Petition for Writ of Certiorari — Kevin Checksfield, Petitioner v. Stefan Berg

U.S. Supreme Court

Docket No._____

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Washington, D.C.

KEVIN D. CHECKSFIELD,

Plaintiff-Appellant,

against

STEFAN BERG,

Defendant-Respondent.

On Petition to the New York State

Supreme Court Appellate Division

Third Dept.

-

Petition for a Writ of Certiorari

KEVIN CHECKSFIELD

Appellant Pro Se

157 Cambridge St.

Syracuse, New York 13210

Phone# (315) 877-4064

-

N.Y.S. Supreme Court Appellate Div.

-

Index No. 522551

Question Presented:

Does an Attorney failing to handle his client's

interests by not filing a complaint in a timely and

professional manner, and then purposely and

with intent allowing applicable statutes to run

violate his clients rights; and when brought up on

Legal Malpractice charges commits perjury in

submissions and statements to the courts violate

said client's XIV Amendment protections and

rights?

Parties Involved in

Case Before the U.S. Supreme Court

For a Petition of Certiorari

Name

Role

Kevin D. Checksfield

Plaintiff/Appellant

*J Patrick DeLince, ESQ Consultant

Stefan Berg, ESQ

Defendant/Respondent

*Mr. DeLince provided Plaintiff with the affidavit

at the Lower Court; as well as representing the

Appellant at the New York State Supreme Court

Appellate DivisionThird Department

11

Table of Contents

Page(s)

Issue Page ....................................................... i

Name's of Individual's at

U.S. Supreme Court ........................................ ii

Table of Authorities .................................. iv & v

Part I.

Federal Statute, Basis for Court Jurisdiction and

Constitutional Provision..............................1-10

Part II.

Case background and Support Information... 11-14

Part III.

Reasons for granting writ: Merits of the

underlying case; rationale for delay in bringing

case to court; Precedential standing of

case.......................................................15-25

Conclusion.......................................................26

in

Table of Authorities

New York State Cases

C & F Pollution Control Inc. v. Fidelity and Case

Co. of N.Y

222 A.D.2d 828, 653 N.Y.5.2d 704

(3d Dep't 1995)...........................................

lorizzo v. Mattikow

25 A.D. 3d 762, 807 N.Y.S 2d 663

(2d Dep't 2006).......................................

U.S. Bank N.A. v. Dorestant

131 AD3d 467 (2015)....................................

Federal Cases

Armstrong v. Manzo

380 U.S. 545, 380 U.S. 552 (1965)....................

Goldberg v. Kelly

397 U.S. 254 (1970).......................................

iv

Mathews v. Eldridge

424 U.S. 319 (1976).......................................

Morrissey v. Brewer

408 U.S. 471, 408 U.S. 481 (1972).....................

United States v. Wells

519 U.S. 482 (1997)........................................

Reference Sources

Blacks Law Dictionary

New York, (1991)..........................................

Constitutional Provision

United States Constitution XIV Amendment,

Sec. #1, (Ratified 1868)....................................

Statutory Provision

U.S.C. 42; chapter 21§ 1983................................

V

Basis for Court Jurisdiction

Part I

In the

Supreme Court of the United States

Case Name: 522551

Kevin D. Checksfield, Petitioner,

Vs.

Stefan D. Berg, Respondent.

On Petition for a Writ of Certiorari To:

The New York State Supreme Court

Appellate Division

Third Department

Kevin D. Checksfield, pro se

157 Cambridge St.

Syracuse, New York 13210

(315) 877-4064

This petition is based upon the following decision

of the New York Supreme Court Appellate

1

Division—Third Department. Decision of March

16, 2017; after the timely filing of Motion to

Appeal by Petitioner.

State of New York

Supreme Court Appellate Division

Third Judicial Department

Decided and Entered: March 16, 2017

Case Number: 522551

Kevin D, Checksfield,

Appellant,

V.

Memorandum

And

Order

Stefan D. Berg,

Respondent.

Calendar Date: January 18, 2017

Before: McCarthy, J.P., Garry, Lynch, DeVine,

and Mulvey

2

DeLince Law PLLC, New York City (J. Patrick

DeLince of Counsel), for Appellant.

Stefan D. Berg, Syracuse, Respondent,pro Se.

Devine,, J.

Appeal from an order of the Supreme Court (Cerio

Jr., J.), entered May 20, 2015 in Madison County.

This, among other things, granted defendants

cross motion to dismiss the complaint.

Upon notification of Appellate Courts decision;

Petitioner timely filed a motion for leave to Appeal

to the highest New York State court:

State of New York

Court of Appeals

Decided and entered on the

Twenty-Seventh day of June, 2017

3

Present, Hon. Janet D. Flore, Chief Justice,

Presiding

Mo. No. 2017- '.v\

Kevin D. Checksfleld,

Appellant,

Stefan D. Berg,

Respondent.

It is ORDERED, on the Courts own motion, that

the appeal is dismissed, without costs, upon the

ground that no appeal lies as of right from the

unanimous order of the Appellate Division absent

involvement of a substantial constitutional

question.

Judge Feinman took no part.

A motion for Reconsideration was filed in a timely

manner with the Court of Appeals addressing the

exact issue raised by the Court of Appeals in the

previous motion.

State of New York

Court of Appeals

Decided and Entered

On the Nineteenth day

Of October, 2017

Hon. Janet DiFiore, Chief Judge, presiding,

Mo. No. 2017-826

Kevin Checksfield,

Appellant,

Motion For

Reconsideration

V.

Stefan D. Berg,

Respondent.

Motion for re-argument denied.

Judge Feinman took no part.

5

Introduction and Procedural History

The former U.S. Attorney for Southern New

York exposed and prosecuted numerous New York

State politicians, among others, for widespread

corruption. The case being presented to the

Supreme Court for review on Certiorari is an

example of that corruption stemming from the

abuse of authority by an agency of the State of

New York. This abuse of authority includes what

seems to be the active intimidation of attorneys in

the representation of client's rights.

The Respondent (or Mr. Berg) was hired to

represent the interests of the Appellant against an

agency of the State of New York; the Respondent

not only did not represent in an efficient and

professional manner the interests of his client; the

Respondent with intent strung his client along to

make sure that any statutes had run. This is a

mindset which continued through the proceedings.

The situation became clear to the Appellant that I

would have to represent myself in the Lower

Court. After a succession of lawyers and firms I

filed a default motion in the State Supreme Court

of Madison County. The decision of that court was

submitted on May 19th 2015.

The Notice of Appeal and Pre-Calendar

Statement were filed in a timely way. This led to

an Appellate Hearing on January 18th 2017. The

Appellate was represented by J. Patrick DeLince

of New York City. Mr. DeLince had provided the

Appellant with the affidavit at the Lower Court.

Approximately two months after the hearing in

January the Appellate Court upheld the Lower

Court decision. The Court never even mentioned

6

Mr. DeLince's submission to the court on

appeal or his statements made at the hearing.

The decision which was released on March

16th 2017 astonished Mr. DeLince and the

Appellant. After the Appellant and Mr. DeLince

pointed out to the Appellate Court that the

Respondent had lied at both the Lower Court and

in his submission to the Appellate Court; that

Court still upheld the Lower Court decision. The

Appellate decided to appeal that decision to New

York State's highest Court.

The Appellant motion to the New York

State Court of Appeals was filed on or about April

15th 2017. The Appellant did not have high hopes

that the Court would accept the case because of

the connection between the State University of

New York (or SUNY); the original defendant in

the case the Respondent was representing the

Appellant against; the Appellant felt that the

inherent conflict of interest may be too much. That

motion was rejected because the Appellants'

primary argument was based on the New York

State Constitution. The Appellant filed a motion of

Reconsideration addressing that same issue and

basing that motion exclusively on the U.S.

Constitutions' Fourteenth Amendment. That

motion was denied without explanation on October

19th 2017.

7

Federal Statute

This has brought the situation to the Supreme

Court:

Every person who, under color of any

statute,, ordinance, regulation, custom or usage, of

any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any right,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer's judicial

capacity, injunctive relief was unavailable. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

(U.S.C; 42; chapter 21§ 1983)

Taking into consideration this federal

statute and the fact in New York State, in order to

show legal malpractice, a plaintiff must prove that

the attorney in question was negligent; this

negligence was the proximate cause of the

plaintiffs injury; and but for that negligence, the

plaintiffs action would have been successful. C&F

Pollution Control Inc. v. Fidelity and Case Co. of

N.Y., 222 A.D.2d. 828,653 N.Y.S. 2d 704 (3d Dep't

1995)

Constitutional Provision

Had the Respondent not been negligent in

properly filing the Appellant's claim in a timely

manner before the statue of limitations had run,

the Appellant would have been able to proceed to

litigation.

The Respondent in not filing a timely

complaint denied the Appellant the opportunity to

proceed to litigation against the State University

of New York Health Science Center at Syracuse.

As this case evolved from a wrongful

termination/labor and employment matter into a

legal malpractice case the Respondent's story of

his involvement in the matter has changed. By

committing perjury on this level and saying, after

the fact, that the Appellant never had a case the

Respondent violated the Appellant's Fourteenth

Amendment privileges.

Amendment XIV

(Sec. #1) All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the state wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any state deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

(U.S. Constitution, XIV Amend. Sec 1)

9

As the Respondent in this case; Mr. Berg; simply

did not file the complaint that he was paid to and

promised he would. When Mr. Berg was turned in

to the County At

Grievance Authority, he

claimed, the Appellant was the one who was

unresponsive or something to that effect. The

contention in the Respondent's statement to the

Attorney Grievance Authority was not that he

ever thought the Appellant did not have a

legitimate case; in fact; the Respondent said the

Appellant did have a legitimate claim.

10

Statement of Case

Part II

The situation between the Appellant and

the original defendant that the Respondent was

supposed to represent the Appellant against

started off as a contractual matter. The Appellant

forced the situation to a grievance procedure

which the Appellant and his coworkers won. It

was at that point the employer terminated the

Appellant's employment. The Respondent was

immediately notified of this and he stated the

termination was obviously retaliatory. This is

when the Appellant and Respondent began to

make plans to file a claim against the State

University of New York Health Science Center at

Syracuse. (See App. Pg. 15)

After supplying the Respondent with the

material he requested and making payments to

Mr. Berg with the expectation the complaint

would be filed; a long period of broken promises to

get the complaint filed began. The Respondent

would promise to have the complaint ready for

signing by a specific date and then fail to produce.

The Respondent kept assuring the Appellant that

there were specific statutes that stretched for

years so that would not be a problem.

As time went by the Appellant grew increasingly

frustrated, and gave Mr. Berg a final deadline to

11

have the complaint ready. The Respondent wrote

back that he would try to do just that. (See App.

Pg. 16) The deadline the Appellant gave Mr. Berg

came and again the complaint was not ready. At

that point the Respondent was turned in to the

County Grievance Authority.

After missing two deadlines the respondent

sent his reply to the Attorney Grievance

Authority. (See App. Pgs. 17-19) If someone reads

this statement and compares them to his

statements to the lower court in Madison County

they are clearly different. (See App. Pg. 21) The

Respondent in his statements to the Grievance

Authority claims that either complaint drawn-up

would have sufficed. Then to the lower court and

then the Appellate Court he claims there never

was a case. (See App. Pgs. 29-30) In fact, in

submissions to both Courts the Respondent states

the Appellant was not 'even a civil service

employee of the SUNY Health Science Center at

Syracuse. Yet in his statement to the Attorney

Grievance Committee the Respondent states the

Appellant was a civil' service employee.

The State of New York recognized I was a

civil service employee by awarding unemployment

benefits. (See App. Pgs. 46-47) At every step of the

legal process it has been made clear to the New

York State's Courts that the Appellant has

committed perjury.

At the motion hearing in Madison County

made it clear to the Judge that in the

Respondent's submissions to the Court he had

12

lied. One of the first things I stated in court was,

"Berg is lying," this statement does not appear in

the transcript because I suspect it has been edited

out. When I filed the Notice of Appeal in the Third

District; you are required to file a Pre-Calendar

statement. I clearly state in this that the

Respondent committed perjury. (See App. pg 48) I

was represented by J. Patrick DeLince at the New

York State Appellate Court—Third Department.

Mr. DeLince in his submissions addresses

the issue of the Respondent's perjury. After being

given detailed records of the situation and

everything that had transpired, Mr. DeLince

provided that affidavit at the lower court. When I

decided to appeal the decision of the lower court I

asked Mr. DeLince to handle the appeal. There

were two specific reasons I asked Mr. DeLince to

represent me at the Appellate Court. The first was

that Mr. DeLince had done a strong job with the

affidavit at the lower court and had extensive

experience as a labor/employment attorney. The

second was that Mr. DeLince practiced and lived

in New York City. There had simply been too

many problems with the lawyers and firms the

Appellant had worked with in the Upstate New

York area.

In June 2001, well after the statue of

limitations had passed, Mr. Berg claimed

that Mr. Checksfield has no case to begin

with. This completely contradicted his

statements to Mr. çhecksfield including his

requesting payments from Mr. Checksfield

for work that he had supposedly done.

(See App. Pg. 56)

13

The Appellate Court in reaching its decision

simply did not respond to Mr. DeLince's

submission to the court at all.

The Appellate Court in its approach to

upholding the lower court decision never

mentioned Mr. DeLince's comments at the hearing

as well as his written submissions to the court. As

I previously mentioned the Appellant did not have

much hope when I decided to appeal to the highest

Appeals Court. But, that is what happened; and;

again the Respondent's blatant perjury was a

main point. (See App. Pg. 70) After receiving the

Motion for Leave to Appeal, the Appeals Court

asked for a brief on the subject matter jurisdiction

for this case. The Appellant compiled and sent a

copy to the Respondent and the Court. (See App.

Pgs. 7375)

The motion was refused on the grounds the

Appellant focused on the New York State

Constitution. The Appellant in attempting to

resolve this matter decided to file a Motion of

Reconsideration to the New York State Court of

Appeals. (See App. Pg. 76-81) In this Motion the

Appellant focused on the United States

Constitution's XIV Amendment. The Appellant

still had the Respondent's perjury as one of the

main points of the motion, also. The Respondent

has continually committed perjury throughout this

process and it appears the New York State

Judiciary has adopted Perjury as a standard of

practice if it protects the State's interests. The

Appeals Court refused the Reconsideration Motion

without explanation.

14

Rationale for Granting Writ

Part III.

The Appellant, having pointed out the

Respondent's continued perjury through. these

proceedings, has accompanied these points with

explanations of why it has taken so much time to

get this case into court. Mr. DeLince echoed these

points in his case to the Appellate Court. As Mr.

DeLince pointed out to the Appellate Court, at the

lower court hearing the Appellant attempted to

pass to Judge Cerio material that would bolster

the case that there had been substantial activities

throughout the delay to getting the case to court.

When he went before the court, Mr.

Checksfield attempted to hand up

numerous correspondences between himself

and various legal counsels whom he had

engaged throughout the years. However,

the court did not accept the documents.

However, in his Memorandum of Law

submitted with the affidavit, Mr.

Checksfield referred to his understanding

that the case remained in 'indefinite

extension' preventing the court from

entering a default judgment.

(See App. Pgs. 56-57)

It was apparent Judge Cerio did not seem to like

having this case before him.

15

Including Mr. DeLince, a half dozen

different attorneys and law firms have been

directly involved with the case before this court.

There has been a clear line in regards to the

quality of advice. Mr. DeLince has come into this

case originally to supply an affidavit and did an

admirable job. As the case moved to the Appellate

level, Mr. DeLince agreed to handle the case itself

after examination of all records. Conversely, every

other attorney has given conflicting and confusing

advice. As Mr. DeLince pointed out in his

submissions to the Appellate Court, every other

attorney has referred to the case being on an

"indefinite extension" which would give the

statutory limit extra time. (See App. Pg. 82) Mr.

DeTraglia is the attorney who got the complaint

filed.

There is a precedent in New York State for an

extended period of time for filing for a default

motion. In lorizzo V. Mattikow, the court was

satisfied the plaintiff, after enduring a nine to ten

year period of negotiation which presented, "a

prolonged and tortured history Of settlement

discussions," had established it was not

unreasonable under the circumstances.lorizzo v.

Mattikow, 25AD3d762 (2d Dept. 2006) And in U.S

Bank N.A. v. Dorestant, CPLR 3215 provides that

"if the plaintiff fails to take proceedings for the

entry of judgment within one year after a default,

the court shall not enter judgment but shall

dismiss the complaint as abandoned, without

costs, upon its own initiative or on motion, unless

sufficient cause is shown why the complaint

should not be dismissed," (CPLR 3215 [c]). It is not

necessary for a plaintiff to actually obtain a

16

default judgment within one year of the default in

order to avoid dismissal pursuant to CPLR 3215

(c) (see Wells Fargo Bank, N.A. v. Combs, 128

AD3d 812; 853; Nowicki v. Sports World

Promotions, 48 AD3d 435, 436). Nor is a plaintiff

required to specifically seek entry of a judgment

within a year. "As long as 'proceedings' are being

taken, and those proceedings manifest an intent

not to abandon the case but to seek a judgment,

the case should not be subject to dismissal." US.

Bank v. Dorestant, 131 AD3d 467 (2015).

By seeking and retaining a half dozen

attorneys and by not letting questionable court

decisions stop the Appellant it should be clear that

proceedings have never stopped throughout this

matter. It has been made obvious to the Appellant

that there are elements within State Government

and the State Judiciary who are not receptive to

this case. The trend in New York State has been

those charged with professional malpractices who

do not respond to charges should explain why they

did not respond. "...a defendant must show either

there was no default, or that it has a reasonable

excuse for its delay and a potentially meritorious

defense." (Fried v. Jacob Holding, Inc., 110 AD3d

56, 60; see Wassertheil v. Elburg, LLC, 94 AD3d

753, 753) US Bank v. Dorestant, 131 AD3d 467,

469 (2015). The Respondent has never once said

why he never responded to the claim or what his

defense would have been had he responded. Mr.

Berg's response has been and continues to be, "I

did not respond."

17

The second point in this matter which has

to be addressed is, was there a meritorious claim?

By establishing that the Respondent has

committed perjury throughout these matters much

of that question has been answered. However, Mr.

DeLince did such a solid job in his submissions to

the Appellate Court it should probably be touched

on to an extent. New York State labor laws

sections 740 and 741 state an employee may not

be terminated solely for objecting to a practice

within a company. Section 2c states, "an employer

shall not take any retaliatory personnel action

against an employee because such an employee

does any of the following ... objects to, or refuses to

participate in any such activity, policy, or practice

in violation of a law, rule or regulation."

Also N.Y.C.L.S. Labor §215(1)(a) states

that, "no employer or his agent, or the officer or

agent of any corporation, partnership, or limited

liability company, or any other person, shall

discharge, threaten, penalize, or in any other

manner discriminate or retaliate against any

employee because such employee has made a

complaint to his or her employer, or to the

commissioner or his or her authorized

representative, or to the attorney general or any

other person, that the employer has engaged in

conduct that the employee, reasonably and in good

faith, believes violates any provision of this

chapter..." The Appellant objected to the way

compensation and holiday times were withheld

and the allocation of overtime posed dangerous

safety issues for patients. It was through this

process that the State University of New York

18

Health Science Center at Syracuse retaliated

against the Appellant by termination.

Mr. DeLince in his submissions to the Appellate

Court makes it very clear in a direct and concise

way.

In this case, it is evident that these actions

were direct violation of the collective

bargaining agreement for the union under

Article 23, Section 23.5 and Article 10.3.

Thus, Mr.Checksfield would absolutely have

had a right to bring such complaints. This is

further evidence by the fact that the

department itself acknowledged that there

had been mistakes with the number of

vacation days and amount of compensatory

pay. (See App. Pg. 65)

The Respondent did not feel that the union could

be litigated against. The Appellant felt he was

mistaken, but, the main point was always to get

the complaint filed against the hospital. For all

the Respondent's posturing and promises to do so

he failed to make good on any commitment. As the

Respondent has been held responsible for his

inaction, his story has changed to, "Mr.

Checksfield never had a case."

Section 740 applies to all employers in New York State,

while Section 741 applies to only healthcare employers. Both

sections prohibit any retaliatory personnel action. In Sec.

740 an employee must show an actual violation of law, rule

or regulation. While Sec. 741 an employee only must show

reasonable belief that the complained activity constitutes

improper patient care.

19

The Fourteenth Amendment to the United

States Constitution is often referred to as the "due

process" amendment: If anyone had mentioned

twenty or twenty-five years ago to the Appellant

that in the early part of the twenty-first century I

would be submitting a petition for certiorari to the

U.S. Supreme Court, I would have thought it

Highly unlikely. Also, that I would be representing

myself to the Supreme Court would have been

laughable. Yet; here we are.

I have already mentioned in previous pages

that actions at the lower court and the Appellate

Court—Third Department seemed biased. As Mr.

DeLince mentioned in his submission to the

Appellate Court the Appellant attempted to hand

material to the judge but, he would not accept

them. In the United States v. Wells, respondents

were charged with knowingly making false and

"material" statements to a federally insured bank

which put said respondents in violation of 18

U.S.C.1014. At the end of-the trial, the District

Court instructed the jury, at the Government's

behest, that withholding a "material fact" made a

statement or representation false, id., at 41, 42

and defined a material fact as one "that would be

important to a reasonable person in deciding

whether to engage in a particular transaction."

United States v. Wells, 519 U.S. 482 (1997). The

fact that Judge Cerio absolutely refused to even

give evidence a glance that was pro-offered from

the Appellant while examining the Respondent's

material is exactly the type of due process

violation the Fourteenth Amendment was

intended to protect citizens from.

20

Mr. DeLince in his submissions made clear

the Appellant's position as a pro se litigant was

due to failure and poor advice given to the

Appellant. After a series of different lawyers came

on the case and seemed unsure of what to do, they

left the case with excuses such as they suddenly

had become "very busy."

At the Appellate Court Mr. DeLince

explained the position of the pro se litigant in New

York State.

Mr. Checksfield came to the oral

argument with numerous

correspondences from various counsel

representations concerning the

matter. However, the court did not

accept those documents Had Mr.

Checksfield understood what was

expected of him for purposes of

motion paper submission, he would

have detailed his efforts in not

abandoning the claim in his

declaration and attached

documentary exhibits. The court

should have been less exacting in

dismissing the motion and granting

the cross-motion dismissing the

complaint in light of Mr.

Checksfield's status as a pro se

litigant and that fact that the

complaint dealt with an issue of

attorney malpractice.

21

New York courts have long viewed pro se

status of a party sufficient to not be as

stringent with respect to procedural

requirements in litigation. (See App. Pg. 60)

Judge Cerio did not seem to be very fair minded by

not even taking a look at material; he could take

time to consider this material because the Judge

reserved his opinion.

The Supreme Court has dealt with the "due

process" question in various cases. In Goldberg v.

Kelly, a group of New York City residents who

received aid from federally funded assistance

programs and state administered aid services

allege these aid programs were abruptly ended or

about to be terminated without the benefit of pretermination hearings. One of the most crucial

points in this case and many other "due process"

cases is a fair minded administrator or judge. "The

decision maker must be impartial, and, although

prior involvement in some aspects of a case will

not necessarily bar a welfare official from acting

as decision maker, he should not have participated

in making the determination under review."

Goldberg v. Kelly, 397 U.S. 254 (1970).

A judge who refuses to even look at evidence

cannot be considered impartial. This raises the

question how can that individual be trusted to

even want to discern if the Respondent has

committed perjury. The Appellant has made it

clear that at both the lower court and the

Appellate Court the Respondent had committed

perjury. With any issue involving due process the

fairness of the court or tribunal is one of the most

crucial factors.

22

Many legal concepts and rules have, a fixed

conception that is commonly understood and

accepted. With due process there is a more

situational aspect. "Due process is flexible, and

calls for such procedural protections as the

particular situation demands." Morrissey v.

Brewer, 408 U.S. 471, 408 U.S. 481 (1972). If

either Judge Cerio at the lower court or any of the

five Justices at the Appellate Court had taken into

serious consideration the fact that the Respondent

had committed perjury the case would have at

least been remanded back to the lower court.

By not having a fair hearing at lower court

and the fact that the Appellate Court did not

address Mr. DeLince or seem to consider his

admissions and statements on appeal effectively

the Appellant was denied counsel. "The

fundamental requirement of due process is the

opportunity to be heard 'at a meaningful time and

in a meaningful manner." Armstrong v. Manzo,

380 U.S. 545, 380 U.S. 552 (1965).

In the case of Mathews v. Eldrige, the

question of certiorari to a United States Court of

Appeals comes into play. The case revolves around

the petitioners' right to Social Security benefits.

Because Social Security benefits are a

governmental entitlement this particular situation

fell under the Fifth Amendment. But, the Court

saw how the connection of due process would work

for both the Fifth as well as the Fourteenth

Amendments. " the interest of an individual in

continued receipt of these benefits is a statutorily

...

23

created "property" interest protected by the Fifth

Amendment." Mathews v. Eldridge, 424 U.S. 319

(1976). The court goes on to extend the scope of the

restrictions placed on certain decisions.

"Procedural due process imposes constraints on

governmental decisions which deprive individuals

of 'liberty' or 'property' interests within the

meaning of the Due Process Clause of the Fifth or

Fourteenth Amendment." Mathews v. Eldridge,

424 U.S. 319 (1976).

The Respondent prepared two different

complaints against the Appellant's former

employer, the State University of New York

Health Science Center at Syracuse. Mr. Berg even

had the Appellant sign a verification form so he

could file the suit. The definition for perjury from

Black's Law Dictionary is"... statutes have

broadened the offense so that in some jurisdictions

any false swearing in a legal instrument or legal

setting is perjury, even if it is not material and

even though it is not presented in a judicial

proceeding." By even using the more narrow view

it is clear Mr. Berg has committed perjury throughout these proceedings.

Mr. Berg's perjury has been the integral

element which has allowed the lower court and the

Appellate Court to violate the Appellant's "due

process" rights guaranteed by the Fourteenth

Amendment. Some of the cases presented in these

submissions helped establish some ground rules

which establish whether an individual's due

process right has been violated or denied.

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There are certain common themes that run

through various models.

One of the common rationale in any model

the courts use in determining if someone's due

process .protection has been violated is the right to

present reasons why 'a proposed action should not

be taken. By the lower court refusing to look at

evidence and the Appellate Court not considering

Mr. DeLince's submissions or statements the

Appellant's rights and protections have been

violated. Also, the Appellate Court by not

addressing Mr. DeLince has effectively denied the

Appellant the right of counsel.

The most crucial element in any of the

requirement lists on whether an individual's due

process rights have been violated is an unbiased

court or tribunal. It should be clear from the

Appellant and his attorney at the Appellate Court

that this most important element for the

Appellant's Fourteenth Amendment protections

has been violated. Mr. Berg failed in his

responsibility to his client by not filing an

appropriate claim in a timely way. The

Respondent has continued this process by

committing perjury at the Lower Court in Madison

County and then at the Appellate Court in Albany.

Thusly, Mr. Berg has and continues to violate the

Appellant's Fourteenth Amendment rights.

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Conclusions

The Appellant is aware that this is a

drastic, costly, and time consuming matter to

bring a case to the Supreme Court, even for a writ

of certiorari. I ask the Court to give careful

consideration to extend certiorari in this matter

and I am aware the Court and its schedule is

limited in the cases it can hear. But, this is not

simply a legal malpractice case between a client

and an attorney; this matter deals with the highly

questionable behavior of elements in New York

State Government as well as the State Judiciary.

The Respondent has never had any

representation in regards to this matter. In fact,

Mr. Berg has never had a second opinion in

regards to his position on the merits of the original

case. This means the Respondent is acting as his

own lawyer, and his expert on labor/employment

matters. This is the height of a conflict of interest.

And, given the extensive disciplinary history Mr.

Berg has had, the Appellant respectfully asks the

Court to extend certiorari in- this matter and send

a strong message to the Respondent and those

helping him behind the scenes that this type of

behavior will not be tolerated.

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Appellant

Pro Se

-

157 Cambridge St.

Syracuse, New York 13210

'2Y30 20/7'

Tel. # (315) 877-4064

FRANCES J. ALVAREZ

Notary Public State Of New York

Registration No. 4975174

Qualified in Onondaga County

Commission Expires 12/03/

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