Petition for Writ of Certiorari — James R. Caputo, Petitioner v. Richard S. Tubiolo, et al.

Supreme Court briefJan 20, 2026

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2 u 2026

SUPREME COURT OF THE UNITED STATES„„

James R. Caputo, M.D.

PETITIONER

VS.

Richard S. Tubiolo, Esq.

Bryan S. Kornfield, Esq.

Hirsch and Tubiolo, PC

RESPONDENTS

On Petition for a Writ of Certiorari to

The New York State Supreme Court,

Appellate Division: Fourth Department.

PETITION FOR WRIT OF CERTIORARI

James R. Caputo, M.D.

Petitioner, pro se

4278 Lafayette Road

Jamesville, N.Y. 13078

(315) 382-8778

jrcaputo@yahoo.com

QUESTIONS PRESENTED

Question 1: Are NY CPLR § 5712(b) and (c), [the New York Statute that enables the

Appellate Division to summarily affirm (without explanation) a lower court’s

Decision, as well as all per curiam affirmances, (PCA’s)] and (both) the Federal

Circuit Rule 36 and the Federal Rule of Appellate Procedure (FRAP) Rule 36, [which

allows for courts to issue judgments without opinions], repugnant to the Constitution

when these legal procedures can be flagrantly misapplied by a Court to deny justice

and to violate manifold due process and equal protection rights, while also masking

and empowering judicial and attorney misconduct?

Question 2: Are NY CPLR 3212(b) (Summary Judgment) and NY CPLR § 4213(b)

(Form of Decision) repugnant to the Constitution because each lacks due process

consistency with FRCP 56(a) and FRCP 52(a), thereby failing to direct NY Courts to

explicitly state on the record the specific factual determinations and separately

articulate their legal conclusions to provide a clear basis for the judgment, when such

deficiency contributes to the unfettered and flagrant denial of due process and lost

justice?

Question 3: Are all three New York Court rulings in this matter: 1) the original

Supreme Court Decision (12017005512); 2) the New York State Appellate Division’s

Memorandum and Order (NY CA 23-01338); and 3) the NY State Court of Appeals’

denial of Petitioner’s motion for leave to appeal (Motion No.2025-302), all repugnant

to the Constitution for flagrant violations of FRCP 61, FRE 103 and NY CPLR § 2002?

Question 4: Are New York Judiciary Laws, NY JUD § 44(2) and NY JUD § 90(2)

(the statute directing investigations of judges by the New York State Commission on

Judicial Conduct and the statute authorizing the Appellate Division to censure,

suspend or remove any attorney who is guilty of professional misconduct,

respectively) and NY CPLR § 1240.7 (Proceedings Before Committees) all repugnant

to the Constitution as written, (while also diminishing 22 NYCRR §100.3(D)(l)&(2)

and The Code of Conduct for United States Judges, Canon 3(B)(6)), because they lack

automatic investigative triggers and/or mandates for investigation as deterrents for

attorney and judge misconduct, and therefore deny due process of law?

LIST OF PARTIES

Petitioner, James R. Caputo, M.D. (“Petitioner”), is a New

York resident, not a corporation, proceeding pro se and in forma

pauperis and is the Plaintiff, Plaintiff-Appellant, and Appellant in the

cases listed below.

Respondents Richard S. Tubiolo, Esq., (“R. Tubiolo”), Bryan S.

Kornfield, Esq., (“B. Kornfield”) and Hirsch and Tubiolo, PC (“HT,

PC”) are New York residents and a New York Corporation,

respectively, and are the Defendants, Defendant-Respondents, and

the Respondents in the cases listed below.

RELATED CASES

Court: Supreme Court of the State of New York: Monroe County

Docket #:

12017005512

Caption :

James R. Caputo, M.D. v Richard S. Tubiolo, Esq.,

Bryan S. Kornfield, Esq., Hirsch and Tubiolo P.C.

Judgment Date of Entry : July 21, 2023

iii

RELATED CASES - continued

Court:

Supreme Court of the State of New York,

Appellate Division: Fourth Department

Docket # :

CA 23-01338

Caption :

James R. Caputo, M.D. v Richard S. Tubiolo, Esq.,

Bryan S. Kornfield, Esq., Hirsch and Tubiolo P.C.

Judgment Date of Entry : March 14, 2025

Court:

State of New York Court of Appeals

Motion #:

2025-302

Caption :

James R. Caputo, &c., v. Richard S. Tubio]o, &c., et al.

Judgment Date of Entry : October 21, 2025

TABLE OF CONTENTS

QUESTION(S) PRESENTED

LIST OF PARTIES

.................................................................. ii

RELATED CASES

...............................................................................................iii

........................................................... v

TABLE OF CONTENTS

APPENDICES

vii

TABLE OF AUTHORITIES

viii

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

INTRODUCTION

STATEMENT OF THE CASE

Factual Background

Monroe County Supreme Court Procedural Background

Missing Exhibits

Appellate Division: Fourth Department Procedural Background

New York State Court of Appeals Procedural Background

..............................................

REASONS FOR GRANTING THE PETITION

A. Advanced Court Rulings Demand Elevated Response

B. Per Curiam Affirmances are Unconstitutional

C. Denial of Equal Protection of The Laws...................................................21

D. Denial of Procedural Due Process of Law............................................... 23

1. Opportunity to Be Heard......................................................

2. Right to An Impartial Tribunal..................................

3. Arguments in Favor of The PCA..............................................................26

4. Arguments Against The PCA.................................................................. 27

E. Summary Judgment Ruling in this Case is Unconstitutional............. 29

1. Judge Failed To Find The Facts Specially

In Violation Of FRCP 52(a).................................................................... 29

2. NY CPLR 3212(b) Is Unconstitutionally Out Of Line

With FRCP 56(a)........................................................................................ 30

F. Rules of Evidence Violations were Constitutional

Rights Violations.............................................................................................. 31

1. No Court Response Violates Protection Against

Impartial Tribunal.....................................................................................32

2. Harmless Error Provision Was

Violated.......................................................................................................... 32

G. Attorney and Judicial Misconduct

Constitutes Unconstitutionality................................................................... 34

1. Respondent Attorneys’Misconduct.......................................................... 34

2. Judicial Misconduct....................................................................35

3. Court’s Endorsement of Professional Legal Misconduct................... 35

CONCLUSION............................................................................................................... 38

APPENDICES

Appendix: Volume 1

Decision from the New York State Court of Appeals —10/21/2025............

Motion for Leave to Appeal to The Court of Appeals - 4/15/2025...................... 2a

Memorandum and Order by the Supreme Court of the

State of New York Appellate Division: Fourth Department - 3/14/2025.......... 35a

Appendix: Volume 2

Appellant’s Reply Brief— 7/11/2024.................................................................. 37a

Respondents’ Brief- 7/1/2024...........................................................................76a

Appendix: Volume 3

Appellant’s Brief - 5/5/2024....................................................................... 138a

Decision, Order & Judgment from Monroe County

Supreme Court of the State of New York — 7/21/2023............................. 220a

vii

TABLE OF AUTHORITIES

Page

I. CASE LAW

Mathews v. Eldridge, 424 U.S. 319 (1976)

II. STATUTES

Federal Circuit Rule 36

...............................................................................i, 21

Federal Rule of Appellate Procedure - (FRAP) Rule 10(e)

Federal Rule of Appellate Procedure — (FRAP) Rule 36

i, 21

Federal Rule of Civil Procedure - (FRCP) Rule 56(a)

i, 30

Federal Rule of Civil Procedure — (FRCP) Rule 52(a)

i, 29

Federal Rule of Civil Procedure - (FRCP) Rule 61

Federal Rules of Evidence — (FRE) Rule 103.

ii, 32

................... ii, 33

NY CPLR § 1240.7

NY CPLR § 2002

NY CPLR § 3212(b)

........................................................ ii..34

..................................................................

i, 30, 38

NY CPLR § 4213(b)

i, 29

NY CPLR § 5501(b)

NY CPLR § 5712(b) and (c)

i, 15, 21

NY JUD §44(2)

NY JUD § 90(2)

State Administrative Procedures Act - SAPA 307(1)

Supreme Court Rule 30

...................................................................... 2

Supreme Court Rule Rule 29

............................ 2

United States Constitution — 6th Amendment

United States Constitution — 7th Amendment

United States Constitution - 14th Amendment

21, 24

5 U.S.C. § 6103

28 U.S.C. § 1257(a).

28 U.S.C. §2104

U.S.C. § 2403(b)

NY JUD § 44(2) and NY JUD § 90(2)

viii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari be issued to review the

judgments below.

OPINIONS BELOW

The opinion of the highest state court to review the merits, [the New York

State Court of Appeals (No. 2025-302)], in its Order denying Petitioner’s Motion for

Leave to Appeal, appears at Appendix A to this petition and is reported at

https://www.nvcourts.gov/ctapps/Decisions/2025/Qct25/DecisionListl02125.pdf.

The opinion of the Supreme Court of the State of New York, Appellate

Division: Fourth Department (CA 23-01338) in its Memorandum and Order denying

Petitioner’s Appeal, appears at Appendix C to the petition and is reported at:

https://www.nycourts.gOv/courts/ad4/Clerk/decisions/2025/0314T1500/pdf70800.pdf

The opinion of the Supreme Court of the State of New York, Monroe County

(12017005512) in its Decision, Order and Judgment granting Respondents’

summary judgment dismissing Petitioner’s complaint for legal malpractice appears

at Appendix G to the petition and is reported at:

https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=_PLUS_Q7vyqQLA

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JURISDICTION

The date on which the New York State Court of Appeals decided Petitioner’s

case was October 21, 2025. A copy of their Memorandum and Order appears at

Appendix A. Pursuant to Supreme Court Rule 30, Petitioner, James R. Caputo, M.D.

was given to the third Monday in January, (the 19th), 2026, to file this Petition, [which

is a Federal Holiday fisted in 5 U.S.C. § 6103], making January 20, 2026, the last day

for this Petition to be postmarked for timely filing, by Rule 29.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a), with review

of the judgment(s) proceeding under 28 U.S.C. § 2104. The constitutionality of six

separate statutes of New York State have been drawn into question, with a copy of

this Petition and a notice under U.S.C. § 2403(b) having been forwarded to the

Attorney General for the State of New York at the time of this filing.

Constitutionality issues were raised with the New York State Court of Appeals but

it is not believed that this Court certified to the State Attorney General (pursuant

to U.S.C. § 2403(b)) the fact that the constitutionality of a statute of New York State

was drawn into question.

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

1. Article VI and the 14th Amendment, Section I of the U.S. Constitution

2. Federal Statute FRCP 52(a) — Findings and Conclusions by the Court

3. Federal Statute FRCP 56(a) - Summary Judgment

4. Federal Statute FRCP 61 - Harmless Error

5. 28 USC App Fed R Evid Rule 103: Rulings on Evidence

6. Federal Circuit Rule 36 — Entry of Judgment

7. Federal Rules of Appellate Procedure (FRAP)

Rule 10(e) - Correction or Modification of the Record

Rule 36 — Entry of Judgment; Notice

8. ABA Model Code of Judicial Conduct:

CANON 1

Rule 1.1: Compliance with the Law

Rule 1.2 : Promoting Confidence in the Judiciary

Rule 1.3 : Avoiding Abuse of the Prestige of Judicial Office

CANON 2

Rule 2.2 : Impartiality and Fairness

Rule 2.3 : Bias, Prejudice, and Harassment

Rule 2.4 : External Influences on Judicial Conduct

Rule 2.6 : Ensuring the Right to Be Heard

Rule 2.15 : Responding to Judicial and Lawyer Misconduct

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED - continued

9. ABA Model Rules of Professional Conduct:

Rule 1.1 — Competence

Rule 1.2 — Scope of Representation & Allocation of Authority Between

Client & Lawyer

Rule 1.3 - Diligence

Rule 1.4 — Communications

Rule 1.16 - Declining or Terminating Representation

Rule 1.18 - Duties to Prospective Client

Rule 8.3 — Reporting Professional Misconduct

Rule 8.4 — Misconduct

INTRODUCTION

Petitioner seeks Supreme Court Review of the Related Cases identified above

to address the multiple Constitutional Rights infringements being hidden within

these rulings, where the legal officers who committed them seemingly bank on the

respective upper court to summarily affirm their artfully corrupted decisions,

worrying not about anyone of import or suitable authority finding out or moreover,

holding them to account. In fact, this practice of a legal officer or officers violating a

pro se litigant’s or an unsuspecting party’s due process and other constitutional

rights, while leveraging the deed against that party’s estimated inability to identify

the violation at all, (let alone being able to afford any legal action against the

offender should they figure it out), has demonstrated itself to be familiar among the

attorneys, judges, and other administrative officials involved with this entire

matter, as will be developed and proven throughout in this paper.

Let this Court be assured that this is not your garden variety case of a pro se

litigant trying to sue his lawyer(s) for malpractice (because of some undesired

outcome), only to fail at the trial court level and then at the Appellate level, and

then again at the State’s highest Court, that he would now wish to waste the

precious time, resources and attention of the United States Supreme Court, unless

there were serious, multiple, and provable Constitutional Rights infringements

involved at each level of this action.

To be blunt, this Petition is a scathing rebuke of what this Petitioner has

appallingly experienced from twenty—four continuous years of being legally

entangled in matters unjustifiably thrust upon him by several unscrupulous

members of the legal profession whose modus operandi has been to outright abuse

the law and their esteemed positions within the law, to deny due process and to

violate numerous Federal Statutes, all while leveraging the difficult and costly

navigation of the legal system against an (otherwise) upright and wholly

undeserved individual, unprepared for such an assault, resulting in havoc and

destruction upon his entire life.

Please read that again.

This is the level of

impropriety and injustice that has been so effortlessly executed by the professionals

throughout this entire affair, who were appointed to uphold a venerated standard,

not desecrate it.

What has been experienced from the legal profession and disclosed in this

paper has been so grotesque and offensive that it defies reality and (upon learning

of it) ought to shake (to the core) our nation’s trust in the law and particularly those

who dispense it. These ongoing actions also illustrate just how predisposed the

legal system is to certain horrific abuse, (which is knowingly and willingly intended

to fly under the radar of accountability), by those entrusted with duly upholding the

law’s integrity and not exploiting it. The result is always a victim bulldozed by the

very system designed to protect them, who is now saddled with an even greater

mountain to climb for justice, unless, of course, that victim is miraculously able to

(either) become a lawyer themselves, or win the lottery to hire one, with the road

still being heavy regardless.

Should a man be able to lose his fife, liberty and pursuit of happiness, (which

is just as possible in a civil court, [as it is in a criminal proceeding], when a man’s

entire identity, livelihood, family and fatherhood are civilly erased), all because

those within the law know that they can abuse the system and destroy or mistreat

that man without recourse?

This is a universal question being asked of the

Supreme Court, with each individual question presented above representing specific

Constitutional abuses directly experienced by this Petitioner from both attorneys

and judges who have deliberately not treated the honored practice of law very

honorably.

STATEMENT OF THE CASE

Factual Background

The litigation at the center of this Petition for Writ of Certiorari consists of a

legal malpractice lawsuit (filed on May 27, 2017) against the Respondents for

medical-legal defense services they provided to Petitioner in May of 2014 concerning

a new round of spurious misconduct charges against him from New York State’s

infamous and notoriously unethical Office of Professional Medical Conduct,

(OPMC), after they had already maliciously prosecuted Petitioner from 2002-2008.

Papers submitted throughout this matter unequivocally prove Petitioner’s previous

travails with OPMC to be completely unfounded, with multiple invalidating proofs.

This is important to understand because NY OPMC is the root culprit for why these

papers are before this Court due to their own longstanding, unconscionable

trampling of Constitutional Rights with impunity.

The Respondents in this case are attorneys who defend doctors against this

rogue agency who betrayed their client (Petitioner) by secretively joining forces with

OPMC to back him into a license surrender by way of engineering a default to the

Answer of charges. The intentional negligence and multiple code of ethics violations

that these Respondent attorneys would go on to commit against Petitioner in their

“defense” of him, thereby costing him his medical license, (rather than zealously

advocating for him), would prove to be shocking after being further revealed upon

discovery of documents. But again, this malfeasance was done in such an artful

manner that these Respondents rested on the mammoth odds against them ever

being figured out or legally touched by their client/victim.

And when these attorneys were sued for their misdeeds, they seemingly had

no worries, despite a damning case against them. Why? Because, the Court itself,

surely staffed with these defendants’ long-time colleagues, was ready, waiting and

furthermore, willing to bail them out from this pro se “pest” who had the audacity to

seek justice against their dubious actions. This is precisely what has occurred here

and the material facts and evidence undeniably prove it.

The Court cared not about how wanton and depraved these attorneys’ actions

were against their own client. These defendants were not only fellow professionals,

but the client suing them was also a pro se litigant. There might not be anything,

or anyone more despised and maligned by the Court than a layperson “playing

lawyer”, especially one suing other lawyers, forgetting that the system leaves many

souls with no other choice if truth and justice are to have a chance.

After the Respondents filed a motion for summary judgment seeking

dismissal, it was clear their main defense strategy was to attack the existence of an

attorney-client

relationship,

since

their

culpable

actions

thereafter

were

indefensible. The following explains this central issue succinctly.

[All in 2014, on Friday May 16th, Petitioner calls Respondent R. Tubiolo in

the afternoon seeking representation for a rapidly approaching hearing regarding

new charges from OPMC.

During a twenty-minute conversation, Petitioner

provided a detailed account of the previous twelve years of oppression by this

agency, while explaining that a full set of defense documents had already been

systematically compiled and ready to email. Tubiolo agreed to take the case and

asked for the documents and a statement of charges to be sent and that he would

call on Monday the 19th to set up an appointment, since there was seventy miles

between the two parties. Important to know is that the Hearing was scheduled for

May 29th, but the Answer to the charges had to be in ten days prior, on the 19th.

On Sunday the 18th, Petitioner emailed his privileged documents and the

statement of charges to Respondent Tubiolo along with a note that he was working

on an Answer draft.

On the morning of the 19th, Respondent Tubiolo engaged in multiple explicit

undertakings by disseminating Petitioner’s privileged information to outside

attorneys seeking assistance with the case and then contacted Petitioner to set up

an initial meeting for the afternoon of May 20th, the day after when the Answer

was due. Also on May 19th, two separate times Petitioner emailed Respondent

Tubiolo where he specifically asks about the Answer and that it was ten days to the

hearing, (with one email sending a draft copy of the Answer), only for Tubiolo to

respond by advising Petitioner to bring everything to the meeting the next day on

the 20th. Petitioner trusted that he knew what he was doing.

Everyone met on May 20th to discuss strategies for the upcoming defense.

There was no discussion about prospective representation or any retainer

agreement, since it was understood that the two parties had enjoined on the phone.

After Petitioner left the office, and without any of his knowledge or authorization,

Respondent Tubiolo called and spoke to OPMC, where the prosecutor on the case

agreed to send a draft copy of a license surrender agreement the next morning,

alongside filing an Answer default motion with the ALJ for the upcoming hearing.

All of this was unknown to Petitioner, who then had the Answer default dropped on

him eight days later on the eve of the Hearing. The charges were now deemed

admitted and the hearing penalty phase only. Completely taken aback, and with

twelve years of grueling defense erased in an instant, Petitioner was sold a bill of

goods and backed into the ready and waiting license surrender agreement,

effectively ended his career.]

This matter of when the attorney-client relationship commenced in this

malpractice lawsuit is certainly central to the claim itself, but monumental to this

Petition to the Supreme Court. The wholesale dereliction of duty to the facts and

law by all three levels of Courts in New York who engaged in this case, (only to ram

the flagrantly erroneous conclusion of no attorney-client relationship through the

process), is a frightening example of how easily justice can be purposely denied by

certain statutory provisions being abused for an unsavory end.

Monroe County Supreme Court Procedural Background

Petitioner filed an answer with cross-motion for summary judgment in favor

of his Complaint, making sure to cover the attorney-client relationship issue specific

to the date of negligence. The Court, in their Decision, Order & Judgment, cited the

obligatory case law for summary judgments indicating their duty to protect the

nonmoving party.

This was followed by the Court’s full departure of these

principles with little to no mention of any of Petitioner’s arguments or evidence as

the case was in turn dismissed for no attorney-client relationship on the day of

alleged negligence.

The Decision managed to patently ignore Petitioner’s entire

case against the Respondents, thereby setting a new standard for arbitrary and

capricious. Anyone taking the time to learn the material facts of this case would

instantly know that the Court’s inconceivably superficial adjudication was not

rooted in the truth whatsoever, (see Appendix: Volume 3)

Missing Exhibits

An unexpected twist in the case occurred when the 103 exhibits Petitioner

filed with his cross-motion somehow failed to register with the electronic filing

system after they were painstakingly uploaded in multiple batches on the evening

of February 15, 2023. There was nothing unusual about the uploading process that

would have led Petitioner to ever believe that an error/failure had transpired.

Ironically, Petitioner emailed his papers and all his exhibits to Respondents, (after

they did successfully upload to NYSCEF), who then notified the Court the next day

that they needed more time to respond to Petitioner’s submission and the 103

exhibits, whereafter the Court granted their request.

This enigmatic NYSCEF upload failure was not discovered nor made aware

to Petitioner for over a year until he was seeking to affirm the record on appeal with

counsel for Respondents.

Immediate review of the lower Court’s unfavorable

Decision revealed the previously unseen absence of Petitioner’s exhibits in their

deliberation papers list, without any mention at all about them being missing, as

they granted a summary judgment motion to dismiss the case against Petitioner.

This dismissal was despite these crucial exhibits to Petitioner’s case being

mentioned over 340 times in his papers, with one of the exhibits being the

professional services invoice for the Respondents to Petitioner’s malpractice

insurance company paying their expenses which lists services and billing hours for

May 19, 2014 and prior, on the 16th. Thus, these missing exhibits (particularly this

one exhibit all on its own) negated the Court’s ability to grant a summary judgment

dismissing the case and the Court knew it from the references in papers.

Appellate Division: Fourth Department Procedural Background

Despite not being able to use the missing 103 exhibits, Petitioner was still

able to write a compelling Appellant’s Brief and Reply Brief that absolutely met the

prima facie standard of entitlement for his complaint to be granted on appeal, (see

Appendix: Volume 2 and 3)

In it, he addressed two major questions of

constitutional import. One was the issue of the missing exhibits, where [on pages

30 - 42 of Appellant’s Briefl the details of how they were absent was explained and

unassailable argument given for why the lower Court erred by not at least inquiring

about them, let alone including them, since they were mentioned all throughout his

cross-motion, with references clearly establishing their evidentiary weight to the

case, on top of the Respondents having been sent all 103 exhibits electronically,

which eliminated any claim of prejudice against them by including them. Rules of

evidence were cited as well as compelling case law as to why the exclusion of these

exhibits was legal error and did zero towards the furtherance of the interests of

justice.

The appeal also pointed out how the Court demonstrated a lack of

impartiality by remaining totally silent on the exhibits issue with three additional

examples of manifest bias by the Court laid out.

The argument finished by

establishing the Appellate Division’s full authority to overrule the lower Court and

demand that the 103 exhibits be included.

The second major issue addressed in the Appeal that has unconstitutionality

attached was the attorney-client relationship, which was the lynch pin for the entire

lawsuit, since the actions of the Respondents outside of this detail are self-evident

as they met all other standards for malpractice, with special circumstances of moral

turpitude. Petitioner left no doubt that an attorney-client relationship existed after

proving it five different ways on pages 43 — 48 of the Appellant’s Brief.

After a four-month delay, the Appellate Division finally ruled by summarily

affirming the lower court’s ruling that no attorney-client relationship existed on the

date in question, which was impossible to rule when the material facts, evidence

and argument are sincerely considered. The Court cited as their material basis, the

following: “the evidence that defendants submitted in support of their motion

establishes that defendants did not have an attorney-client relationship with

plaintiff at the time of the default. ” The problem with this statement is that these

Defendant-Respondents never once submitted any evidence in support of their claim

of no attorney-client relationship and couldn’t even rebut what Petitioner argued in

his Brief. All they offered was a repetitive mantra of claiming no relationship with

nothing in support. The flagrancy of how badly the Appellate Division treated this

Appeal cannot be expressed in words, but it is Unconstitutional, nonetheless. But

how would anyone ever know? This is how easy it is to get away with.

New York State Court of Appeals Procedural Background

After the Appellate Division’s shocking ruling, the matter was brought to the

attention of the New York State Court of Appeals, where a motion for leave to

appeal was submitted, (see Appendix: Volume 1) Four questions were asked of the

Court of Appeals. One was on the Court’s Constitutional duty to evidence pertinent

to a case with specific focus on the missing exhibits in this matter and why the

Court had purposely ignored it. These arguments can be found on pages 3-7 of the

affirmation in support of the motion for leave to appeal.

A second question to the Court of Appeals with Constitutional due process

implications tried to address the two lower Courts’ ability and moreover, their

willingness to patently ignore prevailing argument and evidence when ruling

against it, with the most glaring example is that dealing with the attorney-client

relationship.

On pages 13-14, the Court was specifically asked to intervene

pursuant to CPLR 5501(b) because the Appellate Division ruled on new evidence

The Constitutionality of the issue was brought up on page 9.

During the research for this appeal for how the Appellate Division could just

rubber-stamp the lower court’s ruling without any explanation, Petitioner sought

out the statutes directing such rulings, since he knew from his corrupted experience

with OPMC that such legal codes exist, (like with SAPA 307(1)) even if those

entrusted to follow them abandon that duty, as does OPMC as a matter of existence.

This is when NY CPLR § 5712(b) and (c) was discovered which essentially gives the

Appellate Division this right to affirm in silence. Though Petitioner had not yet

fully discovered this topic, and that such practices have a name — the per curiam

affirmance, he did address the Constitutionality of such disregard of justice with the

Court on pages 16 - 22.

Petitioner then specifically addressed New York’s PCA statute itself in

question 3 before the Court. The following are excerpts from pages 16 and 17 of a

much larger argument.

In New York, the right to a fair and impartial judge is a fundamental

principle, ensuring due process under the State Constitution and the

Fifth and Fourteenth Amendments to the U.S. Constitution. That said,

the language of NY CPLR § 5712 is written such that if the Appellate

Division and/or the presiding Justices wished to deny due process

(whether procedurally or substantively or both) to an Appellant who is

seeking to overturn some component or all of a lower Court’s decision,

(hence the whole point of the appeal), they can do just that.

NY CPLR § 5712(b) and (c) are Constitutionally flawed and must be

amended to ensure due process to all parties before the Appellate

Division by compelling them to provide an explanation of the decisional

facts and law for all Orders of reversal, modification and affirmance.

Regardless of whatever additional effort this might require, the

preservation of due process should have no barrier or restraint.

Another question asked of the Court was on the subject of misconduct on part

of adjudicatory bodies who have willfully violated their respective codes of conduct.

These all bear Constitutional weight in regard to due process of law and the

guarantee that it not be infringed upon, as has happened repeatedly in this matter.

This was pointed out on page 29. The questions posed specifically wanted to know

what the motivation would be for these judges to continuously and barefacedly turn

a blind eye to the manifest evidence against these Respondents?

Several hypotheses were made to the Court of Appeals as to why, including

the inherent prejudice of the pro se litigant, to bailing out fellow colleagues, to some

sort of societal affiliation and even to the administrative judge for the entire state of

New York, (outside of NYC) and the supervisory boss of every judge and magistrate

faced by Petitioner in both civil court and family court in more than fifty

appearances over twelve years, only to profoundly lose every single time over and

against all prevailing argument and legal positioning.

This ultra-high-ranking

administrative judge just so happens to be the first-cousin of Petitioner’s ex-wife,

who Petitioner learned within the past few years holding this position, thereby

making every single inconceivably negative encounter with every court interacted

with make sense. Is this matter yet another example of administrative abuse?

After nearly six months of waiting, the Court of Appeals’ response to the

continued and extensive effort of Petitioner to find justice and truth at some level of

jurisdiction was one word. Denied. This matter now comes before the Supreme

Court of the United States.

REASONS FOR GRANTING THE PETITION

Advanced Court Rulings Demand Elevated Response.

Being a pro se litigant affords one the perspective of seeing certain practices

of the law and court in a novel manner for their inequities to be instantly

appreciated. The per curiam affirmance is one such practice. Upon discovery of this

procedure, it wasn’t surprising to see that the legal world is replete with articles

addressing (and mostly criticizing) this PCA judiciary technique that when

implemented, is what this Petitioner would describe (from his direct personal

experience in New York State) as an increasingly weaker display of fastidiousness

from the Court system the higher up it is used.

When trying to come up with an analogous scenario to illustrate just how

preposterous the PCA is to a fresh mind having had this unsavory practice

negatively impact his eight-plus year legal endeavor of seeking justice against the

attorneys whose malpractice negated his medical career, the following example

hopefully makes the point:

[Imagine if someone who did you legally wrong is like a disease and the Court

is the physician who can cure the problem. You plead with the local doctor that this

disease needs his/her directed attention and expertise as a licensed and certified

professional authorized to do so. After you allow the physician to treat the disease,

they not only fail to fix the problem because they did not listen to or address

anything you said, but they’ve now made matters even worse. You instantly realize

that you need a subspecialist to address this distressing situation. Someone with

advanced knowledge and skill who can deftly apply the science and discipline of

their medical art in ways far above the lower doctor. Someone whose erudition will

not only diagnose the disease right away but also correct the problem through a

show of wisdom and intelligence.

You finally get to see this advanced specialist and give him your entire story

in a much more concise and precise manner than before, where the issue was so

plainly laid out that it ought to be as obvious to him as it is to everyone else. It’s

just that you need this professional to exact the cure. After finally meeting, he ends

up giving you very little of his time, but you are confident by how elevated a

position he holds that the findings and the conclusion will be foregone. And just

when you expect that this specialist is going to pour out a lengthy dissertation on

the salient points behind his identification of the problem and his scholarly

treatment to finally provide you some relief, his only response is given in two words,

“I concur.” That’s it. He simply agreed with how poorly the first doctor had treated

you when it was so obviously flawed and offered zero explanation as to why your

presentation on the problem was ignored, thereby failing to five up to his status as

the advanced specialist by not fixing the problem that was clearly within his reach

to fix. But there was hope still.

You know there exists a head doctor of all doctors whose authority,

knowledge and expertise are the highest in the State. In fact, this doctor also has

ruling authority over any lower doctor, should they discover impropriety in how one

exercised their duties. This head doctor is well known for being the ultimate expert

for treating the disease you have been fighting. Surely, he will be stunned to learn

of how poorly you have been treated by the two previous doctors and want to

instantly heal the disease with (finally) the right prescription, and in doing so,

restore the integrity of and public confidence in the therapeutic process, despite the

inexcusable failures of the two lower doctors.

By this time, you’ve gotten so good at presenting your case that it was laser

focused for this head doctor to make his work as effortless as possible.

Finally,

relief was going to be on its way. But when the doctor finally responded, only one

word was uttered this time.

No cure for you.

Denied”.

No explanation.

correction. No action. Nothing. “Your disease and mistreatment by fellow doctors

have fallen on deaf ears, even though I hold the cure.

Too bad for you.”, was

essentially the silent message, as he slammed the door behind you.]

That analogy is precisely what has occurred in the three New York Courts

with this blatantly obvious malpractice lawsuit, where all three refused to do their

jobs as impartial adjudicators and arbiters of justice.

Was anything acceptable

about that analogous experience described above? Of course not. Yet, this is indeed

what has gone on here and the PCA enabled it all to happen.

As one moves up the ladder with medical specialists, so increases the

workload, the responsibility, and the expectation of getting the details right for the

requested cure to be accurate and m □reover, effective. Cutting corners in medicine

(like that of a PCA in the courts) might work on some cases but will eventually cost

a patient their life (or livelihood) because of how (overall) meager the effort was.

Advanced experts don’t inherently look for excuses to do less when more is expected

of them because of their specialization. They represent the end of the road, a cure,

for any issue or problem entrusted to their level of expertise. People rely on them

and can count on them. And by having this option, and the option being actively

applied, order is maintained.

Imagine the most advanced but necessary task

having no one to carry it out.

The system that such a task applied to would

eventually break down.

This principle can be applied to nearly everything in

society, like industry, medicine, academics and even athletics.

Yet, with the courts and judges, they can evidently get away with doing less

as a litigant goes up the ladder of jurisdictional advancement. The PCA is what

enables this oxymoronic and detrimental syndrome to exist in the Courts and is

hence one of reasons this specific matter is now before the Supreme Court. No

wonder there is so much controversy surrounding the PCA procedure. There is no

justice in silence.

Why these Courts behaved like they did is an entirely different question, the

Constitutionality of which is argued further in this paper. Nevertheless, just one

single example of any or multiple courts abusing their right to remain silent (via a

PCA) to deny justice is all that is needed to establish this practice’s repugnancy to

the Constitutional (and its due process protections), along with any such statute

allowing it. This case is that example.

Per Curiam Affirmances are Unconstitutional.

NY CPLR § 5712(b) and (c), Federal Circuit Rule 36 and the Federal Rule of

Appellate Procedure (FRAP) Rule 36, the state and federal Statutes which enable

the Appellate Division of New York State to summarily affirm a lower court’s

decision, known as a per curiam affirmance, (PCA), are all repugnant to the

Constitution because they violate the 14th Amendment’s guarantees of due process

of law and equal protection of the laws, while also inviting and enabling the denial

of justice and the concealment of attorney and judicial misconduct.

The Fourteen Amendment guarantees due process of law and equal

protection of the laws. Central tenets to procedural due process are the opportunity

to be heard and an impartial decision-maker. The Court’s use of the PCA denies all

of these Constitutional guarantees.

Denial of Equal Protection of The Laws.

Use of the per curiam affirmance (PCA) in Appellate decisions denies the

appellant equal protection of the laws and creates unjustifiable discrimination. An

appellant’s entire mission on submission of papers is to specifically dispute the core

conclusions of a lower Court and the evidence that directed it to turn in that

direction of judgment. ALL such endeavors entail the proffering of facts and legal

arguments intended on overturning a prior ruling. It would be myopic to label or

consider any such petition as being so irresponsible or thoughtless to not attack

specific components of the appealed decision. The whole purpose of an appeal is to

directly challenge the Appellate Court by asking, “what say you to this?”, expecting

that they will answer the question and provide the reasons why they either agree or

disagree, since this is what they are there for — to provide expert answers.

For instance, should the Court discern from appellate papers that a lower

court ruling ought to be overturned, they are obliged by law to provide the

Respondent party (the party now on the losing side of the matter) with the facts and

legal reasons behind their overturned ruling. This party, who originally prevailed,

is given this fair and transparent treatment of having the grounds for the overturn

provided by the Court.

However, when an appellate court affirms a previous ruling, the Court can

choose not to provide the grounds for why they rejected the very argument that

served as the genesis of the appeal.

When an appellate court affirms without

explanation, they deny the appellant the same and equal protection of the laws that

the Respondent receives when an appellate judgment goes against them.

Affirming a lower court ruling is no different than a decision against the

moving/appealing party. And if a party who loses on an overturn is afforded the

right to have the reasons provided, then equal protection of the appellant would also

include a mandate for the Appellate Court to state reasons for its decision against

the appellant’s case. That’s what they are there for.

This principle of a court being compelled to provide a basis for an affirmation

ruling applies all the more when the Appellate Court is being asked to examine a

matter by the de novo standard of review. This standard applies to the court's

review of legal conclusions, meaning they look at the law fresh, not the trial court's

interpretation. When excluding the trial court’s interpretation and conclusions as a

fundamental component of the de novo review standard, the Appellate Court ought

not be allowed to then summarily affirm that lower court decision they are supposed

to be adjudicating outside of. This is because they are essentially being asked to

rule on the case as if they were the Court of first instance. Therefore, such a Court

has nothing whatsoever to affirm that they should be allowed to enter a decision in

silence.

Denial of Procedural Due Process of Law

The two components of procedural due process violated by a per curiam

affirmance are the Opportunity to Be Heard and the right to an Impartial Tribunal.

1. Opportunity to Be Heard

What defines the opportunity to be heard? It depends on who is interacting.

There is passive hearing and there is active hearing. An example of the former is

listening to the radio or being in the crowd at a symphony performance passively

hearing the music. Nothing is expected in return from the ones creating the sounds

that you hear, other than applause perhaps. Otherwise, it is for the most part, a

one-way interchange, as it is essentially designed to be.

Active hearing, on the other hand, entails more of an interactive form of

hearing. When two or more parties are engaging in an active dialogue, especially in

the context of working out a debate of sorts, then hearing takes on a different form.

Hearing then becomes connected to response or some form of being acknowledged.

How many times have any of us been directly interacting with someone who

is engrossed in their cell phone, only to then recognize that they aren’t hearing a

thing you are saying because there has been absolutely zero recognition, reaction,

flinch, reply or feedback of any kind from them to know that you have been

confirmatively heard? And how did that feel once you realized all that you had just

imparted was completely background noise to that person? You feel disregarded,

ignored and overlooked.

If one was on a debate team, where active hearing is essential, the act of

responding to a question immediately confirms the hearing of it.

So, with the

adversarial system of justice oft times requiring the Judge to be the trier of fact,

which then brings the anticipation of them applying the law precisely when ruling,

(since they are a Judge), then the litigants and the Judge are directly interacting,

which would thereby necessitate each party to acknowledge whoever is addressing

them. This is basic decorum between those interacting and/or formally debating

and the Court, of all places, should be no different.

In no way, shape or form does a per curiam affirmance by an Appellate Court

come close to any honest definition of “being heard’ to satisfy the 14th Amendment’s

right to due process of law. The adjudicatory process is a very serious matter, with

those participating usually having a lot at stake.

Litigants are relying on the

implementation of justice to be fair and honest, as the Court is instructed to be.

And a big part of impartiality and equity is being confirmatively heard on the issues

being debated, where the material facts and the law are what decides the outcome.

A Court implementing a summary affirmance does not provide any response

to what was said and debated by the appellant directly interacting with the Court

and therefore fails to meet any reasonable standard for that appellant having been

received on their argument. This is simple algebra. The PCA manifestly violates a

party’s due process right to be heard and is therefore repugnant to the Constitution.

The time is now for the Supreme Court to define what “being heard” means in the

context of how the Court is to respond to papers and the legal arguments contained

therein, since a person’s Constitutional Rights of due process might be at stake, as

well as a right to a jury trial.

2. Right to An Impartial Tribunal

For the many of the same reasons given above, the per curiam affirmance

violates a party’s right to an unbiased decision-maker since the PCA itself is a

biased instrument. It not only prejudices the appellant by denying equal protection

and the right to be heard, as reasoned above, but it is a sign of judicial prejudice as

well, especially when a Court decides to misapply the rule to deny justice.

This Petitioner would contend that the PCA,

in all applications,

(intentionally misapplied or not), is an instrument of judicial prejudice. A prejudice

against providing a full rebuttal of the appellant’s case (with material facts and

applicable law), even if portions have to be reiterated from the lower court as part of

a substantiated affirmance. A prejudice against the public’s advanced expectation

of an Appellate Court to provide a decisive verdict without ambiguity or

controversy. A prejudice against having to do whatever extra work necessary to

provide both the factual and legal basis for denying the appellants’ argument while

affirming the lower court. Nothing about the PCA is impartial from the tribunal

and therefore is repugnant to the Constitution.

3. Arguments in Favor of The PCA.

Proponents of PCA’s claim judicial efficiency and resource management for

heavy caseloads, focusing detailed opinions on complex or novel issues. They assert

that it is too much work to have to provide a pointed response to appellant

arguments.

Other arguments in favor of PCA’s include speedy resolution with

unanimity and strength. But despite these few clerically related rationalizations

for using the PCA, when justice is at risk, there is no rationale any longer.

If the court docket is so jammed that it becomes an excuse for restricting

justice by summarily affirming lower court decisions without opinion, then instead

of potentially putting due process rights at risk with every single application of this

methodology, it would be more prudent to find methods to mitigate the docket. The

following are ways this would be accomplished. Civil Gideon. It has become so

apparent to this pro se litigant that the entire civil legal system has been

weaponized by certain abusers able to leverage the navigation of the law against

any would-be victim of their civil crime.

If there was some provision for civil

representation where the cost to recover one’s losses is not incumbent on massive

attorney costs, the courts would see a measurable drop in civil cases since the

leverage game would be over. How a civil Gideon would look is a Court decision,

but some sort of (grand jury like) screening for certain at-risk litigants with civil

cases of $10K value or greater, after which they qualify for representation.

«■

Another way to clean up the docket is to publish all submitted appellate

papers alongside the Appellate Court’s ruling. Aside from releasing these records

keeping the Court honest with their ruling, it has become apparent that the relative

anonymity of these cases, (and especially the details in the submissions) is one way

by which certain culpable parties are able to hide what they did from more

widespread knowledge.

A little public exposure with the potential for shaming is always a favorable

deterrent to impropriety. If a party has nothing to hide, then airing all papers

opening with easy public access should worry them not. However, if a party has

done dirty and is relying on the public’s lack of knowledge or access to court

documents for their civilly liable deeds to remain unknown, (as they tie up the

system for having been sued for their misgivings), then openly airing those

documents and the exposure it brings will act as a subtle deterrent for some to

commit the crime in the first place.

4. Arguments Against The PCA

The per curiam affirmance represents an utter lack of transparency.

Transparency holds courts accountable and builds public confidence.

Summary

affirmances also violate the substantial competent evidence standard, which refers

to legally sufficient, credible proof that a reasonable person would find adequate to

support a conclusion. And because they contain no reasoning, PCAs usually cannot

be cited as authoritative precedent in future litigation.

PCA’s also violate the Seventh Amendment (Right to Jury Trial. Some

legal scholars argue that summary procedures (like summary judgment and

affirmance) are unconstitutional because they allow judges to resolve cases where

factual sufficiency is in dispute—a task historically reserved for juries.

Furthermore, a jury is going to deliberate every bit of material evidence and

measure it against the law. There is no time Emit on that crucial charge. The most

important thing is to get the riding correct. A PCA obviates this open-ended time

factor, which is necessary to justly adjudicate a legal matter. As such, critics also

argue that summary affirmances without written opinions fail the judicial duty to

independently assess legal questions.

Because there is no written opinion to

identify a conflict in law, higher courts usually lack the jurisdiction to review the

decision, thereby unduly curtailing the appellate rights of a party.

When applied to this instant matter before the Supreme Court, the per

curiam affirmance fails the Mathews v. Eldridge Test. For instance, the Private

Interest component of the test is substantial. Because of the unconstitutionality of

the PCA, Petitioner lost his medical license and the ability to earn an abundant

living therefrom. If such losses can happen as easily as this present example, then

everyone is at risk. Because the PCA enables silent affirmation without a single

safeguard for misuse or abuse, where a party is not only at risk for loss of their

private interest, but their Constitutional Rights are also violated as part of the

process, something needs to change to safeguard due process.

And the eight-hundred-pound gorilla in this room is none other than the per

curiam affirmance. The solution? The safeguard? Eliminate it for good. How many

more bad cases, legal articles and subject experts are needed to decry this

unconstitutional practice before the Supreme Court abolishes it once and for all?

This case couldn’t be more illustrative of its repugnancy.

The only cost to the

government would be the added time it took for the judge’s law clerk to prepare a

statement of the facts and law based off their own papers on the matter, if indeed

they did the compulsory work. The court’s PCA use excuse of Judicial Efficiency to

manage heavy caseloads and for focusing detailed opinions on complex or novel

issues is a cop out and unacceptable when there is no control whatsoever over its

potential abuse, with conceivable results of that abuse being a denial of due process

and equal protection, coupled with substantial financial losses.

Summary Judgment Ruling in this Case is Unconstitutional

1. Judge Failed To Find The Facts Specially In Violation Of FRCP 52(a)

The Sixth Amendment to the Constitution makes any Federal Law

supreme over any State law.

FRCP 52(a), the Federal Statute directing

Findings and Conclusions by the Court states the following:

(a)FINDINGS AND CONCLUSIONS. (1) In General. In

an action tried on the facts without a jury or with an

advisory jury, the court must find the facts specially and

state its conclusions of law separately

“Must find the facts specially” means the judge is required to individually

enumerate and detail the specific factual findings that support their final decision.

This is the Federal standard. The New York equivalent is NY CPLR § 4213(b),

’

which states, (b) Form of decision. The decision of the court may be oral or in writing

and shall state the facts it deems essential.

The significant difference between the two has New York’s version leaving

the statement of the facts arbitrarily up to the Court, who is not even required to

state its conclusions of law. When examining the original Decision, Order &

Judgment from the Monroe County Supreme Court, there is literally nothing that

comes close to this judge individually enumerating and detailing the specific factual

findings behind the decision while stating the conclusions of law. Enumeration of

factual findings means including such from both sides and not just cherry-picking

factoids that can be used to steer a conclusion that is only as sturdy as the he it’s

based on not being recognized.

By New York’s Statute being out of fine with the Federal guidelines for a

Court’s FINDINGS AND CONCLUSIONS, and by the trial court in this matter

having violated this provision to the denial of justice, both the Order and NY CPLR

§ 4213(b) are repugnant to the Constitution.

2. NY CPLR 3212(b) Is Unconstitutionally Out Of Line With FRCP 56(a)

The Monroe County Supreme Court failed Petitioner through NY CPLR

3212(b) in multiple ways. First of all, the statute is so incredibly vague as to how

the Court is to state the facts and conclusions of law, much like the argument above

using the provisions of FRCP 52(a). FRCP 56(a), the Federal Rules for Summary

Judgment states the following:

(a)MOTION FOR SUMMARY JUDGMENT .... The court

should state on the record the reasons for granting or

denying the motion.

This statute that overrules NY’s corollary also makes mention of the court

>•*

“stating on the record the reasons” when CPLR has nothing of the sort.

The

statements of facts are left in the hands of those submitting papers, where the

Court then chooses what to pick out instead of enumerating both arguments and

then stating its conclusions of law.

There is no scoresheet, or any means

whatsoever to know just what each side contended or the material facts submitted

when the court puts out a nicely worded document completely void of any material

or legal basis, all because the law says they can. Anyone who has been in law long

enough knows that courts and attorneys abuse this statue.

It has taken this

participant but one experience. To add to what has already been shown to be an

epic failure of the trial court to simply exercise justice, CPLR 3212(b) also states

that should a court find that the nonmovant naively has a winning summary

judgment case of their own, the court can act independently and award that litigant

the case. THIS is how much protection there is supposed to be for the non-movant,

which was far more nonexistent than movant by the court with this case.

Rules of Evidence Violations were Constitutional Rights Violations

The utter disregard of all three levels of Courts in New York state of

Petitioner’s argument (alone) on the missing exhibits issue is staggering to say the

least. Aside from all the case law examples and rulings regarding failures with

timely fifing due to electronic fifing errors, which, in most cases, has the filer out of

luck, this case is totally different. The filings were timely and they were indeed

uploaded as affirmed by the system accepting three corrected pdfs after initially

rejecting them for formatting issues.

Also, the Respondents had acknowledged

receipt of the exhibits to the Court in a letter seeking more time to respond. The

trial Court read 340 separate references to these exhibits and still remained

absolutely silent. Deafening mute was also the Appellate Division, particularly

after being asked to rule on the matter. The Court of Appeals did the same thing

but with far fewer words.

1. No Court Response Violates Protection Against Impartial Tribunal

The sheer fact that none of the Appellate level courts in NY felt it within

themselves to even respond to Petitioner on the missing exhibits issue, especially

after tending compelling argument, is clear evidence of bias and a violation of

Petitioner’s due process rights, thereby making each of these Appellate rulings

repugnant to the Constitution.

2. Harmless Error Provision Was Violated

The Federal Statutes applicable to the missing exhibits issue couldn’t be clearer.

They are as follows:

Federal Statute FRCP 61 - Harmless Error

Unless justice requires otherwise, no error in admitting or

excluding evidence or any other error by the court or a party is

ground for granting a new trial, for setting aside a verdict, or for

vacating, modifying, or otherwise disturbing a judgment or order.

At every stage of the proceeding, the court must disregard all

errors and defects that do not affect any party’s substantial rights.

28 USC App Fed Rules of Evidence Rule 103: Rulings on Evidence

(a) PRESERVING A CLAIM OF ERROR. A party may claim error

in a ruling to admit or exclude evidence only if the error affects a

substantial right of the party and:

(2) if the ruling excludes evidence, a party informs the court of

its substance by an offer of proof, unless the substance was

apparent from the context.

Petitioner’s 103 exhibits were the evidentiary basis for his cross-motion for

summary judgment before the trial court. Their failure to register with the same

electronic filing system that had successfully received his briefs just minutes before

the exhibits were uploaded was not from any attributable delinquency on his part.

Irrespective of how the failure occurred, not having one’s material evidence is

clearly an error affecting a party’s substantial rights. Justice required that these

exhibits be included in the Court’s deliberations, and at any stage of these

proceedings. Even though the missing exhibits were not discovered until far into

the appellate process, their substance was more than apparent from the context of

Petitioner’s papers mentioning them hundreds of times. And with the Respondents

having received the exhibits and therefore weren’t prejudiced, there is nothing the

Court could possibly argue against these exhibits having been received on appeal.

The Federal Rules of Appellate Procedure (FRAP) Rule 10(e) - Correction or

Modification of the Record states the following:

(2) If anything material to either party is omitted from or

misstated in the record by error or accident, the omission or

misstatement may be corrected and a supplemental record

may be certified and forwarded:

(3) All other questions as to the form and content of the

record must be presented to the court of appeals.

By remaining silent and ignoring this issue, the Appellate Division broke the

law. This is why they simply ignored the issue altogether rather than attempting to

answer it and leveraged that flagrant violation against being held to account by a

pro se litigant. Petitioner lost a brilliant medical career by OPMC exercising this

very same tactic. If an authority can’t defeat the argument it wants to defeat, it

just ignores it like the issue was never raised. Good luck trying to navigate yourself

within the law to then overcome that railroading.

NY even has their own statute that has some application with this issue, NY

CPLR § 2002 - Error in Ruling of Court. Error in ruling of court. An error in a

ruling of the court shall be disregarded if a substantial right of a party is not

prejudiced.

There is nothing whatsoever that establishes any of this as being

representative of due process and therefore is repugnant to the Constitution.

Attorney and Judicial Misconduct Constitutes Unconstitutionality

1. Respondent Attorneys’ Misconduct.

There can be no argument that it is a due process infringement for

your attorneys to commit legal malpractice against their client. In this case, these

Respondents went a bit further than just making a mistake. They actively worked

to do their own client in by contacting the adversarial party and colluding to steer

Petitioner into a medical license surrender via a backdoor Answer default. And

then they kept it all secret until the eleventh and half hour. And then after they

were sued, they deliberately withheld damning evidence against them on discovery,

only for Petitioner to figure it out and bring the evidence into the case. It didn’t

matter anyway, the Court ignored it all.

2. Judicial Misconduct

This case has proven that not only do attorneys violate the ethical code for

legal professionals, but so do judges. One doesn’t want to believe such a thing since

the public confidence hinges on whether they can believe a judge to be honest, fair

and absolutely habituated on seeking justice over anything else. So when one gets

treated as Petitioner has, it is very distressing. And to see just how intentional it

all was too. Three Courts have knowingly and willingly turned a blind eye to gross

legal malpractice and professional misconduct and in doing so, committed it

themselves. Incredible. Will the Supreme Court now the next Court to ratify this

horrific practice of the law?

3. Court’s Endorsement of Professional Legal Misconduct

As stated, when these three legal authorities were confronted with a fellow

professional sullying the legal arts, rather than being appalled and incensed,

(because surely they don’t operate that way), they all condoned the illicit actions of

those within their purview to act in a disciplinary capacity.

And by them all

excusing the unlawful and unethical of each other, they violated their respective

federal duties through the ABA Code of Judicial Conduct and Code of Professional

Conduct.

For purposes of brevity, a simple list of these federal violations is enough to

make the point of just how filthy this entire matter has been and how extensively

deviant from any lawful standard were the players.

Violations of the ABA Model Code of Judicial Conduct:

Rule 1.1: Compliance with the Law

Rule 1,2 : Promoting Confidence in the Judiciary

Rule 1.3 : Avoiding Abuse of the Prestige of Judicial Office

Rule 2.2 : Impartiality and Fairness

Rule 2.3 : Bias, Prejudice, and Harassment

Rule 2.4 : External Influences on Judicial Conduct

Rule 2.6 : Ensuring the Right to Be Heard

Rule 2.15 : Responding to Judicial and Lawyer Misconduct

Violations of the ABA Model Rules of Professional Conduct

Rule 1.1 : Competence

Rule 1.2 : Scope of Representation & Allocation of Authority Between

Client & Lawyer

Rule 1.3 : Diligence

Rule 1.4 : Communications

Rule 1.16 : Declining or Terminating Representation

Rule 1.18 : Duties to Prospective Client

Rule 8.3 : Reporting Professional Misconduct

Rule 8.4: Misconduct

Had there been room to include the wording for the rules, the exasperation

from how divergent these Respondents and three Courts have been from the

guidelines that govern their practice of law at the ground level would be all the

greater.

Like previously stated, “what” these attorneys and courts have done is

plain to see. The “why” part is up for grabs, which is not necessary for the Supreme

Court to see the merits of what has been disclosed here. One thing is for sure, this

case is not an isolated event using the exact same tactics.

In the middle of dealing with this case, after having reinvented myself into

the home improvement space, a certain party decided to stiff Petitioner for $25,000

of contracted work he completed on an upscale renovation/house-flip. After a hen

was filed and successfully defended in court and the judge issued a clear directive

for how the property was going to be sold, five different sets of parties involved with

a pending sale on the subject premises being held up by the hen, (being led by the

seller’s attorney), ah colluded to sell the house around the hen. Their reasoning?

What’s this nobody going to do to touch us legally for having just broken the law

and contemptuously violating a Court Order? Not only did they once again leverage

zi .

the law against their victim, but when they were touched by a multi-party/multipleading lawsuit, the attorneys hired to defend the culprits once again used CPLR

3212 to unconstitutionally violate Petitioner’s rights and the Court welcomed it.

Once more, when confronted with malfeasance from within their own profession,

the court came to the rescue. The Decision and Order in that case would have

received less than an F- if it was ever tendered in a real setting of justice or

erudition. That matter just went to the Appellate Justices now that all papers are

in and oral arguments are finished. (NY E2024000703/CA 24-01298)

And when that becomes clear, the laws that enable these injustices to be

exacted as easily as they have are all therefore repugnant to justice, due process,

equal protection and therefore the Constitution.

CONCLUSION

Upon truly examining this matter, (and this Petitioner truly hopes and prays

that the Court does so), the conclusion cannot be escaped. Petitioner has had his

Constitutional Rights violated six ways to Sunday, and those who are in a position

to identify this impropriety and rule against it have been the ones committing it.

There are far too many loopholes in the law that invite unscrupulous agents

of the law to abuse the very thing they purport to uphold. Saying it doesn’t happen

is just burying one’s head in the proverbial sand. It is high time that the legal

system clean itself up and it starts at the house of the law — The Supreme Court of

the Land.

The per curiam affirmance is so offensive that of course it proves out to be

Unconstitutional, as has been sustained in this paper. It needs to be abolished and

the Courts step up their game by actually putting their money where their ruling is.

For reasons of abuse, the summary judgment statute in New York needs an

overhaul to mandate judges to at least operate at the same level of jurisprudence as

the corresponding Federal counterparts. In its present form, CPLR 3212 too easily

enables Constitutional violation and therefore is repugnant.

As for the failings in the realm of discipline and oversight, none of these

professionals lived up to what the law charges them to do when they become aware

of another’s misconduct.

Protecting one’s own doesn’t mean breaking the law,

especially when you are a dispenser of justice.

Each of these shortcomings [in the laws on how Courts rule] were weaponized

against Petitioner in this matter and for those reasons alone ought to be grounds for

overturning the dismissal. Granting the judgment in Petitioner’s favor would then

be based on that crazy notion called the rule of law and evidence. For the reasons,

argument and law used in this paper, the Petition for a Writ of Certiorari should be

granted.

Date: January 20, 2026

Respectfully submitted,

James R. Caputo, M.D.

Petitioner, pro se

4278 Lafayette Road

Jamesville, N.Y. 13078

(315) 382-8778

jrcaputo@yahoo.com

No.

IN THE

SUPREME COURT OF THE UNITED STATES

James R. Caputo, M.D.

PETITIONER

VS.

Richard S. Tubiolo, Esq.

Bryan S. Kornfield, Esq.

Hirsch and Tubiolo, PC

RESPONDENTS

Certificate of Compliance

This pro se Petition for Writ of Certiorari was researched, written, and

submitted in accordance with Supreme Court Rule 14, without the assistance of an

attorney. The Petition section is 39 pages long and uses a 12-point Microsoft Century

Schoolbook Font. The Microsoft Word count for pages 1-39 is 9,836 words.

Jaines R. Caputo, M.D.

Petitioner, pro se

4278 Lafayette Road

Jamesville, N.Y. 13078

(315) 382-8778

jrcaputo@yahoo.

RECEIVED

JAN 2 8 2026

OFFICE OF THE CLERK

Rl IPREME court, U.S.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.