Wednesday, September 18, 2019

Judge Armando Montano Demoted After Saying "No" To Bronx Democratic Party Chairman

 This is New York, the largest and most corrupt city in America..

Anyone who has had an issue with any State Agency or who is not politically connected or does not have the money to buy influence in the State Courts, can clearly see the corruption that festers in the hallowed halls of injustice here.

We are nevertheless appalled by the Democratic Party, which controls the Judges in New York City, in their arrogance of immunity in demoting Judge Armando Montano for not hiring the Party Chairman's former aide after Montano was elected. He challenged the Party machine, as he should have.

We must break free of the stranglehold that politics has in this city.

Betsy Combier,
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

A Judge Refused to Hire a Party Boss’s Aide. A Demotion Followed.

He said the Bronx Democratic chairman punished him for bucking the patronage system.

Three months after the Bronx Democratic Party announced its support for Judge Armando Montano in the 2017 election for State Supreme Court justice, the party’s chairman had a request: He wanted the newly elected judge to hire the chairman’s former aide as a confidential assistant.

Justice Montano interviewed the person, thought it over and declined. “Damn judge, really?” the party chairman, Assemblyman Marcos Crespo, texted him after his decision. “I mentioned I had a recommendation in mind for the confidential role.”

Seven months later, after winning election, Justice Montano was abruptly reassigned in the Supreme Court, where he had presided over felonies, to a part handling domestic violence cases, a less desirable position.

He refused to accept the assignment, and the chief administrative judge, Lawrence K. Marks, stripped Justice Montano of his caseload, chambers and staff.

The former judge maintains the Office of Court Administration punished him at the behest of party leaders because he would not hire Mr. Crespo’s assistant. Court administration officials say it was a routine reassignment that had nothing to do with politics.

Judge Marks declined to be interviewed for this article.

Judgeships are one of the last bastions of machine party power, and Mr. Montano maintains his case highlights a system of patronage that has long existed in courthouses throughout the city, but is especially prevalent in the Bronx, where party leaders maintain a strong hold over the judiciary and district attorney’s office. The party leaders most recently handpicked the borough’s top prosecutor, Darcel D. Clark.

The Bronx Democratic Party has moved to clean up its act since the blatantly corrupt days of Stanley Friedman, the disgraced former party leader who was convicted of federal bribery charges in 1986. Still, it remains one of the most powerful political machines in the city; party bosses call the shots in low-interest races and expect favors — like jobs — in exchange for their support.

“Judgeships are bought,” said one political consultant, who spoke on the condition of anonymity, citing fear of retribution. “The jobs that come out of that office go to the organization — they make the choice of who gets the jobs.”

Mr. Crespo, the party’s chairman, said Democratic leaders only recommend people for positions, and no one is penalized for not hiring the party’s picks.

“We make recommendations, of course,” Mr. Crespo said. “Sometimes they get hired, sometimes they don’t. The perception we hold people accountable is not true.”

At least three people connected to Mr. Crespo and the Bronx Democratic Party have been identified as current or former court employees, including Mr. Crespo’s wife, Virna Lisy Crespo.

Ms. Crespo said she applied for the job after learning about the opening when a friend, who is now a judge, suggested she apply. She said there was “no political push” and that her husband was not involved.

Ms. Crespo was hired as a secretary in 2016 by Supreme Court Justice Ruben Franco in the Bronx and was later transferred to the Supreme Civil Court before leaving the post in February last year, according to Lucian Chalfen, spokesman for the Office of Court Administration. Mr. Crespo contends that his wife got the job on her own merits and not through a political connection.

That same judge also hired Ashley Curet, the staffer at the Bronx Democratic County Committee who Mr. Crespo later recommended that Mr. Montano hire. Ms. Curet served as a court secretary for eight months in 2017, according to Mr. Chalfen.

Then, in July last year, Administrative Judge Robert Torres in the Bronx Supreme Court’s criminal section hired Mr. Crespo’s former community liaison, Onelis Ramirez, for a position as principal secretary. Among the three women, Ms. Ramirez received the highest salary of $51,940.

That same month, Judge Torres, who was up for re-election in November and needed support from the party, played a pivotal roll in reassigning Mr. Montano. Through a spokesman, Judge Torres declined to comment on the decision.

Patronage in the New York City courts has a long history. Nearly two decades ago, Judge Margarita Lopez Torres of civil court in Brooklyn fell out of favor with the Democratic machine when she refused to make patronage hires. The party declined to back her re-election bid. She ran anyway and beat the party-backed candidates. But then party leaders blocked her efforts to be interviewed to become a Supreme Court justice.

Democratic Party leaders effectively control judgeships in New York City. Because they have a well-oiled machine for collecting signatures for nominating petitions, they can determine who gets on the ballot as delegates to “judicial conventions,” which select the party’s judicial candidates. Those candidates usually face little Republican opposition in the general election.

The convention method, which is unique to New York State, survived a challenge before the United States Supreme Court in 2008, though some justices were critical of the system. One noted: “The Constitution does not prohibit legislatures from enacting stupid laws.”

Dennis R. Hawkins, executive director of the Fund for Modern Courts, a watchdog group, called the state’s judicial election process “an undemocratic, closed system” that allows patronage to flourish.

“This whole convention thing enables this kind of thing to happen,” Mr. Hawkins said. “Do we really want that as part of the judiciary?”

One Bronx judge who spoke on the condition of anonymity for fear of retribution said that party leaders often make recommendations. The judge hired some and rejected others, the judge said.

They make suggestions — after all, they support you for election,” the judge said, noting there was no pressure to hire. “They have people who do election work for the party and make it possible to be elected. The incentive? Maybe there will be jobs in it for them.”

Mr. Chalfen denied that there was anything political about the decision to send Mr. Montano to the integrated domestic violence section, which deals with criminal, family and matrimonial matters.

 It was a routine reassignment to fill an operational need, he said. The domestic violence section, Mr. Chalfen said in a statement, is “extremely important and assignment to such a court is hardly a demotion.”

 Justice Montano was ultimately forced from the bench in July 2018. The administrative board of the courts, which consists of the presiding justices of the four appellate departments and the chief judge, decided not to extend his tenure because he had refused to accept the assignment to the domestic violence court, Mr. Chalfen said. Under state law, Justice Montano needed the board’s blessing to serve past the age of 70 under state law.

 The Office of Court Administration filed a complaint against Justice Montano with the Commission on Judicial Conduct after he refused to accept the new assignment, but the review was closed following his departure from the bench.

 Justice Montano had asked the commission to grant him a public hearing and had hoped to use it to expose a system he has said is overwhelmingly political and perhaps corrupt.

 “It is unethical and possibly criminal to allow the Democratic Party leader to use the courts as a patronage mill,” the former judge, 70, said during an interview at his lawyer’s Midtown office. “It’s something that should be addressed. If you play ball, go along to get along, you compromise your integrity and compromise the court system.”

 The former judge, the son of a longtime Bronx assemblyman, was a defense lawyer for 34 years before being elected as a civil court judge in 2013. In 2017, he was nominated at the Bronx Judicial Convention to the Supreme Court. There, he said, he helped cut down on a backlog of cases.

 “No one will give him the chance to show there is political corruption,” said Paul Gentile, the former judge’s lawyer. He said his client unfairly has the reputation now as an insubordinate judge. “It’s in every court. It adds up to the fact that we don’t have an independent judiciary.”
Jan Ransom is a reporter covering New York City. Before joining The Times in 2017, she covered law enforcement and crime for The Boston Globe. She is a native New Yorker. @Jan_Ransom

Thursday, August 1, 2019

Attorney Thomas Liotti Sues To End Political Party Cross-Endorsements of Judicial Candidates.

Attorney Thomas Liotti

We are not fans of Attorney Thomas Liotti, but his action against corruption in the courts is a step in the right direction.

As far as hiring him for your case, be ready to have newspapers telling your story, and don't expect answers to your telephone calls anytime soon.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Lawsuit filed against judicial cross-endorsements
By Celeste Hadrick,, Newsday, updated July 25, 2019
Celeste Hadrick covers government and politics in Nassau County.

Garden City attorney Thomas Liotti, who has represented high-profile clients and helped remove a Nassau County Court judge, is looking to put an end to political party cross-endorsements of judicial candidates.

Liotti on Thursday filed a federal voting rights lawsuit against the Nassau Republican, Democratic and Conservative parties as well as the county and state elections boards, alleging they “conspired and colluded together to deprive registered voters of a freedom of choice in voting rights as guaranteed by the Fourteenth and Fifteenth amendments of the United States Constitution and the First Amendment’s freedom of association provisions.”

Liotti, who also serves as the Westbury Village justice, contends in the lawsuit that the parties’ cross endorsements “virtually guarantee” the election of candidates who have not previously served on the bench.

Liotti, who filed on his own behalf, cites the expected cross endorsement for Supreme Court this fall of Nassau Democratic elections Commissioner David Gugerty, also the Oyster Bay Democratic leader, and Christopher Ostuni, counsel for the Republican majority on the Nassau County Legislature and son-in-law of former Republican chairman Joseph Mondello, the U.S. Ambassador to Trinidad and Tobago. Neither Gugerty nor Ostuni have served as judges. Gugerty’s wife, Helene Gugerty, is a Nassau County Court judge.

Once elected, judges who were cross endorsed “are beholden to Party leaders and their committees; lobbyists, lawyers and litigants who have supported them,” Liotti wrote in the lawsuit filed in U.S. District Court for the Eastern District. The cross endorsements also guarantee patronage employment of law secretaries, law clerks and other court personnel hired by the cross-endorsed judges, Liotti said.

Liotti asks the court to declare that cross-endorsement agreements are “illegal, unconstitutional and a violation of …. civil rights” and to issue a permanent injunction against cross-endorsements.

Liotti recently represented the estranged wife of former Sen. Alfonse D’Amato in a bitter child custody battle until Liotti was removed from the case by a judge who said Liotti hadn’t acted in the children's’ best interests. Liotti also represented former Nassau Legis. Roger Corbin, who was charged with tax evasion, and attempted unsuccessfully to enjoin Newsday and other media from using photos of Corbin in handcuffs. Liotti also filed complaints against former Nassau County Court Judge Marc Mogil, who was removed for improper judicial conduct.

Nassau Democratic Chairman Jay Jacobs, who is also the state Democratic chairman, said he hadn’t seen Liotti’s lawsuit, but said cross-endorsements “by all accounts, … comply with current law and it is fairly settled law.”

Michael Deery, spokesman for Republican Chairman Joseph Cairo, said, “The Nassau Republican Committee is committed to selecting the best qualified judicial candidates and the lawsuit is without merit.”

Nassau Conservative Party Chairman Dan Donovan did not immediately respond to requests for comment.

Attorney Thomas Liotti of Garden City, NY; lying loser
The state of Georgia presented Thomas Francis Liotti with a law license in 1977 after he graduated from the University of Delaware Law School.
The U.S. 4th Circuit Court of Appeals found Tommy guilty of the following misconduct.
Thomas represented a client in an appeal of a criminal conviction rendered in the U.S. District Court of South Carolina before the 4th Circuit Court of Appeals.
In his reply brief, Thomas rearranged a number of quotes in such a way as to misrepresent that the statements were sequential and went to show that the prosecution had failed to prove its case. In fact, they were separated and involved different subjects altogether.
In his opening brief, Thomas alleged that the trial judge “sat on” evidence that tended to call the credibility of the government’s informant into question. In truth, the court did not receive this evidence until after the trial was over.
Thomas also alleged in his opening brief that the government overestimated how long the trial would last (saying it would take about two weeks) in an attempt to defeat a motion for a change of venue. In actuality, it was Thomas himself that overestimated the trial lengthy by guessing two weeks, the government disagreed on the record and suggested it would last three or four days.
Making matters worse, Thomas initially argued before the trial judge that his client engaged in an internet conversation that proved his innocence. However, at a later date, Thomas admitted that he had fabricated the conversation because it never took place.
And lastly, Thomas alleged in his reply brief that two of the Secret Service agents responsible for the case against his client were subsequently discharged for misconduct. However, there was no evidence of the agents being terminated and when pressed to present some during oral argument , Tommy backed away from his manufactured assertion.
As a consequence of his misconduct, the enablers for Attorney Misfits sitting on the 4th Circuit Court of Appeals punished Thomas by gifting him with a complimentary admonishment.
As we speak (ca. August 2013), Thomas practices with the Law Offices of Thomas F. Liotti at 600 Old Country Road in Garden City, New York, which is about 25 miles east of New York City.

Legal Malpractice and the Use of a Disbarred Attorney

Actually we’re a little shocked at the facts of this matrimonial action involving Thomas Liotti.  in Coccia v Liotti ;2010 NY Slip Op 00917 ; Decided on February 9, 2010 ; Appellate Division, Second Department  we see some very unusual language from the Appellate Division.  Beyond reinstating [or more correctly put, modifying] the legal malpractice claims, the AD basically granted summary judgment wiping out attorney fees by Liotti on the almost unheard of use of a disbarred attorney and misleading the client into thinking that the attorney was in good standing.
Rather than explain, here is the decisional language:

"The Supreme Court also erred by, in effect, upon renewal, vacating the determination in the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the fourth cause of action to the extent that it was based upon a failure to render itemized bills, and in thereupon granting that branch of the initial cross motion. Although the court appropriately reasoned that noncompliance with 22 NYCRR 1400.2 does not require an attorney to return fees already paid to him or her for services properly rendered (see Mulcahy v Mulcahy, 285 AD2d 587, 588; Markard v Markard, 263 AD2d 470, 471), this cause of action sought the return of counsel fees already paid by the plaintiff not only on the ground that the defendant failed to render itemized bills in compliance with 22 NYCRR 1400.2 and 1400.3, but also on the ground that the defendant breached the retainer agreement by virtue of the manner, form, substance, and timeliness of his billing. Based on the contents of the defendant’s submissions on the initial cross motion, the defendant failed to make a prima facie showing that he complied with the provision in the retainer agreement related to the manner of billing. Thus, the court erred in awarding summary judgment to the defendant dismissing this cause of action to the extent that it was based upon a failure to render itemized bills.

The Supreme Court properly, in effect, upon renewal, vacated the determination in [*5]the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the fifth cause of action to recover damages for fraudulent inducement, based upon the defendant’s alleged misrepresentation that he would prosecute an appeal from an order in the underlying malpractice action, and in thereupon granting that branch of the initial cross motion. "In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421). The plaintiff alleged that she was fraudulently induced into executing the retainer agreement by the defendant’s alleged promise that he would prosecute an appeal from an order in the underlying matrimonial action. She also asserted that she was informed during the course of the representation that the defendant’s firm would address the appeal, but that the defendant failed to prosecute the appeal. Since the plaintiff is, in essence, arguing that the defendant breached the retainer agreement, the Supreme Court appropriately awarded summary judgment to the defendant dismissing this cause of action. " [A] cause of action to recover damages for fraud will not arise when the only fraud alleged relates to a breach of contract’" (Biancone v Bossi, 24 AD3d 582, 583, quoting Rosen v Watermill Dev. Corp., 1 AD3d 424, 426). Further, a representation of opinion or a prediction of something which is hoped or expected to occur in the future does not sustain an action to recover damages for fraud (see Chase Invs. v Kent, 256 AD2d 298, 299).

However, the Supreme Court erred by, in effect, upon renewal, vacating the determination in the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the sixth cause of action to recover damages for fraudulent inducement, based upon the defendant’s alleged misrepresentation that the person who would be substantially responsible for her case was an attorney. The plaintiff alleged that she later learned that such person was a disbarred attorney, prohibited from practicing law, and that the defendant fraudulently concealed this information. Contrary to the Supreme Court’s conclusion, we find that the defendant failed in his initial submissions to establish, as a matter of law, that the plaintiff did not justifiably rely upon his representation of this individual’s status as an attorney in good standing.

The Supreme Court erred in denying those branches of the plaintiff’s cross motion which were for summary judgment dismissing the first, second, and third counterclaims seeking to recover outstanding counsel fees. The Supreme Court, in denying these branches of the plaintiff’s cross motion, reasoned that questions of fact existed as to whether the defendant was justifiably discharged for cause, based upon his alleged failure to perfect and prosecute the appeal from the matrimonial order. However, as the plaintiff correctly points out, this was not the only basis upon which she sought summary judgment dismissing these counterclaims. The plaintiff also argued to the Supreme Court, inter alia, that these counterclaims should be dismissed since, had she known that a disbarred attorney was working on her case, she would have been justified in discharging the defendant for cause.

"[A] client has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 43; see Solomon v Bartley, 203 AD2d 449). Where the discharge is for cause, the attorney has no right to compensation, and may not assert a retaining lien on the client’s file (see Campagnola v Mulholland, Minion & Roe, 76 NY2d at 43; Orendick v Chiodo, 272 AD2d 901; Matter of Leopold, 244 AD2d 411). "Misconduct that occurs before an attorney’s discharge but is not discovered until after the discharge may serve as a basis for a fee forfeiture" (Orendick v Chiodo, 272 AD2d at 902). An attorney may be discharged for cause where he or she has engaged in misconduct, has failed to prosecute the client’s case diligently, or has otherwise improperly handled the client’s case or committed malpractice (see e.g. Costello v Kiaer, 278 AD2d 50; Hawkins v Lenox Hill Hosp., 138 AD2d 572).

In her cross motion, the plaintiff alleged that the disbarred attorney was closely involved in her case, and reassured her that he was working on her appeal from the matrimonial [*6]order. The plaintiff alleged that the disbarred attorney not only had contact with her, but also dealt with the husband’s attorney and with the attorney for the children who had been appointed by the court. She claimed that the defendant seemed unfamiliar with her case, consulted with the disbarred attorney, and sought advice from the disbarred attorney when it was necessary to appear in court. The time records which the plaintiff submitted on her cross motion indicated that the defendant intended to bill her for conferring or meeting with the disbarred attorney on several occasions, that the disbarred attorney drafted memos and notes and that, on one occasion, the disbarred attorney accompanied the defendant to court. The plaintiff alleged in her affidavit that, while in court, the disbarred attorney consulted with her and the defendant "on how to handle whatever was in front of the court at that time."

Based upon the plaintiff’s allegations, it appears that the disbarred attorney was engaged in the practice of law (see Matter of Rowe, 80 NY2d 336, 341-342, cert denied sub nom. Rowe v Joint Bar Assn. Grievance Comm. for Second & Eleventh Jud. Dists., 508 US 928 ["The practice of law involves the rendering of legal advice and opinions directed to particular clients"]). A disbarred attorney may not engage in the practice of law (see 22 NYCRR 691.10[e]), and an attorney may be guilty of professional misconduct where he intentionally aids a disbarred attorney to continue to practice law (see Matter of Raskin, 217 AD2d 187). Further, the plaintiff alleged that the defendant knew that this individual was disbarred, yet intentionally failed to reveal this information. Moreover, the orders related to this individual’s suspension and disbarment involve sustained charges of lying to clients and neglecting their cases. By entrusting the plaintiff’s case to this individual to the extent alleged by the plaintiff, the defendant failed diligently to handle her case. Thus, the plaintiff met her burden of establishing, as a matter of law, that she would have been justified in discharging the defendant for cause.

In response to these allegations, the defendant merely asserted that the disbarred attorney’s involvement in the plaintiff’s case had no bearing on the issue of counsel fees since the plaintiff received a "phenomenal result," and that the Grievance Committee for the Tenth Judicial District "took no action with respect to [these allegations]." The defendant, however, never attempted to raise a triable issue of fact as to the level of this individual’s involvement in the plaintiff’s case, and never claimed that he was unaware of this person’s status as a disbarred attorney. Although, on this appeal, the defendant raises a number of allegations in this regard, including that the disbarred attorney was only minimally involved in the plaintiff’s case, these allegations are dehors the record. Accordingly, in response to the plaintiff’s prima facie showing with respect to the defendant’s lack of entitlement to retain counsel fees that she already paid, the defendant failed to raise a triable issue of fact.

Sunday, August 5, 2018

NY Daily News: Aitabdellah Salem Sat In Rikers For $1, Now Wants City To Pay

There must be consequences for committing a crime, that's for sure. We have laws to protect us. But there should be consequences for leaving a man imprisoned because no one told him he could be free on $1 bail.
Judge John Koeltl
C'mon, this is common sense. Federal Judge John Koeltl should change his mind, or be reprimanded.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
                                       Editor, Inside 3020-a Teacher Trials

Aitabdella Salem

Sat in Rikers for $1

Did 5 mos., not told bail was cut, but lawsuit tossed

NY Daily News, Stephen Rex Brown, Aug. 5, 2018
He was left to languish on Rikers Island for five months without being told his bail was only a dollar – but there’s no one to blame.
A judge has tossed a lawsuit filed by a Queens man who alleges the city violated his constitutional rights through the unnecessary time in jail, ruling that the debacle was not “outrageous.”
Aitabdellah Salem’s ordeal revealed a disastrous failure in court bureaucracy. He was arrested for shoplifting and assault following a struggle with a cop on Nov. 21, 2014. At the time of his arraignment, he was facing a previous assault charge and a judge slapped him with $50,000 bail. Less than a week later, his bail was reduced to $1 during a hearing he didn’t attend. He missed a total of four hearings regarding his case.
The public defenders who waived his appearances never gave him updates, and jail staff did not follow orders to bring him to court, Salem charges. He didn’t learn he could have bought his freedom for less than the price of a cup of coffee until April 2015.
Nevertheless, Salem’s stay at the Anna M. Kross Center on Rikers wasn’t egregious enough to sustain his lawsuit for violations of his due process rights, Manhattan Federal Court Judge John Koeltl wrote.
“Failure to produce Salem in court and failure to inform Salem that his bail had been reduced may amount to negligence, but in total, his detention under these circumstances does not meet the standard required to be considered outrageous,” Koeltl wrote.
Salem, 43, is serving five years in prison for second-degree assault and petty larceny for shoplifting at a Zara store in the Flatiron district. That sentence weighed heavily in Koeltl’s decision.
“Salem has not challenged the validity of his convictions,” Koeltl wrote in a ruling released Wednesday. “The defendants were justified in holding Salem until bail was paid.”
Salem’s attorney, Welton Wisham, was outraged.
“I just can’t believe you can hold a guy for $1 bail!” he said. “But according to this judge, it’s OK!”
On April 15, 2015 — after 138 days on Rikers — Salem was freed on bail. A correction officer told him a jail chaplain — who never met Salem but heard about his case — paid his bail.
Salem was convicted on Aug. 9, 2016, his time served at Rikers will be applied to his prison time as a credit.
The city Law Department declined to comment. Koeltl gave Wisham until next month to file an amended complaint to address legal issues in the suit.
The attorney said he hadn’t yet broken the news of the court defeat to Salem.
“I don’t know if the system is racist. I don’t know what to say,” Wisham said. “How can he pay the bail if he didn’t know about it?”

Queens man who spent five months at Rikers not knowing his bail was only $1 suing city, Legal Aid lawyers
Now he wants the city and his lawyers to pay.

A Queens man who languished at Rikers Island for five months without knowing his bail was just $1 is suing the city and his Legal Aid lawyers for keeping him in the dark.

Aitabdel Salem, 42, was arrested on Nov. 21, 2014, on charges he attacked an NYPD officer trying to collar him after he allegedly stole a coat at a Zara store in the Flatiron district, according to court documents.

His bail was initially set at $25,000 in that case and in a second case the next day.

On Nov. 26, his return court date, he was never produced in court, and a judge dropped the bail in one of those cases to a buck.

Two days later, he was again not produced in court. A judge ordered him released on his own recognizance in the second case because prosecutors hadn't convened a grand jury within 144 hours, as is required by law if a felony suspect is held on bail, according to the lawsuit.

Salem had another court date on Feb. 11, and again, he wasn't produced before a judge, the lawsuit claimed.

At each court date after his arraignment, his lawyer waived his appearance and allowed the proceeding to go on without him, the lawsuit alleges.

"Mr. Salem implored corrections officers within (Rikers Island) to tell him what happened on his respective court dates," the lawsuit alleges. "None of the corrections officers told him that he was ordered to be free on Nov. 28, 2014, because his bail had been reduced from to $1.

"In fact, they all ignored his unrelenting pleas for information regarding his freedom," the lawsuit alleges.

A prison chaplain ultimately paid his bail on April 15, 2015.

The Daily News first broke Salem's story in June 2016, after he was acquitted on bail-jumping charges. He missed a court date about a month after his release because he hadn't been told of a scheduling change, according to the lawsuit.

Salem was ultimately convicted on felony assault and criminal tampering charges in August, and is serving four and a third to five years in state prison.

Man Claims He Spent Months On Rikers Because No One Told Him His Bail Was $1

A former Rikers Island inmate is suing the city and the Legal Aid Society, saying that he was jailed for over four months without anybody telling him that his bail had been set at a dollar.
Aitabdellah Salem was arrested in November 2014 for allegedly stealing a coat from a Zara store, injuring a police officer, and possessing burglary tools. Facing charges of assault and petit larceny, he was arraigned in two separate cases, and initially had his bail set at $25,000 for each case. Within days, however, a judge reduced his bail for one case to $1. Judges often set bail at $1 for defendants facing multiple cases so that they get credit towards time served if they are later convicted.
When a grand jury failed to convene within a week in the other case, another judge ordered Salem released.
From late November till the following April, Salem sat. Court appearances came and went, and according to his suit, his three Legal Aid attorneys repeatedly appeared in court without him, and each time failed to notify him that only a dollar stood between him and freedom. Rikers guards, too, failed to inform him of his bail status, even as he repeatedly asked them for information, Salem alleges. He suffers from schizophrenia, according to the court filing.
Salem was released only when a jail chaplain whom he had never met paid his bail.
The lawyers' and jailers' approach "amounts to deliberate indifference to the Plaintiff’s Constitutional rights," Salem's lawyer, Welton Wisham, wrote in the complaint. Wisham notes in the filing that in 2016 the City Council introduced legislation that would require jail guards to determine whether an inmate has pending court appearances soon after their arrival, and produce them for such appearances, as they are already required to. The bill was meant to address a recurring problem with the Department of Correction failing to bring defendants to their court dates. Mayor de Blasio signed it into law in December.
"There may just well be others," in Salem's situation, Wisham told the New York Post.
More than half of the people awaiting trial on Rikers are there because they can't afford bail.
Salem pleaded guilty to assault and petit larceny in July 2016 in connection with the 2014 arrest, and was sentenced to five years in prison, a Manhattan District Attorney's Office spokesman said. Salem is currently serving his term in medium-security lockup in western New York, according to state records. A related case is sealed.
A Legal Aid spokeswoman declined to comment. A Law Department spokesman said the agency is reviewing the complaint.
Department of Correction spokesman Peter Thorne wrote in an email, “We have zero tolerance for the mistreatment of any inmate, and we take such claims seriously. The vast majority of our officers carry out their duties with care and integrity."
He declined to comment further, citing the ongoing litigation.

Saturday, July 21, 2018

Attorney Nicholas A. Penkovsky Suspended From Practicing Law For 3 Months

Nicholas A. Penkovsky, (admitted as Nicholas Alexander Penkovsky), an attorney and counselor-at-law, v Attorney Grievance Committee  for the First Judicial Department, Petitioner 

Supreme Court, Appellate Division, First Department, New York.

IN RE: Nicholas A. Penkovsky, (admitted as Nicholas Alexander Penkovsky), an attorney and counselor-at-law, Attorney Grievance Committee for the First Judicial Department, Petitioner,

M–3095 M–3699

    Decided: February 09, 2018

Peter H. Moulton, Justices.
Barbara R. Kapnick, Justice Presiding,
Marcy L. Kahn
Ellen Gesmer
Cynthia S. Kern
Nicholas A. Penkovsky,
Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent, Nicholas A. Penkovsky, (who, as Nicholas Alexander Penkovsky was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on January 31, 1994).
Jorge Dopico, Chief Attorney,
Attorney Grievance Committee, New York
(Kevin P. Culley, of counsel), for petitioner.
Ronald B. McGuire, Esq. for respondent.
M–3095/CM–3699– July 17, 2017
In the Matter of Nicholas A. Penkovsky, An Attorney
Respondent Nicholas A. Penkovsky was admitted to the practice of law in the State of New York by the First Judicial Department on January 31, 1994, under the name Nicholas Alexander Penkovsky. At all times relevant to this proceeding, respondent has maintained an office for the practice of law within the First Department.
In 2015, the Attorney Grievance Committee (the Committee) brought disciplinary charges against respondent alleging violations of the Rules of Professional Conduct (RPC) (22 NYCRR § 1200.00) rules 1.3(b) (neglect), 1.3(c) (intentionally failing to carry out a contract of employment entered into with a client for professional services), 1.4(a)(2) (failure to reasonably consult with a client about the means by which the client's objectives are to be accomplished), 8.4(b) (illegal conduct that adversely reflects of one's honesty, trustworthiness or fitness as a lawyer), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(h) (other conduct that adversely reflects on one's fitness as a lawyer).
On June 23, 2016, respondent and the Committee stipulated to the facts and all of the charges of misconduct. On June 28, 2016, a hearing was held before a Referee, which focused on the appropriate sanction for respondent's misconduct.
The Committee did not call any witnesses but offered documentary evidence. Respondent testified in mitigation, called his counsel as a character witness,1 and introduced documentary evidence. Both parties submitted posthearing memoranda; the Committee argued that respondent should be suspended for six months, and respondent urged a private reprimand or Admonition, or a conditional Admonition requiring respondent to continue his efforts to satisfy his professional and financial obligations with a public censure to follow if respondent failed to adhere to the conditions.
By report dated September 15, 2016, the Referee sustained all the charges and recommended that respondent be publicly censured.
Now, by motion dated June 8, 2017, the Committee moves, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.8(b) and the Rules of the Appellate Division, First Department (22 NYCRR) § 603.8–a(t), for an order affirming the Referee's liability findings and imposing whatever sanction this Court deems just and proper.
By cross motion dated July 10, 2017, respondent moves for an order affirming the Referee's liability findings, disaffirming the Referee's sanction recommendation of a public censure, and directing that respondent receive a private reprimand which has been replaced by Admonitions (22 NYCRR 1240.2 [b] ). In addition, respondent requests oral argument.
The facts of respondent's misconduct are not in dispute. In April 2009, a client retained respondent to pursue a copyright infringement case involving the alleged unauthorized use of his photographs. The client paid respondent an advance legal fee of $1,500 and agreed to an additional fee of one third of any net recovery after settlement or trial. Respondent took some minimal steps regarding the case but never commenced a lawsuit or took other significant action. Over a period of approximately three years, respondent was repeatedly unresponsive to the client's efforts to communicate with him in order to discuss the status of the case. Whenever the client was able to reach respondent, respondent misled the client to believe that the litigation was proceeding in the normal course when it was not.
Between February and April 2012, an attorney wrote to respondent on behalf of the client in order to request a case update. Respondent did not respond despite the attorney's warning that a disciplinary complaint would be filed if respondent continued to ignore his requests. In August 2012, the client filed a complaint against respondent with the Committee. At a May 29, 2014 deposition, respondent, then pro se, admitted that he failed to communicate with the client and had not properly pursued his case. As a result, some or all of the client's copyright infringement claims were time-barred.
The Referee found that respondent intentionally failed to fulfill his obligations under the retainer agreement, neglected the client's case, failed to reasonably consult with his client, and misled his client to believe that the litigation was proceeding when it was not, in violation of RPC rules 1.3(b), 1.3(c), 1.4(a)(2), and 8.4(d). Accordingly, the Referee sustained charges one through four, which were based on these actions.
In or about June 2007, respondent sublet office space from the law firm of Segan, Nemerov & Singer, P.C (Segan). Respondent stopped paying rent in or about January 2009 but continued to occupy the office space until October 2010. In 2011, Segan sued respondent for unpaid rent. Respondent served Segan with a motion to dismiss which alleged, inter alia, lack of jurisdiction due to improper service. The motion had a return date of August 31, 2011 but respondent never filed it with the court, nor did he inform Segan that it had not been filed. Segan, unaware that the motion had not been filed with the court, responded by way of a cross motion for summary judgment. Respondent did not respond to the cross motion nor did he appear on the return date. In September 2011, the court awarded Segan summary judgment against respondent for $26,695.30. Respondent did not appeal the judgment and never made any payment on it. In response to a disciplinary complaint filed by Segan against respondent, respondent raised similar arguments to those raised in his unfiled motion to dismiss. However, at his deposition, respondent conceded that Segan's judgment against him was valid.
The Referee found that respondent's conduct with respect to the motion to dismiss adversely reflected on his fitness as a lawyer, in violation of RPC rule 8.4(h). Accordingly, the Referee sustained charge five, which was based on these actions.
Respondent admittedly failed to file federal and New York State personal income tax returns for the tax years 2009 through 2014. Moreover, at his May 29, 2014 deposition, respondent misleadingly implied that he had been granted multiple extensions to file his tax returns which were still in effect, although they had in fact expired. Respondent admittedly failed to ascertain that the extensions were no longer in effect and correct his misstatements to the Committee.
The Referee found that respondent's failure to file his personal income tax returns constituted illegal conduct that adversely reflected on his honesty, trustworthiness or fitness as a lawyer, in violation of RPC rule 8.4(b). The Referee also found that his misleading testimony to the Committee regarding the status of his extensions reflected adversely on his fitness as a lawyer in violation of RPC rule 8.4(h). Accordingly, the Referee sustained charges six and seven, which were based on these actions.
In 2002, a judgment was entered against respondent for his unpaid law school loans, which included interest and penalties, for $116,606.71. In addition, between 2002 and 2015, other judgments and liens were entered against respondent which totaled approximately $59,321.71.
The Referee found that respondent's failure to satisfy the judgments and liens entered against him constituted conduct prejudicial to the administration of justice, in violation of RPC rule 8.4(d). Accordingly, the Referee sustained charge nine, which was based on these actions.
Lastly, the Referee found that respondent's overall conduct adversely reflected on his fitness as a lawyer, in violation of RPC rule 8.4(h).
Since the facts of respondent's misconduct are stipulated to and the parties both request that we affirm the Referee's findings of liability, we so affirm. We turn now to the issue of the appropriate sanction for respondent's misconduct.
In mitigation, respondent explained that he attended law school in pursuit of a career change after being laid off from work in the film production industry. Respondent graduated from law school at age 39 with $70,000 of loan debt. Respondent worked briefly for a small law firm before being let go; and, because he could not find other work, has been a solo practitioner since 1997. Since 2009, respondent's law practice has failed to generate sufficient income and respondent found it difficult to pursue business aggressively because of the breakdown of his marriage. Respondent and his estranged wife have been engaged in acrimonious divorce proceedings and lost their only significant asset, a cooperative apartment they owned together, because they failed to pay maintenance charges.
Respondent also explained that he has been participating in therapy and a support group, and submitted a letter from his current therapist. In addition, after stipulating to his misconduct, respondent went on to file tax returns for the years in which he was delinquent.
Respondent expressed remorse and acknowledged that he needed help to properly fulfill his professional responsibilities. He also noted his prior pro bono and other volunteer work. He submitted nine character letters from, among others, law school professors and members of the New York bar attesting to his good character, professionalism, and integrity.
Respondent's attorney, who has known respondent since 1991, testified to respondent's good character, professional competence, and commitment to public interest cases. Respondent's counsel testified that he would be comfortable referring clients to respondent, but, given respondent's professional and personal difficulties, he would take it upon himself to monitor how respondent handled those cases.
In aggravation, the Committee introduced a prior Admonition issued to respondent in 2013 for conduct prejudicial to the administration of justice in violation of RPC rule 8.4(d). Respondent had represented, in federal court, a group of tenured New York City public school teachers who had been suspended. Respondent filed a fourth amended complaint that had previously been found deficient by both a magistrate and a judge. Respondent was sanctioned for this with a $5,000 fine. Respondent delayed his payment of the fine by 16 months by raising frivolous challenges to the sanction.2
The Referee recommended that respondent be publicly censured. While the Referee viewed suspension as too harsh, the Referee acknowledged that a private Admonition would not be sufficient to protect future clients from possible inadequate representation by respondent.
We agree with the Referee that a private Admonition would not be appropriate in this case and therefore reject respondent's request, in his crossmotion, that we disaffirm the Referee's proposed sanction and impose an Admonition. Respondent neglected a client matter, prejudiced the administration of justice in litigation with his former landlord, did not file his taxes for several years, and was delinquent in his debts. He was also previously admonished by this Court. While respondent has expressed remorse, confronted personal and financial difficulties, and is taking steps to improve himself, his actions were serious enough that future clients should be on notice of them.
We find that, in this case, a three-month suspension is appropriate. We have previously imposed three-month suspensions where, like here, an attorney committed multiple acts of misconduct and was previously admonished, but expressed remorse and presented evidence in mitigation (see Matter of Bartley, 151 AD3d 1, 3–5 [1st Dept 2017]; Matter of Peralta–Millan, 141 AD3d 87, 89 [1st Dept 2016] ). We find that this sanction appropriately balances respondent's misconduct and the evidence in mitigation (Bartley, 151 AD3d at 4).
We have considered and reject respondent's request for oral argument.
Accordingly, the Committee's motion should be granted to the extent of affirming the Referee's findings of fact and conclusions of law and respondent suspended from the practice of law in the State of New York for a period of three months and until further order of this Court. Respondent's crossmotion should be granted to the extent of affirming the Referee's findings of fact and conclusions of law and otherwise denied.
All concur.
Order filed.
1.   The Referee permitted respondent's counsel to testify as a character witness with the understanding that his testimony would be stricken in whole or in part if respondent raised objections based on the attorney-client privilege during cross-examination by the Committee or examination by the Referee. No such objection was raised.
2.   As additional evidence of aggravation, the Referee considered the testimony by respondent that he never filed the motion to dismiss in the Segan matter because he simply forgot, which the Referee did not find credible.