Supreme Court of the United States
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
ROSS R. CALIGURI a/k/a ROSS CALIGURI,
ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE STATE OF NEW YORK
PETITION FOR A WRIT OF CERTIORARI (DENIED, 4 OCTOBER, 2021)
“This is Shocking”.
If you want to know why mainstream media is also tainted, this case is a prime example. LIT is the only blog who’s been fervently documenting the corruption by the government, Wall St and their entourage of high paid BigLaw firms and lawyers since the 2008 Financial Crisis. Mainstream media use cases like this as padding for their daily news. Most of the 2008 crisis is now deleted or archived.
As proof, main stream media have yet to display this case as “breaking news” on the first day back for SCOTUS. It’s left in the darkness of a list of denied petitions decided by a law clerk.
Not any more.
We’re first to post this appalling case from this mornings denied petitions.
SCOTUS has allowed millions of homes to be stolen by Wall St, care of the corrupt judges like Janet DiFiore below. SCOTUS has sat on the side and nodded it’s approval since at least 2008. It’s the largest real estate fraud and theft in history and the benefactors are REITS, investors, and Wall St. As a result, it’s caused mayhem, the current affordable housing crisis (no inventory) and booming rental rates which the average citizen cannot afford, let alone pass the daunting credit application.
The fact that corrupt Chief Judge Janet DiFiore and Hank Greenberg of GT Law are friends and clients has created a public issue which the judiciary hopes will disappear over time. LIT will not let that happen and they have confidential support from others in the legal profession.
It’s time to disband this ochlocracy once and for all. Join us.
Ross R. Caliguri (“Caliguri”) petitions for a writ of certiorari to review the Memorandum Decision of the Court of Appeals of the State of New York dated December 17, 2020.
(1) Whether the Court of Appeals of the State of New York was in a “conflict of interest” position when it issued its Memorandum Decision dated December 17, 2020 affirming the judgment of the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (the “Second Department”) in this mortgage foreclosure action in violation of Caliguri’s 14th Amendment right?
PARTIES TO THE PROCEEDING
Petitioner, Caliguri, was the defendant in this action and also the appellant in the Court of Appeals of the State of New York.
Respondent, JPMorgan Chase Bank, N.A. was the plaintiff in this action and was the respondent in the Court of Appeals of the State of New York.
The Chief’s Conflict of Interest…
PETITION FOR A WRIT OF CERTIORARI
Petitioner Caliguri respectfully petitions this Court for a writ of certiorari to review the Memorandum Decision of the Court of Appeals of the State of New York dated December 17, 2020. The Court of Appeals is the highest court in the State of New York Judicial System.
The Court of Appeals’ Memorandum Decision is reported at 36 N.Y.3d 953, 160 N.E.3d 693, 136 N.Y.S.3d 225, 2020 N.Y. LEXIS 2870, 2020 NY Slip
Op 07660 (12/17/20) (Appx 5a-7a).
The Memorandum Decision affirmed the decision of the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (the “Second Department”) reported at 168 A.D.3d 819, 92 N.Y.S.3d 95, 2019 N.Y. App. Div. LEXIS 295, 2019 NY Slip Op 00262, 2019 WL 209065 (2nd Dept., 2019).
This Honorable Court has jurisdiction to determine this petition for a writ of certiorari pursuant to the provisions set forth in 28 U.S.C. §2101 as it pertains to a violation of Caliguri’s 14th Amendment right.
28 U.S.C. §2101(c) provides:
“Any other appeal or any writ of certiorari intended to bring any judgment or decree in a civil action, suit or proceeding before the Supreme Court for review shall be taken or applied for within ninety days after the entry of such judgment or decree.”
Herein, the petition for a writ of certiorari is being timely filed as Caliguri had filed a motion for reargument with the Court of Appeals dated January 3, 2021, which was returnable on January 5, 2021; the Court of Appeals denied the motion for reargument on April 1, 2021 notwithstanding that the motion for reargument was unopposed by the Plaintiff-Respondent JPMorgan Chase Bank, N.A (Appx 1a-2a). As set forth in the Supreme Court’s Rule 13.3:
“’The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of denial of the petition for rehearing or, if the petition for rehearing is granted, the subsequent entry of judgment.’”
Please see also Hibbs v Winn, 542 U.S. 88, 97, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004). Accordingly, given that there was a motion to reargue filed with the Court of Appeals, the Supreme Court of the United States has jurisdiction to determine the petition for a writ of certiorari although the petition was not filed within ninety (90) days of the issuance of the Memorandum Decision dated December 17, 2020, but was filed prior to the expiration of the Ninety (90) days from the denial of the motion for reargument dated April 1, 2021.
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States Constitution provides in Section 1:
“…; nor shall any State deprive any person of life,
… or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
STATEMENT OF THE CASE
The Plaintiff-Respondent JPMorgan Chase Bank, N.A. commenced a prior mortgage foreclosure action against Caliguri in the Supreme Court of the State of New York, Suffolk County (the “Suffolk Supreme Court”). (the “First Caliguri Action”).
The First Caliguri Action was commenced by summons and complaint dated July 2, 2009 and was assigned to the Honorable Paul J. Baisley, Jr. (“Judge Baisley”), Index No. 25638/09.
Caliguri prevailed in the First Caliguri Action when Judge Baisley issued the order granting summary judgment dated March 7, 2012 (the “First Caliguri Order”).
The First Caliguri Order stated in pertinent part:
“ORDERED that the motion (motion sequence no. 004) of defendant Ross R. Caliguri for an order granting summary judgment dismissing this mortgage foreclosure action with prejudice, striking the complaint and, in the alternative, other sanctions, in accordance with CPLR §3126 and R. 3212, is granted as set forth hereinafter.
The submissions reflect that plaintiff J.P. Morgan Chase Bank, N.A. commenced the instant action to foreclose a consolidated mortgage on July 2, 2009.
Thereafter defendant-mortgagor Ross R. Caliguri served an answer which, inter alia, asserted plaintiff’s lack of standing as an affirmative defense.
Defendant subsequently served plaintiff with interrogatories and a demand for production of documents.
In particular, defendant demanded that plaintiff produce the original note and original mortgage assignment for inspection at the Long Island office of plaintiff’s attorney, Steven J. Baum, P.C ‘on a mutually [convenient] date and time.’
In response, plaintiff interposed various objections to defendant’s interrogatories and document demands, and, citing the ‘commercial sensitivity of these documents,’ produced only a copy of the notes, mortgage and assignment without offering a date and time for the production of the original documents.
Defendant thereafter interposed a motion (motion sequence no. 003) to compel plaintiff to ‘fully and completely respond to all of the discovery requests propounded by [defendant].’
While the motion to compel, was sub judice, and after a compliance conference at which plaintiff’s repeated failure to produce the original note and mortgage assignment was discussed, defendant served plaintiff a second request for production of documents dated September 9, 2011 which requested that the original mortgage note and the original mortgage assignment be made available for inspection at the Long Island office of plaintiff’s attorney in Westbury on a date certain, to wit, October 5, 2011 at 2:00 p.m.
The submissions reflected that defendant’s attorney appeared at the Westbury office of Steven J. Baum, P.C. on October 5, 2011 at 2:00 p.m., together with a forensic document examiner retained for the purpose of inspecting the original documents.
Notwithstanding the duly served ‘Second Request for Production of Documents,’ to which plaintiff did not respond or object, no original documents were produced for defendant’s inspection at that time or thereafter.
On October 7, 2011, defendant interposed the instant motion for summary judgment dismissing the action with prejudice, striking the complaint, and for other sanctions in accordance with CPLR §3126 and R. 3212.
Defendant’s motion is predicated in substantial part on plaintiff’s failure to produce evidence of its standing to commence and prosecute this mortgage foreclosure action.
It is well established that where the standing of a plaintiff in a mortgage foreclosure action is a contested issue, as here, the plaintiff must prove that it was the holder or assignee of both the subject mortgage and the underlying note at the time of commencement of the action in order to be entitled to relief
(Bank of New York v. Silverberg, 86 AD3d 274 [2d Dept 2011]).
In opposition to defendant’s motion, plaintiff has submitted only the affirmation of its attorney, who does not have personal knowledge of the facts alleged therein and accordingly is incompetent to establish plaintiff’s standing
(Zuckerman v. City of New York, 49 NY2d 557 ).
Moreover, the documentary evidence annexed thereto, including a purported assignment executed by a purported ‘attorney in fact,’ fails to establish as a matter of law that plaintiff was the owner and holder of the subject note(s) and mortgage(s) at the time of commencement of this action.
Plaintiff has thus failed to establish, by proof in admissible form, its standing to commence and maintain the instant action. Accordingly, the submissions establish defendant’s prima facie entitlement to summary judgment dismissing plaintiff’s complaint.
Additionally, the submissions establish plaintiff’s willful failure to comply with the discovery orders of this Court.
The October 19, 2011 order of this Court (BAISLEY, J.) granted defendant’s prior motion to compel discovery, noting that plaintiff’s prior responses were ‘substantially deficient’ and that plaintiff’s interposed objections were ‘improper.’
The order directed plaintiff to provide full, complete and substantive responses to each of defendant’s interrogatories, including identifying with specificity ‘any and all persons that assisted in the preparation of the responses,’ ‘all persons with knowledge of the facts at issue in this case,’ and ‘any and all witnesses’ that plaintiff intends to call at trial, and providing a basis for interpreting the computerized payment schedule annexed to plaintiff’s response to defendant’s interrogatories, within 20 days of the date of service of notice of entry of this order.’
In addition, the order directed plaintiff to ‘make available for defendant’s inspection the original mortgage note and original mortgage assignment, at a mutually convenient place and time but in no event later than 20 days after the date of service of notice of entry of this order.’
Notwithstanding the foregoing, the ‘Amended Answers to Interrogatories’ served by plaintiff on or about November 8, 2011 in response to the Court’s order failed to comply with the order in several material respects.
Plaintiff admittedly failed to ‘identify all persons with knowledge of the facts at issue in this case,’ failed to provid[e] a basis for interpreting the computerized payment scheduled annexed to plaintiff’s response to defendant’s interrogatories,’ and interposed substantially the same objections that had previously been ruled upon by the Court and found to be ‘improper.’
In light of the express directives contained in the order, plaintiff’s failure to provide ‘full, complete and substantive responses’ must be deemed to be willful (Forbes v. New York City Tr. Auth., 88 AD3d 546 [1st Dept 2011]) and provides an independent basis for striking plaintiff’s complaint in this action.” (Footnote Omitted).
Accordingly, the First Caliguri Order concluded by stating in pertinent part:
“In light of all of the foregoing, and in accordance with CPLR R. 3212 and §3126, the Court grants defendant’s motion for summary judgment and strikes plaintiff’s complaint.”
(Appx 17a-22a ).
The Plaintiff-Respondent JPMorgan Chase Bank, N.A. never appealed the First Caliguri Order nor filed a motion for reargument.
Based on the provisions of the provisions of the First Caliguri Order, Caliguri commenced an action in the Suffolk Supreme Court by summons and complaint dated April 23, 2012 seeking an order cancelling and discharging the following mortgage liens against the Property possessed by JPMorgan Chase Bank, N.A., as successor to Washington Mutual Bank, FSB, pursuant to the provisions of NY RPAPL §1501:
(a) the mortgage dated November 2, 2005 and recorded with the Suffolk County Clerk on November 18, 2005 at Liber M00021174, Page 335 to secure a borrowing in the original sum of Nine Hundred Forty Five Thousand and xx/100 Dollars ($945,000.00);
(b) the mortgage dated October 31, 2007 and recorded with the Suffolk County Clerk on November 23, 2007 at Liber M00021637, Page 178 to secure a borrowing in the original sum of Seven Thousand One Hundred Seventy Five and 28/100 Dollars ($7,175.28) (the “Discharge of Mortgage Action”);
the Discharge of Mortgage Action was assigned Index No. 13522/2012. In lieu of answering the complaint in the Discharge of Mortgage Action, JPMorgan Chase Bank, N.A. filed its motion to dismiss the complaint in accordance with the provisions set forth in NY CPLR §3211;
in response, Caliguri filed a cross-motion for summary judgment in accordance with the provisions set forth in NY CPLR §§3211(c) and 3212.
In lieu of sending the case to Judge Baisley for an interpretation of the First Caliguri Order, the Honorable Ralph T. Gazzillo, another judge of the Suffolk Supreme Court, issued the Order dated May 13, 2013 (the “Gazzillo Order”).
The Gazzillo Order granted JPMorgan Chase Bank, N.A.’s motion to dismiss the Discharge of Mortgage Action and denied Mr. Caliguri’s cross-motion for summary judgment.
Caliguri took a timely appeal of the Gazzillo Order to the Second Department.
The Second Department affirmed the Gazzillo Order by the Opinion dated October 29, 2014, 121 A.D.3d 1030, 996 N.Y.S.2d 73 ((2nd Dept., 2014), Docket No. 2013-06651;
the latter opinion stated in pertinent part at 121 A.D.3d at 1031-1032:
“Contrary to the plaintiff’s contention, a dismissal premised on lack of standing is not a dismissal on the merits for res judicata purposes. Furthermore, the alternative basis for dismissal of the prior action, the striking of the complaint for noncompliance with a discovery order, was not a dismissal on the merits. Accordingly, the Supreme Court properly granted JPMorgan Chase’s motion to dismiss the complaint for failure to state a cause of action and denied, as academic, the plaintiff’s cross-motion for summary judgment on the complaint.”
Caliguri filed a timely motion for re-argument or, in the alternative, motion for permission from the Second Department to appeal the Opinion of the Second Department Decision dated October 29, 2014. By Decision & Order dated April 6, 2015, the Second Department denied the Caliguri motion by the Decision & Order on Motion dated April 6, 2015.
Caliguri also sought leave of the Court of Appeals to appeal the Second Department decision dated October 29, 2014 to the Court of Appeals, however, the Court of Appeals denied said permission to appeal.
Deutsche Bank Represented by Greenberg Traurig
The Plaintiff-Respondent JPMorgan Chase Bank, N.A. commenced a second mortgage foreclosure action against Caliguri seeking to foreclose the same mortgage on the Property based on the same purported mortgage note and the same default in payment in the Suffolk Supreme Court by summons and complaint dated August 7, 2014, Index No. 066298/2014 (the “Second Caliguri Mortgage Fore- closure Action”), which case was assigned to the Honorable John Rouse (“Judge Rouse”), a coordinate judge to Judges Baisley and Gazzillo on the Suffolk Supreme Court.
Caliguri filed a timely answer and a motion to transfer the Second Caliguri Mortgage Foreclosure Action to Judge Baisley. And Caliguri propounded document demands upon JPMorgan Chase Bank, N.A. dated April 10, 2015, which included as the first item, the production of the original note for examination and inspection within thirty (30) days at the JPMorgan Chase Bank, N.A.’s attorney’s office in Long Island. In lieu of responding to the Caliguri discovery demands, JPMorgan Chase Bank, N.A. filed a motion for summary judgment and an opposition to the motion to transfer the case to Judge Baisley dated June 1, 2015;
Caliguri filed his cross-motion and an opposition to the motion for summary judgment dated June 18, 2015;
JPMorgan Chase filed its reply affirmation in support of motion and in opposition to the cross-motion for summary judgment dated June 29, 2015;
and Caliguri filed his reply affirmation to the cross-motion dated July 3, 2015. Judge Rouse denied the Caliguri motion to transfer the Second Caliguri Foreclosure Action to Judge Baisley and granted summary judgment in favor of JPMorgan Chase Bank, N.A in the Order dated May 11, 2017 stating, in part, that the discovery demands by Caliguri did not have to be honored and the case need not be transferred to Judge Baisley.
Caliguri appealed the Order dated May 11, 2017 to the Second Department by notice of appeal dated June 14, 2017.
The Second Department affirmed the Order dated May 11, 2017 by the Decision & Order dated January 16, 2019, 168 A.D.3d 819, 92 N.Y.S.3d 95 (2nd Dept.,2018), Docket No. 2017-06999.
The January 16, 2019 Decision & Order acknowledged the demand for the discovery of the original mortgage note, but stated in pertinent part:
“JPMorgan Chase demonstrated its prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default. In addition, it established its standing by attaching to the summons and complaint a copy of the consolidated note, bearing an endorsement in blank from the original lender. Contrary to the defendant’s contention, ‘there is no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it’. In opposition, the defendant failed to raise a triable issue of fact.”
The Suffolk Supreme Court issued the judgment of foreclosure and sale dated February 8, 2019 in the Second Caliguri Mortgage Foreclosure Action.
The Court of Appeals granted Caliguri leave to appeal to the Court of Appeals to determine the issues set forth in the January 16, 2019 Decision & Order except the issue as to whether the Second Caliguri Mortgage Foreclosure Action should have been transferred to Judge Baisley (Appx 8a-9a).
The Court of Appeals also issued a “stay” of the mortgage foreclosure sale of the Property, APL-2019-00119.
Caliguri perfected the appeal to the Court of Appeals by the filing of the appellate record and the Brief for Defendant-Appellant dated August 6, 2019 (received by the Court of Appeals on August 9, 2019;
JPMorgan Chase Bank, N.A. filed the Brief of Plaintiff-Respondent JPMorgan Chase Bank, N.A. dated October 28, 2019;
and Caliguri filed the Reply Brief for Defendant-Appellant dated November 25, 2019.
The Caliguri appeal to the Court of Appeals had two (2) primary issues for the Court of Appeals to hear and determine.
a. did Judge Rouse, the Suffolk Supreme Court judge presiding over the Second Caliguri Mortgage Foreclosure Action prematurely grant summary judgment in favor of JPMorgan Chase Bank, N.A. when there were outstanding document demands including, but not limited to, the production of the original mortgage for inspection;
b. did Judge Rouse, violate the doctrines of res judicata, collateral estoppel and/or law of the case by failing to follow the rulings made in the First Caliguri Action by Judge Baisley, a coordinate judge of the Suffolk Supreme Court, who presided over the First Caliguri Action “between the same parties”, such as the order requiring JPMorgan Chase Bank, N.A. to produce the original mortgage note for inspection and examination.
The Court scheduled oral argument on the Caliguri Court of Appeals appeal to be held on November 17, 2020 at 2:00 p.m. (Appx 15a-16a).
Incredibly, the summary of the case prepared by the Court of Appeals was limited to the production of the original note and never mentioned the res judicata/collateral estoppel/law of the case issue.
The Court of Appeals issued the Memorandum Decision dated December 17, 2020 and Caliguri filed his motion for reargument dated January 3, 2021, which motion for reargument was denied on April 1, 2021.
REASONS FOR GRANTING THE WRIT
An action was commenced in the Suffolk Supreme Court pertaining to the termination of four (4) specific Appellate Division (intermediate level appellate court) judges due to their age, entitled:
“In the Matter of the Application of HON. ELLEN GESMER, HON. DAVID FRIEDMAN, HON. SHERI S. ROMAN, HON. JOHN M. LEVENTHAL, and DANIEL J. TAMBASCO,
Petitioners-Plaintiffs For a Judgment under Article 78 of the CPLR
THE ADMINISTRATIVE BOARD OF THE NEW YORK STATE UNIFIED COURT SYSTEM, JANET DIFIORE, AS CHIEF JUDGE OF THE NEW YORK STATE UNIFIED COURT SYSTEM, and LAWRENCE K. MARKS, AS CHIEF ADMINISTRATIVE JUDGE OF THE NEW YORK STATE UNIFIED COURT SYSTEM,
The latter action was assigned Index No. 616980/2020 (the “First Judge Action).
The First Judge Action was commenced by summons dated November 5, 2020 and Verified Article 78 Petition and Complaint dated November 5, 2020.
Please note that November 5, 2020 was only twelve (12) days prior to the scheduled oral argument in the Caliguri Appeal (November 17, 2020) and Chief Judge Janet DiFiore was a named respondent-defendant in the First Judge Action.
The First Judge Action was assigned to Judge Baisley, (Appx 27a-80a), the same judge of the Suffolk Supreme Court who presided over the First Caliguri Action (Appx 150a).
The undersigned counsel first became aware of the pendency of the First Judge Action on Wednesday, November 18, 2020, one (1) day after the Caliguri Appeal oral argument before the Court of Appeals, when he read a front page article in the November 18, 2020 issue of the New York Law Journal pertaining to the First Judge Action and the article disclosed that Chief Judge DiFiore and others also failed to comply with a discovery order issued by Judge Baisley in the First Judge Action.
There was also a second action that was commenced against the Chief Judge Janet DiFiore and others in the Suffolk Supreme Court entitled:
“In the Matter of the Application of:
SUPREME COURT JUSTICES ASSOCIATION OF THE CITY OF NEW YORK, Inc., by its President HON. ESTHER M. MORGENSTEIN, ASSOCIATION OF JUSTICES OF THE SUPREME COURT OF THE STATE OF NEW YORK, by its President HON. CHARLES C. MERRELL, HON. KATHRYN E. FREED, HON. ORLANDO MARRAZZO, HON. LARRY D. MARTIN, HON. JAMES J. PIAMPIANO, HON. BERNICE D. SIEGAL, and HON. FERNANDO TAPIA,
For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules,
THE ADMINISTRATIVE BOARD OF THE NEW YORK STATE UNIFIED COURT SYSTEM, JANET DIFIORE, AS CHIEF JUDGE OF THE NEW YORK STATE UNIFIED COURT SYSTEM and LAWRENCE K. MARKS, AS CHIEF ADMINISTRATIVE JUDGE OF THE NEW YORK STATE UNIFIED COURT SYSTEM,
This action was assigned Index No. 618314/2020 (the “Second Judge Action”).
The Second Action was commenced by Summons and Verified Petition dated November 24, 2020
The Second Action was also assigned to Judge Baisley (Appx 156a-199a).
As stated previously, Judge Baisley, was the Suffolk Supreme Court justice, who issued the Order dated March 7, 2012 in the First Caliguri Action, which was part of the Record on Appeal in the Caliguri Appeal;
the provisions of the Order dated March 7, 2012 was set forth in great detail above.
As also set forth above, Judge Baisley was the judge that granted Caliguri granted summary judgment, with prejudice, on its motion for summary judgment pursuant to the provisions set forth in CPLR §§3126 and 3212 in the First Caliguri Action.
The First Judge Action was commenced by the Order to Show Cause dated November 5, 2020 issued by Judge Baisley (the same Suffolk Supreme Court judge that issued the Order dated March 7, 2012, which was part of the Record on Appeal in the Caliguri Appeal) which provided in pertinent part:
“ORDERED, that the Petitioners-Plaintiffs may seek expedited discovery in connection with their Article 78 claims;
ORDERED, that the Respondents-Defendants are to produce written discovery requests to the document requests attached as Exhibit 2 to the accompanying Catterson Aff. no later than November 13, 2020;
ORDERED, that the Respondents-Defendants will conduct the deposition of Chief Judge Janet DiFiore pursuant to the notice of deposition attached as Exhibit 3 to the accompanying Catterson Aff. on November 16, 2020.
(Emphasis Added) (Appx 151a-155a). Please note that the scheduled deposition of Chief Judge DiFiore on November 16, 2020 was only one (1) day prior to the oral argument in the Court of Appeals (November 17, 2020) on the Caliguri Appeal.
Wells Fargo Represented by Greenberg Traurig
After Chief Judge DiFiore and the other named respondents failed to produce the demanded documentary discovery and Chief Judge DiFiore failed to appear at the deposition scheduled to be held on November 16, 2020, the Plaintiffs in the First Judge Action filed a memorandum of law in support of Plaintiffs’ Motion for Contempt of Court on November 18, 2020, with exhibits (one (1) day after the scheduled oral argument on the Caliguri Appeal).
Pages 2 and 3 of the memorandum of law stated in pertinent part:
“Pursuant to the expedited discovery requests and the Court’s expedited discovery order, Respondents’ documents were due to be produced on Friday November 13, 2020, and Chief Judge DiFiore was to be deposed on Monday November 16, 2020.
Respondents’ counsel initiated a meet and confer on the very day documents were due.
During that meet and confer, Respondents’ counsel advised Petitioners’ counsel that OCA (the Office of Court Administration) would be unable to produce the documents sought prior to the passage of at least two years’ time.
Without the courtesy of mentioning it, Respondents then filed a 50-page cross-motion, seeking, among other things, the instant motion for a protective order at nearly 11 p.m. on Friday, November 13, 2020.
The protective order is nothing more than a baseless attempt to re-litigate the expedited discovery order their counsel failed to oppose in the first place. But, as powerful as the Respondents are, they, like all defendants who appear before the Courts of this State, must abide by court-ordered discovery and must adhere to court orders.
The Respondents are not above the law and must set an example for other defendants who seek to evade legitimate discovery obligations.
To date, Respondents have produced no discovery whatsoever. Indeed, they have imperiously declared that they intend not to do so.
They also have refused to sit for depositions, instead interposing a baseless motion simply to run out the clock. This will work a grave injustice on the Petitioners.
Ultimately, Respondents can offer no legitimate excuse for their failure to obey this Court’s Order, other than their counsel’s ‘screw up’ in failing to appear at the hearing at which Respondents could have and should have presented the present arguments.
Unless a swift and decisive message is sent, Respondents will continue to ignore this Court’s authority and render null and void any relief the Court can provide in this matter.”
(Emphasis Added). (Appx 157a-199a).
Accordingly, the similarities between the First Judge Action and the Caliguri Appeal to the Court of Appeals are incredibly stark.
Both cases relate to the failure of a party to produce Court-ordered discovery and both concerned orders issued by Judge Baisley.
The only difference is that in the Caliguri Appeal to the Court of Appeals, the non-compliant party was JPMorgan Chase Bank, N.A. and in the First Judge Action, the non-compliant parties included Chief Judge DiFiore.
And Chief Judge DiFiore never recused herself from the Caliguri Appeal and, in fact, she even concurred in the Memorandum Decision dated December 17, 2020.
However, as of November 17, 2020, the date of the Caliguri Appeal oral argument, Chief Judge DiFiore was immediately placed in a conflict of interest situation; if she ruled in favor of Caliguri on the Caliguri Appeal, she may have negatively impacted her defense in the First Judge Action and possibly, the Second Judge Action.
Please note that Caliguri is not addressing the merits of the First Judge Action or the Second Judge Action, but simply demonstrating that Chief Judge Janet DiFiore was conflicted as of November 17, 2020 (the date of the Caliguri oral argument) and remained conflicted as of December 17, 2020 (the date of the Memorandum Decision).
The Preamble of Part 100 entitled: “Judicial Conduct” of the Rules of the Chief Administrative Judge in the State of New York provides:
“The rules of governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The rules are to be construed so as not to impinge on the essential independence of judges in making judicial decisions.
The rules are designed to provide guidance to judges and … and to provide a structure of regulating conduct through disciplinary agencies. They are not designed or intended as a basis for civil liability or criminal prosecution.
The text of the rules is intended to govern conduct of judges and … and to be binding upon them. It is not intended, however, that every transgression will result in disciplinary action…
The rules are not intended as an exhaustive guide for conduct. Judges and … also should be governed in their judicial and personal conduct by general ethical standards.
The rules are intended, however, to state basic standards which should govern their conduct and to provide guidance to assist them in establishing and maintaining high standards of judicial and personal conduct.”
Section 100.0 entitled: “Terminology” includes:
“(R). “Impartiality” denotes absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintaining an open mind in considering issues that may come before the judge.
(S) An “independent” judiciary is one free of outside influence or control.
(T) “Integrity” denotes probity, fairness, honesty, uprightness and soundness of character. “Integrity” also includes a firm adherence to this Part or its standards of values.
(U) A “pending proceeding” is one that has begun but not yet reached its final disposition.”
Section 100.1 entitled: “A judge shall uphold the integrity and independence of the judiciary” provides:
“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Part 100 are to be construed and applied to further that objective,”
Section 100.2 entitled: “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities” provides in pertinent part:
“(A) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartially of the judiciary.”
And Section 100.3 entitled: “A judge shall perform the duties of judicial office impartially and diligently” states in pertinent part:
“(A) Judicial Duties in General. The judicial duties of a judge take precedence over all the judge’s other activities. The judge’s judicial duties include all the duties of the judge’s office prescribed by law. In the performance of these duties, the following standards apply.
(B) Adjudicative Responsibilities.
(1) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism…
(4) A judge shall perform judicial duties without bias or prejudice against or in favor of any person…
(7) A judge shall dispose of all judicial matters promptly, efficiently and fairly.”
In the current matter, the impartiality and fairness of Chief Judge DiFiore was immediately cast in doubt upon the initiation of the First Judge Action and its demand for the production of documents, to which Chief Judge DiFiore and others had failed to comply and her failure to appear for a deposition as of November 17, 2020 (the date of the Caliguri oral argument) and as of December 17, 2020 (the date of the Memorandum Decision).
Accordingly, the participation of Chief Judge DiFiore in the Caliguri Appeal should have been immediately severed for all purposes relating to the Caliguri Appeal as she could no longer render an independent decision in the Caliguri Appeal as it may have impaired her ability to defend the First Judge Action wherein she failed to produce Court-ordered discovery and to appear for a Court-imposed deposition (ordered by the same Suffolk Supreme Court judge that issued the First Caliguri Order).
Caliguri filed a motion to reargue the Memorandum Decision dated January 3, 2021 and received by the Court of Appeals on or about January 5, 2021 pertaining to the above-referenced conflicts of interest by Chief Judge DiFiore. The motion to reargue was never opposed by JPMorgan Chase Bank. Notwithstanding, the Court of Appeals denied the motion for reargument on April 1, 2021.
Chief Judge DiFiore’s participation in the Caliguri Appeal was a violation of Caliguri’s Fourteenth Amendment right.
The 14th Amendment provides in Section 1:
“…; nor shall any State deprive any person of life,
… or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In the current matter, Caliguri’s right in property is being adversely affected given that JPMorgan Chase Bank, N.A. is seeking to foreclose its mortgage on the Property.
Thus, Caliguri’s 14th Amendment right to a fair and neutral judicial tribunal is being trampled upon.
Please see Williams v. Pennsylvania, 136 S.Ct. 1899, 195 L.Ed.2d 132, 2016 U.S. LEXIS 3774 (2016).
And while Williams v. Pennsylvania pertained to a criminal case, a similar result occurred in Caperton v. A.T, Massey Coal Co., 556 U.S. 868, 872, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (quoting Winthrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)), which was a civil case.
In sum, Caliguri’s 14th Amendment right to a fair and neutral appellate tribunal was denied by the Chief Judge Janet DiFiore’s conflict of interest.
This taint was further evidenced by the failure of the Court of Appeals’ summary to include any reference to the res judicata/collateral estoppel/the law of the case doctrines.
And in fact, the Memorandum Decision barely referenced this issue of the Caliguri Appeal as it merely stated in the last sentence:
“Defendant’s remaining contentions are without merit” without providing any law or authority to support this conclusion of law.
The Court of Appeals, the highest state court in the State of New York, is a seven (7) member appellate tribunal. Williams v. Pennsylvania stated at 136 S.Ct. at 1909-1910:
“Having determined that Chief Justice Castille’s participation violated due process, the Court must resolve whether Williams is entitled to relief. In past cases, the Court has not had to decide the question whether a due process violation arising from a jurist’s failure to recuse amounts to harmless error if the jurist is on a multimember court and the jurist’s vote was not decisive.
(addressing ‘the question whether a decision of a multimember tribunal must be vacated because of the participation of one member who had an interest in the outcome of the case,’ where that member’s vote was outcome determinative).
For the reasons discussed below, the Court holds that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote.
The Court has little trouble concluding that a due process violation arising from the participation of an interested judge is a defect ‘not amenable’ to harmless-error review, regardless of whether the judge’s vote was dispositive.
The deliberations of an appellate panel, as a general rule, are confidential.
As a result, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decision making process.
Indeed, one purpose of judicial confidentiality is to assure jurists that they can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues.
As Justice Brennan wrote in his Lavoie concurrence,
‘The description of an opinion as being ‘for the court’ connotes more than merely that the opinion has been joined by a majority of the participating judges. It reflects the fact that these judges have exchanged ideas and arguments in deciding the case. It reflects the collective process of deliberation which shapes the court’s perception of which issues must be addressed and, more importantly, how they must be addressed. And, while the influence of any single participant in this process can never be measured with precision, experience teaches us that each member’s involvement plays a part in shaping the court’s ultimate disposition.’
475 U.S. at 831, 106 S.Ct. 1580, 89 L.Ed.2d 823.’
These considerations illustrate, moreover, that it does not matter whether the disqualified judge’s vote was necessary to the disposition of the case.
The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position. That outcome does not lessen the unfairness to the affected party.
A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias, demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication.
Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless.
The Commonwealth points out that ordering a rehearing before the Pennsylvania Supreme Court may not provide complete relief to Williams because judges who were exposed to a disqualified judge may still be influenced by their colleague’s views when they rehear the case.
An inability to guarantee complete relief for a constitutional violation, however, does not justify withholding a remedy altogether. Allowing an appellate panel to reconsider a case without the participation of the interested member will permit judges to probe lines of analysis or engage in discussions they may have felt constrained to avoid in their first deliberations.
Chief Justice Castille’s participation in Williams’s case was an error that affected the State Supreme Court’s whole adjudicatory framework below.
Williams must be granted an opportunity to present his claims to a court unburdened by any ‘possible temptation… not to hold the balance nice, clear and true between the State and the accused.’
Where a judge has had an earlier significant, personal involvement in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level.
Due process entitles Terrance Williams to ‘a proceeding in which he may present his case with assurance’ that no member of the court is ‘predisposed to find against him.’”
The concurrence in Isom v. Arkansas, U.S. , 140 S.Ct. 342, 205 L.Ed.2d 373, 2019 U.S. LEXIS 7195 (2019) stated at 140 S.Ct. at 343-344:
“Our precedents require recusal where the ‘probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’
Rippo v. Baker, 580 U.S. , 137 S.Ct. 905, 197 L.Ed.2d 167 at 168 (per curiam) (quoting Winthrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)).
The operative inquiry is objective: whether, ‘considering all the circumstances alleged,’
Rippo, 580 U.S., at , 137 S.Ct. 905, 197 L.Ed.2d 167 at 168),
‘the average judge in [the same] position is likely to be neutral, or whether there is an unconstitutional potential for bias,’
Williams v. Pennsylvania, 579 U.S. , , 136 S.Ct. 1899, 195 L.Ed.2d 132 at 134 (2016)(internal quotation marks omitted).
This Court has ‘not set forth a specific test’ or required recusal as a matter of course when a judge has had prior involvement with a defendant in his role as a prosecutor.
Cf. id. at , 136 S.Ct. 1899, 195 L.Ed.2d 132 at 136).
Nor has it found that ‘opinions formed by the judge on the basis of facts introduced or events occurring in the course of … prior proceedings’ constitute a basis for recusal in the ordinary case.
Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Indeed, ‘it may be necessary and prudent to permit judges to preside over successive causes involving causes involving the same parties or issues.’
Id., at 562 (Kennedy, J., concurring).”
It should be noted that both Isom v. Arkansas and Williams v. Pennsylvania concerned recusals in criminal matters, although Williams v. Pennsylvania pertained to a judge on the highest court of Pennsylvania’s failure to recuse himself. However, Caperton v. A.T. Massey Coal Co., 562 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) pertained to the failure of a justice on the highest state court in West Virginia’s failure to recuse himself in a civil matter. Caperton v. A.T. Massey Coal Co. stated at 556 U.S. at 886-887:
“Justice Benjamin did undertake an extensive search for actual basis. But, as we have indicated, that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved. Due process ‘may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.’
Murchison, 349 U.S., at 136, 75 S.Ct. 623, 99 L.Ed. 942.
The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process. We find that Blankenship’s significant and disproportionate influence – coupled with the temporal relationship between the election and the pending case – ‘’’’offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true.’’’’
Lavoie, 475 U.S., at 825, 106 S.Ct. 1580, 89 L.Ed.2d 823 (quoting Monroeville, 409 U.S., at 60, 93 S.Ct. 80, 24 L.Ed.2d 267, in turn quoting
Tumey, 273 U.S., at 532, 47 S.Ct. 437, 71 L.Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236).
On these extreme facts the probability of actual bias rises to an unconstitutional level.”
In Williams-Yulee v. Fla. Bar, 572 U.S. 433, 133 S.Ct. 1656, 191 L.Ed.2d 570 (2015), a case concerning campaign solicitations by judges, the Supreme Court quoting the Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829-1830, p. 616 (1830) stated at 572 U.S. at 447:
“A judge instead must ‘observe the utmost fairness,’ striving to be ‘perfectly and completely independent, with nothing to influence or control him but God and conscience.”
Accordingly, Caliguri was entitled to a fair and impartial appellate court untainted by Chief Judge DiFiore and her conflicts of interest resulting by the commencement of the First Judge and the Second Judge Actions.
The unfairness and taint of the Court of Appeals to provide Caliguri a neutral appellate panel was a violation of Caliguri’s 14th Amendment rights.
It is also problematic whether the remaining members of the Court of Appeals can be impartial and fair in the Caliguri Appeal given their knowledge of the First Judges and the Second Judges Actions and the confidential communications that they may have already had with Chief Judge DiFiore.
Therefore, it may be difficult to find a neutral tribunal to transfer the Caliguri Appeal.
It may be possible that a neutral appellate tribunal can be a seven (7) member Fourth Department panel with it being temporarily granted the rights and privileges of the Court of Appeals of the State of New York; it is believed that the First Department and the Second Departments cannot be neutral as the First Judge Action was commenced by four (4) justices belonging to the First and Second Departments; and the Second Department having transferred the First and Second Judge Actions to the Third Department.
And now that the Third Department has issued its decision reversing the order by Judge Baisley, it is doubtful that the Third Department can be impartial and, if the Court of Appeals must rule on the First Judge and the Second Judge Actions on appeal, it is doubtful that the Court of Appeals can be a neutral appellate tribunal even if Chief Judge DiFiore recuses herself from a reargument of the Caliguri Appeal.
A writ of certiorari should be issued to review the Memorandum Decision of the Court of Appeals of the State of New York dated December 17, 2020.
Jeffrey Herzberg, P.C.
300 Rabro Drive, Suite 114
Hauppauge, New York 11788
Counsel for Petitioner
Dated: Hauppauge, New York
May 17, 2021