Petition for Writ of Certiorari — Kaufman v. Fass

Supreme Court, U.S,

a FILED

/

: 08 798 NOV 26 2003

No.

In the

Supreme Court of the United States

oqp o—

MELVYN KAUFMAN,

Petitioner,

V.

ANNE FASS, DAVID FASS, HOULIHAN LAWRENCE

INC., BURBANK WHITTEMORE INC., and EDGEWATER

POINT PROPERTY OWNER’S ASSOCIATION, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KUCKER & BRUH, LLP

Attorneys for Petitioner

36 West 44th Street — Suite 415

New York, New York 10036

(212) 869-0030

QUESTION PRESENTED

Whether the Due Process and Equal Protection Clauses of

the Fourteenth Amendment of the United States Constitution

require: (a) that when four judges are selected from a pool of

twenty judges to serve on the appellate panel in the court of

last resort for the overwhelming majority of appellants in the

State of New York, that the selection process be random or

neutral ensuring a fair and impartial panel, and that it not be

pursuant to closed door maneuvering whereby two clearly

biased judges can position themselves onto the appellate

panel in four of one appellant’s five appeals; and (b) that the -

process by which judges are selected from a pool of judges to

serve on appellate panels be made transparent so that such

process cannot be manipulated for improper purposes to

deprive appellants of their right to a fair hearing before an

impartial court and to maintain the public’s faith in the

judiciary.

il

LIST OF PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover

page.

ill

TABLE OF CONTENTS

Page |

OPINIONS BELOW ...oesssccsccccesssseeeeeeeeeeeeeeeeeccc |

STATEMENT OF JURISDICTION 2-00-00. l |

CONSTITUTIONAL PROVISIONS INVOLVED... 2 |

STATEMENT OF THE CASE |

Ws MUNCIE osc es sessevncscssecessensccescceseesesseesse,. 2 |

ee 4 |

REASONS FOR GRANTING THE WRIT................ 1 |

DUE PROCESS ou... ssssssssssssessssssseseeeeeeeeeeeeeeeeeccec. i |

EQUAL PROTECTION oeeececccccccceceeeeeeeeccccccccc. 23 |

a a 28 |

APPENDIX |

TABLE OF CITED AUTHORITIES

Page(s)

Cases:

Aetna Life Ins. Co. v Lavoie, 475 U.S. 813,

89 L. Ed. 2d 823, 106 S. Ct. 1580 (1986) .............. 12

Bracy v Gramley, 520 U.S. 899, 138 L. Ed. 2d 97,

117 S. Ct. 1793 (1997) ...sesseseseeseceesseesseetenentenensarencens 12, 13

City of Cleburne, Texas, et al. v Cleburne Living

Center, Inc., 473 U.S. 432, 87 L. Ed. 2d 313,

105 S$. Ch. BEAD (1GGS) vsnrsecccsssacscscessescavncssese 11-12, 23-24

Federal Trade Commission v Texaco, Inc.,

381 U.S. 739, 14 L. Ed. 2d 714, 85 S Ct. 1798

(DIGS) cccccncecsacesnsnarasseccasneavagendvensenessnannonssarenubrnterernnnss 18

Goldberg v Kelly, 397 U.S. 254, 25 L. Ed. 2d 287,

DOS. Ce. ITD GIO) vesncensvciccccatecescssennisocosssepsssnevenns 13

In re Murchison, 349 U.S. 133, 99 L. Ed. 942,

TSB. Ct. CES FDS) nncviniessccsvesnsniisrsisnesnesmenavertanin 12

Johnson v Mississippi, 403 U.S. 212, 29 L. Ed. 2d 423,

05 FOX. S77 ccs sui ccapétessecomaunaanmmas 12

Kaufman vy Farris, 293 AD2d 654, 740 NYS2d 627

(2nd Dept., 2002) ...........cscceccsseereseeeessesseceeeseeseesnsens 8, 18

Kaufman v Fass, 302 AD2d 497,

756 NYS2d 247 (2nd Dept., 2003) ....... 1, 9-10, 19, 20, 21

Kaufman v Kehler, et al., 305 AD2d 636,

759 NYS2d 765 (2nd Dept., 2003) .......... 8, 18, 20, 21, 22

Kaufman v Office of Building Inspector, 295 AD2d

349, 743 NYS2d 880 (2nd Dept., 2002) .............0 9,18

v1

Kaufman v Village of Mamaroneck, 286 AD2d 666,

729 NYS2d 778 (2nd Dept., 2002) .............ssscceesssees 8,18

Lindsey v Normet, 405 U.S. 56, 31 L. Ed. 2d 36,

ee EF Fi ihisevicnincccinsntdioaamiamion 12

Logan v Zimmerman Brush Co., 455 U.S. 422,

71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982).......... 16, 26-27

Marshall v Jerrico, Inc., 446 U.S. 238,

64 L. Ed. 2d 182, 100 S. Ct. 1610 (1980) ..... 15-16

Tumey v Ohio, 273 U.S. 510, 71 L. Ed. 749,

BF ee a IFT D cckecinsnssbotectenennceseabbenio names 12

Village of Willowbrook, et al., v Olech, 528 U.S. 562,

145 L. Ed. 2d 1060, 120 S. Ct. 1073 (2000)............ 24

Ward v Monroeville, 409 U.S. 57, 34 L. Ed. 2d 267,

he Rs EN viiidnnsiccssic ee eae 12

Withrow v Larkin, 421 U.S. 35, 43 L. Ed. 2d 712,

ee Hh BO IIIS isenrssrancsintectecssansoammeuedametamaies 13

United States Constitution:

TE FE 8b Ecsite tnicesensiconpstbcrdastastceciibadicgaen 2

Statutes:

cB Go PO vrssicssescnsisicnssienreescinceniicinstaietsitaalicaiaden l

be +4 ee citnineiinteepeceniecesleniaiauads 20

BN IEF wicsrseicorerncisnancasnsoncissnnntsndenepeceenniae aia matt 7

NG FFE teitirieranrsrcesinrenichcioonanninedaee 7

Re IE vncsnsncnisrcanrsarsacnanmunitanmnentaneseaiinigbitaees 20

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully prays that.a writ of certiorari issue

to review the decision and order of the Appellate Division of

the Supreme Court of the State of New York for the Second

Department, dated February 18, 2003.

OPINIONS BELOW

The decision of the Appellate Division of the Supreme

Court of the State of New York for the Second Department

(the “Second Department”), dated February 18, 2003, affirm-

ing the dismissal of the petitioner’s complaint, is reported at

302 AD2d 497, 756 NYS2d 247 (2nd Dep’t, 2003). (See Ap-

pendix A). That decision affirmed the June 28, 2001 decision

and order of the Supreme Court of New York for Westchester

County, note which has not been reported. (See Appendix D).

The Order of the Second Department, dated April 30, 2003,

denying the petitioner’s motion for reargument or, in the

event reargument was denied, for permission to appeal to the

Court of Appeals of the State of New York, note which has

not been reported. (See Appendix B).

The Order of the Court of Appeals of the State of New

York, dated September 16, 2003, denying petitioner’s motion

for leave to appeal, is reported at 2003 NY LEXIS 2242. (See

Appendix C).

STATEMENT OF JURISDICTION

The order of the Court of Appeals of the State of New

York denying petitioner's motion for leave to appeal was

entered on September 16, 2003.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment of the United States Consti-

tution provides, in relevant part, that:

nor shal! 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. CONST. amend. XIV, § 1.

STATEMENT OF THE CASE

A. Introduction

The most important appellate court in the State of New

York, the court which is of last resort for the overwhelming |

majority of appellants in the State, regularly violates the

Due Process and Equal Protection Clauses of the Fourteenth

Amendment of the United States Constitution. This matter

involves the acts of that court which did harm to the petitioner

by purposely depriving him of his nght to a fair hearing

before an impartial appellate panel. Instead of randomly se-

lecting judges to sit on appellate panels, the court allowed

judges with a prejudice against the petitioner to repeatedly

maneuver onto appellate panels considering the petitioner’s

appeals thereby guaranteeing that the petitioner would lose.

The Appellate Division, Second Department (hereinafter

“Second Department”), had twenty members at the time the

petitioner’s appeal was heard in the instant matter (the Court

now has twenty-one judges). All appeals are heard by four

or five member panels (it is unknown how it is determined

whether to have four or five member panels). There is no

statute or regulation or publicized court rule which specifies

the manner in which these panels are selected and the process

has not been made known to the public. It is apparent from

the petitioner’s own experience that the selection of Second

Department appellate panels can be manipulated improperly

and that judges can choose the appellate panels on which

they want to appear.

The petitioner brought an appeal in the instant matter

before the Second Department in accordance with his statu-

tory right. The four member appellate panel which heard

the petitioner’s appeal was not randomly selected. The panel

included two justices who have appeared on four of peti-

tioner’s five appeals brought to the Second Department in

a two year period. The statistical probability of the same two

judges out a pool of twenty being randomly selected to

appear on four of five appeals brought by a single individual

is only 22 out of 1,000,000 or .000022 % chance. Thus, it is

evident that the appearance of Justices Krausman and Adams

on the appellate panels of four of Mr. Kaufman’s five appeals

was calculated and not an accident. These judges exhibited

extreme bias against the petitioner by making abusive and

derisive comments about petitioner and the merits of peti-

tioner’s appeals during oral argument. They were also part of

the appellate panel which imposed $10,000 sanctions against

petitioner merely for refusing to abandon another first time

appeal which was properly filed.

The manipulation of the selection of the appellate panels in

the petitioner’s appeals was done with the full knowledge

and consent of the other Justices in the Second Department,

as well as with the silent consent of the New York Court

of Appeals, the State’s highest Court, who sets the rules the

Second Department must follow. Thus, it is not merely two

rogue judges who are violating the petitioner’s Constitutional

rights, but the entire New York State Court system which

allows such manipulation and abuse to take place.

The instant matter involves only the violence done to the

petitioner’s Constitutional rights. It is, of course, unfair that

a single individual should be required to bear the cost and

consequences of improper judicial actions. The petitioner has

ee

been targeted for improper treatment by at least two members

of the State judiciary with the actual or tacit consent of the

others. It is fortuitous that the petitioner has the ability and

fortitude to challenge a State Court system which violates

the Constitution. Other appellants may not have the financial

resources to do so or they may not be aware of the Consti-

tutional violation.

Meaningful access to an impartial judiciary is a funda-

mental right of all individuals in the United States. In our

Democracy all nghts and liberties, including other funda-

mental rights, are ultimately sustained by resort to the courts

and such rights and liberties can not be secured or protected

absent a fair hearing before an impartial court. Further,

continued faith and trust in the Judiciary require that the

selection of judges be totally transparent and not subject

to abuse or manipulation. The petitioner requests that this

Court rule that access to an impartial judiciary, selected

in a transparent manner, is cruciai to securing all other

fundamental rights and is itself a fundamental right which

must be afforded strict scrutiny under our Constitution.

B. Background

The underlying facts are not complicated. The petitioner

and the respondents Anne and David Fass each own separate

properties on a spit of land in the State of New York known

as Edgewater Point which extends into the Long Island Sound

on the coast of the Atlantic Ocean. The petitioner and the

respondents Fass belong to the Edgewater Point Property

Owners’ Association (EPPOA), a not-for-profit corporation

incorporated in the 1930’s to govern the gated community

occupying Edgewater Point. All private properties on Edge-

water Point are encumbered by restrictive covenants in the

deed which ensure that all property owners comply with

uniform rules and standards in the community.

The restrictive covenant in issue in the instant matter re-

quires owner occupancy of all houses and prohibits private

property owners from doing business or leasing their houses

on Edgewater Point. This covenant was intended to ensure

that Edgewater Point, unlike the trend for other waterfront

communities surrounding New York City in the 1930’s,

would remain a residential neighborhood of owner occupied

houses. By requiring that all houses on Edgewater Point be

owner occupied, the covenant also ensures that those indi-

viduals actually residing in the community have a financial

and personal interest in maintaining both property values and

high community standards. Finally, the owner occupancy

requirement ensures that property owners will not be sub-

jected to transient neighbors with no personal interest in the

community.

The petitioner has resided on Edgewater Point for forty-five

years. He purchased his properties and built his home on

Edgewater Point because of its natural beauty on the water-

front and because of the restrictive covenants which peti-

tioner expected would maintain Edgewater Point as a wholly

residential community of owner occupied homes. For many

years that expectation was realized. However, in recent years

new property owners have come onto Edgewater Point who

believe that the covenants do not apply to them.

The current disregard of the Edgewater Point restrictive

covenants unfortunately reflects the self-interest of many

of the new property owners who became wealthy during

the recent period of corporate excesses and illegal financial

schemes. They have bought into existing prestigious com-

munities such as Edgewater Point as a confirmation of their

heightened social status. Unfortunately along with the new

wealth came an attitude that local rules and regulations were

meant to apply to others. It is this new group of Edgewater

Point property owners who have decided that the restrictive

covenants are not binding and can be ignored.

The instant matter illustrates the problem faced by the

petitioner due to the endemic non-compliance with the Edge-

water Point restrictive covenants by new property owners.

The respondents Fass are essentially real estate speculators.

Following the purchase of their property the respondents

became absentee landlords and have allowed the property

to deteriorate while non-caring tenants occupied the house.

The respondents’ deteriorating property is an eyesore for the

community and unfairly impacts on petitioner who suffers

declining values for his own properties. The restrictive

covenants, if enforced, would protect against this result.

Initially the petitioner sought to have the Edgewater Point

restrictive covenants enforced against the respondents, and

ether recalcitrant property owners, by the Edgewater Point

Property Owners Association (“EPPOA”) without resorting

to the courts. However, those efforts failed due in part to the

growing number of property owners who have a vested

interest in not having the covenants enforced. Many of the

older residents on Edgewater Point do not have the fortitude

to pursue the required litigation against the newer defiant

property owners. Accordingly, it was left to the petitioner to

commence the required litigation to have the restrictive

covenants enforced.

Early in petitioner’s litigation the State courts held that the

petitioner is required to commence separate lawsuits against

each of his neighbors to enforce the Edgewater Point re-

strictive covenants. For that reason the petitioner commenced

separate lawsuits against three of his neighbors who were

blatantly violating the restrictive covenants. The petitioner

commenced the instant matter to obtain compliance with

the restrictive covenant which provides that all houses on

Edgewater Point be owner occupied and used solely for

residential purposes. As stated in the covenant:

The Grantee, by the acceptance of this deed does hereby

covenant and agree with the Grantor as follows: 3. That

no manufactory, trade or business whatsoever shall at

any time hereafter be erected, maintained or permitted

upon the premises hereby conveyed. The term “business”

shall be deemed to prohibit the operation or main-

tenance of a school, hotel, or boarding or lodging house,

and any owner, tenant or occupant of any portion of the

property, who shall permit a paying guest to reside on

the premises, or shall house or keep one or more guests

for the purpose of making a money profit, shall be

deemed to violate the provisions of this paragraph; but

however, the restriction against paying guests shall not

be deemed to include members of families related by

blood or marriage who may jointly maintain a dwelling

as a permanent residence.

Unfortunately, despite the plain language of this restrictive

covenant, the Westchester County Supreme Court dismissed

the petitioner’s complaint without a finding of fact. According

to the Court the petitioner’s complaint failed to state a cause

of action because under the interpretation. of the covenant

adopted by the Court property owners were only prohibited

from operating hotels and boarding houses on Edgewater

Point. The Court found that the restrictive covenant did not

prohibit property owners from renting their houses to tenants

for profit. (See Appendix D). This finding was directly con-

trary to the plain language of the covenant. The petitioner

strongly believed that the Court’s interpretation of the

covenant was erroneous and that the decision was wrong.

Under New York State statute, Civil Practice Law and

Rules (CPLR) §§ 5511 and 5512, every litigant has the right

of one appeal from a judgment of the County Supreme

Court to the Appellate Division. Pursuant to such nght, the

petitioner timely filed an appeal with the Appellate Division,

Second Department contesting the decision of the West-

chester County Supreme Court.

The Second Department had twenty judges when the instant

matter was appealed (the panel currently has twenty-one).

Appeals are assigned to a panel of either four or five judges.

There is no statute and there are no publicized rules which

determine how a judge is selected to sit on a particular ap-

pellate panel or whether the panel should consist of four

or five judges. The selection of the appellate panel and the

number of judges sitting on a particular appeal is determined

by an unknown process. Absent the required transparency,

there can be no public faith in the selection process or that

the judges selected will be impartial and fair.

The petitioner’s appeal was assigned to a four member

appellate panel. Two of the members of the panel, Justices

Gabriel M. Krausman and Thomas A. Adams, had also

appeared on the panels of the other appeals brought by peti-

tioner under his own name concerning Edgewater Point.

Thus, of the five appeals brought by petitioner to the Second

Department over a two year period, all relating to Edgewater

Point, Justices Krausman and Adams appeared together on

four of the appellate panels hearing the appeals. It should be

additionally noted as a corollary that eleven of the judges in

the twenty member pool of judges in the Second Department

never appeared on the appellate panels in any of the peti-

tioner’s five appeals.

The petitioner’s four appeals wherein Justice Krausman

and Adams appeared together included the instant matter and

Kaufman v Farris, 293 AD2d 654, 740 NYS2d 627 (2nd

Dept., 2002); Kaufman v Village of Mamaroneck, 286 AD2d

666, 729 NYS2d 778 (2nd Dept., 2002); and Kaufman v

Kehler, et al., 305 AD2d 636, 759 NYS2d 765 (2nd Dept.,

2003). The fifth appeal wherein neither Justice Krausman nor

Justice Adams appeared on the panel was Kaufman v Office

of Building Inspector, 295 AD2d 349, 743 NYS2d 880 (2nd

Dept., 2002).

The probability of two judges, out of a pool of twenty,

being randomly assigned to the four member appellate panels

in four of five appeals brought by one individual is only

22 out of 1,000,000 or a statistically impossible .000022 %

chance. It is clear that Justices Krausman and Adams were

not randomly assigned to the appellate panels considering the

petitioner’s appeals.

The petitioner was originally alerted to the apparent bias of

Judges Krausman and Adams during oral argument of his

appeals. Both Justices Krausman and Adams were unneces-

sarily abusive towards the petitioner’s attorney and derisive

of the petitioner.

Further, $10,000 sanctions were improperly imposed

against the petitioner in one of his appeals wherein Judges

Krausman and Adams were again on the appellate panel.

As explained more thoroughly below, there was no legal or

factual basis for imposing the sanctions.

The petitioner lost all four appeals he brought in the

Second Department, including the instant matter, wherein

Justices Krausman and Adams appeared on the appellate

panel. With respect to the instant matter the Second De-

partment dismissed the petitioner’s appeal stating:

It is well settled that the law favors the free and unob-

structed use of property [citations omitted]. Accordingly,

a restrictive covenant must be strictly construed against

those seeking to enforce it, and may not be given an

interpretation extending beyond the clear meaning of its

terms [citations omitted]. Moreover, where the language

used in a restrictive covenant is equally capable of

two interpretations, the interpretation which limits the

restriction must be adopted [citations omitted]. Here,

——

10

the subject covenant prohibits any “owner, tenant or

occupant” of premises located in Edgewater Point from

operating a boarding or lodging house for paying guests.

However, the covenant does not expressly bar a prop-

erty owner from leasing his or her home, and, in fact,

contemplates the possibility that homes will be leased

by barring both tenants and owners from using premises’ ~

for business purposes. Since all of plaintiff's claims for

damages and injunctive relief are predicated upon the

theory that the restrictive covenant bars property owners

from leasing their homes, the Supreme Court properly

dismissed the complaint for failure to state a cause

of action, and denied that branch of the plaintiffs’ cross

motion which sought summary judgment on the first

and fifth causes of action set forth in the complaint.

See, Kaufman v Fass, 302 AD2d 497, 756 NYS2d 247 (2nd

Dept., 2003) (See Appendix A).

Because the Second Department in its decision in the

instant matter indicated that the restrictive covenant in issue

was “equally capable of two interpretations” the petitioner

requested reargument on the grounds that the Court had erred

by adopting the wrong interpretation in a close case. The

petitioner strongly believed that the covenant, when read as a

whole and in the context of other Edgewater Point restrictive

covenants, clearly prohibited all private property owners from

having paying tenants on Edgewater Point. Nevertheless, the

Second Department denied the petitioner’s motion to reargue.

(See Appendix B).

The petitioner exercised his nght to request the highest

court in the State of New York, the Court of Appeals, to

accept an appeal of the decision of the Second Department.

However, the Court of Appeals denied the petitioner’s motion

for leave to appeal without comment. (See Appendix C).

1]

REASONS FOR GRANTING THE WRIT

The petitioner contends that the manner in which the

appellate panels are constituted in the Second Department

violates both the Equal Protection and Due Process clauses of

the Constitution. The Second Department has promulgated

no rules or regulations, and there is no applicable New York

State statute which proscribes the manner of selecting the

appellate panels. It is known that the selection process of

the appellate panels is not random and that such process can

be manipulated. The concealed process whereby appellate

panels are selected in the Second Department violates the

petitioner's Due Process right to a fair hearing before an

impartial judiciary. Further, the petitioner has been singled

out by the Second Department for special treatment by the

non-random selection of special appellate panels to hear his

appeals thereby violating his right to Equal Protection.

DUE PROCESS

The petitioner is aware that judges are human and that they

will have natural prejudices and personal biases. The peti-

tioner is also aware that the Constitution can not require that

all appeals be considered by a new panel of judges never

previously exposed to the appellants. However, the petitioner

contends that at a minimum the Constitution requires that the

process for selecting judges be fair and neutral to ensure that

the judges selected be impartial. The petitioner also contends

that the selection process must be transparent and be pursuant

to a published set of rules so that the selection process cannot

be manipulated to serve an improper bias or prejudice.

Obviously, random selection of judges in a transparent and

neutral manner would satisfy the requirements of Consti-

tutional Due Process. It is equally obvious, however, that the

use of a concealed and non-random process which allows

manipulation and abuse can not be Constitutional. See, e.g.,

City of Cleburne, Texas, et al. v Cleburne Living Center,

12

Inc., 473 U.S. 432, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985)

and Lindsey v Normet, 405 U.S. 56, 31 L. Ed. 2d 36, 92 S.

Ct. 862 (1972). As this Court stated in /n re Murchison, 349

U.S. 133, 99 L. Ed. 942, 75 S. Ct. 623 (1955): “a fair trial in

a fair tribunal is a basic requirement of due process” and “our

system of law has always endeavored to prevent even the

probability of unfairness.”

Clearly the States are free to organize their courts and the

Constitution does not require that States provide for an

appeal. However, when a State does act and provides for

an appeal as of right, as New York has done, it must proceed

in accordance with the Due Process requirements of the

Constitution, including the requirement of a fair and im-

partial judiciary. See, Tumey v Ohio, 273 U.S. 510, 71 L. Ed.

749, 47 S. Ct. 437 (1927); Aetna Life Ins. Co. v Lavoie, 475

U.S. 813, 89 L. Ed. 2d 823, 106 S. Ct. 1580 (1986); Ward v

Monroeville, 409 U.S. 57, 34 L. Ed. 2d 267, 93 S. Ct. 80

(1972); Johnson v Mississippi, 403 U.S. 212, 29 L. Ed. 2d

423, 91 S. Ct. 1778 (1971); and Bracy v Gramley, 520 U.S.

899, 138 L. Ed. 2d 97, 117 S. Ct. 1793 (1997).

With respect to the selection of an appellate panel of four

judges from a pool of twenty, as occurred in the instant

matter, it is no less a Constitutional requirement that the

selection procedure be pursuant to published rules and that

the actual process of selecting the panel be both public and

neutral. When, as in the instant matter, the selection process

is not transparent and is subject to manipulation such that

certain judges are allowed to maneuver onto appellate panels

of their choosing, both the appearance and the reality of

impartiality is lost. More importantly, the public faith in the

judiciary will be lost because appellants appearing before the

Court will never know if their case was decided on the merits

or was subjected to improper influence. Losing appellants

will be convinced, as petitioner is convinced, that the hearing

was not fair.

13

In describing the minimum requirements necessary to

comply with Due Process in a judicial proceeding this Court

in Goldberg v Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct.

1011 (1970) stated:

Finally, the decision maker’s conclusion as to a re-

cipient’s eligibility must rest solely on the legal rules

and evidence adduced at the hearing. Ohio Bell Tel. Co.

v. PUC, 301 US 292 (1937); United States v. Abilene

& S.R. Co., 265 U.S. 274, 288-289 (1924). To demon-

strate compliance with this elementary requirement,

the decision maker should state the reasons for his

determination and indicate the evidence he relied on,

cf. Wichita R. & Light Co. v. PUC, 260 U.S. 48, 57-59

(1922), though his statement need not amount to a full

opinion or even formal findings of fact and conclusions

of law. And, of course, an impartial decision maker

is essential. Cf. In re Murchison, -349 U.S. 133 (1955);

Wong Yang Sung v. McGrath, 339 U.S. 33, 45-46 (1950).

[emphasis added]

See also, Withrow v Larkin, 421 U.S. 35, 43 L. Ed. 2d 712,

95 S. Ct. 1456 (1975).

More recently, in Bracy v Gramley, 520 U.S. 899, 138 L.

Ed. 2d 97, 117 S. Ct. 1793 (1997) this Court reiterated that:

the floor established by the Due Process Clause clearly

requires a “fair trial in a fair tribunal,” [citation

omitted], before a judge with no actual bias against the

defendant or interest in the outcome of his particular

case.

Since the United States Constitution provides that every

citizen is entitled to a “fair trial in a fair tribunal” then it

is respectfully submitted that the petitioner’s Constitutional

right to Due Process has been violated. The concealed manner

in which the appellate panel was selected to hear his appeal

was inherently flawed so that it could not result in a fair

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14

tribunal. The clear manipulation of the selection process of

the appellate panel for petitioner’s appeal resulted in biased

judiciary.

As stated above, the same two judges appeared on the four

member appellate panels in four of the petitioner’s five

appeals before the Second Department over the last two

years. Justices Krausman and Adams appeared on four of

the five appeals brought by the petitioner. The statistical

probability of the same two judges, out of a pool of twenty,

being randomly selected on four of five appeals brought

by one individual are 22 out of 1,000,000 or a statistically

impossible .000022 % probability. Thus, the manipulation

of the selection process in the Second Department is well

established.’ There can also be no dispute that the process

for selecting appellate panels in the Second Department is

not transparent and is not done pursuant to any statute or

publicized rules.

This Court has not determined the minimum procedural

due process required by the Constitution with respect to

judicial assignments. This Court has not held that the selec-

tion process must be random or neutral in order to satisfy

the requirements of the Constitution. This court has also not

held that the selection process must be open to the public.

These are important issues which this Court should address.

Whether the selection process involves an appellate panel,

as in this matter, or the initial selection of the tral judge,

' It should be also noted that a third justice, Justice Stephen Crane,

appeared in three of the petitioner’s five appeals, including the one appeal

wherein Justices Krausman and Adams did not appear. And two justices,

Nancy E. Smith and Cornelious J. O’Brien, each appeared in two of peti-

tioner’s five appeals. It is readily apparent that the repeated appearance

of these three Justices, along with Justices Krausman and Adams, on the

appellate panels considering the petitioner’s five appeals was not random.

15

it is crucial that the selection process itself be completely

neutral, open to the public, and pursuant to published rules to

ensure a “fair trial in a fair tribunal.”

The petitioner further contends that only an appellate panel

selected transparently and randomly can be considered im-

partial for Constitutional purposes. Any deviation from a

transparent and random selection of judges must be justified

by a reason which is directly related to a valid State interest

and which is neutral in its application to all citizens. As

stated by this Court in Marshall v Jerrico, Inc., 446 U.S. 238,

64 L. Ed. 2d 182, 100 S. Ct. 1610 (1980):

The Due Process Clause entitles a person to an

impartial and disinterested tribunal in both civil

and criminal cases. This requirement of neutrality

in adjudicative proceedings safeguards the two equal

concerns of due process, the prevention of unjustified or

mistaken deprivations and the promotion of partici-

pation and dialogue by affected individuals in the

decision making process. See Carey v. Piphus, 435 U.S.

247, 259-262, 266-267 (1978). The neutrality require-

ment helps to guarantee that life, liberty, or property

will not be taken on the basis of an erroneous or distorted

conception of the facts or the law. See Mathews v.

Eldridge, 424 U.S. 319, 344 (1976). At the same time,

it preserves both the appearance and the reality of

fairness, “generating the feeling, so important to a

popular government, that justice has been done,” Joint

Anti-Facists Committee v. McGrath, 341 U.S. 123, 172

(1951) (Frankfurter, J., concurring), by ensuring that no

person will be deprived of his interests in the absence

of a proceeding in which he may present his case with

assurance that the arbiter is not predisposed to find

against him.

16

* * * Indeed, “justice must satisfy the appearance

of justice,” Offutt v. United States, 348 U.S. 133, 136

(1955). See also Taylor v. Hayes, 418 U.S. 488 (1974)

{emphasis added]

Similarly, as stated by this Court in Logan v Zimmerman

Brush Co., 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148

(1982):

As our decisions have emphasized time and again,

the Due Process Clause grants the aggrieved party the

opportunity to present his case and have its merits

fairly judged.

* * *

What the Fourteenth Amendment does require, however,

“is ‘an opportunity . . . granted at a meaningful time

and in a meaningful manner,’ Armstrong v. Manzo, 380

U.S. 545, 552 (1965) (emphasis added), ‘for [a] hearing

appropriate to the nature of the case,’ Mullane v.

Central Hanover Tr. Co., supra, at 313.” (Boddie v.

Connecticut, 401 U.S., at 378. [emphasis added]

It is extremely important that the judiciary maintain both’

the reality and the appearance of impartiality and fairness

and that the procedure by which judges are selected to hear

a particular matter be open and neutral. A selection process

which is not transparent, such as currently utilized by the

Second Department, leads to the inescapable conclusion that

the process is not fair and that judges will be selected for

improper purposes. Concealed procedures for judicial assign-

ment fail to meet the minimum requirements of due process

required by the Constitution. Such procedures are obviously

subject to abuse and manipulation giving the appearance that

justice can be bought and sold. Any decision rendered under

such opaque process will always be suspect.

17

It can be argued, of course, that a transparent and neutral

~ selection process would not guarantee that the judges thereby

selected would be impartial and fair. However, the petitioner

is not contending that the Constitution requires that judges

always be impartial, although that would be a worthy goal,

but only that the deck can not be purposely stacked against

one appellant by “State” action. Judges can not be allowed to

repeatedly maneuver onto selected appellate panels to ensure

that the result they want will prevail. If the selection process

was transparent and random then judges would not have the

opportunity to maneuver onto panels and appellants, like the

petitioner, would have a reasonable opportunity to have a

neutral and impartial appellate panel hearing his appeals.

A litigant or appellant can not easily prove bias or pre-

judice on the part of the judiciary. A prejudiced judge will

not usually tip his or her hand. It is for this reason that the

selection process of the appellate panels must always be

transparent and random. For the public to maintain its faith in

the judiciary the opportunity for manipulation of the panel

selection must be eliminated.

The petitioner strongly believes, based upon the decision in

the instant matter and by events and decisions in his related

appeals before the Second Department, that the appellate

panel hearing his appeals, and specifically Justices Krausman

and Adams, had an improper prejudice against him and that

he did not receive a fair hearing. The petitioner can not prove

this bias directly but the obvious manipulation of the ap-

pellate panels hearing the petitioner’s appeals provide direct

proof that petitioner was not given a fair and impartial

hearing.

As noted above, the petitioner has brought five appeals

to the Second Department all involving the enforcement of

local property regulations and covenants on Edgewater Point

where he has his home. The five appeals brought by the

petitioner over the last two years include the instant matter

18

and Kaufman v Farris, 293 AD2d 654, 740 NYS2d 627 (2nd

Dept., 2002); Kaufman v Village of Mamaroneck, 286 AD2d

666, 729 NYS2d 778 (2nd Dept., 2002); and Kaufman v

Office of Building Inspector, 295 AD2d 349, 743 NYS2d 880

(2nd Dept., 2002); and Kaufman v Kehler, et al., 305 AD2d

636, 759 NYS2d 765 (2nd Dept., 2003). Justices Krausman

and Adams appeared on the appellate panel in all petitioner’s

appeals except Kaufman v Office of Building Inspector,

supra.

Not only did the petitioner find it improper that Justices

Adams and Krausman appeared on four of his five appeals,

but he became alarmed when during oral argument both

judges were openly and adamantly abusive towards the

petitioner’s attorney who was not allowed to complete a

sentence, let alone convey the merits of petitioner’s appeal.

The petitioner and his wife were in the audience when

Justices Adams and Krausman improperly voiced animosity

towards petitioner and repeatedly interrupted oral argument

to harangue petitioner and his attorney. The Justices made it

clear by their comments and gestures during oral argument

that they had complete scorn for the petitioner and had im-

properly prejudged the merits of the appeals before them.

See., e.g., Federal Trade Commission v Texaco, Inc., 381

U.S. 739, 14 L. Ed. 2d 714, 85 S Ct. 1798 (1965).

The petitioner does not know the underlying source of the

extremely hostile behavior and abusive comments of Justices

Adams and Krausman. The instant matter clearly has merit

and was appropriately before the Second Department on

appeal based upon the single issue of contract interpretation.

The petitioner’s legal position was properly argued upon a

logical interpretation of the restrictive covenant as requiring

owner occupancy by private property owners on Edgewater

Point. The respondents Fass did not dispute that they had

rented their house to tenants for profit. All that was required

was a resolution of the disputed interpretation of the covenant.

19

Certainly the underlying facts and simple legal issue involved

in this case do not explain the abusive behavior of Justices

Adams and Krausman. However, what happened next was

even stranger.

In denying the petitioner’s appeal in the instant matter, the

Second Department relied upon recited rules of construction

in finding that where a restrictive covenant was “equally

capable of two interpretations” the least restrictive would

be adopted. Thus, according to the Second Department in its

decision dated February 18, 2003 in pertinent part:

Moreover, where the language used in a restrictive

covenant is equally capable of two interpretations, the -

interpretation which limits the restriction must be

adopted [citations omitted]. Here, the subject covenant

prohibits any “owner, tenant or occupant” of premises

located in Edgewater Point from operating a boarding or

lodging house for paying guests. However, the covenant

does not expressly bar a property owner from leasing

his or her home, and, in fact, contemplates the possi-

bility that homes will be leased by barring both tenants

and owners from using premises for business purposes.

See, Kaufman v Fass, 302 AD2d 497, 756 NYS2d 247 (2nd

Dept., 2003) (See Appendix A). Significantly, there is no

indication in the decision of the Second Department that

the petitioner’s appeal was either frivolous or without merit.

Indeed the decision indicates that the covenant in issue was

“equally capable of two interpretations.”

The petitioner disagreed with the decision of the Second

Department. The petitioner believes that the restrictive co-

venant in issue, when viewed objectively and in the context

of the remaining Edgewater Point covenants, must be read as

prohibiting all private property owners from having tenants.

The language of the Second Department in its decision gave

the petitioner reason to believe that the decision of the Court

Bo

ee

20

was close and that in the Court’s view the covenant in issue

was “equally capable of two interpretations.” Accordingly,

the petitioner prudently and logically determined to move to

reargue the decision on March 19, 2003.

Under New York statute, New York Civil Practice Law

and Rules (CPLR) § 2221, the petitioner had the right to

move to reargue a decision of the Second Department.

Further, pursuant to CPLR § 5602, the petitioner had the

right to request permission to proceed with an appeal to the

highest court of the State, the New York Court of Appeals.

In the event the Second Department denied either or both

motions, the petitioner had the additional statutory mght,

under CPLR § 5602, to make a direct request to the New

York Court of Appeals to accept an appeal. Based upon these

statutory rights, which the petitioner fully intended and did in

fact exercise, the initial decision of the Second Department in

the instant matter was not final and binding as it was subject

to future reversal by either the Second Department itself or

by the Court of Appeals.

As noted above, the petitioner had another appeal before

the Second Department also involving the correct interpre-

tation of the Edgewater Point restrictive covenant at issue

in the instant matter. The petitioner’s appeal in Kaufman v

Kehler, supra, was pending before the Second Department

when its original decision in the instant matter was issued

(on February 18, 2003). Kehler was originally scheduled to

be argued on the same day as the instant matter. However,

because of the death of one of the parties in Kehler one week

before argument that appeal was postponed and eventually

rescheduled by the Second Department for April 23, 2003

(when it was submitted without oral argument).

Immediately following the decision of the Second Depart-

ment in the instant matter (Fass), the defendants in Kehler

demanded that the petitioner withdraw that (Kehler) appeal.

The petitioner notified the Kehler defendants that he had

|

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4

21

elected to exercise his right to move to reargue in the instant

matter (Fass) and that therefore the decision in that matter was

not yet final. Moreover, the issues in the two appeals were

not identical. Accordingly, it was prudent for the petitioner to

continue with the Kehler appeal despite the decision in the

instant matter (Fass).

When the petitioner refused to withdraw the appeal in

Kehler, the defendants therein moved for sanctions before the

Second Department on the basis that the petitioner’s refusal

to withdraw the pending appeal was frivolous conduct. The

petitioner responded to the motion by informing the Second

Department that he would not be withdrawing the Kehler

appeal for the reasons explained to the Kehler defendants.

The petitioner believed that the motion for sanctions would

be immediately dismissed by the Second Department because

the briefs in Kehler had been submitted seven months earlier,

the decision in the instant matter (Fass) was not final, and the

petitioner had the statutory right to at least one appellate

review in every matter, including Kehler regardless of the

decision in any other appeals.

As noted above, the appellate panel in Kehler consisted of

the same four justices as in the instant matter, including

Judges Adams and Krausman. As stated above, based upon

the pending motion to reargue, and the petitioner’s right to

request the Court of Appeals to consider an appeal, the peti-

tioner had very good and prudent reasons for not withdrawing

his appeal in Kehler immediately following the decision

in the instant matter (Fass). Nevertheless, in a revealing and

troubling decision, the Second Department appellate panel

imposed $10,000 sanctions against the petitioner solely for

refusing to withdraw the Kehler appeal following the Febru-

ary 18, 2003 decision in the instant matter (Fass). According

to the Court:

af

4

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4 {

i {

F

i

i

ORDERED that the motion is granted to the extent that

within 20 days after service upon him of a copy of this

decision and order on motion, the appellant is directed

to pay the sum of $10,000 to Cahill, Gordon & Reindel,

the attorney for the respondents, representing the re-

spondents’ reasonable costs and attorney’s fees incurred

in defending this appeal * * * *

In light of this court’s prior holding in Kaufman v Fass,

the instant appeal was without merit in law and could

not be supported by a reasonable argument for an

extension, modification, or reversal of existing law.

The restrictive covenant was clearly just as inapplicable,

if not more so, to mere occupants of a house in the

community, who resided there rent-free, as it was to

tenants who paid rent to occupy a house in the com-

munity. Accordingly, the conduct of the appellant in

pursuing this appeal after the decision and order of this

court in Kaufman v Fass constituted frivolous conduct

within the meaning of 22 NYCRR 130-1.1.

The improper imposition of $10,000 sanctions against the

petitioner by the same appellate panel as considered the

petitioner’s appeal in the instant matter, clearly establishes

that panel’s improper bias against the petitioner.” It is a bias

which the petitioner has had to face in four separate appeals

because of the repeated manipulation of appellate panel

assignments in the Second Department. The repeated appear-

ance of Justices Krausman and Adams on four of five appeals,

and also on the unwarranted motion for sanctions, was

purposeful and the decisions of the Second Department are

tainted by its improper and opaque selection process.

* The imposition of sanctions was pursuant to a separate proceeding

instituted by Kehler and technically constitutes the fifth, of six, appellate

proceeding wherein Judges Krausman and Adam: appeared on the panel

judging the merits of petitioner’s arguments.

23

The petitioner recites the events in Kehler and the motion

for sanctions solely to show that the justices on the Second

Department appellate panels which decided both Kehler and

the instant matter were neither impartial nor objective as

required by the Constitution. This is the danger which will

always arise where the selection process for judges is neither

transparent nor neutral and is subject to manipulation.

EQUAL PROTECTION

The petitioner’s right to Equal Protection was also violated

by the New York Courts. As this Court stated in City of

Cleburne, Texas, et al. v Cleburne Living Center, Inc., 473

U.S. 432, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985):

The Equal Protection Clause of the Fourteenth Amend-

ment commands that no State shall “deny to any person

within its jurisdiction the equal protection of the laws,”

which is essentially a direction that all persons similarly

situated should be treated alike. Plyler v. Doe, 457 U.S.

202, 216 (1982). Section 5 of the Amendment empowers

Congress to enforce this mandate, but absent controlling

congressional direction, the courts have themselves

devised standards for determining the validity of state

legislation or other official action that is challenged

as denying equal protection. The general rule is that

legislation is presumed to be valid and will be sustained

if the classification drawn by the statute is rationally

related to a legitimate state interest. Schweiker v Wilson,

450 U.S. 221, 230 (1981); United States Railroad Retire-

ment Board y. Fritz, 449 U.S. 166, 1740175 (1980);

Vance v. Bradley, 440 U.S. 93, 97 (1979); New Orleans

v. Dukes, 427 U.S. 297, 303 (1976). When social or eco-

nomic legislation is at issue, the Equal Protection Clause

allows the States wide latitude, United States Railroad

Retirement Board v. Fritz, supra, at 174; New Orleans v.

Dukes, supra, at 303, and the Constitution presumes that

even important decisions will eventually be rectified by

the democratic processes.

This Court has recently stated that discrimination of even

a class of one can violate the Constitution. According to this

Court in Village of Willowbrook, et al., v Olech, 528 U.S.

562, 145 L. Ed. 2d 1060, 120 S. Ct. 1073 (2000):

Our cases have recognized successful equal protection

claims brought by a “class of one,” where plaintiff

alleges that she has been intentionally treated differently

from others similarly situated and that there is no ra-

tional basis for the difference in treatment. See Sioux

City Bridge Co. v. Dakota County, 260 U.S. 441, 67

L. Ed. 340, 43 S. Ct. 190 (1923); Allegheny Pittsburgh

Coal Co. v. Commission of Webster Cty., 488 U.S. 336,

102 L. Ed. 2d 688, 109 S. Ct. 633 (1989). In so doing,

we have explained that “‘the purpose of the equal pro-

tection clause of the Fourteenth Amendment is to secure

every person within the State’s jurisdiction against

intentional and arbitrary discrimination, whether oc-

casioned by express terms of a statute or by its improper

execution through duly constituted agents.’” Sioux City

Bridge Co., supra, at 445 (quoting Sunday Lake Iron

Co. v. Township of Wakefield, 247 U.S. 350, 352, 62

L. Ed. 1154, 38 S. Ct. 495 (1918)).

Unlike most other litigants appearing before the Second

Department, the petitioner was not provided with a randomly

selected appellate panel. Instead, the panel assigned to the

petitioner’s appeal in the instant matter included two judges,

Justices Adams and Krausman, who had also appeared on

three of the petitioner’s other recent appeals before that

Court. Thus, as noted above, in four of five appeals brought

by the petitioner before the Second Department over a two

year period the four member appellate panels included

Justices Adams and Krausman.

25

These facts demonstrate that the petitioner has been singled

out for special treatment before the Second Department by

having the same two judges repeatedly appear on the four

member panels reviewing the petitioner’s appeals, including

the instant matter. No reasonable basis for treating the pe-

titioner differently than all other appellants appearing before

the Second Department can be provided. This is a blatant

violation of the Equal Protection Clause of the Fourteenth

Amendment.

The petitioner was also treated differently than other ap-

pellants appearing before the Second Department in that his

appeal was heard by only a four member appellate panel.

Other appellants in the Second Department have their appeals

heard by a five member panel, and appellants in the First,

Third and Fourth Departments (the Appellate Division in

New York State is divided into four Departments) all have

their appeals heard by five member panels.

It is improper to treat the petitioner differently than other

appellants in the Second Department and in the State of New

York"by assigning only four judges to the appellate panel

hearing the petitioner’s appeal. The fifth judge may have

been persuasive in petitioner’s favor during deliberations.

The petitioner is entitled to that fifth voice to the same extent

as any other appellant in the State.

The New York State Constitution and statutes provide that

where there is a four member appellate panel and there is

an even split on the appeal then the matter is reheard with a

fifth judge to break the tie. Such procedure does not remedy

the Constitutional violation but exacerbates the unfairness.

Judges sitting on four member panels are aware that if they

dissent and an even split occurs the appeal will have to be

reheard taking additional time and resources. Especially in a

close case, as in the instant matter, institutional pressure may

well be exerted on the judges not to dissent. Where, as in the

instant matter, two judges are allowed to maneuver onto the

4 i

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Ee

appellate panel and ardently advocate a particular decision,

it is unlikely that the two remaining panel members will feel

strongly enough about the case to dissent when to do so

would require a rehearing. Two rogue judges can have a

lesser impact when the appeal is heard by a five member

appellate panel.

There is no logical or rational basis for having four member

appellate panels for some litigants when other appellants

have five member appellate panels assigned to their appeals.

The Constitution does not prohibit all disparate treatment

of individuals by a State but it does require that such trea-

tment be justified on some non-arbitrary basis reasonably

related to a legitimate interest of the State. As stated by Justice

Blackmun in his concurring opinion in Logan v Zimmerman

Brush Co., 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148

(1982):

For over a century, the Court has engaged in a con-

tinuing and occasionally almost metaphysical effort

to identify the precise nature of the Equal Protection

Clause’s guarantees. At the minimum level, however,

the Court “consistently has required that legislation

classify the persons it affects in a manner rationally

related to legitimate governmental objectives.”

~ Schweiker v. Wilson, 450 U.S. 221, 230 (1981). This

is not a difficult standard for a State to meet when it

is attempting to act sensibly and in good faith. But

the “rational-basis standard is ‘not a toothless one, °”

id., at 234, quoting Mathews v. Lucas, 427 U.S. 495,

510 (1976); the classificatory scheme must “rationally

advanc[e] a reasonable and identifiable governmental

objective.” Schweiker v. Wilson, 450 U.S., at 235. I see

no need to explore the outer bounds of this test, for

I find that the Illinois statute runs afoul of the lowest

level of permissible equal protection scrutiny.

* * *

27

. . . But it is not enough, under the Equal Protection

Clause, to say that the legislature sought to terminate

certain claims and succeeded in doing so, for that is

“a mere tautological recognition of the fact that [the

legislature] did what it intended to do.” U.S. Railroad

Retirement Bd. v. Fritz, 449 U.S. 166, 180 (1980

(STEVENS, J., concurring in judgment). This Court

still has an obligation to view the classificatory system,

in an effort to determine whether the disparate

treatment accorded the affected classes is arbitrary.

Rinaldi v. Yeager, 384 U.S., at 308 (“The Equal Pro-

tection Clause requires more of a state law than

nondiscriminatory application within the class it

establishes”). Cf. U.S. Railroad Retirement Bd. v. Fritz,

449 USS., at 178. [455 U.S. 422, 442]

* * *

The State’s rationale must be something more than the

exercise of a strained imagination; while the connection

between means and ends need not be precise, it, at the

least, must have some objective basis.[emphasis added]

It is extremely doubtful that any non-arbitrary basis can

be given for treating the petitioner differently from other ap-

pellants appearing before the Second Department. Even if the

concealed process for selecting four member appellate panels

in the Second Department could survive a challenge vis a vis

the Due Process Clause, then it must certainly fail under

Equal Protection analysis. There is no conceivable rational |

basis for singling out the petitioner for special treatment

before the Second Department.

28

CONCLUSION

The petitioner has been denied his Constitutional nghts

to Due Process and Equal Protection. The vehicle for the

Constitutional violation is a court system which allows

judges to pick and choose which cases they will hear. Judges

on the Second Department bench who have a bias or par-

ticular interest in an appeal can help ensure the result by

placing themselves on the appellate panel hearing that

appeal. The petitioner has directly suffered the consequences

of such improper conduct in four of his appeals brought

to that Court wherein he was denied an impartial appellate

panel randomly selected. The same two judges, from a pool

of twenty, maneuvered to appear in petitioner’s four appeals

proving that the selection of the appellate panels was neither

random nor neutral. As a result the petitioner was denied his

Constitutional right to a fair hearing before an impartial court.

Based upon the Constitutional violations it is respectfully

requested that this Court grant a writ of certiorari for the

consideration of the important issues raised in this matter.

Respectfully submitted,

PATRICK K. MUNSON, ESQ.

KUCKER & BRUH, LLP

Attorneys for Petitioner

36 West 44th Street

New York, New York 10036

(212) 869 5030