JUDICIAL MISCONDUCT

HOUSING COURT


CASE ANALYSIS

103rd Manhattan Ave. Corp. v./ Brigitte Picart - L&T Index #82281/98

THE STIPULATION OF JUNE 23, 1999:

Exhibit A is a copy of the stipulation ("stip") of June 23/99, which reads:

QUOTE
1) Respondent consents to a final judgment in favor of Petitioner for possession only.

2) A warrant of eviction shall issue forthwith. Execution is stayed to 7/23/99. If Respondent voluntarily vacates by 7/23/99, leaving the rooms free of all occupants, Petitioner will waive all arrears/rents owed up to 7/23/99 (current balance todate is $7,910).
UNQUOTE

I did not sign it. An impostor posing as my guardian ad litem did: At the bottom of the stip judge Klein wrote: "Respondent refuses to sign the stip. However the court accepts the signature of the guardian ad litem in her legal and official capaciity as binding on Respondent."

Indeed the stip was signed over my vehement objections and my insistence that I had a right to, and wanted a trial; as the case stood on June 23, I knew that I couldn't get a fair trial because the court prevented me from using my defenses and counterclaims, as I will show later, but as I said to Judge Milin, I wanted a trial because I was confident that I would get the judgment against me reversed on appeal.

APPLICATION FOR AN ORDER TO SHOW CAUSE

On July 15 I applied for an Order to Show Cause to vacate the stip. Judge Klein denied the application, stating: "Respondent has a guardian ad litem who was not participating in this application." (Exhibit B)

The ground given for the denial makes it clear that the court will not entertain any motion I make pro-se, so it would be futile for me to apply for a stay of execution of the warrant of eviction, the last resort. And since Ms MacFarlane has not been lawfully appointed as my guardian ad litem, as I shall demonstrate, I cannot ask her to act on my behalf.

This leaves me paralyzed in a double bind where neither I nor the person who supposedly represents my interests can act.

FLAWS IN THE APPOINTMENT OF A GUARDIAN AD LITEM

Two guardians ad litem were appointed to me: first Mr Henry Ludmer who withdrew from the case, then Ms Mina MacFarlane who signed the stip. There are three substantive and procedural defects in the appointment of Ms MacFarlane as my guardian ad litem, which render her signature invalid:

1)There is no record or evidence whatsoever that I am "an adult incapable of adequately prosecuting or defending [my] rights" which are the criteria for such an appointment as defined by Section 1201 of the Civil Practice Laws and Rules (hereafter "CPLR"). To the contrary, a caseworker from Protective Services for Adults (hereafter "PSA") who was sent by Judge Milin to do an evaluation of my mental capacity on December 30, 1998 found me ineligible for the services of his agency on the grounds that "Your physical or mental dysfunction does not render you unable to manage your resources, carry out the activities of daily living or protect yourself from neglect or hazardous situations without assistance from others." The dysfunction referred to is the result of a knee injury that I mentioned to the case worker.

2) As a pre-requisite of her appointment by order of May 5/99, Mina MacFarlane had to comply with the requirements of CPLR 1202 c) which states: "Consent. No order appointing a guardian ad litem shall be effective until a written consent of the proposed guardian has been submitted to the court together with an affidavit stating facts showing his ability to answer for any damages sustained by his negligence or misconduct." She never did submit these papers yet the court allowed her to act in my name, thereby sanctioning a most revolting usurpation of my authority.
For that matter Henry Ludmer, who was appointed by order of March 23/99 did not fulfill the CPLR 1202 c) requirement either.

3) The order appointing Ms MacFarlane as my guardian was not entered into the record, (neither was the order appointing Mr Ludmer) in violation of CPLR 2220. This failure to enter the order denied me the possibility to appeal.

In spite of these defects both Judge Milin and Judge Klein acted as if the appointment of Ms McFarlane was valid and as if I was actually mentally incapacitated: they deliberately ignored my statements in open court, refused to answer my questions and failed to rule on my motions. In marked contrast they listened with rapt attention to the most trivial statements made by Mr Ludmer and Ms MacFarlane, including the irrelevant minutiae of her trip to the West coast, culminating in the ratification by Judge Klein of the stip signed by Ms MacFarlane in my name.

However neither order appointing a guardian having been entered into the record, the record shows that throughout the development of these proceedings I was acting PRO SE! NOWHERE IN THE RECORD IS THERE ANY MENTION OF MS MACFARLANE! The only time her name appears is on the stip! Therefore the stip signed by Ms MacFarlane is invalid on its face, for how can anybody's signature bind me if that person never appeared on the record?

Furthermore, my inspection of the court file and record entries on July 16/99 revealed the following defects:

IRREGULARITIES IN THE COURT FILE AND RECORD ENTRIES

  1. There is no record that Judge Milin ordered me to undergo a mental evaluation by PSA;
  2. The report by PSA entitled "Eligibility Determination" (Exhibit C) is not in the file;
  3. There is no record whatsoever that I am "a person incapable of prosecuting or defending his rights", the criteria for the appointment of a guardian ad litem (CPLR 1201);
  4. The order of 3/23/99 appointing Henry Ludmer as my guardian was not entered (and as a result I could not appeal it);
  5. The mandatory letter or consent and affidavit by the guardian (CPLR 1202 c) are not in the file;
  6. The order of Judge Milin dated 5/5/99 appointing Mina MacFarlane as my guardian (Exhibit D) is not in the file;
  7. The same order was not entered into the record (and as a result I could not appeal it);
  8. The mandatory letter of consent and affidavit by Ms MacFarlane are not in the file.

These defects alone are more than enough to invalidate the June 23 stipulation.

With so many violations of my right to due process it is hard to maintain the belief that Judge Milin actually had my interest in mind when she appointed first Mr Ludmer then Ms MacFarlane as my guardians, although in her order of 3/23/99 she claims to act "for the protection of [my] rights and interests" no less than three times. Rather, as I shall demonstrate, she intended to achieve the opposite end, which was to prevent me from using my defenses and counterclaims first through intimidation then, failing this, by destroying my credibility with the help of my so-called guardian Ms MacFarlane.

FIRST GUARDIAN: HENRY LUDMER

Mr Ludmer came to court first on March 31, where he remained in the courtroom all morning without trying to establish contact with me. It was only at the end of the morning session that I learned who he was, and as soon as we started speaking to each other a bomb alert forced everyone to evacuate the building, at which point Mr Ludmer claimed that he had some important appointment across town and left me without a word of advice.

He appeared before Judge Milin on or about April 5 and his only concern was about getting paid, although he had already "consented" (according to Judge Milin's order) to serve as my guardian: he proclaimed that because I am an illegal alien I am not eligible for the benefits of PSA which would otherwise have paid his fees and that he cannot afford to work for no pay. So he asked Judge Milin's leave to withdraw from the case, which was granted. Obviously the concern about getting paid was only a pretext to bring up my immigration status and intimidate me with the revelation before the packed courtroom that I am an "illegal alien", because there was no need for Mr Ludmer to shout the way he did.

Mr Ludmer's extremely cavalier behavior, his ignorance of basic legal concepts and of the expression "pro bono" made me suspect that he was not a true lawyer. If it is any indication, he is listed as a lawyer neither in the Manhattan Yellow Pages, nor in the 1997 New York Bar Directory, nor in the 1998 Martindale-Hubbell, nor in the ABA web directory. Therefore it was deceptive of Judge Milin to write "Esq." next to Mr Ludmer's name in her order of 3/23/99.

BETWEEN GUARDIANS

Between April 5 and May 5 Judge Milin claimed that she was looking for another guardian to replace Mr Ludmer yet she allowed the case to resume from the beginning then put it on the trial calendar and ignored my two motions to mark the case off on the ground that my motion of November 27 had still not been ruled on. In that motion I sought leave to amend my answer and countersue the landlord based on newly discovered evidence.

SECOND GUARDIAN: MINA MACFARLANE

When Ms MacFarlane was "appointed" on May 5th she presented my situation in these terms: assuming that my mother did not send me money to pay the back rent, the only alternative I had to homelessness was to get myself labeled as mentally ill so that PSA would find me eligible for their services and would find an apartment for me in a supervised residence with other mentally ill persons. When I protested that I did not want to pretend that I was mentally ill, she said that I did not have to pretend, that all I had to do was to make another appointment with PSA, that I didn't even need to be evaluated a second time, and a different determination would be made. In other words, Ms MacFarlane was proposing me to defraud the system with the complicity of PSA! If I had accepted I would have been labeled mentally ill, and when I found it inconvenient I would have had to admit fraud, so my credibility would have been destroyed either way. Besides, with "unclean hands" I would have forfeited all rights to seek redress.

Every time I told Ms MacFarlane that, rather than faking insanity to obtain housing benefits I would much rather litigate my case on the basis on my amended answer and counterclaims, or go to trial and win on appeal without the amendment, she reacted as if I had hit a very sensitive nerve indeed; and when I insisted that I had enough evidence to prove my case and that I could win millions of dollars in damages that would dwarf the amount the landlord claimed I owed him she was nearly apoplectic.

As Ms MacFarlane's letter of June 2 (Exhibit E) makes clear, she disregarded my refusal to talk with PSA: while shopping I was approached by the same caseworker who had done the mental evaluation in late December 98. When all her efforts to make me see PSA again had failed, Ms MacFarlane urged me repeatedly to see a psychiatrist: on page 2 of her letter she advises em to get confirmation of my mental ability by a psychiatrist: "...you may well get expert support for your contention that you should be able to handle all your affairs... if you do not, you leave the question in the air..." But as I told her, everybody is presumed mentally fit and should not need expert testimony to prove it. Still I admitted that the tone of my affidavit in support of my motion of November 27 was a little halting and this might explain Judge Milin's doubts about my mental capacity. I was going to explain that I had submitted the first draft to the court because I had not had the time to revise the text but Ms MacFarlane interrupted me and exclaimed that it was not the tone but the SUBSTANCE of my allegations that Judge Milin objected to. In other words Judge Milin had appointed me a guardian for the sole purpose of suppressing my affidavit, a form of speech protected by the First Amendment. I had suspected this from the beginning but was now getting confirmation by Ms MacFarlane herself.

FIRST ATTEMPT TO SUPPRESS MY AFFIDAVIT

This was not the first time that Judge Milin tried to suppress my affidavit. Her first attempt to do so consisted in withholding the copy that I was to serve on tHe landlord when I came to court to pick up the signed Order to Show Cause (dated Nov. 27/98). This is the reason why there are TWO copies of this affidavit in the court file.

Having unlawfully suppressed my affidavit, which was in support of a motion to amend/supplement my answer and despite the fact that I argued this motion before her on December 16/98, Judge Milin never ruled on this motion and ignoring my repeated requests for a ruling between March 31 and June 19 she sent the case to the trial part, as I already stated.

The question is: Why did Judge Milin resort to such extreme measures to suppress my affidavit? For no other reason than that my allegations were true, including the allegations that my mother and her accomplices in the attempt against my life kept me under tight surveillance with the help of my landlord and his staff in order to protect herself from criminal prosecution.

To obviate the possible contention that my motion lacked merit I provided numerous details which linked my landlord and his staff to my mother, leading to the inference that he was exploiting his easy access to any information about my activities to destroy my social and work life and force me to return to France. I also alleged that in order to deceive me and dissimulate his involvement in activities hostile to my interests, my landlord acted in a friendly manner bordering on favoritism by showing unusual eagerness to grant promptly my every request for repairs, going as far as to have my kitchen re-painted and re-floored at a time when I was three months late in rent payment.

On November 20/98, two days after I signed a stipulation in the non-payment proceeding I was tipped off to the mother-landlord connection by a statement by my landlord which amounted to an admission that he was in contact with her, prompting my application by Order to Show Cause of November 27 to vacate the stipulation and amend/supplement my answer.

MY MOTHER'S ACTIONS

I had authorized Ms MacFarlane to contact my mother in the hope that she would be more successful than me in convincing her to send me money. After answering in English to two of Ms MacFarlane's letters, my mother withdrew behind the protective language barrier and communicated only through her American-born greatson-in-law, my niece's husband Tom Smith. Having failed to obtain money on humanitarian grounds, I explained to Ms MacFarlane that I was entitled to a share of about $400,000 in my father's estate plus a share in the revenues from the rental of two apartment buildings in Paris. As soon as I invokes my rights, my mother swept aside my urgent need for money with false arguments that she was alone entitled to the revenues from my father's estate during her lifetime. (Exhibits F1 to F4).

Exhibit G is a copy of an e-mail from Tom Smith suggesting that I contact the French Consulate to get myself repatriated because my mother does not owe me any money, but offering magnanimously to re-imburse the consulate for the expense "no questions asked". There is no mention of moving expenses although I have been living in the United States for the past sixteen years. With this offer to re-imburse the consulate my mother shows how fearful she is that any money fall into my hands. Considering the state of my relationship with my mother it is inconceivable that I return to France. All that my mother has to offer me in France is to live in her attic in the Norman countryside and be totally dependent on her. The mere thought of this eventuality gives me terrible nightmares.

CONCLUSION

In my affidavit of November 27/98 (Exhibit H) I provided enough details to demonstrate that my motion to amend/supplement my answer to the petition had merit, as required by CPLR 3025 b). I also fulfilled all the other requirements of the Rule and presented the motion by oral argument on December 16/98. If Judge Milin had acted in good faith she would have ruled on this motion within sixty days as she is required by law and would have had her ruling entered into the record. Instead she chose to make the affidavit disappear, and having failed to do so she attempted, with the help of the first guardian who was not lawfully appointed, to deter me through intimidation from pursuing my defenses and counterclaims, and failing this she attempted, with the help of a second guardian who was not lawfully appointed either, to destroy my credibility by giving me incentives to defraud the system and get myself labeled as mentally ill.

If the allegations of my affidavit were false, the Court would not have found it necessary to break the laws of Civil Practice and to violate my rights under the First and Fourteenth Amendments to the Constitution. Thus Judge Milin and Judge Klein have achieved the result opposite to the one they sought as a favor to the landlord: far from discrediting my allegations of a criminal conspiracy between my mother and my landlord, the judges only succeeded in rendering them more credible.

When will the Court take a stand for Justice?

August 8, 1999
[Back to Aug. 99 diary]

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