his Petition that complainant Janet Spiridonakos purchased items in total value of $13,983.03 for which he sought an order of the court for restitution. However the above requested restitution amount
included charges of third parties as auction commission, Paypal fees and shipping charges that according to the conditions of sale of the contract between Veleanu and Spiridonakos are not reimbursable unless the refund is done after 60 days according to lifetime guarantee that allows a full credit for an exchange with other items from the Internet store inventory. A calculation of net reimbursable value after subtracting the third party non-reimbursable charges yielded to $10,217.54. The amount of $16,872 that included retro active interest of 9 % from the purchase date ordered by judge Pagones represents a rip off of defendant Veleanu authorized and imposed by the court!. To this amount was added 9% interest from November 4, 2010 to April 1, 2012 amounting to additional $4127.85.
The net reimbursable amount for the 3 customers requesting refunds is $ 3,240 in comparison to judge Pagones that ordered restitution of $ 5673.60!
23. Complainant Spiridonakos made threatening telephone calls to undersigned and wrote defamatory and threatening emails to different bloggers.
Janet Spiridonakos made abusive, insulting and threatening telephone calls to Mircea Veleanu after her complaint with Attorney General. An email addressed to a media article writer, shows her abusive and libelous writing, is displayed on Exhibit 15.
23. The second act of fraud perpetrated upon undersigned, consists in fraud, stealing of property and fraudulent substitution of a purchased antique jade carving with a recently made, inferior quality, low hardness marble-type fake.
At the solicitation of Assistant Attorney General Nicholas Garin, AKA Nick Garin, addressed to all former customers who purchased jade items from Objets D’Art Uniques or at the auctions of Go Antiques of items consigned by the undersigned, a person identified as Diana Norton returned for refund to AAG Garin, a contemporary made fake carved from a rock of low Moh’s test of hardness. The item sold at auction by Go Antiques to Diana Norton on or about June 30, 2007, was a high quality of antique nephrite jade in shape of a mutton carrying the offspring on its back. Diana Norton returned to AAG Garin for refund, a low quality of a fake carving made from a softer stone in shape of a horse standing on a platform. AAG Garin cashed the undertaking from the Supreme Court, Dutchess County, in the amount of
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$36,639.70 on June 5, 2012. On June 8, 2012, the undersigned received from AAG Garin a package containing the 7 jadeite mala sold to Janet
Spiridonakos and 3 items that represented returns from 3 customers who purchased at Go Antiques auctions nephrite jade items consigned by Objets D’Art Uniques. Upon receipt, the undersigned noticed that the item marked as “1 dirty brown small horse” attributed by AAG to Diana Norton return, was not the jade item sold to Norton. AAG was notified by the undersigned on June 14, 2012 about the fraud, following a check on all digital photographs of Objets D’Art Uniques stored in the personal computer that failed to find that any similar carvings were photographed or uploaded in the Objets D’Art Uniques store. Subsequently, undersigned asked AAG Garin not to refund the money until investigation is done on this matter. AAG Garin was the custodian of this item as well as for all other items for more than 2 years. AAG Garin wrote on his letter to the undersigned, dated June 15, 2012, asking to advise him “what you sold Ms. Norton other ways we have no patience for gamemanship by you”. He wrote: “will wait 5 days to for you to identify what you sold her”. As the item was sold by Go Antiques at the auction, it took some time to obtain evidence from Go Antiques considering that 5 years passed since the date of transaction and the Internet store Objets D’Art Uniques was closed in May 2012 with all the available information apparently deleted by Go Antiques. However, the undersigned responded on June 19, 2012 confirming that the returned item by Norton was not the original item sold to her at the Go Antiques auction of June 30, 2007. The examination by mineralogical testing that is the standard of selling jade by all ethical jade merchants revealed that the returned item is not made of jade, rather of a less hard material than jade. Even more disturbing is the fact that the carving is a crude fake imitation of a Tang period ceramic horse with artificially aged surface imitating the antiquity. On June 30, 2012, the undersigned received a letter from AAG Garin containing a notarized copy of an affidavit of Diana Norton in which she declared under oath that the carving in shape of a horse was the only item she purchased at auction of Go Antiques along with a book of antique jade history. See Exhibit 11, p1. Her affidavit under oath is an outrageous lie disproved by the evidence. The undersigned obtained from Go Antiques all the evidence that clearly shows that the jade item sold at Go Antiques auction was in shape of a mutton. In addition, there is no evidence that Objets D’Art Uniques sold a book of antique jade history to Norton. AAG
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Garin arrogantly stated in his letter of June 28, 2012 that “unless you can provide proof of sale to her of the mutton with offspring, we will accept Ms. Norton sworn statement as fact.
We will allow ten days to secure proof to substantiate your claim”. On 7/2/2012, the undersigned mailed a letter to AAG Garin containing a proof of sale to Ms. Norton, a copy of Paypal transaction and a copy of the packaging slip enclosed with the package. See Exhibit 11 p.2 and p.3.
This is not only a case of fraud and stealing precious property from Veleanu, substituted by a fake of a low quality, but also a criminal case of perjury with willing and knowledge of falsity of the misrepresentation. As per undersigned request, Go Antiques provided a copy of the email correspondence between Norton and Veleanu prior the payment. The email evidence is deeply disturbing. According to email communications, on 7/1/2007, Veleanu notified Norton about winning at Go Antiques auction of the exquisite Tang period jade carving. On 7/3/2007, Veleanu notified Norton that an intermediary company that Veleanu does not do business, sent money through Paypal. She was advised to cancel the transaction and send the money directly trough Paypal. On 7/7/2007, Veleanu received email communication from Norton that she placed her bid on the jade item by error. She was notified that Veleanu can’t cancel the bid as the seller was Go Antiques and not Veleanu and she was advised to deal directly with Go Antiques by email or phone regarding this matter. Ms. Norton failed to make the payment and on 7/12/2007, Veleanu made the last reminder to her for failed payment. On 7/14/2007, Norton wrote that she bid on the jade item by accident and could not reach anyone who would respond. She claimed that the payment would represent a hardship as she and her husband are both disabled. On 7/14/2007, Veleanu responded as being sorry about Norton’s hardship, but was not in his power to cancel the transaction as Go Antiques commissions were due to be deducted from the consignor Veleanu on the same day, and non payment would require to report to Go Antiques case as non paying bidder, See all email correspondence on Exhibit 6.
Another disturbing fact was discovered in the Paypal notification of payment, was that Paypal refused to grant insurance to Veleanu for the payment, that is customary to all Paypal payment transactions (Seller Protection- Not eligible). See Exhibit 7.
On 7/6/2012, Veleanu wrote a letter to AAG Garin attaching more documentary evidence as a photo of the jade item sold to Norton with the
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description of the item (see Exhibit 8), a copy of the Conditions of Sale that all customers read prior the purchase (as provided by Go Antiques email of 7/6/2012) See Exhibit 1 p2, and the email correspondence with Norton. On
a letter dated 7/10/ 2012, AAG Garin requested more evidence: “you will have to come up with verifiable evidence of your claim or we will forward your check to Ms. Norton. We will allow another 10 days for you to try to get verifiable evidence of your claim to us”.
The above statement of AAG Garin shows that up until July 10, 2012, he did not distribute the proceeds of the undertaking to the customers requesting refunds.
On 7/20/2012, Veleanu received more documentation from Go Antiques regarding the sale at Ebay Live auction by Go Antiques of the jade carving sold to Diana Norton. The documentation consisted of a copy of Go Antiques ledger sheet proving that at the Go Antiques auction, she won the Tang period green jade carving in shape of a mutton with offspring on its back listed under reference 770404. The ledger sheet shows that the item was submitted to the auction at the price of $500 with added buyer’s fees of $87.50 to which Veleanu added shipping charges of $15 to a total of $602.50 that Norton paid through Paypal on July 17, 2007. See Exhibit 9. The second evidence documents consisted of the email of Nathan Trapuzzano of Worthpoint.com (that now owns Go Antiques) confirming that the item corresponding to the ledger sheet reference number 770404 was listed with the attached images and the following description: “ 8th century greenish yellow jade carving in shape of a mutton with offspring on its back. This is a high quality of jade carving of Tang period, done in greenish-yellow jade with great details. Length: 2.5” (6.5 cm.). Provenance: Dr. Veleanu’s jade collection, the author of the collector’s book: ‘Jade, 5000 BC to 1912 AD, Guide to collectors‘. Estimated retail value: $1100. See Exhibit 10 p.1. Attached photographs of the jade item are listed as Exhibit 10, p.2, and Exhibit 10 p.3. The above documentation proves without any doubt that Diana Norton committed fraud, stole a precious jade item from Veleanu and replaced it with a valueless fake, and committed perjury in her sworn affidavit. On 7/20/2012, the undersigned sent an email to AAG Garin urging and advising him to hold on the restitution for all the persons involved in the legal suit including Janet Spiridonakos, for a full investigation involving the crimes of fraud, perjury, theft of property, extortion, conspiracy to commit fraud, conspiracy to violate Veleanu’s
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constitutional rights, forgery, and other crimes.
24. Attorney General committed the following illegal and unconscionable egregious prosecutorial misconduct acts that most of them are criminal under the laws of New York State and United States of America: commission of perjury, subornation of perjured testimony in more than one occasion, uttering, concealing exculpatory evidence, fabrication of false evidence, interfering and conspiring to violate the constitutional rights of defendant Veleanu, interfering and conspiring to violate the civil rights of Veleanu as guaranteed by New York State Constitution, conspiracy to defraud Veleanu, malicious prosecution and abuse of process, release of malicious, libelous and false information to media and subsequent contempt of court, violation of gag order on media, making false statements of law or facts and representing them appear as valid, legitimate and true, threatening the judge and coercing him not to accept the respondent‘s pleadings, participating in the creation and preservation of evidence that was known to him to be fraudulent or illegal, counseled, supported, aided and assisted the sole complainant, Spiridonakos in a conduct that the lawyer knew or should have known is illegal and fraudulent, failing to exercise due diligence in his investigative activity, fraudulently misusing the legal process by intentional misrepresentation of the laws that he was supposed to know or should have known, witness tampering, reckless violation of several New York State disciplinary and ethical rules, misfeasance in the office etc.
25. Conspiracy to defraud Mircea Veleanu by 2 perpertrators facilitated, aided and encouraged by the prosecutor in his investigative functions.
The first conspirator was Janet Spiridonakos, the single complainant against Veleanu, claiming that she was defrauded by Veleanu. The evidence shown already demonstrated that Spiridonakos engaged in fraudulent activity consisting in mislabeling of the 7 jadeite mala in order to be legally eligible to be tested under the standards of jewelry grade jadeite jewelry by gemological testing. Her sworn affidavit under oath demonstrates that Spiridonakos conspired with AAG Garin to submit false evidence in order to incriminate Veleanu of fraudulent activity. With full knowledge of the falsity of her allegations, Spiridonakos claimed that she was sold a mala labeled fei tsui that maliciously and falsely she represented as being imperial jade, the most valuable jadeite. Further on, she claimed that she relied on this representation to purchase 6
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additional jadeite mala from Veleanu. AAG in his Affirmation in support of his petition relied on this false representation of Spiridonakos in order to request from the court to impose a TRO and thereafter a permanent injunction, effectively preventing Veleanu to ever sell or transfer jade. Hereby is an excerpts from the Affirmation of AAG Garin’s as follows: “ One of the malas (sic) was emerald green and Dr. Veleanu described it as “fei tsui” jade. See, Spiridonakos Affidavit attached hereto as Exhibit 5, para 3.”. AAG Garin makes the same erroneous, outrageous, misleading and fraudulent statement: “Fei tsui jade, otherwise known as “imperial jade” is the highest quality jadeite in the world and is extremely valuable. This description of the mala was false and deceptive. Ms. Spiridonakos relied on this description and on Dr. Veleanu’s alleged expertise in jade to make six additional purchases of jade malas (sic) from him over a two year period”. See AAG Affirmation for TRO dated August 7, 2009, Paragraph 6.The falsity and misrepresentation of the scientific data submitted by AAG Garin to the fact finder, judge James Brands and to the following 2 judges of the Supreme Court of Dutchess County, Thomas Dolan and James Pagones, represents EXTRINSIC fraud as FRAUD UPON THE COURT and the crime known as uttering. Willingly and knowingly, Janet Spiridonakos and AAG Nick Garin submitted to the court false allegations misrepresenting the scientific truth and libeled Veleanu by alleging that Veleanu misrepresented and deceived Spiridonakos in the description as described above in Mr. Garin’s petition as being “false and deceptive” and “Spiridonakos relied on such misrepresentation to purchase 6 additional mala“.
26. Another evidence demonstrating the scheme to defraud Veleanu is found in Spiridonakos affidavit. Spiridonakos reveals detailed information about Attorney General’s Petition and the Exhibits attached to the Petition, information that should be known only to AAG Garin, unless Spiridonakos prepared the petition with all the exhibits, eventuality that is less plausible. Nonetheless, this evidence is prima facie of conspiracy of Spiridonakos and AAG Nick Garin who willingly and knowingly aided and facilitated Spiridonakos to defraud and extort Veleanu and violate his constitutional rights. See Spiridonakos’ affidavit pages 2, 3, 4, 5, 6. Exhibit 5.
Equally pointing toward the scheme to defraud Veleanu, is the sworn affidavit of the second person that committed perjury and perpetrated fraud upon Veleanu, Diana Norton. Hereto is an excerpt from Norton’s affidavit:
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“The New York Attorney General contacted me informing me a law suit (sic) was being prepared against Dr. Veleanu and to obtain refund for the
above item. I should return it and provide whatever documentation I could along with a description of the above jade item. I returned everything as requested”. See copy of Norton’s affidavit; Exhibit 11, p.1.
The above statement is proof of the malicious and illegal acts committed by the prosecutor. This is not a simple solicitation to the former Veleanu’s jade customers, rather a request to return the purchased jade items for a refund. There is no mention whatsoever that the customer is to prove that Veleanu misrepresented the sold item; rather a request of Attorney General to return the jade items because Attorney General is preparing a lawsuit and needs volume of customers requesting refunds. Somewhat, the request leaves the wrong impression that Attorney General would test the jade items for authenticity to prove alleged misrepresentation.
27. However, jade is not a single mineral and not a single representative of what is called jade. Spiridonakos was sold jadeite jade that is a silicate pyroxene with a completely different chemical formula than nephrite when is pure. In contrast, all 3 customers that requested refunds, as well as the great majority of the jade carvings sold by Veleanu were made of nephrite jade that is an amphibole silicate constituted from 2 minerals when is in pure state: actinolite and tremolite. Jadeite jade has a completely different chemical formula than nephrite when is in pure state. However, both nephrite and jadeite are rather rocks constituted of several other minerals and chemical constituents that attribute the physical appearance of the jade: color, translucency, hardness, etc. It is simplistic, ignorant and unscientific to place all the jade categories as a single category and legally prosecute a person when the prosecutor lacks the elementary knowledge and scientific grounds to make a legal determination to use as bona fide evidence. As all the jade carvings requested for refund were not jadeite, rather nephrite, a general determination could not be legally assessed. At least, the ornamental nephrite carving even if is not made of jadeite, it needs to be examined by mineralogical examination that is done by any ethical jade merchant to authenticate that the carving is indeed nephrite. AAG Garin did not notify all the jade customers that they need to prove authenticity in order to prove that the jade items they purchased was not made of jade, either nephrite or jadeite. If a refund was indeed a valid request, all the customers were entitled to a lifetime guarantee refund according to the conditions of sale of
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the contract, other ways, any request for refund would represent a breach of contract that it is itself a legal infraction that would demand restitution of
legal fees undersigned paid, in order to defend the wrong legal action. As proof of purchase of the jade item, Norton produced an email from Paypal and Objets D’Art Uniques notification of overdue payment for the jade item. Norton did not show in this documentation what she paid for the item and what item was sold to her. On the top of this document, Norton wrote: “Attn: Nick Garin Refund letter Request 12/8/09. This handwriting again demonstrates that AG Garin requested in his letter that Norton should request a refund, rather than a notification that she is eligible for a refund providing that she would prove misrepresentation of the item sold to her. See Exhibit 11, p.2. As an incentive for the return of jade items for refund, AAG Garin apparently offered to the former jade customers, a 9 % interest calculated from the purchase date that would almost double the refund money for some customers that purchased the jade several years ago. This could represent a large profit for an unscrupulous person who would like to rip off a merchant without invoking misrepresentation.
28. The fraud committed by both Janet Spiridonakos and Diana Norton could not be possible without the solicitation, intervention, facilitation and aid of the prosecutor. Both fraud cases of Spiridonakos and Norton were willingly committed with full knowledge of the falsification of documentary evidence and are criminal acts committed by 2 separate individuals aided by the prosecutor, AAG Nick Garin. In both cases, the involved person committed perjury by swearing under oath false statements with full knowledge of the falsity, and as such, represents a criminal act punishable by fine and imprisonment of not more than 5 years, or both, under Title 18 USC Sec. 1623. Crimes and criminal proceedings. Chapter 79. Perjury. AAG Garin is also liable of criminal subornation of perjury as he willingly and knowingly submitted Spiridonakos affidavit with full knowledge of the falsity of affidavit’s allegations. On September 10, 2012, AG refunded the portion of undertaking representing Diana Norton item that Veleanu returned to AG for refund.
29. The legal action by the Attorney General commenced and continued vexatiously and maliciously.
According to Article 7 CPLR R70, vexatious suit, this legal action was frivolous, without any reasonable cause of action and in the name of another, but without the consent of involved individuals, in an action of
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special proceedings in a court, before a judge. According to CPLR R70 that person who initiated the legal action is guilty of misdemeanor punishable by imprisonment. In this legal case, AAG Garin started a legal action in behalf of 3 customers that did not claim to be defrauded or that they were misrepresented in the purchased items; rather were tricked to request refunds based on benefits of retroactive 9 % interest accumulated for years back to the date of purchase of the jade items and certainly did not consent for suing in their name as they did not have a legal standing by the simple legal reason as not being aggrieved. The legal action was commenced and continued with the intention to cause pecuniary harm and psychological trauma to the undersigned and represents abuse of process by the Attorney General acting in his investigative role, rather than as an advocate in the court of justice and as such, stripped of his prosecutorial immunity.
30. Fraud, conspiracy to commit fraud, aiding and procuring the criminal act of fraud perpetrated upon Veleanu by the prosecutor in investigative role.
Attorney General committed legal fraud by knowingly and willingly using forged instruments and mislabeled documentary evidence in pursuing the granting of temporary restraining order against Veleanu. The forged evidence consisted in 2 tampered, forged identification reports of AGTA gemological laboratory, a “fly-by-night” company that went out of business a few weeks after providing the forged evidence the prosecutor used in the court to obtain the TRO, and thereafter, the permanent injunction granted without any hearings whatsoever. Creating, forging or altering of a legal document that is intended to be submitted to the court for prosecution of another person, with the intent of defraud or making money, is considered forgery and is subject to NY State Penal Law Article 170: Criminal possession of a forged instrument. According to Black’s legal dictionary, “intent to defraud means an intention to deceive another person, and to induce such other person in reliance to it to such deception, to assume, create, transfer, alter or terminate a right obligation or power”. The Court of Appeal of New York has made it overwhelmingly clear that intent to defraud does not require an intent to steal, but can be formulated for the purpose of leading another into error or disadvantage. People v Briggins 50 NY 2d 302, 309 (1980). Intend to defraud need not be necessarily be tied to an underlying Grand Larceny (Article 155 of NY Penal Code) type of scheme.
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In People v Kase 53 NY 2d 989 (1981), the intend to defraud was found where a defendant filed a false statement with a public agency. In that case, the perpetrator sought to interfere and disrupt the State’s ability to carry out the law. Under Title 26 USC para 7206 (1) : “ Any person who… willfully
makes and subscribes any return statement, or other document which contains or is verified by a written declaration that is made under the penalty of perjury and which he does not believe to be true and correct as to every material matter, shall be guilty of felony and upon conviction thereof, shall be imprisoned not more than 5 years, or fined, or both together with the cost of prosecution.
31. Using fake court documents constitutes a violation of federal statute Title 18 Sec 371. The penalty for using a fake court documents is up to 5 years imprisonment. Title 18, Sec 514 of federal law provides that it is a crime to use a fraudulent document. Federal law Title 18 Chapter 25 Sec 514 counterfeiting and forgery, provides: “whoever with the intent to defraud: 1. Draws, prints, processes, publishes, or otherwise makes, or attempts or causes the same, within the US; 2. Passes within the US, or (3) utilizes interstate or foreign commerce…any false or fictitious instrument, document, or other item appearing, representing, purporting or contriving through a scheme or artifice… shall be guilty of class B felony. AAG Garin solicited and asked for help in propagating false and libelous information against Veleanu on the Internet. For this purpose, AAG Garin contacted a citizen of the People’s Republic of China known for her spaming and trolling activity on Internet’s websites and chat rooms, and consequently banned from participating in several websites she spamed and trolled. She built her own website that was a source of malicious trolling or “flaming” until her website was banned. Under the pseudonym of Anita Mui she propagated false information procured by AAG Garin. Her blog: “Death to antique dealer” was one of her spam attacks against Veleanu with the intent to use false and libelous information provided by Mr. Nick Garin to disseminate on the Internet and recruit former customers of Veleanu; to destroy him financially, physically and psychologically. The falsity of the information was injurious to the high moral character and professional reputation of Veleanu as a well-known researcher and scholar of oriental arts and essential to render the publication to be libelous and as such, exposing him to ridicule, disgrace and public hatred. The false information included allegations that Veleanu sold items made from glass and
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misrepresenting them as made of jadeite, false allegations that Veleanu sold items made from ordinary quartz and misrepresented as made of jadeite, etc. AAG did not have any proof that such allegations are true other than confabulation of Spiridonakos not substantiated by any material evidence; AGTA fraudulent, forged and mislabeled gemological reports of natural species quartz that were not confirmed by GIA gemological reports that did not find “natural species quartz” in any of the mala that were examined. The malicious prosecutorial acts violated constitutional rights of a fair trial and violation of judicial code of conduct of NY DR 7 (10) (A) regarding the trial publicity and also ethical code of NY EC 7-33.
32. Most importantly, Attorney General violated the following NY disciplinary and ethical rules: DR 7-102 (A) (7): “A lawyer shall not counsel or assist a client in conduct that the lawyer knows to be illegal or fraudulent.
NY EC 7-26 specifies that a lawyer who knowingly participates in introduction of fraudulent, false or perjured testimony or evidence is subject to discipline”.
EC 8-5 prohibits any “fraudulent, deceptive or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body.
33. Violation of the constitutional rights of Veleanu under 4th, 5th, 6th, 7th, 8th. and 14th amendment of the US Constitution by the prosecutor in his investigative function. 1. Violation of the 4th amendment of USC; Right of freedom from unreasonable searches and seizures.
In bad faith, AAG Garin used his prosecutorial power to issue several subpoenas in order to intimidate, harass and also to retaliate and punish Veleanu for the exercise of his constututional rights to defend himself when facing false and malicious charges. The 4 subpoenas issued by AAG Garin were impermissible under Rule 26 (b) (1) of FRCP which allows discovery only to those matters that are relevant to the subject of action. Except the first pre-litigation subpoena, all the other 3 subpoenas did not constitute to be reasonably anticipated to assist the court in determining finder of the fact to serve his legitimate evidentiary roles. In doing so, AG has engaged in illegal abuse of process in order to obtain collateral purpose to harass, persecute and induce psychological pressure detrimental to physical and psychological health of the defendant Veleanu. AG as an officer of the court, engaged in unconstitutional, unreasonable, irrelevant, excessive, invasive, burdensome, frivolous and clearly retaliatory attacks against Veleanu with manifest purpose to prevent him to exercise his constitutional rights of due
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process and defense, and harass and intimidate Veleanu. Under the judiciary law, a subpoena duces tecum may be issued only if the proponent of the subpoena is able to establish that the documents at issue are relevant to the subject matter of the investigation and the charges are contained in the complaint. See in Re- Morgenthau 73 AD 3d 415 (1st Dept. 2010). Where the proponent of the subpoena fails to establish a factual basis that shows the relevancy to the subject matter of the investigation, the proponent or referee issuing the subpoena has exceeded his power under Judiciary Law Section 43 (2) and Section 44 (4) and the subpoena must be quashed- Id 73 AD 3d at 419. The Court of Appeals has recognized that the materiality and relevancy requirements were included in Section 42 of the Judiciary Law to prevent investigative fishing expeditions.- See Matter of NYS Commission on Judicial Conduct v. Doe 61 NY 2d 56, 60 (1984). It is simply not enough that the proponent merely hopes or suspects that relevant information will develop. See Matter of Temporary Commission of Investigation of NY State v. French 68 NY 2d , 681, 691 (1979)-See also People v. Gibsendanner 48 NY 2d 543, 551 (1979): “A subpoena duces tecum should not be issued to ascertain the existence of evidence”. Subpoena with the mere hope of developing relevant testimony is precisely the kind of investigatory fishing expeditions that the law forbids”. See Matter of NY State Commission of Judicial Conduct v. Doe 61 NY 2d at 60. The abuse of process used by AG of issuing 4 subpoenas with 3 of them not relevant to the subject matter represent an infraction of Judiciary Law Section 43 (2) and Section 44 (4) and malicious acts of causing harassment, mental anguish, intimidation and abuse of process and constitute obvious violations of the 4th amendment of USC and abuse of process acts.
34. Violation of the 5th amendment of the USC. Defendant Veleanu was deprived of constitutional right specified as: “(n)or be deprived of life, liberty, property, without due process of law“.
In blatant and clear violation of this amendment, the petitioner initiated and continued execution of property owned by Veleanu when a Stay of Enforcement was effective in power pursuing CPLR 5519. The action of petitioner AAG Garin for the execution of Veleanu’s property by the sheriff of Cortland County was done prior the decision of the Appellate Court, when the stay of enforcement was still in force, and based on a leave granted by Supreme Court of Dutchess County of November 12,
2010, granted by default as went unopposed by the adverse party. According
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to Unified Court System, a motion for a leave is deemed to be entered and granted by default if unopposed by the adverse party. See Exhibit 13 p1, p2, p3; copies of the payment of the motion, order to show cause and affidavit in support. Supreme Court of Dutchess County violated Veleanu’s
constitutional rights for failure to grant the leave and act upon decision of the requested leave, also violated NY State Bill of Rights, Article 2 (10) : “(N)either justice nor rights should be sold to any person, nor denied, nor deferred, and writs and process ought to be granted freely and without delay, to all persons requiring the same, on payment of the fees established by law”. Recklessly AG continued the act of Execution of Veleanu’s property in outrageous disregard of the existence of the Stay of Execution granted by default by the Supreme Court of Dutchess County in 2010.
The undersigned is a survivor of the National Socialist regime (Nazi) holocaust and also an exile refugee that escaped the tyranny of the Soviet dictatorial regime in his native country. The communist countries have a constitution and bill of rights as therefore written, nevertheless, on the paper only. NY State Constitution and Bill of Rights sound like an example of a democratic regime, nevertheless when not applied in practice by a corrupt judicial system are absolutely identical to the dictatorial regimes’
constitution. Mao Tse Dung of China, Stalin of Soviet Union, Castro of Cuba and Kim of North Korea are representatives of Parens Patriae with absolute infallible dictatorial powers. According to the Bill of Rights of NY State, the accused individual has the rights to defend himself, especially when facing fabricated evidence charges, forgery, perjury of witnesses, concealing exculpatory evidence, subornation of perjury. etc. Attorney General is not the State of New York or the People of the State of New York, rather he was elected to represent the People of the State of New York in an honest and fair example to the people that elected him, and his office representatives have the same responsibilities. Governor Andrew Cuomo as a prior Attorney General of New York State, failed in an honest representative way the People of the New York State that he was representing. On his inauguration as governor of NY State, Andrew Cuomo stated: “Public integrity was my top priority as New York Attorney General and it is as governor…Those who hold public office must safeguard that trust and those that violate their oath must incur punishment. It is a new day in Albany and the old day of doing business will not be tolerated”. Obviously, Andrew Cuomo did not refer to his
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former judicial function as Attorney General that includes this frivolous case that is the most egregious that the undersigned encountered in hundreds of hours of legal research. The legal case of prosecutor Michael Nifong of North Carolina who was disbarred and jailed for prosecutorial misconduct in similar allegations of malicious prosecution, concealment of exculpatory evidence, false declaration to media, etc. appears as a minor, petty judicial case in comparison with present legal case of prosecutorial misconduct of acting in conspiracy with judges of the Supreme Court of New York State to suppress, obstruct and prevent justice to be done. The judges of the Supreme Court involved in this case violated the due process and rights of equal protection of laws by taking ex parte decisions, orders, judgments in all such orders, judgments or motions of respondent was entitled for relief. As respondent Veleanu was prevented to defend himself and his defense was ignored, disregarded or fraudulently labeled as “unsworn”, or even when defended by an officer of the court Veleanu retained, reargument/renew was considered as renew despite all the evidence to the contrary. All the above mentioned orders and judgments are conscience shaking not only to honest, unbiased and impartial fact finders, but to all citizens of my country, United States of America I stand since I was adopted as a citizen, fought and defend in Vietnam as a commissioned officer. I intend to fight till my last breath the corruption of the judicial system until I get relief, declaratory judgment to repair my damaged reputation and obtain justice against the person who fraudulently conspired to defraud, extort and blackmail. The prosecutor can not avoid the truth by conclusory and formulaic recitation of elements of a cause or causes of action that do not support the allegations. See Twombly, 550 US at 555. AG used his political power in unfair pressure on the judges involved in order not to displease the strong party, regardless of the truth, righteousness and lack of any reasonable cause of action. The judicial canons of professional conduct imply the duty of the prosecutors as the foremost ethical obligation that prohibits prosecutors from knowingly making false statements to the court, bans submission of false evidence and require that prosecutors take remedial measurements to make falsities known to the court. Prosecutors have the duty of truthfulness to third parties. This prohibition of making false statements of material fact is necessary to avoid assisting fraud. In the present case, the false statements were taken by the highest rank prosecutor in New York State, with full knowledge of falsity and implicit support,
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assistance and aid of the sole witness who is the perjurer. This legal case offers proof that the highest rank prosecutor in NY State conspired, aided and facilitated the accomplishment of fraud, extortion and blackmail committed by the witness. In addition to the duty to avoid deceiving the court and third parties, prosecutors have a broader obligation to avoid deceptive or fraudulent conduct. AG in “fishing expeditions” failed to find any other person (customer) to claim misrepresentation. AG in desperation to prove “wrongdoing” when any other methods failed, used libel through media, malicious prosecution and abuse of process, also deceptive conduct, such as the use of an undercover investigator to detect any ongoing violations of the law, action that is not ethically prescribed, but failed miserably when facing the ethical position and response of respondent. The deception and misrepresentation of AG perpetrated for a compelling reason for which there is no alternative other than enhanced ego by the hierarchic rank. A justice system that convicts the innocents exposes the failure to uphold justice, standards upon which society is built on. A prosecutor who acts in the name of the People of the State of New York should have higher standards of behavior than the average of citizens that elected him in that position. Is not enough to proclaim high ethical standards as Governor Cuomo stated at his inauguration, rather more importantly is to follow the percepts that the demagogue is teaching others and declaring to punish the perpetrators, of course with the exception of the preacher. “A prosecutor has as much responsibility to protect the innocents as he has to convict the guilty” Berger v US 295 US 78, 88 (1935); see Bailey v Commonwealth 237 SW 415, 417 (Ky. 1922). Prosecutor therefore, who is responsible for seeking justice has a grave responsibility to avoid wrongfully convicting defendant, especially when the defendant is innocent of the crimes for which he is being convicted. See Berger 295 US at 88. The judge foremost responsibility is to maintain integrity of the court and to uphold the public’s confidence in the legitimacy of justice system. Because the judge is invested with the public trust, the judge is required to act according to the Code of Judicial Conduct which primarily governs the judges as officers of the court. This requires the judges to obey the law including the rules of procedures. The prosecutorial duty is to charge only with probable cause, prosecute only with sufficient evidence, provide the defense with exculpatory evidence, remedy wrongful convictions and reinforce the basic principle that the prosecutors have the duty to seek the truth, not simple to secure convictions.
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Judges violate their duty to ensure the fairness of judicial proceedings by decreeing judgments they know are in conflict with the facts provided by evidence.
35. Federal Trade Commission in 15 USC Sec. 45 and 52 from where GBL 349 and GBL 350 were adopted inter alia states: “Courts may not make their own determination as to whether a test (like in the present case gemological testing for jadeite authentication) should be the standard of authentication as they lack the specialized knowledge to do so and it is unfair to have liability turn on a judge’s personal subjective view without expert witness testimony”. According to Federal 15 USC Sec. 45 (b), AG did not assert claims for class action in behalf of customers who did not allege that were injured, rather requested a refund, as they did not have standing to sue. The fraudulent interest of 9 % from the date of purchase made an attractive proposition to unscrupulous customers that wanted to defraud a dealer. However, the existence of a commercial contract providing refunds preclude the refunds obtained by AG and represent a breach of contract fraudulently encouraged, aided and supported by AG. Thus, the responsibility for the breach of contract resides not only to the customers that knowingly and willingly breached the contract by requesting a refund at the solicitation of AG, but also the responsibility of AG to solicit these refunds as illegal action when fully knowledgeable that such action would breach the commercial legal contract of purchase/sale.
36. Attorney General has vicarious responsibility that his representatives act properly and honestly under his supervision. Attorney General Andrew Cuomo violated NY State DR 1-04 (1200.5) (B). Responsibilities of a partner or supervisory lawyer. A lawyer with management responsibility in the law firm or direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the disciplinary rules.
37. Violation of the 6th amendment of the USC.
Defendant Veleanu had the constitutional right to confront the complainant who unjustly and fraudulently destroyed Veleanu’s professional and personal life. The special proceedings that are equivalent to summary judgment deprived Veleanu of his rights to defend himself under the constitutional rights.
38. Violation of the 7th amendment of the USC.
Defendant Veleanu was deprived of the constitutional rights to be judged by
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jury in a fair trial. Instead, Veleanu was judged by a biased and unconscionable abuse of confidence of 4 judges in a “kangaroo court” where the defense was denied in all the steps of the judicial proceedings.
Peremptory challenge in a court and the right of trial by jury, is one of the most fundamental rights and privileges granted by US Constitution. Pointer v United States 151 US 396, 408 (1894); Lewis v United States 146 US 370, (1892). Right of peremptory challenge originates from common law with the right of trial by jury is basic and fundamental right of American jurisprudence protected by 7th amendment of US Constitution.
5. Violation of the 8th amendment of USC.
The imposition of severe punitive fines and illegal retroactive interest of 9 % years back to the time of the purchase of items (that were not even alleged to be misrepresented), is not only a clear violation of 8th amendment of USC “nor excessive fines imposed, nor cruel and unusual punishment inflicted”, but legal fraud, fraud upon the court and a travesty of justice. The fines imposed by judge James Pagones in his decision/order/judgment were illegal as were assessed under GBL 350 (d). However, Attorney General did not allege violation of GBL 350 in his 2 causes of action and did not prove that Veleanu advertised in any way, as Veleanu never advertised for his store Objets D’Art Uniques. The imposing of any fines in lack of cognizable cause of action is illegal and void ab initio and is a clear Fraud Upon the Court. The imposition of interest of 9 % retroactive several years back is an unconscionable illegal act decreed by judge Pagones, not supported by any NY state law, statute or federal law and is a genuine example of violation of constitutional rights under 8th amendment as cruel and unusual punishment. This illegal imposing of the retroactive interest of 9 % was requested by Attorney General as a punishment for the motion of reargument/renew of the defendant and by itself, represents a suppression of the right to defend when facing wrong charges, requests writs that the court should grant freely under Article 2 (10) of the Bill of Rights granted by the NY State Constitution. The most outrageous part of this judicial misconduct is the fact that the 9 % retroactive interest dating as far back as 2006, was granted not only to the single complainant, but also to 3 customers that only requested a refund, without alleging misrepresentation or fraud on the items they purchased. This is a clear evidence of Fraud Upon the Court. In addition to this egregious judicial act, these 3 customers did not purchase the jade items from Veleanu, rather from Go
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Antiques company as seller on auctions held by Go Antiques. Punitive damages, when the conduct of prosecutor involves recklessness and callous disregard to the constitutional rights of the defendant, is a crime under federal law, in addition to Fraud Upon the Court. Smith v Wade 461 US 30, 56 (1983); Hodges v Easton 106 US 408, 412 (1882). In addition to the violation of the constitutional rights of Veleanu under 8th amendment of USC, Veleanu’s civil rights were violated under Article 2 (10) of the NY State Bill of Rights: “Fines must be reasonable and imposed only on cause”.
39. Violations of the 14th amendment of USC.
A. Every person has equal rights and equal protection of the laws and access to the justice under the Constitution of US and the statutes of NY State according to CPLR Article 13, Rule 1303. Procedure in action brought by the State. Except as otherwise specially prescribed by the statute or rule the proceedings in an action brought by the state shall be the same as an action by private person. This statute was brutally violated by the Officers of Court in the special proceedings brought by the State in the Supreme Court of Dutchess County.
40. Malicious prosecution and abuse of judicial process were done by the AG prosecutor in his investigative role against defendant Mircea Veleanu.
This legal case represents a combination of malicious prosecution and abuse of process. The malicious prosecution is based on 4 elements:
1. The civil proceeding started without a probable cause of action and reasonable grounds to support the legal action. 2. The petitioner initiated and continued the legal case with an improper purpose. 3. The petitioner played an active role in the original case. 4. The original case was terminated in favor of the plaintiff.
The respondent can not claim the 4th element because of the biased and corrupt judges that favorized the powerful party.
41.The civil proceeding started without a probable cause as this civil action is based on GBL 349 and there is no evidence whatsoever that the respondent violated GBL 349 and Executive Law 63 (12). In this civil action, the original action was abandoned for want of prosecution due to failure to enter and docket the judgment. The new legal action initiated by a different judge appointed by the court did not start as de novo and illegally decreed a decision/order/judgment without service to the defendant (lack of jurisdiction), without any hearings, conference calls or calendar calls and as such violated the constitutional rights of the defendant for due process.
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42. The prosecutor, Attorney General, played an active role in the original judicial action by egregious prosecutorial misconduct as follows:
A. Willingly submitting fraudulent and criminal forged and mislabeled documentary evidence to the court with full knowledge of its falsity and illegality. This was averred by undersigned in a different section of this memorandum.
B. Willingly and knowingly submitted documentary evidence that was altered by interposing photographic images over a text of the document in at least 2 occasions. This was averred by undersigned in a different section.
C. Willingly and knowingly concealed exculpatory evidence by altering of a legal document submitted to the court for the prosecution of the respondent by obstructing and making the exculpatory evidence to the defendant impossible to be viewed using an overprint of images over the exculpatory text. The exculpatory evidence could clear the respondent of all charges and subsequently, dismiss the legal action. This was averred by undersigned in a different section of this memorandum.
D. Conspiring with the sole complainant in this legal case to compose an under oath sworn testimony with full knowledge that it was perjured, elaborate in the complainant’s affidavit the charges against the defendant by divulging intimate prosecution’s presentation in form of Exhibits and other legal knowledge in order to make the affidavit more plausible. This was averred by the undersigned in a different section of this memorandum.
E. Subornation of perjury with full knowledge about the falsity of affidavit‘s alleged evidence. This was already averred by the undersigned.
F. Willingly and knowingly submitted prosecutorial evidence to the court of fabricated documentary evidence that was fraudulently mislabeled by the complainant. This was already averred by the undersigned.
G. Willingly and knowingly, submitted to the court criminally forged and mislabeled documents for obtaining a grant of temporary restraining order and thereafter a permanent injunction. Already averred by the undersigned in a different section of this memorandum of law.
H. Willingly neglected the prosecutorial duty of due diligent care to investigate and prosecute alleged perjury, fraud, extortion, falsification of documents, forgery of forensic material, and conspiracy to commit extortion and defraud of an individual. Due to prosecutorial intentional negligence, AGTA reports can not be more investigated after this fly-by-night company ceased its existence in July 2009, and of course, failure to investigate Spiridonakos’ crime of mislabeling for the obvious reason of conflict of
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interest as Spiridonakos was the only witness to commence and continue the legal action. In addition, the crime of forgery by counterfeit of legal document to support “injury”, was done by Janet Spiridonakos that involved the falsification of hand writing of another person is punishable by imprisonment and fines. Already averred by the undersigned in a different section.
I. Willingly and knowingly, submitted to the court, a fraudulent and criminal
forged document consisting in an unsigned invoice, as proof of damages injury) with purpose of obtaining a judgment against respondent and illegally obtaining punitive damages and illegal retroactive interest of 9 %, not only to the complainant, but also to 3 former customers requesting a refund but not claiming misrepresentation or fraud. Already averred in a different section.
J. AAG Nick Garin committed perjury by submitting false statements under the penalty of perjury in his affirmation of Alternative Proposed Statement in lieu of stenographic transcripts, submitted to the Appellate Court. Full details are averred in a different section of this memorandum.
K. Attorney General acted as a private legal representative of another person rather than an impartial authority delegated by the People of the State of New York. See in re: Marton Estate 62, Atl. 1058, 1059, 213 Pa 499, 4 LRA(NS), 939. See also: Encyclopedia of pleading and practice. Vol 14 By William Mark McKinney. A prosecutor who commits judicial misconduct is not representing the State of New York, rather represent himself in his egregious acts and is devoid of immunity. The State of New York and its citizens do not commit crimes against innocent individuals falsely accusing them of wrongdoings they did not commit. As most of the egregious legal acts were committed by the prosecutor in his investigative function, he is devoid of absolute immunity.
L. AAG Garin in his reply to the undersigned pleading, knowingly and willingly made false statements of law and fact as: “the respondent has mislabeled his response as a motion to dismiss since he has not raised an objection in point of law under CPLR 404 (a)”. This is a false egregious statement meant to deceive the court. The truth is that the defendant raised an objection in point of law under CPLR 404(a) in both pleading and in the motion to dismiss. See AAG Reply Affirmation, page 2, Record on Appeal page 287. From the numerous false statements of AAG Garin, the undersigned cites the AG following false statemement of fact: “Finally, Dr.
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Veleanu blows out of all proportions the fact that jade sometimes has bits of quartz in it”. See AAG Garin Affirmation in opposition to the motion to reargue and renew of respondent, page 4. Record on appeal A426. This statement is trying to minimalize a fact that makes the summary judgment improper and illegal that is the base of defense. Jadeite in the form of ornamental art carving is not pure and may contain quartz, quartzite as well as other minerals or rocks. See Exhibit 19 of this memorandum. When confronted with objective and exculpatory evidence, prosecutor Garin is minimalizing the evidence with statements as :“Dr. Veleanu blows out of all proportions“, like the exculpatory evidence is something of minor importance. On the same page, p.4 and continuing on p.5 of the Affirmation, AAG Garin cites an excerpt of judge Dolan judgment stating that the respondent’s responses to the petition lacked evidentiary value as “unsworn”. Judge Dolan and AAG Nick Garin knew or should have known that such statement is deceiving due to the existence of CPLR 105 (U) that allows a declaration under penalty of perjury, instead of affidavit. Even more, the permanent injunction that was granted by judge Dolan was null, void due to the fact that the judgment was not entered and docketed and abandoned by default.
M. Prosecutor AAG Garin, willingly and knowingly participated in the creation and preservation of evidence that the lawyer knew to be illegal and fraudulent. His acts represent violation of NY DR 7-102 (A) (6) Code of Professional Conduct and is Fraud Upon the Court.
N. Prosecutor Garin counseled and assisted the single complainant in a conduct that the lawyer knew or should have known was illegal and fraudulent. His acts represent violation of NY EC 7-5 and EC 7-26 Code of Professional Conduct.
O. Prosecutor Garin knowingly and willingly engaged in or associated with illegal conduct contrary to the Canons of Judicial Conduct. Disciplinary Rule DR 7-103 prescribing that a public prosecutor or other government lawyer shall not institute or cause to be instituted charges, when he or she knows or is obvious that the charges are not supported by probable cause. This legal case is typically a frivolous suit brought in absence of a probable cause of action and clear violation of NY DR 7-102 (A) (2). A commercial dispute not addressed to consumers at large and being particular to a specific matter that rather represents a breach of contract by a disgruntled customer who was not aggrieved by any pecuniary or any damage of any
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kind, has no legal standing whatsoever. The complainant refused the reasonable offers for refund that were done according to the conditions of sale of the commercial contract she breached. The breach of contract entitles the undersigned to legally request from the court to grant damages of aggrievement caused by reckless action of the complainant Spiridonakos that caused defendant, pecuniary, psychological trauma and irreparable damage to the professional reputation and immaculate moral character of the respondent, humiliation, mental anguish, loss of credit and reputation, etc. The failure of AAG Garin to exercise due diligent care in his prosecutorial duty to investigate the facts surrounding the case as obvious crimes committed by the complainant Spiridonakos as follows: perjury, extortion, forgery, counterfeiting evidence, mislabeling, were sufficient at a bare minimum to prove a lack of probable cause.
43. Malicious abuse of process resides in the legal process to compel performance or forbearance of some specific acts: 1. With intent to do harm without excuse or justification; 2. In order to obtain a collateral objective that is outside the legitimate legal process. 3. Use of the legal process in a perverted manner to obtain a collateral objective. See Cook v Sheldon 41 F 3d 73, 80 (2d Cir 1994); Lieberman v Pobiner, London, Bashian, Buonamici 190 AD 2d 716, 593 NYS 2d 321 (2d Dept 1993); Curiano v Suozzi 63 NY 2d 113, 116, 469 NE 2d 73, 80 2d Cir 1984). “The gist of the action for abuse of process lies in the improper use of process after it was issued. To show that regularly issued process was perverted to the accomplishment of an improper purpose is enough”. See Dean v Kochendorfer 237 NY 384, 390 (1924). “Improper motive is only abuse when joined with improper purpose”. See Chamberlain v Lishanski 970 F supp 118, 122 (ND NY 1997). In this legal case, AAG Garin issued 4 subpoenas tecum duce that were not used for proper purpose to obtain information, rather to harass, intimidate, cause mental anguish and force the undersigned to close his business. The subpoenas were used to interrogate Veleanu for 3-4 hours without a break and cause emotional harm, humiliation, intimidation and psychological stress, rather than obtaining information as testimony under oath. 3 of these 4 subpoenas were not even intended to obtain information related to the legal case, rather a continuous oppression to harm the undersigned and force him to close his business. Accordingly, these subpoenas were used to achieve collateral objectives outside the legitimate use of the process. A similar case of the abuse of process by issuing multiple subpoenas is illustrated in Board of Education v Farmingdale Classroom
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Teachers Assn., Inc. 38 NY 2d 397, 380, NYS 2d 635 (1975). AAG Garin violated disciplinary rule NY DR 7-102 (A) (1) that prohibits a lawyer from filing a suit asserting a party, conducting a defense, delaying a trial, or
taking other action on behalf of the client, when the lawyer knows or when it is obvious that such action would serve mainly to harass or maliciously injure another. Malicious prosecution and abuse of process are identical tort used interchangeable in the courts without any attempt to make a distinction. See Morpy v. Shiply 351 Pa, 425, 41 A 2d 671 (1945). In the present case, the pre-litigation phase was initiated by a regularly issued process of the prosecutor as authorized by New York statute and consisting in a subpoena followed by subsequent Notice of Proposed Action pursuant to Article 22 A. The undersigned responded within the term of 5 days limitation after receipt and denied under protest of all allegations that were false and fraudulent. The undersigned brought attention to prosecutor Garin that complainant Spiridonakos submitted mislabeled jadeite mala for gemological testing and more importantly, the AGTA identification reports were forged with possibility of intention to defraud Veleanu. An outrageous false allegations was that “Veleanu falsely represented to the public and potential buyers of jade artifacts that they are ancient when in fact they are replica or recent fabrication”. This false accusation was made without any grounds to support. Ancient artifacts are more than 1000 years old and jadeite was used in China only since the end of 18th century CE and certainly Spiridonakos was not sold or could claim that she was sold “ancient jade artifacts”. This groundless and ridiculous allegations were made with hope that the fishing expedition of Attorney General by disseminating false allegations through the media, would bring somebody claiming that was sold “ancient jade artifacts” and that the person would state that were of recent manufacture. As all the allegations were contested, denied and disproved as frivolous claims of the single complainant Spiridonakos, the undersigned was convinced that the evidence presented at the subpoena and the response to the Proposed Action were sufficient to prevent commencement of a legal action. The onset of the legal case in the pre-trial stage was initiated without any reasonable cause of action and based solely on a complaint of a single person who substantiated her claim by using fraudulent forged and mislabeled evidence. Another clear example of abuse of process was the use of the subpoenas and complainant’s affidavit, that were legitimate legal tools to obtain documentary evidence,
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but used illegally to defraud and extort money from the defendant. While the affidavit was a legitimate valid process, the fraud and extortion done by Spiridonakos represent vitiating of the legal proceeding for accomplishment
of a collateral objective. AAG Garin misused the legal process with intent to maliciously harm Veleanu in order to achieve a collateral objective that was outside of the legal process, assessing illegal penalties and court cost based on GBL 350 (d) in absence of a cognizable cause of action, also, collecting illegal fines, retroactive interest of 9 % for more than 5 years awarded to Spiridonakos, and other 3 customers that merely requested a refund, and most outrageously, the malicious intent to sell Veleanu’s property at auction by the sheriff, etc., with the resulting achievement of tremendous harm to the defendant. Process refers to procedures that embrace all the proceedings connected with the litigation of a cause of action. See Cutler v. Cutler 28 Misc. 2d 526217 N.Y. 2d 185, 188 (Sup Ct. 1961); Mobley v. Jackson 40 Ga. App 761, 151 SE 522, 524 (1930). In its narrowest sense, “process” refers to individual writs issued by the court during or after the litigation. Stern v. State 23 Okla. 462, 100 P909, 914 (1909). Accordingly, an abuse of process is commonly found in situations where the writs of garnishment, attachment or execution are present. See Little v. Sowers 167 Kan. 72, 204 P 2d, 605 (1949) procuring wrongful execution on a void judgment. The improper misuse of process usually takes the form of coercion to obtain a collateral advantage, not property involved in the proceeding itself, such as the surrender or the payment by the use of process as a threat or a club (like in this legal case) and represents a form of extortion. The malice associated with the abuse of process is proven by intentional and willful misuse of the process. Unlawful acts willfully done are to be deemed malicious to the person injured thereby. See Coplea v. Bybee 290 Ill. App. 117, 8 N.E. 2d 55, (1937).The result of misuse of process consists in consequences of an ulterior or concealed motive. Pinental v. Hauk 10 Cal. App 2d 884, 226, P2d, 739 (1957).; Earl v Wynne 34 NJ Super 605, 112A 2d 791 (1955). When the ulterior motive is shown by inference, the basis of inference is the wrongful use of process. In the present legal case, AAG Garin requested judge James Pagones to punish the respondent for the motion for reargument/renew. The writ issued by the court to assess illegal, retroactive interest of 9 % awarded the retroactive illegal interest not only to the sole complainant, Spiridonakos, but also to 3 former customers that merely requested a refund without claiming misrepresentation for the jade carvings
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purchased at Go Antiques auctions where the seller even was not Veleanu, rather Go Antiques company. The request for the writ enclosed in the judgment was concealed as interest granted pursuing CPLR 8303 that legally assesses interest of 9 % starting from the date of the entering and docketing of the judgment, but not retroactive to the date of purchase of the jade items. One person who requested a refund, purchased the jade carving in February 2006 that is beyond the statute of limitations for statutory fraud that is 3 years only. This represents obvious Fraud Upon the Court. All this fraudulent acts of the prosecutor were done by misusing a legal writ decreed by judge Pagones more than 3 ½ years from the date of purchase. These actions of abuse of process caused pecuniary damage to respondent and tremendous psychological stress and mental anguish for the resulting injustice. An action for abuse of process can not be sustained unless there is an allegation and proof of damages. See Seybrand v. Everly Aircraft Co. 185 F Supp 538 (D Ore 1960). In the present case, Veleanu was aggrieved with pecuniary damage loss of almost 3 times higher than the original request for restitution of $12,365 made by Attorney General in behalf of the sole complainant Janet Spiridonakos. Prosecutor Garin not only that did not prove that fraud was committed on the sale of the 7 jadeite rosary mala, but unconscionably and illegally, added 9 % retroactive interest years back to the date of purchase not only to Spiridonakos, but to 3 customers that did not claim misrepresentation, merely asking for a refund. As the seller was Go Antiques in Ebay Live auctions and not the respondent in the majority of the sales in this legal action, the request for refunds including the seller’s commissions even without proving fraud, is in itself a fraudulent act committed by AAG Garin and is an act of Fraud Upon the Court.
Another abuse of process incriminating AAG Garin, was the misuse of a writ issued by the court for achieving an ulterior illegitimate and improper collateral purpose and consisted in an order of judge Dolan that respondent Veleanu would provide a list of all jade customers since August 2003 to the present. While the writ is legally valid, the request for providing names, contact information, price paid, date sold, description of the items, etc., goes beyond the statutory limitation of time for statutory fraud that is 3 years only, and such request violated the NY State laws by confusing it with actual criminal fraud that the statute of limitation is 6 years. The writ was obtained with malicious evil intention and ulterior purpose to harass, intimidate and harm the respondent, financially and psychologically.
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Prosecutor AAG Garin violated constitutional rights of respondent Veleanu under section 1983 of federal law in the action for malicious abuse of process based on deprivation of constitutional rights under 14th amendment of USC. Retroactive assessments of 9 % interest as a punishment for Veleanu’s motion for reargument/renew represents a collateral objective including retribution. Procedural due process forbids the use of legal process for a wrongful purpose. See Torres v Superintendent of Police 893 F 2d 404, 410 (1st Cir 1990). In the present legal case, prosecutor Garin violated the NY State Bill of Rights Art. 2 that provides the right to sue and defend when facing wrong and false charges.
AAG Garin violated NY EC7-14: “A government lawyer who has discretionary power to litigate, should refrain from instituting or continuing litigation that is obviously unfair. A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and should not use his position or the economic power of the government to harass parties or to bring about unjust settlements or results.
AAG Garin violated EC7-13: “The responsibility of a public prosecutor differs from that of the usual advocate; it is to seek justice, not merely to convict“.
44. Assistant Attorney General in his investigative functions violated the constitutional rights of respondent Veleanu by acts of malicious prosecution/abuse of process.
Any punishment for exercising constitutional rights represents an anti-constitutional illegal act and is considered an act of treason. The procedural due process violations include not only the right to defend when accused of false charges, but also deprivation of property by perverting, distorting and corrupting the process of law. AAG Garin in his prosecutorial misconduct clearly violated established due process rights and as such he is not entitled to immunity as a matter of law, when he acted in his ministerial extrajudicial activity. This complaint of the undersigned, alleging deprivation of constitutional rights, represents a cognizable cause of action and the undersigned is asking the court in its authority to act under the laws of NY State for prosecution of the law infractions’ perpetrators. The qualified immunity or “good for it” enjoyed by the state officials shields them from personal liability for damages, insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable
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person would have known”. Harlow v Fitzgerald 457 US 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed 2d 396 (1982); see also Hurlman v Rice 927 F 2d at 78; Robison v. Via 821 F 2d, 913, 920 (2d Cir 1987); or insofar as it was objectively reasonable for them to believe that their act did not violate those rights“. See Anderson v Creighton 483 US 635, 638 107 SCt 3034, 3038, 97
LEd 2d, 523 (1987).; Malley v Brigggs 475 US 335, 341, 106 SCt 1092, 1096 89 Led 2d 271 (1986); Calamia v. City of New York 897 F 2d 1025, 1035 (2d Cir 1989). The lawful process of law was perverted or used by the prosecutor for an illicit purpose. The tort of abuse of process is stated in the Restatement Second of Torts in Federal Law Sec. 602 as follows: “One who uses a legal process, whether criminal or civil against another primarily to accomplish a purpose in which it was not designed, is subject to liability to the other for harm caused by the abuse of process”. Hence, abuse of process claims typically arise from improper or excessive attachments or improper use of discovery”. Bidna v Rosen 19 Cal App 4th 27, 40 (1993), internal citations omitted. In the present legal case, the attempted execution of Veleanu’s home and later on, execution of property in Cortland County, NY, despite the stay of enforcement, are typically misuse of the power of the court. It was an act done under the authority of the court for the purpose of misusing the legal writ for perpetrating an injust and illegal act of execution of property and violation of an order to stay enforcement of the judgment that was in force. See Exhibit 13, p. 1, 2, 3. Facing the sale of property in Cortland, the undersigned obtained a second mortgage on his home to pay the undertaking of $32,506.32 and thereafter, an additional amount of $4,127.85 requested by AAG Garin as representing the interest of 9 % until April 2, 2012. Mr. Garin deliberately ignored that the payment of undertaking on February 1, 2012 that stopped the accummulation of further interest. This represents Fraud Upon the Court. When the undersigned personally presented the payment of the undertaking to Dutchess County Clerk, the senior clerk, (while the undersigned was present) called on the phone Mr. Garin or his office and Mr. Garin or his representative instructed the clerk not to accept the undertaking, subsequently she refused to accept the payment of the undertaking. The bank check was then sent by certified mail to Bradford H. Kendall, Dutchess County Clerk that accepted the undertaking that legally was submitted under CPLR R2501. Despite the payment of undertaking, AAG Garin continued his malicious misuse of the process by asking the sheriff to
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execute the property and sell it at auction as there was no court order. Prosecutor Garin with reckless disregard to payment of undertaking, continued to press for the execution of property by requesting Veleanu, to produce a court order, with full knowledge and malicious intent to cause emotional harm to Veleanu due to the fact that the payment of the undertaking was done under CPLR R5519(a) that is legally authorized as without court order. Fortunately, at the urge to assistance, the Cortland County Attorney brought to the attention of AAG Garin that such court order was not necessary.
45. AAG Garin in his investigative function conspired with the complainant Janet Spiridonakos, to violate Veleanu’s constitutional rights and committed witness tampering.
The sole witness, Spiridonakos, deposed under oath in her affidavit intimate legal details of the judicial proceedings that obviously would not be possible without a conspiracy of Attorney General with Janet Spiridonakos in order to injure and opress Veleanu. Spiridonakos’ affidavit was not written by her as a witness of facts she knew from personal experience, rather was imposed illegally and fraudulently by Attorney General that Spiridonakos wrote like she was the prosecutor of the legal process. Federal law Title 18, Sec. 19 makes a crime to “conspire to injure” or opress any citizen in the face of exercise of any right or privilege secured to him by Constitution. AAG Garin contemplated an ulterior malicious motive in using the legal legitimate process of an affidavit. He committed a willful act in the use of process not proper with regular conduct of proceedings. See Brown v. Kennard 94 Cal App 4th 40, 44 (2001). “(T)he essence of the tort of abuse of process lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice”. See Meadows v Bakersfield Sav. & Loan Ass’n, 250 Cal App 2d 749, 753 (1967); Spellen v Spellen 49 Cal 2d 210, 232-33 (1957). The court stated: “The improper (use) takes the form of coercion to obtain a collateral advantage not properly involved with the proceeding itself, such as the surrender of property, or the payment of money, by the use of process as a threat or a club, a form of extortion, and it is what is done in the course of the negotiation, rather than the issuance of any formal of the process, itself which constitutes the tort”. The doctrine of the abuse of process of the court implies that a court has to exercise its discretionary power to ensure that the conduct of the prosecution does not
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deprive the accused of a fair trial; to prevent the prosecution to manipulate or misuse the process of the court, to take advantage of a technicality. On the balance of probability, the respondent has been or would be prejudiced in the preparation or conduct of its defense. See Ossman G. 1994: The evidentiary standards in criminal and extradition proceedings“, also The Liverpool Law Review 16 (2) Springer 2005 Vol. 1 1979 vol. 33 (2012). AG manipulated and misused the process of the court to conspire with judge Thomas Dolan to deprive respondent of his constitutional rights to defense by technicality of “unsworn” pleadings and “unsworn” motions to dismiss in order to accomplish his goal of the grant of permanent injunction. The fraudulent manipulation of AG inflicted irreparable damage to Veleanu as pecuniary damage by diminishing the sale of Veleanu’s published books due to adverse publicity, impossibility to sell any jade carvings due to senseless imposition to perform gemological examinations, requirement that was moronic, absurd and devoid of any scientific rationality. In the present legal case, the undersigned attempted unsuccessfully to persuade the court in order to show cause applied to the Supreme Court of Dutchess County, as well as to the Appellate Court not only for the stay of execution, but also for an order of protection under CPLR R5204, but at no avail due to the unfair biased and prejudiced tribunals.
46. The court had no territorial jurisdiction on this legal case.
For purpose of GBL 349 and based on common laws of stare decisis of the Court of Appeals, the highest appeal court in NY State, an alleged fraudulent case has to take place in New York State and affect NY State consumers. In this legal case, the single complainant lives in Connecticut, purchased the 7 jadeite mala from Go Antiques company located in Ohio State, or from Objets D’Art Uniques, an exclusive Internet based business as a virtual Internet store located in Ohio and part of an Internet antiques mall located in Ohio, maintained and rented to Veleanu by Go Antiques company of Ohio State. The payment for the mala was done through the intermediary of Paypal company located in California, and the delivery of the purchased mala was done by the USPS directly to Spiridonakos home in Winsted, Connecticut. The common law precedent landmark cases decided by the Court of Appeals without ambiguity has been shown that GBL 349 and GBL 350 refer exclusively to New York State consumers. In Goshen v Mutual Life Ins. Co of NY 2d, 314, 346, NYS 2d, 858 (2002), the Court of Appeals held that the statute’s intent is to protect NY State consumers in their
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transaction in NY State. In another landmark precedent case of Scott v. Bell Atlantic Corp. 282 NY 2d 180, 726 (2001), Court of Appeals held that out of state plaintiffs are not eligible to seek relief in NY State as their complaint does not state any cognizable cause of action. Only the Court of
Appeals may change the common law precedent that is at the base of all decisions of the courts including the present case. Decisions of lower courts contradicting the Court of Appeals decisions are void and null and could be challenged in the appeal, of course, only in an unbiased appeals court. In the present legal case, the undersigned averred the common law precedent established by New York’s highest court that provides that this case should be dismissed due to failure of the prosecution to state a cognizable cause of action and as such, the orders and judgments of the 2 judges involved in this legal case are void and null ab initio. “Once the jurisdiction is challenged, the court can not proceed when it clearly appears that the court lacks jurisdictional authority to reach merits, but rather, should dismiss the action” Mello v US 505 F 2d, 1026. “(th)ere is no discretion to ignore that lack of jurisdiction”. Joyce v US 474 F 2d, 215. “ The burden shifts to the court to prove jurisdiction”. Rosemont v Lambert 469 F 2d, 416. “Court must prove on the record, all jurisdiction facts related to jurisdiction asserted” Lantana v Hopper 102 F 2d, 188 ; Chicago v. New York 37 F Supp 150“. An universal principle as old as the law is that a proceeding of a court without jurisdiction is a nullity and its judgment therein without effect either on person or property. “Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio”. In re Application of Wyatt 300 P 132; re Cavitt, 118 P 2d, 846. “(T)hus when a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of term”. Dillon v Dillon 187 P 27. “(A) court has no jurisdiction to determine its own jurisdiction for a basic issue as its power to act, and for a court must have authority to determine that question in the first instance”. Rescue Army v. Municipal Court of Los Angeles, 171 P 2d 8, 331 US 549, 91 LEd 1666, 67 SCt, 1409. “(A) departure by a court from those recognized and established requirements of law, however, close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction”. Wuest v Wuest, 127 P 2d 934, 937. “(W)here a court failed to observe safeguard, it amounts to denial
of due process of law, court is deprived of juris””. Merritt v Hunter, CA
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Kan. 170 F 2d 739.
47. AAG Garin committed fraud upon the court in his ministerial and investigative function when requested the court for punitive fines and
retroactive interest without invoking any legal ground for such request. Such legal action is considered FRAUD UPON THE COURT.
The undersigned did not do any advertising in his Internet based business. If naming and description of an item placed for sale represents advertisment, then GBL 349 would be sufficient as no item could be sold without a name label and in such case, GBL 350 would be redundant.
In his petition, prosecutor Garin did not state a cause of action under GBL 350 by referring specifically to any allegation of misrepresentation where an advertisment was used in any form to commit a statutory fraudulent activity. Accordingly, any allegations for violations of GBL 350 should be dismissed for failure to state a cognizable cause of action upon which a relief could be granted. To establish a claim under General Business Law 350, petitioner has to prove by any material fact that defendant advertised by any means of advertising and a misrepresentation of material fact appeared in the
advertisement. Proof of violation of GBL 350 is straight forward: “(T)he mere falsity of the advertising charge”. As Veleanu did not do any advertising, AAG Garin allegations and request for relief under GBL 350(d) are fraudulent on base of their falsity. In arguendo, even if prosecutor Garin would state a false and imaginary cause of action in his petition, his allegations would be conclusory as would fail to state where, when and what violations of GBL 350 consisted of; nevertheless AAG Garin did not state a cause of action under GBL 350. In Guggenheim v Ginsburg 43 NY 2d 268, 276 (1977), the court held that when evidentiary material is considered, the criteria is whether the proponent of the pleading has a course of action, not whether he stated one, and unless it has been shown that a material fact as claimed by the pleader to be one, is not a fact at all”. To survive a motion to dismiss, a complaint must contain sufficient factual matter accepted as true to state a claim to relief that is plausible on its face. See Ashcroft v Iqbal, 129 SCt 1937 (2009). The Supreme Court in Iqbal rejected the plaintiff’s allegations as nothing more than legal conclusions that had no role with the complaint’s entitlement to relief, urging courts to exclude from consideration statements that do not reveal factual data, but merely conclusions of law masquerading as facts. In this case, the request of AAG Garin for punitive fines based on GBL 350 (d) were fraudulent and
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illegal as not based on legal grounds. The decision/order/judgment of judge James Pagones in which penalties in the amount of $8000 and court cost of $2000, was decreed based on legal misrepresentation that represents fraud upon the court, an unconscionable biased abuse of discretion shaking the consciousness of any reasonable fact and represents travesty of justice.
Even more reprehensible was judge Pagones granting of retroactive interest of 9 %, that was not statutory, rather an illegal, cruel and punitive action, starting to accumulate years back to the date of purchase, not only to the complainant, but also unconscionably and illegally to 3 customers that requested a refund without alleging misrepresentation. This is a clear representation of Fraud Upon the Court.
48. Prosecutor AAG Garin in his investigative and administrative functions committed fraud upon the court by knowingly submitting evidence in which he concealed exculpatory excerpts from an article.
Willingly and knowingly, prosecutor Garin submitted evidence for prosecution consisting of an article that had portions blocked from view that contained exculpatory evidence to defendant. AAG Garin’s petition submitted as evidence the article “Burmese jade: The inscrutable gem” as
part of his Exhibit 18. If AAG Garin would pay attention to the etymology of the word “inscrutable” referred to jade, he could be more attentive of not using simplistic and moronic method of identification consisting in gemological testing that is reserved to minute items of jewelry grade jadeite isolated from the jadeitite rock. The dictionary defines inscrutable as: “incapable of being searched into or scrutinized; impenetrable to investigation; not easily understood, mysterious, unfathomable“.
On AAG Garin’s petition, page 14 of the above article, a photo was printed over text that was clearly exculpatory to the defendant. The cleared text from the obliteration was shown by the undersigned in defendant’s Reply affirmation dated 10/2/2009 and states inter alia that jadeite that is a pyroxene, may be composed of other minerals as amphiboles (nephrite jade), quartz, mica, etc., constituents of an admixture present in the rock. See Exhibit 9 of Veleanu’s Answer to Petition.
49. Prosecutor AAG Garin in his investigative function engaged in misleading conduct and fraud upon the court.
Federal law defines misleading conduct on Title 18, Part 1, Chapter 73, Sec 1515 (a) (3) as: “Knowingly making a false statement; (c )with intent to mislead, knowingly submitting or inviting reliance on writing or recording
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that is false, forged, altered or other ways lacking an authenticity; (D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, boundary mark or other object that is misleading in a
material respect or (E) knowingly using a tricky scheme or device with intent to mislead..“.
This was not the only concealment of exculpatory text. Another concealment of exculpatory evidence consisted of another obliteration of text by overimposed photo. See Exhibit 18, page 7 of AAG Garin’s Petition. The original cleared text researched by the undersigned was exculpatory vindicating defendant of the false and fraudulent charges that were illegal as done deliberately with full knowledge of the criminal intent to block exculpatory charges. The un-obstructed view of the page was submitted by the undersigned in the affidavit in support of motion for reargument/renew and represents page 7 of Exhibit 18 of AAG Garin’s Petition (Record on Appeal A 405) and in the present affidavit as Exhibit 16 p 1. The exculpatory text is as follows: “From a gemological standpoint, what does all this mean?. Jadeite rock is essentially a rock with variable composition. Although some have suggested a classification scheme for jadeitite based on variations in composition or structure (Ou Yang, 1993); Wang, 1994) this is impractical for gemology because of the sophisticated equipment that would be needed to distinguish the various categories”. See Exhibit 16 p 2.
Federal law imposes severe penalties under Title 18, Part 1, Chapter 73, Sec. 1512: “whoever knowingly uses… or engages in misleading conduct toward another person with intent to: (B) alter, destroy, mutilate or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding…”.
50. Fraud upon the court was done by AAG Garin in his investigative and ministerial function in several occasions. Fraud upon the court was defined by the Court of Appeals as “to embrace that species of fraud which does, or attempts to deface the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery can not perform in the usual manner its important task of adjoining cases that are presented for adjudication”.
Prosecutor AAG Garin committed the criminal offense of uttering prescribed by the State of Michigan MCL 750.249: “any person who utters and publishes as true any false, forged, altered or counterfeit record, deed,
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instrument or other writing specifically knowing it to be false, altered, forged or counterfeit, with the intention to injure or defraud is guilty of uttering and publishing”. In the present suit, the uttering was represented by prosecutor’s malicious and intentional offering to the court for prosecution, forged, mislabeled documents with full knowledge of their falsity. In addition, AAG Garin submitted for prosecution altered, mutilated, concealed evidence documents upon which the preliminary and thereafter, the permanent injunction was granted by a biased and corrupt judicial system. This is a clear illustration of Fraud Upon the Court. The proof of the knowledge of the concealment of the evidence is represented in the fact that AAG Garin never explained or disputed the allegations brought by the undersigned.
51. Prosecutor AAG Nick Garin in his administrative function committed perjury by lying in his affirmation under penalty of perjury.
The false statement under penalty of perjury affirmation of AAG Garin was that the argument of respondent Veleanu regarding the tampering of evidence by forgery and mislabeling displayed in AGTA gemological reports was not made until Veleanu submitted his opposition to the State’s request for a TRO. This was an outrageous lie completely refuted by the evidence. The undersigned submitted proof to substantiate that prosecutor AAG Garin lied and consequently committed perjury, consisting in the pre-trial response evidence by the undersigned to Proposed Action Pursuant to Article 22-A addressed to AAG Garin in July 2009. See AAG Garin’s Petition’s Exhibit 9, Record A 197-A201. The pre-trial response by the undersigned offered exculpatory evidence that Veleanu was confident that will clear all frivolous charges of misrepresentation and prevent the planned legal action of AG. The undersigned response clearly has shown, inter alia, that AGTA’s gemological reports involved evidence that was tampered, mislabeled and forged, and as such, the evidence that was the prima facie of the prosecutor had no probative value. AAG Nicholas G. Garin, AKA Nick Garin, recklessly, completely disregarded the evidence brought by respondent Veleanu and willingly started the legal action with full knowledge about the fraudulent, illegal forged and mislabeled evidence. AAG Garin could not state that he was aware of the forged and mislabeled evidence prior starting the legal action, as it would substantiate the fact that he started the legal action in absence of a reasonable cause of action. In order to obfuscate his illegal onset of the legal suit in absence of a
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reasonable cause of action, he opted to lie under the penalty of perjury about the truthfullness of his legal action and as such, obscuring and confusing the facts that by itself, would be ground to dismiss the legal action.
Prosecutor Garin claimed that the “detailed attack on certain gemological lab results” were not made at the calendar call of 8/7/2009. However, these
“attacks” were the main defense of the response to AG’s “Proposed Action” and with certitude were presented as main defense at the calendar call of 8/7/2009 for the TRO. Prosecutor AAG Garin commited the felony penal offense of uttering by submitting to the court as prima facie for prosecution of Veleanu, forged and mislabeled AGTA gemological reports. See Exhibit 12- Alternative Proposed Statement pursuant to CPLR 5525 (d) in lieu of stenographic transcript-paragraph 3, page 2. Hereto, is an excerpt from AAG Garin’s Alternative Proposed Statement from paragraph 3 and representing perjury:
“3. The Attorney General objects to the Statement for the August 7, 2009 hearing as proposed by Dr. Veleanu. His recollection is faulty in multiple respects. For example, he alleges that he made certain arguments in opposition to the State’s request for a temporary restraining order that he did not make until he submitted his opposition to the State’s petition weeks later. In particular, I am referring to his detailed attack on certain gemological results that were not made at this hearing. However, since those attacks were repeated in the papers Dr. Veleanu later submitted in opposition to the State’s petition and repeated again when Dr. Veleanu moved to reargue and renew the Court’s grant of relief in favor of the State, this collapsing of the August 7th hearing with later arguments of no consequence other than he has proposed an inaccurate narrative of the hearing before judge Brands”.
Empty words as “collapsing of the August 7th hearing” are incoherent in regard to the meaning of “collapsing”, but the words “no consequence” are significant as point toward biased and corrupt court that did not accept the plausible evidence by recklessly ignoring it. This evidence not only was plausible, but documented knowledge and deliberate illegal and criminal acts of uttering committed by prosecutor Garin. Unconscionable, reckless and illegal was the Court lack of action of reporting to NY State Judicial Committee for Lawyers Discipline, the illegal act of uttering committed by Attorney General. Defendant Veleanu response to the Alternative Proposed Statement of AAG Garin is illustrated in Exhibit 12 pages 8 to page 13 and
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judge Brands Statement in lieu of stenographic transcript is illustrated in Exhibit 12 pages 15 to page 17.
52. AAG Garin in his investigative function committed contempt of court by releasing false and libelous statements to media.
In the active phase of the trial, AAG Garin released to media highly inflammatory declaration not supported by any ground evidence and that represented a substantial risk to affect the court proceedings. Publication of material deemed likely to jeopardize a fair trial represents contempt of court. Under the contempt of court act of 1981, it is a criminal contempt of court to publish anything which creates a real risk that the cause of justice in proceedings may be seriously impaired. It applies when proceedings are active and prevents the newspapers and media from publishing material too extreme or sensational until the trial is over. Section 2 of the act specifies law applied when publishing of material creates a substantial risk of serious prejudice to a trial. In this legal case, the release to media by Attorney General on October 15, 2009 substantially affected the court’s proceedings and defamed defendant Veleanu by malicious false statements, fraudulent use of forged and mislabeled evidence, fabricated false evidence and acquiring false witness statements. The release to media while giving the false impression that the legal case just started, was actually 3 months after the onset and in the midst of judicial proceedings. Similar cases of prosecutorial misconduct are found in common law. See Milstein v Cooley 257 F 3d 1004 (9th cir 2001). In that case, a criminal defense lawyer sued
under Title 42 USC Sec. 1983 for due process violations and malicious prosecution. This landmark case established the doctrine that the prosecutor’s acts when not done in their advocate role are not shielded by absolute immunity. Milstein complaint alleged detailed defamatory statements made by DA to the press. Limited availability of immunity is indicated in Buckley v Fitzimmons 509 US at 262, 263, 275, 276 113 SCt 2606 (1993). The plaintiff in Buckley had also asserted a claim based upon false statements made to press. Court refused to grant absolute immunity to the prosecutor based on the fact that comments to the press have no factual ties with the judicial process just because they are made by a prosecutor. Id at 277, 113 SCt 2606. In the most recent case of malicious release of false information to media and concealment of evidence, District Attorney Michael Nifong of Durham County, North Carolina was found guilty of his misrepresentation’s in the legal case against students of Lacrosse team of
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Duke University, and subsequently, Nifong was disbarred and jailed. In the present case, similarly Attorney General released false and malicious statements in 2 separate occasions with full knowledge of the falsity of the declarations, as well as concealment of exculpatory evidence as in Michael Nifong judicial case. The first release to media on October 15, 2009, (See Exhibit 17), knowingly and willingly, Attorney General released false information with clear intention to harm Veleanu. Maliciously and falsely Attorney General stated: “Mircea Veleanu sold artifacts online claiming that they contained high quality and expensive jade, when they actually were made of quartz or glass. He then refused to provide refunds or acknowledge that the pieces were fake”. This represents a reckless misrepresentation of the facts and outrageous lies. At the time of this release to media, Attorney General knew that GIA lab findings did not confirm the findings of natural quartz species by AGTA. AG did not have any material proof that any rosary mala or any other jade items sold to sole complainant, Janet Spiridonakos were made of glass. Nevertheless, AG stated with certitude that the items sold by Veleanu on the Internet “were actually made of quartz or glass”. See Exhibit 17 p 1.
The following malicious and outrageous lies of AG consisted in his reckless statement that “Veleanu refused to provide refunds or acknowledge that the pieces were fake”. The evidence shown by defendant in pleadings, email communications submitted by AG’s office itself, shows without any ambiguity that Veleanu offered Spiridonakos a refund in accordance with the conditions of sale of the contract. See Exhibit 1, p1 and p.2. In a scheme to defraud and extort Veleanu, Spiridonakos refused the offer for refund according to the contract of sale and as such, she is guilty of breach of contract in addition to the crimes of fraud, perjury, extortion, forgery that she committed. The claim that Veleanu refused to acknowledge “that the pieces were fake” is diabolic and outrageous. This type of claim is typical of
Stalinist methods of coercion in which a person has to acknowledge of guilt when is innocent. As an award, the Soviet prosecutor would ask the judge as a plea bargain, the ease of sentence of execution by firing squad instead of hanging. Attorney General Andrew Cuomo himself made the following defamatory statement: “This individual preyed on collectors of expensive antiques and artifacts and did not deliver on its promises” said Attorney General Cuomo. “Our suit seeks to shut down this fraudulent operation and get money to those who are affected”. See Exhibit 17 p 1. At the time of this
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release to media, Andrew Cuomo knew that was only a single complainant and there were no other customers to claim misrepresentation. Nevertheless, his statement makes the impression that numerous customers were “affected“. Another false, outrageous and malicious statement in this release is that Veleanu “sold 2 strings of jade Tibetan prayer beads (malas) to a consumer, one of which he falsely claimed was made of fei tsui jade, an extremely valuable and high quality of jade”. The falsity of such statement was amply elaborated and such falsity of the publication was essential to render the publication a libel as any publication injurious to the reputation of another, injure a person in his occupation or business, or expose him to public hatred, contempt, ridicule or disgrace. The evil intention and recklessness in disregard to the truth characterizes Attorney General intention to destroy the reputation and defame the character of defendant, accusing him of crimes that he did not commit. The undersigned’s pleadings consisting in the answer to the petition, based on incontrovertible evidence showed clearly that fei tsui is not an “extremely valuable and high grade” jadeite known as “imperial jade”, as claimed by AG, rather common grade carving jadeite and not a superlative type of jadeite prone to be used solely in jewelry. At the time of the release to media, that actually was 2 months after Veleanu presented the objective evidence in the pleadings that fei tsui was not “imperial jade”, fraudulently and maliciously, AG still persisted in claiming that fei tsui represents a superior type of jadeite. This represents a willing misrepresentation with full knowledge of its falsity. The releases to media were not only malicious misrepresentations of the truth intended to damage the immaculate moral character and professional reputation of Veleanu, but purposely made to demonize, condemn and vilify the respondent with clear intention to represent him as a dishonest person and despicable villain in order to solicit former customers of Veleanu to request refunds and as a reward and incentive, offer them retroactive interest at 10 times more than the commercial interest, starting years back to the date of purchase. As a result of the Attorney General release to media, the local newspaper Poughkeepsie Journal, published on October 15 a libelous, misrepresenting, malicious and deceiving article based on Attorney General deceit and false allegations. See Exhibit 18. The article states that the Attorney General office in Poughkeepsie started the suit on that day (10/15/2009), when in reality the suit started on August 7, 2009. This misrepresentation was apparently made to appear that the release was not in
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the middle of proceedings and as such would not impact on the impartiality of the court. The most outrageous statement in this article is the false and deceiving statement attributed to Andrew Cuomo, at that time being Attorney General of New York State: “one customer paid $13,983 for Tibetan prayer beads Veleanu claimed were made of rare, antique jade. An examination of the beads indicated they were made of glass, Cuomo said”. First of all, no “Tibetan prayer beads” that were sold by Veleanu, ever were alleged to be made of glass, rather 2 calligraphy brushes that were sold to single complainant Spiridonakos, returned, refunded and never proved to be misrepresented other than in the questionable state of mind of the complainant. The false libelous publication was done by the Attorney General with full knowledge of its falsity and done deliberately with intention to harm the undersigned financially and psychologically. Nonetheless, the malicious publication had a secondary collateral into hope that fraudulent solicitation of former customers frightened by the false accusations of the highest law enforcement person in New York State, would request refunds with the incentive of being awarded retroactive interest of 9 % years back to the date of purchase. This is a typical example of the “fishing expedition” used by Attorney General when facing lack of evidence. The article repeats the absurd statement that the jade artifacts should be “authenticated” by AGTA, a defunct company for several months: “The lawsuit seeks to permanently bar Veleanu from selling any jade artifacts unless they can be verified as authentic by the American Gemological Trade Association (AGTA). Cuomo said “the artifacts sold by Veleanu that are part of the lawsuit were found to be fraudulent following examination by the AGTA”. This statement makes the fraudulent and false impression that the artifacts as being “part of the lawsuit” are not the only lawsuit allegations, but there are some other allegations not yet disclosed. See Exhibit 18.
According to common law, prosecutor’s function of investigation or administrative role outside of the court proceedings does not qualify him of absolute immunity. Even qualified immunity is not granted to government officers when they knowingly and willingly broke the laws. “Qualified immunity which shields government’s officers from liability for civil damages insofar as their conduct does not clearly violate statutory or constitutional rights”. See Harlow v Fitzgerald 457 US 800, 818, 102 SCt 2723, 73 LEd 2d, 396, (1982). In Hartman v Moore, 547 US 250, 126 SCT,
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1965, 164 LEd 2d 441 (2006), the court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in Hartman concerned the elements a plaintiff must plead and prove in order to win.
The second release to media by Attorney General Andrew Cuomo was again consisting in malicious misrepresentation of the truth and outrageous lies identical to the lies alleged in the first release. This release to media was dated November 10, 2009, that was 4 days prior the decree of judgment of Judge Dolan and irrefutable proof of ex parte communication and acquiring knowledge of the decree prior proclamation, fact that is illegal and unethical for a lawyer, by itself. Andrew Cuomo again libeled Veleanu: “He called himself an antique dealer but he really dealt in lies and deceit” said Attorney General Cuomo“. Any business that misrepresents products that it sells will
be held accountable”. Attorney General did not have any evidentiary or factual grounds to make such outrageous, sensational and defamatory declarations that Veleanu dealt in lies and deceit. Attorney General Andrew Cuomo continued with the same lies and deceiving false and malicious statement that Veleanu sold artifacts online claiming that they contained “high quality and expensive jade, when they actually were made of quartz or glass. He then refused to provide refunds or acknowledge that the pieces were fake”. As these false, malicious misrepresentation of facts were already rebutted by objective plausible evidence, there is no reason to refute again the false allegations that were pure libel. Attorney General deceived the public again in his release to media stating that Veleanu can’t sell jade items unless it (sic) has first been tested and confirmed as legitimate by the AGTA, or a lab of equal reputation. At the time of these 2 releases to media, AGTA, a “fly-by-night” company, was out of business for more than 3 and respectively 4 months out of business. By willingly and knowingly recommending to have an authentication done by a company that was several months out of business is not only ridiculous and tragic-comical, but is misleading and deceiving the public that reads such inflammatory releases to media. Attorney General Andrew Cuomo made these false declaration to media with the clear intention to solicit and recruit more former customers to request refunds. Even up until the last comunication with the court, one year later, in August 2010, prosecutor AAG Garin, persisted to claim that the rosaries mala were made of quartz, when such evidence provided by defunct AGTA was rebutted by GIA gemological reports. The affirmation of prosecutor Garin in opposition to the motion to reargument/renew of
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defendant dated August 10, 2010, falsely misrepresented to the court that GIA testing confirmed the finding of quartz of AGTA. This statement is as follows: “ GIA tested them and confirmed the findings by AGTA- all seven strands of beads were made of quartz and the green malas infused with dye”. See Record on Appeal A426. This repetitions of outrageous lies and distortion of the evidence is characterizing the prosecutor’s fraudulent action of deceiving the court and such behavior is incompatible with an officer of the court that had sworn the oath of office. Attorney General and his staff violated the canons of judicial conduct and specifically in this instance: NY DR 7-107 (A) regarding the trial publicity: “A lawyer participating in or associated with a criminal or civil matter shall not make an extra-judicial statement if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an
adjudicative proceeding”. Attorney General and his office subordinates, violated NY ethical professional conduct NY EC 7-33: “The release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal”. In addition, in the 2 releases to media, Attorney General violated Article 21, CPLR R2103-A Confidentiality of addresses in civil procedings.
53. Attorney General in his investigative role violated the court order imposing a gag on releases to media regarding the TRO.
On the release to media of October 15, 2009, Attorney General violated the court imposed gag on media regarding information pertinent to TRO.
The following sentence is significant and proving that AG violated the court
order on gag: “The Attorney General lawsuit seeks to permanently bar Veleanu from advertising and selling jade items unless it (sic) has first tested and confirmed as legitimate by the American Gemological Trade Association Testing Center or a lab of equal reputation”. See Exhibit 17. This statement very clearly refers to TRO, as it signifies that AG intends to obtain from a temporary relief order, a permanent injunction.
54. AAG Garin made the following outrageous statement in his Alternative Proposed Statement in Lieu of Stenographic Transcript: “Dr. Veleanu asked Judge Brands to issue a gag order to prevent the Attorney General from
publicizing the case until it was over. He said his reputation would suffer otherwise. I said that it should not be assumed that the Attorney General would issue any statement about the case that was untrue and that Mr. Veleanu’s reputation should only be protected from untrue statements.
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Judge Brands said that he agreed the public might misinterpret granting a temporary restraining order as the Court making a finding of fraud which could damage Dr. Veleanu’s reputation unnecessarily at this point in the proceeding. He said that he would allow the Attorney General to publish the filing of the lawsuit , but that he would not allow the Attorney General to mention in any such press release that the Court had granted a temporary restraining order”.
See pages 5, 6 of Exhibit 12.
The above statement of AAG Garin is outrageously perverse and perfidious in the fact that AG in his release to the media made extremely inflammatory, false, libelous and completely misrepresenting the truth. To any reader that is not knowledgeable about the case, Veleanu appeared as an evil person defrauding the customers. This statement is characteristic for the reckless and callous acts of disregard of other persons civil and constitutional rights and acts of outrageous lies like: “Dr. Veleanu shoud not be concerned about his reputation regarding untrue statements from Attorney General“, when the reality shows the opposite of his statements“.
55. Prosecutor AAG Garin committed professional misconduct by coercion and threatening a judge and forcing him to deny defendant’s pleadings.
In his Reply Affirmation to Veleanu’s answer to Petition, dated 10/2/2009 paragraph 4 AAG Garin stated”: “Respondent has submitted a lengthy unsworn response in a futile attempt to discredit the State’s case. This court should disregard it because it is not in admissible form. If the court considers it, it should be readily apparent that the State is entitled to summary judgment because the response is largely irrelevant and utterly fails to raise a triable issue of fact. Respondent has mislabeled his response as a motion to dismiss since he has not raised an objection in point of law under CPLR 404 (a). Should the court treat the response as a motion to dismiss, the Court should exercise its discretion and deny respondent leave to answer. See People v Wilco Energy Corp., 284 AD 2d 469 (2d Dept 2001) and State by Abrams v Spodek, 89 AD 2d 835 (1st Dept 1982). See
also Record on Appeal A 286-A287.
Respondent Veleanu submitted to the Court the Reply to AAG Garin Affirmation on 10/09/2009, in which additional exculpatory evidence was offered and AAG Garin allegations were rebutted as conclusory, irrelevant and misrepresenting the truth. Defendant’s pleadings were in the form of declaration under penalty of perjury according to CPLR 105 (u) and legally
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conforming. AG demand to disregard the pleadings “because it is not in admissible form” was illegal, fraudulently misrepresenting the NY State CPLR statutes. CPLR 105 (u) provides that declaration under penalty of perjury could be used in any court and for any judicial proceedings. AAG Garin knew or should have known as an attorney admitted to NY Bar about CPLR rules he is supposed to enforce and prosecute. In either of the above situations (not accepting the pleadings and motions to dismiss), his action represents legal fraud and Fraud Upon the Court. His statement is also an invitation to the judge to participate in a scheme of conspiracy to violate respondent’s civil and constitutional rights of due process. The second statement of AAG Garin represents a clear threat to judge Thomas Dolan: “if the court considers it, it should be readily apparent that the State is entitled to summary judgment”. AAG Garin is not the State of New York, but acted under the color of the State law. If he acted illegally and fraudulently, not the State acted illegally and fraudulently, rather himself. Arrogantly, he demanded from the judge that the State is entitled to summary judgment because in a dictatorial way he demands it. He claims the entitlement of summary judgment “because the response is irrelevant and utterly fails to raise a triable issue of fact”. AAG offers empty misleading statements without backing up the empty words with plausible evidence rebutting Veleanu’s incontrovertible scientific evidence submitted in the pleadings. AAG Garin did not provide even a single scientific documentary evidence to rebut the copious documentary evidence submitted by Veleanu consisting in textbooks, scientific articles, etc.
56. The undersigned attaches as Exhibit 19, a few articles that are exculpatory, easy to understand by any reasonable person with limited scientific knowledge, that is fair and unbiased toward another person, and this includes any fact finder. Some of these articles were previously submitted to the court in defendant‘s pleadings or reargument/renew. The first article entitled “Genesis of jadeite by low grade metamorphism” by W. P. de Roever, scientifically demonstrates the genesis of jadeite and closely associated quartz from jadeite rich pyroxene in quartzite of the Solimeroe and Koesek river, Celebes during local grade metamorphism. This article was presented as Exhibit 6, page 1 of respondent answer to petition, also Record A256 and is now presented in Exhibit 19, p1.
The second scientific article : Petrology, geochemistry and isotope data on a ultra-high-pressure jadeite quartzite from Shuanghe, Dabie Mountains, East
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Central China” by J. G. Liou et al from Department of Geological and Environmental Sciences, Stanford University, Stanford, California. This article reveals the metamorphic process and evolution, resulting from ultra-high-pressure generated by the continental collision and as a result, the formation of jadeite-quartzite. This article was presented as Exhibit 6, page 2 of the answer to the petition and is now presented in Exhibit 19 p2. Another documentary evidence is the article: “Finding of jadeite from the Sanbagawa and Kamuikotan Metamorphic Belts, Japan” by Yotaro Seki and Fumiko Shido. The authors presented the finding of jadeite in association with quartz, in the metamorphic belts of Sanbagawa and Kamuikotan of Japan. See Exhibit 19, p.3
The next article is: “Quartz-bearing jadeite from the Nagasaki Metamorphic Rocks, Nishisonogi peninsula, western Kyiushu, Japan” by Miki Shigeno and Yasushi Mori. See Exhibit 19, p.4. In this article, the authors reported the finding of quartz bearing jadeitite in the metamorphic rocks in Kyushu, Japan. This finding supports the genesis of jadeite from albite decomposition in jadeite and quartz under ultra-high-pressure and relative low temperature in the Cretacic period. The next documentary evidence is the definition of jadeite and its origin from albite with formation of jadeite plus quartz, in Wikipedia encyclopedia. See Exhibit 19 p5. Next article is entitled: “Microfabric characteristic and rheological significance of ultra-high-pressure metamorphosed jadeite-quartzite and eclogite fom Shuanghe, Dabie Mountains, China” by L. Wang and al. See Exhibit 19 p6. The article demonstrate the presence and genesis of jadeite-quartzite in the deep continental subduction in the primordial ocean. Another article entitled: “Reaction micro textures in jadeitites from the Nishisonogi metamorphic rocks, Kyushu, Japan” by Shigeno Miki and al., demonstrate the presence of jadeite and associated quartz as formation from albite. See Exhibit 19 p7 More significant are excerpts from the monograph” Jade” by George Harlow, Virginia Sisson of American Museum of Natural History, NYC and Sorena Sorensen of Smithsonian Institute. The excerpts demonstrate the presence of quartzite and quartz in jadeite found in different parts of the globe. A photo-micrograph of quartz bearing jadeitite and quartzite shows very clearly the intermingling of jadeite with quartz and quartzite and the futility and inaccuracy to perform gemological testing in a rock that has interspersed multiple mineral composition. See Exhibit 19 p8-9-10. These scientific articles are easy to understand by any literate person.
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57. AAG Garin made another false representation consisting in the statement: “Respondent has mislabeled his response as a motion to dismiss since he has not raised an objection in point of law under CPLR 404 (a)”. This is an outrageous misleading and misrepresentation of the truth. Respondent Veleanu indeed raised an objection in point of law under CPLR 404 (a) and set it forth in the answer to petition and also by motion to dismiss the charges.
58. The next statement of AAG Garin is again demanding and threatening judge Thomas Dolan : “Should the court treat the response as a motion to dismiss, the court should exercise its discretion and deny respondent leave to answer”. This is an illegal threat and demand to a judge of the Supreme Court to yield to the request of the prosecutor to violate defendant’s right to defend when facing false allegation. Also, pressure to the judge of the Supreme Court of NY State to participate in the conspiracy to violate the due process and constitutional rights of the respondent under 14th amendment of the US Constitution. The request to deny the leave to answer is anti-constitutional and typical for dictatorial Nazi fascist regime of the Third Reich and Stalinist oppressive Soviet regime that the defendant suffered in his youth and incompatible with a democratic society if Attorney General Andrew Cuomo of New York State believes USA as being a democratic country.
To the disgrace of a judicial system supposed to be unbiased, judge Dolan complied with Attorney General illegal and unconscionable request.
59. Prosecutor Nick Garin under his investigative functions committed obstruction of justice by violation of Title 18 Section 1503 of USC that is pertinent to obstruction of justice aimed at judicial officers, grand and petit jurors and witnesses. AG also committed obstruction of justice and violation of Title 18, Part 1, Chapter 73, Section 1505. AG committed obstruction of justice by violation of Federal law Title 18, Part 1 Chapter 73, Section 1509.
Section 1503 violated by AG contains the omnibus clause which
states that the person who corruptly or by threats of force, or by threatening letter or communication, influences, obstructs or impedes, or endeavors to influence, obstruct or impede the “due administration of justice” is guilty of obstruction of justice. This clause offers broad protection to the “due administration of justice”. The proof of violation of Section 1503 consists in the fact that there was a pending judicial proceeding, the violator of the clause knew of the proceeding, and the violator had corrupt intent to
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interfere with the proceeding. The omnibus clause also involves the criminal acts of concealment, alteration or destruction of documents by AG already presented and presented in the present motion. Actual obstruction of justice is not needed as an element of proof to support the allegation. The prosecutor endeavors to obstruct justice is sufficient. The courts consistently held that “endeavor” constitutes a lesser threshold of purposeful activity
than a criminal “attempt”. See Roush Corey and Rishi Varma “Obstruction of justice” American Criminal Law Review 33 (Spring). Also, West’s Encyclopedia of American Law, Edition 2. 2008. The Gale Group, Inc. Former Attorney General John N. Mitchell was convicted for obstruction of justice and criminal statute USCA See Sections 1501-1517.
AG also violated Federal statute Title 18, Part 1, Section 1509: “Whoever , threats or force, willfully obstructs, impedes or interfere with, or willfully attempts to prevent, obstructs, impedes or interferes with the due exercise of right of the performance of duties under any order, judgment or decree of a court of United States, shall be fined under this title or imprisoned for more than one year or both. No injunctive or other civil relief against the conduct made criminal by this section shall be deemed on the ground that such conduct is a crime”.
The Title 18, Part 1, Chapter 73, Section 1505 states: “Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part with any civil investigation deemed duly and properly made under the Antitrust and Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroy, mutilates, alters, or by other means falsifies documentary material, answer to written interrogatories, or oral testimony, which is the subject of such demand, or attempts to do so, or subjects another to do so , whoever corruptly or by threats of force, or by any other threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct or impede the due and proper administration of law under which any pending proceedings is being had
before any department or agency of the United States, or the due and proper exercise of the power of inquiry under what any inquiry or investigation…”.
The facts speak for themselves; AAG Garin withheld and concealed exculpatory information, mutilated, altered and falsified documentary evidence by obstructing the view of exculpatory text by interposing a photo over the text in 2 occasions, so his investigative acts represent a deliberate attempt, not a mistake in copying or printing of documents.
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60. The prosecutor AAG Garin in his investigative or administrative acts committed misfeasance in the office and abuse of power of his authority.
Misfeasance is an action in tort with intentional infliction of emotional distress having the following elements:
1. The prosecutor acted intentionally to cause the distress of the defendant.
2. Prosecutor’s conduct was extreme and outrageous.
3. Prosecutor’s acts constitute the cause of distress.
4. Respondent suffered severe emotional distress as a result of prosecutor’s conduct. See Star v Rabello 97 Nev. 124, 125, P 2d 90, 92 (1981). “Liability for emotional distress does not extend to mere insults, threats, annoyance, petty oppression or other trivialities”. See Burns v Mayer 175 F Supp 2d 1259, 1268 (D Nev 2001); quoting Candelore v Clark County Sanitation Dist. 752 F Supp 956 , 962 (D Nev. 1990). Intentional infliction of emotional distress is found in extreme and outrageous circumstances, as in the present legal case, where the action of the prosecutor goes beyond all possible bounds of decency, is atrocious and utterly intolerable. See Alam v Reno Hilton Corp. 819 F Supp 905, 911 (D Nev. 1993). The present legal case represents a reckless disregard to the standards of civilized decency, utterly intolerable and constitutes a tort of outrage. NY judicial requirement that the element of the complaint has taken place in the publicity or publication is met. Second requirement is that the conduct was extreme and outrageous and there was a pattern of repeat conduct rather than an isolated incident. The third element demonstrates that the prosecutor was in position of power, the respondent was vulnerable and prosecutor knew it, subsequently, the defendant was severely affected. The legal abuse and misfeasance in the office consisted in vexatious litigation brought in bad faith with reckless disregard of merit, solely to harass an innocent person highly honored in the community. Respondent never used the term “doctor” in selling any item of his Internet store or his published books. Intentionally and maliciously, prosecutor AG used the term “doctor” in his releases to media with obvious purpose to attract sensationalism and obvious purpose to inflict damage to personal moral character, professional reputation as an internationally known scholar of oriental arts and cause irreparable damage to the outstanding position of the respondent in the community. AG’s intention was to destroy the defendant physically, emotionally and financially, creating shame, disgrace and reputation damage to a respected researcher nationally and internationally known for his scholar’s contribution to the advancement of oriental arts. The undersigned
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practiced medicine for more than 20 years in Hudson Valley and is a Life Fellow of American College of Surgeons and Life Fellow of American College of Ob-Gyn. The urge to retain legal services by the officers of the SCDC was done in bad faith and evil intention to cause enormous financial drain of limited resources of a retired person, to defend a cause that was lost from the onset due to the extreme bias of the court of justice. Constitutional rights of due process of law were blatantly violated and the prosecution was absolutely sure that the legal defense would be dismissed by abuse of discretionary power of the court.
61. Substantial violations of the Code of Professional Conduct and violations of NY State laws were committed by four judicial officers of the Supreme Court of Dutchess County acting as judges of the Supreme Court.
The following are some forms of judicial misconduct applicable to present legal case and committed by the four judges of SCDC fore mentioned:
1. Exceeding jurisdiction.
2. Due process violations.
3. Abuse of discretion.
4. Fraud upon the Court.
5. Bias toward one party and favor the AG as the most powerful party.
6. Conspiracy to suppress evidence.
7. Incompetence.
8. Dereliction of duty.
9. Conduct unbecoming of an officer of the court and judge.
The professional misconduct not only that was tolerated and accepted, but the misfeasance in the office of the prosecutor would not succeed without the cooperation and backing of misconduct by the involved judges. Judges are obligated to report to the appropriate disciplinary committee, an attorney who either altered a legal document, fabricated evidence, concealed evidence, knowingly submitted false evidence (subornation of perjury, committed perjury, knowingly submitted forged and mislabeled evidence, etc). It is the responsibility of a judge to report an attorney to the disciplinary committee when the attorney engaged in a deliberate deceptive act intended to perpetrate fraud and deceive a party. Nobody is above the law including the president of US that could be impeached by perjury as 2 presidents in the past 30 years, of course, with cooperation of the votes of the House of Representative and Senate. AG violated several NY State codes and rules as follows:
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1.The NY State rules governing the judicial conduct require that a judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Code of Professional Responsibility shall
take appropriate action. Violation of 22 NYCRR 100.3 (D) (2) 2. A judge must avoid impropriety and the appearance of impropriety and must disqualify himself in any proceedings where the judge’s impartiality might reasonably be questioned. Violation of 22 NYCRR 100.3. (E) (1) .
3. Substantial misconduct rose to such an egregious level that the conduct implicates the attorney’s honesty, trustworthiness or fitness as a lawyer when a judge is accused of being biased and pro-prosecutorial. A judge must avoid impropriety and the appearance of the impropriety in all judge’s activities. Violation of 22 NYCRR 100.2.
4. A judge must act all the time in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Violation of 22 NYCRR 100.2 (A).
5. A judge should disqualify himself in a proceeding in which the impartiality might reasonably be questioned. Violation of 22 NYCRR 100.3 (e) (1).
6. A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware. Violation of 22 NYCRR 100.3 (3).
7. A judge who receives information indicating a substantial likelihood that another lawyer has committed a substantial violation of the Professional Conduct Rules shall take appropriate action. Violation of 22 NYCRR 100.3 (D) (1).
8. LACK OF IMPARTIALITY. A judge who believes that an attorney has attempted to unduly influence the judge’s decisions and has acted extremely unprofessional should report the matter to the appropriate Attorney Grievance Committee and upon making such report, recuse in all cases in which the attorney appears. Violation of 22 NYCRR 100.3 (D) (2).
All the above NY State Codes and Rules were violated by the 4 judges involved in the present legal case. The violations of the Professional Conduct in the judicial proceedings of this case in the SCDC substantially affected the due process of law of respondent granted by the 14th amendment of US Constitution and Bill of Rights of NY State statute.
62. AAG Nick Garin committed several violations of NY State laws and statutes and engaged in egregious, unprofessional conduct while performing investigative or administrative functions.
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1.Prosecutor AAG Garin initiated and continued a legal action in the absence of probable cause of action that consisted of such facts and circumstances that would lead a reasonable prudent person in like circumstances to believe respondent is not guilty. See Colon 468 NY 2d 453, 455 at 82. Failure to make further inquiry and perform due diligent care, when a reasonable person in such capacity would have done so, may evidence a lack of probable cause, as well. The prima facie of the prosecutor to prove his allegations of statutory fraud consisted in gemological testing that is not appropriate to perform in non-jewelry grade jadeite. A reasonable and prudent prosecutor would question why such testing was never done or attempted for authentication of ornamental jadeite art carving. If such testing would be relevant to be performed in all ornamental jadeite carving for authentication, it would be reasonable and elementary to question why the performance of such testing did not become the standard to be followed by all jade merchants. Imposing to perform such testing under the law is
irrational, idiotic, senseless and unprofessional as a punitive action not substantiated by the standard of professional and ethical norms. THE ORNAMENTAL ART JADEITE CARVINGS, IN CONTRAST TO JEWELRY GRADE JADEITE, ARE NOT CONSTITUTED BY A SINGLE MINERAL THAT COULD BE IDENTIFIED BY GEMOLOGICAL EXAMINATION; RATHER THE PRESENCE OF MULTIPLE MINERALS IN THE COMPOSITION OF THE JADEITE ROCK COULD YIELD TO DIFFERENT GEMOLOGICAL FINDINGS.; THUS, GEMOLOGICAL EXAMINATION WAS NEVER DONE BY ANY MERCHANT OF ORNAMENTAL JADE ART CARVINGS IN THE JADEITE THAT IS NOT OF JEWELRY GRADE.
2. Representation of false evidence as bona fide evidence and concealing exculpatory evidence denotes acting in bad faith which if proved would overcome the presumption of probable cause. Reckless and grossly negligent disregard to the respondent’s civil and constitutional rights manifested in the egregious deviation from proper investigation procedures; (See Hernandez v State of NY 228 AD 2d, 902, 904, 644 NYS 2d 380); or by initiation of prosecution notwithstanding the total absence of probable cause. See Martin v City of Albany 42 NY 2d, 13, 17, 396, NY 2d 612. Actual malice is inferred from facts and circumstances of the investigative prosecution’s misstatements of evidence, ignoring exculpatory evidence amounting to falsity in declarations under the penalty of perjury. AG’s violations appear also when the prosecutor willingly failed to correct the
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results of false evidence when brought to his attention. See People v Novoa 70 NY 2d 490, 498. Prosecutor’s obligation to correct testimonial misstatements of a witness invokes fair trial guarantee violations. New York v Feldman 210 F 2d 294, 301, 303 (2002), People v Mid Hudson Medical Group PC 877 F Supp 143 SD NY 91995); State v Solil Management Group 128 Misc 2d 767, 491 NYS 2d 243 (Sup Ct NY Co), 114 AD 2d 1057, 495, NYS 2d 161 (1st Dept 1985).
63. AG can’t request and recover punitive damages under Law 63 (12). See State v Hotel Waldorf Astoria Corp 67 Misc 2d 90, 323 NYS 2d 917 (SC NY Co 1971).
In the present case, Attorney General requested the court to grant punitive actions that are not prescribed under NY S Law 63 (12) and General Business Law 22A or any statute or codes of regulations.
Attorney General requested from the court penalties under GBL 350 (d) illegally as AG did not state a cause of action under GBL 350 and as such
the penalties granted by the NY State Supreme Court, Dutchess County were illegally granted due to failure of the plaintiff Attorney General to state a cognizable cause of action and represent FRAUD UPON THE COURT.
4. AAG Garin willingly, knowingly and repeatedly violated defendant Veleanu’s due process rights granted under 14th amendment of USC.
5. AAG Garin engaged in egregious acts of prosecutorial misconduct by submitting false and perjured evidence, making inflammatory and false statements to the media, and as such, negatively affected the active legal proceedings of the court.
6. AAG Garin violated the gag order of judge Brands by releasing to the media inflammatory statements of obtaining a permanent injunction implying that at that time there was a temporary restraining order.
7. AAG Garin recklessly and deliberately concealed exculpatory evidence by interposing a photograph blocking the view of exculpatory text in 2 occasions in his petition’s documentary evidence. This willful falsification of evidence represents forgery and concealment of evidence and as such is a criminal act punishable by imprisonment and fines and FRAUD UPON THE COURT.
8. AAG Garin solicited the help and conspired to defame and libel Veleanu by contacting a citizen of communist People’s Republic of China, to spread false information about defendant and solicit former customers to ask for refunds in order to financially injure the defendant.
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9. AAG Garin used abuse of process and malicious prosecution tactics with intention to inflict emotional distress, destroy the defendant financially by demanding the court of illegal punitive fines of 9 % retroactive to the date of purchase of customers who even did not claim misrepresentation, but were lured by AAG Garin with promise of outrageous illegal interest in money since the date of purchase in order to convince them to request refunds. Subsequently, the prosecutor inflicted irreparable damages upon the defendant.
10. In prosecutorial misconduct, AAG Garin conspired with complainant
Janet Spiridonakos to violate defendant’s constitutional rights by aiding and procuring Spiridonakos with documentary evidence and providing her with intimate legal documents used to prosecute respondent Veleanu.
11. (a). AAG Garin aided, supported and covered up illegal acts committed by Spiridonakos in defrauding and extorting Veleanu by criminally committing perjury, extortion and blackmail of respondent Veleanu in order to obtain illegal and fraudulent restitution and enormous retroactive interest
of 9 % years back to the date of purchase of jade items.
11. (b). AAG Garin solicited, aided, encouraged, supported and covered up criminal acts of Diana Norton who under pretense of return, stole Veleanu’s property, substituting precious jade property with a valueless fake item. In addition, Diana Norton committed perjury under oath in her deposition
regarding to the item she stole and fraudulently replaced with a fake.
12. AAG Garin failed to exercise due diligent care when was notified by Veleanu of AGTA company’s wrongdoings of forgery and failed to investigate the circumstances of forgery prior AGTA going out of business. AAG Garin failed to exercise due diligence of prosecutorial duty to investigate the alleged extortion and conspiracy to defraud Veleanu by complainant Spiridonakos aided by jeweler Tim McClellan.
AAG Garin failed to exercise due diligent care in investigation of criminal acts of theft of property, criminal substitution of valueless item for the stolen property in order to conceal the theft, fraud and perjury committed by Diana Norton. A recent case of prosecutorial misconduct case similar to present case was 2006 Duke University Lacrosse team legal case. The action of prosecutor in that case, Michael Nifong, consisted in starting and continuing a legal action despite numerous inconsistencies in the story, concealing exculpatory evidence and reckless disregard to solid alibis of 2 members of the team. Like in the present case, the prosecutor made numerous inflammatory statements to the media. North Carolina disbarred
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Nifong for his action in that case. Prosecutorial misconduct of prosecutor Michael Nifong similar to present case, consisted in withholding exculpatory evidence, knowingly permitted false testimony of the single complainant and inflammatory releases to media.
64. Attorney General and four judges of the SCDC violated numerous New York States disciplinary and ethical rules of professional conduct, some of them enumerated below:
1. NY DR 7-102 (A) (1) prohibits a lawyer from any litigation that would
merely serve to harass or maliciously injure another person.
2. NY DR 7-102 (A) (2) prohibits a lawyer from knowingly advancing a claim or defense that is unwarranted under existing law unless it can be supported by good faith argument for an extension, modification or reversal of existing law.
3. Filing lawsuit after expiration of statute of limitation under NY DR 7-102 (A) (2) and DR 2-109 (A) (2). A lawyer may file a lawsuit after the expiration of statute of limitation only for a defense and not an element of the plaintiff cause of action. The statutory fraud is only 3 years, AG however, supported the refund claim of Misuk Archer that was beyond the statute of limitations. In the present case, AAG continued to pursue a suit that was abandoned due to failure to enter and docket within 60 days and started a new action without serving the defendant in violation of CPLR R3216 Want of prosecution. CPLR 3404-Dismissal of abandoned cases as well. Judge Pagones that was assigned to this legal case did not institute any hearings, conference calls or calendar calls and violated defendant’s due process rights for a fair trial.
4. Lawyer’s obligation to avoid frivolous litigation. A lawyer has a professional obligation to the client, the court and his adversaries to ensure that actions commenced and continued are not frivolous or meritless. DR 7-102 (A) (1) defines wrongful litigation as that which is merely to harass or maliciously injure another. It applies not only to situations where the lawyer engages knowingly in the prohibited conduct, but also to situations where it is obvious that the suit is malicious and harassing. Ample documentation was provided in the section of malicious prosecution/abuse of process done by Attorney General.
5. A lawyer violates DR 7-102 (A) (1) by seking grossly excessive punitive damages. In the present case, AAG Garin requested and obtained grossly excessive punitive fines for merely punishing defendant’s motion to
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reargument/renew. These punitive damages were illegally assessed by judge James Pagones in absence of any statute or law that would entitle him to assess such enormous and outrageous retroactive interest of 9 % to the date of the purchase, even for former customers acting under solicitations of AAG Garin, who did not claim misrepresentation, but merely requested a plain refund. This action is clearly a FRAUD UPON THE COURT.
6. NY DR 7-102 (A) (4) provides that a lawyer shall not knowingly use perjured testimony or false evidence.
7. NY DR 7-102 (A) (5) prohibits a lawyer from knowingly making false statements of law or fact to anyone, a court, an opposing party, another lawyer, a witness or a client.
8.AAG Garin violated NY EC 7-26: the Law and Disciplinary Rules
prohibit the use of fraudulent, false, or perjured testimony. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline.
9. AAG Garin violated NY DR 7-102(B) that provides that a lawyer who receives information clearly establishing that the client has perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same.
10. AAG Garin violated NY DR 7-102 (A) (3) which prohibits a lawyer from concealing or knowingly failing to disclose what the lawyer is required by law to reveal.
11. AAG Garin violated DR 4-101 (B) which requires withdrawal of a representation by the lawyer which the lawyer discovers is based on false information or is used to further a crime or fraud.
12. NY DR 7-102 (A) (7) prohibits a lawyer to counsel or assist a client in conduct that the lawyer knows to be illegal or fraudulent. It provides prohibition of preparing or filing documents or other papers that facilitate a client fraudulent scheme; in present case, AAG Garin assisted in filing Spiridonakos perjured affidavit, facilitating Spiridonakos extortion and defrauding the defendant. AG legal action represent the felony of subornation of perjury as the act was done with full knowledge of the falsity of the information provided in the document and is clear proof of FRAUD UPON THE COURT.
13. AAG Garin violated NY EC7-26: “A lawyer who knowingly participates in introduction of fraudulent , false or perjured testimony or evidence is subject to discipline.
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14. AAG Garin violated NY DR 7-102 (A) (4) that provides that a lawyer should not knowingly use perjured testimony or false evidence.
15. AAG Garin violated NY EC 7-26 that prohibits the use of fraudulent, false or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline.
16. AAG Garin violated NY DR 7-102 (B) (2) that provides that an attorney is obligated to report fraud on a tribunal, disclosure of fraud required when the lawyer has knowledge or he reasonably knows to be a fact which would clearly establish the existence of fraud.
17. AAG Garin violated NY DR 7-102 (A) (6) that provides that a lawyer shall not participate in the creation or preservation of evidence when the lawyer knows or is obvious that the evidence is false.
18. AAG Garin violated NY DR 7-109 (A) that prohibits lawyers from illegally suppressing evidence which they are obligated to reveal.
19. AAG Garin violated NY EC 7-27 that a lawyer should not suppress evidence that the lawyer has a legal obligation to produce because it interfere with the proper administration of justice.
20. AAG Garin violated NY EC 7-33 that provides that the goal of the judicial system is that each party should be adjudicated by an impartial tribunal. The release of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal.
21. AAG Garin violated NY DR 7-110 (B) that bans ex parte communication with the judge. In the present case, AAG Garin failed to serve defendant with the petition and as such violated the due process cause of the defendant. The 2 judges who decreed judgments against defendant Veleanu, knowingly violated DR 7-110 (B) by decreeing orders and judgment in the absence of service to the defendant.
65. The officers of the Court including Attorney General office representative Nicholas G. Garin AKA Nick Garin, judge James Brands, judge Thomas Dolan, judge James Pagones and judge Peter Forman conspired to suppress, oppress and subsequently injure defendant Mircea Veleanu.
United States Constitution provisions under the Federal Law Title 18 Section 20 were flagrantly violated by the actions of the Assistant Attorney General Nick Garin who conspired with the following four judges of the Supreme Court of New York, Dutchess County: James Brands, Thomas Dolan, James Pagones and Peter Forman. The conspiracy consisted in
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oppression and suppression of the right and privilege to defend in the court of justice when facing false charges based on accusations of a sole complainant who committed perjury in her witness affidavit, and as such she impeached her testimony.
Title 18, Section 19 of federal statute provides that: “making a crime to conspire, to injure or oppress any citizen in the face of exercise of any right or privilege secured to him by Constitution.
66. The officers of the Supreme Court of New York, Dutchess County constituting of Assistant Attorney General Nick Garin, judge James
Brands,judge Thomas Dolan, judge James Pagones and judge Peter Forman violated US Constitution Title 18, Section 20, as well as USC Title 18, Section 19.
In the judicial proceedings of State v. Dr. Mircea Veleanu D/B/A, Objets D’Art Uniques, the prosecutor, assistant attorney general Nick Garin in conspiracy with judges James Brands, Thomas Dolan, James Pagones and Peter Forman, violated the federal statute of Title 18, Section 20 that provides protection against deprivation of the right to equal protection of laws and due process guaranteed by the 14th amendment of US Constitution.
The Supreme Court held that the right of equal protection under the laws apply to State actors “State action is present when private parties make extensive use of state procedures assisted by state officials“. Deprivation of property interests in violation of due process cause, arbitrary and irrational judgments are representative of the violation of Equal Protection Clause of the right to a fair and unbiased trial. Pursuit of one’s livelihood is a constitutionally protected liberty interest. See Phillips v Vandygriff 711 F 261217, 1222-23, (5th Cir 1983). The illegal action of the state’s actors is evidenced in the present case where the 4 judges of the SCDC were requested by the state actor, Attorney General, to enforce and authorize a discriminatory practice of violation of the constitutional rights of the defendant. A landmark case of the Equal Protection under the laws is Edmondson v Leesville Concrete Co, Inc. 500 US 614, 111 SCt 2077, 114 LEd 2d 660 which established that discriminatory action of the State actors are at the base of violation of the Equal Protection under the Laws of United States. Another landmark of stare decisis is Lugar V Edmondson Oil Co., 457 US 922, 937 (1982) where the deprivation of constitutional rights of Equal Protection under Laws originated from state authority’s significant assistance by the state government actors and the injury caused was
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aggravated in an unique way by the incident of state governmental authority. The peremptory dictatorial power precludes debate, right to defend, ask questions and leaves no opportunity for denial of false charges. The peremptory challenge is one of the most fundamental rights of the accused and the base of 14th amendment of US Constitution.
67. Substantial violations of NY State Code of Professional Conduct of judges were committed in the SCDC with the suppression of due process and right of a fair trial of defendant Veleanu.
1. Wherefore, judge James Brands, granted a temporary restraining order with full knowledge that the evidence submitted by the prosecutor was forged and mislabeled.
2. Wherefore, judge James Brands signed an order to show cause that violated respondent Veleanu the constitutional right of learning the substance of allegations, sufficient time to be informed about charges and prepare to make a defense. Thus, respondent was deprived of constitutional right of due process, due to lack of service.
3. Wherefore, judge Brands did not decree a nolle prosequi decree after his recusal in view of his conflict of interest due to his Principal Court attorney, Maria Rosa representation in a previous legal action against Veleanu.
4. Wherefore, judge Brands granted a temporary restraining order with full knowledge of lack of any plausible evidence or material proof to be of a probative value, or scientifically accepted by any reasonable person acting in such capacity as the fact finder. Judge Brands legal action represents FRAUD UPON THE COURT.
5. Wherefore, judge Thomas Dolan decreed a Decision/Order/Judgment and granting a permanent injunction without instituting hearings, conferences or even calendar calls and as a fact, did not see defendant Veleanu prior decreeing the permanent injunction. As such, his Order and Judgment was ex parte, illegal and void ab initio.
6. Wherefore, judge Thomas Dolan, willingly and knowingly, granted a permanent injunction based on false, fraudulent and criminally forged and mislabeled evidence and other evidentiary documents that were forged by concealment of exculpatory evidence, forgery of legal documents by interposing a photograph over a text that was exculpatory evidence, perjured affidavit of the single complainant, forgery with counterfeit of legal
document, etc. His judicial action clearly represents FRAUD UPON THE
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COURT.
7. Wherefore, judge Thomas Dolan and judge James Pagones decreed a summary judgment decision in a capricious, arbitrary and unconscionable abuse of discretion when numerous issues of material fact were submitted by defendant in his responsive pleadings, issues that would make the summary judgment inappropriate and void. Their judicial action is clearly FRAUD UPON THE COURT.
8. Wherefore, judge Dolan in a capricious, arbitrary and unconscionable abuse of confidence denied and disregarded defendant’s pleadings that exonerated defendant of false charges. The denial of the defense by judge Dolan was based on fraudulent and deceiving charges that the pleadings were “unsworn”. Judge Dolan knew or should have known that CPLR 105 (u) allows declaration under penalty of perjury (that the pleadings were based on) could be used in any legal proceedings where notary sworn statements are used. Thus, judge Dolan judicial action represents FRAUD UPON THE COURT.
9. Wherefore, judge Dolan in FRAUD UPON THE COURT denied defendant Veleanu the motions to dismiss the petition claiming that the motions for dismissal were “unsworn”. Judge Dolan knew or should have known that the motions for dismissal enclosed in the pleadings could be affirmed by a declaration under the penalty of perjury instead of notarial sworn affidavit conform to CPLR 105 (u).
10. Wherefore, judge Dolan in a capricious, arbitrary and unconscionable abuse of discretion granted a summary judgment with imposition of a permanent injunction based on a perjured affidavit of a sole complainant who fraudulently claimed pecuniary damage when in fact she was NOT AGGRIEVED as she was offered a refund based on the conditions of sale of the contract that she turned it down in order to extort and defraud the defendant.
11. Wherefore, judge Dolan in an unconscionable, arbitrary and capricious action violated due process rights of a fair trial of the defendant and constitutional rights under 14th amendment of US Constitution by decreeing a summary judgment and a permanent injunction without any hearings and denial of the defense. Judge Dolan invoked common law cases not applicable to this legal case and illegal and deceiving false representation of NY State laws. His legal action represents FRAUD UPON THE COURT.
12. Wherefore, judge Dolan decreed a summary judgment and a
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permanent injunction in absence of a reasonable cause of action. His legal action clearly represents FRAUD UPON THE COURT.
13. Wherefore, judge Dolan decreed a summary judgment and a permanent injunction in absence of jurisdiction upon the person of defendant. His legal action represents FRAUD UPON THE COURT.
14. Wherefore, judge Pagones instituted a new legal action (de novo) based on a former legal action of judge Dolan that was abandoned by default failure to enter and docket for want of prosecution. Illegally and violating the constitutional rights of the defendant for due process and a fair trial , the new legal action was initiated without service and without any hearings. Judge Pagones legal action CLEARLY represents FRAUD UPON THE COURT
15. Wherefore, judge Pagones in an horrendous FRAUD UPON THE COURT granted a permanent injunction assessing illegal punitive retroactive interest of 9 % not only to the sole complainant, but also granting punitive retroactive interest of 9 % (as punishment for the motion to reargument/renew of defendant) to customers who merely wanted a refund and did not claim misrepresentation.
16. Wherefore, judge Pagones in a capricious, arbitrary and unconscionable abuse of discretion illegally granted a summary judgment decree, permanent injunction, penalties, court cost and punitive retroactive interest of 9 % when the court did not have jurisdiction upon the person of defendant due to lack of service and lack of jurisdiction (territorial jurisdiction due to the fact that the complainant and the 3 customers who requested a refund are not residents of New York State). Judge Pagones legal actions are unrebuttable FRAUD UPON THE COURT.
17. Wherefore, judge Pagones in a capricious, arbitrary and unconscionable abuse of discretion granted a permanent injunction, penalties, court cost and punitive damages in absence of probable cause. His legal action is unrebuttatable FRAUD UPON THE COURT.
18. Wherefore, judge Pagones in a capricious, arbitrary and unconscionable abuse of discretion assessed penalties, court cost and punitive fines in the absence of a cognizable cause of action. Judge Pagones assessed all the above based on violation of GBL 350, nevertheless, prosecutor AAG Garin did not state a GBL 350 as a cause of action, therefore the penalties, court cost, fines are void and null in this case where there is no recognized cause of action upon which a relief could be granted.
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His legal action represents clear FRAUD UPON THE COURT.
19. Wherefore, judge Pagones in a FRAUD UPON THE COURT, knowingly and willingly confused and misinterpreted the motion to reargument with the motion to renew. Judge Pagones as a lawyer admitted to Bar, knew or should have known what is a motion to reargument and what is a motion to renew and they can not be interchanged or misinterpret. Judge Pagones willingly and knowingly denied the meritorious defense of the defendant by ignoring the numerous issues of material fact demonstrated both in the motion for reargument with memorandum of law submitted by defendant’s attorney, Clinton Calhoun, and motion to renew that make the summary judgment inappropriate.
20. Wherefore, judge Pagones in an unconscionable, arbitrary and capricious decision violated due process rights and a fair trial of defendant by adhering to former abandoned legal action by default, in the fact that accepted legal findings based on criminal acts of perjury, misbranding, forgery, concealment of exculpatory evidence, counterfeit with full knowledge of the criminal acts or misrepresentations substantiated by incontrovertible evidence. This represents FRAUD UPON THE COURT.
21. Wherefore, the summary judgment was granted by FRAUD UPON THE COURT by judge Pagones based on GBL 349 that implies statutory fraud BASED ON PRESENCE OF INJURY upon the complainant. Nonetheless, due to the absence of injury, GBL 349 can’t be applied and thus, there is no cognizable cause of action upon which relief can be granted. In the present legal case, GBL 350 (d) can not be applied as well due to the fact that AG failed to state a cause of action in his complaint upon which relief can be granted. Due to the fact that AG could not prove that any advertising was done in the respondent’s course of business, the court is precluded to grant relief in absence of a cause of action. Even more, there was no injury in any form, rather a private commercial contract dispute in which the complainant breached the contract and was permitted to defraud and extort the defendant with the aid and support of the Attorney General in a clear scheme of conspiracy between AG and complainant, Janet Spiridonakos. In the present legal case, due to the lack of injury, the summary judgment, penalties, court cost and retroactive interest were granted illegally and fraudulently by judge James Pagones in irrefutable FRAUD UPON THE COURT.
The last judge involved in this legal case was judge Peter M. Forman that
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was apparently assigned to this case following the decree of judgment of judge Pagones in November 2010. Defendant Veleanu submitted to the Court an Order to Show Cause entered in the Clerk of Dutchess County Office on January 23, 2012 with request for a leave to relief and enforce the already granted by default Stay of Judgment by the Supreme Court of Dutchess County of November 12, 2010 in accordance with CPLR 5519. Judge Peter M. Forman failed to make a decision regarding defendant’s motion to obtain relief and prevent the sale of property at a public auction by the Sheriff. As such, judge Forman violated CPLR R2221 (a) (1) and also CPLR R2219 (a) by not making a determination within 20 days for this provisional remedy order. On April 24, 2012 (that is more than 90 days since the submission of the application), judge Forman issued a decision and order that denied the discretionary relief requested by Veleanu pursuant to CPLR 5519 c as moot. Of course that an emergency relief requested in an Order to Show Cause became moot after more than 3 months since the application was submitted!. Accordingly, the judicial action of judge Forman was perverse, biased, timely improper and irregular. In his Decision and Order, judge Forman made a false statement that defendant filed the application of the Order to Show Cause with the Appellate Court-Second Division on November 12, 2010. The evidentiary truth, shows that the application for relief in the Order to Show Cause of November 12, 2010 was actually filed, and deemed as entered by the Supreme Court of New York, Dutchess County while the unperfected appeal was pending before the Appellate Court. See Exhibit 13 p1-p3. As such, the application to the Supreme Court of New York County of Dutchess could not be denied by the Appellate Court. See page 4 of judge Forman Decision and Order, Exhibit 14. The wrong and biased judicial action of Judge Forman violated NY State CVR Civil Rights Article 2 (10) that provides: “ Justice to be administered without favor and speedily. Neither justice nor right should be sold to any person, nor denied, and writs and process ought to be granted freely and without delay to all persons requiring the same, on payment of the fees established by law. The most biased judicial act of judge Forman was his judicial action in regard to an order to show cause submitted to Supreme Court of NY, Dutchess County addressed to the Administrative Judge of the Supreme Court in which the undersigned pursuant to CPLR R5015 (a) (3) requested relief from judgments and orders based upon the ground of fraud, misrepresentation and other misconduct of the adverse party. Also requested
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relief from judgment according to CPLR 5015 (a) (4) upon the ground of lack of jurisdiction to render the judgments and orders. The order to Show Cause and accompanied papers were clearly marked and addressed to the Administrative Judge. The line 3 of the Order to Show cause: “Let People of the State of NY/Petitioner SHOW CAUSE BEFORE THIS COURT before the administrative judge of the Supreme Court of the State of NY”. Further on, the application shows below the signature place of the magistrate marked in majuscule: ADMINISTRATIVE JUSTICE OF THE SUPREME COURT.
Prior sending the application to the court, I inquired with the chief clerk of the court to whom to send the application. I was told that the administrative justice is Hon. Alan Sheinkman and he appears periodically in the Court of Dutchess County and was instructed to send the application to the attention of judge Forman that was assigned to this legal case after judge Pagones decreed the second Decision/Order/Judgment in this case after default of
Decision/Order/Judgment of judge Thomas Dolan abandoned by default after 10 months for lack of prosecution. Judge Forman acted as he was the administrative judge despite that it was clear that the application was not to be decided by him and he was not assigned as the administrative judge of the Supreme Court. In spite he did not have the authority to act as the administrative judge, he acted as the administrative judge and declined to sign the Order to Show Cause that was submitted to the Court on August 9, 2012 invoking that “the papers submitted in support of the application failed to demonstrate that a proper case exists to grant an Order to Show Cause”. It is understood by the undersigned that the judges have discretionary power, but not the power to quash an application that was submitted properly, as such action would deprive one party of the constitutional rights of due process and civil right granted by the Bill of Rights NY Sec. 10, Article 2 that proscribes: “Neither justice nor rights should be sold to any person, nor denied, nor deferred, and writs and process ought to be granted freely and without delay to all persons requiring the same on payment of fees established by law”. 14th amendment of USC grants a person due process the right of a judicial hearing for determination of issues involved and allow the parties to present their position with objective proof of evidence rather than subjective inference based on poor understanding of scientific evidence, conjecture, conclusionary statements not based on objective evidence, etc. The TRO requested by the undersigned and presented in the
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attached affidavit to the application was based on objective incontrovertible evidence beyond the reasonable doubt that criminal acts of theft of property, forgery, uttering, forgery by counterfeit , mislabeling, perjury were perpetrated upon the applicant and as all the persons involved in the criminal acts are not citizens of New York State, the premature distribution of the undertaking would unjustly enrich criminal persons and make the recovery of distributed funds difficult or impossible. CPLR 2214 c clearly specifies: “Issues of fact. Providing that the elements required for the issuance of a preliminary inquiry are demonstrated in the plaintiff’s papers, the presentation by the defendant of evidence sufficient to raise an issue of facts as to any of such elements shall not in itself be grounds for denial of the motion. In such event, the court shall make a determination by hearing or otherwise whether each of the elements required for the issuance of a preliminary injunction exists”. Accordingly CPLR 6312 c allows the adversary party to present evidence necessary to controvert the movant’s averments.
On August 21, 2012 at the time specified as 10 am, the undersigned appeared in the Court and upon the appearance, Mr. Michael G. Hayes, Principal Law Clerk advised me that judge Forman declined to sign the application and a copy of an explanatory letter that Mr. Hayes stated that was mailed the precedent day was handed to the undersigned. I left the court one hour later at 11 am and the adversary party did not show up despite that was notified by certified letter with return receipt. Also, Mr. Nick Garin did not submit any papers in opposition to refute the undersigned’s averments. According to NY State Unified Court System and Appellate Court Second Department Rule 8.2 : “The signing of an order to show cause is discretionary, and if is not signed, the movant may proceed by notice of motion”.
Judge Forman’s biased actions represented an unconscionable, capricious and arbitrary abuse of confidence and a miscarriage of justice. First of all, he was ethically prevented to act in this legal document due to his previous involvement in this legal case where he acted biased and partial against respondent Veleanu, thus he acted in conflict of interest when ethically and legally should recuse himself from this legal case. Fed. R. Civ. P 26 c(1) provides: “Evidence is essential if the court is to fulfill its fact finding function”. Judge Forman committed obstruction of justice by suppression and preventing evidence to be submitted and committed fraud upon the
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court. Judge Forman committed extrinsic fraud defined as occurring when intentional deceit is employed to keep someone from exercising a right, such as a fair trial by misleading a party, or preventing a party to exercise his rights to defend in a trial. Judge Forman violated several Codes of Judicial Conduct and NY State law. Judge Forman violated 22 NYCRR 100.3 (e) (1): “A judge should disqualify himself in a proceeding in which the impartiality might reasonably be questioned. Judge Forman violated 22 NYCRR 100.2: “Substantial misconduct rose to such an egregious level that the conduct implicates the attorney’s honesty, trustworthiness or fitness as a lawyer when a judge is accused of being biased and pro-prosecutorial. A judge must avoid impropriety and the appearance of impropriety in all judge’s activities.
Finally, the undersigned requested relief from judgments and orders in accordance with CPLR 5015 c: An administrative judge upon a showing that judgments and orders were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or other illegalities, or where such judgments were obtained in cases which the defendant would be uniformly entitled to interpose a defense predicated upon but not limited to the foregoing defense, may bring a proceeding to relieve the party of such position with objective proof of evidence rather than subjective inference based on poor understanding of scientific evidence, conjecture, conclusionary statements not based on objective evidence, etc. The TRO requested by the undersigned and presented in the attached affidavit to the application was based on objective incontrovertible evidence beyond the reasonable doubt that criminal acts of theft of property, forgery, uttering, forgery by counterfeit , mislabeling, perjury were perpetrated upon the applicant and as all the persons involved in the criminal acts are not citizens of New York State, the premature distribution of the undertaking would unjustly enrich criminal persons and make the recovery of distributed funds difficult or impossible. Accordingly, the Unified Court System provides that the failure to appear in court for the Order to Show Cause and failure to submit evidentiary response constitutes default and subsequently, the affiant is entitled to the relief requested in the application.
The remainder of the issues could not be evaluated and decided by judge Forman that was already proved to be a biased party in the prior judicial proceedings and played a significant part in the injustice perpetrated upon
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the undersigned in a “kangaroo” trial without service, without hearings and denial of pleadings and motions to dismiss by invocation of “unsworn” declarations. Judge Forman conclusion that the application failed to demonstrate that a “proper case” exists is undeniable pro-prosecutorial in face of un-refutable issues of material fact presented in the affidavit. This represented a major conflict of interest that prevents the adjudication in a fair and impartial fashion. Judge Forman’s biased actions represent an unconscionable, capricious and arbitrary abuse of confidence and a miscarriage of justice. Further on, this represents a major conflict of interest that prevents the adjudication in a fair and impartial fashion. Veleanu decided to submit the application directly to the SCDC judge Alan Sheinkman due to interference and acting upon by judge Forman. The reply by Acting Administrative judge Nicholas Colabella in a Short Order, declined to sign the Order to Show Cause based on 3 reasons: failure to pay the motion fee, failure to proper 202.7 (f) notice and question of proof of the entitlement under R5015 c. The response was rebutted by Veleanu with proof of payment of motion and notice according to 202.7(f) notice. On a letter dated October 5, 2012, James Garfein, counsel to administrative judge denied the appeal and advised to submit the application to the Supreme Court of Dutchess County. The fact that judge Forman in an abuse of discretion, ruled on the questions addressed to judge Sheinkman, the Administrative Judge of Dutchess County, is further evidence of lack of impartiality of judge Forman and a clear evidence that the Administrative Judge is a party of denying Veleanu’s rights for obtaining a fair representation and justice for him. Veleanu’s constitutional rights for defense and claiming his rights to property which he may not be deprived without due process, nevertheless done by official misconduct and official extortion. The court denied Veleanu’s rights of Common Law to consensual commercial contracts and the inviolable rule that a breach of contract needs to be enforced by the court. The court also willfully denied Veleanu’s Common Law right to an impartial judge who is able to give a ruling which is responsive to a motion or legal question put before the court and the protection of the rule of Stare Decisis to guarantee uniform ruling. As stated by judge Adams in American Motors Inn Inc., v Holiday Inns, Inc., 521 F2d 1244 (3rd Cir 1975): “One of the basic tenants of American jurisprudence is that procedural fairness requires that each party has notice of the issues involved and an opportunity to be heard at a meaningful time and in a
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meaningful manner”. Veleanu did not have this opportunity in the SCDC. At the advise of Mr. Garfein, the Chief Clerk of SCDC, Michael Thompson, returned to Veleanu the application submitted to the administrative judge and advised to re-submit the application for relief to SCDC. As such, the present application is replacing former applications.
68. The fore mentioned SCDC judges in a biased and unprofessional judicial misconduct action, violated defendant Veleanu’s rights for a fair trial, rights for due process and thus, caused discrimination and violation of NY State Bill of Rights and constitutional rights under 14th amendment of USC.
SCDC in a biased and unprofessional judicial action, violated Federal Title 42 Chap. 21, Sec. 1981 Equal rights under law as follows: “ All persons under the jurisdiction of the US shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence and to enjoy the full and equal benefits of all laws and proceedings for the security of persons and proper and shall be subject to like punishment, penalties, etc“.
69. Pursuing this section: 1. Defendant Veleanu had the right to make and enforce a commercial contract between his Internet store Objets D’Art Uniques and Janet Spiridonakos.
2. Veleanu was refused by judge Thomas Dolan and judge James Pagones of SCDC to give evidence and interpose a defense, by reckless disregard of Veleanu’s right to defend himself when facing frivolous charges, by
( 1) denial of pleadings defense and (2) disregarding the motions for dismissal of judicial action, by invoking of fraudulent and illegal claim that such pleadings and motions for dismissal were “not sworn“. Nonetheless, such pleadings and motions to dismiss were legally submitted as declarations under penalty of perjury. Veleanu was denied the “full and equal benefits of the laws and proceedings for the security of person and property”.
(b) Make and enforce contracts. The purpose of this section. The term “make and enforce contracts includes the making, performance, modifications and termination of contracts and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. Pursuing this section, Veleanu had a private and unique commercial contract with complainant Janet Spiridonakos that granted Spiridonakos the right to obtain a lifetime guarantee of a refund of any item she bought under
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specifications of the contract (See conditions of sale of the contract, Exhibit 1-1). Veleanu offered Spiridonakos the refund according to the conditions of sale of the contract. Spiridonakos breached the contract by not conforming to the contract’s obligations and fraudulently complained with AG of NY State. Subsequently, she is liable for the infraction of breach of commercial contract and made responsible for her illegal action.
c. Protection against impairment.
The rights protected under this section are protection rights against
impairment under color of the State law. The officers of the SCDC acting under the color of the State discriminated and impaired Veleanu’s rights.
70. The officers of the SCDC as the judges fore mentioned, in a biased and unprofessional judicial action and misconduct violated defendant Veleanu’s the constitutional rights under Federal Title 42 Section 1983 of Veleanu’s rights for a fair trial and due process.
Section 1983 purports to subject: “(e)very person acting under color of state law to liability for depriving any other person in the United States of ‘rights, privileges, or immunity secured by the constitution and laws’ …”.
Veleanu established the prima facie evidence of violation of Sec. 1983 by proving that: 1. The action occurred under color of law and 2. The actions were deprivation of constitutional rights or federal statutory rights. “Any
state action detrimental to the defendant under the 14th amendment of USC is action under color of law” See Martin A. Schwartz & John E Kirklin “Section 1983, Litigation claims and defences para 5, 10 at 520, 3rd. Edition 1997. The Supreme Court has ruled that State actions are present when judges are asked to enforce or authorize a discriminatory practice. See E.G. Edmondson v Leesville Concrete Co. 500 US 614, 627, 628 (1991); Shelley v Kramer 1334 US 1, 22, 23 (1948). In both above cases the court recognized that the discrimination would not be possible without judicial power and in this context, deprivation. The due process cause of the 14th amendment encompasses 3 rules of federal claims enforceable through 42 USC Sec 1983, all applicable to the present case:
(1) Claims for the deprivation of certain specific rights specified in the Bill of Rights and applicable to the States through incorporation.
(2). Claims under the substantive component of due process clause that bars certain arbitrary, wrongful government actions, regardless of the fairness of the procedures and their implement then.
(3) claims under the procedural component of the due process clause that
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prohibits the deprivation of life, liberty or property without fair procedure. See Zinnerman v Burch 494 US 125 (1990) quoting Daniels v Williams 474 US 327, 331 (1986).
71. The fore mentioned judges of SCDC in a biased and discriminatory judicial misconduct violated defendant Veleanu’s constitutional rights under Federal law Title 42 Section 1985. I. Conspiracy to interfere with civil rights. 2. Obstruction of justice, intimidating party, witness or juror. 3. Depriving persons of rights and privileges.
Section 1985 purports: “.. if two or more persons conspire for the purpose of impending, hindering, obstructing, or defeating in any manner the due cause of justice in any State or Territory, with intent to deny to any citizen the equal protection or to injure him or his property for lawfully enforcing or attempting to enforce the right of any person, or class of persons to the equal protection of laws. In the present case, Attorney General conspired with complainant Spiridonakos to violate Veleanu’s constitutional rights under this section. The conspiracy included judges: James Brands, Thomas Dolan, James Pagones and Peter Forman, who were involved in the violation of constitutional rights of Veleanu under this section, and made this violation possible as without their judicial power such violations could not occur.
72. 3. Depriving persons of rights and privileges.
Section 1985 provides that: “if two or more persons, in any State or territory, conspire … for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, or for the purpose of preventing or hindering… from giving or securing all persons within such State or Territory the equal protection of the law; in any case of conspiracy set forth in this section, if one or more persons engaged therein, do or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party is injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation against any or more of the conspirators”.
In the present case, Attorney General conspired with complainant Spiridonakos to deprive Veleanu of the rights and privileges granted by US Constitution. The conspiracy involved the following judges of the NY State
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Supreme Court of Dutchess County: James Brands, Thomas Dolan, James Pagones and Peter Forman, and the following judges of the Appellate Court of the Supreme Court of New York: Reinaldo Rivera, JP, Daniel D. Angiolillo, Ariel E. Belen and Sherri S. Roman JJ, who unconscionably used their judicial power to deprive Veleanu of his constitutional rights for a fair trial and due process. As a consequence of the biased and unconscionable judicial action, Veleanu was injured. The broad range of injuries include: pecuniary damages due to loss of revenue from the publisher’s royalties of selling Veleanu’s published books caused by the extreme false media statements of the legal case based on false and libelous releases to media of the prosecutor in his investigative function, large legal fees, collateral legal expenses, illegally assessed penalties, court cost and retroactive interest of 9 % to the 4 customers, loss of revenue due to forced closure of the Internet store and any future sales; also media firestorm, libel in the media, humiliation and loss of trust and social standing in the local community and international defamation of the professional status as a dedicated scholar, intentional inflict of emotional distress, anxiety and depresion due to continuous prosecutorial harassment of continuous persecution by numerous subpoenas and illegal acts of prosecutorial oppression, physical and psychological irreparable injury, theft of property by solicitation, facilitation and direct aid of Attorney General of Diana Norton that committed theft of property, perjury and fraud. Subsequently, Veleanu suffered irreparable psychological stress that caused an increased in the blood pressure. Intentional infliction of emotional distress is also a form of LAS (Legal Abuse Syndrome) defined by Karin Huffer MS, as a form of Post Traumatic Stress Syndrome (PTSD) usually seen as a post-war stress malady suffered by military personal involved in battle, but also caused by ethical violations, malicious persecution, abuse of process, abuse of power, abuse of authority, frivolous legal action, dishonesty, legal fraud, etc. LAS causes in addition to the psychological trauma distrust of law, law enforcement and the biased legal system and mostly, fraudulent attributing crimes and law infractions to ordinarily honest and law obeying citizens.
73. Title 42 USC Sec 1988 allows a reasonable attorney fees to the prevailing party as part of the costs acting under provisions of sections 1981, 1981 (a)…1983, 1985, 1986 and 1988 Title VI of the Civil Rights Act of 1964, 42 USC 2000 d or section 1398 of Title 42. Judicial officers are liable for such costs including attorney fees and expert fees, when the
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discriminatory action of the judicial officer was clearly in excess of officer’s jurisdiction, or acting in lack of jurisdiction as: failure to achieve in personam jurisdiction, failure to achieve locus jurisdiction (territorial jurisdiction) or lack of jurisdiction of subject matter, in absence of waiving of the rights by any party involved in the legal matter. See Boles v State 717 So. 2d 877 (1998). When the court is without jurisdiction, it has no authority to do anything other than to dismiss the case. Fontenot v State 932 SW 2d 185. Judicial action without jurisdiction is void Id (1996). The law requires proof of jurisdiction to appear in the record and all proceedings. Hagans v Lavine 415 US 533; US v Lopez, judicial action void because of lack of jurisdiction. A court can not confer jurisdiction where none existed and can not make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court: Old Wayne Mut L Assoc v. McDonnough 204 US 8, 27 SCt 236.
74. The Appellate Division: Second Judicial Department of Supreme Court of the State of New York in a biased and discriminatory judicial misconduct, violated defendant Veleanu’s constitutional rights under Federal law Title 42 Section 1985. I. Conspiracy to interfere with civil rights. 2. Obstruction of justice, intimidating party, witness or juror. 3. Depriving persons of rights and privileges. The Appellate Court failed to perform its judicial function of review of the trial court proceedings and render opinion of
controversial matters of law, opinion about violation of due process of the defendant Veleanu in the trial court and forbid fraudulent, egregious and abuse of confidence acts manifested in the trial court and answer to the questions posed to the court.
This frivolous legal case brought a lot of issues of public importance of
prosecutorial misconduct, failure to obey precedent cases where the Court
of Appeals made stare decisis decisions that are immune to be overturned by
the lower courts, violations of constitutional rights of the defendant,
violations of New York State civil rights of the defendant and violations of
several CPLR of New York States adopted by the state legislation.
Defendant asked the Appellate Court a few questions that defendant did not receive any answer or opinion, as follows.
1. Was the evidence presented by defendant/appellant consisting in a
plethora of scientific articles and mineralogical textbook, etc., not rebutted
by any scientific literature showing the contrary, a sufficient ground upon
which to deny the summary judgment due to the presence of numerous
triable issues of material fact?
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The Appellate Court did not state an opinion other than as “contentions without merit”. Defendant believes that the contention is meritorious based on New York State laws that established that the summary judgment is inappropriate and precluded when triable issues of fact exist and demand reversal of the trial court decision and judgment based on the summary judgment (special proceedings). Certainly, the contentions were not conclusory or speculative as were supported by solid mineralogical and
petrological literature on the subject. The above characterization of the trial court fits exactly the petition’s contention based on speculative, conclusory, self serving and wrongly based on gemological testing of jewelry type of items that never apply to ornamental type semi-precious stones of art carvings sold by any merchant of ornamental art carvings, whatsoever.
2. The second question posed to the Appellate Court was: “Is Attorney
General of the State of New York infallible in acting under the color of the
State and having “royal privileges” by violating the statutes established by
the legislature?
Defendant did not receive an opinion of the Appellate Court regarding this question.
Defendant recognized the immunity of AG in the enforcing legal process as endowed by legislature except the investigative and administrative matters as in this case, the release to media of highly defamatory and libelous charges not supported by evidence. The lack of consideration for the CPLR’s adopted by legislation, violation of the elementary civil rights of the citizens of New York State, violations of the constitutional rights of the defendant under several amendments, are deplorable in a democratic society and make the citizens skeptical about the legal justice in our country. AG acted maliciously in the prosecutorial duty by preventing, suppressing and obstructing the legal defense, failing to exercise due diligent care of investigating the complaint of a single person who impeached her affidavit evidence by giving statements under oath that contradicted prior statements, and as such committed perjury. In addition, diligent due care is required when there is a suspicion of wrong doing as conspiracy to commit criminal extortion of the defendant. AG acted as judge by submitting to the court proposed legal decisions that defendant was not given an opportunity to defend. By intimidation, continuous harassment and psychological torture, he also acted as executioner by depriving the defendant of constitutional rights, and attempt of legal confiscation of property through execution of property by the sheriff even after payment of undertaking was done in the
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full amount of judgment; and ignoring the existence of the stay of enforcement by the trial court granted by default in November 2010.
3. The third question was: “Was the constitutional right of the defendant
violated by failure of the plaintiff to serve the petition and order to show
cause in sufficient time to allow knowledge of the charges and prepare the defense?”.
I did not receive an opinion of the Appellate Court regarding this question.
The service of the petition was never done and the elementary right to
defend was violated. Failure of service to the defendant establishes that the court had no jurisdiction upon that person. Luring the defendant to
court for a calendar call of issuing a TRO is not considered by NY statute 320 sufficient to establish jurisdiction upon the person. There were no hearings whatsoever in this “trial” and a second and final judgment was granted by judge Pagones without the appearance of undersigned’s attorney and was based on an abandoned by default of a decision/order/judgment granted by another judge, without starting de novo of a new legal action. Even more, added illegal punitive sanctions, as the assessment of retroactive interest of 9 % starting from the date of purchase of items not only for the single complainant, but also retroactive interest of 9 % assessed to payment of items purchased by 3 customers who requested a refund without claiming misrepresentation of the purchased items, were fraudulent legal actions not based on any legal or factual grounds.
4. Fourth question was: “Was the failure of the trial court to set up a hearing
after granting the TRO and prior decreeing a permanent injunction, a
violation of the constitutional right of the defendant?”.
The Appellate Court did not give an opinion regarding this question other
than “contentions without merit“.
The Appellate Court decreed a Decision and Order dismissing the Appeal and affirming the judgment of the SCDC on base that defendant “failed to raise a triable issue of fact”, in a biased, unconscionable and fraudulent decision, ignoring all the exculpatory evidence of the defendant. The Appellate Court failed to review the decisions, orders and judgments of SCDC and the suppression of constitutional rights of respondent by denying his defense on illegal and fraudulent representation by the court of the pleadings and motions to dismiss as being “unsworn”. The presence of the triable issues of fact submitted in the brief by defendant Veleanu were sufficient to preclude the grant of summary judgment. The Appellate Court
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failed to perform the main functions to review the errors of SCDC judges and for the sake of justice reverse, or at least remand the case back to SCDC for trial of issues of material fact that were disputed by respondent Veleanu. Since Dreifuss case in France, the undersigned could not find of other case so repugnant, foul smelling of corruption of not only the Supreme Court of New York State, but also the Appellate Court that not only that affirm judgments and orders that were clearly fraudulent, but also denied the permission of respondent Veleanu to appeal to the Court of Appeals, the highest court in New York State. It is incomprehensible that the Appellate Court would commit such heinous acts against the constitutional rights of a person accused of crimes he never committed. Under the absolute immunity of judges that had no fear of representing that the black is white or vice-versa, or that the earth is flat, rather than spherical, the decision and order of the Appellate Court is a typical example of legal court corruption at the highest degree and cover up of judicial misconduct of the 4 judges of the SCDC, involved in this legal case. Is this USA, land of freedom and equality of human beings, or fascist dictatorial regime of Italy under Benito Mussolini, or Third Reich under Adolph Hitler???.
The decision and order again stated the intellectually defective, senseless and irrational inference that the defendant sold a customer “several items which he told her were made of high quality jade, but which laboratory testing proved were quartzite, a less expensive and more common stone”. Such faulty statements of a legal decision are deceiving and worthless, as defendant did not sell this customer jewelry grade jadeite that is devoid of other minerals and prone to be authenticated by gemological testing; rather ornamental art carvings that are not pure mineral jadeite, as such are not prone to be authenticated by gemological testing. With the risk of repetition, the ornamental jadeite carving is not a mono-mineral rock, and as such, the authentication is to be done by mineralogical testing, as is done by all ethical jade merchant sellers. The mineralogical testing consists in determination of the hardness by Moh’s test, examination under magnification and specific gravity, tests that were not done and are not done by gemological laboratories. The undersigned did not sell Spiridonakos jewelry stone, rather art carvings whose value resides in the quality of carving and not that of the stone. Defendant Veleanu submitted copious documentary evidence that jadeite exists in the nature not like pure mineral jadeite, rather as a metamorphic rock containing both jadeite and
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quartzite and named jadeite-quartzite or jadeitite. The abhorrent disregard of exculpatory evidence, violations of constitutional and civil rights, relevant evidence of misconduct of the officers of the trial court, fraud upon the court in numerous occasions, abuse of process and malicious prosecution, numerous violations of NY State Code of Judicial Conduct by the officers of the court, criminal acts of forgery, mislabeling, perjury, subornation of perjury, fabrication of false evidence, criminal uttering, extortion, concealment of evidence, forged counterfeiting and other criminal acts and illegalities were fraudulently and irresponsibly labeled by the Appellate Court as “contentions without merit”. This biased at extreme, controversial and irresponsible judicial acts of the Appellate Court, after judicial notice was submitted to the Appellate Court in the Appeal Brief, resulted in failure to take action for the frivolous suit, failure to act and dismiss the legal action upon CPLR 5704 regarding ex-parte orders and judgments. Second Division of Appellate Court acted fraudulently to cover up the wrongdoings of the officers of the NY State Supreme Court of Dutchess County. The following judges: Reinaldo Rivera, JP, Daniel D. Angiolillo, Ariel E. Belen, Sherri S. Roman, JJ of the Appellate Court violated several discipline and ethical rules of New York Code of Professional Conduct that they should be held accountable for. On January 24, 2012, defendant moved to Appellate Court requesting to endorse, back, and support an order to relief for the stay of enforcement already granted by default on November 12, 2010 by the NY State Supreme Court of Dutchess County, due to failure to be opposed by the adversary party according to 22 NYCRR 670.5 (b), timely submitted and properly sworn. This motion for an order to Show Cause was properly served to the opponent and signed for acknowledged receipt and not contested and as such deemed submitted and granted by default. CPLR provides that the Order to Show Cause that signals an emergent legal situation, needs to be decided within 20 days. SCDC flagrantly violated CPLR in this occasion as well as another application submitted by Veleanu as an Order to Show Cause that failed to be answered within 20 days. See Exhibit 13. The order to show cause to the Appellate Court of January 24, 2012 was precipitated by a Property Execution of AAG Garin addressed to the Sheriff with malicious direction to sell Veleanu‘s property at auction, rather than usual attachment as a collateral to secure the judgment‘s decision. AG illegal action was taken despite that a Stay of Judgment was in force based on an application to SCDC for the Stay that was deemed entered
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as unopposed and as such effective, despite that the unknown assigned judge of SCDC failed to take a decision and order on that motion. As the case was still under appeal proceedings, defendant asked the Appellate Court, as well as the Supreme Court of Dutchess County for the Stay Relief and a Protection Order under CPLR 5240. See Certified mail receipt of 1/24/2012 and signed acknowledged receipt by Appellate Court dated 1/26/2012 of Exhibit 20. Recklessly and irresponsibly, the Appellate Court notified the defendant of receiving the application on 2/9/2012; See Exhibit 21. The clerk office notification date is more than 2 weeks since the acknowledged receipt (see Exhibit 20). The Appellate Court violated the CVR and Bill of Rights, Article 2 (10) regarding the right to freely obtain writs, when the Appellate Court recklessly and irresponsibly violated the civil rights and Bill of Rights granted by NY Constitution, by denial of respondent’s motion for leave to reargue from the order of denial of the appeal by the Appellate Court dated November 15, 2011, or in alternative, for leave to appeal to the Court of Appeals. The Order of denial of the motion for reargument and in alternative, the permission to appeal at the Court of Appeals, was illegally issued prior a decision on a pending motion for leave of stay and protection that was submitted prior denial of the motion for reargument/permission to appeal at the Court of Appeals. See Exhibit 22. This decision and order on motion was fraudulent in 2 points; 1. The order of denial of leave to reargument and permission to appeal to the Court of Appeals was dated 02/02/2012 at the time that the prior undersigned’s motion for protection order and stay of enforcement was still pending and placed on the motion calendar for 02/24/2012 (See Exhibit 21), (that was more than 3 weeks past the Appellate Court’s decision and order on motion for reargument and permission to appeal with Appellate Court!!!). The Appellate Court violated NY CPLR R2219 that provides that the order to show cause that is of the emergency action relating to a provisional remedy should be answered and decided within 20 days at most.
2. Fraudulently and irresponsibly, the Appellate Court tried to confuse the issue by stating that “motion by the appellant for leave to reargue appeals from a judgment of the Supreme Court, Dutchess County, dated September 29, 2010 and an order of the same court, also dated September 29, 2010” (See Exhibit 22) appears as the respondent was trying again to appeal decisions and judgments of the Supreme Court of Dutchess County that were already denied by the Appellate Court, action that would be redundant
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and frivolous at that stage of proceedings (Res Judicata). In reality the defendant’s motion was simply for reargument of the Appellate Court’s decision and order of 11/15/2011 and in alternative the permission to appeal to Appellate Court, rather than reviving trial court‘s orders and judgments that such act would be redundant act and obviously frivolous. In a flagrant violation of defendant’s right for a fair trial, the constitutional rights of defendant were again denied with disregard to the merits of the defense and existence of triable issue of material fact that preclude the summary judgment as being inappropriate, and most repugnantly, demonstrate without any ambiguity, the acceptance, support and cover up of judicial misconduct of the officers of the SCDC by the 4 judges of the Appellate Court foregoing mentioned. From the above documentation exhibited above, it appears as obvious that the decision of denial of the motion for reargument and in alternative, permission to appeal to The Court of Appeals was already predetermined weeks in advance and decided without any deliberations and negligently in disconsideration of the request of the leave requested by defendant, that was still pending. This legal action and legal proceedings by the Appellate Court, Second Division, represent irrefutable evidence of FRAUD UPON THE COURT by the four judges of the Appellate Court Second Department, names fore mentioned. Defendant was hoping for an unbiased decision and justice from the Appellate Court as he still believed and hoped in American justice that would be fair and unbiased. The Appellate Court IN A BIASED AND PREJUDICIAL LEGAL ACTION COMPLETELY DISREGARDED THE BRIEF like was never written and submitted and failed to respond to the allegations in the brief, with the exception of the moronic interpretation of jadeite as jewelry grade, when all the evidence was opposing such interpretation. Appellate Court violated several NY State laws and Codes of Professional Conduct as: 22 NYCRR 100.3 (E)(1), 22 NYCRR 10.3 (D) (1), 22 NYCRR 100.3 (D) (2), 22 NYCRR 100.2, NYCRR 100.2 (A), 22 NYCRR 100.3 (3), etc. already elaborated and applicable to the following judges of the Appellate Court: Reinaldo Rivera, JP, Daniel D. Angelillo, Ariel E. Belen, Sherri S. Roman JJ. The most important blatant violations were the following:
1.Violation of Title 18 of Section 19 of federal code: “making a crime to conspire, to “injure” or oppress any citizen in the face of exercise of any right or privilege secured to him by Constitution”.
2. Violation of Title 18 Section 20 that involves the deprivation of the right
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to equal protection of the laws guaranteed by 14th amendment of US Constitution.
Defendant avers that the granting of the permanent injunction by the SCDC without notice, denial of defense’s pleadings, the right to defense and appear personally in a hearing, and denial of the motions of dismissal, represented a major deprivation of the constitutional right under 14th amendment of USC of the right to defend and “have a day in court”.
The Appellate Court conspired to violate the constitutional rights of the defendant and cover up the judicial misconduct of the officers of the SCDC with the fraudulent acts mentioned above.
On January 24, 2011, defendant summoned AAG Garin to appear before the Appellate Court in Brooklyn in an Order to Show Cause for a hearing regarding AAG Garin subpoena intended to be followed by execution of defendant home in Newburgh, NY. In an informal conference, Hon. Priscilla Hall, Associate Justice, Appellate Division 2nd Department asked AAG Garin if he planned to do something “illegal or wild” at which, AAG Garin responded, no. When the undersigned referred to Supreme Court of Dutchess County as the “Court below”, Hon. Priscilla Hall candidly asked the undersigned why he believes the Court in Poughkeepsie is a “court below”, as both represent the Supreme Court of New York State. At such statement, defendant realized that the Appeal’s chances in that the decision of Appellate Court will be different than the trial court in Dutchess County were nil, however, defendant already was committed by submitting the appeal papers that demanded enormous efforts for more than 6 months to gather legal information for a pro se defendant with no legal knowledge background. Defendant applied similar tactic used by Attorney General when lured him to the court for the TRO calendar call, by notifying AAG Garin by telephone 4 days prior the conference and served him by overnight service pursuant to CPLR 2103 (b) (6). Hon. Priscilla Hall modified the order to show cause by deleting the personal phone call and used instead the following data: “by personal delivery”. Nevertheless, in comparison, AAG Garin did not serve the defendant the petition by personal delivery or overnight delivery service as is legal, and this illustrates that what is good for the goose, should be good for the gander, when AAG protested to Hon. Hall that he did not receive documentary information prior his appearance for the conference. Nonetheless, the documents were served by overnight delivery to the Attorney General Office in Poughkeepsie on Friday January
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21, 2011 and were delivered to his office on Monday, April 24, 2011. See copy of the Order to Show Cause with the corections done by Hon. Priscilla Hall. Exhibit 23. Nevertheless, he was notified 4 days prior appearance, rather than 3 hours prior appearance. More importantly, it demonstrates that the order to show cause can not be served by telephone as accepted and signed by judge James Brands, rather served by personal or overnight delivery pursuant to CPLR 2103 (b) (6). See Exhibit 23 p.2.
The Appellate Court violated defendant’s right to demand a writ and receive a reply under Bill of Rights Article 2 (10) of NY laws that provides: “Justice to be administered without favor and speedily. Neither justice nor right shall be sold to any person, nor denied, nor deferred, and writs and process ought to be granted freely and without delay, to all persons requiring the same, on
payment of the fees established by law”.
1. The Appellate Court, recklessly and irresponsibly, completely disregarded defendant’s request of defendant Veleanu to vacate the summary judgment according to CPLR 5704 (a) enclosed in the Appellant’s Brief Point XXI entitled: The court did not have personal jurisdiction upon defendant due to the fact that the Notice to Petition was never served to defendant and written as follows: “CPLR R5704 review of ex-parte orders by Appellate Division specifies that the Appellate Division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge from which an appeal would lie to such Appellate Division”. The 4 judges of the Appellate Court acted in absence of all jurisdictions as the respondent contested in the brief the jurisdiction in personam, due to failure of service upon the respondent Veleanu, failure to achieve locus jurisdiction as contested by respondent/appellant Veleanu (all 4 customers were not residents of New York State) and subsequent no jurisdiction in subject matter. All 4 judges of the Appellate Court acted in absence of all jurisdiction and thus, are not entitled to absolute immunity due to acting in excess of jurisdiction or lack of jurisdiction. It is a well established law that judicial action without jurisdiction is null and void. Fontenot v State 932 SW2d 185 (1996). Boles v State 717 So.2d 877 (1998).
The Appellate Court, Second Division failed to perform its legal duty to review and make an opinion in all issues that were fundamental in affecting
the rights of a party for a fair review and secondly, did not perform its legal responsibility to dismiss the case based on CPLR 5704 based on ex parte
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orders and judgments that was the sole responsibility of the Appellate Court. The issues involving the Appellate Court involvement in this case were not brought in this memorandum for the purpose that SCDC take action against the decision of a superior court, as obviously, SCDC has no power or authority to do so; rather to expose and inform the citizens of New York State and USA, as well as to the people of the entire world, about the injustice perpetrated upon respondent by the courts in New York State despite all the rights and privileges granted to the citizens of NY State, rights and privileges violated by the fore-mentioned courts and purely representing empty demagoguery words compatible with dictatorial regimes of theocratic or autocratic countries that USA denounces, criticizes and despises.

ARGUMENT

1. Averments in support of Veleanu’s request for relief of order(s) and judgment(s) pursuing CPLR 5015 (a) (4), lack of jurisdiction to render the judgment(s) or order(s).

The SCDC failed to achieve personal jurisdiction upon respondent Veleanu due to failure of petitioner, AG, to serve respondent Veleanu with the notice of petition and petition. As a matter of fact, AG even failed to serve Veleanu within 120 days as provided by CPLR 306-B. According to CPLR 320 C, the court never achieved personal jurisdiction upon Veleanu and the annulment of judgment is proper and required under law. According to CPLR 320 C, a limited appearance of defendant in the court not related to the service of petition is not equivalent to personal service of the defendant. Veleanu was lured to the court for an appearance related to a request for a TRO by AG and this represents an issue related only to granting of the TRO. Even granting of a temporary injunction according to CPLR 6311, requires the notice to the defendant, See CPLR 6311- Preliminary injunction. “1. A preliminary injunction may be granted only upon notice to the defendant”. Under CPLR 5015 (a) (4) if service was not fully effected, jurisdiction is lacking and all further proceedings are a nullity (Mayers v Cadman Towers, Inc., 39 AD 2d 844, 845 (2d. Dept. 1982). To vacate the judgment the defendant has to apply to the court that rendered the judgment.
Hereto is an excerpt from the Answer to the Petition that Veleanu submitted
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to the court and is incontrovertible proof that AG did not serve the petition: “I would like to ask the Court about the legality of attempting to serve copies of a proposed order showing cause and a temporary restraining order to me as respondent just a few hours to the hearing considering the immense repercussion on professional reputation and financial damage exercised on me as the respondent…As I received a copy of these legal papers from Mr. Garin in Poughkeepsie just a few minutes prior to the hearing, I did not have the opportunity to read even the first page…I would appreciate knowing from the Justice Court if there is a specific time period during which the petitioner for the temporary injunction is to provide the respondent with the substance of the allegations and all related issues. As I am not a lawyer, I don’t know if a respondent is entitled to have knowledge in advance of intended proceedings…Because I had no opportunity to read these papers to prepare myself for the hearing, I was unable to defend myself against the allegations presented in the Attorney General’s petition for a temporary restraining order”.
Judge James Brands never responded to Veleanu’s inquiry if is legal to proceed with a legal action when the respondent was not prior noticed about the projected legal action and if there is a specific period of time required to notify the respondent prior commencement of such legal action.
Veleanu’s statement in Lieu of Stenographic Transcript is the most relevant proof of failure of the petitioner AG to serve the legal action: “After the Court hearing session opened on 8/7/2009, I expressed to justice James Brands my complaint that I did not receive any notification about the hearing and only communication was a telephone call from the plaintiff about a hearing in regard to issuing a temporary restraining order, only 3 hours prior to the hearing and did not receive from the plaintiff any documentation about the case other than a few minutes before the hearing when the plaintiff gave me a thick bunch of papers that I did not have the possibility to read. The judge asked the plaintiff about my complaint and the plaintiff stated that he attempted to fax the papers, but the fax transmission failed”. See Exhibit 12 p3.
The lack of personal service upon the respondent represents a “fatal error” sanctioned by dismissal not only by NY Courts, but by federal courts as well as other states courts. The notice of service is critical and fundamental to the integrity of legal proceedings. Due process forbids legal action against a person unless the person has been given legal notice and an opportunity to
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be heard. Anyone who was not served is not bound by decision, order and judgment in that case. Accordingly, SCDC failed to obtain personal jurisdiction upon respondent and all the orders and judgments decreed by SCDC are null and void.
In the Alternative Proposed statement in Lieu of Stenographic Transcripts, AG representative Nick Garin wrote: “Dr. Veleanu stated that the fax had failed to come through and his notice of the content of the State’s petition was a few minutes prior to the hearing when he was served with the order to show cause and petition. He objected to going forward since the documents were so voluminous he had not had time to absorb them. I responded that the matter had been under investigation for months and that Dr. Veleanu knew essentially what the State’s case was about since he had been deposed recently”. See Exhibit 12, p7. The above statement under penalty of perjury of the AG demonstrates the incontrovertible proof of failure to serve the petition as provided in the law and the fact that Veleanu was deprived of due process right to learn about the substance of allegations he was accused to. In the deposition about 2 months prior this calendar call for issuing a TRO, Veleanu brought the attention to AG about the fraudulent AGTA gemological testing with forgery and misbranding and was certain that his Response within 5 days prevented the commencement of the legal action due to fraudulent basis of the burden of proof of AG that would prevent any honest, responsible and prudent person including the respectable Attorney General of New York State to start a legal action in lack of reasonable cause to base and act upon.
It is axiomatic that the failure to serve process in an action leaves the court without jurisdiction over the defendant and all subsequent proceedings are thereby rendered null and void (McMullen v Arnone, 79 AD2d, 496, 499; also see Khannai v Sheldon 55 AD3d, 684). Such a defect is not cured by the subsequent actual notice of the action. Notice received by means other than those authorized by statute cannot serve to bring the defendant within the jurisdiction of the court (Feinstein v Bergner, 48 NY2d, 234, 241). CPLR 306 B dismissed the action. In the absence of proper service, no personal jurisdiction was acquired over the defendant(s). See Bennett v Acosta 68 AD3d, 910; Horseman Antiques, Inc., v Huch, 50 AD 3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d , 375.
CPLR 5015 (a) (4) lack of jurisdiction is NONDISCRETIONARY. The vacatur mandate is imposed because a judgment is void for lack of personal
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jurisdiction upon defendant and thus any judgment entered is a nullity. See Cho v Song 166 Misc. 2d 129 (1995), citing Cipriano v Hank, 197 AD2d 295 (1st Dept, 1994) and Marazita v Nelbach, 91 AD2d, 604 (2d Dept 1982); Ortiz v Santiago, 303 AD2d, 523 (1St Dept 2003). Most importantly, a motion under CPLR 5015 (a) (4) for lack or improper service is not subject to the time limitations. Veleanu did not receive a Notice of the Process (service), but in order to avoid a default and in consideration that the Court was biased and pro-prosecutorial, answered the petition and moved to dismiss the action based on CPLR 3211 (8), as well as under CPLR 3211 (a) (2) and CPLR 3211 (a) (3) based on the lack of capacity to sue due to failure to show that any injury occurred. The failure to serve the petition or improper service involves also the violation of NYCRR 202.7 (f) for obtaining an ex parte TRO in absence of showing of a significant prejudice by giving notice.
Veleanu raised an objection in point of law in accordance with CPLR 404, by setting it forth in the answer to the petition and motion to dismiss the petition made upon notice to AG. In a fraudulent, biased and prejudicial action, SCDC denied the motions to dismiss and the answer to the petition that entitled Veleanu to summary judgment in his favor, invoking a fraudulent and illegal statement that Veleanu’s pleadings were “unsworn” in complete disregard of the CPLR 105 (U) that allows the pleadings as well as the motions for dismissal to be submitted as declaration under penalty of perjury. This legal action is undeniable FRAUD UPON THE COURT and require alone, annulment of judgments and orders that were granted by using such fraudulent legal action. Judge Thomas Dolan who decreed a permanent injunction judgment and judge James Pagones acted in excess of jurisdiction and outside of jurisdiction, and in complete absence of jurisdiction. It is a settled matter of law that extrinsic fraud represented by fraud upon the court when challenged allows the annulment of judgment and orders decreed by fraud upon the court. Since the SCDC had not acquired personal jurisdiction over the respondent Veleanu, the judgments and orders entered against Veleanu were nullity ab initio; See Fleisher v Kaba, 78 AD3d, 1118, 1120; Steele v Hempstead Pub Taxi, 305 AD2d at 402. Accordingly, pursuing CPLR 5015 (a) (4) respondent’s motion to annulment of judgments entered against Veleanu should be granted on the lack of personal jurisdiction of SCDC. Absence of the service of a motion is a sufficient reason to void a judgment or order effectuated in pursuit of that
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motion as the court was deprived of jurisdiction to decree and grant such relief requested in the motion. See Daulat v Helms Bros, Inc., 32 AD3d 410, 411; Welch v State of NY 261 AD 2d 537, 538.

1. Averments in support of Veleanu’s request for relief of order(s) and judgment(s) pursuing CPLR 5015 (a) (3), fraud, misrepresentation, or other misconduct of an adverse party.

CPLR 5015 (a) (3) provides that a party may be relieved by a judgment or order upon the grounds of fraud, misrepresentation, or other misconduct of an adverse party. The fraud could be intrinsic or extrinsic. Extrinsic fraud is depriving one party from fully and fairly litigate a matter. See Shaw v Shaw 97 AD 2d 403 (2d Dept 1983). Extrinsic fraud is defined as “(T)he prevention of an unsuccessful party to prevent his case, by fraud or deception practiced by the adversary, keeping the opponent away from court so a default may be secured, falsely promising a compromise, ignorance of the adversary about the existence of the suitor the acts of the plaintiff, fraudulently representation of a party without his consent and connivance in his defeat, etc. A typical case of keeping away the adversary from the court proceedings in order to achieve a default judgment is Tamimi v Tamimi 38AD 2d 197 (2d Dept 1972). Most of the time extrinsic evidence implies prevention of another party of being heard in the court. Intrinsic fraud, on the other side, is fraudulent conduct that originates from a proceeding and pertains to the issues in the case that have been tried or could have been tried. It usually includes false or perjured testimony, false or misleading documents, affidavits, forgery, counterfeit, etc. Allegations of extrinsic fraud do not require a moving party to establish a reasonable excuse for its default or a meritorious defense (Deutsche Bank Nat Trust Co. v Gillio, 2009 NY Slip Op 50383 U; 22 Misc. 3d 1131 (A) NY Supp (2009). Conversely, an intrinsic fraud generally concerns a fraudulent instrument or false representation and require moving party to demonstrate a meritorious defense and a reasonable excuse for its default. (Bank of NY v Lagakos, 27 AD3d 678 (2d Dept. 2006); CitiMortgage, Inc., v Orichello 2011 NY Slip OP 52166 U. The distinction between intrinsic and extrinsic fraud was delineated by the Supreme Court in US v Throckmorton 98 US 61, 68 (1878) known as independent action in equity that set aside a 20 year old decree made in 1856 by US District Court in California. In this case the
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intrinsic fraud consisted in falsification of a document by backdated the document of a land claim. The Supreme Court held that the intrinsic fraud is not available for relief. Marshall v Holmes 141 US 589, 596, 597 (1891). The Marshall doctrine eliminated the difference between intrinsic and extrinsic fraud by holding that a party may obtain relief from judgment where fraud prevents a fact from the original litigation clearly proves to be against the conscience. Historically, the fraud upon the court doctrine was used to relieve a party from a judgment procured through fraud by a judicial officer like a judge, but in Hazel-Atlas case (Hazel-Atlas Glass Co. v Hartford-Empire Co., 322 US 238, 245(1944), led to a holding that expanded to the concept to fraud by attorneys, as officers of the court. Thus “fraud upon the court” is limited to situations where a judge or other court officials participate in the fraud. In 1937 the Supreme Court promulgated FRCP Rule 60 subpart d that allowed district court to provide substantive relief from judgment when granting relief and entertain an independent action to relieve a party from a judgment or order and grant relief under 28 USC Sec. 1655 to a defendant who was not personally served (notified) of the action, or set aside a judgment for fraud upon the court. See Robert D. Sharp “Relief from fraudulent judgments in the Federal Courts”. See also Bankers Mortg. Co. v US 423 F2d, 73, 79 (5th Cir. 1970) citing Nat’l Sur. Co. v State Bank of Humboldt, Humboldt, Neb. 120 F 593, 598 (8th Cir. 1903). See also Publicker v Shallcross 104 F2d, 949, 950 (3rd Cir. 1939). There is no express time limitations of claims under Rule 60. In Throckmorton, justice Miller wrote that relief from judgment should be available where a party has been prevented from presenting all the claims because of the skilled deception of the opposing party. See Throckmorton Id at 65. In the present case, Veleanu was prevented to fairly present in the court a defense. The extrinsic fraud is difficult to detect during the proceedings and Veleanu acted diligently but unable to discover the numerous acts of fraud upon the court committed by the officers of SCDC. The undersigned is naïve enough to believe in the unbiased American justice, unbiased judges and prosecutors, especially, the highest rank prosecutor in the State, as never was involved in a legal case where had to defend pro se. Obviously, even Veleanu’s retained lawyer as an officer of the court would not risk his career by attacking judicial misconduct. After all, he might not ever win another case in the SCDC if alleging judicial misconduct in the SCDC. Even when the fraud was discovered by Veleanu,
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he was not allowed to defend himself as no hearings were conducted during the “trial”, his pleadings and motions to dismiss where denied by fraud upon the court action by the judges assigned to the case and the prosecutorial misconduct was the most egregious that ever could be in every step of the proceedings. The fraud upon the court as an extrinsic fraud, as well as the intrinsic fraud are included in the statute of limitations for fraud, that generally is 6 years. See CPLR 213. The claim for breach of contract applying to all 4 customers is 6 years, as well according to CPLR 213. See State of NY v Lundin, 60 NY2d, 987, 989, 990 (1983); Suffolk County Water Auth. v J D Posillico, Inc., 267 AD2d, 301, 302 (1999); Sears Roebuck & Co., v Enco Assoc., 43 NY 2d , 389, 395 (1977).

Evidence in the form of proof demonstrating intrinsic fraud.

A. Intrinsic fraud committed by the complainant, Janet Spiridonakos.
1. The complainant, Janet Spiridonakos, submitted an affidavit in which she committed perjury by stating that she incurred a payment of $1540 for gemological testing that contradicted 2 previous 2 statements that she paid $1000 for this testing. Thus, she impeached her affidavit testimony according to CPLR 4533-A Prima Facie Proof of Damages and the prosecution had no witness claiming fraud on base of irrefutable false declaration under oath of the complainant punishable under penal code for perjury. See Exhibit 5 attached to this Memorandum of Law. Her actions represent intrinsic fraud.
2. The sole complainant, Janet Spiridonakos, submitted in her affidavit false statements meant to deceive the court. Spiridonakos willingly and with full knowledge of falsity of declaration stated that she was refused a refund when all the evidence has shown that she was offered a refund according to the conditions of sale of the contract that she breached in order to extort the accused merchant, Veleanu. She conspired with her friend jeweler Tim McClelland to extort and blackmail Veleanu by submitting 7 jadeite rosary Tibetan mala to AGTA gemological laboratory a “fly-by-night” company that went out of business a few weeks after performing the gemological testing. As jadeite mala are ornamental large art carvings not prone to be subject to examination by gemological testing, she intentionally and deceitfully mislabeled the mala as “carved head necklaces”, (terminology never used by the seller Veleanu) in order to qualify the rosary mala to be
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examined by gemological testing that is exclusively reserved to jewelry grade jadeite. It is still unknown (due to failure of diligent investigation of the prosecutor) the fact that the identification reports issued by AGTA were dated in a period of time Spiridonakos stated that the mala were in her possession at her home in Winsted, Connecticut. See attached Exhibit 5. Her misrepresentations are constituting intrinsic fraud.
3. With full knowledge of falsity of her declaration in the sworn affidavit, she claimed that Veleanu sold her “imperial jade” by deceitful attribution of the term fei tsui used in the description of one mala, making it synonymous with the imperial jade. Nonetheless, Veleanu never used in the description the term “imperial jade’ or claim that the mala was made of “imperial jade”. Her misrepresentations represent intrinsic fraud.
4. Janet Spiridonakos committed the criminal penal act of forgery by counterfeiting the unsigned invoice for gemological testing of the firm of McTeigue & McClelland. The graphological examination of the invoice demonstrates without any doubt that the invoice was written by Spiridonakos, in comparison with other handwriting of Spiridonakos on the invoice itself and other documents submitted by AG in support of his petition. This intrinsic fraud act committed by Spiridonakos is the most egregious and repugnant act for evaluation by any honest person. See Exhibit 4 attached to this Memorandum of Law.
5. Janet Spiridonakos made misrepresentation of the facts in her sworn affidavit that supposedly was to attest facts that she had personally knowledge. Nevertheless, her affidavit does not represents facts or events she is or was witness. Spiridonakos’affidavit offers irrefutable evidence that the sworn affidavit was not written by her. The affidavit render intimate knowledge of the prosecution as Exhibits in the petition, content of such exhibitions, identical or semi-identical charges reiterated by AG in his petition, knowledge that could not be made possible unless AG conspired with Janet Spiridonakos to convict (charge) Veleanu with crimes or wrongdoing that obviously was concocted in a criminal act of conspiracy against an innocent person. The evidence is represented by her affidavit in Exhibit 5 enclosed in the Exhibits of this Memorandum of Law. Spiridonakos’ actions represent intrinsic fraud.
6. Complainant, Spiridonakos, willingly and knowingly, used false labeling of the jadeite mala under terminology of “carved head necklaces”, term that was never used for the sale of the jadeite mala. The deceiving act of
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misbranding (mislabeling) was done with clear fraudulent intention to make the ornamental jadeite mala that are not prone to be tested with tests reserved for jewelry grade jadeite only, eligible for gemological examination as jewelry “necklaces”. Her fraudulent action is clear intrinsic fraud.
7. At the solicitation of AG addressed to all former customers of Veleanu, a person named Diana Norton who purchased a jade carving at an auction of Objets D’Art Uniques, returned for refund a modern fake carving made from a marble type of material. The replacement of a high quality of antique nephrite jade with a low quality contemporary fake was done with intention to defraud Veleanu and represented stealing of precious property. As Diana Norton submitted an affidavit denying her misrepresentation, her declaration under oath is clear perjury and punishable under the law of Texas where she resides. Her action is clear intrinsic fraud and documented by irrefutable evidence enclosed in the Exhibits attached to the Memorandum of Law as Exhibits 7, 8, 9, 10, 11.

B. Intrinsic fraud committed by AG in his ministerial, administrative role.
1. AG represented by Assistant Attorney General Nick Garin committed intrinsic fraud (also extrinsic fraud as criminal act acting as officer of the court) by perjury while under Affirmation oath. In his “Alternative Proposed Statement” in lieu of Stenographic transcripts pursuant to CPLR 5525 (d), AG stated that the evidence of forgery of AGTA’s gemological reports was not known to him until Veleanu answered to petition in his pleading and later on the motion to reargument and renew. This is a blatant lie as Veleanu brought the attention of AG that AGTA gemological reports were forged and mislabeled, in his pre-trial response to the Notice of Proposed Action Pursuant to Article 22 that was weeks prior to the trial. The findings of forgery and mislabeling were brought again in the defense of Veleanu at the calendar call of August 7, 2009. It appears from this evidence that AG preferred to commit the crime of perjury, rather than acknowledge that he commenced a legal action in absence of a reasonable cause.
2. AG submitted false and deceiving allegations in his petition, not substantiated by any evidence, that Veleanu “refused to take any malas back and refund to this consumer the thousands of dollars she paid him for them”.
Such abhorrent lies were submitted under penalty of perjury, and represent perjury. This is clear act of intrinsic fraud and also extrinsic fraud as
fraudulent act committed by AG as an officer of the court.
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Evidence in the form of proof demonstrating extrinsic fraud committed by AG. and representing fraud upon the court .
Extrinsic fraud committed by AG in his administrative, ministerial role.
1. AG commenced the legal action in absence of a reasonable cause of action. AG lacked standing to sue in behalf of his client, the complainant Spiridonakos. She was entitled to seek a refund according to the conditions of sale of the commercial contract. See Exhibit 1 p1 and p2. Instead, she was looking as an objective, to defraud the seller Veleanu, blackmail and extort him. AG promised her a refund with a 9 % interest of the money she paid including expenses of the payment for gemological testing she was not required to produce in order to qualify for the refund of the money. The commencement of the legal action in absence of a reasonable cause of action represents Fraud Upon the Court and malicious prosecution.
2. AG submitted to the Court forged and misbranded gemological identification reports with full knowledge of the fraudulent evidence. The criminal act of uttering is a felony punishable by jail and penalties. As the forged and mislabeled gemological reports were submitted to the court as prima facie evidence of Veleanu’s alleged fraudulent activity under GBL 349 and executive Law 63 (12), AG ‘s legal action constitutes Fraud Upon the Court.
3. AG is liable under the laws of the State of New York of committing the crime of subornation of perjury. Willingly, AG submitted Spiridonakos ‘ affidavit with full knowledge of the falsity of affidavit’s declarations, deliberately, he helped to fabricate and preserve them. As AG’s legal action was intended to deceive the court, it clearly represents Fraud Upon the Court.
4. The fraud acts committed by Spiridonakos and Norton could not be possible without the solicitation, intervention, facilitation and direct aid by the prosecutor. Both fore mentioned individuals committed criminal acts of perjury by swearing under oath false statements with full knowledge of their falsity. As the intention of the AG was to prosecute Veleanu for alleged wrongdoings, his legal act is clearly Fraud Upon the Court based on deceit used to keep Veleanu from exercising his right for a fair trial.
5. AG initiated this frivolous vexatious legal action in absence of any reasonable cause of action, in the name of other individuals, but without the consent of involved individuals in an action of special proceedings in a court before a judge. According to CPLR R70, the person who initiates a
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frivolous vexatious suit is guilty of misdemeanor punishable by imprisonment. In this legal case, AG initiated the legal action in behalf of 3 customers that did not claim misrepresentation, rather were tricked by AG to request refunds with the incentive of benefit of retroactive interest of 9 % starting years back to the date of purchase. These 3 customers did not consent for suing in their name as they did not have a legal standing to sue in the lack of aggrievement. Nevertheless, these 3 customers breached the commercial contract of sale and are liable for the damage incurred by Veleanu subsequent to their action. The legal action commenced and continued with the collateral intention to cause pecuniary harm and psychological trauma to Veleanu and represents abuse of process and Fraud Upon the Court by intentional use of deceit.
6. AG willingly and knowingly committed the criminal act of submitting to the court documents that concealed exculpatory evidence by interposing a photograph over a text that was exculpatory to respondent Veleanu in 2 separate occasions. This criminal act implying forgery of a legal document destined for prosecution of an innocent individual. This misconduct of the prosecutor is defined in the Federal law Title 18, Chapter 73, Section 1513 (a) (3) as misleading conduct and is punishable with imprisonment and penalties under Section 1512: “whoever knowingly uses…or engages in misleading conduct toward another person with intent to: (B). ( alter, destroy, mutilate or conceal n object with intent to impair the object’s integrity or availability for use in an official proceeding…“. This AG illegal action of concealment of exculpatory evidence clearly and concisely represents intrinsic and extrinsic fraud and Fraud Upon the Court.
7. AG used his prosecutorial power to issue several subpoenas with collateral objective of abuse of process in order to intimidate, harass and retaliate for the exercise of Veleanu’s constitutional rights to defend himself. 3 of 4 subpoenas were not directed to serve the legitimate evidentiary role and as such impermissible under Rule 26 (b) (1) of FRCP which allow subpoenas only to those matters that are relevant to the subject of action. As the subpoenas issued by AG were with the sole purpose to force Veleanu not to seek justice in the court, these illegal subpoenas of the AG clearly represent Fraud Upon the Court.
8. AG released to media in 2 separate occasions false, inflammatory and misrepresenting, malicious, deceiving and libelous statements intended to harm Veleanu physically, psychologically and pecuniary. The statements
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were outrageous lies not substantiated by substantive evidence to base upon. The malicious and deceiving statements had secondary collateral into hope that the fraudulent accusations by the highest rank law enforcement official would frighten the former customers and recruit more people that would request refunds with the incentive of being awarded retroactive interest of 9 % back to the date of purchase. As the malicious prosecution with release to media of false information was meant to prevent Veleanu to pursue his legal defense in court, AG action is clearly a Fraud Upon the Court.
9. In a brazen and contempt of court action, AG violated the court imposed gag on media regarding information pertinent to TRO. The malicious action with secondary collateral of abuse of process had as purpose the intention to prevent and pursue the defense in the court and as such represents Fraud Upon the Court.
10. AG commenced a legal action against respondent Veleanu based on GBL 349 and Executive Law 63 (12) without a reasonable cause of action. GBL 349 implies that customers affected by misrepresentation of deceit should show injury as a result of such “misrepresentation” or “deceit”. In the present legal case initiated as a result of a single complainant with doubtful moral character, there was no injury in any form and as such there was no standing to sue in lack of aggrievement. Even more, AG failed to state a cause of action upon which relief could be granted. This represents a clear Fraud Upon the Court.
11. AG alleged and requested fines and court fees based on GBL 350 (d). Nevertheless, AG in his two causes of action did not allege any violations of GBL 350 that is based on fraudulent acts by advertising and did not state a cause of action under GBL 350. AG’s request for relief based on violations of GBL 350 failed to state a cause of action upon which a relief could be granted. Thus, AG prosecutorial actions were fraudulent and clearly represent Fraud Upon the Court.
12. AG solicited former customers to request refunds for the past 6 years prior legal action that is beyond the statue of limitations. One person who requested a refund, purchased the jade carving in February 2006 that is beyond the statute of limitations for statutory fraud that is 3 years only. This represents obvious Fraud Upon the Court.
13. AG requested and obtained from the court punitive damages consisting in interest of 9 % starting from the date of the purchase. The punitive damage was requested consequently to the motion for reargument/renew of
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Veleanu and represents Fraud Upon the Court as is not based, endorsed and legal by any statute, law or rule. Of course, AG is not entitled to request punitive damages under GBL 349 or Executive Law 63 (12).

Evidence in form of proof demonstrating extrinsic fraud committed by four judges of the Supreme Court of New York Dutchess County and representing fraud upon the court .

1. The first judge assigned in this legal case, judge James Brands, admitted for prosecution with ultimate decree of temporary restraining order, evidence consisting in fraudulent forged and mislabeled gemological identification reports with full knowledge of their lack of probative value and illegal existence. This legal action represents Fraud Upon the Court.
2. Judge Brands did not take corrective measures to the complaint of Veleanu for failure to serve the notice of process in sufficient time to learn about the charges and prepare a defense. Such measures could include the decline to sign an Order to Show Cause based on lack of service of process and illegal verbal (telephone) notification of appearance only 3 hours before the calendar call for the temporary restraining order. This clearly represents Fraud Upon the Court.
3. Judge Brands in spite that justly recused for conflict of interest, did not issue a nolle prosequi for the TRO he already decreed and in which a conflict of interest appeared to be present due to his Principal Court Clerk represented the opposite party in a former legal action against Veleanu.
4. Judge Thomas Dolan violated Veleanu’s due process constitutional right by decreeing a Decision/Order/Judgment in which a permanent injunction was granted to AG, without any hearings, conference calls or even calendar calls. Veleanu never saw judge Dolan and never had an opportunity to defend himself. Judge Dolan judgment is a typical ex parte judgment granted to one party in absence of representation of the opposite party. Such judgment is void ab inition and should not be enforced. Any attempt to enforce it is considered to be trespassing and an act of treason. Judge Dolan’s act of granting a permanent injunction is a violation of several CPLR‘s, is an illegal act and clear FRAUD UPON THE COURT.
5. Judge Dolan decreed a judgment with granting of a permanent injunction based on forged and mislabeled fraudulent evidence he had full knowledge of and willingly disregarded in flagrant FRAUD UPON THE COURT.
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6. Judge Dolan advised Veleanu to retain legal representation with full knowledge that such legal representation would not have any chance of succeeding despite the meritorious legal case. The advise had a collateral objective to injure Veleanu with tremendous legal expenses and represent abuse of process by the judiciary. The attorney retained by Veleanu as an officer of the court could only negotiate terms that AG would impose with irreconcilable clauses repugnant to the moral and conscience of an innocent individual. Plea bargaining is unconscionable to an innocent individual and an ethical violation of a judge to impose and as such judge Dolan’s judicial action represents FRAUD UPON THE COURT.
7. Judge James Pagones instituted a de novo legal action against Veleanu without appropriate notice of process and failure of service to defendant Veleanu. The order and judgment of judge Thomas Dolan was never entered within 60 days as provided in the law and is considered abandoned by default. SCDC failed to rule on default due to laches of AG who in his unsuccessful attempt to obtain any person claiming to be defrauded by Veleanu and failure to enroll a significant number of former customers requesting refunds, delayed and ultimately failed to enter and docket the judgment. According to the law, after 6 months, any order and judgment is void by default and a new legal action needs to be started with service to defendant and a hearing in the legal case. Judge Pagones decreed a Decision/Order/Judgment in absence of service to defendant Veleanu and without any hearing, conference call or even calendar call. Judge Pagones’s order and judgment was decreed as illegal ex parte order and judgment and thus, it is void ab initio. Any attempt to enforce it is an act of trespassing.
Judge Pagones act in this respect represents FRAUD UPON THE COURT as Veleanu was deprived to defend himself in court, prevented to appear in court and consequently his due process constitutional rights were flagrantly violated.
8. Judge Pagones decreed a judgment in which he fraudulently discarded the reargument/renew application that would vacate the summary judgment on basis of numerous triable issues of material facts that preclude the granting of summary judgment as a matter of law. Judge Pagones fraudulently claimed that the motion for reargument was rather a motion to renew and as such he denied it. Obviously, a motion for reargument based on irrefutable evidence that respondent and his attorney believed that was overlooked or misapprehended could not be labeled as renew as is against the rationale and comprehension and is absurd, abhorrent, unconscionable and
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reprehensible in a democratic society proclaiming freedom, equality for all citizens and freedom from tyranny of oppressors like the forefathers of my country fought against (as representing the Kingdom of England). Such distortion of laws and complete irrational behavior is compatible with theocratic regime of Islamic Republic of Iran and autocratic Democratic People Republic of North Korea. Even in arguendo, a motion to renew that brings irrefutable evidence that was never presented in the court, would preclude the summary judgment in view of the presence of numerous issues of material fact brought by the renew portion of the motion. Judge Pagones cannot claim that Veleanu failed to present the new evidence earlier for the obvious reason that in a “kangaroo court” the defendant is prevented to interpose a defense and counteract the fraudulent allegations of the defendant. Judge Pagones acted as the defendant being a pro se, is an ignorant, mental defective to understand the law and its applications and unable to contest and attest his constitutional rights of due process and equal protection of the laws in US. Even when Veleanu was represented by an officer of the court, judge Pagones acted as the attorney was not present, with full knowledge that the attorney would not act to protect the client; after all, this attorney would represents other clients in the future and his combative action would be sanctioned against all his future legal case with 0 chance to ever be successful in the most meritorious cases. Judge Pagones acts in this respect of preventing Veleanu to defend in the court represent the most atrocious FRAUD UPON THE COURT.
9. Judge Pagones decreed a judgment in favor of AG in absence of any cause of action that would allow the judge to accordingly act upon.
a. There was no aggrieved party in this suit, other than the defendant due to prosecutorial misconduct. This frivolous suit was instituted when the fraudulent complainant breached a commercial contract that would allow her to obtain relief of her allegation by negotiation outside of the court. The prosecutor through a conspiratorial scheme with Spiridonakos, directly aided, facilitated and used his highest rank prosecutorial power as Attorney General of the State of New York to procure by fraud of complainant Spiridonakos, unjust enrichment by using extortion of defendant Veleanu. Due to lack of injury and aggrieved party, AG did not have standing to act as personal attorney to the complainant Spiridonakos and sue Veleanu.
b. AG cannot invoke GBL 349 in this legal case as it represents a commercial dispute not oriented to consumers at large due to singular
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discordancy and lack of materiality (Veleanu disclosed at first instance after making acquaintance with Spiridonakos that he does not collect or sell jewelry objects, rather art objects). Due to lack of injury, GBL cannot be invoked in this particular case.
c. AG could not invoke GBL 350 for prosecution due to the obvious fact that Veleanu never advertised and AG did not even state a cause of action under GBL 350 in his complaint. As such, all penalties, interest and court cost requested by AG and granted by judge Pagones are null, voided ab initio and invoked by legal extrinsic fraud of AG and undeniable FRAUD UPON THE COURT. Judge Pagones as an officer of the court and attorney admitted to the Bar knew or should have known about the illegalities used by the prosecutor and due to his oath of office was supposed to be unbiased and impartial in his legal function as a judge of the Supreme Court of New York. After all, AG could ask as a grant the moon from the celestial space, but as an impartial referee, a judge is refrained to act upon unreasonable, unconscionable and irrational requests.
10. AG requested and was granted not only punitive penalties, but also interest of 9 % granted not only to the complainant Spiridonakos, but to all former customers that merely asked for a refund without claiming misrepresentation of the items they bought. Such 9 % interest starting from the date of purchase of the jade items that is years back, provided an unjust enrichment to the customers that took advantage of this unscrupulous offer by AG to defraud the seller and breach the commercial contract that provided refunds without the recourse of the court of justice. These punitive fines and retroactive interest of 9 % was requested by AG as a punitive action for the motion of reargument and renew of Veleanu. The repressive and oppressive act as claimed by AG is a clear unconstitutional and dictatorial act of the highest prosecutor in the State to suppress the right of a person accused of wrong allegations to defend himself. AG stated clearly in his affirmations that Veleanu “refused” to acknowledge the false allegations. In other words, as a dictator, AG Andrew Cuomo blames the defendant Veleanu of refusing to acknowledge the false allegations. Such illegal behavior demands impeachment from the office of an official. The punishment by the court of undeniable rights of due process and equal rights is unconscionable, incomprehensible in any democratic country. Thus, judge Pagones actions are characterized as FRAUD UPON THE COURT.
11. The Appellate Court Second Department affirmed the judgment of
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SCDC under presidency of judge Pagones based only on intellectually defective inference that the items sold to the single complainant Spiridonakos were not made of jade, rather an inferior stone material. The Appellate Court failed to consider the argument that the complainant was sold an art carving made from a multi-mineral composition of rock and the gemological examination is not prone to determine the multiple mineral composition of the stone and the examination in one determined point might not yield to the discovery of a single mineral that might or not be present in another area. The jadeite mala were not of jewelry grade and as such, the composition of the stone is not made of a single mineral, jadeite. Jadeite art carvings are not prone to be examined for authenticity by gemological examination, rather by mineralogical examination that was not done by the gemological laboratories. Gemological examination was never done by jade merchants in non jewelry grade carvings and the standard of any jade merchants is to perform only mineralogical examination that Veleanu conformed to. A court of justice cannot impose on any merchant to perform a test that not only is not recognized that is necessary, but a complete absurdity and denial of science by irrational, absurd and idiotic court imposed decisions. Veleanu checked lately with 2 prominent gemological laboratories in New York City and was told that their laboratory do not perform gemological examination in jewelry items that are larger than 20 carat (4 Gm.) due to difficulty of examination and inaccuracy of results due to a larger surface that needs to be examined. The fallacy of the Appellate Court resides mainly into the fact that the Appellate Court failed to perform the assigned duty of review of the trial court with the errors demonstrated in the brief and respond to the questions posed to the Court. The objective demonstration by Veleanu of the pre-determined decision of the Appellate Court before the last motion to the Appellate Court was decided, shows without any margins of doubt that Appellate Court’s 4 judges had pre-determination of their decision weeks prior rendering the decision and order and this represents unfair and unconscionable bias of the court toward the weaker party facing the highest prosecutor in the State and presently the governor of the State. As the Appellate Court suppressed evidence, blocked the possibility to present the defense of Veleanu to the Court of Appeals, it undeniably represents objective proof of FRAUD UPON THE COURT.

1. Averments in support of Veleanu’s request for relief of order(s) and
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judgment(s) pursuing CPLR 5015 (a) (2), newly discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under CPLR 4404 (b).

The undersigned Veleanu was deprived to introduce any evidence in the form of motions, affidavits, etc., due to the fact that his defense was suppressed by fraudulent actions of the judges that participated in this legal action. His pleadings, motions to dismiss were fraudulently denied on base of being “unsworn” in complete disregard of CPLR 105 (u). The reargument/renew motion submitted by Veleanu’s attorney was fraudulently denied as being rather a motion to renew rather than reargument in an irrational argument that even the motion to renew would make the summary judgment non-applicable due to presence of numerous triable issues of material fact. A “kangaroo court” would make impossible to a defendant to bring new findings of fact or conclusions of law or presenting new evidence. The intrinsic fraud and especially extrinsic fraud are difficult to detect during the trial. After all, a humble defendant would appear as irrational to challenge the highest prosecutor in the state and accuse him of fraudulent acts!

CONCLUSION

Pursuant to CPLR Article 50 R5015 (a), undersigned Mircea Veleanu acting on present motion and based on Memorandum of Law attached to the motion requests the Supreme Court of Dutchess County which rendered the orders and judgments, to relieve Mircea Veleanu from such orders and judgments upon such terms as may be just upon the following grounds:
A. R5015 (a) (3); Fraud, misrepresentation or other misconduct of the adverse party.
B. R5015 (a) (4): Lack of jurisdiction to render the judgment: in personam (personal), locum (territorial), and subject matter.
In consideration for the undeniable fact that several judges of the Supreme Court, Dutchess County were biased toward the undersigned, violated numerous laws of NY State and the constitutional rights of the respondent and in consideration that the involved judges have ties and personal
relationship with other judges of the Supreme Court, Dutchess County that
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would be an impediment in assuring an unbiased decision in this case, the undersigned requests that the legal proceedings should be conducted in a different venue. As the undersigned lives most of the time in Westchester County, it is requested in the application supported by this Memorandum of Law, that all proceedings of this case should be conducted in the Supreme Court, Westchester County. In alternative, respondent Veleanu requests the alternative venue of Orange County Supreme Court where Veleanu has the principal residence and homestead in Newburgh.
If the change of venue is impossible for any reason whatsoever, the undersigned request the court voluntary recusal of judge Peter Forman due to conflict of interest as Judge Peter Forman is accused in the present application of being biased, partial and committing at least 2 acts of FRAUD UPON THE COURT in this legal case. If the future proceedings would continue in SCDC, applicant Veleanu request the court the assignment of a judge that was not involved in this legal case and able to confirm that the work or personal relationship would not prevent him (her) to be impartial, fair and unprejudiced toward applicant Veleanu.
E. Pursuant and acting in accordance to Article 50, CPLR 5015 (d): Restitution; the undersigned, Mircea Veleanu, requests the Court to direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal.
In the interest of justice, Janet Spiridonakos who committed the criminal acts of perjury, extortion, forgery and counterfeiting, conspiracy to defraud the undersigned, conspiracy to violate the constitutional rights of the undersigned should be brought to the court as active party to the legal suit and made responsible for her criminal acts. In addition to the above issues, the undersigned requests the Court that the Court use the “long arm” of the justice and bring for prosecution the 2 former customers: Jeson Shzu and Misuk Archer, that breached the commercial contract of sale and made them responsible for the cost of litigation incurred by Veleanu and compensatory and punitive damages for their reckless breach of the contract for the purpose of unjust enrichment and defrauding Veleanu.
Wherefore, Mircea Veleanu requests from the Court the refund of undertaking paid by Veleanu in the amount of $36,634.19. Upon the receipt of the undertaking, the amount representing the legal cost of litigation and compensatory and punitive damages for the reckless breach of contract of the individuals involved, should be subtracted from the undertaking. Any
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residual amount if any would be refunded to the involved customers according to the conditions of sale of the contract.
Wherefore, if any unresolved issues of material fact needs to be tried in
the court, the undersigned, Mircea Veleanu, requests that the trial should be decided by a jury.
Wherefore, respondent requests the court to decree a declaratory relief to rehabilitate the damaged reputation and former unstained standing in the local community, as well as in US and worldwide.
Wherefore, undersigned Mircea Veleanu requests the Court to award the undersigned reasonable attorney fees including the fees paid to attorney Clinton Calhoun, as well as all the legal expenses incurred by the undersigned to defend this frivolous legal case.
Wherefore the undersigned, Mircea Veleanu requests the Court to award the undersigned from the complainant, Janice Spiridonakos, punitive and reparative relief in the amount of $2,500,000 for the criminal acts of Janet Spiridonakos consisting in fraud, forgery, mislabeling, perjury, uttering, extortion, conspiracy to defraud Mircea Veleanu, conspiracy to violate constitutional rights of Mircea Veleanu, fraudulent misrepresentation of facts, evil, malicious and deliberate intent to cause Mircea Veleanu to suffer tremendous psychological stress defined as Intentional Infliction of Emotional Distress and Legal Abuse Stress Syndrome, physical injury consisting in elevation of blood pressure of Mircea Veleanu, mental anguish, loss of enjoyment of life, loss of material property, pecuniary injury consisting in loss of revenue of royalties derived from the sales of the books authored by Mircea Veleanu, loss of income due to closure of the Internet business virtual store, large legal expenses to defend a frivolous and vexatious suit including but not limited to lawyer’s fees, irreparable injury to professional reputation of Mircea Veleanu as an internationally and nationally known scholar in oriental arts, injury to moral character and outstanding social status in the community where Mircea Veleanu lived for more than 30 years and performed dedicated medical work to the community.
I, hereby, Mircea Veleanu declare that all foregoing statements are true to my personal knowledge and subject to perjury.
God bless America!. God save America!

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Sworn to before me this _____________________
___day of October, 2012
Mircea Veleanu

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