slightly redacted bs legal brief by slumlord's attorney against u.s. navy veteran

8/16/2019 Slightly redacted BS legal brief by slumlord's attorney against U.S. Navy veteran

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY

OF

QUEENS

------------------------------------------------------------------)(

ROBERT MILLER and

65-60 REAL TY COMP ANY LLC,

Plaintiffs,

-against -

Defendant.

-----------------------------------------------------------------)(

Index No. 7780/2014

AFFIRMATION

IN REPLY AND

IN OPPOSITION TO

THE CROSS-MOTION

MARKS. FRIEDLANDER, an attorney duly admitted to practice law before the

courts of the State of New York, hereby affirms the following to be true under penalty of

perJury:

1. Affirmant is the attorney for the above named Plaintiffs ROBERT

MILLER and 65-60 REALTY COMP ANY LLC ( Plaintiffs ). Affirmant is personally

familiar with the facts surrounding this litigation and now offers this Affirmation (i) in

opposi tion to Defendant ( Defendant ) reflexive

cross-motion in opposition which has no real merit or substance, and in (ii) reply to

Plaintiffs' primary motion

DEFENDANT AUDACIOUS MANDATES THAT PLAINTIFFS

MOTION BE GRANTED

2.

It

is clear from reading Defendant cross-motion that he

presents absolutely no legally valid excuse whatsoever for failing to appear for his Court

Ordered deposition on May 3, 2016 pursuant to this Court's March 4, 2016 Order

(Exhibit A to the primary motion) or any other times that he failed to appear for a

deposition , Court Ordered or otherwise.



3. Defendant willful and contumacious conduct in this

proceeding mandating the striking of his answer and sanctions is not only on full display

from the three times that he has failed to appear for his Court Ordered depositions (see

Exhibits A B O P V and X to Plaintiffs' moving papers) but now in the

spiteful and disrespectful email he sent to Affirmant on May 23, 2016 n direct response

to Plaintiffs ' motion . A copy of the email is annexed as Exhibit A .

4. Defendant , intending to deflect this Court from his pattern of

default emailed Affirm.antwith an outrageous proposal that his deposition be held

precisely 11:59:58 pm on June 2, 2016 at any of the following locations and in the

presence of people listed below . These locations being the series of odd places:

Proposed locations for the deposition:

1. The Office of the New York State Attorney General that is

located at 120 Broadway in Manhattan.

2. The Office of the United States Attorney for the Southern

District of New York that is located at 1 St. Andrew's Plaza in

Manhattan.

3. The Office of the New York City Public Advocate that is

located on the 15th floor at 1 Centre Street in Manhattan .

4. The Office of the United States Attorney for the Eastern District

of New York that is located at 271 Cadman Plaza East in

Brooklyn .

5. The offices of the Departmental Disciplinary Committee of the

Supreme Court, Appellate Division's First Judicial Department

that is located on the 2nd floor at 61 Broadway in Manhattan.

6. The offices of the New York Times located at 620 Eighth

A venue in Manhattan.

7. The offices of The New York Daily News located at 4 New

York Plaza in Manhattan.



8. The office of the New York City Bar Association located at 42

West 44th Street in Manhattan.

9. In Bryant Park in Manhattan

5. Defendant obviously intent upon thumbing his nose at this

Court and this action without

any

legal justification iterates n his spurious proposal

that a series of public officials and figures appear at his deposition. These individuals are :

People to be present at the deposition:

1. New York State Attorney General Eric Schneiderman

2. Queens District Attorney Richard Brown

3. Manhattan District Attorney Cyrus Vance , Jr.

4. New York State Chief Judge Janet DiFiore

5. New York City Public Advocate Tish James

6. New York Congressman Jerrold Nadler

7. New York State Senator Charles Schumer

8. New York State Appellate Judge Michael L. Pesce

9. New York City Housing Court Judge Inez Hoyos

10. Queens Housing Court Supervising Judge John Lansden

11. Queens Civil Court Judge Terrence O'Connor

12. New York State Governor Andrew Cuomo

13. New York City Councilman Ben Kallos

14. Queens Supreme Court Administrative Judge Jeremy

Weinstein

15. New York City Administrative Judge Fem Fisher

16. New York State Administrative Judge Lawrence Marks.



17. Former Queens Housing Court Judge Deighton Waithe .

18. The members of the Departmental Disciplinary Committee that

is composed of lawyers and a smaller number of non- lawyers

appointed by the Appellate Division of the Supreme Court, First

Judicial Department.

19.

Judge William

H.

Pauley

III

of the United States District Court

for the Southern District of New York.

20. All members of the news media that wish to be present.

21. All

present and former tenants of the building located at

65-60

Booth Street in Rego Park, New York

In the event that you choose not to agree with what I have

proposed, it will not change the fact that by having proposed

this, I clearly will have complied with the terms of Judge

Nahman s Order dated March 4, 2016 .

From,

(Emphasis added).

6. The Court's Order explicitly directed Defendant t appear

for a depositionon May 3, 2016 at 10:00 a.m.at the office of Plaintiffs counsel or at a

mutually agreeable time and place within 90 days of the date of the Order. Conspicuously

missing from Defendant argument is the fact that immediately upon

receipt of this Order , Affirmant sent Defendant Notice of Entry of the Order

with a letter stating that Defendant must appear on May 3, 2016 or contact

Affirmant prior to schedule another mutually agreeab le date . See Exhibit A and X to

Plaintiffs' moving papers.

7. Tellingly, Defendant cross-motion makes no attempt to

explain why he failed to contact Affirmant upon receipt of my letter which explicitly

informed Defendant to appear for his deposition as directed on May 3, 2016 or contact



Affirm.ant to schedule another mutually agreeable date before June 3, 2016. See Exhibit

A to the primary motion. Nor does Defendant explain the reason he failed

to appear for..his deposition on May 3, 2016 as per this Court's Order.

8. Also conveniently omitted from the cross-motion is that Defendant

did not contact Affirmant after receipt of that letter or even in a timely

fashion after he failed to appear on May 3, 2016 to schedule a mutually agreeable date

and time.

9. Instead, using the same dilatory tactics that underlie every one of

Defendant actions, he waited until Plaintiffs were forced to move this

Court for the instant relief (and about 80 days after this Court's Order) to besiege

Affinnant with a completely empty proposal for a mutually agreeable date for his

deposition and this Court with yet another rambling and incoherent set of disrespectful

motion papers claiming he is not in default.

10. Moreover, Defendant disrespect for this Court is revealed

every time there is a motion to be considered by this forum. In point of fact, Defendant

statement in paragraph 18 of his affidavit in support of the instant cross

motion wherein he states [i]t may be helpful for this Court to familiarize itself with the

following disciplinary proceedings against New York State judges that have resulted in

judges having their appointments as judges terminated and judges being censured

because of due process violations .... should disturb this Court to the same extent of the

presentation of a graphic nude figure with two large hands giving the middle finger on

each with Defendant disturbed comment How do you like this 1st

Amendment expression that was attached to in Defendant cross-motion



Defendant has disobeyed this Court's March 4, 2016 Order. Affirmant

wants this Court to know that this type of demand is very typical of Defendant

In fact, an unwarranted demand for sanctions against Affirmant and/or

Plaintiffs is a staple of every single motion and cross-motion Defendant has

interposed in this proceeding and each time this relief has been denied as unfounded . See

Exhibits A , L , M , R , S of Plaintiffs' moving papers.

14. This relief demanded is similarly an improper , misplaced, and just

another attempt to deflect from the fact that he has failed to appear yet again for his

deposition pursuant to a Court's Order even after Affirmant afforded him ample time to

communicate a mutually agreeable time and place other than May 3, 2016. See Exhibit

A to the moving papers.

15. As this Court is aware, 22 NYCRR § 130-1.l(c) of the Uniform Trial

Court Rules defines conduct as being frivolous (and thereby sanctionable) if: (a) it is

completely without merit in law and cannot be supported by a reasonable argument for an

extension , modification or reversal of existing law; (b) it is undertaken primarily to delay

or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c)

it asserts material factual statements that are false. See In re S.A. W 6/5/07 NYLJ (col. 3).

16. Affirmant respectfully submits that it is well settled that, when moving for

the imposition of sanctions due to frivolous conduct pursuant to 22 NYCRR § 130-1.1(c),

the movant must provide the court with specific and well-founded reasoning for the

imposition of sanctions. See In re S.A. W supra .

If

the movant fails to make a substantive

or probative showing to support an application seeking the imposition of monetary



sanctions and counsel fees for frivolous conduct, such motion must be denied . See n re

SA. W supra.

17. Based on the cited authorities it is readily apparent that Defendant

has failed to present any basis by which this Court could award sanctions

against Affirmant. Defendant moving papers offer no substantive basis for

such claim . Moreover , this flaw in his application for the most severe sanctions is

amplified by the fact that he has in fact failed to appear for his Court Ordered deposition

on May 3, 2016 or contact Affirmant to schedule another mutually agreeable date.

Additionally, his roiling affidavit contains only conclusory self-serving statements and

various irrelevant exhibits that are probative of nothing.

18. Affirmant urges this Court to regard Defendant application

for the most severe sanctions as nothing more than a reflexive action in response to

Plaintiffs' own motion for sanctions to be imposed against him. Such a claim is a

retaliatory gesture seeking to deflect this Court from focusing upon Defendant

(i) failure to participate in meaningful discovery proceedings; (ii) failure

to appear for his deposition as initially noticed for August 6, 2014; (iii) failure to appear

for his deposition pursuant to a PC Order of the Court dated March 2, 2105 , on April 8,

2015; (iv) failure to appear for his deposition on October 15, 2015 pursuant to this

Court's PC Order dated May 27 , 2015 , and (v) failure to appear for his Court Ordered

deposition on May 3, 2016.

19. Defendant intent to delay and frustrate Plaintiffs' right to

expeditiously proceed with this litigation is beyond dispute. Defendant



outrageous conduct speaks volumes to the denial of his motion and the granting of the

relief requested in Plaintiff's primary motion.

20. The next branch of Defendant cross-motion seeks an

Order compelling Plaintiff to comply with Defendant's demand for documents that this

Court ordered on May

27, 2015

to serve Plaintiffs counsel with on or before June

17,

2015. See paragraph E of the cross-motion and paragraph vii of the affidavit in

support.

21.

This Court must note that this demand for relief is very similar to the relief

this Court denied Defendant on March 4, 2016 pursuant to his cross-motion

to Plaintiffs' prior motion (exhibit A in the moving papers) which sought to strike the

complaint and dismissing this entirely frivolous action with prejudice pursuant to CPLR

§3126 due to Plaintiffs' refusal to comply with Defendant's demand for documents that

this Court ordered Defendant on May 27, 2015 to serve Plaintiffs' counsel with on or

before June 17, 2015. A copy of that cross-motion is annexed hereto as Exhibit B . See

Exhibit A to the moving papers. The relief sought herein suffers from the same fatal

defect that sundered Defendant prior application and must therefore be

denied.

22. First, this branch of the cross-motion must be denied as Defendant

has failed to comply with 22 NYCRR §202.7. The rule, in pertinent part,

provides as follows:

(a)

There shall be compliance with the procedures prescribed in the

CPLR for the bringing of motions.

In

addition ... no motion shall be filed

with the court unless there have been served and filed with the motion

papers (1) a notice of motion, and (2) with respect to a motion relating to

disclosure ... an affirmation that counsel has conferred with counsel for



the opposing party in a good faith effort to resolve the issues raised by the

motion ....

(c) The affirmation of the good faith effort o resolve the issues raised

by

the motion shall indicate the time, place and nature of the consultation and

the issues discussed and any resolutions, or shall indicate good cause why

no such conferral with counsel for opposing parties was held... .

23. Defendant having failed to both make any good faith

effort to resolve these discovery issues and to submit the affirmation required

under 22 NYCRR §202.7, should lead this Court to the conclusion that his

application is legally untenable and should be denied out of hand..

24. Moreover, the fact that Defendant appears pro se is of

no legal moment as a pro

se

litigant, acquires no greater right than any other

litigant.

Roundtree v. Singh

143 A.D.2d 995 (1988);

see

CPLR §105(c).

It

is

often been stated, a litigant who represents himself does so at his own peril.

Banushi v. Lambrakos 305 A.D.2d 524 (2003); Davis v. Mutual of Omaha Ins .

Co. 167 A.D.2d 714 (1990). Moreover, the fact that one appears prose is not a

license to abuse the process of the court .... Kane v. City of New

York

468 F

Supp 586, (SDNY 1979), affd 614 F.2d 1288 (2d Cir1979).

25. A review of the cross-motion reveals that Defendant

utterly failed to comply with the requirements of the Uniform Rules for Trial

Courts. 22 NYCRR 202.7. At this point in the litigation Defendant

cannot claim his omission was inadvertent or that he did not understand that rule

was applicable as Affirmant, on more than one occasion throughout this litigation,

including in Plaintiffs' primary motion and previous motion for the same relief,

has advised Defendant that before a party can move to compel



discovery from another litigant, the parties must attempt to resolve those

discovery issues that are in dispute. See 22 NYCRR 202.7. Therefore, despite

Defendant being a prose litigant, his misapprehension of the Court's

rules does not relieve him of the consequence of not complying with this clearly

defined mandatory rule. Roundtree v. Singh supra.

26. In light of Affirmant ' s prior letters informing Defendant

of this rule, his failure to comply with 22 NYCRR §202.7, is very

revealing . Defendant behavior before this Court shows that ,

regardless of the Court's requirements, he is not interested in discussing or

resolving alleged discovery issues about Plaintiffs' discovery production or his

ow as well.

27. Secondly, there is no merit to this branch of Defendant

motion to for discovery sanctions. It is patently false that P laintiffs

have failed to comply with Defendant demand for documents as

alleged in the cross-motion . In point of fact , on or about July 2015 Plaintiffs

served Defendant with a response as required by law to overbroad,

irrelevant , and vexatious discovery demands . This document is conspicuously

missing from Defendant motion papers.

28. It is telling that Defendant would intentionally omit

Plaintiffs ' valid document discovery response from his papers . Without including

Plaintiffs' discovery response, Defendant misleads this Court with

his incredible claim that his due process rights are being violated.



29. Defendant manifest contempt for the judicial

process, this and the parties involved, undermines any perceived merit to his

application. Being pro s does not give Defendant license to harass

Plaintiff or unnecessarily delay this litigation with this frivolous and abusive

motion practice . Therefore, the conclusion that this Court must reach is that this

branch of the cross-motion must be denied summarily.

WHEREFORE, Affirmant respectfully requests that Plaintiffs primary motion be

granted in its entirety and Defendant cross-motion to dismiss be denied in

all respects , and for such other and further relief as to this Court seems just and proper.

Dated: May 25, 2016

New York, New York

slightly redacted bs legal brief by slumlord's attorney against u.s. navy veteran

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