Life was not in danger, but the source of livelihood was taken away, with people required to work for the government. So, the day came for the great escape. A smuggler drove the family to the border, Fried his wife and their two daughters. It was a run through the wheat fields into Austria. It took a year to receive the papers to emigrate to the US in the early 1950's with the expectation that one would be safe and no property would be confiscated. After a sea voyage the family landed in New York City. Learning English was not easy. For a while Fried worked on a job. Then, from the moneys Fried sent from Hungary with its nucleus in the Napoleons, he purchased an old jacquard weaving mill in Paterson, New Jersey, the silk city at the time. He became successful and in 1958 purchased the building at 200 Riverside Drive. The daughters Susan and Judith got married. Judith did work in the weaving mill, but eventually it had to cease business, because of competition from the South. The building became Frieds' sole source of income, which was rather limited because of the regulated rents. Managing the building was not easy, collection of the rent was difficult and Fried and his wife spent many days in landlord tenant court and expended large sums for repair of the old building, built in the early 1900's. There was also a mortgage to be paid. Judith and her two sons moved to Florida in 1975, after the accidental death of her ex husband. Fried’s wife died in 1981. Fried wanted to make the building more profitable by turning it into a co-op or by refurbishing the apartments after they became vacant. Fried was now alone, was getting on in years and asked for help, but the daughter Susan Charney who lived four blocks from him on West End Avenue in New York City, refused, was not interested. She had a well paying government job, with pension that she was not going to leave, to assist Fried. Additionally, Charney had an acrimonious relationship with Fried, she demeaned him, and wanted nothing to do with him. Charney was under professional care for decades. She also antagonized her only son against Fried. So the young grandson the son of Judith Herskowitz, had to travel to New York from Florida where his family resided, to assist Fried. Fried has made some gifts of his stock, to Herskowitz and her two sons with the provision of retaining the management of the building and the income, which was kept artificially low because of rent regulation. He was willing to give Charney 20 shares with these conditions, but she demanded 40 to 50 shares of the 100 shares issued and to be paid out cash for those shares. Fried could not meet her unrealistic demands. The building itself needed refinancing and so no gift was completed to her. The stocks were his he could give it to anyone. In fact he remarried, the new wife also just wanted the building, which Fried was not willing to give up, and so it ended in divorce at a substantial financial cost. Fried moved down to Florida into his Miami Beach condominium trying to enjoy his golden years, in the belief that he was financially secure. That was not to be. As it turned out what the Nazis, nor the Communist could not take away, the working capitol coming from the hidden gold coins, the American judicial system appropriated it. The method used is more shocking than these previous totalitarian regimes, because they made clear that owning property or having assets was not permitted. The US system pretends it is capitalist system, work hard, you can own property, it is protected by constitutional rights and cannot be taken away without due process. That is what is said, but in reality it is deceptive rhetoric, because the objective is also the appropriation of assets and deprivation of rights. The method is more oppressive, because there is no forewarning. Often the published law, is not applied as it is written and intended by precedent, but is referred to in name only and is used as a coverup in meaningless legalese jargon upon fabricated facts, and the law re-written as manipulated for the desired end result, to which no defense is allowed. To access the documents noted below you will need the free
A
Stockholder's Suit Was Fabricated With her attorney the late Steven Delibert, Charney took advantage of Fried's move to Florida to seize the opportunity to demand that Fried make her a 40% shareholder of the corporation and pay her out for millions of dollars valuing the building as if it were already turned into a co-op. When that was not met, then Charney through Delibert rushed forward with a motion in the form of an Order to Show Cause for a Temporary Restraining Order and Preliminary Injunction issued on December 13, 1988 in attempts to have the court put restrictions on the stocks of Fried and of the Herskowitzes (which was only a remainder interest) in North Jersey Trading Corporation, a closed New Jersey corporation. Stocks that were not even located within the State of New York. Among the numerous exhibits attached in support of the motion was a complaint on a fabricated a lawsuit to declare Charney a 40% shareholder of North Jersey, to dissolve the corporation, and three million dollars for damages to be paid to Charney. The claims were "personally" against Judith, her two sons and her father Alex Fried, permanent residents of Florida. To sue them thirteen hundred miles from their home in the Supreme Court of the State of New York, County of New York (the lower court) it was falsely claimed in the complaint that the Herskowitzes and Fried "were" all citizens of New York. No service was made with a summons, or with a petition which was the required means at the time to commence an action or a "special proceeding". In hindsight, had they known that orders can be based on fiction and the law can be disregarded they would never have appeared in the New York court to ask for a dismissal. They had to find out the hard way that what is in the law books is not what is done in the courts. The Complaint was then amended in January 1989, by Charney's attorney Mr. Delibert, to label one of her claims the trendy shareholder derivative suit to seek the three million dollar damages on behalf of the corporation, because in this type of law suit the court may award fees to be paid by the corporation. Mr. Delibert was aware that Charney was unable to pay his fees that he desired. The derivative claim was based on the same allegations that Charney claimed personally, so that the newly labeled derivative claim was a distinction without a difference. Mr. Delibert misused the lawsuit to write himself into the corporation, by squeezing out the shareholders with fabricated claims for damages. What started out as Charney's personal dissatisfation with her father and dispute for shares of stocks for an inheritance that should have been litigated in Florida, was turned into a corporate cause, through fabricated wrongdoings and unfounded accusations of misuse of the corporate income. This in view of the fact that Charney never had any business relationship, never wanted to have any and knew that all times the income belonged to Fried and that he managed the building. The corporation had to have its own counsel and paid no legal fees for the Herskowitzes and Fried. There was no concern as to what Fried was to survive on. Instead of a birthday well wishes he was served with voluminous papers by Mr. Delibert. In an order dated March 8, 1989 Justice Jacqueline Silbermann denied Charney's Motion for Preliminary Injunction and Temporary Restraining Order and the litigation should have ended there on the Herskowitzes' and Fried's motion to dismiss. Instead Justice Silbermann set for trial (called a traverse) the service of the Order to Show Cause on the now dismissed Motion for Preliminary Injunction and Temporary Restraining Order. The service of the Amended Complaint was made subject to the outcome of that trial. By law before Charney could proceed with her lawsuit she had to meet her burden of proof on the service. Although that trial was commenced in May 1989, before Justice Gangel Jacob, it was not completed. In a May 8, 1990 order Justice Silbermann directed to resume that trial on the service of the Order to Show Cause before Justice Gangel Jacob. To see that order click here. Thereafter, the whole case became a manipulation to deny the Herskowitzes their required day in court, to proceed without a trial not only on the service, but on all aspects of that fabricated case. Upon an undisclosed maneuvering by Mr. Delibert, Justice Gangel Jacob "recused" herself from the case without explanation and it was reassigned to Justice Harold Tompkins. To reschedule that trial on the issue of service the law put that burden on plaintiff, instead Mr. Delibert attempted to hold the Herskowitzes in default to put the blame on them for not proceeding, while forgetting that in his prior paper under penalty of perjury he conceded that he decided not to proceed because, after a four day hearing no determination could be made on the issue of service, and so he abandoned that trial. The detrimental effect of that litigation on the widowed Fried, who was 87 years old at the time was immense, but that was disregarded by the Court and Mr. Delibert. Fried's retirement in Miami Beach, Florida was turned into litigation hell. The income that he was relying on from that New York real property, was whittled away with the fees and costs of the litigation. Fried was followed and harassed by people sent by Mr. Delibert to spy on him in Florida, in attempts to put him away into a nursing home. It became a tug of war with the Herskowitz faction to keep Fried in his Miami Beach condo. Fried's health deteriorated. After not seeing her father for years, Charney came to Miami in September 1990 for the sole purpose to institute incompetency proceedings, to eliminate him from her case in New York. It was sad and heart breaking that Fried, who was reputed to be a man of intellect, and a leader in his community in the twilight of his life had to be humiliated to advance Mr. Delibert's cold hearted litigation scheme. Mr. Delibert was a single practioner who was making a full time career out of the North Jersey case. For a middleman he shrewdly moved in February 1991 in the New York case not only to appoint a guardian ad litem for Fried, but also a receiver for the North Jersey real property, to vest control over the property. Mr. Delibert mischaracterized as mismanagement, that a number of apartments were kept vacant by Fried to increase the income and the value of the building either by a plan for co-op conversion, or to increase the rents to "market", which was a general practice in New York. When Charney started her litigation through Mr. Delibert in 1988 there was only about a $200,000.00 mortgage on the real property so that refinancing to upgrade was not a problem, but it was obstructed by the litigation and with a lis pendens that Mr. Delibert placed against the real property. Without any trial on papers only, in a decision dated April 9, 1991 Justice Tompkins denied plaintiff’s motion for default, directed the Herskowitzes with the exception of Fried "to answer within 30 days" the amended complaint and appointed a Mr. Paul Windels III a politically well connected attorney as temporary receiver for the real property of North Jersey and as guardian ad litem for Fried. (To see, that April 9th decision click here.) However, because of all the litigation, in a race to the courthouse, the mortgage holder rushed to the courthouse to foreclose on his mortgage and sought the appointment of a receiver which preceded Mr. Windels' appointment and so Windels has not taken an oath and posted no bond and did not serve as receiver of the North Jersey property. Mr. Windels also never qualified and has not served as guardian ad litem to Fried, so that Fried would be eliminated without anyone representing his interests and there would no opposition to Charney's claims of stocks from Fried. An order dated May 21, 1991 was issued on the April 9, 1991 decision. In a letter agreement entered into on June 26, 1991 between Mr. Delibert and Mr. Steven King attorney for the Herskowitzes it was expressly clarified and agreed upon that the May 21, 1991 order directing the Herskowitzes to "answer" did not limit them to "answer" plaintiff's Amended Complaint, (referred to as a Petition) but, they could file a motion to dismiss. (To see that letter agreement click here.) So, on July 2, 1991 the Herskowitzes served a Motion to Dismiss addressed to the Amended Complaint, because of the lack of proper service and lack of long arm jurisdiction, and because of the insufficiency of the shareholder claim on behalf of the corporation, in that it was not based on specific facts, but on unfounded speculations and fictional claims, that never happened. Interestingly, Mr. Delibert in responding for Charney, acknowledged under penalty of perjury that the Herskowitzes’ initial Motion to Dismiss was never ruled on the merits; and reaffirmed the June 26, 1991 letter agreement with counsel for the Herskowitzes. He conceded that, personal jurisdiction over the Herskowitzes was not yet determined; that a determination would be premature before she conducted discovery on jurisdiction and also moved for leave to file an amended complaint to state facts for long arm jurisdiction. No
Determination Was Made on the Facts That required trial on the issue of service whether the Herskowitzes and Fried could be sued 1300 miles from their home was dispensed by Justice Harold Tompkins. The Herskowitzes' papers were disregarded, saying in an October 2, 1991 order that the Herskowitzes "were permitted the withdrawal of the jurisdictional claim" in a prior order May 8, 1990 order of predecessor Justice Silbermann. Without regard to the fact that this was never the case, they have never withdrawn their jurisdictional defenses the court ruled that "the defendant Fried and the Herskowitz defendants may not re-raise the jurisdictional issue". To see that October 2, 1991 order click here. Justice Harold Tompkins then simply avoided making a ruling on the Herskowitzes' entire Motion to Dismiss by mischaracterizing it as a "reargument motion" of Justice Silbermann. Since that "withdrawal of the jurisdictional claim" was raised for the first time in that October 2, 1991 order on which the Herskowitzes were never heard, so there was no "reargument' of any prior motion. This mischaracterization of a motion as "reargument is a subterfuge resorted to by the New York court, not to hear issues they do not want to hear and to avoid making a ruling in a make believe that it was already heard, to proceed on a a fabricated version, which is not only unassailable, but sanctions are imposed for challenging it. It did not matter whether the Herskowitzes had a lawyer or not. In fact by that Judith was on her way to graduate from law school. The Herskowitzes were represented by an attorney from a most prestigious law firm at a substantial fee. Their attorney saw the handwriting on the wall in that October 2, 1991 order, and decided to withdraw. In disbelief the Herskowitzes were relegated to proceed pro se. They filed an extensive Motion to Renew/Reargue the October 2nd order supported with documentary evidence showing in minute detail that the May 8, 1990 order made no order permitting them to withdraw their jurisdictional defenses, that it never happened, but to the contrary directed Charney to proceed with the trial (traverse) on the service of the Order to Show Cause as it appears on page 2 of the May 8th order click here. All that was in that May 8th order was that the Herskowitzes were permitted to withdraw a motion objecting to a prior order advancing a hearing date on a motion to March 1989, which was then rescheduled for May 1989 and so the issue became moot as explained in their April 9, 1990 letter. To see that letter click here. Justice Tompkins did not allow that Motion to Reargue to remain in the court file, and directed the clerk to return the papers to the Herskowitzes click here. Then on a motion by Mr. Delibert without notice and hearing to the Herskowitzes piggy backed on a motion of their counsel to withdraw, a December 10, 1991order was entered click here, sanctioning and imposing a fine of $5,000.00 on the Herskowitzes for filing that Motion to Reargue, when in fact they never had a prior opportunity to argue that alleged permission to withdraw the jurisdictional claim because it was never raised before. Interestingly, an article that appeared in the November 11, 2003 issue of the New York Times titled "Cozying up to Judges" mentioned Justice Harold Tompkins as a judge meeting out favors for favors with appointments. Alex Fried died on March 25, 1992 at the age of 91. Plaintiff chose not even to attend his funeral. She never contested his Will that was probated in Florida, which was the place for her to make a claim for the alleged gift of stock from Fried. Nor did the New York court make a substitution, for the decedent Alex Fried. No Appellate Review; The Herskowitzes By law the Herskowitzes had a right to be heard on an appeal from the October 2, 1991 order. But, the New York Appellate Division likewise avoided a ruling on the facts and law. The court simply relied on that same artificial characterization by Justice Tompkins that the Herskowitzes' Motion to Dismiss was a "reargument motion". In a June 23, 1992 decision click here the Appellate Division, First Department dismissed the appeal from the October 1991 order because it "deemed defendants' motion to dismiss as one to reargue" and so it is "nonappealable". The court then said without deciding the issue on the merits as "dicta" that "Were we to consider the matter on the merits, we would affirm for the reasons stated by Justice Tompkins in his decision dated October 2, 1991." The fact is that this was based on the face of Justice Tompkins' decision and the Appellate Division did not go beyond that decision by its own admission.. No record could be created in the lower court to prove that the ruling in that Silbermann order was not on any withdrawal of jurisdictional defenses. The Herskowitzes also petitioned the New York Appellate Division, for a writ of prohibition and mandamus to require Justice Tompkins to accept their November 21, 1991 Motion to Reargue for filing. That was also denied by yet another order dated June 23, 1992 on the ground that the remedy lay by appeal from the October 2, 1991 order. However, as noted above, that appeal was dismissed on the ground that the October 2, 1991 order was nonappealable. Plaintiff then moved to sanction the Herskowitzes for that Petition, for which the Appellate Division imposed sanctions and a fine in the sum of $5,000.00, which was reduced to a money judgment payable directly to plaintiff's attorney. Mr. Delibert
Was Fully Aware that the October 2, 1991 Mr. Delibert knew that this alleged withdrawal of the jurisdictional defenses was a fiction, a scam, he advocated. He conceded this several years later in sworn testimony on December 29, 1993 in another case as follows: "Q. Are you familiar with
the October 2, 1991 order of Judge Tompkins? So, that patently false illusion, the withdrawal of jurisdictional defenses which admittedly never happened was relied upon, instead of dismissing the case. However it was not only as to jurisdiction, but also as to all of Charney's other claims, that were based on mere speculation as noted in the Herskowitzes' Motion to Dismiss, and never ruled upon. Charney moved for summary judgment to be declared a 20% shareholder of North Jersey. The Herskowitzes opposed it with documentation showing that what Charney claimed was a copy of a stock certificate of North Jersey issued in 1958, was a back-dated forgery and that the initial shareholders of North Jersey in 1958 were Alex Fried and his wife Hedy Fried. The Herskowitzes attached copies of the initial stocks of the Frieds', of the stock book, of the corporate minutes and other evidence. But Justice Tompkins pretended that he did not get our papers and entered an order by default on Charney's papers, without regard that the New York law does not allow a default to be entered in a proceeding for declaratory judgment without taking of evidence. Mr. Delibert made clear that the objective was to confiscate the entire building at 200 Riverside Drive a multi million dollar property by any lowly connivance. His eyes were gleaming, this was his opportunity. Without any notice and hearing a turnover order in another case was slipped into a September 18, 1992 order of Justice Tompkins, in which rulings were made on other matters click here. The Herskowitzes were required to turnover to the Sheriff of the City of New York all of their North Jersey stock certificates for the $5,000.00 money judgment payable to Mr. Delibert, in another case, upon which that turnover order was entered before they even had the chance to pay it. Disregarded was the fact that those shares had a value far in excess of $5,000.00 and pursuant to N.Y. CPLR 5225 a judgment debtor could be compelled to turn over only so much of his property as is sufficient to satisfy the judgment. Moreover, that judgment was enforceable by execution, which had to be in Florida, where the alleged judgment debtors resided. The ex parte September 18, 1992 turnover order was procured yet for another ulterior objective. In that same order, Charney's motion to strike the Herskowitzes’ pleadings, was granted unless they "appear and submit to depositions commencing on October 29, 1992, 9:30 A.M. at the Supreme Court, 60 Centre Street, Room 252, New York, New York" which was the courtroom of Justice Tompkins. That October 29, 1992 day of deposition was but, a few days following the day when the corporate shares were required to be turned over to the Sheriff. The two separate cases were co-ordinated in a calculated ploy to force the out of state Herskowitzes into the New York court’s jurisdiction, either to confiscate all their North Jersey stock certificates without allowing them any defense and, if they did not appear to enter orders and judgments against them by default, without allowing them to defend against the unproven, unfounded accusations. After effectively barring the Herskowitzes from appearing for their deposition on these threats, Mr. Delibert procured from Justice Tompkins an order dated January 19, 1993 holding the Herskowitzes in contempt of court for failure to appear for their deposition, with an award of $23,500.00 for alleged counsel fees and expenses, jointly against all the Herskowitzes to be paid on or before February 4, 1993. The order further provided that if the $23,500.00 were not paid as directed, then on plaintiff's ex parte application an order would be entered to arrest and to incarcerate the Herskowitzes until com-pliance with the order. Mr. Delibert procured a further order of the same date of January 19, 1993 click here striking the Herskowitzes’ pleadings for their alleged failure to appear for deposition. Then, without any opportunity to be heard and without the required hearing and proof Charney was declared to be the owner of another 20 shares for a total of 40 shares of the 100 issued and outstanding shares of common stock of North Jersey Trading Corporation. So, what the late Fried did not giveth, Mr. Delibert taketh by order of court. In that same January 19th order the Herskowitzes were also denied any defense on the issue of liability in plaintiff's purported stockholder suit. The case was then set down for a hearing before a referee, but only on the amount of the damages, the bases of which was yet to be concocted by Mr. Delibert and his client. Justice Tompkins issued a further order dated January 19, 1993 click here holding the Herskowitzes in contempt of court, for not delivering their North Jersey stock certificates to the New York Sheriff. The order provided the Herskowitzes may purge themselves of by turning over all their North Jersey stock certificates to the New York Sheriff on or before February 4, 1993. In the event of failure of compliance, the order provided for an ex parte application, "for an order of commitment directing the Sheriff of the City of New York or the sheriff of any county within the state wherein the Petitioners, may be apprehended, commanding him forthwith to arrest the said Petitioners, [Herskowitzes] to be brought before IAS Part 13 of this Court during the time when such part is in session, to be committed until they shall purge their contempt by complying with the Order of this Court entered the 21st day of September, 1992, by turning over to the Sheriff of the City of New York the shares of stock...." (Emphasis supplied) On February 19, 1993,
Justice Tompkins issued an ex parte Order of Commitment,
click here directing
the Sheriff to arrest the Herskowitzes if apprehended in any county of
the State of New York to bring them before Justice Tompkins for their
alleged failure to purge themselves by paying the fine of $7,000.00
and by delivering all their North Jersey stock certificates to the
New York Sheriff. Yet another ex parte Order of Commitment of the same
date was entered by Justice Tompkins for the arrest of the
Herskowitzes for their alleged failure to pay the $23,500.00 fine
imposed on them by the January 19, 1993 order. A $4.2 Million Judgment Was Entered
by Default Without With these schemes, to seize their North Jersey stocks certificates and warrants of arrest to incarcerate them, the Herskowitzes were effectively barred from participating in the hearing before the referee on plaintiff's so-called derivative suit, to testify and to offer evidence against her fabricated damages, masterminded by Mr. Delibert, which never formed the basis of the complaint or as amended or any prior document. It was presented for the first time before the Referee, from which hearing the Herkowitzes were eliminated as planned so that it would be unopposed. Interestingly, the Referee acknowledged in his March 22, 1993 Report that his recommendation was based solely on Charney's unopposed claims. That damage claim
was for an alleged
loss of rental income by North Jersey from January 1985 to
February 1993, based on
a
hypothetical inflated rental income which would
have been in violation of the New York rent law regulation. These rents were noted as, if
they were collected 365 days a year on all the 54 apartments and
included the years of 1991 and 1993 when the court appointed receiver
in the foreclosure case
had the exclusive control and possession over the North Jersey real
property. The
expenses were minimized by including only the utility bills, mortgage payments,
and the super’s salary. Omitted was the loss of income on apartments
kept vacant by Fried to co-op or refurbish them to increase the controlled
rents; also the vacancies resulting from turnover of tenants; nonpayment by tenants; salary
for the super’s helper; taxes; legal and accounting fees; telephone;
repairs; painting; capitol improvements i.e. windows, a new boiler,
etc.; and most significantly the income of Fried for the last ten
years of his life, Charney and Mr. Delibert literally stealing his income and the right to
manage his property, which he did since 1958 with no interference by Charney. It is noteworthy that in a May 13,
1996 deposition in the Florida case Charney admitted under
oath that Fried received all
the income and profits of North Jersey, that it was his sole source
of income, and that she never got any income or dividends from North Jersey,
nor did Judith Herskowitz. That phony loss of income was not enough, for Mr. Delibert
he then added on $960,000,00 as a loss of value of the
real property, when the value increased and over a million
dollars in prejudgment interest for a total sum in excess of $4 million. So,
that not only did Herskowitz not receive any money from the
corporation, nor was it ever proven that she did, she was saddled with
a $4 million judgment upon which to literally persecute her for money
that she did not owe. The Corporation Filed Petition For Bankruptcy; Because of the detrimental effect of plaintiff's then five years of litigation on the corporation with her false claims and fabricated stockholder suit, in March 1993, North Jersey sought what was believed to be the "protection" of the Bankruptcy court by filing a voluntary petition for relief under Chapter 11 in the United States Bankruptcy Court, Trenton New Jersey. North Jersey was seeking to reorganize and received commitments for refinancing. However, that was frustrated by Mr. Delibert who claimed to represent Charney in the bankruptcy court and immediately sought the appointment of a Trustee based on the New York derivative suit. He also sought relief from automatic stay to enter judgment against the Herskowitzes in the New York court. As usual his papers were replete with false accusations, which regretfully many judges readily accepted as the facts of the case. North Jersey represented by counsel objected to Mr. Delibert's reliance on the New York lawsuit, but the Bankruptcy Judge Stephen Stripp refused to rule on those objections. Judge Stripp was eager to rely on Mr. Delibert's misrepresen-tations as a pretext to oust North Jersey as debtor in possession, to appoint a trustee to confiscate the valuable real property of North Jersey. So, Judge Stripp readily granted Charney's motion, and by an October 12, 1993 order appointed Ms. Karen Bezner as Trustee and for a double dipping to act as attorney for herself as well. In an October 27, 1993 order, Judge Stripp granted plaintiff relief from automatic stay, for the New York court to enter the judgments against the Herskowitzes in that alleged derivative suit. Whereupon, based on the ex parte report of the referee to which Charney was the only party, on November 22, 1993 a judgment by default was entered against the sons of the Judith Herskowitz in the sum of $4,251,947.87 click here, and the same judgment was entered at a later date on January 21, 1994 against Judith Herskowitz in the sum of $4,300.024.42 Click here. (The difference was due to the additional interest.) Although the judgments bear different dates, they were jointly against all the Herskowitzes and arose from the same alleged wrongs. Mr. Delibert then used the one sided self serving New York judgments as evidence of misconduct by the Herskowitzes, none of which was never proven, to oust them from participating in the bankruptcy case. Trustee's main objective was to liquidate the North Jersey real property to turn into a cash cow for a feast for fees. Trustee knew that without any exertion she would get the maximum statutory three percent commission on the gross sale price of the real property. So, trustee opposed any refinancing by the corporation to continue its business. Thus, defeating the objective of Chapter 11 bankruptcy, the reorganization of the corporation to continue its business. No bankruptcy lawyer warned of these hazards. Charney and her attorney attempted to raise funds to purchase the real property for themselves. So, they pursued the Herskowitzes to collect on that fabricated $4.2 million judgment and attempted to force the Herskowitzes to hand over all their North Jersey stock certificates. They also sought to appropriate a subscription agreement for the right to purchase a New York apartment as a co-op, left for the Herskowitzes by the late Alex Fried what was his former New York residence. Without notice and hearing, Charney procured in the Dade County Circuit Court an ex parte order from Judge Arthur Rothenberg, enjoining Judith Herskowitz from collecting the sum $80,000.00 deposited with the court for payment on her judgment of divorce by the estate of her late husband, which had no connection whatsoever to any of this litigation. When Mr. Delibert was unsuccessful in raising funds for the purchase of the North Jersey real property he joined with the Trustee in her quest to liquidate it. The real property was easily marketable especially since by now there were about twenty vacant apartments. Shortly upon her appointment Trustee put up the property for sale through a real estate broker. It did not matter that the corporation opposed the sale; that the attorney for the corporation was able to negotiate to settle all claims for a lesser sum; and that commitment for refinancing was secured upon which a plan of reorganization could be filed. Attempts to make repairs and to rent the vacant apartments was vigorously opposed by Trustee, and by Mr. Delibert. They asserted that the value of the building was the vacant apartments and would "ruin the marketability of the building" if they were rented. Mr. Delibert conveniently forgot that he procured that $4.2 million judgment, because of those vacant apartments, which he said was mismanagement and used it for the appointment of a trustee. Trustee, supported by Mr. Delibert set out to defeat the commitments for refinancing, attacked it as insufficient, despite he fact that it was shown to cover all the claims and expenses, but obviously not all the fees they envisioned if the property were sold. So, trustee harassed the lenders by issuing subpoenas not only for their corporate financial statements but, also for their personal financial statements. Trustee pursued the lenders until they withdrew their commitment. Trustee then immediately, gleefully moved to confirm termination of financing and to reassert her scheme to liquidate the North Jersey real property. Even though by now Mr. Delibert conceded that there was no withdrawal of the "jurisdictional claim" by the Herskowitzes and so that $4.3 million judgment was legally worthless (void) Judge Stripp refused to allow a challenge to that judgment. To the contrary Judge Stripp eagerly relied on that judgment to assert that the Herskowitzes "will not get back into the building". Trustee also took the position to bar the Herskowitzes from the building based on the New York case that "there is a warrant of arrest if they show up in mid-town Manhattan". To further oppress, demean and oust the Herskowitzes Judge Stripp and trustee repeatedly relied on the false presumption that even if the Herskowitzes had an interest in the North Jersey property, it would be wiped out with the 4.2 million dollar New York judgments. A new commitment for $1.6 million to refinance North Jersey was disregarded by the Trustee and was curtly rejected by Judge Stripp, who was anxious to proceed with the sale as he announced at an August 3, 1994 hearing,
"Now, we
get to the most interesting part of today’s proceedings, Without a prior appraisal of the North Jersey real property, Judge Stripp simply decided that the purchaser would have to meet an "upset price in excess of $2,100.000" which he arrived at by a rough estimate of the funds to pay claims of creditors, the New York City Transfer Tax, capitol gains taxes (which alone were in excess of one million dollars) and the administrative expenses. Judge Stripp disregarded the argument of the attorney for North Jersey, that for every dollar of the $2.1 million upset price at least 50 to 60 cents would go for taxes and administrative expenses and that this would not be the case if North Jersey were allowed to reorganize and its property were not sold. When Judith Herskowitz opposed the sale Judge Stripp simply ejected her from the court room and set a date for the sale of the real property in his courtroom for August 31, 1994. On that day about a half dozen interested buyers appeared from the millionaires club each of them anxious to purchase the North Jersey real property. Mr. Delibert and Charney fully supported trustee’s sale and their only concern was that all the funds remaining from the sale be transferred to a New York custodian. Judge Stripp again refused to hear the attorney for the corporation on any alternative to the sale and the $1.6 million available for refinancing, which has been shown to be more than sufficient to cover all claims, expenses repairs etc. Obviously it was rejected because it would not have provided for the fees in her dual capacity as trustee and attorney for herself and the professionals she retained. Judith Herskowitz sat there silently in shock, with her son Robert, having to witness her family's wealth, that has taken over 30 years to build, now put into ruins and torn apart for fees. Although Judith said nothing and was just sadly quietly observing the scene, Judge Stripp attacked and accused her "I am not going to have you sitting there weeping through this, Mrs. Herskowitz, I’m sorry. ..... I want you out in the hallway." Judge Stripp then instructed his bailiffs to remove Judith Herskowitz from the courtroom. Pursuant to the transcript of the August 31, 1994 hearing, when Robert objected to the sale, Judge Stripp also threatened him with removal from the courtroom. The real property was sold for $2,975.000.00 far below its value, especially if it could have been turned into a co-op. The appeal was denied on a contrived technical ground that it was moot, because the Trustee rushed to complete the sale before a stay could have been obtained. Trustee had the proceeds of that sale of the close to $3 million dollars literally in her hand, she frantically waived the check and was not going to let go. Following that sale Trustee was awarded fees by Judge Stripp which included her efforts to wipe out opposition to the sale. Fees were also given to the other professionals she retained, the lawyers, the accountant, the real estate broker, Mr. Delibert, and the list goes on, to which any and all objections were overruled by Judge Stripp. In retaliation for objecting to the sale Judge Stripp denied reimbursement of the retainer fee of $10,000.00 advanced by Judith Herskowitz to the attorney for the corporation, and of the filing fee of close a $1,000.00 for the Chapter 11 Petition. Judge Stripp continued to prohibit any questioning and any attack on those New York judgments rebuking Judith Herskowitz at a January 17, 1995 "I don’t want to hear anything about the validity of that judgment". Those New York judgments were continued to be used to harass and intimidate the Herskowitzes. Trustee jubilantly reiterated at a January 1995 hearing that there were outstanding warrants against the Herskowitzes in the New York case. Not to be left out, Mr. Delibert reassured Judge Stripp, that those warrants "issued by Justice Tompkins of the Supreme Court of New York in our shareholder’s derivative action for contempt of court....remain outstanding". Although Judge Stripp had no authority to enforce in a New Jersey federal court, the New York State Court warrants effective only in New York, he threatened Robert, "If, in fact there is an arrest warrant outstanding for Mr. Herskowitz it will be executed at the very latest the next time he shows his face in this courtroom." Upon Judith Herskowitz's attempts to protect her son Judge Stripp directed his bailiffs, "Would you Officers, please excuse, escort Ms. Herskowitz from the courtroom. Ms. Herskowitz is to be escorted out of the building. She can wait somewhere else for - - whoever she’s waiting for in connection with this." In the hallway Judith
Herskowitz was shoved and beaten by these officers because she was not
walking fast enough, leaving her black and blue and was forced to
leave the courthouse. Then on February 1, 1995 Judge Stripp
entered an order "sua sponte" holding Judith Herskowitz in contempt of
court, because of her objections to the New
York judgments and to the liquidation of the North Jersey real
property and she could appear at hearings only via phone.
Plaintiff Pursued Herskowitz With Her Judgments in Florida
The end of 1993 and the beginning in 1994 plaintiff recorded her
New York judgments in the Miami-Dade County Circuit Court in
Florida to turn the New York judgments to Florida judgments. The only
ground that a foreign judgment could be challenged was on
jurisdiction and the Herskowitzes opposed Charney's judgments
primarily for lack of personal jurisdiction.
In 1995 they were finally given the opportunity to prove that the New
York court had no authority to enter those judgments. Charney represented by a Florida attorney Clifford Hark responded with
a cross motion and Affidavit sworn to on June 6, 1995 by Mr. Delibert
because he claimed he was the one familiar with the New York case.
Since Mr. Delibert knew that he conceded in his December 29, 1993
testimony that the Herskowitzes had not withdrawn their jurisdictional
defenses, he could not rely on the October 2, 1991 order so he came up
with a wholly new lie,
that the New York court determined its
own jurisdiction on plaintiff's Motion for Default, in the April 9,
1991 decision upon which the May 21, 1991 order was entered in
which Justice Tompkins
directed the Herskowitzes to answer the amended complaint.
Because, Charney repeatedly failed and refused to appear for her
deposition her motion and the June 6th Affidavit was not heard by the
Florida court and so it was not in issue. "The Herskowitzes' alleged "withdrawal" of their objections to personal jurisdiction is unsupported by the record. It seems clear that the order of Justice Tompkins reciting that the objection to jurisdiction had been "withdrawn" is unsupported by the record." The General Master further noted that, "Notwithstanding that the defendants Herskowitzes repeatedly raised the issue of jurisdiction over their person in each of the various lawsuits, all courts denied relief to the Herskowitzes yet none are shown by the record to have ever addressed the personal jurisdictional issue on the merits." The General Master recommended that judgment be entered in favor of the Herskowitzes. Charney again conceded in her Exceptions to the General Master’s Report filed on September 5, 1995 that the New York court’s determination on personal jurisdiction "was not reached in the October 2, 1991 decision" on that "earlier permitted withdrawal of their jurisdictional objections, and now she wanted to rely on her new fabrication, that "jurisdiction was clearly determined in the April 9, 1991 decision and resulting May 21, order." Plaintiff's Exceptions were overruled by Judge Rosemary Usher Jones and on November 2, 1995 Judge Jones entered a Final Judgment holding "that the judgments and order that plaintiff was seeking to domesticate were not entitled to full faith and credit for lack of in personam jurisdiction." Click to see, General Master's Report and Final Judgment. Charney
Procured A Reversal Of The Florida Final Charney pursued an appeal from the November 1995 final Judgment to the Third District Court of Appeal of Florida. In her Initial Brief filed on July 1996, she reiterated in her Statement of the Case, without any supporting authorities Mr. Delibert's false June 1995 Affidavit. Charney through her new attorney Mr. Eric Christu complained that the General Master overlooked, Mr. Delibert's Affidavit. At oral argument in January 1997, appellate Judge Alan Schwartz listened attentively to Mr. Christu espousing Mr. Delibert's deliberately confusing argument on the April 9, decision as follows: "The motion for summary judgment heard by the general master finding that the New York court had not determined its own jurisdiction... While there is precedent to overturn another court's most thorough analysis of jurisdiction, the sister state judgment, it certainly comes, so clean, so much time spent on jurisdiction. Not to question ruling of April 9, 1991, order was unanimously affirmed... That is all the effort that Mr. Christu had to do on the newly falsified facts specially for the Florida court. Judge Schwartz abruptly interrupted him and instructed him to "Sit down". Mr. Dubitsky attorney for the Herskowitzes attempted to show that the New York court never determined personal jurisdiction on the merits and the only purported order on jurisdiction was Justice Tompkins’ October 2, 1991 order, containing that admittedly unsupported withdrawal of the jurisdictional claim, which never occurred. He further stated that the Herskowitzes attempted to appeal that order in the New York Appellate Division, but the court refused to hear it and so the Florida lower court judgment was correct. Mr. Dubitsky cited the Third District's own case, Riskin where the defendant in the initial state's court was not allowed to raise the jurisdictional issue, he could raise it when the judgment was attempted to be domesticated. But, Judge Schwartz, became impatient, raised his voice and cut off Mr. Dubitsky. Judge Schwartz pointed to a paper in the record before him and firmly asserted that "Although I have never practiced in New York the April 9, decision, may have been right or wrong, you lost on the hearing. Who was that little master to hear and determine that the New York court had no jurisdiction. I will not reverse that August New York court, it is a court of record." Judge Schwartz then abruptly terminated oral argument and left the courtroom followed by Judges Green and Goderich - who sat by silently. In an opinion dated February 5, 1997 Click here. Judge Schwartz, joined with Judges Green and Goderich reversed the Final Judgment. The main concern was to uphold the New York court, and not to deprive it of that $4 million judgment. The least concern was the truth and what the New York court never relied upon for jurisdiction in that April 9, 1991 decision Click here was now "res judicata", the Herskowitzes were barred from relitigating an issue that was never litigated, (because the service of process required an evidentiary hearing in the New York court that was never held). and the court reviewed a record when Charney never presented a record on that April 9, 1991 decision because the matter was not heard in the lower court. After Remand by the
Appellate Court Herskowitz Mr. Delibert pursued litigation in the New York court against the only asset that he admitted he could find, to confiscate a subscription agreement to the right to purchase a rent controlled New York City apartment as a co-op, which was formerly the home of the Frieds. Mr. Delibert mercilessly threatened to sell that subscription agreement at a sheriff‘s sale and to oust its occupants, who at the time was Robert Herskowitz with his wife and three young children. After all the intimidation, harassment and coercion the sons of Judith Herskowitz eventually entered into a Settlement Agreement dated December 1998, represented by Daniel Pierson a former third District appellate judge, who declined to challenge the validity of the New York judgments. They were required to pay the sum of $150,000.00 in "full payment" including all fees and interest for all of Charney’s New York judgments individually and on behalf of North Jersey, for which "they were provided" "full and absolute satisfaction or vacatur" of the judgments. The settlement was then approved by the Bankruptcy court Judge Steven Stripp. As to Judith Herskowitz she made a further attempt to be heard in the Florida court before successor Judge Paul Siegel. He likewise did not allow Judith to conduct any form of discovery and refused to set an evidentiary hearing. Judith filed a motion directed to that fraudulent June 1995 fraudulent affidavit of Mr. Delibert supported with over 25 documents from the New York court not previously before the Florida court, and also with an affidavit and a Memorandum of Law demonstrating with well settled authorities that the Third District’s reversal constituted no bar to the motion. Charney filed no papers in opposition. When it came up for hearing on November 23, 1999, the previously filed papers were not in the courtroom, somehow they disappeared and could not be located, but then they mysteriously turned up. When Judith Herskowitz asked to be sworn
in, Judge Siegel refused to do so, saying: This is not an evidentiary
hearing. This is a hearing for me to consider argument on
the documents that have been filed." Judge Siegel then turned the
hearing into a mere argument whether he should even consider the
additional New York documents, the authenticity of which was conceded
by Charney. Judge Siegel was preoccupied with watching the clock
on the wall. However, he
acknowledged that plaintiff "doesn’t have a Florida judgment yet. She
has a New York default judgment", and that is where it stayed. On appeal from the order at the September 12, 2000 oral argument, the panel of judges Green, Sorondo and Levy showed no interest in the case, nor in the fraud, they simply rubber stamped the order with a "PER CURIAM. Affirmed. To see that decision Click here. Subsequent motion requesting the panel of judges to justify their decision on the facts and the law of the case and to hear and to make a determination on the merits of the appeals were simply "denied" with no explanation. Click here. Feast for Lawyers And Professionals
In The As to the bankruptcy court proceedings the proceeds from the sale of the North Jersey real property was turned into a feast for lawyers and accountants. Had the corporation been managed at the rate the professionals charged it would not have survived the first month. It was literally devoured, you have a better chance to get out of the jaws of a shark. Ms. Bezner's fee as trustee was around $100,000.00 then for representing herself as attorney was another $150,000.00 for a total of a quarter million dollars. Her accountant's fee was around a $100,000.00 although North Jersey conducted no business. The charges were for a senior partner, for a partner, for a manager, for a tax manager for four senior accountants, a semi senior accountant, a staff associate and a para professional. All to prepare a few simple tax returns which were then reviewed by the accountants with the various title for fees ranging up to $275.00 an hour. These professional fees were in excess of $800,000.00 of which Mr. Delibert managed to extricate over $50,000.00, just for hanging around, claiming that he "actively assisted and cooperated with the Trustee" to sell the North Jersey property and to uphold the New York derivative default judgments. The bankruptcy court made clear that in order to be awarded fees, Delibert and his entourage of attorneys had to show their services benefited the corporation, which had to be a "substantial benefit" under the law. The court made the further determination that Charney’s litigation in Florida was primarily for her benefit and not for the corporation. There was close to a million dollars in taxes because of the Cumo taxes and the real property was depreciated. After all claims and administrative expenses were paid there remained $700,000.00, that should have been returned to the corporation, or be distributed to the shareholders. The Trustee asked the Court, that because of an alleged shareholder dispute (which should have been resolved in the bankruptcy court) she asked that the surplus funds be transferred to an alleged New York receiver. That was supported by Mr. Delibert in his December 10, 1999 response click here claiming that "there remain bitterly contested issues between Susan Charney and Judith Herskowitz, as to who is entitled to the surplus remaining on behalf of the debtor." Plaintiff further asserted in yet another one of her papers that since Judith Herskowitz had no standing to raise the issues on the Settlement Agreement in the Bankruptcy Court as to, "what extent the settlement violated any provision of New York law was an appropriate resolution for the New York court ." With regard to that surplus of close to $700,000.00 Judge Stripp ruled that "this fund belongs to the debtor’s shareholders" and it was to be transferred to a New York custodian as stakeholder "for adjudication there of the shareholders’ rights therein between Judith Herskowitz and Susan Charney". On August 9, 2000 Judge Stripp entered an order dismissing the bankruptcy case. On September 14, 2001 Judge Stripp was removed from the bench. His request for reappointment to the Bankruptcy Court was denied by the judges of the U.S. Court of Appeals for the Third Circuit, upon information because of numerous complaints against him. Denial of Civil Rights After having
been refused any information on that remaining $700,000.00 of the North
Jersey surplus for almost two years,
on August 8, 2002 Judith Herskowitz
filed a civil rights action in the federal court in Miami, Florida.
To access the complaint in PDF format click on PDF
Complaint or click on in
Html Format.
The federal court had demonstrated that civil rights
is not their priority. The response was to immediately
dismiss the case, even before a response had been filed by any of the
defendants. It became a contest to reinstate the case, because
the defendants intentionally failed to abide by a pre-trial order so
the case would be dismissed. The reason given was that a joint scheduling order due to be filed by November
6, 2002 was not filed. The case was turned into a procedural
morass. The final result was, that when it could not be dismissed on
such flimsy technical grounds then it was dismissed under Rocker
Feldman. The Denial of an
Evidentiary
Hearing in the Florida
Court The fact is that the surplus funds of close to $700,000.00 were continued to be secreted. No papers whatsoever were served on Judith Herskowitz with regard to the where about of these funds. So, she requested a hearing in the case in Miami-Dade County Circuit Court. At first she was given a hearing date for August 21, 2003, before successor Judge Roberto Pineiro. However, obstacles were thrown in the way, by way of ex parte contacts by Mr. Christu with Judge Pineiro's office insisting that no hearing be held because the case was "closed" and further falsely claimed that the case was dismissed, when it was not. The hearing was canceled, then upon further calls a conference was set for August 29, 2003 for ten minutes, which was reset for September 2, 2003 at 9:30 A.M. for five minutes on the motion calendar on the clerical closing of the case to reopen it as an administrative procedure. Then on September 2, 2003 without a written notice a ten minute conference was held before Judge Pineiro. Mr. Christu attorney for Charney appeared by telephone to reassert that this case was closed. It was shown by Judith that although the case may be marked closed following the entry of the November 1995 Summary Final Judgment that was merely an administrative clerical closing of the Clerk’s Office and that no final judgment had been entered following the reversal of the Final Judgment. Judith objected to any other matters raised and requested that any other matters be briefed and then be heard.
On September 15, 2003 Judith
filed with a courtesy copy to the judge a Verified Motion
to Strike Pleadings for Sham click
here
that false June 6, 1995 affidavit of plaintiff's New York attorney and
a Verified Motion for
Constitutionally Mandated Inquiry Into Whether the Jurisdictional
Issues Were Fully and Fairly Litigated and Finally Decided by the New
York Court click here with a
Memorandum of Law in support of both of these motions,
click here. Judith
called the court on or around September 22, 2003 requesting
to set a date for an evidentiary hearing on the motion, but the response of the
Judicial Assistant was that no hearing was set as yet. Then without a
hearing on the motion and without a service of an order Judith
discovered in the court file an ex parte
Order of Judge Pineiro dated September 23, 2003. That it was
prepared by Mr. Christu was evidenced by the personal notation of Mr. Christu on the
order. The substance of the order was to obstruct
Judith from filing and to be heard on motions going to the
merits of the case and the motion was struck.
The Motion for Disbursement of
the North Jersey surplus, upon which an ex parte
Order to Show Cause dated May 29, 2003 was issued in the New York court makes clear these desperate
unethical ex parte contacts were orchestrated between the New York
and the Florida courts and even the federal court
by Mr. Christu to aid and abet the misappropria-tion of the
surplus funds of close to $700,000.00 in the New York court. It was
stated on page 2 of the Affirmation to the
Motion for Distribution that
it was
already decided prior to the filing of that motion that an order would be
"obtained from the Florida courts prohibiting further such activities"
referring the attempts of Judith to be heard on the invalidity of the New York judgments
before Judge Pienero, which was done in that unlawful ex parte manner,
without the required notice and opportunity to be heard. Nevertheless
it was only after Herskowitz moved in the Florida court that the
surplus funds surfaced.
Judge Sherry Klein Heitler
The outcome was predetermined. The facts and the law were tailored to suit the desired end result. The appropriation of property, and denial of rights, was approved by Justice Heitler with no opposition allowed. While it is frightening and frustrating to the victims to have property taken by the stroke of the pen, that has been condoned in the court of Justice Heitler, by taking undue advantage of her black robe of judicial immunity. Under cover of court orders close to $700,000.00 was appropriated by a half dozen lawyers for personal benefit as it was prearranged in a private deal. This was the surplus that remained in the New Jersey Bankruptcy Court from the forced sale of the corporate real property to create a cash cow for fees. These funds remained after payment of all claims and administrative expenses. By law it was required to be returned to the corporation for a fresh start or to be distributed to the shareholders of North Jersey, of which Judith Herskowitz is a majority shareholder. The distribution of the surplus was a function of the bankruptcy court, but as shown above Steven Delibert attorney for plaintiff Susan Charney manipulated to have that surplus transferred to the New York court. He convinced the bankruptcy court, that the distribution to the shareholders be decided in the New York court, particularly as it relates to the satisfaction of the default judgment in excess of $4 million to which New York law applied. The bankruptcy Judge Stephen Stripp ruled in his July 10, 2000 Memorandum Opinion that "this fund belongs to the debtor’s shareholders" and directed that it be transferred to a New York custodian as stakeholder "for adjudication there of the shareholders’ rights therein between Judith Herskowitz and Susan Charney". On August 9, 2000 Judge Stripp entered an order dismissing the bankruptcy case and the surplus funds were transferred to Paul Windels III to hold these funds pending adjudication of these issues. Paul Windels III lent himself out to be the conduit for the transfer of these funds to the New York court. These funds came into Windels' possession as the "neutral custodian" but, upon his receipt of these funds it was treated as if it belonged to him and his accomplices. These funds were secreted for three years from Judith Herskowitz. It was only upon her persistence that it reappeared. Steven Delibert moved in the name of Charney in the New York Supreme court with a motion in the form of an Order to Show Cause dated May 29, 2003 issued ex parte by Justice Sherry Klein Heitler click here, Omitted from that motion was any request for determination for distribution of that surplus to the shareholders of North Jersey. Delibert and his accomplices obviously
spent the last three years deciding how to divide up these funds among
themselves.
On page 5 of his Affirmation in support of the motion Mr. Delibert
does refer to Paul Windels III as the "neutral fiduciary to receive
any surplus"
click here.
Mr. Windels with the full knowledge that he was only a custodian
of those funds for distribution to shareholders joined in the motion
as can be seen in his Affirmation click here.
He misrepresented
himself as the "Receiver of the Assets of North Jersey
Trading Corporation" for a pretense to agree to a fee division on behalf of the
corporation, for
which he had no lawful authority, as he was only a "neutral fiduciary". The motion was
based on an out of court
private deal to divide up the close to $700,000.00 surplus among the
attorneys as they predetermined to the last penny, the bulk of it to be pocketed by Mr. Delibert as
shown below: Susan Charney
(partial reimbursement of sums
$120,000.00
$110,000.00
Only Steven Delibert participated in the New York
case in which the fees were claimed. Of the four other lawyers
three of them Christu, Hark and Carlton Fields are Florida lawyers
and Mr. Livingston is a New York lawyer, none of whom participated in that
New York case, and so there was no record before
the court of what they did, nor did they submit any time sheets, for Mr. Delibert's Affirmation
click here.
Nor did Mr. Delibert
submit any itemized bill, and time sheets, as to how and
for what his alleged hours were expended. Nor did these lawyers
submit any invoices for their alleged expenses.
What Mr. Delibert detailed in his
Affirmation in Support of the Motion for
Distribution
click here
was for the most part for litigation in other courts
for which he had no judgment,
yet he asked fees for a total of 4,742.53 hours of "billable
time" at $170.00 an hour (as a bargain) for a total sum of $806,230.10 and
an additional
$91,323.38 in expenses for a total sum of $897,553.48.
Mr. Delibert a single practioner simply alleged that for years
he devoted his practice full time to this case letting other
big clients go by (without naming them). He claimed that
he has been paid $68,500.00 by plaintiff and $50,000.00 in the
Bankruptcy Court, leaving an
unpaid balance of $767,904.74 for work through September 2000, for
which he was willing to accept $401.950.94
but, he asked that it be awarded "without prejudice" for application
for further fees against any amount that would be collected from
Judith Herskowitz on the $4.2 million dollar derivative judgment against her. Obviously,
if Mr. Delibert could not expect fees to be paid from the corporation
through friendly judges for litigating on endlessly, he would have ceased his litigation long ago. Needless to say, the law makes no provision for the confiscation and division of corporate assets in private deals among lawyers. First of all by Charney's own admission she has not only allegedly pursed litigation on behalf of the corporation, but also on her personal claims. So, that even if, Charney had pursued a shareholder derivative suit, the fees for that were required to be distinguished from her personal claims, for which she was not entitled to fees under the American Rule, that still requires each party to pay his/her own fees in New York. Even as to that shareholder suit, by law the fees come out from what Charney recovered on that judgment, which was no more than the settlement sum of $150,000.00 forced out of Robert and Mark Herskowitz. Fees of $50,000.00 or one third were already awarded to Mr. Delibert in the Bankruptcy Court and the Trustee also received a fee on the settlement sum. Clearly, it is no benefit to the corporation for the lawyers to end up with all the money, on litigation they pursued on pure fabrication to create fees, without any trial, so that they can clean out the corporation. This is what happened here. How is that possible, because as shown above, the plan to appropriate the funds was sealed before their motion came before the court and the rest is a scripted play to uphold that deal in manufactured proceedings that dispensed with the adversary system of justice, by disregarding well supported opposing papers, to enter one sided orders. With that objective, the full satisfaction executed on that judgment in excess of $4 million which included the fees click here was disregarded, which by operation of law - under joint and several liability - discharged that judgment against Judith Herskowitz as well, and so there was no $4.3 million judgment upon which to seek fees. In addition Herskowitz is a non-resident domiciled in Florida over whom no long arm jurisdiction was acquired to enter that $4 million default judgment against her in the first place. However, whatever provision of the law was detrimental to the end result, was ignored, which is what Mr. Delibert did in his Memorandum of Law. Upon taking control of that surplus there was only one law, not even 9/10th possession but 10/10th it was their money, totally ignoring Mr. Delibert's prior sworn declarations in the bankruptcy court that the transfer was for distribution to the shareholders. That transfer was manipulated, because no further fees could be granted to Delibert and the other attorneys in the bankruptcy court, upon the determination that no further benefit resulted to the corporation and that Charney pursued her litigation for her personal benefit. That decision barred further fees in the New York court and because all claims for fees had to be made in the bankruptcy court. These and other issues have been presented by Herskowitz to no avail as shown in her papers noted below as follows: Herskowitz's Cross Motion dated October 1, 2003 returnable on October 22, 2003 click here here and Affidavit in Support of her Cross-Motions which set forth the facts click here and for Exhibits click here.
Herskowitz's Memorandum of Law in Support of
Cross Motion For Stay And/or to Abate in
Deference to Pre-emptive and
Primary Jurisdiction of Other Proceedings;
click here. Herskowitz's Memorandum in Support of Motion to Compel Production of Documents click here. Herskowitz's Letter to Justice Sherry Klein Heitler. Requesting an evidentiary hearing and questioning the striking of Herskowitz's motion by Judge Pienero by an ex parte order in the Florida court.
Plaintiff Charney's Reply papers through
Delibert and Windels' Reply papers: Plaintiff''s Memorandum of Law (I) In Reply, In Support of Motions for Disbursement of Funds and For Protective Order and (II) In Opposition to Cross-Motions of Defendant Judith Herskowitz, by Delibert. Noteworthy is Mr. Delibert's manipulation of the law, arguing that there was no "full satisfaction" of the judgment because the sum paid was not the "full amount" was not "full payment" when the law provides that even if the payment is less than the amount of the judgment the "full satisfaction" discharges the judgment as to all the jointly liable judgment debtors. So, that there was no more judgment upon which to pursue Judith Herskowitz and to collect fees on that $4.3 million default judgment click here.
Mr. Windels' response titled "Reply Affirmation in
Further Support of Proposed Distribution of Funds and of Motion for
Protective order and in Opposition to Cross-Motions or Stay and Other
Relief" dated October 14, 2003 is replete with ad homonym
attacks against Judith Herskowitz without being able to rebut any of
the factual allegations or legal authorities in her papers showing
that there is no valid order in effect appointing him as receiver for
the property of North Jersey
click here and for
Exhibits attached click
here.
Herskowitz's "Reply to Charney's Cross
Motions click here
also a
Reply to the Receiver together with a Memorandum of Law
click here. Herskowitz's request for production of the satisfaction of the judgments and for records of the surplus funds held by Mr. Windels click here. Delibert was not going to produce the satisfaction of judgments and responded with a motion for protective order click here and Windels likewise responded with a motion for protective order click here. In Plaintiff's Reply Affirmation click here Mr. Delibert maligns Herskowitz with baseless accusations that she "remains indebted to the corporation" for the $4.3 million default judgment entered against her "for her part of the looting and despoilation of the corporation", while he admits settlement with the other two defendants for the same judgment, but disregards the full satisfaction of that judgment and would claim that Herskowitz remains liable for the whole judgment, to collect for the second time on the same judgment which by law is not permitted. Mr. Delibert further accused Judith that she is a "fugitive from New York" when the fact is that she is not escaping from New York, because she has lived in Florida for over thirty years, and for more than a decade before Charney even commenced her New York litigation in 1988. It was intentionally ignored that it was Alex Fried, the father of Charney and Herskowitz who purchased that real property in 1958 managed it and was his sole source of income, which was limited because of the controlled rents. So, there was nothing to take, but the income for Fried was excluded and was claimed as the damages, with one million added on for loss of value of the real property and over one million in prejudgment interest and the moneys that went to pay off the mortgage. This lawsuit was not what the facts and the applicable law are, but what is fabricated is what prevails, which was made unassailable.
By his own account Mr. Delibert based that
shareholder's derivative suit, on
innuendoes and speculation i.e.that Herskowitz, said she would take all
the salaries, when she got no salary and no money from
North Jersey, because the income belonged to her father Alex Fried, that she had unexplained wealth, without defining what
or where it was (for sure Herskowitz would have liked to find it as
well); that Herskowitz had to produce corporate books and records in New
York, when she lived in Florida and had no control and no possession of those records.
The fact is that whatever books and records were produced
that did not satisfy Mr. Delibert, because it did not show the multi
million dollar profits Mr. Delibert envisioned, and so he resorted to
malicious attacks upon which to make his false claims.
The end result is that it was Mr. Delibert and his
accomplices who "looted" the corporation and emptied it out to the last penny,
not only without any money going to Herskowitz, but leaving her with a $4
million judgment procured by fraud upon which to accomplish this feat.
A Default
Was Contrived Against Herskowitz To The return date on the motion was set for November 18, 2003. However, it was the objective of Mr. Delibert that Judith Herskowitz not appear on that motion in the New York court, so that a default could be contrived against her whereby, he would prevail without opposition as was the history of this case. So, Mr. Delibert threatened Judith that if she appears in the New York court she would be arrested on the civil warrants, which Mr. Delibert procured previously ex parte (without notice and hearing) for the exact purpose to bar her from court. Judith Herskowitz informed the Court of these threats at an October 22, 2003 telephone conference. Justice Heitler agreed that the arrest warrants would be lifted and a copy of the order would be sent to Judith Herskowitz so "she could travel to New York for this court appearance without fear of arrest." Justice Heitler directed Mr. Delibert to prepare and deliver an order, which was to be received by the Court "in a day or two", to which he agreed. However, Mr. Delibert submitted that order (3) weeks later, which were not signed until November 12, 2004, click here. It was sent by regular mail, which Herskowitz received a day before the hearing on November 17, 2003 and so was too late make reservations to travel from Florida to New York.
Judith had previously contacted the Court on November 14,
2003 copied to Mr. Delibert and Mr. Windels as to the non-receipt of
the suspension order, but received no reply. On that same day Judith
also called by phone the court's deputy Steve, but he could give no
information. On the November 18, 2003 return day of the motion
Herskowitz had called the courtroom of Justice Heitler and requested
to participate by telephone, as she was told the day before that she
could by the
deputy Steven, but Justice Heitler disallowed it. This deliberate, calculated delay
to obstruct
Herskowitz from being able to travel to New York, was then used to
default her. Her properly submitted papers were then eliminated and
Justice Heitler allowed only Mr. Delibert’s papers he submitted in the
name of Charney.
Letter dated November 18, 2003
addressed to Justice Sherry Klein Heitler requesting that the case be
transferred to the Commercial Division of the court since the case is
claimed to be a stockholder derivative suit well in excess of the monetary
threshold requirement, and therefore it belongs in that
division. For the letter click here
Letter dated November 19, 2003 from
Justice Jacqueline Silbernann in response saying that request should be
made by motion, the case would
remain with Justice Sherry Klein Heitler and that "she will decide all
issues....based on the law and the facts".
Click here
Mr. Delibert's letter dated November 25, 2003 addressed to John F. Werner
Chief Clerk and Executive Officer of the New York County Supreme Court
saying that the motions have been submitted on November 18, 2003,
and are under consideration, giving the appearance that it included
Herskowitz's papers
click here.
Letter
dated December 10, 2003 click here
by Judith Herskowitz to Chief Clerk John F.
Werner objecting that the motions were submitted before Justice Sherry
Klein Heitler without setting an
evidentiary hearing, on the disputed issues.
Response of Justice Silbermann dated
December 12, 2003 saying that the
That April 13, 2004 directed Mr. Windels to file a
final accounting pursuant to New York Business Corporation Law Section
1216 and treated him as he were the receiver of the assets of North
Jersey under a May 21, 1991 order of appointment. However, Mr.
Windels has never taken the oath and never posted a bond to serve
under that order and had not engaged in the required publication of
notices to distribute those funds as the North Jersey receiver.
Justice Heitler Disregarded
the Full Satisfaction of the $4.3
Judith Herskowitz moved to renew and to vacate that
April 13, 2004 order entered by defaulting Herskowitz. On June 2,
2004 Justice Heitler issued an Order to Show Cause and set the motion
down
for oral argument for June 21, 2004, but on page 2, Justice Heitler crossed out the provision asking to enjoin the disbursement of any
of that close to $700,000 held by Mr. Windels
click here.
This fueled suspicion that Justice Heitler had no intention to consider
the motion and that her objective was to allow the disbursement of the
surplus as prearranged. For the motion to renew Herskowitz relied on the full satisfaction of
the judgments, which included the payment of the fees, which should have deprived Mr. Delibert from bringing
on his
motion for disbursement for fees in the first place. Herskowit |
Background
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