Letter to senator hatch ocr

EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007

212-697-8590 August 29, 2017

Dear Senator Orinn Hatch: I must start out by commending your reputation for stamina and grit, which are virtues my colleagues and I strive to achieve. And I do believe that, though you are much more advanced than I am in this regard, we summon the same spirit.

I write today to request the support and assistance of you and your colleagues on the Senate Judiciary Committee. The crisis for which I enlist your help affects a great number of Americans every day. To be precise, there has been a dramatic uptick in tyrannical violations of the rights of citizens at the hands of the courts themselves. The cause is that local and state courts have been appropriated, apparently by scofflaws, whereby constitutional guarantees and protections are being almost totally eschewed in favor of local interests. Increasingly, judges are ignoring every rule or law that protects people from such abuses, without even offering any coherent explanation; and champions of constitutional rights and suffering citizens are given explanations like "That's how it works here." Such pathetic explanations are accepted by a great majority of attorneys and citizens who have nowhere to tum for redress. The result is nothing short of tragic, whereby no laws are held sacred or inviolable, including the dearest and most supreme, our U.S. Constitution. Needless to say, a great number of Americans need intervention from faithful officers of the U.S. Constitution. I take it that you, a mindful and learned person, who places no self-imposed limits upon the goodness you can do, will not ignore their ripened pleas. It is clear from your record of public service that you would not hesitate to hold accountable unfaithful public servants who flout laws in contradiction of the discretion with which they have been entrusted.

I have enclosed a few documents that will paint a somewhat vivid picture of the outrages at issue, and that will give texture to how this dismal trend is impacting the People ofNew York, and in all probability the People of other states, including your own. Importantly, the federal courts within New York seem a bit outmatched and outflanked by the sophisticated networks that have taken hold of countless local institutions of government, whereby they subvert the interests of the citizens that such institutions were founded to promote and to protect. If that is not the cause for the inaction of the federal courts in the face of such egregious abuses, it is a fair conclusion that they have been infiltrated by the same or similar forces that have taken over the state institutions. Whatever the originating or intervening causes, more judges, state and federal, are showing that they believe themselves above the laws and oaths that otherwise would govern their rulings and conduct. Indeed, one walking into a local New York court, while suffocating from the miasma of tyranny that is all but ubiquitous, might very well forget that he or she is entitled to the protections of our U.S. Constitution. Because I have seen too many Americans fall prey to the very dark spirited desires of a few misanthropic local interests, I cannot possibly tum my attention away from this problem until it is entirely rectified. I too have a soft side, and, like you, I have a tough side. That is why I care deeply about these issues and the people it

affects, and I think you do too. Likewise, it is why I will work tirelessly to remedy it, and why I think I can count on your support.

I would ask that you contact me as soon as you can. The trend at issue requires men and women of character- especially Article I officers-- to step forward immediately, when the resources of the interlopers outstrip our local Article III officers, rendering them unable and/or unwilling to intervene in the matters I now bring to you and the Senate Judiciary Committee's attention. I do believe that you will support our efforts. I think you would agree that American leaders must abide by the Supreme Law of the Land, and must exemplify virtue in the performance of their duties, never making decisions based upon personal gain and personality contests.

I read about how you, as a child, took an old duffle bag, filled it with sand, and hung it from a mulberry tree in order to improve your combat skills. It gave me goose bumps as I faced similar adversity as a child and took up boxing in order to inculcate manly virtues. I practice boxing multiple times per week to remain resilient against the specter of vice that lurks in the shadow of apathy. It gives me great joy to stand up for the rights of Americans, and I invite you to join me on this particular journey. Although I can only speak firsthand as to the issues Americans face in New York courts, I am aware that the injustices going on here are going on in every other state, albeit via distinct, localized mechanizations. To be sure, this work and the spirit that is required to engage in it transcends state lines. As such, I ask that you join me in turning to it nationally.

I would also ask that you confirm receipt of this letter right away because we learned recently that certain parcels of mail have been intercepted at the U.S. Post Office and thus have not reached their recipients.

Thank you and I look forward to hearing from you.

Sin_cerely,

~==:-.L.:-~,_q-.-=--=----~--EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007 212-697-8590 Attachments (2): (C) July 10, 2017 OSC Affirmation of Truth (J) August 4, 2017 Letter to George Santana CC: Sen. Charles Schumer

CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF BRONX 1162 Elder LLC,

Petitioner, -againstJoanne Carasquillo, Luis Oquendo, et al.,

) ) ) ) ) ) ) ) ) )

Housing Part

Index No. 67149/16 Affirmation in Support of Order to Show Cause

Respondents. _____________________________ ) 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: BACKGROUND AND FACTS

1. In the instant Order to Show Cause, the respondents seek an order vacating the April 26, 2017 order and judgment entered in this matter, and staying the execution of the marshal's eviction notice to Joanne Carasquillo, which is dated July 11, 2017, and which was obtained by a warrant requisition that Marshal Danny M. Weinhein submitted to the Court on May 10, 2017.

2. The occupants of the premises are Luis Oquendo, his wife Joanne Carasquillo, and their two live-at-home children of the marriage, one of whom a minor. The four of them have been residing in the subject premises as a family, continuously, for over 17 years.

3. The instant matter came before the court by way of a petition naming Joanne Carasquillo as the sole tenant and occupant of the premises. However, on or about January 9, 2017, well after the instant proceedings were already underway, occupant Luis Oquendo petitioned for and

obtained an order to show cause (an "HP Action") to correct health and safety violations at the subject premises. See, generally, 1162 Elder LLC v. Carasguillo, Index No. 1841/17.

4. Over the course of the HP Action, this Court ordered numerous appearances, passed upon extended written arguments, and officiated over protracted trial proceedings to determine whether violations existed as Mr. Oquendo alleged. This Court also strived with analytical valor in those proceedings to uphold the legal verity -- which the landlord doubted and gainsaid, obtusely-- that Mr. Oquendo had standing to bring such an action on behalf of himself, as an occupant of the subject premises in his own right, and also for the benefit of his family, whom he represented by name in the petition as the head of the household, and to whom he owed his own sacred duty of care, the landlord's omissions of duty notwithstanding.

5. On April 7, 2017, this Court rightly entered a decision and order finding in favor ofboth Joanne Carasquillo and Luis Oquendo. More specifically, the Court found that Ms. Carasquillo and Mr. Oquendo are spouses who have lived together at the subject premises for 17 years. The Court also found that the occupants had proved the existence of violations and thus entered an order binding the landlord to correct all the violations. For good measure, in its April 7 order the Court noted the existence of these collateral proceedings, holding that, notwithstanding the landlord's objections, Mr. Oquendo is an occupant and tenant by operation oflaw, and that he and his family are presently occupying the premises lawfully.

6. However, less than a month later, on April27, 2017, the landlord stated under oath via its attorney that Ms. Carasquillo was the sole occupant of the subject premises- an affirmative falsehood- ignoring the Court's April 7 ruling and omitting the facts established therein, including the fact of Mr. Oquendo's status and presence in the premises as head of the household -- a family still so constituted and residing therein, as my instant affirmation hereby attests, and

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as consistent with the evidence already adduced at trial and codified in the Court's April 7 decision and order.

7. Nonetheless, upon the landlord's false affirmation of April27, the Court issued another order regarding the subject premises, wherein, in contradiction to what it had declared 20 days prior, it ruled that Joanne Carasquillo was the sole occupant of the subject premises, and ruled further that an eviction warrant be issued against her. Likewise, upon the landlord's April27 letter to the Clerk stating the same falsehood, Marshal Weinhein sought and obtained an unfounded warrant of eviction against Ms. Carasquillo in her sole capacity.

8. As explained below, the eviction warrant must be stayed and the judgment of possession must be vacated pursuant to CPLR 5015, and also pursuant to the Court's inherent power to grant relief in the interests of justice.

Legal Analysis

9.

Statutory authority for vacating a judgment in general is found in CPLR 5015(a). See,

~.Levine

v. Berlin, 46 AD2d 902 (2d Dept 1974); Brenner v. Arterial Plaza, Inc., 29 AD2d

815 (3d Dept 1968); 5 Weinstein-Korn-Miller, NY Civ Prac, ~ 5015.04, which provides in pertinent part as follows: "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct[.]"

10. In addition to and notwithstanding those legal provisions, it is well established that a court has the inherent power, not limited by the provisions of CPLR 5015, to set aside a judgment in the interests of justice.

See,~.

Ladd v. Stevenson, 112 NY 325, 332 (NY 1889);

Michaud v. Loblaws, Inc., 36 AD2d 1013 (4 Dept 1971); 5 Weinstein-Korn-Miller, NY Civ Prac ~

5015.12).

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11. At the very outset of the analysis, it is important to note that the contradicting court orders in this case mandate, whether pursuant to CPLR 5015 or by the Court's inherent power, that this Court now vacate the judgment and warrant obtained via the landlord's misrepresentations, which led to the Court's erroneous judgment of April26, thereafter the Clerk's erroneous issuance of an eviction warrant, and thereafter Marshal Weinhein's service of an eviction notice pursuant to those same landlord misrepresentations. Certainly, in the instance of a summary residential eviction, especially where minors are involved, a judgment and eviction obtained via omissions or misrepresentation of facts undermines any sense of justice contemplated under the laws of our Nation or the laws of the State of New York. Errigo v.

Diomede, 14 Misc. 3d 988 (Civ. Ct. Kings Co. 1997) ("In general, courts abhor the forfeiture of a leasehold estate as a result of the 'dire consequences' that the tenant is faced with when forced to vacate the premises.").

12. First, the forgoing circumstances color CPLR 5015(a)(2), which holds that relief from a judgment must be granted in the interests of justice where newly discovered information would result in a different outcome. Surely, where there are two separate orders, dated 20 days apartone stating that Ms. Oquendo resides in the premises with his wife and family; the other stating that Ms. Carasquillo is the sole tenant- the matter must be reopened now that the discrepancies have come to the Court's attention. The Court must now take judicial notice that the latter order was entered by the circumstance of misinformation in court papers and subsequent prompts, namely the April 27 affirmation and the April 27 letter to the Clerk, respectively -- both signed and submitted by the landlord's attorney. Thus, CPLR 5015(a)(2) necessarily attains here, where the latter order of April 26 contradicts the pleadings, the papers filed, the facts known to the parties and their attorneys, and most importantly, the undisturbed April 7, 2017 findings of this

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Court, which the landlord has not challenged by preserved objection, demurrer, or appeal. And notwithstanding the landlord's desire to avoid the force of the Court's April 7 order, the Court itself has no liberty to ignore its own duly entered orders, nor does the Court have liberty to ignore facts duly established via the parties' submissions and the Court's findings.

13. Further, the distinct provisions of subsection (a)(3) ofCPLR 5015 equally attain here-firmly against that backdrop of opposing counsel's failure to serve the April26 order and the subsequent April27 affirmation upon me, despite my official and personal appearances as counsel across the two court actions. Certainly, the omissions of service cohere in poor character with the landlord's misrepresentations already noted. Indeed, the landlord's written misrepresentations of April27, viewed in light of the omitted service of papers, give rise to a presumption of deceit. To be sure, the service of the landlord's papers and April 26 judgment upon me would have thwarted the landlord's intention by bringing the falsehoods to my attention before the subsequent false judgment could have been entered, and before the false eviction warrant could have been issued.

14. It is also interesting that the April26 order awarding possession to the landlord was somehow predicated upon subsequent filings, namely the April27 affirmation, an anachronism that now makes it incumbent upon the landlord to show cause as to the merits of the April 26 order, which was somehow entered a day before the submission of the April 27 affirmation upon which it purportedly relies. The omissions of service noted here, combined with the out-ofsequence affirmation, colors fulsomely the provisions ofCPLR 5015(a)(3), which hold that relief from a judgment must be granted in the interests of justice where the judgment was obtained by fraud, misrepresentation, or misconduct by an adverse party.

15. In the alternative, there may be an explanation that does not involve the landlord's

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misconduct. In that event, the judgment must still be vacated here because the failure of opposing counsel to give me notice of his April 27 filings and the resulting April 26 judgment (still an unexplained anachronism) colors CPLR 5015(a)(l), which provides that a judgment will be vacated upon terms that are just upon a showing of excusable neglect by the moving party.

16. Moreover, as already stated and indicated by supporting case law, even without regard to CPLR 5015, this Court is required to vacate the judgment in the interests of justice to reconcile these proceedings with the facts I now bring to the Court's attention. Even assuming, only for the sake of argument, that no attorney misconduct has occurred, Marshal Weinhein now stands ready, under color of law, to execute a warrant against a mother and wife of Mr. Oquendo, if not the entire family, simply for want of truthful representations from the landlord. This would render Marshal W einhein a patsy and victim of the same misrepresentations that finagled the Court to enter the April 26 order - yielding a grand total of four classes of victims arising from the same series of landlord misrepresentations: the family, the Court, the Clerk, and Marshal Weinhein.

17. In sum, the Court's file reveals that there are internal consistencies between the two judges hearing the matter, whereby they are not reconciled as to which respondents were subject to a judgment of eviction and which respondents were to be evicted, leading to the issuance of the warrant under consideration, which seeks by way of falsehood to expel the family's matriarch- if nothing more sinister was the aim. There is no question under the circumstances herein set forth that the Court is required to stay the warrant and vacate the judgment, averting the peril created for this family, borne of the multiple misrepresentations and resulting confusion already apparent from the Court's file. For sure, the April26 order, being not only loathsome to standards of due process-- but also being a summary deprivation of a nuclear family's home,

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shelter, and 17-year estate, under no facts actually established and pursuant to no legal grounds-must now be vacated and the matter restored for further proceedings pursuant to the laws outlined above. Newman v. Sherbar Dev. Co., 47 A.D.2d 648 (App. Div. 2d Dept. 1975) ("In the granting of equitable relief, the court may mold its relief to accord with the exigencies of the case.").

CONCLUSION

Pursuant to the facts and authorities analyzed above, the warrant must be stayed, the judgment upon which it is based must be vacated, and this entire matter must be restored to the calendar for further proceedings consistent with the laws outlined herein.

Dated: July 19,2017

Respectfully submitted,

EJ.wNJJ. q.

~

Edward G. Eiseman, Esq. EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, N.Y. 10001 (212) 697-8590

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EISEMAN LAW, P.C. 11 Park Place, Suite 1715 New York, NY 10007

212-697-8590 August 4, 2017 Mr. Santana: I am in receipt of the signed document, which you have referred to as an order of the court, and bearing date stamp of August 2, 2017. However, it could not actually be an order of the court, for several reasons, and as a preliminary disclaimer I am not, and you should not be in a position to flout the guarantees found in the United States Constitution, or any law passed pursuant to it.

First, once a judgment of possession is granted, personal property remains in the tenant's possession until a marshal takes possession of the rental property. Once the marshal takes possession of the rental property, he or she also becomes bailee of the personal property. As such, personal property never comes into the landlord's possession. In fact, upon taking possession of the rental property, the marshal takes possession of the personal prope1ty and is required to preserve it for a statutory period. So, notwithstanding the so-called order you sent me, it is impossible for Ms. Trever's personal property to be abandoned while it is still in the ¡ marshal's possession. I question whether a judge signed that order. A judge who would sign an order like that needs to reckon with the 141h Amendment of Our United States Constitution.

Second, there was no hearing on the order to show cause. We are still waiting on a date for that hearing. There's been no opposition papers. Notwithstanding the paper you're calling an order, it would be a violation of Ms. Trever's constitutional rights for anyone to deprive her of her apartment or her personal property without due process. Again, I do not believe a judge would eschew due process in order to perfect a deprivation of property rights. If I am mistaken, please let me know, and I very well might be since statements like "The thing about E-Courts is it either works or it doesn't" are being thrown around like my client's rights during this case.

Third, the so-called order implies that the landlord is going to take legal and physical possession of Ms. Trever 1s personal property if she does not go to the apartment this week to remove her personal prope1ty. I have it on good authority that you were aware ofMs. Trever's travel plans, and that she was out of state for a large pmtion of the week. As such, the ultimatum in the purported order about a mandatory furniture pickup day is out of bounds of the Constitution, but it does fit this case's narrative of consistent constitutional deprivations.

Finally, now that I have been in touch with the marshal's office, I discovered that they usually receive copies of orders and decisions from the court, but oddly, and ironically unsurprisingly, they have not been updated with regard to this matter. I will be following up with you early next week.

Cc: David L. Moss & Associates Chief Administrative Judge Lawrence K. Marks City Marshal Ileana Rivera