Appendix — Kyle v. Lebovits
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Svpreme Cour, U.S.
FILED
09-693 DEC 7-209
OFFICE OF THE CLERK
No. vein 5. Suter, Clark
IN THE
Supreme Court of the Anited States
a
WILLIAM KYLE, KATHRYN GILBERT,
AND MARY KYLE,
Petitioners,
Vv.
HON. GERALD LEBOVITS, (JHC), AND
736 RIVERSIDE DrR., LLC.,
Respondents.
&
On Petition for a Writ of Certiorari
To the State of New York Court of Appeals
ro)
APPENDIX
~
PAUL H. STEVENSON ROBIN H. KYLE, Esq..,
P-34075 Counsel of Record
4632 SECOND AVENUE KYLE LAW FIRM
DETROIT, MI 48201 80 Broad Street
(313) 833-6868 5™ Floor
New York, NY 10004
(212) 837-7836
Counsel for Petitioners
NC LT TT TT AT Times AimMNSNr EASA
i
APPENDIX TABLE OF CONTENTS
APPENDIX A:
Opinion of the State of New
York Court of Appeals
APPENDIX B:
Opinion and Order of Judge
Lebovits, Denying Petitioners’ RPL
§234 Statutory Attorneys Costs/fees
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APPENDIX C:
Order of Judge Lebovits, Denying
Petitioners’ Motion for Rehearing
(February 22, 2007)
APPENDIX D:
Opinion and Order Judge Wendt
Denying Petitioners’ Motion to
Amend Answer with §234 Counter-
claim for fees (March 30, 2007)..................
APPENDIX E:
Order of Judge Lebovits Re:
Disqualification (July 9, 2007)
Petitioners’ Affidavit in Support
Of Disqualification
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APPENDIX F:
Decision of Judge Lebovits,
Denying Petitioners’ Motion to Vacate
Stipulation (August 13, 2007)..................... 17a
APPENDIX G:
Amended Decision of Judge Lebovits,
Denying Petitioners’ Motion to Vacate
Stipulation (August 24, 2007)..................... 28a
APPENDIX H:
Decision of Justice Cahn,
Dismissing Maadamus Disqualification
Proceeding (October 26, 2007).....................08. 40a
APPENDIX I:
Decision of the Appellate,
Division—First Department Affirm-
ing Dismissal (January 20,2009).................... 6la
APPENDIX J:
Petitioners’ Appellate Brief
Appellate Division—First Department
CF err icccocscesccccccccccess 64a
APPENDIX K:
Judge Lebovits’ Opposition to
Brief in Mandamus Appeal
October 8, 2009........ ae . 8la
il
APPENDIX L:
Petitioners’ Reply Brief
Appellate Division—First
Department (July 2, 2008).....................0... 84a
APPENDIX M:
Judge Lebovits Correspondence
To the Division, First Department
CPI Gy MII os vic vaceccsccésescccssscccesccess 93a
APPENDIX N:
June 4, 2007, July 8th, 2007
Transcript of Proceedings........................... 95a
APPENDIX O:
Petitioners’ Reply Correspondence
To Appellate Division
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APPENDIX P:
Petitioners’ Motion For Leave to
Appeal the New York Court of
Appeals (June 2"4, 2009).......00......0ccccee. .....106a
APPENDIX Q:
Judge Lebovits’ Opposition to
Petitioners’ Motion for Leave to
Appeal the New York
Court of Appeals (June 19, 2009)............... 144a
iv
APPENDIX R:
June 20, 2007 Stipulation of
Settlement So-Ordered by Judge
EE 2108 tava sdeacdnaicce sans eubyeubsekeussnucesse 146a
APPENDIX S:
Judge Lebovits’ Notice Pursuant
to CPLR §7804(i) in Opposition to
Mandamus for Disqualification................. 150a
la
APPENDIX A:
State of New York Court of Appeals
Slip Copy, 2009 WL 2871192 (Table) (N.Y.), 2009
N.Y. Slip Op. 82571
September 8, 2009.
At a session of the Court, held at Court of
Appeals Hall in the City of Albany on the eighth
day of September, 2009
PRESENT, HON. JONATHAN LIPPMANN,
Chief Judge, presiding.
In the Matter of William KYLE, et al.,
Appellants,
Vv.
Hon. Gerald LEBOVITS, et al., Respondents
A MOTION for leave to appeal to the Court of
Appeals in the above cause having heretofore been
made upon the part of the appellants herein, papers
having been submitted thereon and due deliberation
having been thereon had, it is
ORDERED, that the said motion, insofar as it
seeks leave to appeal from that portion of the
Appellate Division order that dismissed the appeal
from that portion of Supreme Court’s order that
imposed sanctions upon Appellants’ counsel, be and
2a
the same hereby is dismissed upon the ground that
as to said part of the order appellants are not parties
aggrieved within the meaning of CPLR §5511; and it
is,
ORDERED, that the said motion for leave to
appeal otherwise be and the same hereby is denied
insofar as it seeks leave to appeal from that portion
of the Appellate Division order that dismissed the
appeal from that portion of Supreme Court’s order
that imposed sanctions upon appellants’ counsel,
dismissed upon the ground that as to said part of the
order appellants are not parties aggrieved within the
meaning of CPLR §5511; motion for leave to appeal
otherwise denied.
Stuart M. Cohen
Clerk of the Court
3a
APPENDIX B:
Housing Part: Civil Court of the City of New York
736 Riverside Drive LLC., v. Kyle, et al.,
L&T 77281/06
DECISION ON MOTION FOR RPL §234
ATTORNEYS FEES AND EXPENSES
January 26, 2007
Gerald Lebovits, J.
On April 15, 2003, Hudson Overlook, LLC,
commenced a nonpayment proceeding (Index No.
68658/03) against respondents. On December 23,
2004, the Honorable Ulysses B. Leverett granted
respondents a judgment of $21,373.40 after trial.
Hudson Overlook filed a notice of appeal on January
17, 2005. The Appellate Term dismissed the appeal
on August 15, 2005, because Hudson Overlook failed
to perfect it. On July 28, 2005, Hudson Overlook
transferred its interest in the subject building to 736
Riverside Drive, LLC. On December 1, 2005,
respondents moved (Motion Sequence No. 15) to
amend the caption to add 736 Riverside Drive and for
attorney fees. Because of scheduling conflicts
between the attorneys for both sides, the court never
decided the motion. The motion to amend the caption
and for attorney fees was adjourned three times:
December 9, 2005, January 6, 2006, and February
10, 2006. On March 16, 2006, the parties agreed to
4a
mark the motion off the calendar with an under-
standing that it would be restored later.
On June 16, 2006, 736 Riverside Drive filed a
new nonpayment proceeding (Index No. 77281/06)
against respondents. Respondents answered on July
21, 2006. Contained in respondents’ answer was a
reservation of their right to move for an
“accelerated/summary judgment” for attorney fees for
their successful defense in Index No. 68658/03, the
Hudson Overlook proceeding. Respondents asserted
three counterclaims in their answer to 736 Riverside
Drive’s petition. None of their counterclaims sought
to hold 736 Riverside Drive liable for attorney fees as
Hudson Overlook’s successor-in-interest. On July 24,
2006, respondents moved for summary judgment
against 736 Riverside Drive for attorney fees (Motion
Sequence No. 2). On October 20, 2006, 736 Riverside
Drive filed its affirmation in opposition § to
respondents’ motion for summary judgment for
attorney fees (Motion Sequence No. 2). On November
20, 2006, respondents filed their reply to 736
Riverside Drive’s affirmation in opposition to
respondents’ motion for summary judgment for
attorney fees (Motion Sequence No. 2).
On July 24, 2006, in Index No. 68658/03,
respondent moved (Motion Sequence No. 16) for an
"inquest/hearing" on attorney fees; to consolidate
the proceeding with Index No. 77281/06; and
to restore Index No. 68658/03 to the calendar. On
Sa
October, 20, 2006, Hudson Overlook filed its affirm-
ation in opposition to respondents’ motion (Motion
Sequence No. 16).
On August 18, 2006, in Index No. 77281/06,
respondents filed an order to show cause (Motion
Sequence No. 3) seeking a stay of the proceedings
until the court decides respondents’ motion. In the
alternative, respondents moved (Motion Sequence
No. 2) to strike 736 Riverside Drive's petition for its
alleged failure to comply with a stipulation dated
July 24, 2006, in which the parties agreed to adjourn
the motion for summary judgment until August 23,
2006, and in which 736 Riverside Drive agreed to
serve opposition papers to respondents’ motion for
summary judgment by August 15, 2006. 736
Riverside Drive’s opposition papers to respondents’
motion for summary judgment (Motion Sequence No.
2) were filed on October 20, 2006.
On November 30, 2006, in Index No.
68658/03, respondents filed an order to show cause
(Motion Sequence No. 19) to substitute or join 736
Riverside Drive, LLC, as a petitioner. Respondents
also sought to amend the caption to include 736
Riverside Drive as Hudson Overlook’s successor-in-
interest.
Before this court are the following five above-
mentioned motions: (1) in Index No. 68658/03, res-
6a
pondents’ motion (Motion Sequence No. 15) to amend
the caption to add 736 Riverside Drive and for
attorney fees; (2) in Index No. 77281/06, respondents’
motion (Motion Sequence No. 2) for summary
judgment against 736 Riverside Drive for attorney
fees; (3) in Index No. 68658/03, respondents’ motion
(Motion Sequence No. 16) for an “inquest/hearing” on
attorney fees, to consolidate the proceeding with
Index No. 77281/06, and to restore Index No.
68658/03 to the calendar; (4) in Index No. 77281/06,
Respondents’ order to show cause (Motion Sequence
No. 3) seeking a stay of Index No. 77281/06 until
respondents’ motion to consolidate in Index No.
68658/03 is decided; (5) in Index No. 68658/03,
respondents’ order to show cause (Motion Sequence
No. 19) seeking to substitute or join 736 Riverside
Drive as a petitioner or amend the caption to include
736 Riverside Drive. In each motion, respondents
seek to recover from 736 Riverside Drive attorney
fees for their successful defense during the first
nonpayment proceeding, in Index No. 68658/03, with
Hudson Overlook.
If a residential lease provides that a land!ord
may recover attorney fees for prevailing in an action
or proceeding brought against a tenant, an implied
reciprocal agreement arises that the tenant may
recover attorney fees from the landlord for
successfully defending that action or proceeding.
(RPL § 234.) Attorney fees may be sought as either a
counterclaim or a summary proceeding. (Id.) A
successor-in-interest to a leased property is liable for
7a
its predecessor-in-interest’s obligations. (E.g. Stasy-
szyn v Sutton E. Assocs., 213 AD2d 337, 338 [lst
Dept 1995, mem].) Successors are thus responsible
for their predecessors’ obligations under RPL § 223,
which provides that a “lessee of real property ... has
the same remedy against the lessor, his grantee or
Assignee . . . for the breach of an agreement in the
lease, that the lessee might have had against his
immediate lessor.”
Respondents’ lease provided that if petitioner
prevailed in a proceeding against respondents,
respondents would be liable for attorney fees. If
respondents were successful in defending a
proceeding brought by Hudson Overlook, the prior
landlord, respondents had a reciprocal right to
recover attorney fees. All parties agree that
respondents prevailed in the Hudson Overlook
nonpayment proceeding. Accordingly, under RPL §
234, respondents have a statutory, reciprocal right to
reasonable attorney fees that Hudson Overlook is
obligated to pay.
736 Riverside Drive is Hudson Overlook’s
successor-in-interest because Hudson Overlook
transferred its ownership of the subject building to
736 Riverside Drive on July 28, 2006. 736 Riverside
Drive is liable for Hudson Overlook’s obligations.
Under respondents’ lease and RPL § 234, Hudson
Overlook is obligated to pay respondents’ attorney
fees for respondents’ successful defense in Index No.
68658/03. Accordingly, under RPL § 223 and § 234,
respondents may counterclaim for attorney fees from
736 Riverside Drive. Whether the counterclaim is
meritorious cannot be decided at this time.
This court is precluded from ruling on
respondents’ potential counterclaim for attorney fees
to 736 Riverside's petition, in Index No. 77281/06,
because respondents have not asserted a
counterclaim. RPL §234 requires that any action to
recover attorney fees must be a counterclaim or a
summary proceeding. A counterclaim must be
denominated as such. (CPLR §3011.) Respondents’
answer to 736 Riverside Drive’s petition did not
assert a counterclaim for attorney fees against 736
Riverside Drive. Respondents’ answer to 736
Riverside Drive’s petition merely reserved their right
to move for “accelerated/summary judgment" for
attorney fees. Respondents’ reservation of their right
to move for “accelerated/summary” judgment for
attorney fees is insufficient to meet the statutory
requirement to denominate a counterclaim.
Under CPLR §3025 (b), parties that fail to
denominate a counterclaim must move for leave to
amend their answer to include that counterclaim.
Respondents may move for leave to amend their
answer to include a counterclaim for attorney fees
under RPL § 234, if they deem it advisable. 736
Riverside Drive may oppose that motion if it deems it
advisable.
9a
If respondents had filed a counterclaim for
attorney fees in response to 736 Riverside Drive’s
petition, all five of respondents’ motions would have
been academic or non-meritorious, or both. A
counterclaim for attorney fees in Index No. 77281/06
would obviate the court’s need whether to consider,
among other things, to restore Index No. 68658/03
and then to consolidate Index No. 77281/06 with
Index No. 686858/03; to rule on successor liability; to
entertain 736 Riverside Drive’s argument in
opposition that the laches doctrine affects any award;
and to decide whether to add or join a prior party.
For judicial economy and to allow both sides
to prosecute the issue of attorney fees efficiently, this
court must deny all of respondents’ motions—all five
of which repetitively seek but one thing: attorney
fees from 736 Riverside Drive, the current petitioner,
for prevailing against Hudson Overlook, the prior
petitioner.
Index No. 68658/03 is marked off the court’s
calendar. Index No. 77281/06 is adjourned to
February 20, 2007, in Part G at 9:30 a.m. Between
now and February 20, Respondents may move for
leaver to amend their answer to add a counterclaim
seeking attorney fees for work don in Index No.
68658/03. This opinion is the court’s decision and
order.
Dated: January 26, 2007.
J.H.C.
Hon. Gerald Lebovits
10a
APPENDIX C:
Housing Part: Civil Court of the City of New York
736 Riverside Drive LLC., v. Kyle, et al.,
L&T 77281/06
DECISION DENYING MOTION FOR RE-HEARING
FEBRUARY 22, 2007
Declined: [Petitioners] submitted five motions
when all they should have done is counterclaim
clearly for legal fees in the current non-payment
proceeding. Despite the arguments in the affirmation,
[Petitioners] never counter claimed; the five motions
are duplicative and issue never joined. So summary
judgment was never an option.
Gerald Lebovits, J.H.C
NEW YORK HOUSING COURT
736 RIVERSIDE DRIVE LLC., Part O
Petitioner, Room 127-A
-against- Index No.:
77281/06
ORDER TO
WILLIAM KYLE, KATHRYN SHOW CAUSE:
GILBERT, and MARY KYLE TO RE-ARGUE
Respondents. PRIORORDER
UPON tthe reading of ‘the annexed
Supporting Affirmation/Memorandum of Ronald
lla
APPENDIX D:
Housing Part: Civil Court of the City of New York
736 Riverside Drive LLC., v. Kyle, et al.,
L&T 77281/06
DECISION ON MOTION TO AMEND ANSWER
March 30, 2007
Peter M. Wendt, J
The original answer herein was served in
July 2006, far more than 20 days ago. This motion
which now seeks t amend that July 06 answer to
include a legal claim has no copy of any lease
annexed entitled either side to legal fees.
Additionally, the petition herein contains no claim
for legal fees whatever. Respondent in this motion
seeks to obtain legal fees incurred in an earlier
action, Index No. 68658/03. In that proceeding
named Hudson Overlook LLC against Kyle et al.
Petitioner herein was not even a party.
For these reasons, this motion is denied with-
out prejudice to a motion by Respondent in Index
No.: 68658/03Hudson Overlook LLC for the legal
incurred therein or to a plenary action for same. This
matter is referred back to Part “O” for a trial
Dated: March 30, 2007
J.21.C.
Hon. Peter M. Wendt
12a
APPENDIX E:
Housing Part: Civil Court of the City of New York
736 Riverside Drive LLC., v. Kyle, et al.,
L&T 77281/06
DENIAL OF DISQUALIFICATION
July 9, 2007
Denied—This document is the most outrageous
document the Court has seen in its 5% years of service
on the bench.
Gerald Lebovits, J
736 RIVERSIDE DRIVE Part O
LLC., Room 1127-A
Petitioner,
Index No.:
77281/06
—against—
OSC FOR
DISQUALIFI-
WILLIAM KYLE, KATHRYN CATION
GILBERT, and MARY KYLE,
Respondents.
UPON the reading of the annexed Supporting
Affidavits of the Respondents, sworn to on July 9",
2007, the exhibits annexed thereto and all procee-
dings had heretofore in the cause:
LET, the Petitioner, 736 Riverside Drive LLC..,
or its attorneys of record, show cause before me at
13a
why an order should not be entered:
DISQUALIFYING the Honorable Judge Gerald
Lebovits pursuant Judiciary Law §14 as of May 24th,
2007, and;
GRANTING such other and further relief as
this Court deems just and proper;
5
SUPPORTING AFFIDAVIT
KATHRYN GILBERT, Respondent pro
se in the above-captioned matter, after first being
duly sworn, states the following to be true under the
penalty of perjury:
1. I am Respondent pro se in the above-
captioned matter and I reside at 726 Riverside Drive
6C, New York, NY 10031.
2. On or about June 20%, 2007, Judge
Lebovits “so-ordered” a partial settlement of the
above-captioned matter on the “issue of attorneys
fees” an issue which was also the subject matter in
the Article 78 proceeding against Judge Lebovits,
pending at the time.
38. Once it became apparent that that the
June 21%, 2007 Stipulation and Sett!ement (Exhibit
“A”) was conditioned on the discontinuance Article
78 proceeding in which Judge Lebovits was both a
14a
party and had an interest, Judge Lebovits became
statutorily disqualified pursuant to §14 of the
Judiciary Law.
4. Judiciary Law §14 provides as follows:
A judge shall not sit as such in, or take any part in
the decision of, an action, claim, matter, motion or
proceeding to which he is a party, or in which he
has been attorney or counsel, or in which he is
5. That the Stipulation of Discontinuance
entered in the pending Article 78 proceeding in the
Supreme Court matter (Index No. 105603/07—
Exhibit “B”) was conditioned pon the Respon-
dents’ signing and consenting tv the entry of the
June 218, 2007 settlement herein. And once this
inextricable relationship (between the Civil Court
Stipulation and the Supreme court Discontinuance)
became obvious, Judge Lebovits was statutorily
disqualified pursuant to §14 of the Judiciary Law, as
having an interest in and being a party to the
105603/07 case the discontinuance of which was
condition upon so-ordering the June 215, 2007
settlement herein.
6. Due to Judge Lebovits’ efforts, the
105603/07 matter and the instant matter became
inextricably intertwined.
1Sa
7. The entry, execution, and drafting both
agreements were facilitated by Judge Lebovits who—
commencing on or about Monday June 3", 2007, (and
in violation of the CPLR §7805 stay of proceedings)—
began scheduling appearances at which Respondents’
former counsel, Ronald P. Hart, was mandated/
summoned and/or requested to appear.
8. That in these ‘adjournment dates of
appearance (which occurred four times in June
2007), Judge Lebovits actively sought to have the
105603/07 matter, in which he was a party and had
an interest, resolved through settlement in the
above-captioned matter.
9. Both cases involved the same res: namely,
the issue of RPL §234 liability in favor of the
Respondents and against the Petitioner, 736
Riverside Drive LLC.
10. Therefore, when, on or about Monday
June 3, 2007, Judge Lebovits became statutorily
disqualified in the instant proceeding once he began
lobbying over s four-week period, with all parties, to
have the 105603/07 discontinued, a matter to which
he was a party and had an interest.
11. That the entry, execution, and drafting
both agreements were facilitated by Judge Lebovits
who, in violation of the CPLR §7805 stay of proceed-
l6a
ings lending the prestige of his office for negotiations
of the Article 78 proceeding against him.
12. Again, the Stipulation of Discontinuance
and Settlement was conditioned on the discontin-
uance of the proceeding against Judge Lebovits, who
although he did not “so order” 49 still had an interest
in the case notwithstanding his having (technically)
not “so-ordered” the language contained in 49.
WHEREFORE, [ request this Honorable Court
enter an order granting the within relief pursuant to
§14 of the Judiciary Law.
Dated: New York, New York
July 9, 2007
Kathryn Gilbert
17a
APPENDIX F:
Housing Part: Civil Court of the City of New York
736 Riverside Drive LLC,,. v. Kyle, et al.,
L&T 77281/06
August 13, 2007
ORDER ON MOTION TO VACATE STIPULATION
Gerald Lebovits, J
Respondents’ motion to vacate the two-
attorney stipulation of June 20, 2007, is denied as s
frivolous and possibly sanctionable.
A. The Facts and Procedural History
When the parties appeared before this court for
trial in two ncnpayment proceedings, Index Numbers
68658/03 and 77281/06, the court noticed five
undecided motions in the court file. All five, from
Respondents, sought atiorneys fees for work their
attorney did in Index Number 69658/03. Because a
trial could not take place until the motions were
resolved, the parties argued their positions on
January 17, 2007. On January 26, 2007, the court
denied all five motions but wrote that respondents
could “move for leave to amend their answer to add a
counterclaim seeking attorney fees for work done
in Index Number 68658/03.” Respondents moved for
18a
leave before the Honorable Peter M. Wendt, who
denied their motion without prejudice on March
30,2007, because, in part, “[t]he motion . . . ha[d] no
copy of any lease annexed entitled either side to legal
fees.” Judge Wendt referred the matter to this court
for trial.
In the interim, and instead of appealing or
moving to renew or reargue, Respondent, by counsel,
brought an Article 78 proceeding against Judge
Wendt and this court to compel us to rule in their
favor and award them hundreds and thousands of
dollars in attorneys fees. The Article 78, returnable
on June 22, 2007, stayed the proceedings under
Index Number 77281/06
Having received the case from Judge Wendt,
this court held a conference on June 15, 2007.
Respondents’ counsel appeared by telephone;
petitioner's counsel was in court. During that
conference, the court told the parties that it made no
sense to ask the court to “assist perhaps in settling
this case or, if not, in trying this case” (page 47, lines
19-21) while being sued in an Article 78 (page 47,
lines 21-22; page 48, lines 3-5). The court expressed
the view, therefore, that it should recuse itself (pages
48-50) on the basis of the conflict and because of the
strong feelings that the Article 78 engendered — for
example, that the Article 78 was “so frivolous and so
sanctionable that it shocks the consciene” (page 48,
lines 15-16); that respondents brought it as a “way to
gain leverage in your case [by] sue[ing] me and
Judge Wendt” (page 48, lines 2223); and that “I am
==
19a
thinking about filing a disciplinary charge” (page 49,
lines 9-10). Respondents’ counsel countered over the
span of many pages in the transcript beginning at
page 50 that the court should await a settlement
before recusing itself, and the matter was adjourned
to June 20, 2007.
On June 20, the court made it clear it was
already clear, but just in case — to respondents’
counsel that “I have no intention of filing disciplinary
charges against you” (page 4, lines 12-13) and that it
had brought the matter up because the court wanted
to explain the depths of its feelings in favor of
recusal. (Pages 3-4.) The court, seeing that the
parties had signed a stipulation resolving the
attorney-fee issue in Index Number 68658/03, stated
that it would not so-order a stipulation covering the
Article 78. (Page 4, bottom, and page 5, top.) The
court explained that doing so would mean ruling on a
case in which it was a litigant. The court also asked
whether the parties wanted the court to so-order a
stipulation without so-ordering paragraph 9, which
concerned discontinuing the Article 78, and parties
agreed: Petitioner’s counsel and respondents’ counsel
both said “fine.” (Page 6, lines 7-24.) The matter was
then adjourned briefly for the parties’ stipulation of
discontinuance to be signed and filed and for the
court to sign the stipulation. (Page 8-10.)
The parties returned that day with a signed
stipulation discontinuing the Article 78 and a second
stipulation settling the attorney-fee issue in Index
Number 68658/03. (Page 57, lines 211.) Before it
20a
signed the stipulation settling Index Number
68658/03, the court asked William Kyle, an un-
admitted law-school graduate, whether he wanted to
settle. “[I]Js this what you want to do?” the court
asked. Kyle said “Yes. This, this is what we're going
to do. I want to do it.” (Page 57, lines 2-5.) After a few
minutes the court asked Kyle the question again:
“Tell me what you want to do,” and Kyle said, “Don’t
start tearing up everything. This is fine.” (Page 60,
lines 5 & 10-11.) The court recused itself on Index
Number 77281/06, referred that case to Part X, the
expediter, for trial, and signed the stipulation in
Index Number 68658/03, except for paragraph 9. The
stipulation gave respondents $190,000 in attorney
fees.
Barely had the ink dried on the stipulation
than Kyle, on July 9, 2007, submitted a pro se order
to show cause to disqualify this court retroactively
“as of May 24th, 2007” on the ground that this court
took part in an action in which it was a party, in
violation of Judiciary Law § 14. According to Kyle,
this court was disqualified from presiding over his
nonpayment case because he had sued the court in
an Article 78 proceeding. The court declined to sign
Kyle’s order to show cause, writing, “This is the most
outrageous document the court has seen in its 5'/z
years of service on the bench.”
Undeterred by the court's order-to-show-
cause declension, respondents, represented by new
counsel — Robin. Kyle, Kyle’s brother — now move to
vacate the June 20 stipulation. They claim (1) that
this court had no authority to so-order a stipulation
2la
while a stay was in effect; (2) that this court had a
conflict of interest because it was sued in the article
78; (3) that this court coerced their prior counsel
into signing the stipulation by threatening him
with disciplinary action; and (4) that Kathryn
Gilbert, William Kyle’s roommate, and Mary Kyle,
William Kyle's wife, did not know about the
stipulation and never received part of the $190,000.
Undeterred by their discontinuing their Article
78 with prejudice, respondents, through their new
counsel, also filed a new Article 78 to compel this
court to vacate the June 20 stipulation. Respondents
served their Article 78 after they moved in this court
to vacate the stipulation — prematurely before
knowing whether this court would grant or deny their
relief and, again to influence the proceeding and to
intimidate this court into ruling in their favor,
without waiting to appeal.
By this motion respondents hope to get more
money. Petitioner's counsel has represented that
petitioner already paid the $190,000 in a check to
prior counsel.
B. Conclusions of Law
I. Respondents’ motion is denied as Frivo-
lous and Possibly Sanctionable.
a. Respondents’ argument that the court could
not so-order the stipulation because it was stayed as
22a
to Index Number 68658/03 is frivolous and possibly
sanctionable:
* No Supreme Court stay was in effect in Index
Number 68658/03, the case as to which the court
signed the June 20 stipulation. The stay applied to
Index Number 77281/06.
* This court did not sign the stipulation until it
saw respondents’ signed discontinuance with prejudice
of the Article 78. If there had been a stay on Index
Number 68658/03, and there was none, the stay had
ended by the time the court signed the stipulation.
- The court recused itself in Index Number
7728/06 and sent the court file to Part X for trial
before another judge. If there had been a stay on
Index Number 68658/03, and there was none, the
court honored the stay.
* Respondents repeatedly asked this court to
settle or try handle both index numbers. They cannot
in retrospect withdraw their requests — requests
about which this court, and not respondents, raised
question.
* Whether this court should have honored the
stay is irrelevant to whether the stipulation should be
vacated. Respondents are free to move to hold this
court in contempt if they believe that it violated the
Supreme Court stay. Given that respondents
themselves participated in tue proceedings before
this court, they, too, must also have violated the
23a
Supreme Court stay and deserve to be held in
contempt.
b. Respondents’ argument that the court had a
conflict of interest because respondents sued it in the
Article 78 is frivolous and possibly sanctionable:
- No conflict existed when the time the court
signed the stipulation. This court did not sign the
stipwation until respondents discontinued the
Article 78 with prejudice.
* To eliminate the possibility of a conflict, the
court recused itself as to Index Number 77281/06 and
sent the case to Part X for trial before another judge.
- Respondents never sought te recuse this
court based on any conflict. They did the opposite:
They wanted this court to handle their cases.
- The law would be perverted if a party
succeeded in retroactively obtaining recusal, in this
case to May 24, 2007, because it did not like a
decision, and instead of appealing it filed an Article
78. That would prevent a judge from ruling against a
litigant twice. Yet this is exactly what respondents
are trying to do.
c. Respondents’ argument that it coerced prior
counsel to sign the stipulation is frivolous and possibly
sanctionable:
It would have been unreasonable in context
24a
for respondents’ prior counsel to have believed that
the court’s June 15 statement “I am thinking about
filing a disciplinary charge” was meant to convey that
this court would do so. The court made the statement
to explain why it should recuse itself — a recusal
respondents did not want.
* To the extent that doubt existed, the court
on June 20, before it signed and even saw any
proposed stivulation, told respondents’ counsel, “I
have no intention of filing disciplinary charges
against you” and that it had brought the matter up
because I wanted to explain the depths of its feelings
favoring recusal. Prior counsel knew before the
attorney-fee issue was settled that he was not subject
to any possibility of discipline
* Even though the court had no intention to
file disciplinary charges against prior counsel, he
deserved it for his conduct. It is immoral to coerce a
court and influence litigation by suing a judge, and it
is Law 101 that a lawyer does not file an Article 78
instead of appealing. Truth is a defense that cannot
be turned on the court.
- The evidence that the court’s comments
caused respondents to settle is speculative to the point
of absurdity. Respondents offer no evidence to suggest
that the court intimidated prior counsel, that any
intimidation caused prior counsel to intimidate
respondents to accept the stipulation, or that
respondents were intimidated. Respondents accepted
25a
the stipulation to get $190,000, not because prior
counsel violated his obligation of undivided loyalty.
Moreover, if the court’s comments had affected prior
counsel to do or not to do something, they would have
effected a settlement of the Article 78, not a
settlement of the attorney-fee issue.
d. Respondents Kathryn Gilbert and Mary
Kyle’s argument that the stipulation should be
vacated: because they did not. know about the
stipulation and never received part of the $190,060 is
frivolous and possibly sanctionable:
¢ If William Kyle did not tell Kathryn Gilbert
and Mary: Kyle, respectively Kyle’s roommate and
spouse, they have only him to blame.
*- Kathryn Gilbert and Mary Kyle are bound
by a stipulation signed by their attorney even if they
did not know about it.
- That Kathryn Gilbert, Mary Kyle, and
William Kyle do not know what happened to the
$190,000, even if true, is not a grouud to vacate the
stipulation. The court has no doubt that respondents
have failed to disclose something on this topic.
II. The Possibility of Sanctions Upon on
Kyle and His Current Attorney
Everything respondents argue shocks the con-
science. This is not simply a matter of respondents’
26a
seeking to vacate a two-attorney stipulation so-
ordered in open court, a vacatur not lightly granted.
(See e.g. Hallockv State, 64 NY2d 224 [1984]) This is
a matter of respondents’ moving in bad faith.
Kyle wanted the stipulation, as he told the court
twice on June 20. He and new counsel, his brother,
changed their mind to get more money now that
petitioner has naid Kyle, or him through his lawyer,
$190,000. Their motion, designed to threaten the
court, cannot succeed. Their made-up arguments
include trying to manipulate the system of justice in
an egregious, unethical way: They brought an Article
78 instead of appealing. They asked the court to
continue presiding over the matter even when the
court did not wish to do so. They asked this court to
so-order the stipulation discontinuing the Article 78
proceeding; only this court pointed out the impropriety
in doing so. And then, after they discontinued the
Article 78 and got the benefit of their settlement,
they seek retroactively to recuse the court. For all
this, respondents accuse this court of the very
misconduct of which they are guilty.
Kyle and his current counsel were warned not
to submit this motion. The court’s July 9 declension
could not have been stronger. The court wrote: “This
is the most outrageous document the court has seen in
its 51/2 years of service on the bench.” That was true at
the time, but this motion surpasses that one. In
persisting, Kyle, a law graduate, and his current-
counsel brother not only should have known better, ‘t
is inconceivable that they did no know better.
2/a
This proceeding is adjourned to October 9,
2007, in Part “O” on whether the court should impose
sanctions against William or Robin Kyle, or both of
them, and , if so in what monetary amount.
Dated: August 13, 2007
J.H.C.
Hon. Gerald Lebovits
28a
APPENDIX G:
Housing Part: Civil Court of the City of New York
736 Riverside Drive LLC., v. Kyle, et al.,
L&T 77281/06
August 24, 2007
AMENDED DECISION ON MOTION TO VACATE
Gerald Lebovits, J
The court’s order and opinion of August 13,
2007, is withdrawn. This opinion is submitted in its
place. The primary difference between this opinion
and the August 13 opinion is that the court now
withdraws its August 13 opinion ordering that a
sanctions hearing be held on October 9, 2007, and
instead directs that the parties appear on October 9,
2007, for trial.
Respondents’ motion to vacate the _ two-
attorney stipulation of June 20, 2007, is denied as s
frivolous and possibly sanctionable.
A. The Facts and Procedural History
When the parties appeared before this court for
trial in two nonpayment proceedings, Index Numbers
68658/03 and 77281/06, the court noticed five
undecided motions in the court file. All five, from
Respondents, sought attorneys fees for work their
29a
attorney did in Index Number 69658/03. Because a
trial could not take place until the motions
were resolved, the parties argued their positions on
January 17, 2007. On January 26, 2007, the court
denied all five motions but wrote that respondents
could “move for leave to amend their answer to add a
counterclaim seeking attorney fees for work done in
Index Number 68658/03.” Respondents moved for
leave before the Honorable Peter M. Wendt, who
denied their motion without prejudice on March 30,
2007, because, in part, “[t]he motion . . . ha[d] no
copy of any lease annexed entitled either side to legal
fees.” Judge Wendt referred the matter to this court
for trial.
In the interim, and instead of appealing or
moving to renew or reargue, Respondents, by
counsel, brought an Article 78 proceeding against
Judge Wendt and this court to compel us to rule in
their favor and award them hundreds and thousands
of dollars in attorneys fees. The Article 78, return-
able on June 22, 2007, stayed the proceedings under
Index Number 77281/06.
Having received the case from Judge Wendt,
this court held a conference on June 15, 2007.
Respondents’ counsel appeared by _ telephone;
petitioner's counsel was in court. During that
conference, the court told the parties that it made no
sense to ask the court to “assist perhaps in settling
this case or, if not, in trying this case” (page 47, lines
19-21) while being sued in an Article 78 (page 47,
30a
lines 21 - 22; page 48, lines 3 - 5). The court
expressed the view, therefore, that it should recuse
itself (pages 48-50) on the basis of the conflict and
because of the strong feelings that the Article 78
engendered — for example, that the Article 78 was
“so frivolous and so sanctionable that it shocks the
conscience” (page 48, lines 15-16).; that respondents
brought it as a “way to gain leverage in your case
[by] su[ing] me and Judge Wendt” (page 48, lines 22-
23); and that “I am thinking about filing a
disciplinary charge” (page 49, lines 9 - 10).
Respondents’ counsel countered over the span of
many pages in the transcript beginning at page 50
that the court should await a settlement before
recusing itself, and the matter was adjourned to
June 20, 2007.
On June 20, the court made it clear—it was
already clear, but just in case—to respondents’
counsel that “I have no intention of filing disciplinary
charges against you” (page 4, lines 12 - 13) and that
it had brought the matter up because the court
wanted to explain the depths of its feelings in favor
of recusal. (Pages 3 - 4.) The court, seeing that the
parties had signed a stipulation resolving the
attorney-fee issue in Index Number 68658/03, stated
that it would not so-order a stipulation covering the
Article 78. (Page 4, bottom, and page 5, top.) The
court explained that doing so would mean ruling on a
case in which it was a litigant. The court also asked
whether the parties wanted the court to ¢o-order
a stipulation without so-ordering paragraph 9, which
3la
concerned discontinuing the Article 78, and the
parties agreed: Petitioner’s counsel and respondents’
counsel both said “fine.” (Page 6, lines 7-24.) The
matter was then adjourned until later that day for
the parties to sign and file their stipulation
discontinuing the Article 78 and for the court to so-
order the stipulation settling the attorney-fee issue
in Index Number 68658/03. (Pages 8-10.)
The parties returned that day with a signed
stipulation discontinuing the Article 78 with
prejudice and a second stipulation settling the
attorney-fee issue in Index Number 68658/03. (Page
57, lines 2 - 11.) The court never so-ordered the
stipulation discontinuing the Article 78. Before it so-
ordered the stipulation settling Index Number
68658/03, the court asked William Kyle, an
unadmitted law-school graduate, whether he wanted
to settle. “[I]s this what you want to do?” the court
asked. Kyle said “Yes. Uh, this is what we're going to
do. I want to do it.” (Page 57, lines 2-5.) After a few
minutes the court asked Kyle the question again:
“Tell me what you want to do,” and Kyle said, “Don't
start tearing up everything. This is fine.” (Page 60,
lines 5 & 10-11.) The court recused itself on Index
Number 77281/06; referred that case to Part X, the
expediter, for trial on July 17, 2007, the date Kyle
selected; and so-ordered the stipulation in Index
Number 68658/03, except for 49. The stipulation
gave respondents $190,000 in attorney fees.
Barely had the ink dried on the stipulation
than Kyle, on July 9, 2007, submitted a pro se order
32a
to show cause to disqualify this court retroactively
“as of May 24th, 2007” on the ground that this
courttook part in an action in which it was a party, in
violation of Judiciary Law § 14. According to Kyle,
this court was disqualified from presiding over his
nonpayment case because he had sued the court in
an Article 78 proceeding. The court declined to sign
Kyle’s order to show cause, writing, “This is the most
outrageous document the court has seen in its 5 1/2
years of service on the bench.” Undeterred by the
court’s order-to-show-cause declension, respondents,
represented by new counsel — Robin Kyle, Kyle’s
brother — now move to vacate the June 20
stipulation. They claim (1) that this court had no
authority to so-order a stipulation while a stay was
in effect; (2) that this court had a conflict of interest
because it was sued in the article 78; (3) that this
court coerced their prior counsel into signing the
stipulation by threatening him with disciplinary
action; and (4) that Kathryn Gilbert, William Kyle's
roommate, and Mary Kyle, William Kyle’s wife, did
not know about the stipulation and never received
part of the $190,000.
Undeterred by their discontinuing their Article
78 with prejudice, respondents, through their new
counsel, also filed a new Article 78 to compel this
court to vacate the June 20 stipulation. Respondents
served their Article 78 after they moved in this court
to vacate the stipulation—prematurely before
knowing whether this court would grant or deny
their relief and, again to influence the proceeding
and to intimidate this court into ruling in their favor,
33a
without waiting to appeal. Despite their Article 78
seeking to compel this court to render a ruling,
respondents sought to stay this court from rendering
a ruling. Supreme Court declined to grant a stay.
This court therefore heard argument on
respondents’ motion.
Petitioner’s counsel has represented that peti-
tioner has already complied with the June 20
stipulation by paying the $190,000 in a check to prior
counsel. By this motion, respondents hope to get
more money.
B. Conclusions of Law
I. Respondents’ motion is denied as frivo-
lous and possibly sanctionable.
a. Respondents’ argument that the court could
not so-order the stipulation because it was stayed as
to Index Number 68658/03 is frivolous and possibly
sanctionable:
* No Supreme Court stay was in eifect in
Index Number 68658/03, the case as to which the
court so-ordered the June 20 stipulation. The stay
applied to Index Number 77281/06.
* This court did not so-order the stipulation in
Index Number 65658/03 until it saw that
respondents signed a stipulation discontinuing their
34a
Article 78 with prejudice. If there had been a stay on
Index Number 68658/03, and there was none, the
stay had ended by the time the court so-ordered the
stipulation settling Index Number 68658/03.
The court recused itself in Index Number
77281/06 and sent the court file to Part X for trial on
July 17, 2007, before another judge. If there had been
a stay on Index Number 68658/03, and there was
none, the court honored the stay.
Respondents repeatedly asked this court to
settle or try both index numbers. They cannot in
retrospect withdraw their requests — requests about
which this court, and not respondents, raised
questions.
* Whether this court should have honored the
stay is irrelevant to whether the stipulation should
be vacated. Respondents are free to move to hold this
court in contempt if they believe that it violated the
Supreme Court stay. Given that respondents
themselves participated in the proceedings before
this court, they, too, must also have violated the
Supreme Court stay and deserve to be held in
contempt.
b. Respondents’ argument that the court had a
conflict of interest because respondents sued it in the
Article 78 is frivolous and possibly sanctionable:
35a
* No conflict existed when the court so-
ordered the stipulation in Index Number 68658/03.
This court did not so-order that stipulation until
respondents discontinued the Article 78 with
prejudice.
* To eliminate the possibility of a conflict, the
court recused itself as to Index Number 77281/06 and
sent the case to Part X for trial before another judge.
* Respondents never sought to recuse this
court based on any conflict. They did the opposite;
They wanted this court to handle their cases.
* This court did not rule in a matter in which
it was a party. It did not preside over the Article 78
proceeding, it did not so-order the stipulation settling
the Article 78 proceeding, and it did not so-order the
one paragraph (4 9) in the stipulation settling Index
Number 68658/03 that referred to the Article 78
proceeding.
* The law would be perverted if a party
succeeded in retroactively obtaining recusal, in this
case to May 24, 2007, because it did not like a
decision, and instead of appealing it filed an Article
78. That would prevent a judge from ruling against a
litigant twice. Yet this is exactly what respondents
are trying to do. Respondents sued this court and
now argues that it has a conflict because of the suit.
36a
c. Respondents’ argument that it coerced prior
counsel to sign the stipulation is frivolous and
possibly sanctionable:
* It would have been unreasonable in context
for respondents’ prior counsel to have believed that
the court’s June 15 statement “I am thinking about
filing a disciplinary charge” was not meant to convey
that this court would do so. The court made the
statement to explain why it should recuse itself — a
recusal respondents did not want — and why it did
recuse itself in Index Number 77281/06.
* To the extent that doubt existed, the court
on June 20, before it so-ordered any proposed
stipulation, told respondents’ counsel, “I have no
intention of filing disciplinary charges against you” and
that it had brought the matter up because I wanted to
explain the depths of its feelings favoring recusal.
Prior counsel knew before the attorney-fee issue was
settled that he was not subject to any possibility of
discipline.
* Even though the court had no intention to
file disciplinary charges against prior counsel, he
deserved it for his conduct. It is immoral to coerce a
court and influence litigation by suing a judge, and it
is Law 101 that a lawyer does not file an Article 78
instead of appealing. Truth is a defense that cannot
be turned on the court
The evidence that the court’s comments
caused respondents to settle is speculative to the
37a
point of absurdity. Respondents offer no evidence to
suggest that the court intimidated prior counsel, that
any intimidation caused prior counsel to intimi-
date respondents to accept the stipulation, or that
respondents were intimidated. Respondents accepted
the stipulation to get $190,000, not because prior
counsel violated his obligation of undivided loyalty.
Moreover, if the court’s comments had affected prior
counsel to do or not to do something, they would have
effected a settlement of the Article 78, not a
settlement of the attorney-fee issue.
d. Respondents Kathryn Gilbert and Mary
Kyle’s argument that the stipulation should be
vacated because they did not know about the
stipulation and never received part of the $190,000 is
frivolous and possibly sanctionable:
- If William Kyle did not tell Kathryn Gilbert
and Mary Kyle, respectively Kyle’s roommate and
spouse, they have only hirn to blame.
* Kathryn Gilbert and Mary Kyle are bound
by a stipulation signed by their attorney even if they
did not know about it.
- That Kathryn Gilbert, Mary Kyle, and
William Kyle do not know what happened to the
$190,000, even if true, is not a ground to vacate the
stipulation. The court has no doubt that respondents
have failed to disclose something on this topic.
38a
II. The Possibility of Sanctions on Kyle
and His Current Attorney
* Everything Respondents argue shocks
the conscience. This is not simply a matter of respon-
dents’ seeking to vacate a two-attorney stipulation
so-ordered in open court, a vacatur not lightly
granted. (See e.g. Hallock v. State, 64 NY2d 224
[1984].) This is a matter of respondents’ moving in
bad faith.
Kyle wanted the stipulation, as he told the
court twice on June 20. He and new counsel, his
brother, changed their mind to get more money now
that Petitioner has paid Kyle, or him through his
lawyer, $190,000. Their motion, designed to
threaten the court, cannot succeed. Their made-up
arguments include trying to manipulate the system
of justice in an egregious, unethical way: They
brought an Article 78 instead of appealing. They
asked the court to continue presiding over the matter
when the court stated that it did not wish to do so.
This court refused to so-order either the paragraph
in the stipulation covering Index Number 68658/03
or the stipulation discontinuing the Article 78
proceeding, but respondents argue that it presided
over a case in which it was a litigant. And then,
after they discontinued the Article 78 and got the
benefit of their settlement, they seek retroactively to
recuse the court. For all this, Respondents accuse
this court of the very misconduct of which they are
guilty.
39a
Kyle and his current counsel were warned
not to submit this motion. The court’s July 9,
declension could not have been stronger. The court
wrote: “This is the most outrageous document the
court has seen in its 5-1/2 years of service on the
bench.” That was true at the time, but this motion
surpasses that one. In persisting, Kyle a law
graduate,'and his current-counsel brother not only
should have known better, it is inconceivable that
they did not know better.
Even though William or Robin, or both of
them, engaged in frivolous litigation, and even
though the court could and perhaps should schedule
a sanctions hearing under 22 NYCRR 130-1.1[d]), the
court, in it discretion, and on reflection, declines to
do so. The court will have no choice to consider
sanctions if, however, either William or Robin Kyle,
or both, engage in any further frivolous litigation.
This proceeding is adjourned, at both sides’
request, to October 9, 2007, in Part X for trial
certain.
Dated: August 24, 2007
J.H.C.
Hon. Gerald Lebovits
40a
APPENDIX H:
Supreme Court of the State of New York
In the Matter of William KYLE, et al.,
Petitioners,
Vv.
Hon. Gerald LEBOVITS, et al., Respondents
October 26, 2007
17 Misc.3d 1124(A), 851 N.Y.S.2d 70 (Sup. Ct., 2007)
HERMAN CAHN, J.
Petitioners move for a writ of mandamus,
pursuant to CPLR Article 78 and Judiciary Law §14,
directing Respondent, the Hon. Gerald A. Lebovits to
disqualify himself nunc pro tunc to June 4, 2007 with
regard to all matters relative to two non-payment
proceedings pending in the Housing Part of the Civil
Court of the City of New York, County of New York,
entitled Hudson Overlook LLC v. William Kyle,
Kathryn Gilbert, and Mary Kyle, L & T Index No.
68658/03 (the “2003 non-payment case”) and 736
Riverside Dr., LLC v. William Kyle, Mary Kyle and
Kathryn Gilbert, L & T Index No. 77281/06 (the
“2006 non-payment case”). Petitioners also seek a
stay of the 2006 non-payment case allegedly pending
before Judge Lebovits in Part O.
4la
Respondent 736 Riverside Dr., LLC (736
Riverside Drive) cross-moves for sanctions against
the petitioners and their attorney, pursuant to 22
NYCRR 130-1.1, for knowingly engaging in frivolous
conduct.
By notice, pursuant to CPLR §7804()),
respondent Lebovits elected not to appear in this
proceeding and referred the court to a decision and
order he rendered on August 24, 2007 in the 2006
non-payment case.
Since the filing of the instant order to show
cause, several developments have partially rendered
the relief sought herein moot. First, in his August
24th order, Judge Lebovits made clear that he had
recused himself as to the 2006 non-payment case
and, again, sent it to Part X for trial before another
judge on October 9, 2007.! In addition, Judge
Lebovits refused to vacate the stipulation of
settlement he “so ordered” on June 20, 2007 in the
non-payment cases. Said stipulation settled an out-
1 Judge Lebovits initially recused himself from the
2006 non-payment case on June 20, 2007. At oral argument on
petitioners’ motion, made to Judge Lebovits in the Housing
Court, to vacate the Stipulation held on August 13, 2007, he
again made it clear that he had recused himself from hearing
that case.
42a
standing attorney fee issue and, pursuant to which,
petitioners were awarded $190,000 in attorney fees
(the “Stipulation”). Finally, at argument of this
application on September 10, 2007, this court
declined to issue any stay the 2006 non-payment
case.
Basically, petitioners seek to vacate the
Stipulation on three grounds. First, petitioners argue
that the stipulation was entered into in violation of a
stay issued by this court on May 31, 2007. Second,
petitioners contend that Judge Lebovits was
statutorily disqualified under Judiciary Law § 14
from presiding over the Civil Court non-payment
cases by virtue of his being named a respondent in
an Article 78 mandamus proceeding, and that this
court should order that Judge lLebovits. be
retroactively disqualified from the Housing Court
proceedings, thus vitiating the Stipulation. It should
be noted -that the Stipulation called for payment of
attorneys fees to Petitioners’ then attorney (in the
non-payment cases), and that the sum it called for
has been paid, i.e. petitioners have already received
the benefit of their bargain. Third, petitioners make
very serious and, as further discussed below,
baseless accusations against Judge Lebovits, who is
alleged to have “intimidated and harangued”
petitioners’ former counsel, Ronald Hart, Esq., into
entering into the Stipulation.
A brief history of this landlord-tenant dispute
and the prior Article 78 proceeding is necessary to
resolve the remaining two issues in this proceeding,
43a
which are whether there is any basis for this court to
vacate the Stipulation, and whether petitioners
and/or their new counsel should be sanctioned for
engaging in frivolous conduct.
On April 15, 2003, Hudson Overlook, LLC, the
then owners of 736 Riverside Drive, commenced the
2003 non-payment case against the petitioners. On
December 23, 2004, petitioners were awarded a
judgment of $31,373.40 after trial. An appeal to the
Appellate Term was dismissed on August 15,
2005 for failure to perfect.
On July 28, 2005, Hudson Overlook, LLC
transferred its interest in the subject building to 736
Riverside Dr., LLC. In December of 2005, petitioners
moved to amend the caption to add 736 Riverside
Dr., LLC, as a party and also moved for attorney
fees. Due to scheduling conflicts and numerous
adjournments, the motion was never heard and
marked off the calendar with the understanding that
it would be later restored.
On June 16, 2006, 736 Riverside Dr., LLC
commenced the 2006 non-payment case. Petitioners
answered on July 21, 2006, and asserted three
counterclaims. None of the counterclaims sought to
hold 736 Riverside Dr., LLC liable for attorney fees
as Hudson Overlook, LLC’s successor-in-interest.
Rather, the answer contained a reservation of
petitioners’ claimed right to move for an
“accelerated/summary judgment” for attorney fees for
44a
their successful defense of the 2003 non-payment
case.
After a plethora of motions in both non-pay-
ment cases, Judge Lebovits issued a decision and
order dated January 26, 2007 in which he ruled that
petitioners should seek leave to amend their answer
in the 2006 non-payment case to add a counterclaim
seeking attorneys fees for work done in the 2003 non-
payment case. Petitioners thereupon made such a
motion in the 2006 non-payment case.
By order dated March 30, 2006, the motion was
denied by the Hon. Peter D. Wendt on the ground
that the motion failed to include a copy of any lease
entitling either side to legal fees and because the
relief (attorney fees) should be sought in the 2003
non-payment proceeding or by plenary action. Judge
Wendt referred the 2006 non-payment case back to
Judge Lebovits for trial.
No appeal from Judge Wendt’s order was
taken. Instead, on May 25, 2007, petitioners filed an
Article 78 proceeding in this court against Judge
Wendt, Judge Lebovits and 736 Riverside Dr., LLC,
seeking an order directing an immediate hearing in
the 2006 non-payment case on the merits of
petitioners’ counterclaim for attorney fees. That
proceeding was assigned to this part, and by order
dated May 31, 2007, the 2006 non-payment case was
temporarily stayed pending the hearing of the
petition, scheduled for June 22, 2007.
45a
On June 15, 2007, the parties appeared before
Judge Lebovits in the 2006 non-payment case.
Petitioners’ then attorney, Ronald Hart, Esq., was
not present in the courtroom, but appeared by
telephone. At this conference, the parties asked for
Judge Lebovits’ assistance in settling the 2006 non-
payment action, indicating that they were very close
to a settlement. In response, Judge Lebovits
indicated that he was in a “peculiar position” because
he had been sued by petitioners in the Article 78
mandamus proceeding, but was being asked to
resolve the non-payment case at the same time; that
it “presents a rather serious ethical conundrum on
[his] part” (6/15/07 Tr. at 47-48). He further stated on
the record that, in his opinion, petitioners’ decision to
file an Article 78 proceeding against him and Judge
Wendt, rather than moving for reconsideration of the
orders or the filing of an appeal, was “frivolous and
so sanctionable that it shocks the conscience,” and
that he was thinking about filing a disciplinary
charge against Mr. Hart personally. Jd. at 48-49.
Despite these pronouncements, petitioners’ counsel
continued to press fer his assistance in settling their
dispute. In response, Judge Lebovits offered to put
the matter over to June 20, 2007.
On June 20th, at the start of the conference,
Judge Lebovits clarified on the record that he had no
intention of filing a disciplinary complaint against
Mr. Hart. The parties then presented Judge Lebovits
with a written stipulation settling their dispute,
which included a provision in 49 whereby the parties
agreed to discontinue the Article 78 mandamus pro-
46a
ceeding with prejudice. Judge Lebovits stated that he
had difficulty “so ordering” a stipulation that
includes a provision in which the parties were agree-
ing to discontinue a lawsuit in which he was a party.
He suggested that the parties prepare a separate
stipulation discontinuing the Article 78 proceeding,
which he would not sign, and that he “so order” the
existing stipulation, but specifically exclude
paragraph 9. Both sides agreed to this procedure. In
fact, on the first page of the Stipulation, it clearly
states under Judge Lebovits’ signature “(except that
paragraph 9 is not so-ordered GL) .” The matter was
then adjourned until later that day for the parties to
prepare a separate stipulation discontinuing the
Article 78 mandamus proceeding. When the parties
re-appeared before Judge Lebovits later that day, he
so-ordered the Stipulation, as indicated above, and
sent the 2006 non-payment case to Pari X, the
expediter, for trial on July 17, 2007, a date to which
the parties agreed. The separate. stipulation
discontinuing the Article 78 proceeding was filed in
this court the following day, June 21, 2007.
The Stipulation settled the petitioners’ claims
for legal fees “to date” for the sum of $190,000, and
makes clear that this settlement applies to the legal
fees incurred up to that date in the 2006 non-
payment proceeding. In addition, the Stipulation
provides for the withdrawal of petitioners’ counsel,
Mr. Hart, and that petitioner William Kyle 2 elects to
2 The Stipulation makes no provision regarding the
future representation of petitioners Mary Kyle or Kathryn
47a
proceed pro se in the matter or have until July 16,
2007 to obtain new counsel. The Stipulation was
signed by both petitioners’ counsel and by William
Kyle. Indeed, Judge Lebovits specifically questioned
petitioner William Kyle, who was present in court on
June 20, 2007 as to whether he wanted to settle the
attorney fee issue and William Kyle responded that
he did. The $190,000 was subsequently paid.
Thereafter, in an effort to overturn the
Stipulation, petitioner William Kyle filed an order to
show cause, pro se, in the 2006 non-payment case to
disqualify Judge Lebovits retroactively to May 24,
2007 on the ground that Judge Lebovits took part in
an action in which he was a party, in violation of
Judiciary Law §14. Judge Lebovits declined to sign
the order to show cause, writing thereon that it was
the most outrageous document he has seen in his “5
1/2 years of service on the bench.”
Petitioners, represented by new counsel, Robin
H. Kyle, Esq.—William Kyle’s brother—then moved
to vacate the Stipulation by motion returnable on
August 13, 2007. They argued to Judge Lebovits
that: (1) he had no authority to “so order” the
Stipulation while the Supreme Court's stay was in
effect; (2) he had a conflict of interest because he
had been sued in the Article 78 mandamus
proceeding; (3) he coerced petitioners’ prior counsel,
Gilbert, who are represented to be William Kyle’s wife and
roommate, respectively.
48a
Ronald Hart, into signing the Stipulation by
threatening him with disciplinary action; and (4)
that Kathryn Gilbert and Mary Kyle did not know
about the Stipulation and never received any part of
the $190,000. Judge Lebovits denied the motion in an
order dated August 13, 2007, stating that the motion
was frivolous and possibly sanctionable.
On August 10, 2007, petitioners-through their
new counsel-filed the instant order to show cause in
this court seeking the above-referenced relief.
Thereafter, Judge Lebovits withdrew his
August 13, 2007 decision and order and issued a
second decision and order dated August 24, 2007, in
which he withdrew his prior direction that a
sanctions hearing be held on October 9, 2007.
Instead, he directed the parties to appear on that day
in Part X for trial.
Petitioners’ motion is denied in its entirety,
and for the following reasons, the court finds that the
instant order to show cause and supporting papers
are grossly frivolous and, thus, sanctionable.
Petitioners argue that the Stipulation was “so
ordered” by Judge Lebovits in violation of this court's
stay, and that no court conferences should have been
held in the 2006 non-payment case after this court
issued a stay on May 31, 2007. However, as the
transcripts of the Civil Court proceedings held on
June 15 and 20, 2007 make abundantly clear, Judge
49a
Lebovits presided over these settlement conferences
only at the behest of petitioners’ then counsel, who
could have objected at any time on the grounds that
the 2006 non-payment action was completely stayed
and should be adjourned until after June 22, 2007.
The June 15, 2007 transcript suggests that Judge
Lebovits was not aware of the Supreme Court’s stay:
THE COURT: Okay, I—I’m in a peculiar pos-
ition with all of this, I think, because ['m-uh,
I’m asked to, uh, assist in perhaps settling this
case, or if not, in trying this case. And yet at
the same time you have sued me. Uh, that—
that, as far as I’m concerned, present a rather
serious ethical conundrum on my part because
it's rare to be sued and still have a case
pending before me when in the context of suit
I don’t think you even ask for a stay of these
proceedings. So I'm being sued and asked to
resolve everything all at the same time... .
6/15/07 Tr. at 47-48 (emphasis added).
In response, Mr. Hart did not correct the
Judge and advise him of the Supreme Court stay.
Rather Mr. Hart responded “I’m listening,” (id. at
48), “Judge, I’m asking for your assistance” (id. at
55), and he proceeded to discuss issues regarding a
proposed settlement. At least twice on June 15, 2007,
rather than argue that the 2006 non-payment case
was stayed, Mr. Hart announced that he was ready
to go to trial. Jd. at 53, 55. It is beyond the pale that
a party, having obtained a stay of a judicial proceed-
50a
ing in a proceeding in which the Presiding Judge is
named as a respondent, then lobbies the same
presiding judge to assist in settling the case and
then, later on, after having accepted the proceeds of
the settlement, argues that the judge acted
wrongfully in assisting the parties in facilitating a
settlement.
It is important to note that on June 20, 2007,
the parties presented Judge Lebovits with a written
stipulation settling the attorney fee issue-the subject
of the Article 78 mandamus proceeding-and that
petitioners were prepared to discontinue the
mandamus proceeding with prejudice. However,
before Judge Lebovits “so ordered” the Stipulation,
the parties presented him with a signed copy of a
separate written stipulation discontinuing the
Article 78 proceeding, and represented that it would
be filed with the Supreme Court. Thus, Judge
Lebovits took no official action in the non-payment
cases until he was assured that the action in which a
stay had been issued was voluntarily discontinued by
the party who sought the stay in the first instance.
Under the circumstances presented, there was
no violation of this court’s stay order.
Petitioners also claim that Judge Lebovits was
disqualified from presiding over the non-payment
cases by virtue of Judiciary Law § 14, and that this
section authorizes this court to nullify a stipulation
settling an attorney fee issue, after the money has
been paid.
Sla
Section 14 of the Judiciary Law provides, in
pertinent part: “A judge shall not sit as such in, or
take any part in the decision of, an action, claim,
matter, motion or proceeding to which he is a party,
or in which he has been attorney or counsel, or in
which he is interested, or if he is related by
consanguinity or affinity to any party to the
controversy within the sixth degree.” If
disqualification under the statute were found,
prohibition, not mandamus, would lie. However, a
judge’s decision not to disqualify himself, based on a
claim that his impartiality might reasonably be
questioned, is not subject to Article 78 review.
Johnson v. Hornblass, 93 A.D.2d 732, 733 (App. Div
1st Dep’t 1983).
Judge Lebovits was not a party to the non-
payment cases, and had no interest in the success or
defense of those cases, such that legal
disqualification under Judiciary Law §14 was
warranted. However, as he correctly recognized,
having been sued by the tenants in an Article 78
mandamus proceeding, his impartiality towards
those litigants might reasonably be questioned.
Accordingly, he appropriately recused himself from
the 2006 non-payment case. He only presided over
settlement conferences at the behest of the tenant’s
(petitioners’) attorney, who repeatedly advised Judge
Lebovits that the cases were being settled. There is
no basis in law or fact for this court to vacate the
Stipulation on the basis of any violation of Judiciary
Law § 14.
52a
The court notes that the Stipulation was
signed by the attorneys for both parties in the non-
payment proceeding. Thus, it might well have been
enforceable even if Judge Lebovits had “so ordered”
it.
The cases upon which petitioners rely are
distinguishable. Harkness Apartment Owners Corp.
uv. Abdus-Salaam (232 A.D.2d 309 [lst Dep’t 1996}),
involved an Article 78 proceeding seeking a writ of
prohibition, and not mandamus. Although the
prohibitive writ was granted, the respondent justice
had worked with the attorney general’s office on the
precise subject matter of the litigation prior to
becoming a Supreme Court Justice, in violation of
Judiciary Law § 14’s prohibition of a judge presiding
over any case “in which [s]he has been attorney or
counsel.” The case lacks any similarity to the case at
bar.
Petitioners also rely on Matter of Beer Garden,
Inc. v. New York State Liquor Authority (79 N.Y.2d
266 [1992] ), which, similar to Harkness, involved the
refusal of a State Liquor Authority (SLA)
Commissioner to recuse herself despite her
involvement in prosecuting the case as SLA counsel
prior to becoming a commissioner.
Finally, petitioners make very serious and
disturbing allegations that Judge Lebovits, acting in
concert with Judge Wendt, coerced an unfair
settlement of the attorney fee issue by threatening
their former attorney, Ronald Hart, with disciplinary
53a
action for having filed, in Judge Lebovits’ opinion, a
frivolous mandamus proceeding. Notably, petitioners
have not submitted an affidavit from their prior
counsel in support of their application in this
proceeding, and have failed to explain why they
failed to do so. The only factual support for this claim
is the statement in the Verified Petition that “Mr.
Hart was so distraught at prospect [sic] of being the
target of grievance disciplinary proceedings (initiated
by a member of the Civil Court of the City of New
York no less) he instructed his clients that he was
going to drop the Mandamus matter forthwith.” Pet
at 427. Yet, Judge Lebovits made it very clear to Mr.
Hart on June 20, 2007 that he had no intention of
filing disciplinary charges against him. Contrary to
Mr. Kyle’s assertions, neither Judge Lebovits nor Mr.
Hart “waived” the petitioners’ right to counterclaim
in the 2006 non-payment case for attorney fees.
Indeed, there is nothing in the record suggesting that
petitioners were forced to accept $190,000 in legal
fees from their landlord for settlement of their
outstanding legal fee claim in the 2003 non-payment
case and any legal fees incurred “to date” in the 2006
non-payment case, or that Judge Lebovits had any
involvement in negotiating the terms of the Stip-
ulation, other than to announce on June 20th that he
could not “so order” the paragraph, which provided
for the discontinuance of the Article 78 proceeding.
This is not a situation where an attorney was
allegedly acting without the knowledge and consent
of his clients. Judge Lebovits specifically questioned
54a
petitioner William Kyle, who was present in court,
about whether he wanted to settle. “[I]Js this what
you want to do?’ the court asked. William Kyle
answered: “Yes. Uh, this is what we’re going to do. I
want to do it.” 6/20/07 Tr. at 57. After a few minutes,
the court said to William Kyle, “Tell me what you
want to do,” and William Kyle said, “Don’t start
tearing up everything. This is fine.” Jd. at 60.5
In addition to the fact that the petition lacks
any basis in law or fact, the court finds that
petitioners’ present attorney, Robin H. Kyle, Esq.,
has engaged in the following additional frivolous
conduct in connection with this proceeding that
warrants the imposition of sanctions pursuant to 22
NYCRR 130-1.1.
First, Mr. Kyle’s affirmation and supporting
memoranda of law are replete with insulting and
disingenuous readings of the record in the Civil
Court cases. Mr. Kyle deliberately misquotes the
June 15% and 20% transcripts of the proceedings
in Civil Court by adding his own punctuation and
emphasis, by selectively truncating quotes, and
by mis-citing page references. At paragraph 11 of his
8 William Kyle is not an ordinary litigant, rather it was
represented to both Judge Lebovits and to this court, that
William Kyle is a law school graduate. Thus Judge Lebovits
may have been justified in assuming that William Kyle
understood the legal ramifications of the Stipulation a little
more than the average layperson.
55a
supporting affirmation, Mr. Kyle quotes the record as
follows:
THE COURT: . . . I think your lawsuit [the Article
78] is frivolous, because I think that your lawsuit is
sanctionable. And I think that your lawsuit could
lead you to go the disciplinary committee ... And
yet I am thinking about filing a disciplinary charge
against you personally! So I don’t think I have to [sic]
wherewithal to handle this-this matter. And I don’t
know, because I have to speak to my attorney, uh,
before I file disciplinary charges against you... I-I-I-
I wonder, frankly, if you’re capable of doing this,
what else you’re capable of!
So I essentially trust you not! I don’t trust you even a
little bit. Okay, have you heard me loud and clear?
MR. HART: Yes, Judge, I have.
(6/15/07 Tr. at 49).
However, in reality, this is a truncated excerpt
from pages 48 and 49 of the transcript and the actual
transcript contains no exclamation points and
no emphasis.‘ As stated in the affidavit of Lawrence
* The full text of this portion of their exchange is:
THE COURT: Okay, I—I'm in a peculiar position with all of
this, I think, because I’m-uh, I’m asked to, uh, assist perhaps in
settling this case or, if not, in trying this case. And yet at the
same time you have sued me. Uh, that—that, as far as I'm
concerned, presents a rather serious ethical conundrum on my
part because it’s rare to be sued and still have a case pending
56a
[Continued from footnote supra.]
before me when in the context of suit I don’t think you even ask
for a stay of these proceedings. So I’m being sued and asked to
resolve everything all at the same time. Let-let me tell you,
because I—I don’t know how to express this more clearly that
this puts me in a _ very uncomfortable position. It’s
uncomfortable, because I think that your lawsuit is frivolous,
because I think that your lawsuit is sanctionable. And I think
that your lawsuit could lead you to go to the disciplinary
committee. And I not—were I not precisely [a litigant] here, I
would say that your lawsuit is so frivolous and so sanctionable
that it shocks the conscience. It shocks—hello?
MR HART [sic]: Yes, I'm here, Judge. I’m listening to you.
THE COURT: Okay, It shocks my conscience to believe that you
think that the way to gain leverage in your case is to sue me
and Peter Went [sic]. And it shocks my conscience to think that
your solution instead of appealing or asking for reconsideration
is to go to [60 Centre St.]. It is shocking to me because I was
told by you that the case would be settled last week. And then I
was told by you that the case would be settled today. And so I
have instructed my attorney to answer and to go full blast
defending me in the litigation at [60 Centre] Street. And yet I
am thinking about filing a disciplinary charge against you
personally. So I don’t think that I have the wherewithal to
handle this-this matter. And I don’t know, because I have to
speak to my attorney, uh, before I file disciplinary charges
against you, uh, what's going to happen with the Article 78 and-
and-and-and that just begins the tip of the iceberg about my
thoughts, because my thoughts continue on and on. I-I-I-I
wonder, frankly, if you're capable of doing this, what else you're
capable of. So I essentially trust you not, I don’t trust you even
a little bit. Okay, have you heard me loud and clear?
MR. HART [sic]: Yes, Judge, I have.
6/15/07 Tr. at 47-49.
It shocks my conscience to believe that you think that the way
to gain leverage in your case is to sue me and Judge Peter Went
57a
McCourt, Esq., counsel for 736 Riverside Dr., LLC,
Judge Lebovits never raised his voice and conducted
himself in a calm and judicious manner at all times.
In addition, in the middle of this quote, Judge
Lebovits explained why he thought the Article 78
was frivolous:
In his supporting memorandum of law, Mr.
Kyle again inserts exclamation points in order to
support his claim, made without any personal
knowledge, that the Judge’s comments to Mr. Hart
were made “thunderously.” See Pet Br at 21-22.
Other instances of Mr. Kyle adding punctuation
and/or emphasis to quotes from the record can be
found in his affirmation. See Kyle Aff at 49 12, 17,
19.
Second, Mr. Kyle mis-interprets the Stipu-
lation, which does not provide for the waiver of any
statutory right pursuant to Real Property Law § 234
to recover attorney fees in the 2006 non-payment
case. Further, Mr. Kyle makes unsupported claims
[Continued from footnote supra.]
[sic]. And it shocks my conscience to think that your solution
instead of appealing or asking for reconsideration is to go to [60
Centre Street]. It is shocking to me, because I was told by you
that the case would be settled last week. And then I was told by
you that the case would be settled today.
*7 6/15/07 Tr. at 48-49.
58a
that petitioners were “forced” into accepting the
$190,000 on their attorney fee claim, and that it “will
result in the loss of their home” (Pet Br at 31), when,
in reality, the 2006 non-payment case has yet to be
tried. Mr. Kyle also takes issue with the fact that the
check for $190,000 was made payable to Mr. Hart
(id. at 32), suggesting that there was some prior
arrangement with Mr. Hart about who would
ultimately receive that money, whether as
reimbursement for bona fide attorneys’ fees paid or
otherwise. That is a dispute that petitioners must
take up with their prior counsel, and does not, as
Judge Lebovits correctly observed, justify setting
aside the Stipulation.
Finally, Mr. Kyle’s memoranda of law are
replete with outrageous, overblown and insulting
comments about both Judges Lebovits and Wendt
that are completely unsupported by the record and
lack any good faith basis whatsoever. For example,
Mr. Kyle accuses Judge Lebovits of having “brought
down the gavel in his own case,” “selling tenants’
statutory protections,” and “using the prestige of his
office for personal advantage in pending litigation.”
Pet Br at 1. He further accuses Judge Lebovits of
having “orchestrated appearances” in the Civil Court
cases “for the sole purpose of vitiating” the Article 78
mandamus (id.) and “fierce and _ discourteous
lobbying” to neutralize the Article 78 mandamus
proceeding” (id. at 23). In fact, record reflects that
59a
the 2006 non-payment case was adjourned, with the
parties’ consent, based on their repeated assurances
to Judge Lebovits that the matter was close to being
settled. 6/15/07 Tr. at 49-50, 52, 53-54. Finally, he
accuses Judge Wendt of having acted in concert with
Judge Lebovits solely because Judge Lebovits spoke
to Judge Wendt by telephone on June 15, 2007 to
advise him of the status of the 2006 non-payment
case and possible settlement. See 6/15/07 Tr. at 24-
25.
Mr. Kyle contends that Judge Lebovits
demonstrated bias and prejudice against Mr. Hart by
referring to him as “sir” at one point. See 6/15/07 Tr.
at 49 (“Okay. What, now, sir, are your thoughts in
response to my obviously pretty strong feelings
toward you, toward your litigation and everything
else?”). Mr. Kyle suggests that this is akin to a Judge
engaging in prejudicial behavior by addressing a
lawyer for one of the parties by an honorific title such
as “judge,” “senator” or “ambassador.” See
Commentary 3.2, Code of Judicial Conduct Canon
3(b)(4).
The numerous factual and legal misrepre-
sentations detailed above, the baseless nature of the
petition, the disrespect directed at two judges of the
Housing Court and the petitioners’ obvious intent to
delay the resolution of the underlying 2006 non-
payment proceeding, all constitute frivolous conduct
under 22 NYCRR 130-1.1, justifying an award of
sanctions. Rule 130-1.2 requires the court to state
the reasons why the court found the amount imposed
60a
to be appropriate. Thus, this court finds the sum of
$1,000 to be appropriate. The court hopes that this
sanction “will sting sufficiently to communicate its
demand for improved professional conduct without
imposing excessive hardship” on Mr. Kyle. Candolfi
vu. New York City Transit Authority, 156 Misc.2d 964,
970 [Civ Ct, Kings County 1992]). Accordingly, the
court sets the amount of sanctions imposed on Robin
H. Kyle, Esq. at $1,000.00.
For the foregoing reasons, it is hereby
ORDERED that the petition is denied and the
proceeding dismissed; and it is further,
ORDERED that respondent 736 Riverside Dr., LLC’s
cross motion for sanctions against the petitioners
and their attorney pursuant to 22 NYCRR 130-1.1
for knowingly engaging in frivolous conduct is
granted to the extent of ordering Robin H. Kyle, Esq.
to pay a donation in the amount of $1,000 to The
Lawyers’ Fund for Client Protection; and it is further
ORDERED that, the clerk of the court shall enter
judgment accordingly.
Dated: October 26, 2007
J.S.C.
HERMAN CAHN, J.
6la
APPENDIX I:
Supreme Court of the State of New York
Appellate Division—First Department
In Re: Matter of William KYLE, et al.,
Petitioners,
Vv
Hon. Gerald LEBOVITS, et al., Respondents
58 A.D.3d 521, 870 N.Y.S.2d 360
January 20, 2009
DECISION OF APPELLATE DIVISION
AFFIRMING DISMISSAL
Background: Plaintiffs brought article 78
proceeding seeking a writ of mandamus directing
judge to disqualify himself nunc pro tunc from all
matters relative to two pending nonpayment
proceedings. The Supreme Court, New York County,
Herman Cahn, J., 17 Misc.8d 1124(A), 2007 WL
3275204, denied the petition. Plaintiffs appealed.
Holding: The Supreme Court, Appellate
Division, held that plaintiffs were not entitled to a
writ of mandamus.
Affirmed in part, and dismissed in part.
62a
Record did not support a finding that judge was
“interested” in the proceeding and thus statutorily
required to recuse himself, and therefore plaintiffs
had no clear right to the remedy of a writ of
mandamus directing judge to disqualify himself nunc
pro tunc from all matters relative to two pending
nonpayment proceedings. McKinney's Judiciary Law
§ 14.
Kyle Law Firm, New York (Robin H. Kyle of
counsel), for appellants.
Andrew M. Cuomo, Attorney General, New
York (Richard Dearing of counsel), for Hon. Gerald
Lebovits, respondent.
Order, Supreme Court, New York County
(Herman Cahn, J.), entered November 1, 2007,
insofar as it denied the petition and dismissed the
proceeding brought pursuant to CPLR article 78
seeking a writ in the nature of mandamus directing
respondent judge to disqualify himself, nunc pro tunc
to June 4, 2007, from all matters relative to two
pending nonpayment proceedings, unanimously
affirmed; appeal from the part of the order that
imposed sanctions in the amount of $1,000 upon
nonparty attorney Robin H. Kyle for engaging in
frivolous conduct, unanimously dismissed; all with
costs.
63a
The record does not support a finding that
Judge Lebovits was “interested” in the proceeding
and thus required to recuse himself pursuant to
Judiciary Law §14. Absent a legal disqualification
under Judiciary Law § 14, petitioners had no clear
right to the remedy of mandamus (see Matter of
Alizia McK., 25 A.D.3d 429, 808 N.Y.S.2d 657
[2006}). Moreover, they had and have other adequate
remedies at law by which to seek the retroactive
disqualification of the judge (see Matter of Herskowitz
v. Tompkins, 184 A.D.2d 402, 402-403, 585 N.Y.S.2d
386 [1992], appeal dismissed 80 N.Y.2d 1023, 592
N.Y.S.2d 671, 607 N.E.2d 818 [1992]).
The appeal from the part of the order that
imposed sanctions against nonparty attorney Kyle
must be dismissed because Kyle did not file an
appeal from the order within the 30-day period
established by CPLR §5513 (see Steinhardt Group v.
Citicorp, 303 A.D.2d 326, 757 N.Y.S.2d 537 [2003],
lv. denied 100 N.Y.2d 506, 763 N.Y.S.2d 811, 795
N.E.2d 37 [2003]), and petitioners are not aggrieved
by that part of the order (see Scopelliti v. Town of
New Castle, 92 N.Y.2d 944, 681 N.Y.S.2d 472, 704
N.E.2d 226 [1998]). Were we to consider the issue, we
would perceive no basis for disturbing the court's
exercise of discretion in sanctioning Kyle.
We have considered petitioners’ remaining
arguments and find them unavailing.
Entered: January 20, 2009
64a
APPENDIX J:
Supreme Court of the State of New York
Appellate Division—First Department
BRIEF FOR PETITIONES
July 2, 2008
ARGUMENT
POINT AS PRIOR MANDAMUS WAS IN
I; NO WAY “FRIVOLOUS”, AS JUDGE
HAD A CLEAR INTEREST IN THE
STIPULATION HE “SO-ORDERED”
WHICH VITIATED THE PRIOR
MANDAMUS
(A) AS THE PRIOR MANDAMUS
PROCEEDING WAS IN NO WAY
“FRIVOLOUS”, RESPONDENT JUDGE’S
HAD PROFOUND INTERESTS IN ITS
“SETTLEMENT”
Counsel] for Riverside characterized the prior
Article 78 as “frivolous”, but has been unable to
articulate any legally coherent basis for same.
Respondent Judge fairs no better. His critiques to
date—e.g., “It is law 101 that that a lawyer does not
file an Article 78 instead of appealing. Truth is a
defense that cannot be turned on the court”—have no
basis in law whatsoever. This is because the prior
Mandamus isolated procedural conduct in question
65a
dead-to-rights. To expose it as somehow “frivolous” is
a legal and factual impossibility.
Below, Petitioners argued Respondent Judge
and his colleague, the Honorable Peter D. Wendt,
intentionally violated [Petitioners’]] Constitutional
right to trial through at least [14] ministerial errors
of law—all of which violated Article 7's mandatory
injunctions. [Detailed] in moving papers below, they
are more handily illustrated as follows:
Respondent’s Ruling Actual Rule of Law
1 Lease not annexed to Movant need only
motion to amend for annex document “not
attorneys fees, so already in possession of
motion to amend denied court.” CPLR §2214(c).
2 Counterclaims in Pursuant to CPLR
Civil Court are §101, Counterclaims in
governed by §3011 Civil Court are gover-
ned by CCA §907.
3 §3011 requires a §3011 only requires:
counterclaim to be “there shall be a reply
designated “as to a counterclaim des-
such.” ignated as such.”
4 Failure to denominate “At any stage of an
{6acounterclaim was’ action the _ mistake,
only correctable omission, defect or
through motion to irregularity shgll be
amend. CPLR §3025. disregarded.” §2001.
66a
Respondent's Ruling
Counterclaims must be
“designated”
This court must deny
[tenants’] motion ffor
summary judgment on.
§234] because Respon-
dents have not
asserted a counter-
claim...”
This Court
precluded from
ruling on Respon-
dents’ potential
counterclaim for fees
to 736 Riverside
Drive’s petition. . .
[was]
Actual Rule of Law
No “designation” re-
quirement. CCA §907
“The motion shall be
granted if, upon all the
papers and proof
submitted, the cause of
action or defense shall
be established suffi-
ciently to war-ant the
court as a matter of
law in directing
judgment in favor of
any party. CPLR
§3012(b)
No such thing as a
“potential counter-
claim” if “tenant is
prevailing party.’
Dowling v. Yamashiro
10
11
67a
Respondent’s Ruling
CPLR §3011 requires
a counterclaim to be
designated ‘as such.”
CPLR §3011 requires
a counterclaim to be
designated ‘as such.”
CPLR §3011 requires
a counterclaim to be
designated ‘as such.”
As “petition contained
no claim for legal fees”
the tenants may not
counterclaim
under §234 for
attorneys’ fees.
Actual Rule of Law
CPLR §3026 provides:
‘Pleadings shall be
liberally construed.
Defects shall be
ignored if a substantial
right of a party is not
prejudiced.”
“CPLR shall govern
“except where the
procedure is regulated
by inconsistent
statute.” CPLR §101
CPLR §2101(f): “A
defect in the form of a
paper shall be disre-
garded by the court,
and leave to correct
shall be freely given.”
“If a substantial right
of a party is. not
prejudiced, defects
shall be disregarded by
the court, and leave to
correct shall be freely
given.” CPLR §210i(5.
12
13
14
68a
R ndent’s R
As “petition contained
no claim for legal fees”
the tenants may not
counterclaim under
$234 for attorneys’ fees.
[R.12}.
Because “petition
herein contained no
claim for legal fees
whatsoever” the
tenants may not
counterclaim for
attorneys’ fees.
Petitioners must
“counterclaim clearly”
Actual Rule of Law
“(T]enant’s entitle-
ment to attorneys’ fees
[does not] depend on
landlord’s request for
attorneys’ fees.” 815
Park Owners Inc ov.
West LB Adminis-
tration, Inc., 119 Misc.
2d 671 (1983).
“The statute makes the
existence of the lease
clause the only
condition precedent to
the tenant’s reciprocal
right.” Jocar Realty Co.
v. Galas,176 Misc.2d
534, (N.Y. City Civ. Ct.,
1998).
“Pleadings shall be
liberally construed”
§3026
69a
*
POINT PETITIONERS’ CHARACTERIZATIONS
IV: OF RESPONDENT'S PROCEDURAL
CONDUCT HAVE A RATIONAL BASIS
IN THE RECORD THEREFORE THE
IMPOSITION OF SANCTIONS
WAS UNJUST AND INAPPROPRIATE
Sanctions were imposed primarily for
“misquoting transcripts”, “misinterpreting the stip-
ulation, submitting papers “replete with insulting
comments” and accusing Respondent Judge of
“orchestrating appearances’ to vitiate the Article 78
Mandamus” fid.]; asserting Respondent Judge
demonstrated bias through the honorific “Sir” and
“disingenuous readings of the record in the Civil
Court cases.”
(A) Misquoting
Contrary to the decision, the OSC was a fully
integrated document containing both the
affirmation’s “truncated quotes” and the (full
transcripts annexed at Exhibits “E” and “F” [R. 90
and 125] incorporated by reference. The decision is
written as if Petitioners used truncated quotes by
themselves, i.e., to mislead the Court, while the fuil
transcripts were somehow unearthed independent of
Appellants’ submission, thereby unmasking some
unlawful charade.
70a
However, the offending quote (411 [{R. 50])
properly employed punctuating ellipsis substituting
any allegedly purloined text. The ellipsis after
“COURT”, “committee” and “you” [R. 50] obviously
represent missing text. Why? Because ellipsis
indicates the “omission of words needed to complete a
construction or sense.”= So the presence of ellipsis in
the. text cited in the decision cannot be misleading
because ellipsis is “a series of three dots that indicate
the missing of quoted words”® which “let the reader
know that something is missing,” the quote cited by
the lower Court is not “disingenuous” Nor does the
passage “deliberately misquote.”’
In the defamation context, the IAS Court’s
approach was soundly rejected by the U.S. Supreme
Court. Masson v. New Yorker Magazine, Inc. 501
U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447, 59 USLW
4726, 18 Media L. Rep. 2241 (1991). Altered
quotations are blameworthy only if such alterations
effect a “material change in the statement’s
meaning.” (523 U.S. 496). As Justice Kennedy ex-
plains:
5 Pocket Oxford Dictionary (Clarendon Press Oxford
University [1992)).
6 The New York Public Library Writer’s Guide to Style
and Usage, (Harper Collins Publishers, p. 280 [1997]).
7 Grammatically Correct: The Writer’s Essential Guide
to Punctuation, Spelling, Styles, Use and Grammar. Anne
Stillman (Writer's Digest Books Cinn. OH. [1997]).
Tla
While the use of quotations to attribute
words not in fact spoken is important to
that inquiry [of intentional “falsity’], the
idea that any alteration beyond correction
of grammar or syntax by itself proves
falsity is rejected. Id.
For if, as Justice Kennedy observes, “a
defendant may be able to argue that quotations
should be viewed by the [reasonable] reader as
nonliteral reconstructions. ” then for Justice
Kennedy, the pivotal test is whether, “the reasonable
reader would understand the quotations to be nearly
verbatim reports of statements made by the
subject.” Given its rather conventional use of
ellipsis, 411 easily passes The New Yorker test. A
reasonable reader would interpret the ellipsis as, “a
series of three dots that indicate the missing of
quoted words.”9
(B) Page References
The sanction for “misciting page references”
apparently refers to the fact that 911 referenced the
excerpt to “Page 49 line 1-25”) when in reality—as
the LAS Court “discovered”’—the lines run from page
48 through 49. (Decision R.24]. But at 4 17 [R. 52]
the same language is accurately referenced as “Id.,
8 Id¢.,501 US. 513.
9 p. 280 The New York Public Library Writer's Guide
to Style and Usage, (Harper Collins Publishers [1997]).
72a
pp. 48 — 49” at [917 R. 17]: simply turn the page and
the full citation is revealed. Moreover, no case exist
imposing sanctions for incorrect citations or page
reference or typos.
(C) Truncating”
Truncating, is not misleading unless it
changes the meaning of the wn-truncated text. Such
as saying the transcript states “found guilty,” when
in reality the transcript states “found not guilty.”
The deleted/truncated “not” completely changes the
meaning of the text and thereby misleads. But there
is no misleading truncated text cited in the IAS
decision because none exist in Appellants’ papers.
Defined as to “abbreviate by or if by cutting
off’ 1° or “shorten”!!, truncating is what lawyers and
Judges regularly do to keep their papers at a
reasonable length. The method has no moral or
ethical stigmata of which the undersigned is aware.
Lest the garden variety Order to Show Cause become
a full-blown Brandies Brief, truncation is, of course,
indispensable to the profession both as a matter of
practicality and rhetorical effect.
As such, counsel pleads guilty to “truncating”
the transcript, and also to having annexed the entire
record for the IAS Court’s reference. On the other
hand, Appellants emphatically deny any intent to
10 Webster’s Third New International, {1961}).
11 Pocket Oxford Dictionary, [8 Ed. 1992}).
73a
mislead and further deny that the OSC “truncated”
citations were in any way shape or form even capable
of misleading.
(D) “Insults”
At page 12 of the decision [R. 24], the IAS
Court says:
Mr. Kyle’s affirmation and supporting
memoranda are replete with insulting and
disingenuous readings of the record.
[R. 24].
As “insults” (in papers allegedly “replete”
with such invective) are cited in the decision, I would
point to the IAS’s Court attempt at three such
examples:
Mr. Kyle accuses Judge Lebovits of having
“brought down the gavel in his own case,”
“selling tenants’ statutory protections,”
and “using the prestige of his office for
personal advantage in pending litigation.”
Pet Br at 1. [R. 26].
(i) Brought down the gavel...
While “insult” is defined as to treat with
“contempt or indignity by word,”!? herein gavel is a
12 Webster's Third New International Dictionary (Encyclopedia
Britannica (1966).
74a
figure of speech suggesting a likeness or analogy by
way of an implied rather than explicit comparison. It
is an obvious metaphorical extension of James
Madison’s Federalist Paper Number 10: “No man is
allowed to be a judge in his own cause; because his
interest would certainly bias his judgment, and, not
improbably, corrupt his integrity.”!* In “so ordering”
the June 20, 2007, stipulation—which effectively
ended his role as_ litigant—Respondent Judge
brought down the gavel in his own case—a perfectly
sound, logical, (and relatively modest) legal
metaphor given the facts.
(ii) Selling Tenants’ Protections
To say “Mr. Kyle accused [Respondent Judge]
of .. .‘selling tenants’ statutory protections .. .” [R.
26], is profoundly inaccurate. The exact words were:
[Respondent Judge was] unlawfully presiding over
the selling off of the Petitioners’ statutory rights
without two of the Petitioners even in the Court-
room—in violation of a Supreme Court stay no less.
The sentence simply asserts six irreducible,
un-contradicted facts of this case: (1) [Respondent
Judge] presided; (2) Mr. Hart did the selling; (3)
Appellants did the losing; (4) the landlord did the
buying; (5) the deal was “so-ordered” during
a Supreme Court stay of proceedings and (6) Kathryn
13
The Federalist, No. 10, at 59 (James Madison) (Jacob E.
Cooke ed., 1961).
75a
Gilbert and Mary Kyle—whose rights were lost
without their knowledge, participation or consent—
were not in the courtroom. It’s that simple.
(iii) “Personal Advantage”
Another basis for the sanctions is that, “Mr.
Kyle accuses [Respondent Judge] of “‘. . . using the
prestige of his office for personal advantage in
pending litigation.’ Pet Br at 1.” [R. 26]. But only
through the “prestige” of judicial office can someone
(in a pending suit to which he is a named party)
conduct ex parte hearings in and unilaterally adjourn
an interrelated matter in violation of a Supreme
Court stay. And having assumed the June 4% — 8,
2007, ex-parte adjournment [R. 88] was not done for
public “advantage”, and as the proceeding had no
discernable charitable purpose, I assumed—and
quite reasonably I think under the circumstances—it
was for the personal advantage of the one who
ordered it: Respondent Judge.
(E) “Sirs,” “Misters,” and Judicial
Condescension
On the return date of the OSC, Appellants’
counsel several times referred to the [AS Court as
“Sir” [R. 464. line 14]. Yet the LAS Court never refers
to any counsel appearing before him as “Sir” [R. 457
— 474] as in: “I told you, Mister, and you will speak
only after I have spoken .. .” [R. 312]. This is
because, as a general axiom of common courtesy,
superiors simply do not address their subordinates as
76a
“sir” or—clearly more offensive still—‘Mister.”
Frankly, such use is rude, ill-mannered and—
especially in the context of a judicial proceeding—
consummately prejudicial.
However, at page 15, umbrage is taken to our
objection to Respondent Judge’s_ referring to
Appellants’ counsels as “Mister” and ‘Sir’: [R. 27].
But the decision never explains how the suggestion is
without basis or even wrong. [See R. 27]. Therefore,
as the charge perfectly reflects the prohibition laid
down in Commentary 3.2, Code of Judicial Conduct
Canon 3(b)(4), and the decision never analyzed my
allegation through Canon 3, it’s assumed that when
a Judge refers to an attorney as “Sir” the usual
norms of courtroom’ etiquette—and _ etiquette
generally—apply.
H.L. Mencken’s classic and definitive, 3-
volume, magnum opus, The American Language
(1936) points out: In the United States, “Sir” is a
sensitive noun and depending on the circumstances
is often a rebuke as in: “Addressing an inferior to
whom a sharp order is given, as ‘Do this or that,
sir!’”\4 According to Mencken: “The English often
remark another American habit that strikes as
strange, to wit, the frequent use of Sir. They seldom
14 The American Language: An Inquiry Into the Deve-
lopment of English in the United States, H.L. Mencken, (1966)
Alfred Knoph, New York; Supplement I; page 555.
77a
use it save in addressing indubitable superiors,
especially royalty...”
Therefore, the word’s potency for ironic
contempt is commonly understood. As a “short form
of sire which originally came from the Latin senior,” ©
I have never seen the word's use cited approvingly
when directed at a subordinate by his superior.
Common usage dictates this is simply rude.”
6 Id., 555.
16 = Word Nerd, Barbara Ann Kipfer, (Source-books
Naperrville ILl., [2007)).
17 One undisputed master of the language was renown
post-war screen writer Frank Nugent who re-worked the James
Warner Bellah magazine short story “Massacre” into John
Ford’s classic film Fort Apache (1948). The movie features
Henry Fonda as a rigid, class-conscious, by-the-book, Indian-
hating, anti-Irish racist, West-pointer, Owen Thursday, a
Commanding Officer of Fort Apache in Utah’s Monument
Valley.
_ Throughout the narrative, Thursday is known for his
signature put-down to his officers and subordinates alike whom
he slights with the honorific title “Mister” and “Sir.” Against,
Thursday's abusive references and high-pitched tirades, John
Wayne plays the more likable “warmer subordinate to the tense
superior officer.” [p. 172}. (See Garry Wills: John Wayne's
America: The Politics of Celebrity (1997).
But as Wills points out, by the film’s end, after
Thursday's death, Wayne, as next-in-command, essentially
transmogrifies into Thursday. Yet, of all the many mannerisms
Wayne adopts from his slain and now respected-in-death
Commander, directing “Sir” and “Mister” to the men under his
command is not, and will not, be one of them. Although film
critics and cultural historians like Garry Wills regard it as a
high-art classic—given the cinematography—Fort Apache was a
78a
(F) Attempts to Delay: Purported and Actual
Sanctions were also imposed for [Petitioners]
“obvious intent to delay.” An intent apparently so
“obvious”, the LAS Court felt it unnecessary to cite
any proof of same save Riverside’s allegation (Breed,
at 7 57; [R. 251]). In fact, on the day of trial it was
Riverside who sought delay twice on the record [R.
334, line 22 -25; and R. 367, line 11].
(G) Illicit Exclamation Points
There is no known precedent for imposing
sanctions for inserting exclaimers. Indeed, “Special
Term did not abuse its discretion in denying
Plaintiffs’ motion to impose sanctions upon
defendant for making changes improverly in
transcript of his examination before trial.” Jenkins v.
Brown, 50 A.D.2d 925, 377 N.Y.S.2d 613 (App. Div.
24 Dep’t 1975). Moreover, exclamation points don’t
always imply yelling.
The sanctions herein are best understood as
the system’s reaction to any effort of recusal, a
system which, in the words of a recent court decision
is little more than a procedure of “systematic
intimidation.” “This procedure remains in effect
because our judiciary wishes to discourage recusal
popular film produced for mass American audiences. In other
words—common usage aside—Thursday’s discourteous “Sir”
and “Mister” have been part of America’s cultural vernacular
for 60 years.
79a
motions by a process of systemic intimidation
wherein it considers such motions to be a monkey
wrench thrown into the-works of its turnstile.”
People v. Ventura, Slip Copy, 2007 WL 4170847 (N.Y.
Just. Ct., 2007). The same would seem to be
especially true respecting efforts at disqualification.
(H) The IAS Court’s Imposition of Sanctions
Without Notice and a “Reasonable
Opportunity to be Heard” Violates Due
Process
“Due process requires that courts provide
notice and an opportunity to be heard before
imposing any kind of sanctions.” Nuwesrav. Merrili
Lynch, Fenner & Smith, Inc., 174 F.2d 92 (2d Cir.
1999); Bogan v. Royal Realty Company, 209 A.D.2d
178, 617 N.Y.S.2d 746 (App. Div. 1*t Dept. 1994).
In this case the IAS Court’s failure to provide
notice of a hearing and a reasonable opportunity to
be heard are inexplicable due process violations. [R.
28]. Even if sanctions were substantively justified
(and they are not), notice and an opportunity to be
heard are required by the State and Federal
Constitutions.
* * *
CONCLUSION
It is respectfully submitted that the dismissal
affronts New York’s §14 “liberal construction” tradi-
80a
tional, is contradicted by the official Housing Court
website, records, transcripts, docket sheets and—
relative to sanctions—even commonly accepted usage
of punctuation and the English language. The
petition should, therefore, be reinstated and the [AS
Court’s decision should be reversed.
Dated: June 30th, 2007
New York, New York
Respectfully
Submitted
ROBIN H. KYLE, ESQ..,
8la
APPENDIX K:
Supreme Court of the State of New York
Appellate Division—First Department
Kyle, et al., v.
Hon. Gerald Lebovits, et al.,
OPPOSITION BRIEF OF HON. GERALD
LEBOVITS,
October 8, 2009
ARGUMENT
POINT I
THE PETITION FOR MANDAMUS WAS
PROPERLY DENIED
Mandamus to compel is an “extraordinary
remedy” that les to compel the performance of “a
purely ministerial act where there is a clear legal
right to the relief sought.” Matter of Legal Aid
Society v. Scheinman, 53 N.Y.2d 12, 16 (1981).
Herein, the petition for mandamus fails for two
reasons: because the Tenants had and have an
adequate legal remedy for the relief they seek, and
because the Tenants have no clear legal right to that
relief.
82a
A. Mandamus Will not lie Because the
Tenants Have an Adequate Legal
Remedy
It is settled law that Mandamus will not issue
where the petitioner has an adequate legal remedy
for the relief he seeks, whether by appeal or other-
wise. Matter of State v. King, 36 N.Y.2d 59, 62 (1975)
(“The extraordinary remedy will not lie if there is
available an adequate remedy at law, of which
appeal is but one... .”);
As discussed above, in an abundance of caution
and to avoid any conceivable appearance of
impropriety, Judge Lebovits ceased to preside over
the nonpayment proceedings involving the Tenants
no later than August 24, 2007. Therefore, plaintiffs
do not presently seek recusal of Judge Lebovits going
forward. Instead, they seek a ruling that Judge
Lebovits should have recused himself earlier; in
substance, they seek vacatur of judicial acts he
performed after the circumstances allegedly
warranting recusal arose and before the cases were
reassigned. The only act of significance that Judge
Lebovits performed in that period was his act in so-
ordering the stipulation of settlement on June 20+,
2007. As their various efforts to vacate the
stipulation demonstrate, the Tenants apparently
have had second thoughts about the amount of
money for which they agreed to settle their dispute
about past attorney’s fees.
83a
Mandamus will not lie here because the
Tenants had and have adequate legal remedies by
which to obtain vacatur of Judge Lebovits’s act in so-
ordering the settlement, if such vacatur were
warranted. Indeed, the Tenants actually filed in a
motion before Judge Lebovits to vacate the so-
ordering of the stipulation of settlement three weeks
after the stipulation was executed. Judge Lebovits
denied that motion on July 9%, 2007, and the
Tenants could have appealed that denial, but did not
do so. The Tenants also may move for vacatur before
the judge that is currently presiding over the
nonpayment proceedings, and may pursue an appeal
if that relief is denied. The existence of these
adequate legal remedies bars any petition for
mandamus.
Dated: New York, New York
October 8'*, 2008
Respectfully submitted,
ANDREW M. CUOMO
Attorney General of the State
of New York
Attorney for Respondent the
Honorable Gerald Lebovits, JHC
84a
APPENDIX L:
Supreme Court of the State of New York
Appellate Division—First Department
Kyle, et al., v.
Hon. Gerald Lebovits, et al.,
PETITIONERS’ REPLY BRIEF
October 21, 2008
POINT TWO
“ADEQUATE-REMEDY” IS INAPPLICABLE
WHERE THE DUTY TO BE COMPELLED IS A
CONSTITUTIONAL DUTY
Under §14, adequaie-remedy is a non-
starter. If Article 78 jurisprudence is clear on
anything, it is crystalline that “the CPLR provisions
that an Article 78 proceeding must not be used [if] a
determination can adequately be reviewed by
appeal are inapplicable where the performance to be
compelled is a Constitutional duty.” 6 N.Y. Jur. 2d
Article 78, §90:
85a
(A) Because Respondent Judge Had an
Interest in the Outcome of the June
2007 Proceedings, Statutory Dis-
qualification Herein Rises to a Vio-
lation of Due Process of Law
It is beyond dispute “that an impartial [i.e.,
disinterested] decision maker is a core guarantee of
Due Process,” 1616 Second Ave. Restaurant, Inc. v.
New York State Liquor, 75 N.Y.2d 158, 550 N.E.2d
910, 551 N.Y.S.2d 461 (N.Y., 1990). In Second Ave.
Restaurant, the Court held in that Article 78
decision: “Chairman’s . . . failure to disqualify him-
self from that proceeding deprived the licensee of
due process of law under the Federal Constitution.
[Accordingly] . . . petition granted.” (Id., at 160 -
166). Indeed, due process is always offended and
disqualification “mandatory where there exists a
direct, personal, [or] substantial interest in reaching
a particular conclusion, or where a clash in judicial
roles is seen to exist.” People v. Alomar, 93 N.Y.2d
239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 (NLY.
1999).
Yet the Attorney General argues: “the exis-
tence of . . . adequate legal remedies bars any peti-
tion for Mandamus” and therefore the Appellants,
“may move for vacatur [of the stipulation or] pursue
an appeal if that relief is denied.” This
recommendation is followed decisional authority
wholly indifferent to the instant facts:
86a
Matter of State v. King, 36 N.Y.2d 59, 62 (1975)
(“The extraordinary remedy will not lie if there is
available an adequate remedy at law, of which
appeal is but one .. .”); Matter of Silverman v. Lobe,
163 A.D.2d 62, 63 (18t Dep’t 1990) (Mandamus is not
appropriate where “there are other available
adequate remedies’).
* * *
As means to prevent an arrogation of power,
when a “court acts without jurisdiction ... in
violation of a person’s rights .. . especially
constitutional rights [Mandamus] will lie. National
Equipment Corp. v. Ruiz, 19 A.D.3d 5, 794 N.Y.S.2d
2 (1% Dep’t 2005) It is not available “ordinarily as a
method of premature appeal... where the lower
court is exceeding its jurisdiction and the writ
furnishes a more effective remedy, [Mandamus] may
be availed of although the error might be corrected
by appeal.” Matter of Lee v. County Court of Erie
County, 27 N.Y.2d 432, 437-438, 318 N.Y.S.2d 705,
267 N.E.2d 452 (N.Y. 1971).
So adequate-remedy is irrelevant. Legal
alternatives will not “bar [a Mandamus suit] when
the application involves questions concerning the
performance of a Constitutional duty.” Pare uv.
Donovan, 54 Misc 2d 194, 281 NYS2d 884 (Sup Ct.,
Kings Co., 1967). “The existence of an equitable
remedy is no bar to the writ, although it may
influence the court in the exercise of its discretion.”
87a
People ex rel. Frost v. New York Cent. & H.R.R. Co.,
6 Bedell 187, 168 N.Y. 187, 61 N.E. 171 (N.Y.1901);
see also, Carmody’s N.Y. Prac. vol. 10, page 553.
This principle has been upheld by no less authority
than the U.S. Supreme Court. Engel v. Vitale, 370
U.S. 421, 82 S.Ct. 1261 (1962).
Engle began a routine “. . . Article 78 pro-
ceeding, seeking an order in the nature of
Mandamus directing the respondent Board of
Education . . to discontinue use of [school] prayer.”
Engel v. Vitale, 18 Misc.2d 659, 191 N.Y.S.2d 453
(N.Y. Sup. Ct., Kings Co., 1959). The Petitioners—
parents/taxpayers from a Brooklyn school—alleged
that both the Establishment Clause and similar
provisions of the State Constitution (N.Y. Const art I,
§3) enjoined a mandatory performance by the school
board. Waving the flag of “adequate remedy”, the
School Board pointed to Education Law §310: appeal
to the Commissioner.
The initial dismissal was upheld by both the
Second Department (11 A.D.2d 340, 206 N.Y.S.2d
183) and the New York Court of Appeals (10 N.Y.2d
174, 176 N.E.2d 579, 218 N.Y.S.2d 659 [1961]), only
to be reversed by the U.S. Supreme Court. Engel v.
Vitale, 370 U.S. 421, 82 S.Ct. 1261, 86 A.L.R.2d 1285,
8 L.Ed.2d 601 (1962). However, at all levels of
review, there was universal consensus that adequate
remedy did not preclude Mandamus relief:
88a
That section [Education Law, §310] is not
controlling in a proceeding in the nature of
Mandamus... if a Constitutional issue is
involved. [Cite omitted.]
(Engel, 18 Misc.2d at 664.)
The same applies to New York’s Consti-
tution. Adequate-remedy barely resonates against
the boundary behind which judges may sit only
where they have jurisdiction or where “the
legislature may provide that [other] courts shall
have jurisdiction [over new classes of actions herein]
such classes may be originated.” (N.Y. Cont. art VI
§7[b]). So by “securing litigants a fair and impartial
trial by an impartial and unbiased tribunal
[through §14]” (Gilbert [supra]), the Legislature
predetermined that Constitutional questions inhere
in any challenge of interest disqualification.
Riglander v. Star Co., 34 N.Y. Civ. Proc. R. 92, 98
A.D. 101, 90 N.Y.S. 772 (App. Div. 1%t Dep’t) aff'd. at
181 N.Y. 531, 73 N.E. 1131 (1905): “If a party is
deprived any right usually accorded others it is not
due process of law.”
The Fourteenth Amendment’s centrality to
interest disqualification is axiomatic. “It certainly
violates Fourteenth Amendment and deprives a
[litigant] of due process of law to subject his [case]
to the judgment of a court, the judge of which has a
direct, personal, . . . interest in reaching a conclu-
sion against him in his case.” Tumey v. Ohio, 273
U.S. 510, 47 S.Ct. 437, 50 A.L.R. 1243, 71 L.Ed. 749,
89a
(1927). Even at common law in England, prior to
the separation of colonies from the mother country
. it is very clear that the slightest pecuniary
interest of any officer, judicial or quasi-judicial, in
the resolving of the subject-matter which he was to
decide, rendered the decision voidable.” Tumey at
542. These corner stones of Anglo-American law
developed, the Court noted, “as early as 12 Richard
II, A.D. 1388.” Tumey, at 441. Speaking for the Court
thirty years after Tumey, Justice Black recognized
that as “... a basic requirement of due process... . no
man is permitted to try cases where he has an
interest in the outcome.” Jn re Murchison, 349 U:S.
133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).18
18 In gauging where the instant facts might fall on an
“interest” continuum, Justice Reed’s dissent in Murchison is
insightful. Parting from the majority as having traveled too far
from Tumey v. Ohio, the minority objects:
It is one thing to hold that a judge has too great an
interest in a case to permit the rendition of a fair
verdict when his compensation is determined by the
result he reaches. It is quite another thing to disqualify
a state judge as having too great an interest to render
a due process judgment when his sole interest, as
shown by this record, is the maintenance of order and
decorum in the invesiigation of crime—an interest
which he shares in common with all judges who punish
for contempt. (Murchison, 349 U.S. 142).
As “decorum” interest isn’t even remotely comparable to the
kind of interest inherent in a law suit to which one is a named
party, the instant facts rise far above Murchison’s “floor”. In
other words, the interest in Murchison was essentially
intellectual: a judge vindicating his own prima facie findings of
contempt or, in the words of the Court: “to act as a grand jury
90a
Although Justice Black acknowledged such “interest
cannot be defined with precision as circumstances
and relationships must be considered” ibid.,
nonetheless, a working formulation is: whether the
“situation is on ‘which would offer the possible
temptation to the average . . . judge not to hold the
balance nice, clear and true.” See Ward v. Village of
Monroeville, 409 U.S. 57, 93 S. Ct. 80, 83, 34 L.Ed. 2d
267 (1972).
Broadening Tumey, the contemporary rule
this disqualifies any “direct personal interest in the
outcome of the hearing.” Ungar v. Sarafite, 376 U.S.
575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). Synthe-
sizing these holdings, Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813 826, 106 S.Ct 1580, 1588-1589, 89
L.Ed.2d 823 (1986) holds:
[A]s explicated in Tumey, Murchison, and
Ward, we make clear that we are ..
required to only [ask] whether sitting on the
case... “would offer a possible temptation to
the average .. . judge to not to hold the
balance nice, clear and true.”
Ward, 409 U.S., at 60, 93 S.Ct., at 83.
[footnote continued from previous page]
and then try the facie findings of contempt or, in the very
persons accused as a result of his investigations.” (/d., at 137).
Herein Respondent's interest is analogous (vindicating his take
on CPLR §3011) but critically, it is also quasi-pecuniary: he is
litigant.
9la
Of course, some disqualification questions are
not constitutional: the Fourteenth Amendment “es-
tablishes a constitutional floor, not a uniform
standard.” Bracy v. Gramley, 520 U.S. 899, 117 S.Ct.
1793, 138 L.Ed.2d 97 (1997). Nonetheless, “the floor
established by the Due Process Clause clearly
requires a ‘fair tribunal,” before a judge with no
interest in the outcome of his particular case.” Id., at
905.
Adequate remedy, then, is non-sequitur. The
petition’s §14 remedy is predicated on notions of
Constitutional process: the State’s concomitant duty
to insure “every person’s right to life, liberty and
property be accorded the shield of inherent and
fundamental principles of justice.” Snyder v.
Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 90 A_L.R.
575, 78 L.Ed. 674 (1934). [Cardozo, J]. The state
must guarantee respect for those _ personal
immunities “so rooted in the traditions and ccn-
science of our people as to be ranked as fundamental.
Ives v. South Buffalo Ry. Co., 201 N.Y. 271, 94 N.E.
431, 34 L.R.A.N.S. 162, (N.Y. 1911).
A Judge, then, may only sit “where juri-
sdiction is conferred by the Constitution, and upon
no other tribunal; for otherwise there will be a
failure of justice. (Oakley v. Aspinwall, [N.Y., 1850}).”
Converse v. McArthur, 17 Bard. 410 (N.Y. Sup Ct.,
1854). The failure of justice results because the
“provision of the statute, prohibiting any judge from
sitting . . . is controlled by the Constitution, as the
paramount law.” Re Leefe, 2 Barb. Ch. 39, 5 N.Y. Ch.
Ann. 548, WL 4195 (N.Y. Ch. 1846).
92a
Accordingly “few situations are more appro-
priate for Mandamus than a Judge’s clearly wrongful
refusal to disqualify himself.” [.B.M. Corp., In United
States v. I.B.M. Corp., 618 F2d 923 (C.A. 24 Cir.,
1980). And where the interest per se is the
disqualifying factor, the Constitution is particularly
offended. As the Court of Appeals ruled: “[MJatters of
disqualification rarely rise to the Constitutional level
or violate procedural due process, absente some
interest of the Judge in the outcome of the pro-
ceedings .. .” (dissent, 1616 Second Ave. Restaurant,
Inc. v. New York State Liquor, 75 N.Y.2d 158, 550
N.E.2d 910, 551 N.Y.S.2d 461 (N.Y., 1990).
7 * *
Dated: New York, New York
October 21*, 2009
ROBIN H. KYLE, ES@Q.,
Attorney for Petitioners
93a
APPENDIX M:
Correspondence of the Office of the State of New
York State Attorney General to Supreme Court of
the State of New York, Appellate Division—First
Department
December 11, 2008
Honorable John McConnell
Court Clerk
Supreme Court—Appellate Division
First Department
27 Madison Avenue
New York, NY 10101
Re: Matter of Kyle v. Lebovits,
N.Y. County Index No. 110838/07
Dear Mr. McConnell:
The Honorable Gerald Lebovits, JHC,
submits this letter to advise the Court of two errors
in the Respondent’s [Judge Lebovits’] brief, filed
October 8, 2008. On page 8, Respondent states that
the Tenants did not ask either Judge Lebovits or
Judge Wendt to reconsider his ruling on the matter
of attorney’s fees. In fact, the Tenants apparently
did move for re-argument to Judge Lebovits, which
was denied on February 22, 2007 (see papers
submitted by the Tenants on 11/4/08, 661.3).
94a
Also on page 8, Respondent states that the
Tenants commenced their Article 78 action “more
than a year after the second of those orders was
issued.” This is incorrect: the Article 78 was filed
approximately two months after the second of these
orders was issued.
Wile Respondent notes these errors, their
correction does not alter Respondent’s argument in
any manner.
Respectfully submitted,
DIANA R. WINTERS
Assistant Solicitor
General
cc: Robin H Kyle, Esq.
The Kyle Law Firm
80 Broad Street, 5‘ Floor
New York, NY 10004
95a
APPENDIX N:
Housing Part: Civil Court of the City of New York
736 Riverside Drive LLC v. Kyle, et al.,
L&T 77281/06
June 4, 2007, July 8b, 2007
Transcript of Proceedings
THE COURT: Appearance please.
MR. McCOURT: Uh, for the petitioner [Heiberger
and Associates] by - - New York, New York, ¢ - - 6.
Judge, uh, there’s a stay on this case, uh, pursuant to
the order of Judge Went [phonetic (Cahn)] under
Index Number 105603 of ’07, um, which is on for 78
proceeding. I just was informed from my client by e-
mail that he spoke with Respondents’ counsel and a
settlement has reached—legal fees—prior action.
Uh, I haven’t reached the adversary. But based on
the—in light of the stay of this proceeding, I don't
think he would mind to just adjourn the matter?
THE COURT: To when?
MR. McCOURT: Uh, Your Honor, I - - this week - -
two weeks?
THE COURT: No.
MR. McCOURT: Two weeks?
96a
THE COURT: No.
MR. McCOURT: Do you want to mark it on the
calendar?
THE COURT: Uh, I don’t want to have a lawsuit—
THE COURT: I have my reasons for not wanting to
have a lawsuit pending against me.
MR. McCOURT: I understand.
THE COURT: Uh, I want to resolve this lawsuit as
quickly as possible. Um...
THE COURT: I have strong personal reasons why I
don’t want to have a lawsuit pending against me. |
have enough lawsuits pending against me as it is.
Uh, it’s an occupational hazard that people sue me.
But I say, “Enough’s enough.”
MR. McCOURT: Would you like me to see if we can
get - - response counsel - - try to draft something up
in the - -?
THE COURT: To settle the Article 78?
MR. McCOURT: To settle the Article 78 and the
legal fees portion of their claim.
97a
THE COURT:— That would be amazing if you could
do that.
* * *
THE COURT: ...I1 don’t want to have a lawsuit
pending against me.
MR. McCOURT: It’s not you personally.
THE COURT: No, of course, not, It’s not even me,
because he got my name wrong.
MALE VOICE: [laughs]
THE COURT: He did. Um, I don’t have a—don'’t
have a middle name, I was born without a middle
name. I don’t feel particularly deprived. But he
couldn’t even get my name right.
MALE VOICE: Um, should I call him and read him
the Riot [phonetic] Act and say he’d like to see us
or...
THE COURT: Read him the Riot Act?
MALE VOICE: What would you like me to do?
THE COURT: How do you—how do you read the
Riot Act to someone who, instead of, uh—
[Crosstalk]
MALE VOICE: —filing an appeal or saying to
Judge Went, “Would you reconsider?” instead has
98a
papers like this under Article 78 and huge chunks
of it, instead of just giving a sentence, he’ll bold it,
italicize, and underline it? So I think that Mr. Heart
[phonetic] needs a psychiatrist.
MALE VOICE: Understood.
THE COURT: And his client has a good malpractice
claim against him. So how do I deal—and he’s not
even here right now. That’s the sad part. Read the
Riot Act to him?
MALE VOICE: Well, if you’d like to give him a call
and read him the Riot Act.
THE COURT: I—
[Laughter]
THE COURT: I'm not going to read him the Riot
Act. I think, uh—
MALE VOICE: I mean, I actually, said—
[Crosstalk]
THE COURT: I wouldn’t even—I wouldn’t even
speak to him off the record.
MALE VOICE: I mean, I’m not too shocked that the
Judge is filing the order to show cause - -. I said I
don’t see how this Court sits in judgment—
[Crosstalk]
99a
MALE VOICE: —when he can easily just file - -
proceeding with - -. But...
THE COURT: No, I don’t blame Judge Cahn for—
uh, for signing it. It’s easier to sign it than to read
this crap. The only way that he could have refused
to sign it is if he had read it. And I wouldn’t wish
this on my worst enemy. Okay. So, yeah, if you
want to have the case called sooner than later, then,
yeah, that would be great. But, uh, I understand if
that doesn’t work out. 2:00 p.m.? What do you
think?
MALE VOICE: Let me make a phone call. I don't
want to waste the Court’s time to push it to 2:00 p.m.
if he’s not going to be here. —
THE COURT: Okay. Thank you.
July 8th, 2007 Transcript of Proceedings
THE COURT: [Calling case number: 77281/06]: 736
Riverside against Kyle. Well, Mr. Kyle, you seeking
to undo the stipulation that you signed?
WILLIAM KYLE: Yeah, the—uh, uh, I'm sorry.
The, uh, stipulation is void as against public policy.
You cannot waive §234 counterclaims [before]
trial.[The] statute says: “any waiver of this privilege
shall be void as against public policy.”
100a
we * a
This [stipulation] is [void] because it involve[s] §14 of
the Judiciary Act. I have a right to Mandamus
under these facts, uh, because it—-uh, it is a
mandatory statute. - - This is flat out disquali-
fication.
THE COURT: So when—when did you graduate
from law school, Mr. Kyle?
MR. KYLE: Uh, I don’t remember the year, ’91-’92, I
don’t know. But just reading the statute, you
cannot—
THE COURT: How many times did you take the
bar exam?
* — _
THE COURT: Come on. Come on, right here.
Raise your right hand.
THE COURT: Do you swear or affirm that the
testimony you’re about to give will be the truth, the
whole truth, and nothing but the truth?
MR. KYLE: Yes, I do.
*
THE COURT: Okay. Uh, I would like everybody to
step out for—for a few minutes. Thank you so much.
THE COURT: Except for you. Uh—
10la
MALE VOICE: _ [Interposing} Can I leave my
paperwork here?
THE COURT: Yes, please. Thank you so much.
You don’t have to—
THE COURT: —just—just not—just not over here.
You're welcome to stay in the courtroom all of you.
Uh, Mr. Kyle, everything you said so far is true?
MR. KYLE: Yes, I believe ’89 University of Detroit.
Uh, presently it’s called University of Mercy and
Detroit, something like that. They had a merger—
THE COURT: Even—even the Gulf War you got
wrong by a couple of years.
MR. KYLE: ... I’m not a historian. Anyway, I’m
doing the best I can here.
THE COURT: Okay. Okay. So I’m going to treat
you a little bit differently now, uh, now that I see
that you’ve made the obvious efforts [even though
Kyle got the Gulf War wrong by a couple of years].
I—I—uh, I—I respect your educational background.
And I respect you. Your motion, I have to say, is—
is—uh, is a different story. I—I reject it entirely.
MR. KYLE: Okay.
102a
THE COURT: I went out of my way, sir, to recuse
myself. Even, uh, although the lawyers did not ask, I
refused to sign the stipulation of—of discontinuance.
I took that on my own. And for the stipulation of
settlement, I went out of my way to say that 99 is not
so ordered.”
MR KYLE: .. . Now, once I realized that Ron—I’m
going to get the transcripts from the hearing on the
15% and I'll see—but Mr. Hart was terrified that he
was going to be the target of a grievance. So with
that; he said:
“I’m getting out of the Article 78.”
I said, “You get out of the Article 78.
[ll do it pro se.”
He said: “No, if you [do it] pro se,
they’re going to come after me for having
initiated [what] you continued. So, my butt’s
still on the line.”
So we argued back and forth. I said:
“I just—I don’t—I don’t understand it.
[The mandamus] is purely theoretical. I
don’t understand how anyone can [get upset
about it]. But if you say [the judges are]
upset about it, and [so] you can’t handle it,
and you don’t want to be grieved, I'll do it.”
THE COURT: When—when approximately did
you take the New York bar exam?
103a
THE COURT: I'm going to give you one
chance to tell me the truth.
MR. KYLE: About what?
THE COURT: About your going to law
school, about the bar exam, about your
graduating, about the University of Detroit,
about—um, about, um, Regions College.!®
And if you tell me the truth, I'm going to
forget this whole episode. But if you don’t
tell me the truth, ['m going to look into it
further
MR. KYLE: I think you should just “look
into it further,” except for dates.
19 [sic.] Regent's College, London University
104a
APPENDIX O
PETITIONERS’ REPLY CORRESPONDENCE TO
JUDGE LEBOVITS’ OPPOSITION
CORRESPONDENCE TO MOTION FOR LEAVE
TO APPEAL TO COURT OF APPEALS
March 22"4, 2009
Honorable John McConnell
Court Clerk
Supreme Court—Appellate Division
First Department
27 Madison Avenue
New York, NY 10101
Re: Matter of Kyle v. Lebovits, N.Y. County Index
No. 110838/07
On Wednesday, March 18%, 2009, my office
received a letter form the Office of the Attorney
General in the above-captioned matter. Apparently
the letter was in response to this “Court’s inquiry” as
to why the Attorney General failed to submit
opposition papers to Petitioners’ application for leave
to appeal to the Court of Appeals, returnable
February 26%, 2009. The substance and nature of
this “inquiry” is unknown. If the “inquiry” was in
writing, I have not been forwarded a copy of same; if
10S5a
was it was done telephonically, there was no similar
call to my office or message service.
w 7 *
Most importantly, the decision herein is
clearly at odds with the U.S. Supreme Court’s Tumey
v. Ohio, line of decisions: Tumey v. Ohio, 273 U.S.
510, 47 S. Ct. 437, 71 L. Ed. 749, (1927); In re
Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99
L.Ed. 942 (1955) and Aetna Life Ins, Co,. v. Lavoie,
475 U.S. 813, 828, 106 S.Ct. 1580, 1588 - 1589, 89
L.Ed.2d 823 (1886) to name a few.
Dated: March 21* , 2009
New York, NY
Robin H. Kyle Esq.,
106a
APPENDIX P
Petitioners’ Application for Leave to Appeal
To the State of New York Court of Appeals
Kyle, et al., , v. Lebovits, et al.,
110838/07
June 2, 2009
Below, the Appellate Division’s finding of an
“adequate remedy at law” based on, inter alia, this
Court’s Due Process ruling in Alizia, In re (supra),
undermines Petitioners’ rights secured under the
Due Process clause of the 14% Amendment to the
United States Constitution. This issue has remained
at the forefront of this proceeding, since Respon-
dent’s self declared strong personal interest in
resolving a lawsuit against himself and in which
both he and Petitioners were named parties.
The constitutional deprivation is compounded
where, as here, the judge threatens Petitioners’
counsel out of a legitimate cause of action and that
legitimate cause of action is against—the judge
himself. Accordingly, this Application For Leave
(hereinafter Application) would vindicate Petitioners’
14% Amendment Due Process rights and uphold
107a
the ancient common law maxim, aliquis non debet
esse judex in propria causa: “no man shall be a judge
in his own case.”
Similarly, the Application would affirm the
rule regularly invoked by this Court: “Next in
importance to the duty of rendering a righteous
judgment, is that of doing it in such a manner as will
beget no suspicion of the fairness and integrity of the
judge.” In re City of Rochester, 208 N.Y. 188 (N.Y.,
1913). This Application further seeks to vindicate
New York’s standing, among other jurisdictions, as a
“liberal construction” state regarding disqualification
statutes.
QUESTION PRESENTED
Respondent Judge refused to disqualify
himself as to a stipulation he so-ordered in which
both Judge and Petitioners were named parties...
The question presented is whether Respondent
Judge’s failure to disqualify himself and the Supreme
Court’s refusal to issue the writ of mandamus for
disqualification violated the Due Process Clause of
the 144" Amendment?
* * *
This case easily falls within the recent
“objective’/“potential for bias” disqualification
standard set forth by Justice Kennedy in Caperton v.
A.T. Massey Coal Co., Inc,. 129 S.Ct. 593 (Mem), 77
108a
USLW 3292, 77 USLW 3295 (November 14, 2008)
(NO. 08-22). Justice D. Benjamin, defeated an
incumbent justice in an election with the generous
assistance of Massey Coal Co., who contributed over
60% of Benjamin’s campaign financing: $3,000,000.
Massey Coal benefitted from Benjamin’s refusal
to recuse himself from Massey’s appeal of a
$50,000,000 judgment against it. Justice Benjamin
casts the critical vote overturning the $50-million
judgment against it. Even on re-hearing, after pic-
tures emerged of Benjamin on vacation with
Massey’s CEO, he declined recusal.
The Supreme Court held Benjamin’s refusal to
recuse himself violated the Due Process clause of the
14% Amendment, because of he received substantial
contributions from Massey. There are some
circumstances “in which experience teaches that the
probability of actual bias on the part of the judge or
decisionmaker is too high to be Constitutionally
tolerable.” Caperton, WL 1576573 at *6, citing
Winthrow v. Larkin, 421 US., at 47, 95. The
Supreme Court noted: the inquiry is an objective one
and the Court asks not whether the judge is actually,
subjectively biased, but whether the average judge in
his position is “likely” to be neutral, or whether there
is an unconstitutional “potential for bias.” Emphasis
added; id at *9.
* o *
109a
ARGUMENT
POINT RESPONDENT JUDGE’S REFUSAL TO
I: DISQUALIFY HIMSELF VIOLATED THE
DUE PROCESS CLAUSE
(A) Due Process Under the
14th Amendment
[U]nder Ward v. Village of Monroeville, 409
U.S. 57, 93 S. Ct. 80, L. Ed. 2d 267 (1972), “a
disinterested and impartial judicial officer as
guaranteed by the Due Process Clause of the
Fourteenth Amendment” is the sine qua non of due
process.
Alizia follows the long line of cases equating
“impartiality” with due process. As Petitioners’
argued (Reply br. at p. 11): “It is beyond dispute that
an impartial [i.e., disinterested] decision maker is a
core guarantee of due process,” 1616 Second Ave.
Restaurant, Inc. v. New York State Liquor, 75 N.Y.2d
158, 550 N.E.2d 910, 551 N.Y.S.2d 461 (N-Y., 1990).
Reading the Bill of Rights through §14, the Second
Circuit held: “Due process implies an impartial court,
which is not provided if the judge has a direct .. .
interest in the case.” Bradford Audio Corp. v. Pious,
392 F.2d 67, 12 Fed. R. Serv. 2d 216 (C._.A.N.Y. 1968).
U.S. Supreme Court decisions have consis-
tently recognized “the due process requirement of an
impartial tribunal.” Jn re Murchison, 349 U.S. 133,
75 S.Ct. 623, 99 L.Ed. 942 (1955) (Pet. Reply br. at p.
110a
16 -17); “The floor established by the Due Process
Clause clearly requires a ‘fair trial in a fair
tribunal,” Bracy v. Gramley, 520 U.S. 899, 117 S.Ct.
1793, 138 L.Ed.2d 97 (1997) (Pet. Reply br. at p. 17);
“The Due Process Clause entitles a person to an
impartial and disinterested tribunal in both civil and
criminal cases.” Marshall v. Jerrico, Inc., 446 U.S.
238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980).
Accordingly, due process violations may arise
where a judge has been so personally “enmeshed in
matters” concerning one party that he is biased
against him. Johnson v. Mississippi, 403 U.S. 212,
215, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971).
Petitioners argued (Reply br. at p. 15): “by securing
litigants a fair and impartial trial by an impartial
and unbiased tribunal [through §14)]”, the
Legislature. predetermined that Due Process
questions inhere in any challenge of disqualification
by interest. (Gilbert, 256 N.Y.S. at 444).
This line of decisions is the Constitutional
precedent through which this Court resolved Alizia.
(B) THE RECORD IS REPLETE WITH
“CIRCUMSTANCES THAT WOULD
BRING RESPONDENT'S IMPARTI-
ALITY INTO QUESTION”
... In Alizia, after the Bronx County Family
Court adjudicated the appellant to be a juvenile
delinquent, her mother was held in contempt. On
lila
appeal, the mother argued [the court’s] disqual-
ification, however, this Court held:
The court properly exercised its discretion in
declining to recuse itself after it initiated a complaint
against appellant and appellant’s mother and sister
for creating a violent courtroom disturbance. . . . The
charges which arose from the disturbance were
unrelated to the proceedings against appellant over
which the court presided. Absent a_ legal
disqualification under § 14, recusal is a discretionary
decision within the personal conscience of the court
(see People vu Moreno, 70 NY2d 403 [1987]). In this
case there are no circumstances that would bring the
court’s impartiality into question.
(Id., 25 A.D.3d at 430).
As neither Alizia or Moreno were Mandamus
actions, and Moreno doesn’t address “impartiality”,
Alizia’s circumstances-of-impartiality can only be
understood as Due Process’ impartiality—i.e.,
analyzed through the 14th Amendment. In the
Tumey/Alomar decisions “impartiality” is the sine
qua non of disqualification. In those cases, “interest”
and “impartiality” are often two sides of the same
Due Process coin.
Alizia’s “circumstances” are clearly analogous
to Justice’s Brennan’s “situations.” Ward v. Village of
Monroeville, 409 U.S. 57, 93 S. Ct. 80, L.Ed. 2d 267
(1972). In Ward, “the test is whether the [judge]-
mayor’s situation”:
112a
...1s one “which would offer a possible tem-
ptation to the average man as a judge .. .
not to hold the balance nice, clear, and true .
”
(Ward, 409 US. at 60, citing Tumey)
In a word, Alizia simply restates Ward.
Justice Brennan’s “situations” (which would “offer a
possible temptation to the average man as a judge
not to hold the balance nice, clear, and true” [Ward]),
are the “circumstances that would bring the court’s
impartiality into question” (Alizia). As Justice
Brennan explained: such “temptation” exists when a
mayor/judge’s “executive responsibilities for village
finances may make him partisan to maintain the
high level of contribution from the mayor’s court.”
This, too: “. . . is a ‘situation [i.e.. ‘circumstance’ in
which an official perforce occupies two practically
and sericusly inconsistent positions, one partisan
and the other judicial, (and) necessarily involves a
lack of due process of law” (Jd., 409 U.S. at 60).
Therefore, under Alizia-Ward: “a disinter-
ested and impartial judicial officer [is] guaranteed by
the Due Process Clause of the Fourteenth
Amendment.” Ward. 409 U.S. at 57. To the extent
Tumey and Ward involve mayor-court circumstances,
the instant record introduces a litigant-Judge. There
is a bevy of indicia as to Respondent’s
adversarial/accusatory conduct, behavior more
indicative of an aggressive litigant than the
“impartial disinterested decision-maker” guaranteed
113a
by Due Process under 1616 Second Avenue Res-
taurant, (supra).
So contrary to what the First Department
found below, Alizia’s circumstances-of-impartiality
test, requiring disqualification is easily satisfied on
this record. If the record contained nothing else,
Respondent Judge’s having physically thrown the
court file at Petitioners’ counsel is so outrageous, it
impugns Respondent’ impartiality by itself [R. 315,
lines 20 — 22; R..317, line 9; R. 333, lines 5 — 10].
That Respondent Judge did so after having already
allegedly recused himself, further undermines both
the IAS Court’s analysis and the Appellate Division’s
dearth of reasoning or even discussion. Both
decisions are written as if these facts and many other
disqualifying circumstances/situations did not exist.
Respondent Judge characterized the Peti-
tioners and their attorney of lying: He accused
Petitioners’ counsel of being a “liar” [R. 312] of being
“slippery” [id]. And for no apparent reason accused
Petitioner himself of lying even as everything
Petitioner said turned out to be true:
THE COURT: I'm going to give you one
chance to tell me the truth.
MR. KYLE: About what?
THE COURT: About your going to law
school . . . if you don’t tell me the truth,
I’m going to look into it further.
ll4a
MR. KYLE: I think you should just “look
into it further,” except for dates. [Supp-R.
553].
With no conceivable proof, Respondent
accused Petitioner of perjury, conspiracy and,
essentially, theft by altering the IAS Court: “That
[Petitioners] “do not know what happened to the
$190,000, even if true, is not grounds to vacate the
stipulation. The court has no doubt [Petitioners] have
failed to disclose something on this topic.” [R. 232].
Short of out-right theft, he accused Petitioners of
attempted theft: “[Petitioners] hope to get more
money” [R. 224] and Petitioners’ counsel of
attempted theft: “[Petitioners] and new counsel .. .
changed their mind [sic] to get more money now that
[Riverside] has paid Kyle. . .” [R. 226]. “These
observations also coming post-recusal.
Clearly, if Respondent Judge harbored these
malignant sentiments toward Petitioners or their
attorneys, not only is disqualification required, but
Respondent's June 20%, 2007 recusal couldn't
possibly purge conduct of pre-recusal non-
impartiality.
Respondent placed the factually-impossible
assertion into the record (and did not withdraw it
before the IAS Court) that he was unaware of the
stay of proceedings. [R. 110; lines 3 — 4.] On appeal,
Respondent Judge failed to explain his irrefutable
knowledge of the stay evidenced by: Riverside’s
counsel's having informed him of the stay twice on
11Sa
the record, [Supp-R. 478 - 479]; Justice Cahn’s
notation of service on OSC cover page [R. 67]; and
Respondent’s deprecations over his mistaken middle
initial on the OSC [Supp-R. 481; R. 113, lines 23 -
24] .20
Respondent submitted his written opinions of
law to the IAS Court in response to Petitioners’
application. Respondent’s submissions to the IAS
Court contained the factually-impossible statement
that Petitioners failed to move for rehearing [R.229
[top]; R 110 (bottom) - 111 (top) and Resp’s Br., at p.
8].
Then, after leaving this materially erroneous
statement uncorrected in the IAS Court proceedings
which resulted in sanctions; and again placing the
recklessly incorrect statement into Respondent
Judge’s brief before the Appellate Division; the
Attorney General was finally forced to withdraw the
allegation.2! (Exhibit “F”). Notwithstanding the
20 Amazingly, the [AS Court imposed sanctions in part
based on how the record “suggest Respondent Judge was not
aware of the stay.” [R. 19 - 20]. Yet not only does the records
render Respondent’s knowledge of the stay conclusive, it does so
in the IAS Court’s own hand writing: “Ronald Hart, Esvq.,
advises that the Attorney General has been advised of the time
and place of this application.” (R. 67].
21 Respondent Judge’s opinion submitted in response to
this proceeding, stated in part:
In the interim, and instead of appealing or moving to
renew or reargue, respondents [Petitioners herein], by
counsel, brought an Article 78 proceeding against Judge
Wendt and this court to compel us to rule in their favor
1l6a
Attorney General’s written retraction, the Appellate
Division refused to take judicial notice over
Respondent’s denial of rehearing (Exhibit “H”.)
Respondent illegally threatened Petitioners’
prior counsel with baseless sanctions and dis-
ciplinary reprisal if the Mandamus issues weren't
“settled” [R. 110-111]. Then, of course, on appeal
never denied the threats were leveled without lawful
foundation. [Resp. br., pp. 1 - 37]. Respondent never
denied unlawfully presiding over Petitioners’ rights
three times after recusal and never justified it before
the Appellate Division [Id., 1 - 37]. Respondent
further confessed he had a “serious. ethical
conundrum” [R. 109, 126], then argued to the IAS
Court that Petitioners’ claim that he had just such a
conundrum (conflict) was not only “frivolous” but
“sanctionable” [R. 225].
Respondent summoned armed court officers
to surround Petitioners’ counsel for no other reason
and award them hundreds of thousands of dollars in
attorney fees. [R. 229.]
After this utterly preposterous statement was placed
into the record by Respondent Judge and submitted in opposition
to Petitioners’ instant Article 78 litigation, it served as part of
the basis of the LAS Court’s imposition and sanctions. The
Respondent Judge’s absurd statement was not retracted by
Respondent Judge until after it was again submitted by him in
filings with the Appellate Division. [See Resps’ Opposition br., at
1- 32] and Exhibit “F” attached.
117a
than “in case you get out of line” [R. 312 line 20; R.
332 — 333; R. 31]; derisively warned Petitioners’
attorney “... you will answer yes or no. Or I will have
a whole bunch of officers here and I will find out
what's going on” [R. 312]; barked orders such as “You
will stand when you speak to the Court .. . Or that
will be the last time you will be here.” [R. 312];
allegedly recusing himself in June 20th, 2007 then
apparently un-recusing himself a month later to
preside over Petitioners’ July 9th, 2007, OSC [R. 162,
223 -224], all the while haranguing Petitioners’
counsel about his June 20th, 2007, recusal in August!
[R. 310 — 320]:
THE COURT: [Calling] 736 Riverside Drive
against Kyle—step up, Appear-
ances.
MR. KYLE: For the Respondents, Robin H. Kyle.
THE COURT: Do you have a Notice of Appearance
in the file, Mr. Kyle
MR. KYLE: I filed the motion; I don’t have an
appearance filed.
THE COURT: Are you appearing in this case?
MR. KYLE: Yes, Your Honor.
THE COURT: Then you will file a Notice of
Appearance
MR. KYLE:
The COURT:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
The COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
118a
I'm sorry.
Then you will file a Notice of
Appearance
I have a Notice of Appearance on
77281/06. But I recused myself from
that case. So why do I see it at all,
Mr. Kyle?
I have not seen the order of recusal.
You will stand when you speak to
the Court.
| apologize Your Honor...
Or that will be the last time you will
be here.
| have not seen an order of recusal.
I’m sorry.
You don’t even know about it? Do
you—you have a client also by the
name of Mr. Kyie?
I do
Any relation to you?
Yes.
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
119a
What?
Brother.
He didn’t tell you that I recused
myself?
He told me that there was no Order
of Recusal. He said that you
indicated on the record—
[interposing] There is no Order of
recusal? What does that mean?
That there is no signed Order of
recusal.
It wasn’t enough that I issued it
orally? Are you playing games with
me? Are you trying to misrepresent
the record?
Oh, I don’t—
I told you, mister—and you will
speak only after I have spoken and
you will answer my questions that. I
want to know if you knew that I
recused myself, and so you, in a
slippery way, say that you don’t
have a written Order of recusal.
Does that mean you know that I!
recused myself, yes or no? And
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
120a
you will answer yes or no. Or I will
have a whole bunch of officers here
and I will find out what’s going on.
Answer.
I don’t understand the question.
What do you mean?
Do you know that I recused myself,
yes or no?
I know that you said that. [But |]
don’t know—
[interposing] So—so when you said
that you didn’t know that I recused
myself were you lying to me? You
were lying to me.
No that’s—that’s totally false. That
is inaccurate and you are berating
me just like you berated my
predecessor—
linterposing] Okay.
Uh for reasons that are set forth
[interposing] Sit.
That
Sit.
MALE VOICE:
THE COURT:
MALE VOICE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
12la
Lieutenant, this is Mike in Part “O”,
can you send two officers up here?
In case you get out of line.
—send two officers up here. All
right? Thank you.
Have you ever been held in
contempt before?
Never, Your Honor. I’ve been practi-
cing law—
[interposing] Okay we" you don't
want this to happen to you for the
first time. Okay.
I have never—
[interposing] You will speak when I
speak to you and not otherwise. Do
you understand me?
I do.
Good. Now I’m going to ask the
question again, do you know that I
recused myself in 77281 of ’06?
I know that you said on the record
that you were going to recuse
yourself.
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
THE COURT:
THE COURT:
MR. KYLE:
122a
That I was going to recuse myself?
I'd have to look at the record to
recall exactly what you said. The
record, as you know, is very
voluminous. But I recall reading in
a transcript where you said that you
were going to.
And then I sent the case to Part X.
look at the front of the file and tell
me whether that’s not a written
Order on the file recusing myself.
You're talking about the jacket?
I am.
I haven’t seen the jacket before—for
the record. And that’s not a lie and I
haven't said anything to the Court
that is untrue or with the intention
of misleading the Court
Do you see it at the bottom?
Court, .. . and I think it’s: Lebovits,
recuses itself because of—I can’t
read that word. And it looks
like: 78US—Lebovits
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
123a
Pll right. T’ll read it for you. May
I have it back, please?
I want the record to reflect that the
file was essentially thrown at coun-
sel’s desk by Your Honor.
“I recu—Court Lebovits, in paren.,
recuses itself because of paren.,
discontinued, close paren., Article
78 verses Lebovits and Wendt.
Okay. So now that I have
recused myself, that you very much
* * *
. . . And if you read the file, my
understanding is of the rule, and
you have recused yourself, then
what you do is it goes for a
reassignment where it sits some-
where else.
Mm hmm.
Uh, because that’s where the matter
had been sent as I think Your
Honorable just said on the record
Okay.
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
124a
So apparently uh you are pro-
ceeding on the case even though
you have recused yourself. Because
I filed a Motion. Am I correct?
I get to ask the questions. You get to
give the answers.
* * *
So, ... I do have a question: Js Your
Honor, has recused itself, or the
Court has not recused itself?
On 77281 of ’06, yes. I signed the
stipulation though in 68658 of ’03.
We could talk about that index
number That’s the one in which I
signed the stipulation, right?
Well, the stipulation, Your Honor—
[interposing] Take a look. Take a
look. It’s your exhibit—
I’m looking at it. I’m looking at it
Your Honor. And the stipulation
has three index numbers on it. And
the stipulation makes reference
to all of the index numbers that are
referenced on the first page of the
stipulation. And my Notice of
Motion admittedly has the index
number 77281/06, but the
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. aYLE:
THE COURT:
125a
Supporting [AffirmationJj—on the
very next page has the other index
numbers, namely, 105603/07, 66 I’m
sorry, 68658/03 and 77281/06. So,
respectfully I just—-I don’t know
where we're going with this, uh,
colloquy about the index numbers.
Don’t I have the right to know what
you're asking for?
I—I think you do have a right to
know what I’m asking for. I’m just
having trouble understanding your
misunderstanding that where the
ambiguity is—
finterposing] don’t—don’t tell me
that—
— in what I’m asking for.
Don’t tell me, Mister, that I have a
misunderstanding. Okay?
You said that, Your Honor, I didn’t
say that.
Don’t accuse me of anything.
Well, uh—
[interposing] I did not speak to you.
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
126a
You did. You did—
I am telling you that—
You did speak to me.
That is—that is an Order. Okay?
I can’t understand: what's “the
Order’?
Don’t accuse me of anything. Okay.
What is your argument?
Well, I think you should disqualify
yourself right now because you said
“Don’t accuse me of anything” and if
you've had the time to read this
motion, I accuse you of a lot of
things. And I have done that in
writing. So I’m in violation of your
Oder before you issued it. And I
don’t think that, respectfully, it’s a
valid Order anyway. If you violate
the law or if you, uh, apply the law
incorrectly, uh, in representing my
client I have not only a right but a
duty to make that argument. And
that’s the argument I’m making this
morning.
a * *
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
127a
Okay on which case do you think
there was a Stay?
77281/06
All right.
The—the number that you read was
the—the [mandamus]—
[Interposing] that was the one on
which I recused myself and didn’t
participate.
You didn’t participate in which
proceeding?
77281 of ’06.
So you’ve recusd yourself in only
one of the three index numbers, is
that right?
How do you reconcile this issue?
Your client, and I’m sure that he
will tell you this, came to be with a
Stipulation and asked me to sign it,
by Mr. Hart. So—
I—I don’t think that’s born out in
the record. I mean that’s—that’s a
selective and inaccurate statement.
THE COURT:
MR. KYLE:
THE COURT:
THE COURT:
MR. KYLE:
THE COURT:
128a
[Hart] did not come to me with a
Stipulation? Did not come to anyone
with a Stipulation?
Apparently the way I read the
record you ordered them to settle
the case. And you—you indicated
as much on the record, And you
indicated on the record that you
were being asked to help resolve the
case, although my conversations
with Mr. Hart indicate that he
didn’t ask you, to do that. And if
Mr. McCourt asked you to do that
he did it in violation of the Supreme
Court Stay.
Okay, I’m sorry that if you believe
that, I’m sorry that you believe that.
Okay. What else?
A * a
Why do you want to vacate the
stipulation?
Because it is illegal. It is void. It
was not entered in my client’s
interest.
Your client was happy with it at one
time.
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
129a
My client was—what makes the
Court say he was happy? I don’t see
him saying he’s happy anywhere in
this record.
He was in court when everyone
signed it.
Right. After [Hart] was threatened
with disciplinary proceedings by
Your Honor—.
[Interposing] Your client was not
threatened.
No, his lawyer was threatened with
disciplinary proceedings by Your
Honor. Can we agree on that much?
No.
Okay.
Of course not.
Well, you know I—the record is that
the record is. I mean you said: “I’m
thinking about filing disciplinary
charges against you—I’m paraphra-
sing but the actual language is in
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
130a
the record and —and it’s quoted in
the papers that I have filed. I mean
that sounds like a threat to me
All right, well—
So I mean—so he’s advised by his
lawyer that hey you know: my law
practice is going to be ruined, I’m
being threatened wit disciplinary
proceedings, by the Court. [Hart]
went to a_ well-known [ethics
professor]—
[Interposing] Okay show me where
it says in the record, word for word,
that I am not threatening him with
a disciplinary issue. I’m pretty sure
I said that. Ah, Exhibit “F’. . . Well,
so it’s page four, 12 and 13: I am
not—I have no intention of filing
disciplinary charges against you.
Okay? Mr. Hart: Okay, right. The
Court: You good with that?
i * a
Okay the part that you didn’t read
into the record, Your Honor, is
where you say: I think your lawsuit,
the [mandamus] is frivolous because
I think your lawsuit is sanctionable. -
And I think that your lawsuit could
lead you to go to the disciplinary
THE COURT:
MR. KYLE:
l3la
committee and yet I'm thinking
about filing a disciplinary charges
against you personally. I wonder,
frankly—frankly if you're capable of
doing this, what else you're capable
of. So I essentially trust you not and
I don't trust you even a little bit.
Okay? Have you heard me loud and
clear?
Now that language by the Court
sounds like a threat to me. Okay?
Now, after you succeeded in getting
Mr. Hart to settle a counterclaim for
attorneys fees that had been stayed
by the Supreme Court—
[Interposing] Why did—why did |
care about that? Why would I, in a
million years, have wanted that to
be settled, or care whether it was
settled?
Because it was the issue—the
etiology of the [mandamus]
proceeding. That's what the
[mandamus] proceeding was all
about. And once you moot that
[fees] issue there isn’t much left of
the [mandamus] proceeding. And
yet my client is sitting here without
a lawyer. He doesn’t get his Stay
that is mandated by CPLR §321(c),
which says that no proceedings may
THE COURT:
MR. KYLE:
132a
be taken against a party who's
attorney has been removed or
disqualified for any reason. And
you must give notice, not only to the
other side, but you have to give
notice to the party who’s attorney is
disqualified, and you have to tell
them that they have at least 30
days to get an attorney.
Mary. Kyle was not in court on
that date and neither was Kathryn
Gilbert, and the Order say
absolutely nothing about them
receiving notice that they are to
appoint a new attorney. The Order
says absolutely nothing about them
or whatever. All it says and it short-
changes what is supposed to be a
[CPLR §321(c)] Stay.
Are you representing anybody else
other than William Kyle?
7 7 *
Um so you have not only a violation
of CPLR §321(c) in that respect, but
the Court then takes action in the
case, sending it to Part X as I think
you indicated you did. And you
can’t do that—
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
THE COURT:
MR. KYLE:
133a
[Interposing] But—but the proc—
but the [mandamus] was withdrawn
It doesn’t matter—
I recused myself, sent it to Part X,
adjourned the case—
[Interposing] Which you shouldn't
have done.
I shouldn't have done that either?
No. You shouldn’t do anything once
you have caused his attorney to
have—to be removed [per [CPLR
§321(c)]. ..
All right. All right.
—from my reading of the record,
you participated in fully. I mean
you state on the record: Mr. Hart
you told me last week this case was
going to be settled. [Hart] says: No, J
didnt. I wasn’t there and
apparently [it] was not on the
record; it was in the hallway or
wherever it occurred—or on the
phone. And so ! don’t know what
happened. All I know is what I read
in the record. So you should not
have sent the matter to Part X.
134a
And if you recuse yourself then I
think you’re done. But we’re here
now at a hearing. You've called one,
two—at least two officers up here,
for what I have no idea, except that
you think youre’ going’ to
intimidate me, and I can assure you
you are not. You threw a file at me.
THE COURT: ‘There we go.
MR. KYLE: That happened. You—you’re not
denying that that’s what you did?
THE COURT: Okay.
MR. KYLE: Okay.
THE COURT: Do you have anything else to say?
a“ . «
THE COURT: I'll hear from [landlord’s] counsel.
MR. EHRLICH: .. .We did not submit any
opposition papers...
MR. KYLE: ... Do we need to go back to P
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