Appendix — Weinstock v. Weinstock

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APPENDIX A — MEMORANDUM OF THE SUPREME

COURT OF NEW YORK, APPELLATE DIVISION,

SECOND DEPARTMENT DATED SEPTEMBER 28, 1998

Israel WEINSTOCK, Appellant,

v.

Esther WEINSTOCK, Respondent.

Supreme Court, Appellate Division,

Second Department.

Sept. 28, 1998.

* * *

Before BRACKEN, J.P., COPERTINO, PIZZUTO and

ALTMAN, JJ. :

MEMORANDUM BY THE COURT.

In an appeal by the plaintiff from an order of the Supreme

Court, Queens County (Golar, J.), dated March 26, 1997,

which was determined by decision and order of this court

dated May 11, 1998, the plaintiff, an attorn y, and counsel

for the respondent were directed to show cause why an order

should not be made and entered imposing such sanctions and

costs, if any, against the plaintiff, pursuant to 22 NYCRR

130-1.1(c), as this court might deem appropriate.

On the court’s own motion and on the papers filed in

opposition or relation thereto, it is

2a

Appendix A

ORDERED that within 20 days after service upon him

of a copy of this decision and order with notice of entry, the

plaintiff Israel Weinstock is directed (1) to personally pay

costs in the amount of $3,000 to counsel for the defendant

Esther Weinstock, and (2) to personally pay a sanction in

the amount of $10,000 to the Lawyers’ Fund for Client

Protection established pursuant to State Finance Law § 97-t;

and it is further,

ORDERED that the Clerk of the Supreme Court, Queens

County, shall enter judgment accordingly (see, 22 NYCRR

130-1.2). ~

The plaintiff, who is an attorney representing himself,

pursued an appeal which was “completely without merit” (22

NYCRR 130-1.1[c][1]). We find that the plaintiff's assertion

that his intent was to clear his name in no way diminishes

the fact that the appeal was meritless. We believe that merit

must be judged with reference to whether a particular course

of litigation is or is not designed to obtain some real form of

relief as a remedy for some cognizable wrong. The appeal

taken by the plaintiff was completely without merit under

this standard, and, in the absence of any other concrete

motivation, this appeal can only have been intended to harass

the defendant within the meaning of 22 NYCRR 130-

1.1(c)(2), by needlessly forcing her to incur attorney’s fees.

We therefore award the maximum authorized amount as

a sanction for this conduct (see, 22 NYCRR 130-1.1), calling

to mind that frivolous litigation causes a substantial waste of

judicial resources to the detriment of those litigants who come

to the court with real grievances. We also award costs in the

Snare eee

3a

Appendix A

sum of $3,000 in light of the proof as to the attorney’s fees

: incurred by the defendant in opposing the appeal, payable to

her counsel.

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4a

APPENDIX B — ORDER OF THE NEW YORK

SUPREME COURT, QUEENS COUNTY

DATED MARCH 26, 1997

Order

NEW YORK SUPREME COURT — QUEENS COUNTY

Present: Honorable SIMEON GOLAR IA PART 24

Justice

Index Number 15982 1983

Motion Date December 2, 1996

"ae eae.

ISRAEL WEINSTOCK

~— against —

ESTHER WEINSTOCK

The following papers numbered | to 11 read on this motion

by plaintiff, to vacate an order of this court (Modugno, J.H.O.)

dated March 27, 1989.

Papers

Numbered

Notice of Motion — Affidavits —

ROSIN soos as scetazctinesseenteaerteeeads 1 —7

Answering Affidavits — Exhibits —....... 8 —10

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Appendix B

Upon the foregoing papers it is ordered that the motion

is denied.

In the March 27, 1989 order that plaintiff now seeks to

vacate, the court (Modugno, J.H.O.) set aside the parties’

separation agreement, denied plaintiff's application for a

conversion divorce based on that agreement and dismissed

the cause of action for that relief. That order was affirmed by

the Appellate Division, Second Department, by decision and

order dated November 13, 1990. (Weinstock v Weinstock, 167

AD2d 394.) Thereafter, proceedings continued on defendant’s

counterclaim for divorce and equitable distribution. A trial

on the issues of equitable distribution and maintenance began

before this court in January 1993 and was concluded in May

1994. The final judgment of divorce entered herein is dated

April 20, 1995. The instant application was initially made on

July 24, 1996. g

Plaintiff bases this motion pursuant to CPLR 5015 ona

claim that newly-discovered evidence reveals fraud on the

part of defendant and her attorneys. The “newly-discovered”

evidence relied upon includes an April 1982 letter from

defendant to plaintiff, an October 25, 1990 grievance

committee complaint which plaintiff was aware of no later

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relief pursuant to CPLR 5015(a)(2). To be considered newly-

discovered evidence under CPLR 5015(a)(2), the matter must

5 have been unavailable to the moving party at the time of trial

4 and not discoverable in time to move for a new trial (CPLR.

4 than April 1991, and, primarily, testimony by defendant at

| the trial of this matter on the issues of equitable distribution

i and maintenance in 1993-1994. None of these categories

‘ suffice as newly-discovered evidence entitling plaintiff to

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Appendix B

4404), but must have existed at the time the court rendered

the order or judgment which is the subject of the motion.

(See, Structural Concrete Corp. v George Campbell Assocs.

Corp., 224 AD2d 516; 5 Weinstein-Korn-Miller, NY Civ Prac

para 5015.07.) In this case, the 1982 letter was available to

plaintiff during the 1988-1989 trial of his action for a

conversion divorce while the complaint and trial testimony

were not yet in existence.

To the extent plaintiff relies on the provision of CPLR

5015(a)(3) allowing relief from an order upon the ground of

fraud of an adverse party, the application is still deficient.

Although no specific time period for making such a motion

is set forth in CPLR 5015(a)(3), the court will only grant

relief from a judgment or order within a reasonable time. (See,

5 Weinstein-Korn-Miller, NY Civ Prac para 5015.16.) The

time lapse between the 1989 order of J.H.O. Modugno and

this 1996 motion is clearly unreasonable. Even accepting

plaintiff's contention that the purported fraud was not

evidenced until defendant’s testimony before this court in

1993-1994, no excuse has been given for the unreasonable

delay of more than two years between the conclusion of the

equitable distribution trial in May 1994 and the making of

this motion in July 1996. Thus, plaintiff failed to make this

motion within a reasonable time and the relief sought is

precluded.

Moreover, even if the court were to reach the merits of

plaintiff's application, the motion would be denied. Plaintiff

has not set forth any evidence sufficient to demonstrate that

the decision of J.H.O. Modugno was procured by fraud on

the part of defendant. (See, Greater New York Sav. Bank v.

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Appendix B

Feder, 224 AD2d 661; Abacus Real Estate Finance Co. vy.

P.A.R. Constr. and Maintenance Corp., 128 AD2d 821.)

Furthermore, plaintiff's attempt to reargue the entire

protracted litigation history between the parties and to

catalogue all of his complaints regarding defendant’s prior

attorneys under the guise of this motion is inappropriate. In

addition, the overwhelming thrust of plaintiff's argument is

addressed to the Appellate Division’s affirmance of J.H.O.

Modugno’s order, centering on the assertions that the

Appellate Division improperly made new factual findings and

was “duped” by defendant’s attorney. Such contentions have

no bearing on whether or not the decision of J.H.O. Modugno

was based on fraud by defendant and, furthermore, are not

within the purview of this court to review.

Dated: MAR 26 1997 s/ Simeon Golar

HON. SIMEON GOLAR JS.C.

8a

APPENDIX C — ORDER OF THE COURT OF

APPEALS FOR THE STATE OF NEW YORK

DENYING MOTION FOR LEAVE TO APPEAL

DATED DECEMBER 22, 1998

State of New York,

Court of Appeals

At a session of the Court, held at

Court of Appeals Hall in the City

of Albany on the twenty-second

day of December 1998

Present, HON. JUDITH S. KAYE, Chief Judge, presiding.

2 Mo. No. 1352

Israel Weinstock,

Appellant,

v.

Esther Weinstock,

Respondent.

A motion for leave to appeal to the Court of Appeals in

the above cause having heretofore been made upon the part

of the appellant herein and papers having been submitted

thereon and due deliberation having been thereupon had, it

is

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9a

Appendix C

ORDERED, that the said motion be and the same hereby

is denied with one hundred dollars costs and necessary

reproduction disbursements.

s/ Stuart M. Cohen

Stuart M. Cohen

Clerk of the Court

10a

APPENDIX D — RELEVANT RULE

22 N.Y.C.R.R. § 130-1

§ 130-1.1 Costs; Sanctions

(a) The court, in its discretion, may award to any party

or attorney in any civil action or proceeding before the court,

except where prohibited by law, costs in the form of

reimbursement for actual expenses reasonably incurred and

reasonable attorney’s fees, resulting from frivolous conduct

as defined in this Part. In addition to or in lieu of awarding

costs, the court, in its discretion may impose financial

sanctions upon any party or attorney in a civil action or

proceeding who engages in frivolous conduct as defined in

this Part, which shall be payable as provided in section

130-1.3 of this Part. This Part shall not apply to town or

village courts, to proceedings in a small claims part of any

court, or to proceedings in the Family Court commenced

under Article 3, 7, 8 or 10 of the Family Court Act.

(b) The court, as appropriate, may make such award of

costs or impose such financial sanctions against either an

attorney or a party to the litigation or against both. Where

the award or sanction is against an attorney, it may be against

the attorney personally or upon a partnership, firm,

corporation, government agency, prosecutor’s office, legal

aid society or public defender’s office with which the attorney

is associated and that has appeared as attorney of record. The

award or sanctions may be imposed upon any attorney

appearing in the action or upon a partnership, firm or

corporation with which the attorney is associated.

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Appendix D

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be

supported by a reasonable argument for an extension,

modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the

resolution of the litigation, or to harass or maliciously injure

another; or

(3) it asserts material factual statements that are false.

Frivolous conduct shall include the making of a frivolous

motion for costs or sanctions under this section. In

determining whether the conduct undertaken was frivolous,

the court shall consider, among other issues, (1) the

circumstances under which the conduct took place, including

the time available for investigating the legal or factual basis

of the conduct; and (2) whether or not the conduct was

continued when its lack of legal or factual basis was apparent,

should have been apparent, or was brought to the attention

of counsel or the party.

(d) An award of costs or the imposition of sanctions may

be made either upon motion in compliance with CPLR 2214

or 2215 or upon the court’s own initiative, after a reasonable

opportunity to be heard. The form of the hearing shall depend

upon the nature of the conduct and the circumstances of the

case.

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Appendix D

§ 130-1.1-a Signing of Papers

(a) Signature. Every pleading, written motion, and

other paper, served on another party or filed or submitted to

the court shall be signed by an attorney, or by a party if the

party is not represented by an attorney, with the name of the

attorney or party clearly printed or typed directly below the

signature. Absent good cause shown, the court shall strike

any unsigned paper if the omission of the signature is not

corrected promptly after being called to the attention of the

attorney or party.

(b) Certification. By signing a paper, an attorney or

party certifies that, to the best of that person’s knowledge,

information and belief, formed after an inquiry reasonable

under the circumstances, the presentation of the paper or the

contentions therein are not frivolous as defined in subsection

(c) of section 130-1.1.

§ 130-1.2 Order Awarding Costs or Imposing Sanctions

The court may award costs or impose sanctions or both

only upon a written decision setting forth the conduct on

which the award or imposition is based, the reasons why the

court found the conduct to be frivolous, and the reasons why

the court found the amount awarded or imposed to be

appropriate. An award of costs or the imposition of sanctions

or both shall be entered as a judgment of the court. In no

event shall the amount of sanctions imposed exceed $10,000

for any single occurrence of frivolous conduct.

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Appendix D

§ 130-1.3 Payment of Sanctions

Payments of sanctions by an attorney shall be deposited

with the Lawyers’ Fund for Client Protection established

pursuant to section 97-t of the State Finance Law. Payments

of sanctions by a party who is not an attorney shall be

deposited with the clerk of the court for transmittal to the

Commissioner of Taxation and Finance.

§ 130-1.4 Application to Officers Other Than Judges of

the Courts of the Unified Court System

The powers of a court set forth in this Part shall apply to

judges of the Housing Part of the New York City Civil Court

and to hearing examiners appointed pursuant to section 439

of the Family Court Act, except that the powers of F amily

Court hearing examiners shall be limited to a determination

that a party or attorney has engaged in frivolous conduct,

which shall be subject to confirmation by a judge of the

Family Court who may impose any costs or sanctions

authorized by this Part.

§ 130-1.5 Exception

This rule shall not apply to requests for costs or attorneys’

fees subject to the provisions of CPLR 8303-a.

* * * *

l4a

APPENDIX E — NOTICE OF MOTION FOR LEAVE

TO APPEAL TO THE COURT OF APPEALS

DATED NOVEMBER 1, 1998

COURT OF APPEALS : STATE OF NEW YORK

Appellate Division,

Second Department

Case No. 97-04292

ISRAEL WEINSTOCK,

Plaintiff-Movant,

—against—

ESTHER WEINSTOCK,

Defendant-Respondent.

NOTICE OF MOTION FOR LEAVE TO APPEAL

TO THE COURT OF APPEALS

SIRS:

PLEASE TAKE NOTICE, that upon the within Affidavit

of Israel Weinstock, Esq., dated November 1, 1998, and the

Exhibits thereto, Plaintiff-movant herein Israel Weinstock

will move this Court, at Court of Appeals Hall, 20 Eagle

Street, Albany, New York, on the 15th day of November,

1998, for permission to appeal to this Court from an Order

of the Appellate Division, Second Department, entered

September 28, 1998, which Order unjustifiably and

unreasonably, and in a manner strikingly demonstrating the

15a

Appendix E

glaring lack of standards in this area of the law, imposed the

maximum allowable $10,000.00 in sanctions, and $3,000.00

in costs, on movant, an attorney and counselor at law, whose

July 29, 1996 CPLR 5015 Motion, for which he was

sanctioned, brought to light respondent’s and her former

attorneys’ deliberate fraud on the Courts below, clearly

justifying redress pursuant to CPLR 5015 (a) (3), which fraud

only became evident in a 1994 Equitable Distribution trial,

Judgment on which was entered in 1995.

Weinstock, Joseph, Klatsky

Nisonoff & Schwartz, LLP.

Attorneys for Movant

140-06 Rockaway Bch. Blvd.

Belle Harbor, N.Y. 11694

(718) 318-1000

TO: Paul Siminovsky, Esq.

Attorney for Defendant-Respondent

Jacoby & Meyers

423 Fulton Street

Brooklyn, N.Y. 11201

(718) 858-1474

16a

APPENDIX F — AFFIDAVIT IN SUPPORT OF LEAVE

TO APPEAL DATED NOVEMBER 1, 1998

COURT OF APPEALS : STATE OF NEW YORK

Appellate Division

Second Department

Case No. 97-04292

ISRAEL WEINSTOCK,

Movant,

—against—

ESTHER WEINSTOCK,

Respondent.

AFFIDAVIT IN SUPPORT OF MOTION

FOR LEAVE TO APPEAL

STATE OF NEW YORK )

2:

COUNTY OF QUEENS )

ISRAEL WEINSTOCK, an attorney duly admitted to the

practice of law before the Courts of this State, hereby duly

deposes and swears under the penalties of perjury:

1. 1am the former plaintiff-appellant and movant herein.

I respectfully submit this affidavit in support of the within

motion pursuant to Rule 500.11 of this Court for leave to

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Appendix F

appeal, Rule 500.11 (d) (1) (i), from the Appellate Division,

Second Department’s Decision and Order dated September

28, 1998 requiring movant to pay the maximum allowable

$10,000.00 in sanctions to the Lawyers’ Fund for Client

Protection and $3,000.00 in costs to respondent’s counsel.

See Exhibit “A” hereto.

2. The Questions presented for Review by this Honorable

Court, Rule 500.11 (d) (1) (ii), are:

(1) When respondent’s prior attorneys constantly

played “fast and loose with the Courts” in two

successive trials, and two appeals to the

Appellate Division herein, providing a clear

basis' which both Courts below, in rejecting

Movant’s July 23, 1996 CPLR 5015 (a) (3)

motion, the underlying application herein, failed

to entertain, was the Appellate Division’s

imposition of the said $10,000.00 in sanctions

and $3,000.00 in costs on movant clearly

unsupportable and unjustified?, and

(2) Given the complete lack of standards

encumbering this State’s judiciary in the

sanctions area’, resulting in wholly arbitrary

1. See “The Courts Have Inherent Power to Remedy Fraud”,

{4 45, et seq., infra.

2. See “How Judges Can Enforce Civility By Punishing

Frivolous Conduct”, N.Y.L.J., August 25, 1998:

(Cont’d)

18a

Appendix F

differentials between the $10,000.00 result

herein; that in litigation carried on by Heller,

Horowitz & Feit, P.C., who, as seen at 4 38

et seq., infra, filed a minimal twenty-five (25)

wholly frivolous appeals, none of which had the

slightest merit, but were intended solely as

dilatory blocks to the administration of justice,

resulting in total sanctions by the Appellate

Division of solely $1,500.00; and, e.g., in such

Appellate Division decisions such as Liker vy.

Grossman, 175 A.D.2d 911 (2nd Dept. 1991),

in which the plaintiff, found, like movant herein

(herein, completely erroneously), to have filed

a wholly spurious appeal, was ordered to pay

the defendant’s counsel a total $9,243.00, and a

total $757.00 to the Lawyers’ Fund for Client

Protection’ did such complete lack of standards

(Cont'd)

“What is astounding about [Valdez v. Cibulski, 17

Misc.2d 49 (Supreme Court, Queens Co. 1998 [citing

Santegolo v. Goidman, Sachs & Co., 169 A.D.2d 692

(Ist Dept. 1991)] is that it appears to be a rarity. There

are few other published decisions in New York

sanctioning an attorney for a frivolous legal theory or

the misrepresentation of the facts during a trial. The

absence of guidance on this subject suggests that the

judiciary is sparingly using its discretionary power to

sanction”. (emphasis added).

3. Should there not be some correlation between the costs

incurred by opposing counsel and the sanctions themselves? As seen

at § 21, infra, the Appellate Division sanctioned movant for solely

one (1) appeal, flatly conced.ng that movant’s first appeal herein, in

1989, was fully meritorious. The “substantial waste of judicial

(Cont'd)

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Appendix F

and uniformity deny movant his Constitutional

guaranty of Equal Protection of the Law?

3. The Procedural History affecting this Motion, Rule

500.11 (d) (1) (iii), consists of:

(i) The within Order of the Appellate Division

(Exhibit “A” hereto), entered September 28,

1998, sanctioning movant a total $1 0,000.00, but

violating 22 N.Y.C.R.R. § 130-1.2’s requirement

of a statement of “the reasons why the court

found the conduct to be frivolous” and imposing

$3,000.00 in costs, which Order was served upon

movant by the Appellate Division on or about

October 5, 1998;

(ii) Movant’s July 20, 1996 motion pursuant to

CPLR 5015, denied by the Supreme Court,

Queens County (Golar, J.) March 26, 1997

(Exhibit “B” hereto); the March 26, 1997 said

Supreme Court Order being affirmed by the

Appellate Division May 11, 1998 (Exhibit “C”

hereto).‘

(Cont'd)

resources to the detriment of those litigants who come to the court

with real grievances,” stressed by the Court below, thus applies

twenty-five times more to Heller Horowitz and Feit, P.C. than to

movant. Nevertheless, the Appellate Division sanctioned that firm

precisely one-twenty-fifth of one-tenth of what it imposed on movant

herein. See ¥ 39, infra.

4. Movant’s July 20, 1996 motion sought to vacate an Order of

the Appellate Division entered November 13, 1990, which affirmed

(Cont'd)

20a

Appendix F

4. This Court’s Jurisdiction, Rule 500.11 (d) (1) (iv),

CPLR § 5602 (a) (1) (1) is based on the Appellate Division’s

aforementioned September 28, 1998 Order, which finally

determined this action, and is not appealable as of right.

A. Public Importance Movant's Rule, 5015 (a) (3) Motion

5. The public importance justifying this Court’s grant

of jurisdiction herein, Rule 500.11 (d) (1) (v), above and

beyond the aforementioned total lack of standards afflicting

the State’s judiciary, is the miserable reputation of the State’s

matrimonial bar, which has received a “black eye” due to the

widespread impression that the level of practice of this bar

shakes the public’s confidence in the very integrity of the

State’s Judicial System. The public must be reassured that

abuses such as that occurring herein, in which, as will be

seen below, preceding the Appellate Division’s punitive

imposition of maximum sanctions herein came the outrages

perpetrated by respondent’s former attorneys, Alter & Alter,

P.C., who in 1990 persuaded the same Appellate Division to

adopt an entirely fictional portrait of movant as a monstrous

(Cont'd)

an Order of the Supreme Court, Queens County, entered March 28,

1989. That March 28, 1989 Order dismissed movant’s cause of action

for a conversion divorce, set aside the Separation Agreement duly

executed by movant and respondent, restored to the calendar

respondent’s counterclaim for divorce, and ordered the completion

of discovery and an equitable distribution trial. The Appellate

Division’s November 13, 1990 affirmance made new findings of fact,

wholly unsupported by the trial record, of purported “coercion” of

respondent by movant. These findings indelibly tarred movant’s

professional reputation. See §] 40, et seq. infra.

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Appendix F

“Svengali”, “coercing his ‘compliant’ wife of ‘diminished

capacity’ ”, who (according to these attorneys) never had any

financial disclosure from movant, into executing a separation

agreement supposing leaving her with the right to receive

from movant solely $15,000.00 a year in maintenance, which

right, moreover, was supposedly conditioned on respondent’s

being simultaneously employed and taking six college

credits. Precisely none of these calumnious charges ever

having been found as a matter of fact by the Trial Court, the

Appellate Division’s acceptance of them intervened due

solely to Alter & Alter’s “gutter level” practice.

6. Subsequent to the Appellate Division’s November i

1990 affirmance of the trial court (which had overturned the

separation agreement solely due a perceived disproportion

between movant’s estate and the amount left respondent under

the separation agreement) Alter & Alter, in the ensuing

Equitable Distribution trial, operated a complete “U-Turn”,

in which respondent, “miraculously, found it highly

convenient to “remember” making lists of the income and

disbursements from movant’s various business interests and

regularly assisting in the preparation of financial statements,

even recalling the specific details of business meetings going

back to 1960, the year the marriage commenced. If such

decisions, based on such obvious fraud, are allowed to stand

unchallenged, public confidence that the State’s courts will

listen to the facts and apply the law, and maintain their

decisions in line with reality, cannot but be seriously

compromised.

5. This entirely fictional portrait of movant, destroying his

professional reputation, was codified for bench and bar in the Official

Practice Commentary to N.Y. Dom. Rel. L. § 236. See ¥ 40, infra.

22a

Appendix F

7. In order better to understand the Appellate Division’s

September 28, 1998 maximum sanctions order against

movant, the following brief summary of the procedural history

is highly illuminating: Neither I.A.S. Court below, in 1989

or 1994, found any wrongdoing whatsoever on movant’s part,

but the Appellate Division’s 1990 affirmance did, in no less

than eight (8) separate ways (“diminished capacity”,

“coercion”, “confiscatory agreement’). Neither the trial judge,

J.H.O. Modugno nor J.S.C. Simeon Golar found “coercion”,

but the Appellate Division, duped by respondent’s former

attorneys, did. Neither found overreaching, but the Appellate

Division did. Neither found diminished capacity, but the

Appellate Division did. Neither found lack of financial

disclosure, but the Appellate Division expressed particularly

strong condemnation of movant on this point (whereas, as

will be seen below, Judge Golar in the 1993-1994 Equitable

Distribution trial, to the direct contrary, found that

respondent’s contentions in this respect were “belied” by her

own testimony). The first trial court quite legitimately flatly

rejected the testimony of Dr. Norman J. Levy, an aged

physician admittedly suffering from Alzheimer’s Disease,

who, (after his rehearsed, direct testimony) not only broke

down completely on the witness stand, but who further —

subsequent to the Appellate Division’s 1990 affirmance —

surrendered his license to practice medicine. But the

Appellate Division found Dr. Levy’s testimony “of particular

significance”! The trial court did not question the fact that

respondent had retained an experienced matrimonial attorney

of her own choosing, but the Appellate Division not only

failed to acknowledge that respondent conferred, on at least

four (4) separate occasions with this said attorney, it failed

to mention Richard J. Kurtz, Esq.’s presence at respondent’s

23a

Appendix F

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side altogether! The two trial Courts viewing at first hand

the witnesses’ demeanor and assessing at first hand the

primary evidentiary documents thus flatly disagreed with

each and every one of the new “findings” on appeal set out

in the Appellate Division’s November 13, 1990 affirmance.

8. 22 N.Y.C.R.R. 130-1.1 (c) (1) and (2) provide:

“For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law or fact

and cannot be supported by a reasonable

argument for an extension, modification or

reversal of existing law; or

(2) it is undertaken primarily to delay or prolong

the resolution of the litigation, or to harass or

maliciously injure another”.

9. Movant’s July 20, 1996 motion was pursuant to CPLR

5015 (a). That section clearly provides:

“The court which rendered a judgment or order

may relieve a party from it upon the ground of

* * *

(2) newly discovered evidence which, if

introduced at the trial, would probably have

produced a different result”; or

24a

Appendix F

“(3) fraud, misrepresentation or other misconduct

of an adverse party”. (emphasis added).°

10. As will be seen at 4] 45 et seg. infra, Courts place

particular stress on the need to remedy fraud perpetrated not

simply by “an adverse party”, but by counsel for such adverse

party.

11. Clearly if movant’s CPLR 5015 (a) (2) and (3)

motion possessed the slightest arguable merit, the $10,00.00

in sanctions and $3,000.00 in costs imposed on movant cannot

possibly stand herein. Crucially in this regard, neither of the

two Courts below addressed — in any respect whatsoever —

the CPJ 8 5015 (a) (3) question of “fraud, misrepresentation

or other misconduct of an adverse party” — here, moreover,

on the part of respondent's attorneys, Alter & Alter, P.C.

Movant respectfully submits that his CPLR 5015 (a) (3)

motion, clearly demonstrating the aforesaid fraud to both of

the Courts below, cannot in any sense be found so “completely

without merit” as to merit the sanctions and costs that were

imposed on him September 28, 1998.

12. Thus the I.A.S. Court, see Exhibit “B” hereto,

appeared to determine, inter alia, that movant’s

overwhelming evidence of fraud on the Appellate Division

in both 1985, see 4] 24, infra, and 1989, i.e., respondent’s

attorneys’ clear “duping” of that Court, somehow failed to

“set forth any evidence sufficient to determine that the [1989

6. There continues to be a parallel remedy for such behavior at

common law. Prote Contracting Co. v. Bd. of Educ. of the City of

New York, 230 A.D.2d 32, 657 N.Y.S.2d 156 (1st Dept. 1997).

25a

Appendix F

trial judgment] decision of J.H.O. Modugno was procured

by fraud” Movant respectfully submits that this finding of

the I.A.S. Court, while on the one hand reaching the arguable

determination that such fraud failed to taint the trial,

nevertheless recognized movant’s overwhelming initial

demonstration of the grievous fraud perpetrated by

respondent’s former attorneys on the Appellate Division.’

13. The I.A.S. Court’s March 26, 1997 Order thus

expressed the corner into which it had been placed by the

Appellate Division. Unable to quarrel with what Judge Golar

himself clearly determined (finding respondent’s 1989

testimony fully “belied” by her 1993-1994 testimony) were

unjustified factual findings made by the Appellate Division

November 13, 1990, duped by Alter & Alter, Judge Golar

simply stated that the legal import of Alter & Alter’s said

fraud was “not within the purview of this court to review”.

14. The I.A.S. Court additionally found that movant had

“unreasonably delay[ed]” making his motion “more than two

years between the conclusion of the equitable distribution

7. Stated the I.A.S. Court in this regard:

“[T]he overwhelming thrust of plaintiff's argument is

addressed to the Appellate Division’s affirmance of

J.H.O. Modugno’s order, centering on the assertions that

the Appellate Division improperly made new factual

findings and was ‘duped’ by defendant's attorney. Such

contentions have no bearing on whether or not the

decision of J.H.O. Modugno was based on fraud by

defendant and, furthermore, are not within the purview

of this court to review”. (emphasis added).

26a

Appendix F

trial in May 1994 and the making of this motion in July

1996”.§ The Court in this respect failed entirely to take into

account the fact that it was only as of July 1996 that

respondent, having obtained several successive enlargements

of her time to perfect her appeal, finally waived her rights to

appeal the April 20, 1995 Final Divorce Judgment herein.

Had respondent ever perfected her appeal, on any of the

numerous occasions afforded her, said Appeal would have

brought the entire matter before the Appellate Division.

Again, therefore, the two-year delay highlighted by the I.A.S.

Court similarly provides no basis whatsoever for the

Appellate Division’s $13,000.00 in sanctions and costs.

15. The Appellate Division, in its May 11, 1998 Decision

and Order on Motion herein, a/so relied principally on

movant’s two-year delay in filing the within motion. See

Exhibit “B” hereto, at page 2.

16. The Appellate Division nevertheless further

remarked: “In any event, the plaintiff's motion, for the most

part, reargued the same evidence that was before the court

in 1989”. Id.; emphasis added. But as the 1.A.S. Court clearly

found, neither respondent’s October 25, 1990 Grievance

Committee Complaint, nor her radical “U-Turn” in

her Equitable Distribution testimony — both of which

conclusively proved the fraud perpetrated on the Appellate

Division in 1985 and 1989 — were ever before the Appellate

8. A two-year delay cannot as a matter of law be determined

impermissible. See McMahon vy. City of New York, 105 A.D.2d 101,

483 N.Y.S. 228 (1st Dept. 1984) (“The inherent power of the Court

to correct a judgment obtained by fraud is not limited to a one-year

time period’).

DAES B SBE SS ABS AN

aan eeteaued

EER RSE RON, DRO RH 2 NLA a oe

Ae Bit NAS

27a

Appendix F

Division in 1989. These two aforesaid items of evidence

further buttress movant’s demonstration of respondent’s

former attorneys’ massive fraud on the Courts below, thus

underlining the inappropriate nature of the $13,000.00 in costs

and sanctions herein.

17. As stated above, both Courts below focused solely

on three of the items of evidence advanced by movant in

support of his CPLR 5015 (a) (2) application, finding two of

said items (respondent’s October 1990 Grievance Committee

Complaint, which radically contradicted her testimony in the

1989 trial, then sub judice before the Appellate Division; and

her 1993-1994 Equitable Distribution testimony, which the

Equitable Distribution Court itself explicitly found “belied”

her entire theory of the case presented to the Appellate

Division in 1990) insufficiently qualified as “newly-

discovered evidence”.

18. The third item of evidence rejected by the Courts

below was a letter written to movant by respondent April 22,

1982. In that letter respondent notably declared:

“I... realize how much pain I caused you —

following your thinking: It was never my intention

for a second not to have the children be like their

father. . . J still admire + respect you (even love

you .../ was always proud of who you are and

what you have accomplished. . . I was also proud

of what you stood for, your mind [and] your

warmth. I just want you to know that never ever

was my thinking that I didn’t want the children to

follow you. ... J was always proud of who you

28a

Appendix F

are and what you have accomplished” (emphasis

added)

19. The letter nevertheless went on immediately to

complain:

“My reasons for challenging your authority

stemmed from other motives. . . I had to yield on

every issue since how was I to know what right

was, what [the learning of the] Yeshiva was etc.

etc., so I fought you. I wish I could undo all the

pain I have caused you and myself but I can't.”

(emphasis added)’

20. The Appellate Division, see Exhibit “C” hereto, at

2, found that this letter “clearly was not probative of the issue

of fraud”. The Court’s conclusion in this respect simply lacks

all basis. The letter was clearly probative of the fact that the

portrait of respondent as “most of the time compliant and

submissive” (and thus subject to movant’s purported

“coercion”) perpetrated on the Appellate Division by

respondent’s former attorneys, was absolutely false (movant

did not introduce the letter into evidence at the first trial,

before J.H.O. Modugno, because respondent never made her

9. Respondent’s said declarations flatly contradicted the portrait

of her, as purportedly “very effacing and very compliant, most of

the time giving in yielding”. This portrait appears in the Appellate

Division’s 1990 affirmance, which affirmance relied for the said

portrait solely and exclusively on an aged, Alzheimer-ridden

physician, who testified completely incoherently on the witness stand

and, moreover, shortly after testifying (to events occurring eight years

prior to the trial) surrendered his license to practice medicine.

29a

Appendix F

“compliant and yielding” claim in that trial). At an absolute

minimum, the letter thus further proves respondent’s CPLR

5015 (a) (3) fraud.

21. The Appellate Division’s September 28, 1998 order

imposing the maximum allowable, $10,000.00 in sanctions

and $3,000.00 in costs on movant, further explicitly

recognized that movant’s central purpose was “‘to clear his

name”’.'® The Court nevertheless determined movant’s appeal

“frivolous” based on the Court’s perceived inability to grant

movant any relief:

“We find that the plaintiff’s assertion that his

intent was to clear his name in no way diminishes

the fact that the appeal was meritless. We believe

that merit must be judged with reference to

whether a particular course of litigation is or is

not designed to obtain some real form of relief as

a remedy for some cognizable wrong. The appeal

taken by the plaintiff was completely without merit

under this. standard, and, in the absence of any

other concrete motivation, this appeal can only

have been intended to harass the defendant within

the meaning of 22 NYCRR 130-1.1(c)(2), by

needlessly forcing her to incur attorneys’ fees.”

(emphasis added).!!

10. From the shame imposed on movant by that Court’s

November 13, 1990 Decision herein. See JJ 40, et seq., infra.

11. Both parties’ submissions respecting the Impostition of

Sanctions are annexed as Exhibit “D” hereto. The Appellate

Division’s conclusion of its own lack of any remedy herein is flatly

opposed to prevailing law. See e.g., Oppenheimer v. Westcott, 47

N.Y.2d 595, 419 N.Y.S.2d 908, 393 N.E.2d 982 (1979), cited at

{| 46, infra.

30a

Appendix F

B. Respondent's Former Attorneys’ Fraud

on the Courts Below

22. The “scorched earth” policy of respondent and her

attorneys was manifested in numerous and varied ways. Most

striking was respondent’s aforementioned October 25, 1990

Complaint to the Grievance Committee of the First

Department (i.e., subsequent to Oral Argument before the

Appellate Division but prior to its November 1990

affirmance), a blatantly baseless and spiteful effort both to

embarrass movant and, by its stated terms, to disbar him.

This Complaint flatly recanted the story put forward by Alter

& Alter, then sub judice before the Appellate Division, of

movant’s “coercion” of a “compliant and submissive”

respondent. It is moreover apparent that in filing this

Complaint movant had the aid of her attorneys, deliberately

catering, yet again, to her destructive ends — how could it

possibly have been in respondent’s “best interests” for her to

attempt to deprive movant of his livelihood in one forum,

while seeking to obtain its benefits in another?

23. Respondent’s attorneys, further, dragged the within

proceedings out to the maximum degree possible. They first

objected to the entry of an early Divorce Judgment, without

prejudice to any financial claims, perpetuating the

maintenance herein of a red herring not finally disposed of

until Judge Golar’s November 29, 1994 Memorandum at the

conclusion of the Equitable Distribution trial herein (see

Exhibit “E” hereto, at pages 1-2).

24. Additionally, respondent, in opposition to Orders of

the I.A.S. Court (Glass, J.) dated June 20, 1985 and October

3la

Appendix F

15, 1985 granting movant a protective order preventing

further discovery pending that Court’s determination of the

validity of the Separation Agreement, and, thereafter, so as

to induce the Appellate Division, see Weinstock v. Weinstock,

122 A.D.2d 790, 505 N.Y.S.2d 675 (1 986), to overturn Justice

Glass’s said Orders, filed, seriatim:

(i) A sworn affidavit, dated April 17, 1985,

stating that respondent had: “no idea, nor

have I ever been informed of my husband's

2,

income or financial holdings ...”’;

(ii) A further sworn affidavit, dated August 16,

1985, stating that respondent “believes that

[movant] may have numerous business

interests, including real estate, other than his

law practice . . .” (thus clearly implying that

she had no knowledge of said assets

whatsoever — and only “believed” in the

assets’ potential existence);

(iii) A further sworn affidavit of respondent’s,

dated March 28, 1989, in which she further

spuriously claimed that she “was never

[movant’s] bookkeeper, but, instead, an

unpaid clerical worker ...”; and

(iv) Respondent’s Appellant’s Brief to the

Appellate Division in 1985, in which her

attorney Stephanie Alter, Esq., flatly

conceding: “[T]he validity of [the parties’

January 17, 1983] agreement hinges [on the]

32a

Appendix F

financial disclosure” provided respondent by

movant, further stated:

“(Bly its own terms, lacking financial

disclosure, the agreement at issue is

‘invalid and unenforceable.’ Respondent

has never revealed his income, assets or

net worth to Appellant...

Instead of providing the required

disclosure, Respondent hopes, even at

this late date, to conceal his financial

worth so as to prevent both the Appellant

from proving, and this Court from

knowing, how unconscionable this

agreement is.... Respondent attempts

to portray Appellant as a bookkeeper. . .

The fact is that her clerical duties

included writing checks to pay office

bills and entering deposits under the

instruction of Respondent's accountant

and long-time personal friend.... ”

(emphasis added; Mrs. Alter’s highly

misleading citations to the record

omitted)

25. The absolute gall demonstrated by these attorneys

throughout this action could not be better demonstrated than

through the sentence immediately following that just quoted

above from their 1985 Brief to the Appellate Division,

proffering a “Big Lie”, flatly contradicted by all of the

testimony and documents in this action:

33a

Appendix F

“The only document seen by Appellant regarding

Respondent’s income was a tax form mailed to

the marital home after the lawsuit was begun.

Appellant managed to copy this before it was

confiscated from her purse by Respondent” (id..

emphasis added).

26. Indeed, the words “absolute gall” are woefully

inadequate to describe these attorney's conduct. At the early

Stages of this action, the attorneys, as seen, pushed respondent

into accusing movant of having stolen the said income tax

form. Despite this incendiary (and blatantly false) accusation,

in the very same affidavit, the attorneys provided the Court

with a copy of the document which movant allegedly

a” 12

“stole’’.

27. Respondent’s attorneys thus having successfully

duped the Appellate Division into overturning Judge Glass’s

12. This charge of “stealing” the form caused movant to

stipulate to ceding to respondent the exclusive possession of the

marital home, in that movant did not wish to be faced with further

spurious and calumnious charges, to which the attorneys would

undoubtedly cause respondent to stoop. From an individual who

‘admired [movant’s] character’ and the principles for which movant

stood, for a period of over twenty-two years, respondent had suddenly

transformed herself (or been transformed by her attorneys?) into a

person flatly accusing movant of being a thief. Once a person

declaring her admiration for what movant stood for, respondent had

become so bitter that she could make the absurd claim that she saw

only one document during the entire marriage! The trial before J udge

Golar revealed that this absurd “one document” claim was so absurd

as to prevent the discovery of a term adequate to describe the

attorneys’ outrage on the Appellate Division.

34a

Appendix F

1985 protective Orders, they thereupon embarked upon a

cavalier rummaging through movant’s files, lasting up to the

conclusion of the Equitable Distribution Trial at the end of

1994! This practice revealed the true agendas of respondent

and her attorneys herein (which agendas, unfortunately for

respondent, have revealed themselves to be mutually

exclusive): for respondent, her evident need to hurt and desire

to ruin movant; for her two unified counsel, their evident

desire to fuel the fire, and milk their victim to the maximum

extent possible.

28. Thus, movant testified, without contradiction, at the

Equitable Distribution Trial that he turned over to

respondent’s attorneys a minimum six transfiles of

documents, statements and records, including the majority

of the exhibits introduced by respondent's attorney at trial.

Despite said full compliance with respondent’s discovery

requests, these attorneys continually chanted, “Stonewalling”’.

When required by the I.A.S. Court to list the specific items

sought by them, these items turned out to relate to facts not

in issue, to be readily available from other sources, or, indeed,

to be already in respondent’s possession. The attorneys thus

hoped to achieve their results (vastly increased billing)

through blatant oppression (intentionally disrupting movant’s

office): demanding every tidbit of information imaginable,

despite the fact that such was not needed (as revealed in

respondent’s 1993-1994 Equitable Distribution testimony, she

knew literally everything about movant’s finances).

29. A further striking example of the attorneys’ attitude,

in this respect, was their reaction to movant’s October 28,

1987 Notice to Admit, which Notice sought to relieve the

35a

Appendix F

I.A.S. Court of the burden of ruling on numerous matters

which should in all justice and equity have been settled at

minimal expense and without serious dispute, principally (i)

movant’s continued payment of both respondent’s and the

children’s living expenses subsequent to the January 17, 1983

agreement, (ii) movant’s viewing and agreement to the

108-48 64th Road premises as her new residence; as well as

(ili) respondent’s assent to the proposition that her work as

movant’s bookkeeper furnished her with detailed intelligence

of movant’s assets and finances. Had the attorneys responded

in professional fashion to said Notice to Admit, the I.A.S.

Court could have avoided fully 90% of the trial time expended

on this action. ea

30. Indeed, as was stated above, respondent, by the time

of the 1993-1994 Equitable Distribution trial, suddenly found

it highly convenient to “remember” making lists of the

income and disbursements from movant’s various business

interests, regularly assisting in the preparation of financial

statements, even recalling the specific details of business

meetings going back to 1960 (this from a woman, the Court

should recall, who had sworn on numerous occasions; see

{| 20, supra, that she had “no idea, nor have I ever been

informed of my husband’s income or financial holdings

... believes that [movant] may have numerous business

interests, including real estate, other than his law practice

. Was never [movant’s] bookkeeper, but, instead, an

unpaid clerical worker’ ... The only document seen by

13. Respondent remembered not only the year, but also the

month (after June 1960). The reason for this suddenly pinpoint

memory was, in point of fact, blatantly evident: She wanted this

Property to qualify, without contest, as part of the marital estate!

36a

Appendix F

respondent was a single tax form) Had respondent’s

attorneys admitted to the true facts in 1987, both Court and

parties, quite evidently, could have been spared, without any

exaggeration, the aforementioned 90% of the testimony and

exhibits produced over the last eleven years of this action.

Indeed, had their spurious tactics not intervened herein, the

within Separation Agreement would not have been overturned

in the first place!

31. As the Record below clearly demonstrates,

Respondent’s former counsel falsely led her, first, to believe

that they could hoodwink the Equitable Distribution Court

into believing that the amount of “marital assets” at issue

were $7,000,000.00, instead of the actual $2,000,000.00

figure found by the Court below, based on fotally flawed

methods of valuation including, inter alia, double counting.

(The Equitable Distribution Court arrived at a final,

conclusive figure of precisely $1,500,000.00).

32. Additionally, Judge Golar’s remarks rejecting the so-

called “testimony” of respondents’ “experts” reads, in

pertinent part:

“The court does not credit the testimony of

defendant-wife’s CPA’s whose expertise clearly

was not in valuing real estate partnership

interests, as there is little merit to their attempts

at evaluation solely by capitalizing earnings

without regard to factors such as lease

expirations, vacancy rates and underlying

property values. Instead, the court adopts the

figures contained in Plaintiff|-husband]’s Exhibit

ieememmnmnneeieniinieieiiisniesiiiiihi dail el

37a

Appendix F

46 computed as of December 31, 1993 which are

based on anticipated sales prices...”

33. The Alters’ $7,000,000 figure proffered to

respondent thus represented a near-500% inflation of the

figure found by Judge Golar to represent reality. Similar

tactics by these attorneys resulted, in Katz v. Katz, Supreme

Court, Westchester County, with a J.H.O.’s award of 60% of

the marital estate to the wife and 40% to the husband. Due to

the Alters’ fraudulent inflation of the marital estate the

husband, finding his alleged “40%” not to exist, was required

to file for Bankruptcy.

34. The Record below further clearly demonstrates that

the Alters have engaged in a constant pattern of rapacious

depredations of this State’s Judicial System. In Friedman vy.

Friedman, Queens County Index No. 21259/89, the Alters

attempted to foreclose on the residence of the wife’s mother,

who had signed a personal guarantee of the attorneys’ fees.

In a January 20, 1994 Memorandum Decision in the Friedman

action, Judge Golar sternly condemned them:

“Despite the award of counsel fees to plaintiff’ s

former attorneys, the court does not sanction their

conduct in attempting to collect those fees. While

seeking a confession of. Judgment from plaintiff and

requiring plaintiff's mother to guarantee

plaintiff's payment of their fees did not constitute

a violation of the rules of conduct for attorneys in

matrimonial actions then in force, the current rules

proscribing such conduct (Uniform Civil Rules for

the Supreme Court [22 NYCRR 202.16];

38a

Appendix F

Disciplinary Rules of the Lawyers Code of

Professional Conduct [22 NYCRR Parts 1200,

1400]) are merely codifications of what has always

been proper and ethically correct conduct. The

Court hopes that the firm’s future efforts at

collection of outstanding fees attributable to the

Family Court proceedings will be guided by these

considerations and the Court's determination of

the reasonable fees in this action”.

35. Judge Golar further reported in this respect:

“(Responde]nt’s original retainer agreement with her counsel

in March 1985 was modified in January 1991 to raise the

billable hours for office time from $175.00 to $225.00 and

for court time from $225.00 to $275.00”.

36. Thereafter, the attorneys spuriously prolonged the

case to the maximum extent possible. Indeed, the Equitable

Distribution Court found that, despite respondent’s series of

sworn affidavits describing her purported need of additional

support for her “living expenses”, the entirety of the pendente

lite payments made by movant to respondent’s account were,

instead, generated to feed respondent's attorneys’ billings.

Indeed, the Alters billed an approximate total of $300,000.00;

their purported “accountants,” for their part, attempted to bill

$50,000.00.

37. After the Equitable Distribution trial, the Court

below not only flatly rejected (as seen) in its entirety

respondents’ “experts’ ” spurious “valuation” testimony; it

further dramatically reduced the attorneys’ fee request,

finding “inappropriate .. . the high billable hours for office

39a

Appendix F

time” and “the total fee .. . grossly enlarged in comparison

to the results obtained, amounting to over 40 percent of the

distributive reward’. The Court further found that respondent

“has effectively paid $73,157.90 of which no mention is made

in counsel's affirmation of legal services”.

C. Striking Disparity With Fischer Counsel Sanctions

38. Heller, Horowitz & Feit, P.C.’s (“HH&F”) “scorched

earth” technique in the I.A.S. Court and the Appellate

Division, Second Department, between 1989 and 1998,

resulted in a minimal twenty-five frivolous appeals wasting

the precious time of the Courts of this State. Most recently,

HH&F, on October 23, 1998, formally abandoned the last

frivolous appeal filed by them below, notifying this firm only

after subjecting this firm to a frivolous motion for stay

pending appeal, formally denied by the Appellate Division

October 15, 1998. See Exhibit “F” hereto.'4

39. In five of the cases David Fischer, an individual

determined by the I.A.S. Court as of April 1993 to give

14. See Fischer v. Deitsch, 198 A.D.2d 327, 605 N.Y.S.2d 703

(1993); Schusterman v. Fischer, 198 A.D.2d 343, 605 N.Y.S.2d 871

(1993); Schusterman v. Fischer, 198 A.D.2d 343, 605 N.Y.S.2d 872

(1993); Deitsch v. Fischer, 198 A.D.2d 322, 605 N.Y.S.2d 873

(1993); Deitsch v. Fischer, 198 A.D.2d 322, 605 N.Y.S.2d 874

(1993); Deitsch v. Fischer, 198 A.D.2d 323, 605 N.Y.S.2d 875

(1993); Deitsch v. Fischer, 198 A.D.2d 324, 605 N.Y.S.2d 876

(1993); Deitsch v. Fischer, 198 A.D.2d 325, 605 N.Y.S.2d 877

(1993); Deitsch v. Fischer, 198 A.D.2d 326, 605 N.Y.S.2d 878 (1993)

Fischer v. Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 836 (1990); Sadov

Realty Corp. v. Shipur H’Shechuna Corp. and David Fischer, 84

N.Y.2d 923, 645 N.E.2d 1221.

40a

Appendix F

testimony “totally devoid of verity and bordering on perjury”,

the 1.A.S. Court (Yoswein, J.) itself sanctioned HH&F

$1,500.00; the Appellate Division thereafter imposed on

HH&F merely an additional $1,500.00 in sanctions, resulting

in a total $3,000.00. It is respectfully submitted that $3,000.00

sanctions on counsel working for a client with a minimal

$60,000,000.00 “war chest”, who has wreaked eight solid

years of havoc on this State’s Judicial System, amounts,

simply, to a .005% “tax” on his yearly operations. In the

within case, in direct contrast, the Appellate Division has

sanctioned an attorney at law whose only “crime”, as the

Appellate Division itself explicitly recognized, see Exhibit

“C” hereto, has been to attempt to clear his name before the

law courts of this State, wherein he practices his life’s chosen

profession, based upon a deliberate fraud on the 1.A.S. Court

that Respondent has never chosen to deny (and which fraud,

moreover, is conclusively established by Justice Simeon

Golar’s July 29, 1994 Decision finding respondent’s 1989

trial testimony herein “belie[d]” by her testimony before the

Equitable Distribution Court).

D. Nov. 13, 1990 Decision Blighted Movant's Reputation

40. As suggested at the outset of this affidavit, the

destructive impact upon movant’s professional (and personal)

existence of the Appellate Division’s November 13, 1990

affirmance, publicly branding movant as a monstrous

Svengali purportedly “coercing” his wife of twenty-two years

into executing a purportedly “unconscionable” Separation

Agreement, was underlined for both bench and bar by

McKinney’s Official Practice Commentary to N.Y. D.R.L.

§ 236 (Alan D. Sheinkman, Esq., 1992; Book 14, §§ 220 to

4la

Appendix F

End, Cumulative Annual Pocket Part, at page 76). This text

declared, for all the world to see, the Appellate Division’s

astonishing acceptance of respondent’s entire grab bag of

scurrilous attacks upon movant's personal character:

“The unconscionability doctrine, discussed in the

bound volume at pages 238 to 242, was applied to

nullify a separation agreement in Weinstock y.

Weinstock, 1990, 167 A.D.2d 394, 561 N.Y.2d

807, appeal dismissed 77 N.Y.2d 874, 568

N.Y.S.2d 916, 571 N.E.2d 86, reargument denied

77 N.Y. 2d 940, 569 N.Y.S.2d 614, 572 N.E.2d

55. There, the husband, an attorney, had his wife

of 22 years sign an agreement under which she

waived all rights to seek equitable distribution of

his assets — assets which exceeded $2,000,000.

In addition, the agreement limited the wife to a

less than substantial maintenance award. which

was conditioned on her simultaneously working

and attending college. The wife was required to

transfer her share in the marital home to the

husband and to give him a broad power of attorney

to sign her name to papers required to give effect

to the agreement. The wife was even induced to

co-sign a loan, the proceeds of which were kept

by the husband. The wife's psychiatrist testified

that the husband was a controlling, dominant

person and that the wife was very self-effacing and

compliant. The psychiatrist testified further, that

in his opinion, the wife was emotionally dependent

upon the husband. Indeed, the wife had limited

knowledge of financial matters.

42a

Appendix F

Based on all of these facts, the court held that

the agreement was so manifestly unfair, and the

apparent product of coercion and overreaching

on the husband's part, that it was void ab initio”

(emphasis added).

41. Can anyone reading the above-quoted text possibly

comprehend that it was respondent who insisted upon the

separation and divorce? Can anyone comprehend that

respondent was represented by an attorney of her choice?

Can anyone comprehend that her counsel advised her against

executing the separation agreement, and that, moreover,

respondent insisted on executing the agreement DESPITE

her counsel's advice? Thus, can anyone possibly comprehend

that, contrary to the Appellate Division’s series of “findings”

on November 13, 1990, respondent later admitted, in the

course of the Equitable Distribution trial, that respondent

admitted that she had full knowledge of movant’s financial

affairs — and indeed helped prepare movant’s financial

statements? It is respectfully submitted that each of these

questions must be answered in the negative, in that, in

particular, respondent’s Equitable Distribution testimony

sheds a totally different light, not only on movant’s character,

but on the entire separation agreement itself. Under these

circumstances, the Appellate Division’s 1990 affirmance,

herein demonstrated to have been based upon a fotally

distorted and indeed fraudulent presentation to the Appellate

Division, cannot but be vacated.

42. Additionally, opposing counsel have on numerous

occasions made use of the Appellate Division’s November

13, 1990 affirmance for the launching of ad hominem attacks

43a

Appendix F

on movant’s personal character. Thus in the aforementioned

Walker v. Weinstock action, a Brief filed by movant’s

adversaries in the Appellate Division included the following

inflammatory charges:

“Nor does Weinstock quake at undertaking abusive

litigation based on coercion. Weinstock’s

application for conversion divorce based on a

separation agreement was denied by a judicial

hearing officer and affirmed [the Appellate

Division stating: ]

‘[T]he agreement is so manifestly unfair,

and the apparent product of coercion and

overreaching on the part of the plaintiff,

that it was properly set aside.’

Weinstock v. Weinstock, 167 A.D.2d 394, 561

N.Y.2d at 808 (citations omitted). Thus, evidence

beyond the confines of the instant case shows that

Weinstock carries through on threats to litigate

meritless alleged libel claims, and that he does

not hesitate to use coercion to obtain what he

wants.” (emphasis added)'®

43. Similarly, in Unger v. Unger, New York County

Supreme Court Index No. 405905/93., Opposing counsel

15. See also a May 24, 1996 affidavit in this same action, in

which opposing counsel launched a similar calumny: “Weinstock has

already been found to have entered into an unconscionable, and

therefore unenforceable, contract with another person who, like

Walker, placed her trust in him”.

44a

Appendix F

launched the following similar personal attack in an

opposition affidavit submitted to the I.A.S. Court:

“The Court is respectfully urged to refer to the

case of Jsrael Weinstock v. Esther Weinstock, 167

A.D.2d 394, 561 N.Y.2d at 807 (2nd Dept. 1990)

in order to better understand why Weinstock has

made this motion ... Weinstock is simply

repeating what he did to his own wife — while

representing the herein defendant.” (emphasis

added)'®

44. Similarly, in Weinstock v. Cleary, Gottlieb, Steen &

Hamilton, New York County Supreme Court Index No.

123288/94, a Respondents’ Brief filed by my adversaries in

the United States Court of Appeals for the Second Circuit

included similar insulting declarations:

“Weinstock’'s inventing of this slur is consistent

with the repeated abuse he hurls at the judiciary,

and the singularly coercive tactics [that] he calls

advocacy. See Weinstock v. Weinstock, 167 A.D.2d

394, 396-97 (2nd Dep’t 1990). The appeal is thus

beyond frivolous. With due respect the Court is

compelled to impose sanctions against Weinstock

that are sufficiently severe to give him the incentive

to comport himself in accordance with the

standards of our profession.” (emphasis added)

16. Counsel drafting the above-quoted slander was subsequently

arrested by the New York City Police and indicted by a New York

County grand jury for hiring a thug to physically attack movant in

connection with the same litigation; he has since been suspended

from the practice of law.

45a

Appendix F

E. The Courts Have Inherent Power to Remedy Fraud

45. In this serious context, and with direct and striking

relevance to the above-related catalogue of both the Fischer

attorneys’ and Alter & Alter P.C.’s depredations on the

Judicial System of this State, this Court, in Matter of Raquel

Marie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855 (1990) clearly

and unequivocally stated: “Fraud on the Court is intolerable

in any proceeding” (emphasis added).

46. Accord: Oppenheimer v. Westcott, 47 N.Y.2d 595,

419 N.Y.S.2d 908, 393 N.E.2d 982 (1979); see also McMahon

v. City of New York, 105 A.D.2d 101, 483 N.Y.S. 228 (Ist

Dept. 1984) (“The inherent power of the Court to correct a

judgment obtained by fraud is not limited to a one-year time

period”); Stephen-Leedom Carpet Co., Inc. y. Arkwright-

Boston Mfrs. Mutual Insurance Co., 101 A.D.2d 574, 476

N.Y.S.2d 135 (1st Dept. 1984) (“The proof that the

Defendants falsified the evidence in this case affords the

presumption that all of their evidence is false’); Hannon vy.

Dunkirk Motor Inn, Inc., 167 A.D.2d 834, 562 N.Y.S.2d 248

(4th Dept. 1990) (withholding devastating impeachment

evidence a fraud on the court); National Management

Corporation v. Shelton Towers Associates, 111 A.D.2d 154,

488 N.Y.S.2d 786 (2d Dept. 1985) (setting aside judgment

due to “egregious” inconsistency between a witness’s

deposition testimony in another case and his testimony in

the case on appeal).

47. In the leading case of Guardian Life Ins. Co. of

America v. Handel, 190 A.D.2d 57, 596 N.Y.S.2d 804, (1st

Dept. 1993), the Court highlighted the particularly egregious

nature of fraud directly aided and abetted by counsel:

46a

Appendix F

“It is well settled that when there is a duty to speak,

silence may very well constitute fraudulent

concealment [citation omitted] which is itself the

equivalent of affirmative misrepresentations of

fact [citation omitted]. This is especially true

where an officer of the court owes such an

obligation to the tribunal (Code of Professional

Responsibility, DR 7-102[A][3] [22 NYCRR

1200.33(a)(3) ]. Since Judiciary Law § 487 (1)

interdicts misconduct by an attorney involving

“deceit... with intent to deceive the court or any

party”, the correlative causes of action grounded

upon that statute raise triable issues as well

[citation omitted]”

48. Similar results obtain in the Federal Courts. In Hazel-

Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238 (1944),

the Supreme Court underlined the judiciary’s role in

preserving the integrity of the very institutions attacked by

both HH&F and Alter & Alter:

“Out of deference to the deep rooted policy in

favor of the repose of judgments entered during

past terms, courts of equity have been cautious in

exercising their power over such judgments.

United States v. Throckmorton, 98 U.S. 61. But

where the occasion has demanded, where

enforcement of the judgment is manifestly

unconscionable, Pickford v. Talbott, 225 U.S. 651,

657, 32 S.Ct. 687, 689, they have wielded the

power without hesitation.

* * a * *

47a

Appendix F

This is not simply a case of a judgment obtained

with the aid of a witness who, on the basis of after-

discovered evidence, is believed possibly to have

been guilty of perjury. Here, even if we consider

nothing but Hartford’s sworn admissions, we find

a deliberately planned and carefully executed

scheme to defraud not only the Patent Office but

the Circuit Court of Appeals.

* * * * *

Furthermore, tampering with the administration

of justice in the manner indisputably shown here

involves far more than an injury to a single

litigant. It is a wrong against the institutions set

up to protect and safeguard the public, institutions

in which fraud cannot complacently be tolerated

consistently with the good order of society. Surely

it cannot be that preservation of the integrity of

the judicial process must always wait upon the

diligence of litigants. The public welfare demands

that the agencies of public justice be not so

impotent that they must always be mute and

helpless victims of deception and fraud”.

49. See also Chambers v. NASCO, 501 U.S. 32 (1991)

(“[T]he inherent power also allows the federal court to vacate

its own judgment upon proof that a fraud has been perpetuated

on the Court”); Universal Oil Products Co. v. Root Refining

Co. 328 U.S. 575 (“The inherent power of a federal court to

investigate whether a judgment was obtained by fraud is

without question”); see also Hazel-Atlas Glass Co. vy.

Hartford-Empire Co., supra.

48a

Appendix F

CONCLUSION

50. As was pointed out to the I1.A.S. Court and the

Appellate Division, this entire case has been predicated upon

a massive hoax, and radical “U-Turn” perpetrated by

respondent and her attorneys upon the Appellate Division,

the I.A.S. Court and the First Department Grievance

Committee. Playing “fast and loose” with al! of these

institutions, they first fraudulently claimed “lack of financial

disclosure” so as to commence truly meaningless

discovery — thus generating hundreds of thousands of dollars

in fees — in the process burdening the Courts below with

frivolous litigation. These attorneys tore movant’s family

apart, permanently alienating from him the affections of his

elder son, Bernard, as well as tarring his name before all of

the Courts of this State, directly impacting his ability to

practice his chosen profession.

51. The Appellate Division’s imposition of $10,000.00

in sanctions on Movant was the crowning miscarriage of

justice in a fifteen-year-long, judicially sanctioned disaster.

It exonerated a party carrying off a wholesale fraud on the

Appellate Division, and imposed a wholly unequal and

arbitrary penalty on a party whose only aim was to restore

the formerly untarnished reputation surrounding his chosen

profession of the practice of law.

WHEREFORE, Movant and former Plaintiff-Appellant

herein respectfully prays (i) that this Motion pursuant to Rule

500.11 of this Court for leave to appeal from the Appellate

Division’s said Decision and Order dated September 28, 1998

be granted in all respects; and (ii) that the Court grant such

other and further relief as is necessary and proper herein.

Belle Harbor, New York

49a

APPENDIX G — SUMMARY OF CONTRADICTIONS

The following outline delineates many significant

elements of the gross fraud perpetrated by Stanley Alter,

Stephanie Alter and the law firm Alter & Alter (Hereinafter

collectively referred to as “Alter”) upon the courts and upon

the parties involved in the actions cited below. This synopsis

is divided into four sections; I. SUMMARY OF

CONTRADICTIONS, II. ALTER’S FLAGRANT

DISCREPANCIES IN THE VERSIONS OF THE

“FACTS”, Il. BLATANT FABRICATIONS and IV.

ALTER’S DECEPTIVE PRACTICES IN GENERAL.

Whereas the purpose of this outline is to capsulize the Alter

fraud into a manageable form, the items listed below represent

some, but not all, of the instances in which Alter employed

corrupt means to further his gain.

I. SUMMARY OF CONTRADICTIONS

Alter’s Versions at the Facts (Stated Under Oath)

Wife never wanted to end the marriage. But Husband

badgered Wife for many months to sign the

Separation Agreement against her will. Finally, Wife

agreed to sign a “symbolic” agreement as a “test” of

her love and devotion. She was so unhinged by drugs

as to not know even what she was signing. She

received no advice and recommendations from her

first attorney; Husband did not pay even a single

penny toward Wife’s support and maintenance: and

she was never separated. Wife had no idea of

Husband’s assets or income, having only worked as

an unpaid clerical worker for Husband. She had no

knowledge that Husband had any interest in real

50a

Appendix G

estate. Husband refused every demand made by

Wife’s attorney, leaving Wife with an agreement

giving her nothing. She had no memory of anything

that happened those weeks. (Alter inverted these

“facts” during the equitable distribution trial and

portrayed Wife as Husband’s active partner in his

career and business affairs.)

Wife’s Versions of the Facts (Stated Under Oath)

Wife wanted to end her marriage. Husband did not.

In December 1982 Wife went apartment hunting and

insisted upon a divorce on her own terms. During

the next few weeks, Wife engaged in her normal

activities, did her shopping, and even interviewed

for, and secured a supervisory job. Husband drew

up a Separation Agreement, reflecting Wife’s stated

demands, and Wife took the document to an

experienced matrimonial lawyer of her choice, but

rejected his advice and recommendations. (In a

complaint to the Disciplinary Committee against

Husband, Wife suddenly claimed that she had been

defrauded into signing the Separation Agreement,

stating that the Husband urged that such and

agreement was merely a “symbol of love” —

conforming to Alter’s language.) Nonetheless

Husband acceded to 12 of the 13 demands made by

her attorney. Wife worked for Husband as his

bookkeeper and knew of all of Husband’s assets and

income, and knew of all of his real estate ventures.

She had never been under psychiatric care (only

marital counseling) and understood fully the terms

Sla

Appendix G

of the Separation Agreement. Husband had paid

various living expenses (housing, utilities, telephone,

insurance, automotive) pursuant to the Separation

Agreement. After signing the Separation Agreement,

Wife announced that she was separated and then

sought to meet men.

Il. ALTER’S FLAGRANT DISCREPANCIES

IN THE VERSIONS OF THE FACTS

The numerical divisions below represent major issues

involved in the action Weinstock v. Weinstock. The items

listed in column form depict various accounts of the “facts”

addressing versions prepared by Alter. The right hand column

lists the versions of Alter’s client (Wife) which totally

contradict Alter’s stories. The alphabetical sub-divisions

within the left hand column define those instances where Alter

not only contradicts the sworn oral testimony of his client.

but presents new and unique renditions of the “facts” which

are completely inconsistent with sworn testimony in affidavits

and pleadings that Alter prepared himself.

(a)

52a

Appendix G

1. Did the Wife Ever Want a Separation?

ALTER’S VERSION:

“NO”

ALLEGATIONS IN

AFFIDAVITS AND

PLEADINGS

PREPARED BY

ALTER

Wife never wanted to

leave the marriage or the

marital home

(EW Aff. 6/10/85 p. 3)

WIFE’S VERSION:

“YES”

ADMISSIONS

EXTRACTED FROM

WIFE AT

DEPOSITIONS OR

TRIAL

Wife told Dr. Gross that

she insisted upon a

separation.

(E/B/T 11/29/85 pp. 110-

111)

Wife went looking for

an apartment when she

wanted to end the

marriage.

53a

Appendix G

(a) Husband and Wife had Since signing the

marital relations in the Separation Agreement,

second home on a Wife was inside the

number of occasions. second home once.

(EW Aff. 4/17/85 p. 3) (E/B/T 1/20/86 p. 51)

(Alter himself states on

the record in E/B/T

1/20/86 p. 43)

WIFE CHANGES

VERSION TO: “AT

LEAST A DOZEN

TIMES”

Wife had been inside the

second home at least a

dozen times.

(E/B/T 1/20/86 p. 82)

(a)

54a

Appendix G

13. Did Husband Pay For Wife’s Living Expenses

After the Execution of the Separation Agreement?

ALTER’S VERSION:

“NO”

SWORN

ALLEGATIONS IN

AFFIDAVITS AND

PLEADINGS

PREPARED BY ALTER

Wife did not receive one

cent for her support and

maintenance from her

Husband.

(EW Aff. 3/28/89 p. 5)

WIFE’S VERSION:

“VES”

ADMISSIONS

EXTRACTED FROM

WIFE AT

DEPOSITIONS OR

TRIAL

Wife’s housing,

mortgage, utilities,

telephone, insurance and

auto, etc. were paid for

by Husband.

(E/B/T 1/20/86 p. 167)

(T/T 2/6/89 pp. 2040-

2053)

Husband has been paying

$2,100.00 per month

under the pendente lite

award.

(EW Aff. 1/6/95

Motion to Reargue)

(b)

(a)

55a

Appendix G

ALTER’S

CONTRADICTORY

VERSION: “YES”

Husband has been paying

Wife around $3,500.00 a

month for maintenance

since 1983.

(ED Post Trial Memo

p. 55)

14. Did Wife Have Any Knowledge of Husband’s

Income and Assets?

ALTER’S VERSION: WIFE’S VERSION:

“NO” “VES”

SWORN ADMISSIONS

ALLEGATIONS IN EXTRACTED FROM

AFFIDAVITS AND WIFE AT

PLEADINGS DEPOSITIONS OR

PREPARED BY ALTER TRIAL

Wife had no idea of Wife knew Husband’s

Husband’s assets nor was _— approximate income and

she ever informed of value of assets; naming

Husband’s assets. each asset including real

(EW Aff. 4/17/85 p. 3) estate holdings.

(E/B/T 11/29/85 pp. 63-

70) (E/B/T 1/29/86

pp. 22-24)

56a

Appendix G

(b) Wife believes that

Husband may have

numerous business

interests, including real

estate, other than his law

practice.

(EW Aff. 8/16/85 p. 6)

(c) The only document Wife

has ever seen regarding

Husband’s income is a

tax form mailed to her

home after the lawsuit

began.

(EW App. Brief p. 15)

Wife admits to working

on all Husband’s

business ventures. She

prepared summaries of

income and assisted in

preparing financial

statements for Husband.

(E/B/T 1/20/86 pp. 9, 18)

Wife knew of Husband’s

investments.

(E/B/T 11/29/85 pp. 63-

73) (E/B/T 1/20/86 pp.

24-36)

Wife had discussions

with Husband regarding

the valuation of assets.

(E/B/T 11/29/85 pp. 69-

72)

(b)

(a)

57a

Appendix G

ALTER’S

CONTRADICTORY

VERSION: “YES”

Wife had copies of joint

tax returns for the years

1982 and 1983 in her

possession; they were

intended for her attorney;

When Husband left the

house, they were gone.

(EW Aff. 5/28/85 p. 3)

15. Did Husband Steal Tax Returns For the Years

1982 or 1983? (Alleged when Wife attempted to

obtain exclusive possession of the marital home

in 1985)

ALTER’S VERSION:

“YES”

SWORN

ALLEGATIONS IN

AFFIDAVITS AND

PLEADINGS

PREPARED BY ALTER

Wife had copies of joint

tax returns for the years

1982 and 1983 in her

possession at one time.

and when Husband left

the house, they were gone.

(EW Aff. 5/28/85 p. 3)

WIFE’S VERSION:

“NO”

ADMISSIONS

EXTRACTED FROM

WIFE AT

DEPOSITIONS OR

TRIAL

Wife never saw copies of

the 1982 and 1983 tax

returns.

(E/B/T 11/29/85 p. 64)

(E/B/T 1/29/86 p. 35)

(a)

58a

Appendix G

16. In What Capacity Did Wife Work For or With

Husband?

ALTER’S VERSION:

“UNPAID CLERICAL

WORKER”

SWORN

ALLEGATIONS IN

AFFIDAVITS AND

PLEADINGS

PREPARED BY ALTER

Wife was never

Husband’s bookkeeper,

but rather an unpaid

clerical worker.

(EW Aff. 3/28/89 p. 5)

WIFE’S VERSION:

“BOOKKEEPER”

ADMISSIONS

EXTRACTED FROM

WIFE AT

DEPOSITIONS OR

TRIAL

Wife describes herself as

Husband’s bookkeeper.

(E/B/T 11/29/85 pp. 63,

76) (T/T 9/16/88 p. 6)

Wife admits to working

on all Husband’s

business ventures. She

prepared summaries of

income and assisted in

preparing financial

statements for Husband.

(E/B/T 1/29/86 p. 9)

59a

Appendix G

ALTER’S

CONTRADICTORY

VERSION:

“BOOKKEEPER”

(b) In equitable distribution

trial, referring to Masada

Construction Corp., “!

worked on the books of

Masada Construction

Corp.”

(EW Aff. 1/6/95 p. 3)

60a

Appendix G

17. Did Wife’s First Attorney, Kurtz, Give Her Legal

Advice?

ALTER’S VERSION

“NO”

SWORN

ALLEGATIONS IN

AFFIDAVITS AND

PLEADINGS

PREPARED BY ALTER

Wife received no advice

and recommendations

from her first attorney.

(EW Aff. 5/22/85 p. 3)

WIFE’S VERSION:

“YES”

ADMISSIONS

EXTRACTED FROM

WIFE AT

DEPOSITIONS OR

TRIAL

Wife rejected her first

attorney’s advice and

recommendations.

(E/B/T 11/29/85 p. 104)

(E/B/T 1/20/86 p. 79)

(The release of her first

attorney states, “.. . I have

rejected counsel’s advice

and legal representations

regarding its overall

nature.”’)

(a)

(b)

6la

Appendix G

18. Did Husband Ever Influence Wife With Regard

to Her Employment or Lack Thereof?

ALTER’S VERSION: WIFE’S VERSION:

“DON’T WORK” “WORK”

SWORN ADMISSIONS

ALLEGATIONS IN EXTRACTED FROM

AFFIDAVITS AND WIFE AT

PLEADINGS DEPOSITIONS OR

PREPARED BY ALTER TRIAL

Husband harassed Wife Husband harassed Wife

into leaving job. to get a job.

(Wife’s Reply Brief (E/B/T 11/29/85 p. 81)

p. 30)

ALTER CHANGES

VERSION TO:

“WORK”

Husband harassed Wife

to “get off your ass and

get to work.”

(EW Counter-claim p. 8)

(a)

62a

Appendix

19. Did Husband Comply

Separation Agreement?

ALTER’S VERSION:

“NO”

SWORN

ALLEGATIONS IN

AFFIDAVITS AND

PLEADINGS

PREPARED BY

ALTER

Husband failed to

comply with his

obligations under the

Separation Agreement.

(EW App. Brief p. 17)

Wife did not receive

“one cent for her support

and maintenance from

her husband.”

(EW Aff. 3/28/89 p. 5)

G

With the Terms of the

WIFE’S VERSION:

“YES”

ADMISSIONS

EXTRACTED FROM

WIFE AT

DEPOSITIONS OR

TRIAL

Wife’s housing,

mortgage, utilities,

telephone, insurance,

auto, etc., were paid for

by Husband.

(E/B/T 1/20/86 p. 167)

(T/T 2/6/89 pp. 2040-

2053)

(All of children’s

expenses were paid by

Husband including

medical schoo! and

dormitory for each child.

At the age of 15, the

youngest child went to

live with Husband.)

63a

Appendix G

ALTER CHANGES

VERSION TO: “YES”

(b) Wife requested that

Court order Husband to

continue paying for her

maintenance.

(EW Aff. 3/28/89 p. 7)

(The Court ultimately

refused this request since

Husband had been

making all payments;

Alter renewed this

extraneous request in

990 — please see

section IV infra.)

Husband has been paying

Wife around $3,500 a

month for maintenance

since 1983.

(ED Post Trial Memo

p. 5)

(c) Wife has been receiving

$2,100 a month.

(EW Aff. 1/6/95 p. 6)

(a)

64a

Appendix G

20. How Much Money, If Any, Did Wife Expend to

Alter for Legal Fees as of March 1989?

ALTER’S VERSION:

ALMOST NOTHING

SWORN

ALLEGATIONS IN

AFFIDAVITS AND

PLEADINGS

PREPARED BY ALTER

Alter has labored for

more than four years

without compensation

except for occasional,

sporadic and minuscule

amounts.

(Alter Aff. 3/28/89 p. 3)

WIFE’S VERSION:

$25,800.00

ADMISSIONS

EXTRACTED FROM

WIFE AT DEPOSITION

OR TRIAL

Wife had paid Alter

$25,800 on account.

(T/T 12/1/88 p. 1241)

(Notwithstanding the

foregoing, Wife swore in

her affidavit dated

3/28/89, that “My

attorneys have labored in

my behalf for more than

four years without

payment, except for

occasional, sporadic

minuscule amounts

which | had to borrow to

pay them.”) (EW Aff.

3/28/89 p.8)

(a)

65a

Appendix G

21. How Much Money, If Any, Did Wife Expend to

Alter for Legal Fees as of January 1995?

ALTER’S VERSION:

BARELY ANYTHING

Alter has successfully

represented Wife for

almost ten years “without

any significant payment”

(emphasis added)

(EW Aff. 1/6/95 p. 12)

COURT’S VERSION:

ALMOST $100,000.00

The Court found that

Alter had already

received close to

$100,000.00 (in addition

to keeping $4,000.00

allocated for appraisal

and accounting fees and

other money given to

Wife for her support and

support of the children)