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The outcome was predetermined. The facts and the law are fashioned to suit the desired end result. The confiscation of property, and denial of rights, is approved with no opposition allowed. While it is frightening and frustrating to the victims to have property taken by the stroke of the pen, that has been condoned in the court of Justice Heitler, by taking undue advantage of judicial immunity.
For prior history of the case
click here. The entire file
before Justice Heitler has been scanned in including all the Exhibits
attached to the motions and orders. To access these you will need the free
Justice Heitler has given the cover of her court for the appropriation of close to $700,000.00 by a half dozen lawyers for personal benefit as they prearranged it in their private deal. This was the surplus that remained following the forced sale of the corporate real property in the New Jersey bankruptcy court, after payment of all claims and administrative expenses. By law it was required to be returned to the corporation for a fresh start or be distributed to the shareholders. Instead Justice Heitler fostered the reliquidation of the already liquidated funds, for which a lawyer impersonates himself as the receiver for the corporation. To create the illusion that he was a receiver he engaged in false retroactive publications in 2004. He purported to rely on an appointment of temporary receiver thirteen years prior in 1991 that never went into effect and where the case was terminated a decade earlier in 1994. For a cover up that falsely assumed receiver designated the lawyers as "creditors" after they were paid the surplus funds and without making a claim. To approve these acts Justice Heitler directed Mr. Windels to serve that order on the Attorney General of the State of New York. The finishing touch to that prearranged give away of close to $700,000.00 is a court approval, upon which the law requires Justice Heitler to hear objections and proofs in an evidentiary hearing. Instead Justice Heitler engaged in hollow legalistic gymnastics to evade these legal requirements, including depriving Herskowitz of the right to object to that "final accounting" so that it would be approved ex parte. The distribution of
the surplus was a function of the bankruptcy court, but Steven Delibert
attorney for plaintiff Susan Charney manipulated to have that surplus
transferred to the New York court. He convinced the bankruptcy court,
that the distribution to the shareholders be decided in the New York
court, particularly as it relates to the satisfaction of the judgment
in excess of $4 million to which New York law applied. The bankruptcy Judge Stephen Stripp ruled in his July
10, 2000 Memorandum Opinion that "this fund belongs to the debtor’s
shareholders" and directed that it be transferred to a New York custodian
as stakeholder "for adjudication there of the shareholders’ rights
therein between Judith Herskowitz and Susan Charney". On August 9, 2000
Judge Stripp entered an order dismissing the bankruptcy case and the
surplus funds were transferred to a Mr. Paul Windels III to hold these
funds pending adjudication of these issues. Delibert and his accomplices obviously
spent the last three years deciding how to divide up those funds among
themselves.
On page 5 of his Affirmation in support of the motion, Mr. Delibert refers to Mr. Windels as the "neutral fiduciary to receive
any surplus"
click here.
Mr. Windels with the full knowledge that he was only a custodian
of those funds for distribution to shareholders joined in the motion
as can be seen in his Affirmation click here.
He was misrepresented as the "Receiver of the Assets of North Jersey
Trading Corporation" for a pretense to agree to a fee division on behalf of the
corporation, for
which he had no lawful authority as the "neutral fiduciary". The motion was
based on an out of court
private deal to divide up the close to $700,000.00 surplus among the
attorneys as they predetermined to the last penny, the bulk of it to be pocketed by Mr. Delibert as
shown below: Susan Charney
(partial reimbursement of sums
$120,000.00
$110,000.00 Only Steven Delibert participated in the New York case in which the fees are claimed. Of the four other lawyers three of them Christu, Hark and Carlton Fields are Florida lawyers and Mr. Livingston a New York lawyer, none of them participated in that alleged New York derivative suit, and so there was no record upon which to base their fees, see Exhibits attached to Delibert's Affirmation click here. Neither Mr. Delibert nor the other lawyers submitted any itemized bill, and time sheets, as to how and for what their alleged hours were expended and no invoices for their alleged expenses. What Mr. Delibert detailed in his Affirmation in Support of the Motion for Distribution click here for a large part was for litigation he pursued in other courts yet he asked fees for a total of 4,742.53 hours of "billable time" at $170.00 an hour (as a bargain) for a total sum of $806,230.10 and an additional $91,323.38 in expenses for a total sum of $897,553.48. Mr. Delibert a single practioner simply alleged that for years he devoted his practice full time to this case letting other big clients go by (without naming them). He further claimed that he has been paid $68,500.00 by plaintiff and $50,000.00 in the Bankruptcy Court, leaving an unpaid balance of $767,904.74 for work through September 2000, for which he was willing to accept $401.950.94 but, he asked that it be awarded "without prejudice" for application for further fees against any amount that would be collected from Judith Herskowitz on the $4.2 million dollar judgment against her. Obviously, if Mr. Delibert could not expect fees to be paid from the corporation through friendly judges for litigating on endlessly, he would have ceased his litigation long ago. Needless to say, the law
makes no provision for the confiscation and division of corporate assets
in
private deals among lawyers. First of all by Charney's own
admission she has not only allegedly pursed litigation on behalf of
the corporation, but also on her personal claims. So, that even
if Charney had pursued a shareholder derivative
suit, the fees for that were required to be distinguished from her personal claims,
for which she was not entitled to fees under the American Rule, that
requires each party to pay his/her own fees. Even as to that
shareholder suit, by law the fees come out from what Chaney recovered on
that judgment, which was no more than the settlement sum of
$150,000.00 forced out of Robert and Mark Herskowitz. Fees of
$50,000.00 or one third were already awarded to Mr. Delibert in the
Bankruptcy Court and the Trustee also received a fee on the settlement
sum. Clearly, it is no benefit to the corporation for the
lawyers to end up with all the money and to
litigate to create fees on pure fabrications, without any trial, so
that they can clean out the corporation. This is what happened
here. How is that possible, because as
shown above, the plan to
appropriate the funds was sealed before the matter came before the
court and the rest is a scripted play to uphold the misappropriation
of the surplus by dispensing with the adversary system of justice, by
disregarding well supported opposing papers, to enter one sided
orders. Herskowitz's Cross Motion dated October 1, 2003 returnable on October 22, 2003 click here and Affidavit in Support of her Cross-Motions which set forth the facts click here and for Exhibits click here.
Herskowitz's Memorandum of Law in Support of
Cross Motion For Stay And/or to Abate in
Deference to Pre-emptive and
Primary Jurisdiction of Other Proceedings;
click here Herskowitz's Memorandum in Support of Motion to Compel Production of Documents click here. Herskowitz's Letter to Justice Sherry Klein Heitler. Requesting an evidentiary hearing and questioning the striking of Herskowitz's motion by Judge Pienero by an ex parte order in the Florida court.
Plaintiff
Charney's Reply papers through Delibert and Windels' Reply papers: Plaintiff's Memorandum of Law (I) In Reply, In Support of Motions for Disbursement of Funds and For Protective Order and (II) In Opposition to Cross-Motions of Defendant Judith Herskowitz. by Delibert. Noteworthy is Mr. Delibert's manipulation of the law, arguing that there was no "full satisfaction" of the judgment because the sum paid was not the "full amount" was not "full payment" when the law provides that even if the payment is less than the amount of the judgment the "full satisfaction" discharges the judgment as to all the jointly liable judgment debtors. So, that there was no more judgment upon which to pursue Judith Herskowitz and to collect fees on that $4.3 million default judgment click here.
Mr. Windels' response titled "Reply Affirmation in
Further Support of Proposed Distribution of Funds and of Motion for
Protective order and in Opposition to Cross-Motions or Stay and Other
Relief" dated October 14, 2003 is replete with ad homonym
attacks against Judith Herskowitz without being able to rebut any of
the factual allegations or legal authorities in her papers showing
that there is no valid order in effect appointing him as receiver for
the property of North Jersey
click here and for
Exhibits attached click
here. Herskowitz's request for production of the satisfaction of the judgments and for records of the surplus funds held by Mr. Windels click here. Delibert was not going to produce the satisfaction of judgments and responded with a motion for protective order click here and Windels likewise responded with a motion for protective order click here. In Plaintiff's Reply Affirmation click here Mr. Delibert maligns Herskowitz with baseless accusations that she "remains indebted to the corporation" for the $4.3 million default judgment entered against her "for her part of the looting and despoilation of the corporation", while he admits settlement with the other two defendants for the same judgment, but disregards the full satisfaction of that judgment and would claim that Herskowitz remains liable for the whole judgment, to collect for the second time on the same judgment which by law is not permitted. Mr. Delibert further accused Judith that she is a "fugitive from New York" when the fact is that she is not escaping from New York, because she has lived in Florida for over thirty years, and for more than a decade before Charney even commenced her New York litigation in 1988. For that $4.3 million derivative judgment it was intentionally ignored that it was Alex Fried, the father of Charney and Herskowitz who purchased that real property in 1958 managed it and was his sole source of income, which was limited because of the controlled rents. So, there was nothing to take, but that income was excluded and was claimed as the damages in effect stealing the income of Fried. Regretfully, this lawsuit it is not what the facts are, but what is fabricated is what prevails which is unassailable.
By his own account Mr. Delibert based that
shareholder's derivative suit, on
innuendoes and speculation i.e. that Herskowitz, said she would take all
the salaries, when she got no salary and no money from
North Jersey, because the income belonged to her father Alex Fried, that she had unexplained wealth, without defining what
or where it was (for sure Herskowitz would have liked to find it as
well); that Herskowitz had to produce corporate books and records in New
York, when she lived in Florida and had no control and no possession of those records.
The fact is that whatever books and records were produced
that did not satisfy Mr. Delibert, because it did not show the multi
million dollar profits Mr. Delibert envisioned, and so he resorted to
malicious attacks upon which to make his false claims.
The end result is that it was Mr. Delibert and his
accomplices who "looted" the corporation and emptied it out to the last penny,
not only without any money going to Herskowitz, but leaving her with a $4
million judgment procured by fraud upon which to accomplish this feat.
A Default
Was Contrived Against Herskowitz To The return date on the motion was set for November 18, 2003. However, it was the objective of Mr. Delibert that Judith Herskowitz not appear on that motion in the New York court, so that a default could be contrived against her and thereupon he would prevail without opposition as was the history of this case. So, Mr. Delibert threatened Judith that if she appears in the New York court she would be arrested on the civil warrants, which Mr. Delibert procured previously for the exact purpose to bar her from court. Judith informed the Court of these threats at an October 22, 2003 telephone conference. Justice Heitler agreed that the arrest warrants would be lifted and a copy of the order would be sent to Herskowitz so "she could travel to New York for this court appearance without fear of arrest." Justice Heitler directed Mr. Delibert to prepare and deliver an order, which was to be received by the Court "in a day or two", to which he agreed. However, Mr. Delibert submitted that order (3) weeks later, which were not signed until November 12, 2004, click here. It was sent by regular mail, which Herskowitz received a day before the hearing on November 17, 2003 and so was too late make reservations to travel from Florida to New York.
Judith had previously contacted the Court on November 14,
2003 copied to Mr. Delibert and Mr. Windels as to the non-receipt of
the suspension order but received no reply. On that same day Judith
also called by phone the court's deputy Steve, but he could give no
information. On the November 18, 2003 return day of the motion
Herskowitz had called the courtroom of Justice Heitler and requested
to participate by telephone, as she was told the day before that she
could by the
deputy Steven, but Justice Heitler disallowed it. This deliberate, calculated delay obstructing
Herskowitz from being able to travel to New York, was then used to
default her. Her properly submitted papers were then eliminated and
Justice Heitler allowed only Mr. Delibert’s papers.
Letter dated November 18, 2003
addressed to Justice Sherry Klein Heitler requesting that the case be
transferred to the Commercial Division of the court since the case is
claimed to be a stockholder derivative suit well in excess of the monetary
threshold requirement, and therefore it belongs in that
division. For the letter click here
Letter dated November 19, 2003 from
Justice Jacqueline Silbernann in response saying that request should be
made by motion, the case would
remain with Justice Sherry Klein Heitler and that "she will decide all
issues....based on the law and the facts".
Click here
Mr. Delibert's letter dated November 25, 2003 addressed to John F. Werner
Chief Clerk and Executive Officer of the New York County Supreme Court
saying that the motions have been submitted on November 18, 2003,
and are under consideration, giving the appearance that it included
Herskowitz's papers
click here.
Letter
dated December 10, 2003 click here
by Judith Herskowitz to Chief Clerk John F.
Werner objecting that the motions were submitted before Justice Sherry
Klein Heitler without setting an
evidentiary hearing on the disputed issues.
Response of Justice Silbermann dated
December 12, 2003 saying that the
Justice Heitler Disregarded
the Full Satisfaction of the $4.3
Judith Herskowitz moved to renew and to vacate that
April 13, 2004 order by default. On June 2,
2004 Justice Heitler issued an Order to Show Cause on the motion and set it
for oral argument for June 21, 2004, but on page 2, Justice Heitler crossed out the provision asking to enjoin the disbursement of any
of that close to $700,000 held by Paul Windels III as custodian
click here.
This fueled suspicion that Justice Heitler had no intention to consider
the motion and that her objective was to allow the disbursement of the
surplus as prearranged. For the motion to renew Herskowitz relied on the full satisfaction of
the judgments, which included the payment of the fees, which should have deprived Mr. Delibert from bringing
on his
motion for disbursement for fees in the first place. Herskowitz
also claimed a meritorious defense to vacate the default,
Mr.Delibert's misuse of the threats of arrest, his untimely service of
the suspension orders, which prevented her from traveling to the New
York court. Nor could she be defaulted where motions are submitted on
papers and she did timely file her papers. Furthermore, that Mr. Delibert's admission in his December 29, 1993 sworn
testimony that the alleged withdrawal of the jurisdictional
defenses by the Herskowitzes was unsupported by the record and was
fiction. The papers were as follows:
Herskowitz's Affidavit in Support of Motion to Vacate Decision and Order of April
22, 2004 Entered by Default and for Leave to Renew and to Reargue
click here
Herskowitz's Memorandum of Law in Support of Motion to Vacate Decision and Order of
April
22, 2004, Entered by Default and for Leave to Renew and Reargue
click here
Delibert's Affirmation in Opposition to Motion to Vacate Decision and Order of
April 22,
2004 click here
Delibert's Memorandum of Plaintiff and Receiver in Opposition to Motion to Vacate
Decision and Order of April 22, 2004
click here
Reply Affidavit of Judith Herskowitz to
Affirmation in Opposition to Motion
Herskowitz timely received the suspension order
click here and to the surprise of
Justice Heitler, Mr. Delibert and Mr. Windels, she appeared in the New
York courtroom on June 21, 2004 as scheduled at 11:30 A.M.
which should have demonstrated to the court that there was no unwillingness to appear. Justice Heitler then announced "This is your motion, ma’am. I will hear what
you have to say. I will give you ten minutes." To which Herskowitz
objected that she did not come all the way from Florida to be given
ten minutes. Herskowitz explained that this $4 million judgment by
default was built on fabricated claims that the Herskowitzes "looted" the
corporation’s income when the income at all times belonged to
Alex Fried, the father of Charney and Herskowitz, and that $4 million
default judgment omitted any income for Fried and so was a theft of
his income. She explained that
she could not come up on a last minute notice from Florida, because
the planes are full and in fact even with timely reservations she and the
friend who accompanied her were bumped off the flight and had to take
another flight.
Herskowitz presented copies of the full
satisfaction of the judgments which Delibert and Windels refused to
produce and which she was finally able to obtain from other sources. They were taken by surprise and Justice Heitler showed absolute discomfort.
Herskowitz offered the satisfactions into evidence, they were
reluctantly authenticated by Mr. Delibert and Mr.
Windels who signed them. To see one such satisfaction click here. Herskowitz cited authorities from her
Memorandum of Law whereby a full satisfaction of judgment in a postjudgment settlement,
discharges all the jointly liable judgment debtors as distinguished
from a pre-judgment settlement. When Herskowitz offered to furnish a surreply on these
issues Justice Heitler responded: "I don’t need a surreply; I know the
difference, ma’am." Nevertheless, Justice Heitler refused to mark the satisfactions
into evidence. Obviously, Justice Heitler was not interested in
the actual facts and the controlling law, because she already rubber stamped that prearranged
appropriation of the surplus, without any determination to the
entitlement of those funds by each of those lawyers. So, Justice
Heitler gave herself
an alternative, "First I have to get past whether, I’m going to
open the default........If I get past the default, then I consider the
renew and reargue." Evidently, all that charade and play
acting on the default could not go into waste.
Mr. Delibert literally fought Herskowitz to
death for the money, but it was his death in July 2004, and now he is the devil's
advocate.
ORDER of Justice Heitler issued on October 12, 2004 denying the Motion
to Vacate the Default. The Court once more engaged in personal
attacks against Herskowitz and used the same prior cases from the
April 13, 2004 order which were again
irrelevant to the issues, but were used to divert attention from the
real issue, that the Court simply ignored and omitted the full
satisfaction of the $4.3 million default judgment, which was again
omitted from the order. So, Justice Heitler chose to treat
Herskowitz's motion as
one to vacate the default, to avoid the motion to renew based on the
satisfaction of the judgment.
The Court was openly biased and prejudiced in failing to
recognize that Mr. Delibert did not submit the proposed suspension
order timely, for an artificial means to adhere to that contrived
default. The Court has also failed and refused to deal
with the fact that it was unrebutted by Mr. Delibert that he knew that
the Herskowitzes have not withdrawn their jurisdictional defenses and
so he never established any right to sue the nonresident Herskowitzes
in New York.
To see the order click here.
Herskowitz moved for the disqualification of
Justice Sherry Klein Heitler by motion dated September 29, 2004
that was returnable in the motion part on October 29, 2004 and
was scheduled by the Court for January 5, 2004. For notice of motion, affidavit and
exhibits attached
click here and for Memorandum of law
click here
Windels' Affirmation in Opposition to Motion for
Disqualification of Judge
click here and
Memorandum of Law click here.
Herskowitz's Reply to Windels' opposition
click here.
ORDER of Justice Heitler dated February 16, 2005
denying the Motion for Disqualification
click here.
The Prior Contempt Orders, Sanctions, a Turnover During pendency of
the above motion, Herskowitz requested that Justice Heitler issue an order
to show cause on her motion seeking to vacate prior orders and judgments,
but she declined to issue it. Herskowitz then filed it in the motion part
returnable on October 28, 2004. The substance of the motion was to show,
that the contempt orders, the sanctions, the turnover order and that $4
million dollar judgment by default were void, for lack of service, or
because they were entered ex parte with no attempt to serve it, or there
simply was no provision in the law to enter a contempt for discovery
violation and to impose warrants of arrest on it, or they were entered
without the required hearing etc., Shown in detail on pgs 15-26 of the
Affidavit, was the fraudulent basis of that $4 million judgment, the
falsely inflated rents, the minimized expenses, the omitted rent rollbacks
going back to the 1970's when Fried lived in New York and managed the
property with his wife Hedy Fried, the tax returns showing that Fried was
the only one receiving the income (which was omitted from that $4million
judgment) and that the $200,000.00 that was
claimed to have been misappropriated was used to pay off a mortgage. The
motion was substantiated with extensive documentation on which the Herskowitzes were never heard and were barred from presenting at the time,
so that the $4 million judgment would be entered by default. Charney who was the only party to that $4
million judgment and who claimed to have personal knowledge on that
judgment filed no affidavit in opposition to Herskowitz's motion. Mr.
Windels likewise filed no opposing affidavit.
However, on page 3, of his Memorandum dated October 21,
2004 Mr. Windels claims that Charney commenced a derivative suit, and that "Charney claimed
that Herskowitz and defendants Robert and Mark Herskowitz had
misappropriated income from North Jersey that rightfully belonged to her".
So, that Mr. Windels conceded that
Charney sued individually for income that she claimed belonged to
her, and so she did not pursue a derivative suit for loss of income on on behalf of the corporation
and accordingly was not entitled to fees for her lawyers from the corporation under BCL 626(e).
Furthermore, Charney conceded in
a May 13, 1995 deposition that all the income belonged to her father Alex
Fried and that the corporation declared no dividends. So, that Charney's
case pursued while Fried was alive was elderly abuse to deprive him of his
livelihood. Justice Heitler refused to set the motion down for an
evidentiary hearing as has been her practice, and allowed only about a ten
minute oral argument on April 5, 2005 for which Herskowitz had to travel
from Florida also accompanied with a friend for being apprehensive to
appear alone in the courtroom of Justice Heitler. The papers on the motion
were as follows: Notice of Motion to Vacate Orders and Judgments dated September 29, 2004 that were returnable in the motion part on October 28, 2004 and was scheduled by the Court for April 5, 2005 click here Herskowitz's Affidavit in Support of Motion to Vacate the January 19, 1993 Contempt Order, the February 19, North Jersey Trading Corporation, 1993 Order of Commitment the January 19, 1993 Order Entering Default and the January 21, 1994 Derivative Default Judgment (See pages 15-26 on the fabricated loss of income) click here for Exhibit List click here, for Exhibits 1-15 click here, for Exhibits 16 to 24 click here and for Exhibits 25-30 click here. Herskowitz's Memorandum of Law in Support of Motion to Vacate the January 19, 1993 Contempt Order, the February 19, 1993 Order of Commitment, the January 19, 1993 Order Entering Default and the January 21, 1994 Judgment click here Windels' Affirmation in Opposition to Motion to Vacate Orders and Judgments (a mere two pages claiming no personal knowledge) click here. Windels' Memorandum of Law in Opposition to Motion to Vacate (See page 3 where he claims that the income belonged to Charney) click here Herskowitz's Reply Memorandum of Law to Windels’ Opposition to Motion to Vacate Orders and Judgment click here Justice
Heitler Has Shown Her Sole Interest Was to Uphold Herskowitz has also moved to vacate that October 12, 2004 order denying the motion to vacate that April 13, 2004 order entered by default on the ground that she could not be defaulted where the court never determined personal jurisdiction over her, and where it could not make that determination without an evidentiary hearing on the sufficiency of service and long arm jurisdiction that was never held. She further emphasized that she was a non-resident and the court can't just seize her money, that none of the jurisdictional requirements under CPLR 302 have even attempted to be met to marshal her before the New York court. Another issue that was repeatedly disregarded is that the judgment had been satisfied, including the fees and by law there could be no double collection on the same judgment. Mr. Windels again reasserts on page 2 of his Memorandum dated December 13, 2004 that "Charney claimed that Herskowitz and defendants Robert and Mark Herskowitz had misappropriated income from North Jersey that rightfully belonged to her", which is not an injury to the corporation and is not a derivative suit on behalf of the corporation to be entitled to fees from the corporation. Furthermore, Herskowitz could not be defaulted where her appearance on the November 18, 2004 return date of Charney's motion was conditioned on the expeditious receipt of the suspension order, with which Mr. Delibert failed to comply. The papers on this motion were as follows: Notice of Motion dated November 19, 2004 and returnable in the motion part on December 2004 and was scheduled by the Court for April 5, 2004 click here Affidavit in Support of Motion to Vacate Decision and Order of April 22, 2004; and of October 18. 2004; to Renew and to Reargue; And/or to Refer Matter to Justice Silbermann click here for Exhibit list click here and for Exhibits attached to affidavit click here. Memorandum of Law in Support of Motion to Vacate Decision and Order of April 22, 2004; and of October 18, 2004; to Renew and to Reargue; And to Refer Back to Justice Silbermann click here Windels' Affirmation in Opposition to Motion to Vacate click here Windels' Memorandum of Law in Opposition to Motion to Vacate dated December 13, 2004 (above referenced page 2) click here Reply Affidavit to Windels’ Opposition to Motion to Vacate Decision and Order of April 22, 2004; and of October 18, 2004 Etc., click here or Exhibit list click here and for Exhibits to Affidavit click here. Herskowitz's Reply Memorandum of Law to Windels Opposition to Motion to Vacate Decision and Order of April 22, 2004; and of October 18, 2004; Etc., click here Motion to Vacate the February 16, 2005 order denying to the Motion for Disqualification of Judge. For Notice of Motion click here, for supporting Affidavit click here and for Memorandum of Law click here. Justice Heitler set this motion down for the same April 5, 2005 date as the motion to vacate the prior orders and judgment noted above. Justice Heitler continued to refuse to recognize that the judgments were satisfied and Herskowitz was mailed a Suspension Order effective from April 1 to April 5, until 8:00 P.M. to see it click here. Herskowitz had to travel from Florida to New York for what turned out to be no more than a brief conference, with ten minutes allotted to her. Justice Heitler chose to sit across the table where usually the attorneys sit in the courtroom. When Herskowitz attempted to offer evidence and asked that the Court mark it Justice Heitler raised her voice, refusing to accept it, waiving her hands and again refused to set an evidentiary hearing. Justice Heitler was not interested to hear the motion on the fraudulent basis of that $4.3 million judgment; that included the income of Fried which was literally stolen from him. Justice Heitler's interest was to enjoin Herskowitz from proceeding with these issues, and instructed Charney to submit an Order to Show Cause which she will sign, but this was not done, because then Herskowitz would have been required to be given an opportunity to respond to the motion. ORDER of Justice Heitler dated June 8, 2005 denied all of Herskowitz's motions as if, the only issue were a jurisdictional challenge and addressed none of the other issues. Justice Heitler was fully aware that she could not rely on that October 2, 1991 order since Mr. Delibert conceded that the ruling in that order that the Herskowitzes withdrew their jurisdictional claim was pure fiction. So on page 2, of her order Justice Heitler now relied on another order that was likewise entered without notice and hearing and was simply another misinterpretation of that May 8, 1990 order of Justice Silbermann, that she denied the Herskowitzes' motion to dismiss, when it was the corporate defendant's motion that was denied on other grounds. This is a clear example of the serial fabrication by which a party is prevented from prevailing on the truth and of course, without allowing an evidentiary hearing to create a record. Under the law, this would not be possible, because the facts cannot be changed based on the theory of estoppel. To prevent a challenge to her order Justice Heitler "ORDERED that, henceforth from the date of this decision and order, defendant Judith Herskowitz is enjoined from submitting any future filings in this matter, which includes cases filed under index numbers 024517/88 and 0023002/92, without the prior written approval of this court." In that same order Justice Heitler directed Mr. Windels "as receiver of he property of North Jersey Trading Corporation" to move for judicial settlement of his final account pursuant to New York Business Corporation Law Sections 1216 and 1217 for the distribution of the surplus as was directed by the court. So, that Justice Heitler required her approval to Herskowitz filing any papers to assure that Mr. Windels' accounting and r his purported receivership would not be opposed. For order click here. To Give an
Appearance of Due Process Justice Heitler Herskowitz moved to vacate the June 8, 2005 order restricting her from filing papers without prior permission and also requested the disqualification of Justice Heitler. Herskowitz raised new issues and some prior issues, because she was never heard, she was never given her day in court and the opportunity to present evidence and testimony. The papers filed were as follows: Herskowitz's Notice of Motion dated August 1, 2005 returnable in the motion part on August 31, 2005 click here Herskowitz's Affidavit in Support of Motion to Vacate
and to Renew the June 8, 2005 Decision and Order; for Restitution; and
for Disqualification of Judge
click here for
Exhibit list click here,
for Exhibits 1-10 to Affidavit
click here and Exhibits
11-25 Herskowitz's Memorandum of Law in Support of Motion to Vacate And Renew the June 8, 2005 Decision and Order; For Restitution; and for Disqualification of Judge click here Windels' Memorandum of Law in Opposition to Motion to Vacate and Renew and Reargue and for "Restitution" click here Herskowitz's Reply to Windels’ Memorandum of Law in Opposition to Motion To Vacate and Renew and Reargue and for Restitution click here Letter dated September 20, 2005 from Justice Heitler returning Herskowitz's papers click here. ORDER of Justice Heitler dated October 21,
2005 denied the motion in a one page short order on the mere conclusion that it is repetitive of
motions already raised and considered by the court. However,
there is no order whatsoever that considered the issues raised in the
motion. Nor could there be an order on these issues, since the Court never held an evidentiary
hearing to allow proof and testimony. Obviously, the
fabrications were utilized as a means for the end result to
appropriate the surplus funds that rightfully belonged to Herskowitz.
For the order click here and
another order again refusing to allow motion to be heard
click here. Paul Windels
III Misrepresents Himself as Receiver of North Windels moved for approval of his final accounting as Receiver of North Jersey. For a pretense of legitimacy of that prearranged plan of illegal fee splitting of the entire corporate surplus, Windels misrepresents himself as the receiver of North Jersey for which he engaged in false publications in 2004 for a retroactive effect thirteen years after an appointment in 1991 as temporary receiver of the real property of North Jersey, which was sold by the bankruptcy trustee in 1994. It was a receivership that never went into effect and upon which Windels never served in a case that terminated in 1994 with a final judgment that did not continue him as corporate receiver. Upon this impersonation of corporate receiver, Mr. Windels designated the lawyers and Charney as creditors after they were paid and who never made a claim as creditors pursuant to requirements of Article 12, N.Y. Business Corporation Law upon which he relies. Windels' accounting also shows that he made payment to his post-designated creditors between July and August 2004, which was following the June 2, 2004 Order to Show Cause, in which Justice Heitler crossed out the provision to enjoin the distribution of the surplus, so that June 21, 2004 hearing was prearranged as well, in which Justice Heitler refused to mark the full satisfaction of the judgments into evidence, and at all times after that. Obviously, because that would have foreclosed the misappropriation of the surplus funds of around $700,000.00, which relies on the myth of that derivative judgment in excess of $4 million. Windels' Notice of Motion for Approval of Accounting of Receiver dated September 12, 2005 returnable in the motion part on September 30, 2005 and set by the Court for January 23, 2006 click here. Windels' Affirmation in
Support of Motion for Approval of Accounting
of Receiver Windels' Retroactive Publications for his backdated receivership click here Herskowitz's Notice of Cross Motion click here Herskowitz's Affidavit in Support of Cross-Motion to Vacate and in Response to Windels' Motion for Approval of Accounting click here for Exhibit list click here and for Exhibits attached click here. Herskowitz's Memorandum of Law in Support of Cross Motion to Vacate and in Response to Windels' Motion for Approval of Account click here Windels' Reply Memorandum of Law in Support of Motion for Approval of Accounting and in Opposition to Cross-Motion to Vacate and Renew and Reargue click here. Herskowitz's Reply Affidavit to Windels' Opposition to Cross-Motion to Vacate and Renew and Reargue click here for Exhibit list click here and for Exhibits click here. Herskowitz's Reply Memorandum of Law to Windels' Opposition to Cross-Motion to Vacate and Renew and Reargue click here Request for evidentiary hearing click here Herskowitz's Letter dated October 17, 2005 to Justice Heitler informing the court that the accounting is required to be set down for an evidentiary hearing, but Mr. Windels has not requested any. Click here A hearing was scheduled for January 23, 2006 on Mr. Windels' Motion for Approval of Accounting of Receiver, for which Judith Herskowitz was required to travel from Florida to New York. She was sent the suspension order click here. Once more Justice Heitler refused to hold an evidentiary hearing. It was just unsworn arguments by Mr. Windels on unsupported facts without any reference to the law. Herskowitz tried to present the substance of her motion, and of course Justice Heitler did not permit any evidence to be introduced. She ordered the transcript to figure out what she will do next. ORDER of Justice Heitler dated March 23, 2006. Shows why the hearing was continued. To give Justice Heitler an opportunity to deprive Herskowitz of standing to foreclose her from opposing Mr. Windels' so-called final accounting, on yet another fabrication that Herskowitz owes $4 million to North Jersey on a turnover order, where there was a turnover order only on a $5,000 money judgment personally to Delibert without ever serving on Herskowitz a motion for turnover, and where at any rate that judgment was likewise satisfied. The effect of the order was to dispense with the adversary system of justice to insulate Windels' accounting from the evidence of the fraudulent nature of that distribution to bogus creditors, click here, for order and click here for. the suspension order that Herskowitz can attend the hearing, but can't say anything, which obviously is not a reason that she should travel from Florida to New York. Herskowitz moved for the disqualification of Justice Heitler. Herskowitz’s Letter dated June 12, 2006 to Justice Heitler click here Herskowitz’s Notice of Motion for Disqualification of Judge dated May 21, 2006 returnable in the motion part on June 22, 2006 click here Herskowitz’s Affidavit in Support of Motion for Disqualification of Judge click here for Exhibit list click here and for Exhibits click here. Herskowitz’s Memorandum of Law in Support of Motion for Disqualification of Judge click here Windels' Memorandum of Law
in Opposition to Motion for Disqualification Herskowitz’s Reply Affidavit to Windels’ Memorandum in Opposition to Motion for Disqualification of Judge click here Herskowitz’s Reply
Memorandum to Windels’ Memorandum in Opposition to Motion for
Disqualification of Judge
click here Windels' letter of June 12, 2006, asserting in his letter that the only person who objects to his accounting is Herskowitz and claims that she cannot object as set up in the March 23, 2006 order. So, it has been arranged to hold no hearing on objections where the only party to appear is Mr. Windels click here Order to Show Cause dated June 16, 2006 issued by Justice Heitler to reset the hearing on Windels' Motion for Approval of Receiver Accounting click here Herskowitz's Response click here Windels' Reply Affirmation in Support of Order to Show Cause dated July 5, 2006 click here ORDER of Justice Heitler resetting the hearing on the accounting for that charade on September 11, 2006 because the only party is Mr. Windels click here. Herskowitz served a Motion for Clarification and to Renew and To Vacate the March 23, 2006 Order and to vacate that order. Most specifically it was shown that if Justice Heitler had not defaulted Herskowitz in her April 13, 2004 order to eliminate her, then she would have deprived her of standing as she has done in her March 23, 2006 order, to foreclose her from objecting to that prearranged fee division, upon which Windels now filed his Motion for Approval of Final Accounting of Receiver. Justice Heitler claimed that Herskowitz owes $4 million to North Jersey on a turnover order, but was only on a $5,000.00 money judgment, for which all her North Jersey stock certificates were demanded, disregarding that this turnover order was in another case, and all the judgments had been satisfied. Also the law of turnover allows collection on a judgment only for the amount of the judgment which was the $5,000.00. This turnover order was yet another way of attempting to appropriate the whole corporation. The papers on this motion were as follows: Notice of Motion dated July 19, 2006 returnable in the motion part on August 15, 2006 click here Affidavit in Support of Motion for Clarification and to Renew and to Vacate the March 23, 2006 order click here for Exhibit list click here and for Exhibits click here. Memorandum of Law in Support of Motion for for Clarification and to Renew and to Vacate the March 23, 2006 order click here ORDER of Justice Heitler dated August 8, 2006 denying Herskowitz the right to file a motion addressed to the March 23, 2006 order click here. Windels' Notice of
Receiver of Presentation of Account
dated August 7, 2006 in Whereupon, Herskowitz had filed Objections to the ex parte nature of the hearing, by reason of the fact that she was barred from court. These were yet the most extensive papers, which show especially in the Memorandum, the failure to abide by legal requirements and the tampering with the record. This by dispensing with objections to the accounting that the court is required to hear; the lack of subject matter jurisdiction, because corporate law makes no provision for a general receiver, only for the property of the corporation; and in 1995 upon which the court relies as having reappointed Windels as receiver, North Jersey a foreign corporation had no property within the state because it was sold by the bankruptcy trustee, so there was also a lack of in rem jurisdiction none of which can be cured retroactively. Windels' oath was false, because there was no North Jersey property within the state, and there was also a bankruptcy stay that did not allow the appointment of receiver for North Jersey. Herskowitz was deprived of standing to object to Windels’ accounting, because she "owes" $4 million to North Jersey on a turnover order that was only on a $5,000.00 money judgment, for which all the North Jersey stock certificates are demanded, disregarding that this was in another case, and all the judgments had been satisfied. Nor did Charney have a derivative suit, but individual claims for which fees could not be awarded from the corporation, and the corporate funds could not be used to pay claims of alleged creditors the Florida lawyers outside of the state. The papers were as follows: Affidavit dated
August 31, 2006 in Support of Objections
for Having Been Barred from this Court By
Disallowing My Motions and
Response; By Depriving Herskowitz of Standing to
foreclose her the Right
to Object to Windels’ Accounting; So That it Be Conducted
ex Parte ; Which Binds No One
click here and for
Exhibits
click here. Letter of Justice Heitler dated September 5, 2006 sent by regular mail in which she denies in response to Herskowitz's August 31, 2006 letter that Herskowitz is barred from court, and informs Herskowitz that she is not barred from objecting to Mr. Windels' accounting if she appears in court and serves her papers on the parties. For letter click here. Letter of Herskowitz dated September 11, 2006 faxed to Justice Heitler, on the same day, informing the Court that by not allowing her to participate in the proceedings she was barred from court, and that it is clearly stated in the March 23, 2006 order that Herskowitz was deprived of standing to object to Windels Final Accounting. Justice Heitler declined to vacate that order and obviously Herskowitz cannot object where she has been deprived of standing. At any rate the August 5, 2006 letter was read to Herskowitz upon her insistence by the Court's deputy and was insufficient and untimely notice to enable her to travel to New York for September 11, 2006. Moreover on the Court's Appearance Calendar only a Status Conference is set which can be conducted by phone. For letter click here. Windels' Affirmation dated September 6, 2006, in which he now misrepresents under penalty of perjury that "I am receiver of the assets of North Jersey Trading Corporation ('North Jersey') pursuant to this Court's order of May 21, 1991" upon which fraudulent claim he published notices and affirms that there is no objection to this final accounting. Clearly, he expects to procure an ex parte order approving his accounting on the misappropriation of the surplus funds click here. When Justice Heitler's letter was read to Herskowitz on Friday September 8, 2006, by the court's deputy Steve, he also told her that he would call on Monday September 11, 2006 at 11:30 A.M. when the case is called on. On September 11, 2006 Herskowitz called the court around 10:00 A.M. after faxing her letter, receipt of her letter was acknowledged by Steve, and he assured Herskowitz that she would be called when the case is called. Herskowitz waited for the call, but no call came. She called the court around noon and was told by Steve to her surprise that the motion was submitted, with no hearing and only Mr. Windels appeared and someone representing the estate of Mr. Delibert, who never filed a notice of appearance. Herskowitz's letter to Justice Heitler dated
September 15, 2006 protesting that her papers were marked submitted
without the required evidentiary hearing. Requesting that if the
Justice Heitler meant that Herskowitz could object to Windels' accounting then it
should be reset with notice to her giving her sufficient notice so that
she could travel to New York from Florida
click here.
Letter from Justice Heitler written by her law clerk, dated September 21, 2006 in response to Herskowitz's September 15, 2006 letter, avoiding the main issue, not to base it on the law, but how to get around it, in attempts to legalize to proceed without the required trial on Windels' accounting to avoid the evidence that would nullify that accounting on what was a private deal click here and exhibits click here
Windels' notice dated September 22, 2006 and proposed order that he made up
approving his alleged accounting, without the required decision by the judge upon
which to draw up that order. Windels did a private deal on the
surplus and now he made up his own order approving it to his newly
designated creditors. Replete with self serving falsehoods,
easily proven in this record. Mr. Windels procured that
March 23, 2006 order to prevent Herskowitz from objecting and
participating in his accounting. So, Herskowitz did not
appear on September 11, 2006, but served a paper protesting
the ex parte proceeding, Mr. Windels would now use that as a response,
in total disregard that the final account is not on papers, but there
must be a hearing with testimony and evidence.
The trial was required pursuant to New York Business Corporation Law Section
1216(c) upon which he purports to rely on
click here. Herskowitz's Objection and Rejection to Windel's Proposed Order Settling Receiver's Account and Notice dated September 22, 2006. Windels proposes his order without the required decision of the court. Even though Windels proclaims himself to be the receiver that is just for the illusion, when he ignores the rules of receivership, which requires a hearing to be set on his alleged final account. Instead would do with an oral argument, which is a meaningless five, ten minutes given to each side, rehashing unsworn the same falsities or or fabricating new one ones click here. Herskowitz's letter to Justice Heitler dated October 4, 2006, with regard to Mr. Windels' attempt to appear before the court to ask that his proposed order be signed, which is not on the calendar and would be ex parte click here. Letter from the office of Justice Sherry Klein Heitler by her Principal Law Clerk Tina L. Mazza Ralls dated October 6 , 2006 letter, postdated October 10, 2006, with the all encompassing solution that Herskowitz is to pursue an appeal click here. Herskowitz's letter to Justice Heitler dated October 17, 2006, with the response that there is no requirement to appeal, that the orders are non-final and on an appeal from a final order it brings up for review the non-final orders and there can be no final order, where no evidentiary hearing was even scheduled as required to enter a final order on Windels' accounting click here. Letter from Justice Jacqueline Silbermann, dated September 22, 2006 in response to Herskowitz's prior letter with the same advise to the "extent you find fault with Justice Heitler's decisions on any issue in your case your remedy lies with the appellate process click here. Herskowitz's response dated October 17, 2006 to Justice Silbermann's letter with the letter of October 17, 2006 letter to Justice Heitler attached saying that appeal is no remedy here, because the issues were not resolved in the civil matter, and in fact are criminal in nature and therefore, should be referred to the District Attorney of the State of New York, for investigation and prosecution, supported by the specific sections of the New York Penal Code for grand larceny, embezzlement, impersonating court appointed corporate receiver, and perjury click here. Herskowitz's letter dated October 25, 2006, to Justice Heitler calling it to her attention that Mr. Windels was also appointed as guardian ad litem for the defendant Alex Fried to protect his interests in that May 21, 1991 order, but he failed to comply to qualify by taking his oath and posting a bond and never served as guardian ad litem. That appointment was in conflict with Mr. Windels' appointment in that same May 21, 1991 order as receiver of the assets of North Jersey Trading Corporation, where Fried's interests were left unprotected so what was Fried's income would be appropriated and be made the basis of the loss of income in that $4 million judgment by default click here. Windels' proposed order noted above that he made up approving his alleged accounting, without the required judicial decision was signed verbatum by Justice Heitler as the October 23, 2006 "Order to Settle Receiver's Account and to Discharge Receiver", omitting paragraph 6 in which Mr. Windels conceded that his his "final account" was set only for oral argument, when the law required that it be set down for an evidentiary hearing. For order click here. Herskowitz moved to renew and to vacate the order dated October 23, 2006 and filed on October 26, 2006 returnable on January 8, 2006 for the reasons stated on the papers below: Notice of Motion to Renew and to Vacate Order to Settle Receiver’s Account and to Discharge Receiver click here Affidavit in Support of Motion to Renew and to Vacate Order to Settle Receiver’s Account and to Discharge Receiver click here Memorandum of Law in Support of Motion to Renew and to Vacate Order to Settle Receiver’s Account and to Discharge Receiver click here Herskowitz also filed a Notice of Appeal with the preargument statement noted below: Notice of Appeal click here Preargument Statement Pursuant
to 22 NYCRR §600.17 click here Herskowitz’s Reply to Windels’ Memorandum of Law in Opposition to Motion to Vacate and Renew click here. Herskowitz's Supplemental Reply Memorandum of Law to Windels' Opposition to Motion to Vacate and Renew click here to which she attached the order click here that appointed another receiver for North Jersey, who served and so precluded Mr. Windels from ever becoming the receiver of the assets of North Jersey in clear evidence that his claim that he is receiver of the assets of North Jersey is unfounded and is false. To be Continued...... |
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