-against- 08 Civ 2391 (SAS)
THE STATE OF NEW YORK; THE OFFICE OF COURT
ADMINISTRATION OF THE UNIFIED COURT SYSTEM;
THE N.Y. STATE COMMISSION ON JUDICIAL CONDUCT;
THE N.Y.S. 1ST DEPT., DEPARTMENTAL DISCIPLINARY COMMITTEE;
THE N.Y.S. GRIEVANCE COMMITTEE, 9TH JUDICIAL DISTRICT;
THOMAS J. CAHILL, in his official and individual capacity; AFFIRMATION
SHERRY K. COHEN, in her official and individual capacity; IN SUPPORT OF
GARY L. CASELLA, in his official and individual capacity; MOTION TO
NANCY J. BARRY, in her official and individual capacity; REOPEN
FRANCIS A. NICOLAI, in his official and individual capacity;
JOSEPH M. ACCETTA, in his official and individual capacity,
ROBERT M. DIBELLA, in his official and individual capacity;
ANTHONY A. SCARPINO, in his official and individual capacity;
ROBERT A. KORREN; JEFFREY A. MCNAMARA;
PATRICIA BAVE-PLANELL; GIULINI & GIULINI, ESQS.;
CHARLES A. GIULINI, individually and as a partner of
Giulini and Giulini; CHRISTINE GIULINI, individually and
as a parter of Giulini and Giulini; CATHERINE M. MIKLITSCH
MCQUADE & MCQUADE, ESQS.; JOSEPH F. MCQUADE,
individually and as a partner of McQuade & McQuade;
MICHAEL D. MCQUADE, individually and as a partner of
McQuade & McQuade; and JOHN and JANE DOES, 1-20,
PLAINTIFF’S AFFIRMATION IN SUPPORT OF MOTION TO REOPEN
Plaintiff Kevin McKeown, pro se, respectfully moves this day, September 11, 2010, for an order reopening the above captioned matter based upon new facts, a fraud upon this Honorable Court and pursuant to F.R.C.P. 60 (b) and (d)(3), inter alia. As this Honorable Court is aware, this case concerns $140,000.00 stolen from American Red Cross 9/11 donation money- still unpaid; What this court has not known, until now, is that the defendants have defrauded this court as they have knowingly acted without required jurisdiction, inter alia, thus void of any immunity.
1. The operative 1st Amended Complaint was filed on May 12, 2008 (Attached hereto as EXHIBIT “A”) On August 8, 2008, this Honorable Court dismissed the action (EXHIBIT “B”). On May 12, 2009, this Honorable Court found that the Court had no jurisdiction since the matter was on appeal; the appeal was only finalized on August 12, 2010 (See attached 08cv2391 Docket Sheet EXHIBIT “C”). All filings in this application are respectfully herein incorporated as if fully annexed. As this Honorable Court has only again had jurisdiction less than 30 days, the herein request is timely and, in the interest of justice, must be granted.
A Knowing and Deliberate Fraud Upon This Court
2. The defendants were stripped of jurisdiction in the underlying action on November 4, 2003 by well-settled New York State Law. Their filings and actions are
VOID under New York State law. And since they acted without jurisdiction, they cannot by law assert any type of immunity.
3. The defendants were aware that as a matter of New York State law, all proceedings had been stayed since November 4, 2003 when a party interested in the underlying proceeding committed suicide. Defendant attorneys Patricia Bave-Planell, Frank Streng, Robert Korren and Joseph McQuade, among others, have knowingly failed to file the only Motion that could ever be filed or accepted: a required on-notice substitution of party papers. (Weber v Bellinger, 124 AD2d 1009). It is uncontested that the required substitution has never been filed. The New York State law is simple: without party substitution upon the death of an interested party, there is no jurisdiction. Accordingly, Immunity of any kind does not apply in this matter. All attorneys and State actors had an ethical obligation to advise this Court.
4. Even the state defendants, and their attorneys, have ignored their own obligation to follow state law and to report or take action against those who were violating state laws and attorney ethical codes and, further, who were improperly acting without jurisdiction.
5. This Court must look very dimly upon the attorneys in this action who have failed to bring to this Honorable Court’s attention the fact that laws and ethical codes of conduct had been violated by attorneys and state actors in this very proceeding. All attorneys were aware that the state law has always been clear regarding the lack of jurisdiction upon the death of an interested party. But these attorneys advanced known void rulings to this Court, or fraudulently asserted immunity claims when such protection had been stripped by the lack of jurisdiction.
6. As alleged in the 1st Amended Complaint, and as accepted as true in the Court’s August 8, 2008 dated order of dismissal, a wide-range cover-up was put in place to hide the improper filings of attorney Frank Streng- a publicly advertised friend, supporter and insider of the judge who accept his improper filings and who himself would subsequently make rulings without jurisdiction.
Without the Proper Substitution of a Party, The State Actors Lacked Jurisdiction
7. It is well-settled law that the lack of the proper substitution of a party in an action renders all subsequent orders null and void as the court lacks jurisdiction (see, Bossert v Ford Motor Co., 140 AD2d 480; Silvagnoli v Consolidated Edison Employees Mut. Aid Socy., 112 AD2d 819) None of the state actors had jurisdiction since November 4, 2003. Each and every order since November 4, 2003 is VOID as a matter of law (see, Byrd v Johnson, 67 AD2d 992). The defendants’, and their attorneys’, knowing failure to act without jurisdiction is the essence of the denial of due process. And their silence of the violations of the known laws are a fraud.
8. I have no other remedy of law. My filings to: state administrative judges; all higher state courts; all court, attorney and judicial ethical bodies have only resulted in retaliation and threats against me. Meanwhile, not one entity, including the New York State Attorney General’s Office, has disputed the lack of jurisdiction since November 4, 2003. The collective silence by the defendants, state actors and attorneys on what I now know as basic New York State Required Party-Substitution law begs this Court’s immediate action.
9. The state actors improperly continued proceedings with the full knowledge that as a matter of law all proceedings were stayed upon the death of an interested party- all in complete violation of my rights concerning due process. (Brown v Konczeski, 242 A.D.2d 847; CPLR 1015, 1021). Indeed, the attorneys involved have never disputed their collective failure to file On-Notice Substitution of Party papers since all matters were stayed, by law, on November 4, 2003. Notably, not one defendant disputes that all matters have been stayed since November 4, 2003, and by operation of well-settled state law.
10. If the 1st Amended Complaint is taken as true, then the thereto-annexed timeline of the illegal court filings confirms the lack of the required party-substitution submission. While I am not an attorney and did not know this law when I filed my complaint, surely the defendants were aware of the state law requiring party substitution. Indeed, the involved attorneys (who financially benefited from the fraud), court clerks (who were friends of the attorney who filed the fraudulent assignment) and the Surrogate Judge (who would later recuse himself because of his admitted and advertised closeness with the attorney who filed the fraudulent assignment)-- were aware of the state law requiring party substitution.
THE UNDERLYING FRAUD
11. Ronald P. McKeown, Jr., purportedly executed an “Assignment of Share in Estate” and an “Affidavit Re Assignment of Share in Estate” (hereinafter collectively as the “ASSIGNMENT”), dated October 30, 2003, with knowledge that its purpose was to defraud creditors of the assignor, the IRS, the State of Texas, to advance a deception upon the Surrogate’s court, and violate various state laws of New York and Connecticut.
12. In is uncontested that within days after Ronald’s death on November 4, 2003, Frank W. Streng, Esq., attorney of record for Ronald, presented the purported assignment for filing in the Surrogate’s Court. In Addition, Mr. Streng subsequently filed his own attorney affidavits in the Surrogate’s Court referencing and relying upon that fraudulent assignment.
13. Irrefutable evidence exists of collusion between the state actors, state agencies, and certain “influential” lawyers who sought to improperly profit at my expense, and who have damaged me and violated various federally protected rights. The lawyers against whom damages are sought had numerous ethical complaints filed, all of which asserted similar violations of the mandatory disciplinary regulations. But they were protected by Corrupt NYS Attorney Ethics bodies.
14. Testimony before this Honorable Court in Anderson, began the process of unmasking State employees, and others, who have improperly acted under the color of law. Without a fair and objective trial in U.S. District Court of the substantive Constitutional and Civil Rights issues, including demonstration of offenses with the evidence, systemic State corruption becomes Law of the Land, superior to all Constitutionally guaranteed rights and contrary to all U.S. Codes.
15. The actions of the defendants violate my equal rights and other guaranteed rights that are explicitly protected by the U.S. Constitution and U.S. laws cited in the complaint and herein. Such violations are federal questions correctly before this U.S. District Court. The Eleventh Amendment no longer applies as the new fact of action by state actors without jurisdiction is now known to this Honorable Court.
16. I respectfully requesting that in addition to re-opening the instant case, that the Honorable Court sua sponte appoint a federal monitor to oversee the day-to-day operations of the New York State Attorney and Judicial Ethics bodies for an indefinite period of time.
Continuing Evidence of Plaintiff’s Allegations of Widespread Corruption
17. Plaintiff also respectfully renews the request for this Honorable Court to immediately schedule a hearing to take the testimony of two New York State judges, and who at all times have wanted to appear before this Court to discuss the widespread corruption as herein alleged. (The Judges’ affidavits are attached hereto as EXHIBIT “D” and EXHIBIT “E”)
18. Taking all the allegations in plaintiff's Amended Complaint as true, plaintiff has properly alleged that the individual defendants acted in numerous instances to deprive plaintiff of his constitutional rights to due process, equal protection of the law, and other constitutional violations. Because these individual defendants are state actors, and have blatantly used “the badge[s] of their authority to deprive [plaintiff] of [his] federally guaranteed rights” under the United States Constitution, § 1983 is the vehicle by which plaintiff may seek and obtain his much-needed relief. Wyatt, 504 U.S. at 161. Because § 1983 is a federal statute, this Court has jurisdiction to adjudicate plaintiff's claims. And because it is now known that the state actors knowingly acted without jurisdiction, this case is now ripe for immediate discovery and trial.
19. Indeed, just like this federal court, the courts of New York State (including the DDC) are entrusted with the responsibility of adjudicating the merits of cases without self-dealing, corruption, and illegality. However, plaintiff’s complaint states that such courts have not so performed their duties; rather, plaintiff's complaint alleges numerous acts of corruption, illegal activity, and obstruction of justice in the operation of the courts of New York State. Given that the allegations in plaintiff’s complaint are taken as true, plaintiff’s allegations state legitimate claims for relief, and ones now known to have been void of any immunity.
20. Indeed, because this Court has already stated that the DDC is “an arm” of the NY State Courts, and is “the court” itself, plaintiff maintains that he merely requested an unbiased, fair and honest court system to adjudicate his claims. Simply put, plaintiff simply requested that the courts of New York State honestly do their job. Plaintiff has alleged that he was deprived of this very basic right, which necessarily deprived him of his right to due process of law, a free and fair court system, and the right to petition his government. These constitutional violations demand federal redress, and plainly provide this Court with federal jurisdiction.
21. The United States Constitution does permit this Court to review the decisions of the EMPLOYEES of New York State (and other lawyers). The Supreme Court found in Jett v. Dallas Independent School_District (491 U.S. 701 (1989)), that 42 U.S.C. §1981 by its terms prohibits private discrimination as well as discrimination under color of state law. The Court considered whether §1981 created a private right of action to enforce that prohibition against state actors. The Court concluded that, “the express cause of action for damages created by §1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in §1981 by state governmental units.” (Id. at 720-721, 733).
22. “A plaintiff may sue a state official acting in his official capacity - notwithstanding the Eleventh Amendment - for prospective, injunctive relief from violations of federal law.” (Opinion and Order, p36). And as now known, the Eleventh Amendment does not apply here.
23. The U.S. Supreme Court in Scheuer v. Rhodes (416 U.S. 232 (1974)) held: “The Eleventh Amendment does not in some circumstances bar an action for damages against a state official charged with depriving a person of a federal right under color of state law, and the District Court acted prematurely and hence erroneously in dismissing the complaints as it did without affording petitioners any opportunity by subsequent proof to establish their claims.”
24. Further in Scheuer v Rhodes, the Court noted "If the immunity is qualified, [416 U.S. 232, 243] not absolute, the scope of that immunity will necessarily be related to facts as yet not established either by affidavits, admissions, or a trial record. Final resolution of this question must take into account the functions and responsibilities of these particular defendants in their capacities as officers of the state government, as well as the purposes of 42 U.S.C. 1983". Now known is the fact that even qualified immunity cannot now be asserted as jurisdiction had been stripped.
25. “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818 [73 L.Ed.2d 396, 410]). Here, state actors knew they lacked jurisdiction.
26. I assert violations of civil rights and other rights of which so-called “legal professionals” “would have known”. The state actors and the “legal professionals” also should have known that their jurisdiction had been stayed upon the death of an interested party. I also asserted evidence to demonstrate that such violations of guaranteed rights are planned, intentional, and organized for profit to the chosen few who are lawyers and officials benefiting at my expense. I also assert that discovery would further verify the civil and criminal allegations made by me are already confirmed as plausible.
27. Title 42 U.S.C. §1988 in relevant part confers on the district courts “protection of all person in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause” (emphasis added).
28. This Court was not asked to review State of New York court decisions. The acts, without jurisdiction, of State employees were described to demonstrate such actions resulted in the conspiracy against my rights. Title 42 U.S.C. §1985 (2) applies to obstructing justice; intimidating a party, or witness if “two or more persons in any State … conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State”.
29. In Zahrey v. City of New York, (No. 98 Civ. 4546(LAP), 1999), on a motion to dismiss, the District Court dismissed the claims against defendant Coffey on the ground of qualified immunity. Without determining whether a prosecutor's fabrication of evidence violated a constitutional right, this Court ruled that Coffey was entitled to qualified immunity because "the law was not `clearly established' in 1996 that a prosecutor's fabrication of evidence violated a person's constitutional rights."
30. On appeal to the U.S. 2nd Circuit Court of Appeals for the Second Circuit, (Zahrey v. Coffey, No. 99-9119), this Court’s dismissal was reversed and remanded: “We hold that there is a constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigatory capacity, at least where the officer foresees that he himself will use the evidence with a resulting deprivation of liberty. … [W]e conclude that the allegations of the complaint suffice to indicate that a qualified immunity defense may not be sustained without further development of the facts.”
31. In Gloria Perez, et. al v. Jesus Ortiz, et. al, 849 F. 2d 793 (2nd Cir. 1988), the court, “held that the district court erred in dismissing the claims sua sponte without giving plaintiffs notice and an opportunity to be heard, and abused its discretion in dismissing the official capacity suits against appellees without giving appellants an opportunity to amend their complaints to conform to the requirements for such a suit.”
ROOKER-FELDMAN DOCTRINE IS INAPPLICABLE
32. There are not State proceedings dealing with the issues raised in Plaintiff’s complaint, or with these Defendants; the relief sought (injunctive relief against the state and money damages against individuals) has not been sought in State courts. This District Court has not been asked to change any State decisions. Plaintiff’s complaint does not concern actions properly “judicial in nature” since Plaintiff asserts lack of Eleventh Amendment Immunity and the fact that acts by individuals beyond the legal limits of their official positions occurred, thereby harming Plaintiff by deprivation of substantive and material guaranteed rights under U.S. laws.
33. The Supreme Court case of Exxon Mobil Corn. v. Saudi Basic Industries Corp. (544 U.S. 280 (2005)) clearly shows that claim preclusion is a separate doctrine entirely. In Exxon the requisite elements that must be met for the Rooker-Feldman doctrine to apply are defined as:
(a) First: The case must be brought in District Court by a party that has already lost in state court.
(b) Second: The injury claimed must be as a result of the judgment itself. There is no “judgment” in my case. The complaint in District Court concerns on-going abuse of civil rights under color of state law without jurisdiction, or state authority, by state employees and other lawyers causing damages to Plaintiff;
34. I asserts widespread and systemic corruption by State employees acting in violation of their oaths of office and without jurisdiction. I believe that such abuses of official positions should be immediately stopped by injunctive relief and by appointing a Federal Monitor.
35. Three tests determine if a would-be plaintiff has standing: the litigant must show: (a) that he has suffered personally some actual or threatened injury; (b) that the injury must be fairly traceable to the alleged illegal conduct of the defendant, and (c) that the injury must likely be redressed by a favorable decision. (Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982)). Causation and redressability are required (Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41-43 (1976)). The Supreme Court has referred to the “injury-in fact” standard as the “irreducible minimum” required by the Constitution.
FEDERAL RULES OF CIVIL PROCEDURE 8, 9 & 12
36. My complaint presented substantive facts without “bald assertions”. Such facts, must be taken as true (Opinion and Order, p.30). The revelations of organized and systemic corruption substantiates the statements that might have been otherwise labeled implausible. The now-known lack of jurisdiction confirms the planned, improper and damaging actions by the defendants against me. Discovery will further substantiate the preliminary facts asserted. I made statements of fact and attempted to provide enough details (pursuant to Rules 8, 9, and 12) to demonstrate that the claims were not speculative and should not be summarily dismissed sua sponte without discovery.
37. I have state and federal constitutional rights of, inter alai, due process, which has been undisputedly denied me, and which begs this courts intervention.
38. Finally, and also new to this Honorable Court, are the words of the Honorable Joseph W. Bellacosa, former Judge of the New York State Court of Appeals and Chief Administrative Judge of the New York State Court System (Attached hereto as EXHIBIT “F”) . Judge Bellacosa asks, “Quis custodiet ipsos custodes?” (Who will watch the watchdogs?”) Briefly, Judge Bellacosa speaks directly to the need of this Court to take immediate and substantive action regarding the federal violations of law by New York State actors, and as herein complained of by plaintiff.
39. WHEREFORE, based on the facts, new information, fraud upon this court and the decisions cited above, plaintiff respectfully requests that this Honorable Court: grant the requested motion, REOPEN the instant 08cv2391 case, direct the Clerk of the Court to return the case to active status, and appoint a federal monitor to review the herein allegations and any and all such asserted allegations by those similarly situated.
DECLARATION UNDER PENALTY OF PERJURY
The undersigned declares under penalty of perjury that he is the plaintiff in the above action, that he has read the above and that the information contained therein is true and correct, 28 U.S.C. § 1746; 18 U.S.C § 1621.
Dated: New York, New York
September 11, 2010
Kevin McKeown, Pro Se
P.O. Box 616, New York, New York 10156
(212) 591-1022 tel - email@example.com
TO: ANDREW M. CUOMO
Attorney General of the State of New York
Attn: Anthony J. Tomari, Assistant Attorney General
120 Broadway, 24th Floor,New York, New York 10271
Joseph F. McQuade, Esq.,Michael D. McQuade, Esq.,McQuade & McQuade
390 Fifth Avenue – Room 711,New York, New York 10018