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For Which Paul Windels III Acted as the Conduit The outcome was predetermined. The facts and the law are fashioned to suit the desired end result. The appropriation of property, and denial of rights, is approved 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 judicial immunity.
For prior history of the case
click here. Most of the file
before Justice Heitler has been scanned in including all the Exhibits
attached to the motions and orders. To access these you will need the free
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 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 Mr. 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 those 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" 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 with plaintiff Susan Charney 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. 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 was for the most part for litigation he pursued 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. 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 default million 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 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. 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 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 Judith 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) against all the Herskowitzes, to bar them from court. Judith 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 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 in 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. Herskowitz
also claimed a meritorious defense to vacate the default,
Mr.Delibert's misuse of the threats of arrest, his untimely service of
the suspension orders, which prevented her from traveling to the New
York court. Nor could she be defaulted where motions are submitted on
papers and she did timely file her papers. Furthermore, that Mr. Delibert's admission in his December 29, 1993 sworn
testimony that the alleged withdrawal of the jurisdictional
defenses by the Herskowitzes was unsupported by the record and was
fiction. The papers were as follows:
Herskowitz's Affidavit in Support of Motion to Vacate Decision and Order of April
22, 2004 Entered by Default and for Leave to Renew and to Reargue
click here.
Herskowitz's Memorandum of Law in Support of Motion to Vacate Decision and Order of
April
22, 2004, Entered by Default and for Leave to Renew and Reargue
click here
Delibert's Affirmation in Opposition to Motion to Vacate Decision and Order of
April 22,
2004 click here
Delibert's Memorandum of Plaintiff and Receiver in Opposition to Motion to Vacate
Decision and Order of April 22, 2004
click here
Reply Affidavit of Judith Herskowitz to
Affirmation in Opposition to Motion
Herskowitz timely received the suspension order
click here and to the surprise of
Justice Heitler, Mr. Delibert and Mr. Windels, she appeared in the New
York courtroom on June 21, 2004 as scheduled at 11:30 A.M.
which should have demonstrated to the court that there was no unwillingness to appear. Justice Heitler then announced "This is your motion, ma’am. I will hear what
you have to say. I will give you ten minutes." To which Herskowitz
objected that she did not come all the way from Florida to be given
ten minutes. Herskowitz explained that this $4 million judgment by
default was built on fabricated claims that the Herskowitzes "looted" the
corporation’s income when the income at all times belonged to
Alex Fried, the father of Charney and Herskowitz, and that $4 million
default judgment omitted any income for Fried and so was a theft of
his income. She explained that she could not come up on a
last minute notice from Florida, because the planes are full around
Thanksgiving time and in fact even with timely reservations she and
the friend who accompanied her were bumped off the flight and had to
take another flight.
Herskowitz presented copies of the full
satisfaction of the judgments which Delibert and Windels refused to
produce and which she was finally able to obtain from other sources. Delibert
and Windels were taken by surprise and Justice Heitler showed discomfort.
Herskowitz offered the satisfactions into evidence, they were
reluctantly authenticated by Mr. Delibert and Mr.
Windels who signed them. To see one such satisfaction
click here Herskowitz cited authorities from her
Memorandum of Law that show that under New York law the full satisfaction of judgment in a postjudgment settlement,
discharges all the jointly liable judgment debtors as distinguished
from a pre-judgment settlement. When Herskowitz offered to furnish a surreply on these
issues Justice Heitler responded: "I don’t need a surreply; I know the
difference, ma’am." Nevertheless, Justice Heitler refused to mark the satisfactions
into evidence. Obviously, Justice Heitler was not interested in
the actual facts and the controlling law, because she already approved that prearranged
appropriation of the surplus, without any determination to the
entitlement of those funds by each of those lawyers. So, Justice Heitler gave herself
an alternative, "First I have to get past whether, I’m going to
open the default........If I get past the default, then I consider the
renew and reargue." Evidently, all that charade and play
acting on the default could not go into waste.
For transcript of the proceeding of June 21, 2004
click here.
Mr. Delibert literally fought Herskowitz to
death for money, but it was his death in July 2004, and now he is the devil's
advocate.
ORDER of Justice Heitler issued on October 12, 2004 denying the Motion
to Vacate the Default. The Court once more engaged in personal
attacks against Herskowitz and used the same prior cases from the
April 13, 2004 order which were again
irrelevant to the issues, but were used to divert attention from the
real issue, that the Court simply ignored and omitted the full
satisfaction of the $4.3 million default judgment, which was again
omitted from the order. So, Justice Heitler chose to treat
Herskowitz's motion as
one to vacate the default, to avoid the motion to renew based on the
satisfaction of the judgment.
The Court was openly biased and prejudiced in failing to
recognize that Mr. Delibert did not submit the proposed suspension
order timely, for an artificial means to adhere to that contrived
default, to foreclose opposition. The Court has also failed and refused to deal
with the fact that it was unrebutted by Mr. Delibert that he knew that
the Herskowitzes have not withdrawn their jurisdictional defenses and
so he never established any right to sue the nonresident Herskowitzes
in New York.
To see the order click here.
Herskowitz moved for the disqualification of
Justice Sherry Klein Heitler by motion dated September 29, 2004
that was returnable in the motion part on October 29, 2004 and
was scheduled by the Court for January 5, 2004. For Affidavit
click here and for Memorandum of law
click here
Windels' Affirmation in Opposition to Motion for
Disqualification of Judge
click here
Exhibits and
Memorandum of Law click here.
Herskowitz's Reply to Windels' opposition
click here.
ORDER of Justice Heitler dated February 16, 2005
denying the Motion for Disqualification
click here.
The Prior Contempt Orders, Sanctions, a Turnover During pendency of
the above motion, Herskowitz requested that Justice Heitler issue an order
to show cause on her motion seeking to vacate prior orders and judgments,
but she declined to issue it. Herskowitz then filed it in the motion part
returnable on October 28, 2004. The substance of the motion was to show,
that the contempt orders, the sanctions, the turnover order and that $4
million dollar judgment by default were void, for lack of service, or
because they were entered ex parte with no attempt to serve it, or there
simply was no provision in the law to enter a contempt for discovery
violation and to impose warrants of arrest on it, or they were entered
without the required hearing etc., Shown in detail on pgs 15-26 of the
Affidavit, was the fraudulent basis of that $4 million judgment, the
falsely inflated rents, the minimized expenses, the omitted rent rollbacks
going back to the 1970's when Fried lived in New York and managed the
property with his wife Hedy Fried, the tax returns showing that Fried was
the only one receiving the income (which was omitted from that $4million
judgment) and that the $200,000.00 that was
claimed to have been misappropriated was used to pay off a mortgage. The
motion was substantiated with extensive documentation on which the Herskowitzes were never heard and were barred from presenting at the time,
so that the $4 million judgment would be entered by default. Charney who was the only party to that $4
million judgment and who claimed to have personal knowledge on that
judgment filed no affidavit in opposition to Herskowitz's motion, so that
the facts on the motion were undisputed. Mr. Windels likewise filed no opposing affidavit.
However, on page 3, of his Memorandum dated October 21,
2004 Mr. Windels claims that Charney commenced a derivative suit, and that "Charney claimed
that Herskowitz and defendants Robert and Mark had
misappropriated income from North Jersey that rightfully belonged to her".
So, that Mr. Windels conceded that
Charney sued individually for income that she claimed belonged to
her, and so she did not pursue a derivative suit for loss of income on on behalf of the corporation
and accordingly was not entitled to fees for her lawyers from the corporation under BCL 626(e).
Furthermore, Charney conceded in
a May 13, 1995 deposition that all the income belonged to her father Alex
Fried and that the corporation declared no dividends. So, that Charney's
case pursued while Fried was alive was elderly abuse to deprive him of his
livelihood. Justice Heitler refused to set the motion down for an
evidentiary hearing as has been her practice, and allowed only about a ten
minute oral argument on April 5, 2005 for which Herskowitz had to travel
from Florida also accompanied with a friend for being apprehensive to
appear alone in the courtroom of Justice Heitler. The papers on the motion
were as follows: Notice of Motion to Vacate Orders and Judgments dated September 29, 2004 that were returnable in the motion part on October 28, 2004 and was scheduled by the Court for April 5, 2005 click here Herskowitz's Affidavit in Support of Motion to Vacate the January 19, 1993 Contempt Order, the February 19, North Jersey Trading Corporation, 1993 Order of Commitment the January 19, 1993 Order Entering Default and the January 21, 1994 Derivative Default Judgment (See pages 15-26 on the fabricated loss of income) click here for Exhibit List click here, for Exhibits 1-15 click here, for Exhibits 16 to 24 click here and for Exhibits 25-30 click here. Herskowitz's Memorandum of Law in Support of Motion to Vacate the January 19, 1993 Contempt Order, the February 19, 1993 Order of Commitment, the January 19, 1993 Order Entering Default and the January 21, 1994 Judgment click here Windels' Affirmation in Opposition to Motion to Vacate Orders and Judgments (a mere two pages claiming no personal knowledge) click here. Windels' Memorandum of Law in Opposition to Motion to Vacate (See page 3 where he claims that the income belonged to Charney) click here Herskowitz's Reply Memorandum of Law to Windels’ Opposition to Motion to Vacate Orders and Judgment click here To Uphold
That Prearranged Distribution of the Surplus Not
Only Herskowitz has also moved to vacate that October 12, 2004 order denying the motion to vacate that April 13, 2004 order entered by default on the ground that she could not be defaulted where the court never determined personal jurisdiction over her, and where it could not make that determination without an evidentiary hearing on the sufficiency of service and long arm jurisdiction that was never held. She further emphasized that she was a non-resident and the court can't just seize her money, that none of the jurisdictional requirements under CPLR 302 have even attempted to be met to marshal her before the New York court. Another issue that was repeatedly disregarded is that the judgment had been satisfied, including the fees and by law there could be no double collection on the same judgment. Mr. Windels again reasserts on page 2 of his Memorandum dated December 13, 2004 that "Charney claimed that Judith Herskowitz and defendants Robert and Mark had misappropriated income from North Jersey that rightfully belonged to her", which is not an injury to the corporation and is not a derivative suit on behalf of the corporation to be entitled to fees from the corporation. Furthermore, Herskowitz could not be defaulted where her appearance on the November 18, 2004 return date of Charney's motion was conditioned on the expeditious receipt of the suspension order, with which Mr. Delibert failed to comply. The papers on this motion were as follows: Notice of Motion dated November 19, 2004 and returnable in the motion part on December 2004 and was scheduled by the Court for April 5, 2004 click here Affidavit in Support of Motion to Vacate Decision and Order of April 22, 2004; and of October 18. 2004; to Renew and to Reargue; And/or to Refer Matter to Justice Silbermann click here for Exhibit list click here and for Exhibits attached to affidavit click here. Memorandum of Law in Support of Motion to Vacate Decision and Order of April 22, 2004; and of October 18, 2004; to Renew and to Reargue; And to Refer Back to Justice Silbermann click here Windels' Affirmation in Opposition to Motion to Vacate click here Windels' Memorandum of Law in Opposition to Motion to Vacate dated December 13, 2004 (above referenced page 2) click here Reply Affidavit to Windels’ Opposition to Motion to Vacate Decision and Order of April 22, 2004; and of October 18, 2004 Etc., click here or Exhibit list click here and for Exhibits to Affidavit click here. Herskowitz's Reply Memorandum of Law to Windels Opposition to Motion to Vacate Decision and Order of April 22, 2004; and of October 18, 2004; Etc., click here Justice Heitler set this motion down for the same April 5, 2005 date as the motion to vacate the prior orders and judgment noted above. Justice Heitler continued to refuse to recognize that the judgments were satisfied and Herskowitz was mailed a Suspension Order effective from April 1 to April 5, until 8:00 P.M. to see it click here. Herskowitz had to travel from Florida to New York for what turned out to be no more than a brief conference, with ten minutes allotted to her. Justice Heitler chose to sit across the table where usually the attorneys sit in the courtroom. When Herskowitz attempted to offer documents and asked that it be marked into evidence, Justice Heitler raised her voice, refusing to accept it, waiving her hands and again refused to set an evidentiary hearing. Justice Heitler was not interested to hear the motion on the fraudulent basis of that $4.3 million judgment; that included the income of Fried which was literally stolen from him. Justice Heitler's interest was to enjoin Herskowitz from proceeding with these issues, and instructed Charney to submit an Order to Show Cause which she will sign, but this was not done, because then Herskowitz would have been required to be given an opportunity to respond to the motion. ORDER of Justice Heitler dated June 8, 2005 denied all of Herskowitz's motions as if, the only issue was a jurisdictional challenge and addressed none of the other issues. Justice Heitler was fully aware that she could not rely on that October 2, 1991 order since Mr. Delibert conceded that the ruling in that order that the Herskowitzes withdrew their jurisdictional claim was pure fiction. So on page 2, of her order Justice Heitler now relied on another order that was likewise entered without notice and hearing and was simply another misinterpretation of that May 8, 1990 order of Justice Silbermann, that she denied the Herskowitzes' motion to dismiss, when it was the corporate defendant's motion that was denied on other grounds. This is a clear example of the serial fabrication by which a party is prevented from prevailing on the truth and of course, without allowing an evidentiary hearing to create a record. Under the law, this would not be possible, because the facts cannot be changed based on the theory of estoppel. To prevent a challenge to her order Justice Heitler "ORDERED that, henceforth from the date of this decision and order, defendant Judith Herskowitz is enjoined from submitting any future filings in this matter, which includes cases filed under index numbers 024517/88 and 0023002/92, without the prior written approval of this court." In that same order Justice Heitler directed Mr. Windels "as receiver of he property of North Jersey Trading Corporation" to move for judicial settlement of his final account pursuant to New York Business Corporation Law Sections 1216 and 1217 for the distribution of the surplus as was directed by the court. For order click here. To Give an
Appearance of Due Process Justice Heitler Herskowitz moved to vacate the June 8, 2005 order restricting her from filing papers without prior permission and also requested the disqualification of Justice Heitler. Herskowitz raised new issues and some prior issues, because she was never heard, she was never given her day in court and the opportunity to present evidence and testimony. The papers filed were as follows: Herskowitz's Notice of Motion dated August 1, 2005 returnable in the motion part on August 31, 2005 click here Herskowitz's Affidavit in Support of Motion to Vacate
and to Renew the June 8, 2005 Decision and Order; for Restitution; and
for Disqualification of Judge
click here for
Exhibit list click here,
for Exhibits 1-10 to Affidavit
click here and Exhibits
11-25 Herskowitz's Memorandum of Law in Support of Motion to Vacate And Renew the June 8, 2005 Decision and Order; For Restitution; and for Disqualification of Judge click here Windels' Memorandum of Law in Opposition to Motion to Vacate and Renew and Reargue and for "Restitution" click here Herskowitz's Reply to Windels’ Memorandum of Law in Opposition to Motion To Vacate and Renew and Reargue and for Restitution click here Letter dated September 20, 2005 from Justice Heitler returning Herskowitz's papers click here. ORDER of Justice Heitler dated October 21,
2005 denied the motion in a one page short order on the mere conclusion that it is repetitive of
motions already raised and considered by the court. However,
there is no order whatsoever that considered the issues raised in the
motion. Nor could there be an order on these issues, since the Court never held an evidentiary
hearing to allow proof and testimony. Obviously, the
fabrications were utilized as a means for the end result to
appropriate the surplus funds that rightfully belonged to Herskowitz.
For the order click here and
another order again refusing to allow motion to be heard
click here. Paul Windels
III Misrepresents Himself as Receiver of North Mr. Windels moved for approval of his final accounting as Receiver of North Jersey. For a pretense of legitimacy of that prearranged plan of fee splitting of the entire corporate surplus that was illegal in the bankruptcy court, Mr. Windels represented himself as the receiver of North Jersey. Upon the protests of Judith Herskowitz that this receivership was non-existent Mr. Windels doctored up the record. Whereas the law requires an immediate notice of publication upon the order of appointment, Mr. Windels engaged in publication in 2004 which was thirteen years after a 1991 order that appointed him only as temporary receiver of the real property of North Jersey. However, that property was sold in 1994 by the bankruptcy trustee and existed no longer. That surplus came into the hands of Mr. Windels upon transfer from the bankruptcy trustee, only for distribution to the shareholders. Furthermore, a prerequisite to publication of notices is the qualification of receiver, that is the taking of an oath and posting a bond. This never happened, and Mr. Windels never served as receiver of the corporate assets, and the case terminated with a final judgment. Upon this impersonation of corporate receiver, Mr. Windels designated the lawyers and Charney as creditors after they were paid and who never made a claim as creditors pursuant to requirements of Article 12, N.Y. Business Corporation Law upon which he relies. Moreover, all claims of creditors were disposed in the bankruptcy court. Windels' accounting also shows that he made payment to his post-designated creditors between July and August 2004, which was after the June 2, 2004 Order to Show Cause, in which Justice Heitler crossed out the provision to enjoin the distribution of the surplus, so that June 21, 2004 hearing was prearranged as well, in which Justice Heitler refused to mark the full satisfaction of the judgments into evidence, and at all times after that. Obviously, that would have foreclosed that distribution of the surplus funds of around $700,000.00, which relies on the myth of that derivative judgment in excess of $4.3 million. The papers on Mr. Windels' motion are as follows: Windels' Notice of Motion for Approval of Accounting of Receiver dated September 12, 2005 returnable in the motion part on September 30, 2005 and set by the Court for January 23, 2006 click here. Windels' Affirmation in
Support of Motion for Approval of Accounting
of Receiver Windels' Retroactive Publications for his backdated receivership click here Herskowitz's Notice of Cross Motion click here Herskowitz's Affidavit in Support of Cross-Motion to Vacate and in Response to Windels' Motion for Approval of Accounting click here for Exhibit list click here. Herskowitz's Memorandum of Law in Support of Cross Motion to Vacate and in Response to Windels' Motion for Approval of Account click here Windels' Reply Memorandum of Law in Support of Motion for Approval of Accounting and in Opposition to Cross-Motion to Vacate and Renew and Reargue click here. Herskowitz's Reply Affidavit to Windels' Opposition to Cross-Motion to Vacate and Renew and Reargue click here for Exhibit list click here . Herskowitz's Reply Memorandum of Law to Windels' Opposition to Cross-Motion to Vacate and Renew and Reargue click here Request for evidentiary hearing click here Herskowitz's Letter dated October 17, 2005 to Justice Heitler informing the court that the accounting is required to be set down for an evidentiary hearing, but Mr. Windels has not requested any. Click here A hearing was scheduled for January 23, 2006 on Mr. Windels' Motion for Approval of Accounting of Receiver, for which Judith Herskowitz was required to travel from Florida to New York. She was sent the suspension order click here and she appeared on that day. Once more Justice Heitler refused to hold an evidentiary hearing. It was just unsworn arguments by Mr. Windels on unsupported facts without any reference to the law. Herskowitz tried to present the substance of her motion, but she was not permitted to introduce any evidence. Justice Heitler ordered the transcript to figure out what to do next, which was as follows: ORDER of Justice Heitler dated March 23, 2006. The objection that Herskowitz filed to Mr. Windels' accounting was stricken. It was ruled that Herskowitz has no standing to object to Mr. Windels' final accounting, because Herskowitz owes $4 million to North Jersey on a turnover order, for which all her North Jersey stock certificates were required to be turned over to the Sheriff in New York County. The presentation of Mr. Windels' accounting was continued to June 26, 2006 because he had yet to engage in publication of notices for his accounting. The effect of the order was to dispense with the adversary system of justice. Thus Mr. Windels' accounting would be insulated from the evidence of the fraudulent nature of his distribution to bogus creditors, click here, for order and click here for. the suspension order that Herskowitz can attend the hearing, but can't say anything, which obviously is not a reason that she should travel from Florida to New York. Herskowitz moved for the disqualification of Justice Heitler. Herskowitz’s Letter dated June 12, 2006 to Justice Heitler click here Herskowitz’s Notice of Motion for Disqualification of Judge dated May 21, 2006 returnable in the motion part on June 22, 2006 click here Herskowitz’s Affidavit in Support of Motion for Disqualification of Judge click here for Exhibit list click here . Herskowitz’s Memorandum of Law in Support of Motion for Disqualification of Judge click here Windels' Memorandum of Law
in Opposition to Motion for Disqualification Herskowitz’s Reply Affidavit to Windels’ Memorandum in Opposition to Motion for Disqualification of Judge click here Herskowitz’s Reply Memorandum to Windels’ Memorandum in Opposition to Motion for Disqualification of Judge click here. ORDER of Justice Heitler dated June 21, 2006 denying the Motion for Disqualification. While the order says Herskowitz can file a response to motions of others however the March 23, 2006 order does not allow her to participate in the motion because she is denied standing on that fabrication that she owes $4 million on a turnover order, where no such order exists click here Windels' letter of June 12, 2006, asserting in his letter that the only person who objects to his accounting is Herskowitz and claims that she cannot object as set up in the March 23, 2006 order. So, it has been arranged to hold no hearing on objections where the only party to appear is Mr. Windels click here Order to Show Cause dated June 16, 2006 issued by Justice Heitler to reset the hearing on Windels' Motion for Approval of Receiver Accounting click here Herskowitz's Response click here. Windels' Reply Affirmation in Support of Order to Show Cause dated July 5, 2006 click here ORDER of Justice Heitler resetting the hearing on the accounting for that charade on September 11, 2006 because the only party is Mr. Windels click here. Judith Herskowitz served a Motion for Clarification and to Renew and To Vacate the March 23, 2006 Order. It was shown that if Justice Heitler had not defaulted Herskowitz in her April 13, 2004 order to eliminate her, then she would have been deprived of standing as was done in the March 23, 2006 order, to foreclose her from objecting to that prearranged fee division, upon which Mr. Windels now filed his Motion for Approval of Final Accounting of Receiver. It was shown that the $4 million judgment was entered in 1994 and the turnover order, was entered prior to that so it had no connection to that $4 million judgment, furthermore that it was entered ex parte without notice and hearing and was only for $5,000.00 money judgment, payable to Mr. Delibert in another case. Moreover, that all the judgments had been satisfied. Also that the law of turnover allows collection on a judgment only for the amount of the judgment which was the $5,000.00. This turnover order was yet another way of attempting to appropriate the whole corporation. The papers on this motion were as follows: Notice of Motion dated July 19, 2006 returnable in the motion part on August 15, 2006 click here Affidavit in Support of Motion for Clarification and to Renew and to Vacate the March 23, 2006 order click here for Exhibit list click here . Memorandum of Law in Support of Motion for for Clarification and to Renew and to Vacate the March 23, 2006 order click here ORDER of Justice Heitler dated August 8, 2006 denying Herskowitz the right to file a motion addressed to the March 23, 2006 order click here. Windels' Notice of
Receiver of Presentation of Account
dated August 7, 2006 in Whereupon, Herskowitz had filed Objections to the ex parte nature of the hearing, by reason of the fact that she was barred from court. These were yet the most extensive papers, which show especially in the Memorandum, the failure to abide by legal requirements and the tampering with the record. This by dispensing with objections to the accounting that the court is required to hear; the lack of subject matter jurisdiction, because corporate law makes no provision for a general receiver, only for the property of the corporation; and in 1995 upon which the court relies as having reappointed Windels as receiver, North Jersey a foreign corporation had no property within the state because it was sold by the bankruptcy trustee, so there was also a lack of in rem jurisdiction none of which can be cured retroactively. Windels' oath was false, because there was no North Jersey property within the state, and there was also a bankruptcy stay that did not allow the appointment of receiver for North Jersey. Herskowitz was deprived of standing to object to Windels’ accounting, because she "owes" $4 million to North Jersey on a turnover order that was only on a $5,000.00 money judgment, for which all the North Jersey stock certificates are demanded, disregarding that this was in another case, and all the judgments had been satisfied. Nor did Charney have a derivative suit, but individual claims for which fees could not be awarded from the corporation, and the corporate funds could not be used to pay claims of alleged creditors the Florida lawyers outside of the state. The papers were as follows: Affidavit dated
August 31, 2006 in Support of Objections
for Having Been Barred from this Court By
Disallowing My Motions and
Response; By Depriving Herskowitz of Standing to
foreclose her the Right
to Object to Windels’ Accounting; So That it Be Conducted
ex Parte ; Which Binds No One
click here. Letter of Justice Heitler dated September 5, 2006 sent by regular mail in which she denies in response to Herskowitz's August 31, 2006 letter that Herskowitz is barred from court, and informs Herskowitz that she is not barred from objecting to Mr. Windels' accounting if she appears in court and serves her papers on the parties. For letter click here. Letter of Herskowitz dated September 11, 2006 faxed to Justice Heitler, on the same day, informing the Court that by not allowing her to participate in the proceedings she was barred from court, and that it is clearly stated in the March 23, 2006 order that Herskowitz was deprived of standing to object to Windels Final Accounting. Justice Heitler declined to vacate that order and obviously Herskowitz cannot object where she has been deprived of standing. At any rate the August 5, 2006 letter was read to Herskowitz upon her insistence by the Court's deputy and was on insufficient and untimely notice to enable her to travel to New York for September 11, 2006. Moreover on the Court's Appearance Calendar only a Status Conference is set which can be conducted by phone. For letter click here. Windels' Affirmation dated September 6, 2006, in which he now misrepresents under penalty of perjury that "I am receiver of the assets of North Jersey Trading Corporation ('North Jersey') pursuant to this Court's order of May 21, 1991" upon which fraudulent claim he published notices and affirms that there is no objection to this final accounting. Clearly, he expects to procure an ex parte order approving his accounting on the misappropriation of the surplus funds click here. When Justice Heitler's letter was read to Herskowitz on Friday September 8, 2006, by the court's deputy Steve, he also told her that he would call on Monday September 11, 2006 at 11:30 A.M. when the case is called on. On September 11, 2006 Herskowitz called the court around 10:00 A.M. after faxing her letter, receipt of her letter was acknowledged by Steve, and he assured Herskowitz that she would be called when the case is called. Herskowitz waited for the call, but no call came. She called the court around noon and was told by Steve to her surprise that the motion was submitted, with no hearing and only Mr. Windels appeared and someone representing the estate of Mr. Delibert, who never filed a notice of appearance. Herskowitz's letter to Justice Heitler dated
September 15, 2006 protesting that her papers were marked submitted
without the required evidentiary hearing. Requesting that if the
Justice Heitler meant that Herskowitz could object to Windels' accounting then it
should be reset with notice to her giving her sufficient notice so that
she could travel to New York from Florida
click here.
Letter from Justice Heitler written by her law clerk, dated September 21, 2006 in response to Herskowitz's September 15, 2006 letter, avoiding the main issue, not to base it on the law, but how to get around it, in attempts to legalize to proceed without the required trial on Windels' accounting to avoid the evidence that would nullify that accounting on what was a private deal click here and exhibits click here
Windels' notice dated September 22, 2006 and proposed order that he made up
approving his alleged accounting, without the required decision by the judge upon
which to draw up that order. Windels did a private deal on the
surplus and now he made up his own order approving it. Replete
with self serving falsehoods, easily proven in this record
click here. Herskowitz's Objection and Rejection to Windel's Proposed Order Settling Receiver's Account and Notice dated September 22, 2006. Windels proposes his order without the required decision of the court. Even though Windels proclaims himself to be the receiver that is just for the illusion, when he ignores the rules of receivership, which requires a hearing to be set on his alleged final account. Instead would do with an oral argument, which is a meaningless five, ten minutes given to each side, rehashing unsworn the same falsities or or fabricating new one ones click here. Herskowitz's letter to Justice Heitler dated October 4, 2006, with regard to Mr. Windels' attempt to appear before the court to ask that his proposed order be signed, which is not on the calendar and would be ex parte click here. Letter from the office of Justice Sherry Klein Heitler by her Principal Law Clerk Tina L. Mazza Ralls dated October 6 , 2006 letter, postdated October 10, 2006, with the all encompassing solution that Herskowitz is to pursue an appeal click here. Herskowitz's letter to Justice Heitler dated October 17, 2006, with the response that there is no requirement to appeal, that the orders are non-final and on an appeal from a final order it brings up for review the non-final orders and there can be no final order, where no evidentiary hearing was even scheduled as required to enter a final order on Windels' accounting click here. Letter from Justice Jacqueline Silbermann, dated September 22, 2006 in response to Herskowitz's prior letter with the same advise to the "extent you find fault with Justice Heitler's decisions on any issue in your case your remedy lies with the appellate process click here. Herskowitz's response dated October 17, 2006 to Justice Silbermann's letter with the letter of October 17, 2006 letter to Justice Heitler attached saying that appeal is no remedy here, because the issues were not resolved in the civil matter, and that Windels' activity was criminal in nature and therefore, should be referred to the District Attorney of the State of New York, for investigation and prosecution, supported by the specific sections of the New York Penal Code for grand larceny, embezzlement, impersonating court appointed corporate receiver, and perjury click here. Herskowitz's letter dated October 25, 2006, to Justice Heitler calling it to her attention that Mr. Windels was also appointed as guardian ad litem for the defendant Alex Fried to protect his interests in that May 21, 1991 order, but he failed to comply to qualify by taking his oath and posting a bond and never served as guardian ad litem. That appointment was in conflict with Mr. Windels' appointment in that same May 21, 1991 order as receiver of the assets of North Jersey Trading Corporation, where Fried's interests were left unprotected so what was Fried's income would be appropriated and be made the basis of the loss of income in that $4 million judgment by default click here. Windels' proposed order noted above that he made up approving his alleged accounting, without the required judicial decision was signed verbatum by Justice Heitler as the October 23, 2006 "Order to Settle Receiver's Account and to Discharge Receiver", omitting paragraph 6 in which Mr. Windels conceded that his his "final account" was set only for oral argument, when the law required that it be set down for an evidentiary hearing. It was expressly noted in that order that Judith Herskowitz's objections were rejected for "having failed to appear before the Court on September 11, 2006" so that she was defaulted once more, so that her objections would not be considered. No hearing was held, so no record was created. For order click here. Herskowitz moved to renew and to vacate the order dated October 23, 2006 and filed on October 26, 2006 returnable on January 8, 2006 for the reasons stated on the papers below: Notice of Motion to Renew and to Vacate Order to Settle Receiver’s Account and to Discharge Receiver click here Affidavit in Support of Motion to Renew and to Vacate Order to Settle Receiver’s Account and to Discharge Receiver click here Memorandum of Law in Support of Motion to Renew and to Vacate Order to Settle Receiver’s Account and to Discharge Receiver click here On December 6, 2006 Judith Herskowitz filed a Notice of Appeal on the October 26, 2006 order with a preargument statement noted below: Notice of Appeal click here Preargument Statement Pursuant
to 22 NYCRR §600.17 click here Herskowitz’s Reply to Windels’ Memorandum of Law in Opposition to Motion to Vacate and Renew click here. Herskowitz's Supplemental Reply Memorandum of Law to Windels' Opposition to Motion to Vacate and Renew click here to which she attached the order click here that appointed another receiver for North Jersey, who served and so precluded Mr. Windels from ever becoming the receiver of the assets of North Jersey in clear evidence that his claim that he is receiver of the assets of North Jersey is unfounded and is false. Judith Herskowitz requested that her motion be set down for an evidentiary hearing. However, once more Justice Heitler set the motion down only for an "oral argument", as stated in her letter on the excuse that the motion requests reconsideration of a prior motion and decision. However, the October 26, 2006 order was entered by defaulting Herskowitz and so the court did not hear her objections, nor was an evidentiary hearing set to hear the objections upon which the court could have made a decision. Since there was no decision on the objections and proof there was no decision to be "reargued". In that case the New York law provides only for a a motion to vacate the default order. The oral argument was scheduled for June 7, 2007. Judith Herskowitz had traveled to New York. She had about four people come with her to the hearing, who lived in New York, so that her friend from Florida did not have to accompany her. Herskowitz was afraid to appear in the New York court alone. There was only argument on the motion. There was no question that no evidentiary hearing was held on Mr. Windels' accounting and that a hearing was required. Judith Herskowitz asked Justice Heitler if she was willing to work out a settlement. She curtly replied "No". When the argument was over in about fifteen minutes, Justice Heitler announced that she will write up an order and will mail it to the parties. ORDER of July 27, 2007 click here. Of course that is all it took to deny the motion. It was treated only as a motion which was claimed to raised nothing new and so it was treated as a motion to reargue. However, now it was not on account of Herskowitz having failed to appear on September 11, 2006, but because she has no standing to object based on a turnover order for the North Jersey stocks in that she owes $4 million to North Jersey, which was wholly misrepresented in that Herskowitz owes nothing. It was also acknowledged that Mr. Windels has taken no oath and posted no bond, but it was Herskowitz who had to object, although there was no such law. The simple fact is that Mr. Windels was never the receiver of the assets of the corporation, but merely impersonated himself, which obviously was enough for the court. On October 3, 2007 Judith Herskowitz filed a Notice of Appeal from the July 27, 2007 order. Judith Herskowitz made further attempts to be heard on the record and evidence before Justice Heitler, and to create a record for appellate review, but all these motions were simply denied. These motions delayed Judith Herskowitz in perfecting her appeal. Judith moved to enlarge the time to perfect the appeal from the October 23, 2006 order. That motion was denied by the Appellate Division, First Department click here. Judith Herskowitz then perfected her appeal from the July 27, 2007 order. Amended Note of Issue describes that the appeal is taken from the decision and order of the lower court dated July 27, 2007 that denied the motion of Judith Herskowitz to vacate and for leave to renew the lower court’s Order dated October 23, 2006 that settled the accounting of Mr. Windels. That although the order dated October 23, 2006 is a final order it is not appealable, because it granted Windels’ motion for approval of his final accounting by defaulting Herskowitz from which no appeal lies under New York law click here. Thereupon, Herskowitz had filed her brief, the Table of Contents and the Brief together with an extensive appendix, Index to Contents pages 1-27 pages 28-59 pages 60-102 pages 103-155 pages 156-182 pages 183-237 which fully supported the facts stated in the brief, but were disregarded, by the simple expedient of the dismissal of the appeal. After Herskowitz had perfected her appeal, Mr. Windels moved to dismiss the appeal, so that it would be heard on his motion without a record on his falsified version of the facts. Mr. Windels argued merely relying on the magic word of reargument that the July 27, order denied to reargue the October 26, 2006 order and so the Appellate Court has no jurisdiction to hear the appeal, and the appeal from the July 27, 2007 order should be dismissed. For Windels' affirmation in support of his motion click here and for his Memorandum of law click here. That assertion of reargument was made without regard that Herskowitz was not heard upon which to make a reargument and Justice Heitler never set that accounting down for an evidentiary hearing as required by law, upon which to make a decision, that could be reargued. Moreover that October 23, 2006 order approved Windels' accounting without objections because Judith Herskowitz was defaulted, and so was not heard, all of which is elaborated in her paper in opposition in her affidavit click here and memorandum click here and for Windels' Reply click here. Herskowitz's has shown the the lack of legal and factual foundation of Mr. Windels' reply in her letter click here. Mr. Windels filed his Answer Brief which regurgitated his prior arguments that were unsupported by the record and the law. Herskowitz was not allowed to rebut his arguments in a reply brief, because her appeal was dismissed by order dated September 2, 2008, without explanation click here. Herskowitz moved to vacate and set aside the September 2, 2008 order, and to let the appeal proceed. Notice of Motion Affidavit and Memorandum of Law By simply inserting the word "reargument" into that July 27th order, it would be insulated from appellate review. The dismissal was without an examination of the record whether there was a reargument of the October 26, 2006 "Order To Settle Receiver’s Account and to Discharge Receiver". It was wholly disregarded that the October 26th order was entered upon default from which no appeal lies. That October 26th order rejected Herskowitz's objections for non-appearance so there was no prior decision on those objections. Furthermore, no evidentiary hearing was set to hear those objections as required by law, upon which the court could have made a decision, so there was no decision to reargue. As shown by the record, the decision of the lower court was not to make a decision, but to enter orders to eliminate Herskowitz, so that orders would be entered without opposition on that prearranged distribution of the entire surplus funds of North Jersey in the sum of $682.225.89 for fees, without evidence and in total disregard of the record. That allowed the court below to create its orders on altered facts and on misinterpreted law. Obviously, so as not to expose these faux orders, Herskowitz is now being denied appellate review. This comes in face of the policy of the New York Commission on Judicial Conduct that it will not pursue a complaint on the merits, because the remedy lies by appellate review. So, that the art of misappropriation of property has been perfected, without any accountability and without any fear of reprisal, protected under judicial immunity and the appellate court looking the other way. When the court below was presented with the well settled requirement of judicial notice of the law and of the record, the Justice looked down from the bench and simply uttered "I will enter my order and mail it to you", and that is how that July 27, 2007 order came into existence, which now cannot be appealed. Windels opposed the motion to vacate the dismissal order click here. Herskowitz filed a reply to Windels’ Opposition, saying that it was replete with arguments that are unsupported and contrary to the record. To prevent the issues to be decided on the record, Windels seeks to hide behind the inapplicable technicality of "reargument". Windels fails to show that a decision was made in the October 26, 2006 order on Herskowitz’s objections that could form the basis for denying Herskowitz’s motion in the July 27, 2006 order as "reargument". The October 26 Order Rejected the Objections and Opposition for Non-Appearance and Were Never Heard on the Merits. That Windels relies upon distortions and falsification of the facts, and places himself above the law, which has been the history of this case. Windels readily admits in footnote 19 of his Memorandum that the September 11, 2006 hearing was not set to give Herskowitz an opportunity to be heard, but to determine if any other interested party had any objection to the accounting, So, for Windels to assert that Herskowitz’s objections to the settlement of his accounting were heard on the merits and was not upon default, is adding insult to injury. The motion was denied simply as "reargument" on matters that were never heard click here for order. To be Continued...... |
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