Kamelia poppe and tandra dawson rackets ocr

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ) ) )

ALZERINA GOMES, Plaintiff,

-againstFREDERIC DES ET ANGS ROUX, Defendant.

) ) ) ) ) ) )

IDV PART

~

_ IPV

f.\b\(~ oe:2011

Index No. 311028/2015 Affirmation in Opposition

_______________________________ )

JUL

6 2017

NYS SUPREME COURT- CIVIL GENERAL CLERK'S OFFICE

Attorney Affirmation of Truth Edward G. Eiseman, Esq., an attorney admitted to practice before the courts of this state, hereby affirms under the penalties of pe1jury that the following statements are true, except those made on information and belief, which he believes to be true.

1. The defendant's pending motion seeking Judge Tandra L. Dawson's recusal from this case, dated May 30, 2017, is hereby incorporated by reference as though fully set forth herein.

(See defendant's May 30, 2017 motion annexed as Exhibit A). To the extent that Judge Dawson seeks clarification about her obligations with regard to the contents of that aforementioned motion as it relates to the plaintiff's motion seeking sanctions against my client and me, I submit the following.

2. First, I deny that I committed any misconduct at any time.

3. Second, I deny that Mr. Des Etangs Roux committed any misconduct at any time.

4. Third, I deny that Brian King committed any misconduct at any time.

5. Fourth, I deny that Kamelia Poppe, Esq., has asserted any facts or cited any laws that color allegations of misconduct against anyone other than herself. Certainly, Ms. Poppe's accusa-

tions are an effort to steer the conversation away from an inquiry into her own misbehavior.

6. Veritably, at this juncture, Your Honor is required to step aside from this case for the reasons stated in the defendant's May 30, 2017 motion, supplemented by what is demonstrated in these papers and the attached exhibits. It would be grievously erroneous for Your Honor to adjudicate any matter relating to this case going forward - even in housekeeping matters such as the scheduling of future court dates. Stated differently, Your Honor's only appropriate, authorized action in this case going forward is summary self-recusal. No further legal analysis is required to demonstrate the nl.andates of law requiring the same; and Ms. Poppe has offered no refutation of the plain language of the Rules of the Chief Administrator of the Courts, which governs and constrains Your Honor's discretion like the handcuffs of law that District Judge Mark Bennett (ND Iowa) decries in his critique of the limits of discretion that constrain Article III judges.

7. For the purposes of enriching the record, in the following paragraphs I outline several irregularities that I have observed in the last thirty (30) days, which corroborate Ms. Poppe's original assertions that she enjoys unauthorized ex parte communications with court personnel and influences the court via her special relationships with court personnel: • Ms. Poppe mailed a document entitled Opposition and Notice of Cross-Motion to me dated June 16, 2017. In her Affirmation in Support of that document, Ms. Poppe annexed a copy of defendant's motion for Your Honor's recusal as her Exhibit A. The version of defendant's motion that Ms. Poppe annexed was altered, either by the court or Ms. Poppe. I was not given a copy of the altered document, which tends to corroborate Ms. Poppe's statements that she is in a special relationship with the Court.

• On June 27,2017, I entered the New York County Supreme Court Clerk's office for the purpose of viewing the file in this case. I observed that documents were missing from the file, including the instant Order to Show Cause seeking imposition of sanctions, though Ms. Poppe served it upon me in Your Honor's courtroom on May 2, 2017.

• On June 29,2017, I entered the New York County Supreme Court Submissions Part for the purposes of submitting a hard copy of defendant's motion seeking Your Honor's 2

recusal. I spoke with the attendant clerk in charge of receiving hard copies of legal documents in the Submissions Part. Despite the fact that Ms. Poppe sent me written opposition, the clerk stated that Ms. Poppe did not submit written opposition to my motion. (See June 29, 2017 letter to County Clerk Milton Tingling annexed as Exhibit B). • Later that day, I appeared before Your Honor. The fact that Your Honor was unaware that defendant filed a motion for recusal in her courtroom indicates that the documents were intercepted. (See stamped cover of defendant's May 30, 2017 motion annexed as Exhibit C). It is unknown why the court personally removed the pending motion for recusal from Your Honor's courtroom. Indeed, roughly thirty (30) days passed until Your Honor learned that the motion for recusal was filed and pending.

8. The misplaced whereabouts of those court documents, and their unexplained placement in different courtrooms and other parts of the courthouse, tend to undermine the appearance of law and justice, making the questions already raised in defendant's motion seeking Your Honor's recusal all the more pressing and pivotal.

Conclusion

Pursuant to the authorities and arguments set forth above, the defendant respectfully demands that Judge Tandra L. Dawson be disqualified from these proceedings, and further that the proceedings be stayed pending the assignment of a disinterested, substitute judge.

New York, New York July 6, 2017

Edward G. Eiseman, Esq. EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007

cc: Lawrence K. Marks, Chief Administrator of the Courts 3

IDVPART

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

ALZERINA GOMES,

) ) ) )

Plaintiff,

-againstFREDERIC DES ETANGS ROUX,

Defendant.

) ) ) ) ) )

Index No. 311028/2015 Affirmation of Service

_______________________________ ) Attorney Affirmation of Truth

Edward Eiseman, an attorney admitted to practice before the courts of this state, hereby affirms under the penalties of perjury that the following statements are true: On July 6, 2017, the undersigned served the annexed Affirmation in Opposition by causing it to be sent to the postal address of the following recipient(s): Kamelia Poppe, Esq. Shaw and Associates, P.C. 450 Seventh Avenue, Suite 2307 New York, NY 10123 New York, New York July 6, 2017

Edward G. Eiseman, Esq. EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007

EXHIBIT A

IDVPART

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ALZERINA GOMES, Plaintiff,

-against-

FREDERIC DES ETANGS ROUX,

Defendant.

) ) ) ) ) ) ) ) ) )

6DV

tf\;,~~1 3 o2or·

~~r·.~ ,.

Index No. 311028/2015 Notice of Motion to Disqualify Pursuant to Rule 100.3 of the Rules of Judicial Conduct and for a Stay of Proceedings Pursuant to CPLR2201 ;

) ) ) )

_________________________________ ) PLEASE TAKE NOTICE, that upon the annexed affirmation(s) of Edward G. Eiseman, Esq., and the exhibits annexed thereto, a motion pursuant to Rule 100.3 of the Rules of Judicial Conduct and Section 2201 of the Civil Practice Law and Rules will be made at Part lAS IDV of this court to be held at the courthouse thereof, located at 100 Centre Street, New York, NY, on June 29, 2017 at 9:30am, or as soon thereafter as counsel can be heard, for an order providing the following relief: disqualification and self-recusal of Judge Tandra L. Dawson in these proceedings and a stay of proceedings pending the assignment of a new judge.

New York, New York May 30,2017

Edward G. Eiseman,_Esq. EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

ALZERINA GOMES,

IDVPART

) )

Plaintiff,

-againstFREDERIC DES ETANGS ROUX,

)

Index No. 311028/2015

) ) )

Affirmation in Support of Motion

) ) ) )

Defendant.

_______________________________ ) Attorney Affirmation of Truth

Edward G. Eiseman, Esq., an attorney admitted to practice before the courts of this state, hereby affirms under the penalties of perjury that the following statements are true, except those made on information and belief, which he believes to be true.

Legal Standards

1. Rule 100.3 of the Rules of Judicial Conduct holds: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where ... the judge has personal knowledge of disputed evidentiary facts concerning the proceedings." 22 NYCRR 100.3(E)(l)(a)(ii) (emphasis added).

2. Rule 100.2 of the Rules of Judicial Conduct holds: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.

A judge shall not testify voluntarily as a character witness." 22 NYCRR 100.2(C).

3. Rule 100.3 of the Rules of Judicial Conduct holds: "A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according 2

to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, except [listing exceptions]." 22 NYCRR 100.3(8)(6).

I. Via Her Own Voluntary Statements, Attorney Kemelia "Mia" Poppe Admitted to Misconduct and Implicated Judge Tandnt L. Dawson as Acting in Concert With Her. 4. The applicable legal authorities mandate Judge Tandra L. Dawson's disqualification in these proceedings because attorney Kemelia "Mia" Poppe implicated herself and Judge Dawson as having acted in concert to violate the law. To wit, on April26, 2017, in the telephone conversation with Brian King, a self-employed statesman and community leader, Ms. Poppe asserted that Judge Dawson and she had a special relationship, and that Judge Dawson would vouch for her professional experience and competence in connection with an ongoing matter over which Judge Dawson presides. See Exhibit A of Opposing Counsel's May 1, 2017 Affirmation (April 26, 2017 Email from Brian King to Kemelia "Mia" Poppe, Esq.).

5. Ms. Poppe, via her telephonic statements to Mr. King, unlawfully conveyed "the impression that [she is] in a special position to influence the judge." See Rule 8.4 of the New York State Rules of Professional Conduct ("the RPC") ("A lawyer or law firm shall not state or imply an ability to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official; or to achieve results using means that violate [any rules or laws]; also see 22 NYCRR 100.2(C) (prohibiting a judge from permitting a lawyer to convey the impression that the lawyer is in a special position to influence the judge).

6. Further, Ms. Poppe asserted in the same telephone conversation with Mr. King that she would be making ex parte contact with Judge Dawson to clarify the rules for serving an order to show cause. ld. According to Ms. Poppe's formulations, neither Mr. King nor myself could serve a copy of the order to show cause on Ms. Poppe unless I had first filed a form with Judge 3

Dawson stating that I had entered an appearance in the case. Importantly, the methods of serving papers under New York law place no such restrictions upon either Mr. King or myself. Nonetheless, Ms. Poppe asserted that such a rule was operative in the proceedings at bar before Judge Dawson, superseding the Civil Practice Law and Rules ("the CPLR") promulgated by the New York State Assembly. And to prove that Judge Dawson's rules regarding service superseded the rules of service set forth in the CPLR, Ms. Poppe stated that she intended to contact Judge Dawson ex parte to confirm the same. This was doubly unlawful in that Ms. Poppe made ex parte contact with Judge Dawson for the express purposes of improperly influencing her to violate New York laws regarding service. See RPC 8.4 ("A lawyer or law firm shall not state or imply an ability to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official; or to achieve results using means that violate [any rules or laws.]").

7.

Based upon attorney Poppe's unsubstantiated assertions oflaw as well as her acknowl-

edgement that she was willing to violate the law by making ex parte contact with a judge, Mr. King, a statesman acting upon his authority, immediately initiated his own independent investigation into Ms. Poppe's misconduct. Pursuant to that investigation, Mr. King asked attorney Poppe whether she was under the influence of drugs. In response to that question, Ms. Poppe filed a motion requesting Judge Dawson to impose sanctions upon me.

8. Ms. Poppe's pending motion falls dramatically short of a denial of and/or a defense to the misconduct she admitted to in her statements to Mr. King. By contrast, Ms. Poppe's own statements to Mr. King, implicating both herself and Judge Dawson, combined with her filing a motion for sanctions, indicates her confusion as to (1) her obligations as an attorney, (2) Judge Dawson's obligations as a judge, (3) Mr. King's obligations as a statesman, and (4) my own obligations as an attorney and a statesman.

4

9. To elaborate, as a New York State judicial officer, Judge Dawson is not permitted to "lend the prestige of judicial office to advance the private interests" of Ms. Poppe. See 22 NYCRR 100.2(C). The same rule prohibits a judge from permitting anyone "to convey the impression that they are in a special position to influence the judge." Id. What is more, the same rule prohibits a judge from volunteering to be a character witness for anyone's diligence, honesty, professionalism, or other character trait. Id. In light of those bright line rules of judicial conduct, Ms. Poppe's assertion that Judge Dawson personally knows her and would accept a phone call to vouch for her professionalism and/or competence, reflects Ms. Poppe's misapprehension about Judge Dawson's obligations as a judicial officer.

10. Further, as a judicial officer of New York State, Judge Dawson is not permitted to initiate ex parte communications with either party to the ongoing legal proceedings; nor is Judge Dawson permitted to accept, permit, or consider ex parte communication from either party. 22 NYCRR 100.3(B)(6). In light of that bright line rule of judicial conduct, Ms. Poppe's assertion that Judge Dawson accepted, permitted, and considered ex parte communications in the instant case raises serious allegations of misconduct against Judge Dawson.

11. Further, Judge Dawson is also obligated to take corrective action to rectify misconduct when it comes to her attention. See 22 NYCRR 100.3(D)(2) ("A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action."). Ms. Poppe's beliefthat Judge Dawson can lawfully receive ex parte communications for the purposes of vouching or discussing how to apply the rules of service reveals either a misunderstanding of Judge Dawson's obligations or an understanding that Judge Dawson flouts those obligations.

12. Turning to Mr. King's obligations, an American statesperson will not tolerate any mis-

5

conduct from any public official. More specifically, if any official misconduct comes to a statesperson's attention, he or she is obligated to investigate the matter and take appropriate corrective action. Likewise, as a statesman it is Mr. King's obligation to provide information to the appropriate authorities about what he learns in his ongoing investigation into Ms. Poppe's selfinculpating statements as well as her statements implicating Judge Dawson. Illustratively, Mr. King's email to Ms. Poppe expresses his understanding ofhis obligations. Indeed, Mr. King is ready to take the stand to testify as a fact witness about Ms. Poppe's admitted misconduct.

13. Turning to my own obligations as a statesman and also as an officer of the courts, it is my obligation to take steps to rectify misconduct by public officials, especially attorneys and judges.

See RPC 8.3 ("A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."). Once I learned of Ms. Poppe's misconduct and also of her allegations against Judge Dawson, the obligation befell me to investigate the matter and seek to rectify it in the public interest. Yet Ms. Poppe argues that after she admitted to Mr. King that she had committed offenses against the public interest, and after she signaled to Mr. King her intention to commit more offenses, I was somehow required to prevent Mr. King from taking independent steps to investigate and rectify the matter. Tellingly, Ms. Poppe does not cite any laws that require me to thwart Mr. King in responsibilities that he and I both are required to perform to the best of our respective abilities. In fact, I am required to support Mr. King in his efforts to avail the public interests here. See RPC 8.3 ("A lawyer who possesses knowledge or evidence concerning another lawyer or a judge shall not fail to respond to a lawful demand for information from a tribunal or other authority empowered to investigate or act upon

6

such conduct."). To be sure, Ms. Poppe's telephonic statements to Mr. King are as indicative of her ignorance of laws and rules as they are supportive of Mr. King's suspicion that she is quite confused about her obligations and/or blatantly disregards them.

14. As explained below, because Judge Dawson did not deny the allegations Ms. Poppe raised against her, she cannot remain the presiding judge over any aspect ofthe ongoing proceedings- whether in regard to Ms. Poppe's sanctions motion or whether in regard to any further proceedings involving the two opposing litigants.

II. Judge Dawson Must Disqualify Herself Because Ms. Jloppc's Inculpatory Statements Against Her Cannot be Evaluated Without Judge Dawson's Testimony; and Judge Dawson Cannot Adjudicate This Matter Implicating Rea¡ Own Interests Without Giving the Appearance of Impropriety and Reducing Public Confidence in the Integrity of the Judiciary.

15. First, although Ms. Poppe acknowledged that she initiated ex parte communications with Judge Dawson, Judge Dawson has neither admitted nor denied receiving, permitting, or considering such communications. Considering the seriousness of the ethics violations implicated by Ms. Poppe's admissions, and considering the seriousness of the other judicial misconduct Ms. Poppe attributed to Judge Dawson, the ongoing investigation into the ex parte communication and other misconduct requires not only Ms. Poppe's sworn testimony, but also Judge Dawson's sworn testimony. As held in authorities cited herein and above, a judge cannot lawfully preside over a case in which he or she is a material witness. See 22 NYCRR 100.3(E)(1 )(a)(ii) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where ... the judge has personal knowledge of disputed evidentiary facts concerning the proceedings.") (emphasis added).

16. Second, Ms. Poppe's vouching comment impugns Judge Dawson's conduct and character by asserting that she has flouted the prohibition against lending the prestige of judicial office to advance the interests of an attorney appearing before her in adversarial proceedings. See 22 7

NYCRR 100.2(C) ("A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.").

17. While it is certainly Judge Dawson's constitutional prerogative whether to remain silent in the midst of the ongoing investigations into Ms. Poppe's statements, Judge Dawson cannot lawfully preside over the instant matter, where the proceedings already implicate her personal interests and where she and Ms. Poppe are suspected of joint violations of law. That is, Judge Dawson and Ms. Poppe currently appear under a gaze of suspicion for unlawful acts in which the latter implicated them both. If Judge Dawson continues to preside over the case, there is a substantial risk that she will improperly steer the proceedings away from that inquiry, thereby committing an additional violation ofthe laws governing judicial officers. See 22 NYCRR 100.2 ("A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities."). By the same token, if Judge Dawson were to continue presiding over this case in such an unlawful manner, she would thereby reduce "public confidence in the integrity and impartiality ofthejudiciary." See 22 NYCRR 100.2 ("Ajudge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.").

18. Certainly, where Americans have observed two consecutive U.S. Attorneys General (former AG Loretta Lynch and current AG Jeffrey Sessions) voluntarily disqualify themselves from investigating matters in which they had a perceived stake in the outcome, and where those voluntary disqualifications were prompted by their ongoing communications with targets of the investigations, Judge Dawson's failure to disqualify herself here under the circumstances would

8

only bolster the suspicions already afoot.

19. Third, Judge Dawson must disqualify herself because Ms. Poppe's statements give the appearance that Her Honor cannot be impartial in these proceedings. The rules are clear that a judge cannot preside over a matter where his or her impartiality might be reasonably questioned.

22 NYCRR 100.3(E)(1)(a)(ii). Further, New York laws require judges to take corrective action when they learn of an attorney's misconduct. See 22 NYCRR 100.3(D)(2) ("A judge whoreceives information indicating a substantial likelihood that a lawyer has committed a substantial violation ofthe Code of Professional Responsibility shall take appropriate action."). Ms. Poppe has already admitted her own misconduct; and she has stated that Judge Dawson acted in concert with her. Importantly, Judge Dawson did not deny the allegations. Again, where two separate U.S. Attorneys General from opposing political parties understood their obligations to disqualify themselves from participating in investigations about their isolated communications with targets of investigations, Judge Dawson is certainly required to disqualify herself here, where the nature of the misconduct in question is based upon an admission by a person who has acknowledged having acting in concert with her to violate laws governing communications and personal dealings betweenjudges and attorneys.

20. Finally, the case for disqualification only gets stronger as one observes that Ms. Poppe is in a position to influence Judge Dawson and thereby frustrate the misconduct investigationalready underway. In fact, it is somewhat telling that Judge Dawson invoked the same illusory restriction on service that Ms. Poppe asserted over the phone. The identical rule violations between judge and attorney here defy mere coincidence, making it much more probable that Judge Dawson's judicial conduct and judgment have been influenced by her ex parte communications with Ms. Poppe. See 22 NYCRR 100.2 ("A judge shall not allow family, social, political or oth-

9

er relationships to influence the judge's judicial conduct or judgment."). And the fact that Judge Dawson cited the same illusory rule that led Mr. King to believe Ms. Poppe was under the influence of drugs does "convey the impression that [Ms. Poppe] is in a special position to influence [Judge Dawson]." See 22 NYCRR 100.2(C) ("A judge shall not ... convey or permit others to convey the impression that they are in a special position to influence the judge.").

Conclusion

Pursuant to the authorities and arguments set forth above, the defendant respectfully demands that Judge Dawson be disqualified from these proceedings and that the proceedings be stayed pending the assignment of a substitute judge.

New York, New York May 30,2017

Edward G. Eiseman, Esq. EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007

10

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ALZERINA GOMES,

IDVPART

) )

Plaintiff,

)

Index No. 311028/2015

)

) -againstFREDERIC DES ETANGS ROUX,

Defendant.

Affirmation of Service

) ) ) ) )

_______________________________ ) Attorney Affirmation of Truth Edward Eiseman, an attorney admitted to practice before the courts of this state, hereby affirms under the penalties of perjury that the following statements are true: On May 30, 2017, the undersigned served the annexed Notice of Motion and Affirmation in Support by causing it to be sent to the postal address of the following recipient(s): Kamelia "Mia" Poppe, Esq. Shaw and Associates, P.C. 450 Seventh Avenue, Suite 2307 New York, NY 10123

New York, New York May 30,2017

Edward G. Eiseman, Esq. EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007