Where Did All That Money Come From?

The New York State judiciary has been perceived by many as viewing itself above the need to share in the pain of the current budgetary crisis. Judges whine that their salaries are far below what they could earn in private law practice, never mind that they chose to run for the seat on the bench in the first place. The New York Court of Appeals is now completing, if it has not already completed, construction of luxury apartments for its judges to use while up in Albany. Many court personnel are where they are on account of political patronage, which wouldn't be so bad if so many of them were not so insolent towards the attorneys and members of the public whose circumstances compel dealings with the court system. And Chief Judge Jonathan Lippman did a lot of pouting and pissing and moaning before he grudgingly conceded the need for the judiciary to make some painful cuts in its budget.

But there is at least one judge who understands his duty to stand watch over the public purse. Justice Robert A. Ross, of the Nassau County Supreme Court (don't be too impressed by the "Supreme" terminology; the county Supreme Courts in New York are the lowest courts of general jurisdiction), has before him the matrimonial action of Felice Cohen against Eyal Cohen. In the course of the proceedings, Eyal had asserted that his income was approximately $10,000 per year and that he lived rent-free on Mom & Dad's dime, and, pleading poverty, was assigned counsel (i.e., on the taxpayers' dime).

Eyal apparently had been less than fully cooperative with the Court's directives, and a contempt hearing (not the first one) had been scheduled. Shortly before the scheduled contempt hearing, Felice and Eyal reached a settlement whereby Eyal would pay Felice a settlement of $45,000.

The numbers did not add up when Justice Ross crunched them. How would a person whose income is only $45,000 and who has few assets come up with $45,000? It is one thing to hide assets and income from your soon-to-be-ex spouse. But Eyal hid the assets and income from the Court, and, based upon Eyal's representations, the Court upheld Eyal's Constitutional right to counsel by dipping into the public fisc to engage an attorney for Eyal.

Judge Ross has now called upon Eyal to attend a hearing to explain the apparent discrepancy. In his order, the Judge gives Eyal the opportunity to file an amended Statement of Net Worth, and, to spare Felice's purse, has dispensed with the need for her to attend the hearing. Unless Eyal has a good and credible and documentable explanation, it seems that Judge Ross intends to make Eyal reimburse the State for paying the assigned counsel. And if Eyal did make a major misrepresentation to the Court, then his proper and honest filing of an amended Statement of New Worth would, in all likelihood, give Judge Ross a basis for not sending Eyal to the slammer.

After 20-something years, my own marriage is in no danger of going before Judge Ross or any of his colleagues on the bench. This good investment in my marriage has saved my wife and I lots of money that otherwise would go to the divorce lawyers. It also has saved the taxpayers of New York the expense of having another matrimonial action work its slow and convoluted way through the judicial system.

They All Deserve One Another

Some people just don't interact well with one another. Some people have relationships even more contentious than the one between me and my mother-in-law (which is very, very highly contentious). And then, there are those whose super-contentious relationships place one or more parties in physical danger.

The law has a mechanism, sometimes but not 100% of the time effective, for protecting those in physical danger from contentious interpersonal relationships. It is called an Order of Protection.

The typical Order of Protection is issued by a court with jurisdiction over criminal matters, and stigmatizes the respondent accordingly. But in New York, the Family Court can, within the confines of its limited jurisdiction, issue Orders of Protection for those in "intimate" relationships that have grown contentious. Family Court OPs do not carry quite the same stigma as ones issued by criminal courts (provided that they are adhered to). After all, most people can understand, if not justify, intimate relationships going askew and boiling over.

Recently, the New York State Legislature expanded the Family Court's jurisdiction to issue OPs. An OP can issue to someone who is not a family member, but who has an intimate relationship with the protectee. This removed much reluctance on the part of abused people in boyfriend/girlfriend relationships to stigmatize their significant other with a criminal court OP, and has, no doubt, saved many a woman (and probably a few milquetoast males) from a battering.

Jessica's complex situation involves various contentious relationships. When Jessica "grows weary of her husband, which seems to occur with some frequency, she rekindles her relationship with [Jeremy]. Eventually, she either tires of him or finds renewed interest in [Jeremy] (or both) and a new cycle begins."

After a 10-day stint with Jeremy, culminating in Jeremy's threat to shoot Jessica and her husband, Jessica came to the Madison County Family Court for an OP. Judge McDermott found that Jessica's relationship with Jeremy was "intimate" enough to fall within the scope of the revised Family Court Act, but declined to issue an OP for " public policy" reasons, namely, the law's interest in preserving the marital relationship. Judge McDermott told Jessica that she was free to obtain the OP in criminal court.

Jessica's attorney appealed. On appeal, the Appellate Division, 3rd Department called Judge McDermott to Captain's Mast for declining to issue the OP.

It is tempting to say that Jessica deserves whatever she gets. It is difficult to sympathize with Jessica's shmendrick of a husband for tolerating Jessica's modus operandi. And Jeremy isn't anything to write home about either, at least until he completes some anger management courses (and the simplest way for him to manage his anger would be to find someone better than Jessica to be intimate with).

But the law would lose the popular respect it now commands if it did nothing to prevent violence.

This case is a "damned if they do and damned if they don't" situation for advocates against domestic violence, for the sanctity of marriage, and for the rule of law.

Meanwhile, Jessica will remain in the driver's seat unless and until the two poor excuses for men in her life get up on their hind legs and say, "Enough!"

Two Judges Get It Right

When I first came across the story of the Suffolk County, NY judge who completely canceled the mortgage debt of a financially troubled homeowner, my initial instinct was to back up the bank. After all, my wife and I have made our own mortgage payments, and are wondering where our own free ride is in that regard. Where is the purchaser's responsibility here?

But now that I have read the actual judicial opinion, I'm with Judge Spinner all the way on this one. If the mortgageholder had only been hardnosed, then I would not feel so bad about the delinquent homeowner's feet being held to the fire. But here, the bank couldn't even give the Judge a straight answer as to just how much was outstanding, due and owing on the debt. This is abuse of the judicial process at its worst.

And so, the Judge has reduced that elusive figure to an even, round and definite figure: Zero!



And, westward a few miles in New York County, Judge York (no relation to the city or county) has put a whining loser in his place. It seems that Timothy Keefe, who couldn't stick it out with the first law school he attended (Hofstra), transferred to New York Law School, and then, after receiving a grade of "C" in a legal writing course, sued NYLS, demanding that NYLS change its grading system from letter grade to Pass/Fail.

It is oft stated that the lawyer who represents himself has a fool for a client. Keefe's foolish client was sent back to the showers.

And, having been involved in professional matters that also involve New York Law School, I would, all else being equal, tend to defer to the school's faculty in determining a grade for any student.



[A number of years ago, I went to court pro se, and I won the case for my foolish client. He has yet to pay me for it, though.].

A Wise Decision?

I'm back!

No more pencils, no more books, no more students' dirty looks!!

The grades have just been submitted, and, now that I am no longer teaching until the Fall semester, all of the things that have gone neglected to one extent or another can now be given my attention. Like my sleep! I'm all burnt out from the Summer Session semester, so I'll need a day or two to recover.

Don't get me wrong! I did enjoy teaching the courses I taught. But, like all summer session courses at all universities, this was very intense for student and professor alike.

My brief social commentary for this posting deals with one Clive Campbell -- or rather, The Other Clive Campbell.

There are two reasonably respectable Clive Campbells in the world, namely, the New Zealander soccer player, and the Bronx DJ known as "Kool Herc" who is credited with establishing Hip Hop music in America. [Okay, so I'm not a big fan of Hip Hop music (nor of the Bronx, for that matter), but Kool Herc did work hard and pay his dues and succeed after he came to America from his native Jamaica, so he is in that sense a positive living example of America's greatness.].

Then there is this Other Clive Campbell, who is sullying the names of the DJ and the footballer, is a self-described Brooklyn community activist (sound like Barack Hussein Obama's resume) who has a group called "Da Black Defense League." I shall not link this posting to this man or his group; suffice it to say that the man and his website are everything one would expect and more.

Specifically, Campbell filed a pro se lawsuit against Barclay's Bank and others. The lawsuit smacks of extortion. Justice Arthur Schack, of the Kings County Supreme Court, has dismissed Campbell's lawsuit. It is a long read, but Justice Schack described the Complaint as a "rambling, disjointed, almost 30 page essay dealing with, inter alia: the history of the trans-Atlantic African slave trade; the injustices suffered by African slaves and their descendants; the alleged connection of BARCLAYS to the slave trade; and, the alleged violation by all defendants of international, federal and state laws, including the United Nations Convention on the Prevention and Punishment of Genocide, the United Nations Universal Declaration of Human Rights, the United States Declaration of Independence, and the United States and New York State Constitutions."

You can read the case of Campbell v. Barclay's Bank if you really, really want to. I shall not now detail all of the inconsistencies and nonsequiturs and irrationalities in the complaint. Bottom line: Justice Schack dismissed the complaint for failure to state a cause of action upon which relief can be granted.

The social commentary imponderable: How would that Wise Latina, Judge Sonia "So-So" Sotomayor, have ruled on the case had it been before her bench?

Trial By Jury

I was in court today, only this time it was to discharge my jury duty obligation. Since 1996, there have been no automatic exemptions from jury duty, which I think is a good thing. Everyone should be able to serve.

Inconveniences to my law practice and teaching notwithstanding (I don't go back to teaching for another 2 weeks anyway), I considered myself ready, willing and able to serve on a jury panel. I had been given a month's notice, and was able to arrange my law practice schedule accordingly.

This was the third time in my life I reported for jury duty (not counting some of the telephone standby years where I never actually had to show up). The first time, when I was in law school, all cases settled and they sent everyone home early. The second time, I knew one of the attorneys at voir dire, so we exchanged the pleasantries and I was sent back to the Central Jury room, where, about 2 hours later, everyone was sent home.

This time, the telephone message posted Friday evening (a few minutes before Shabbat) told me that a range of juror numbers in which mine fell was to show up today. I planned my schedule accordingly.

They now have an orientation video narrated by Ed Bradley from "60 Minutes," which showed a few clips from the old Perry Mason TV series I enjoyed when I was growing up. Bradley explains that these were overdramatizations of the real thing. But I liked them anyway. Much of the video consisted of various people, obscure and famous, telling us all how great the jury system is (which was the main purpose of this "orientation"). And then, the HDTV monitor in the Central Jury room shifted to the CNN News (the big story today, of course, was Bernie the Goniff Madoff). Interestingly, there were several commercials for law firms. I wonder what the implications of this would be if one of those law firms were actually involved in one of the cases heard by a jury that day.

They finally called us, so a Court Officer escorted us to the courtroom on the 5th floor (I walked the stairs, and beat most of the people taking the elevators). Looking at the judge's calendar outside the courtroom, I realized that this was a criminal case.

One of the jurors was an Assistant DA (who also seemed to know the defense attorney), so she was immediately excused. After some general discussion of the case by the Judge (criminal misdemeanor leaving the scene of an accident case, trial scheduled 2 - 5 PM, estimated trial time 5 days), His Honor asked if anyone would be unable to serve. Several people came forward (child care, self-employed tradesman, etc.), most of whom were excused.

Then the first 15 jurors on the list, myself included, were called up for individual voir dire. His Honor asked the usual questions, such as whether we were able to decide the case objectively; whether, if the evidence were sufficient, we could vote to convict without regard to the sentence to be imposed; whether we were willing to consider all of the evidence; whether we could attach no significance to the fact that the defendant doesn't testify if she so elects; et cetera.

Then came the question of whether we would be able to apply the law as instructed by the judge. So I raised my hand and said, in substance, the following:

"Your Honor, I have been admitted to the bar for more than 20 years. My practice does not entail criminal law, so I don't have too many preconceived notions as to what the law is here. However, Your Honor, in what I believe to be the unlikely event that Your Honor were to give a legal instruction that differed from my understanding of what the law is, then, Your Honor, I would have significant problems with that!"

One of the Court Officers seemed to suppress a grin, while His Honor took a second or two to compose himself. The Judge then asked me (and not without a tinge of anger) "Are you saying that you would not apply the law as I instruct you if you disagree with me?"

"Your Honor," I replied, "I stress that I consider such an eventuality quite unlikely. But if Your Honor's instruction as to the law in New York were, perchance, to differ from my understanding of it, then I at least would want to know the legal authority, and look up the legal citation, for such an instruction. On account of my training and experience."

I could almost detect little wisps of smoke emerging from His Honor's ears. He called the ADA and Defense Counsel to the bench, and, after about 10 seconds, glared at me and said, "You are excused!"

I can empathize with His Honor. He was damned if he did, and damned if he didn't. On one hand, he had asked, nay, put us all under oath, to be honest and candid. I was honest and candid. And judges are not infallible; indeed, on any given business day, a trial judge who misapplied the law is overturned by an appellate tribunal in the State of New York. If he were to chew me out, then none of the other prospective jurors would have been honest and candid.

[Also playing into the equation, I suspect, was the fact that I have been admitted to the bar about 9 years longer than His Honor (and, apparently, longer than either the ADA or the defense attorney). I have had 9 more years than His Honor has had to develop an understanding of the law.]

On the other hand, if he were to excuse me (which he did), then wouldn't such a precedent effectively serve to reinstate the automatic exclusion of attorneys from jury duty (remember, the other attorney in the jury pool had been excused, right before everyone's eyes, just a few minutes earlier)?

Note that if the Judge did not wish to make a wholesale practice of excusing attorneys, I did give His Honor an out. I stated and restated that I considered the odds of a conflict between His Honor's instructions and my understanding of the law to be rather long. His Honor could, with the agreement of counsel, gone ahead with me anyway. And, His Honor could have seated me, and instructed me to pass him a note if my understanding of the law differed from his instructions, so that he could apprise me of the legal authority for his instructions.

And, perhaps, there may have been the fear of a kingpin juror (though my personality is definitely not that of a kingpin juror).

And so, I am not subject to jury summons for another 6 years.

While it's good to get my schedule back, I'm a little bit disappointed. A major part of me does want the experience of serving on a jury panel.

We'll see what happens when I get called up the next time.


Ironic Postscript: En route back home from the courthouse, I stopped at a nursing rehab facility to visit a member of our congregation who incurred a nasty foot fracture. Other than his depressed mood, he's doing fine medically. And he is a retired physician (with a daughter who has been admitted to the bar a few years longer than I have been). It kind of made his day that there he was, doctor in the patient's bed, was being visited by a lawyer who sat in the jury box.

I Needed This Number to Work There

The 19 July 2007 posting discusses the case of Gomez v. F & T Int'l (Flushing, NY) LLC, 2007 NY Slip Op 27269, 2007 N.Y. Misc. LEXIS 4646, 16 Misc. 3d 867; 842 N.Y.S.2d 298 (Sup. Ct. N.Y. Co. 2007). In Gomez, you will recall, Justice Acosta nixed a former employer's motion for discovery of an injured former employee's income tax returns and immigration status because the ex-employer paid the ex-employee off the books and made no attempt to comply with the Immigration Reform and Control Act of 1986 ("IRCA") provisions requiring verification of the employee's eligibility to work in the United States. I applauded Judge Acosta's decision because it sends the signal to employers that they, too, must do their part if this tide of illegal aliens is to be reversed.

But what if the employer makes a colorable attempt to comply with IRCA, but the employee is an illegal who submits forged and fraudulent documents and credentials?

Justice Acosta's sister jurista on the New York County Supreme Court bench, Carol Robinson Edmead, was confronted with just such a fact pattern in Macedo v J.D. Posillico, Inc., 2008 NY Slip Op 51787(U), N.Y.L.J., 8 September 2008, p. 18, col. 1 (Sup. Ct. N.Y. Co. 2008).

[Disclosure: Before she ascended to the bench, Carol provided me some much appreciated assistance and facilitation in obtaining a major professional career credential.].


Some of the dialogue from Macedo is quite telling:

Q. What is your social security number?
A. 189—- I don't have the social number. I use this number to work.
* * *
A. XXX-XX-XXXX

Q. Is this a number that was given to you by immigration for the purposes of filing taxes?
A. No.

Q. What is the purpose of the number you just provided?
A. At my work, a person gave me this number because I needed this number to work there.

* * *

Q. Who gave you this number?
A. In 95, somebody with whom you work, I think his name was Miguel.

* * *

Q. You also have a tax identification number?
A. Yes.

Q. What is your tax identification number?
A. I don't know it by heart. It's probably in my files.

Q. When was the last time you saw your tax identification number?
A. I just use it when I have to file taxes.



Justice Edmead ruled that "plaintiff's violation of IRCA, by producing a false social security number in order to obtain employment, bars his claim for lost wages." This decision is also to be applauded.

I only hope that Justice Edmead's Macedo decision is not overturned on appeal. Even the best of trial court judges are occasionally overruled, and Carol Edmead is no exception. Specifically, in Barry & Sons, Inc. v. Instinct Productions, LLC, 5 Misc. 3d 172, 783 N.Y.S.2d 225, 2004 NY Slip Op 24261 (Sup. Ct. N.Y. Co. 2004), Justice Edmead presided over litigation in connection with the death in a Bahamas airplane crash on 25 August 2001 of singer, actress and teen entertainment icon Aaliyah. The family corporation that was Aaliyah's business promotion agent alleged that Aaliyah was Blackground's principal artist and its principal asset. Justice Edmead allowed the claim for negligence in destroying the asset to go forward. The Appellate Division, however, disagreed:

"The concept that a person is a property asset of another is, of course, abhorrent to modern day thinking. Courts almost universally reject the antiquated proprietary view of the master/servant relationship."


Barry & Sons, Inc. v. Instinct Productions, LLC, 15 A.D.3d 62, 69, 788 N.Y.S.2d 71, 76, 2005 NY Slip Op 00096 (1st Dept. 2005).


Justice Carol Robinson Edmead happens to be an African-American. What kind of flak would have been flying if a white judge had authored the same trial court decision?

Trading Time

Well, folks, the latest big league player trade seems to have given good value for value.

The bad news: Dr. Jack Kevorkian has been released from prison, and is now back in the game of suicide legalization.

The good news: The Dishonorable Gerald P. Garson, of whom this blog recently posted, has been led away to jail in handcuffs to serve his 3 - 10 year sentence. Brooklyn ex-politico Clarence Norman went along with ex-Judge Garson in the trade.

My two comments on this "player trade":

A. The only assurance the public has that Garson will serve his full sentence, without any parole, probation or pardon, is for him to actually serve the time. Garson's bench bum buddy Victor Barron, who was sentenced to 3 - 9 years for bribery, only served about 4, with work release to a half-way house facility after less than 2 years behind bars. I would be very, very surprised if Garson does anywhere near the maximum.


B. Having been born, raised, and attended law school in a jurisdiction other than the State of New York, this initially confused me, so I shall give the reader the benefit of my experience. In New York, that tribunal known as the "Supreme Court" is in fact the lowest court of general jurisdiction. Separate "Supreme Courts" are to be found in each of New York's counties. In normal states, such tribunals are called "Superior Courts" or "Courts of Common Pleas" or "Circuit Courts." Not so in New York.

In the Empire State, the cases go from the Supreme Court, to the Supreme Court Appellate Division, to the Court of Appeals (actually, this is an oversimplification; there are other inferior courts (in one if not both senses of the word) of limited jurisdiction, the busiest of which is the Civil Court of the City of New York.

But to people who have not spent much time in New York, the term "Supreme Court" conjures up august images of pomp and splendor associated with high-ranking tribunals. Like here, where Garson is referred to as an "Ex-N.Y. High Court Judge." Please, stop insulting the judges who really do sit on the high courts (or, wait a minute! Some of them are not much better than Garson or Barron!).


So the big trade has been consummated: Garson for Kevorkian! But if Garson's health issues act up while he is in the big house, maybe Dr. Kevorkian ought to be brought in to treat him.


UPDATE: Garson was released on bail a few hours later, pending arguments as to whether he should stay free pending his appeal.