Cozying Up to Judges, and Reaping Opportunity
Tuesday, November 11, 2003 at 4:16PM I'd wager that Mr. Ravi Batra's practice is going to slow down considerably following the publication of this article in the New York Times:
[F]or much of the past decade Mr. Batra has been a particularly potent force in the clubby corridors of New York City courthouses. He played a role in picking State Supreme Court judges. Lawyers seeking an edge in the unfamiliar world of Brooklyn courts hired him as their guide. Judges who controlled court appointments � where lawyers typically manage the assets and welfare of the elderly, the young or of troubled companies � gave him 150 of these, worth more than $500,000 in fees.
Mr. Batra's success was fashioned in part from long hours and legal dexterity. But by many accounts it was built on his keen appreciation for an unspoken truth: that whom you know in courthouse circles can be just as valuable as what you know. And Mr. Batra developed a particular knack for getting to know judges and the politicians who made them.
He invited them to dinner and his home. He toasted them at parties. He made the Brooklyn Democratic Party boss a member of his law firm. And the boss, Assemblyman Clarence Norman Jr., put him on the panel that screened Democratic nominees for Supreme Court judgeships, a powerful position since the nomination is tantamount to election in heavily Democratic Brooklyn.
This rather understated (and very long) article paints a pretty grim picture of the inner workings of New York City's court system. Among the nicest things said about Mr. Batra is this:
"He has a very fertile legal mind and thinks, as we say, outside the box," said Martin W. Edelman, president of the New York State Trial Lawyers Association.
And I'm not sure that that's really very nice. Read the whole story here. (via Overlawyered.com)
Reader Comments (8)
Annexed hereto are filings with the court: Batra�s cross-motion, reply, sur-reply, transcript of argument in court, and issues on appeal, to wit:Taking a page from Jack Webb playing Joe Friday, �Just the facts...�:I. 12/2/03 The Notice of Cross-Motion:SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGSRobert Abrams, vs. Cypress Hill Cemetery, etal. Hon. Justice RuchelsmanIndex #38143/93Notice of Cross-MotionReturn Date: 12/10/03Cross-Motion by:Ravi Batra, 3rd Temporary Receiver of Cypress, located at 833 Jamaica Avenue, Brooklyn, NY, and the 1st and only attorney-receiver of Cypress;
Date, Venue, and Time:December 10, 2003, 10:30am per 11/6/03 Order of the CourtKings Supreme Court
Supporting Papers:Affirmation of Ravi Batra, on personal knowledge, Zuckerman v. City of New York, 49 NY2d 557, with annexed exhibits:Background exhibits.1. 5/27/98 Order appointing Ravi Batra as the 3rd Temporary Receiver in place and stead of Morton Friedman, oath and bond, and Batra�s June 8, 1998 Letter to Bill Garry Jr., Esq., given in-hand;2. Three 7/10/98 letters from Garry & Ludwig�s (�G&L�) Bill Garry: a. 7/10/98 Bill for Services, addressed to Ravi Batra, with new higher rates on last page; b. cover letter; and c. Litigation Report;3. Bill Garry�s 8/4/98 letter stated �what action/plans should be undertaken to effectuate the proper discharge of your [Batra�s] Receivership duties, we hereby state the following: �a�-�d�.� At �4, lays out the separation between the Cemetery employees and BPC�s management team; at �6 �...Cypress Hill Cemetery�s Rules and Regulations regarding the operation of the Cemetery ...[are] the terms and conditions of the Receiver�s Order of Appointment, together with the Not-For-Profit Law and the New York State Cemetery Board�s regulations constitute the controlling operating rules of the Cemetery.�; at �7, they opined, in answer to Batra�s inquiry, that there was no need to increase the bond amount or obtain a fidelity bond from Doug Rosenberg and BPC for their faithful discharge of their trust; given G&L�s prior and completed representation of DR and BPC Batra requested a conflict of interest waiver, and he opined at �9 that �BPC...owes unfettered allegiance to you, as its principal.�; and at �10 he opined that �...that the present management team of the Cemetery has demonstrated a competency in the management of Cypress Hill Cemetery, which has been recognized ...as exemplary....� �...we feel it is prudent to maintain the current management.�4. 8/4/98 letter of BPC�s president, Douglas Rosenberg (�DR�), to Bill Garry, with employee lists, as �union�, and Cemetery staff, made up of �administrative�, �office� and �maintenance.� Scott Jaffe�s tenure as 1st receiver was from May 1994 to March 1996; Morton Friedman�s tenure as the 2nd Receiver was from March 1996 to May 1998. And admission that �[J]ohn Desmond, General Manager of the Cemetery, is employed by BPC Management as a consultant.� Also included on the �Non Union Fringe Benefits� page is �Unlimited Gasoline Reimbursement� for: Edward Bilello, John Desmond, and Mario Gil.5. 8/6/98 letter of BPC, regarding its Fidelity Bond, as requested by Batra;6. 10/2/98 letter by BPC�s DR confirming, as requested by Batra, that �[T]he Cemetery had provided John Desmond, as General Manager of the Cemetery, a vehicle which is standard practice for this position. The title of this vehicle was in the name of Cypress Hill Cemetery to reduce the expenses to the Cemetery. And to address Batra�s concern of misappropriation of the vehicles� use at Cypress� cost for BPC�s benefit, DR confirmed to Batra in writing that �[S]hould BPC Management Corp., utilize John Desmond on other management contracts, the Cemetery will receive a pro rata credit.� The leasing check, is written on BPC, c/o Progressive Mgmt. Corp.,7. 10/2/98 proposal to scan with bar code page per �plot card� and identifies the �plot number�; (the �voter list�);
Batra�s current and Final Accounting, for the period 12/1/99 to 2/29/00.8. 10/19/99 G&L�s 9-page fax of proposed interim accounting for the period 12/1/98 to 5/31/99;9. 10/28/99 G&L�s revised interim accounting; with Batra�s endorsement �Q. Is A.G. aware of contents?�;10. Batra�s 12/6/99 letter terminating G&L�s services as counsel, for their failure to obtain a general release in the Kirtman case and instead asking and getting an illegal assignment, in an effort to churn legal fees, of the Kirtman note to receiver Ravi Batra, in violation of his required neutrality as receiver between the litigants, Attorney General and Cypress and its defendant-board members, and almost doubling the cost of settlement without the receiver�s consent; and appointing Norman Mendelson, Esq., of counsel to The Law Firm of Ravi Batra, P.C., as receiver�s counsel;11. The NYSBA 1977 ethics opinion, citing the ABA�s 1946 Ethics Opinion on the cost-saving nature of receiver retaining his firm as counsel, given the safeguard of the Court�s oversight and approval of legal fee prior to any payment of same;12. Tom Garry and Arnold Ludwig�s 12/20/99 letter, on Brooklyn Democratic Party�s letterhead, declaring a political war on the courts, with a letter to Law Chairman Mike M. Freeman, cc to all 40 district leaders, citing their belief of entitlement to court appointments as a matter of vested political right, and resigning only1 of their 2 political posts: as members of the Law Committee;13. Batra�s letter of 12/22/99, objecting to G&L�s behavior and belief that the Court could be owned, or punished, by G&L�s political status and remarkable pedigree;14. AAG Molic�s letter of 12/30/99 confirming the termination of G&L as counsel to the receiver;15. Batra�s 2/25/00 letter to Doug Rosenberg �requesting information� re his relationship with G&L etc.; and Batra�s desire to �...unconditionally assist the court-approved plan of the AG to elect a new Board and terminate the temporary receivership.�16. Batra�s 3/6/00 letter resigning as Receiver, after the Court�s denial of the AAG�s motion on 2/10/00, and the subsequent substitution of Douglas Rosenberg, a non-lawyer, to self-police himself, as both Receiver and Managing Agent;17. Batra�s resignation on 5/10/00, after the Court�s denial of AAG�s motion to vacate its 4/19/00 Order;18. G&L�s legal fee bill of 1/ 20/00 directed at BPC and not Receiver Batra, after being terminated for cause on 12/6/99 and the 1/10/00 �turnover files� Hearing, and forwarded on 1/ 27/00 by BPC to Batra, seeking $7589.46 for inter alia non-compensable services;19. Batra�s 3/7/00 letter to DR, and instructions that he needs to designate counsel ASAP;20.Batra�s 3/24/00 letter to DR and BPC, requesting schedules, with exhibits so as to permit Batra to file his Final Accounting; etc.;21. 10/24/03 DR and BPC�s �certified correct� Final Accounting for Receiver Batra for the period 12/1/98 to 2/29/00, with back-up, which shows G&L�s billing and taking of legal fees without prior court order as required, despite their status as counsel to the receiver up to and including 12/6/99, when they were fired for cause. Total Receipts for said period is $6,133,151.08; and Disbursements for the same period are $5,507,097.49;22. 5/12/03 Batra�s Declaration in Opposition to Debtor�s Motion to Expunge Claim #s 12, 13, 18, 19, and 21.23. After settlement in Bankruptcy Court of the claims at 10 cents on the dollar, i.e., the � % receiver�s commission was further reduced by 90%, and payment was made by Lazarus & Lazarus on 9/10/03 of $9,434 and $5000 to Ravi Batra; plus Batra�s letter of 10/7/03;24. Batra received consent of the AAG with regard to depositing such checks: AAG�s letter of 10/16/03 and Batra�s letter of 10/20/03;
Exhibits showing Violation of Chief Judge�s Rules and Chief Administrative Judge�s Memo; Self-Dealing, Non-Waiveable Conflicts, and Escrow Theft.25. On 3/6/00 OCA released the Statement on �Pay to Play� issued by our Chief Judge, Hon. Judith S. Kaye, and the four Presiding Justices of the Appellate Divisions, making clear that quid pro quo behavior violates Disciplinary Rules already in existence, to wit: �A lawyer shall not compensate or give anything of value to a person or organization to obtain employment by a client...� (�1200.8[b]). In addition, it cited Ethical Considerations 2-37 and 2-38; and that is in addition to the pre-existing no-solicitation rule;26. On 3/9/00, our Chief Administrative Judge, Hon. Jonathan Lippman, issued a Memo to the Justices regarding appointment of persons designated to perform services for a receiver, and bring within the grasp of Rule 36.1 of the Chief Judge�s Rules� anti-nepotism and bar judge-related individuals, within six degrees of judge-relationship, from being considered for �secondary fiduciary� court appointments; such Memo was reported on by NYLJ on 5/9/00 along with G&L being thrown off a case by Justice Knipel as a result of the CAJ Lippman�s Memo;27. On 6/9/00, AAG sets the Standard of an absolutely Conflict-Free behavior in the voting in of a new Board for a private Cypress Hill Cemetery by the �lot owners�, and charges Douglas Rosenberg with �sound discretion� in the determination of any claims to voting rights in the first instance, as well as delineates rules for Proxy voting;28. 7/10/00 AAG set forth Douglas Rosenberg�s determination of Ms. Barbara Davis claim to vote her multiple lots, as it is the �most significant, known potential dispute as to voting rights�;29. 3/1/00 Notice of Entry of an Order, dated 2/21/02, and based upon inter alia the holding of such election on 2/20/02 under the supervision of Judicial Hearing Officer Hon. Leonard Silverman, and the votes cast at the election, the following Election results are certified:
Dan Austin 20 votes;Rev. Thomas F. Brosnan 1027;Donald Davis 9;John Desmond 1302;An Dessylas 8;Mario Gil 1051;Michael Lewis 0;Angel Mendoza 21;William Moloney 1047;Allen Schmidt 2;Patricia Tanner 9;Roger Tanner 1261;Harry Zuzworsky 5;and elected to the Board were Rev. Brosnan, Desmond, Gil, Moloney, and Tanner, with Desmond, an employee of BPC as Chairman of the Board; with what appears to be an alphabetical pattern of �low� votes followed by �high� votes;30. Evidence of self-dealing by DR and BPC in 1993 with the use of a �dummy� company de facto owned by them, �Oldtowne Maintenance,� to steal from the Riskins, Index #15812/01, and upon being caught, reduced the receivership bills by 1/3, over $10,000; andDR�s 9/16/03 Affidavit in support of his 9/26/03 Motion, asking the Court to approve and forgive, after-the-fact, his prior violations of the Chief Judge�s Rule 36.1, need for a court order prior to paying any legal fees, which here are in excess of $435,071.32 including monies paid to G&L in violation of Chief Judge Kaye�s Rules, as well as Chief Administrative Judge�s Memo of 3/9/00, and their prior termination for cause for breach of their fiduciary obligation; its 2-page Exhibit B for disbursements in excess of $10,000,000 without any back-up; Exhibit �E� are G&L invoices dated 2/7/00, in place and stead of 1/ 20/00, but with a new higher figure despite termination for cause, and 7/14/00 for services illegally rendered in their entirety after CAJ Lippman�s Memo of 3/9/00 that barred G&L from any such service, independent of their prior misconduct; Lazarus & Lazarus have billed and been paid $175,083.94 without the necessary prior court approval at hourly rates as high as $450.00; Stephen F. Ellman of Zeichner Ellman & Krause has been paid $243,029.66 after they were appointed by J. Huttner on 5/15/00 at hourly rates as high as $375.00, but have received payment for services allegedly rendered prior to their appointment as counsel�see 4/30/00 bill for $32,601.00 which was paid without court oversight, review and approval as required.
Relief Requested:1. that an order issue, pursuant to NPCL �1216, judicially settling the accounts of Ravi Batra and discharging him and his surety for the faithful discharge of his fiduciary obligations owed to the court, or in the alternative, compel Douglas Rosenberg and BPC Management to produce any additional sworn-to backup for the income and disbursements for said period, with an averment that there was no self-dealing by Douglas Rosenberg or BPC, or to produce a court order or rule permitting such self-dealing;
2. That an order issue compelling:A. Douglas Rosenberg and BPC Management to produce the prior court order, consistent with CAJ Lippman�s March 9, 2000 Memo, as reported in NYLJ 5/9/00, that allowed Douglas Rosenberg to self-deal and pay his company, BPC Management $17,500 a month from March 2000 to date, in the approximate amount of $437,500 as �gross�, not �net�, management fees or in the alternative, to refund such monies to the court;
B. Douglas Rosenberg and BPC Management to disclose if it has credited Cypress for the vehicle, insurance and gas costs, as promised in writing on 10/2/98 to then-receiver Ravi Batra, for BPC�s use of its employees, John Desmond or inter alia Mario Gil, for managing properties other than Cypress or conducting BPC�s unrelated business, or in the alternative, credit the appropriate amount with backup calculations, plus interest and attorneys fees wasted in nailing down the misconduct exposed herein;
C. Douglas Rosenberg and BPC Management to produce sworn-to backup for the income received, and the claimed disbursements made �in the best interests� of the escrowed Cemetery in excess of $10,000,000, during the period it seeks to now judicially settle without any backup documentation other than the 2-page Exhibit �B� of its motion;
D. Douglas Rosenberg to produce all prior court orders approving the fees of counsel to the receiver, in the aggregate amount in excess of $400,000, or in the absence of such orders, indemnify the court to the extent that the law firms are unable to refund the monies they received without the necessary prior court oversight and approval of the hourly rate, time spent, and need for such time spent;
E. Douglas Rosenberg to indemnify the Court for all of the legal fees paid to Garry & Ludwig, or any member, associate or of counsel, given their prior-termination for cause on 12/6/99, and the unauthorized re-hiring of Garry & Ludwig in violation of CAJ Lippman�s March 9, 2000 Memo to all judges, including then and now-father Justice, Hon. William Garry, and despite Garry & Ludwig�s own experience of being removed by Justice Knipel as a result of CAJ Lippman�s Memo, as reported in NYLJ on 5/9/00, and the anti-nepotism rules of the Chief Judge 36.1;
F. Douglas Rosenberg and BPC Management to affirmatively state that it has had no other undisclosed and improper self-dealing, within six degrees of relationship/consanguinity, during the time it has acted as a managing agent or receiver, and knows of no other self-dealing by its secondary fiduciaries, a term defined in CAJ Lippman�s Memo of March 9, 2000;
3. That an Order issue, in the interest of justice, and to prevent a fraud upon the court that:A. John Desmond and Mario Gil resign from the now-private Cypress Hill Cemetery as they, as employees of Douglas Rosenberg and BPC Management, are barred as a matter of law from using their court-appointed position of power and control over the Cemetery�s office, Lot Cards, and records to identify the Lot Holders, solicit proxies from same with or without inducement, and then to vote them in their own favor and become Chairman and member of the Board of Directors, respectively, and set their own compensation, as well as that of the Garry & Ludwig firm or any other counsel, as well as hire BPC Management or Douglas Rosenberg or any employee, agent or relative as it violates the core principles that bar an escrow agent from stealing the escrow corpus by stealing the Cemetery and subjugating it to their improper and impermissible control; or in the alternative, hold a new fair and un-conflicted election per AAG�s prior Standard of 6/9/00;
B. John Desmond, Mario Gil, BPC Management, Douglas Rosenberg, Garry & Ludwig, any person barred by 36.1 of the Rules of the Chief Judge, or any person now or previously affiliated with any such firm or entity, refund to the court any compensation that any of them have received from the now-private Cypress Hill Cemetery, but controlled by Douglas Rosenberg and BPC Management�s employees, John Desmond and Mario Gil, after the receivership ended and the receiver surreptitiously acquired the control over the asset, the Cemetery, in violation of core principles of trust; and
4. Along with all other additional and different relief that helps in restoring the public�s confidence in its Court system and court appointees and aids in the efficient administration of justice.
PLEASE TAKE NOTICE that in the event the return date is adjourned beyond 12/10/03 to allow a proper 2214(b) demand, then such a demand is hereby made pursuant to CPLR 2214(b), that answering affidavits, if any, are to be served at least seven (7) days prior to the return date.
Dated: December 2, 2003Respectfully,
Ravi Batra, Esq.3rd Temporary Receiver of CypressThe Law Firm of Ravi Batra, P.C.The Batra Building142 Lexington AvenueNew York, NY 10016212-545-1993 (Fax not valid for service: 212-545-0967)
To: Motion Support (original)And to all counsel who have appeared, and identified on Affirmation of Service.(Omitted from this endnote is the supporting affirmation and exhibits).
II. Batra�s 1/4/04 Reply:Hon. Justice RuchelsmanIndex #38143/93Reply Affirmation in Support of Ravi Batra�s Notice of Cross-MotionFiled on 1/5/04
RAVI BATRA, an attorney duly admitted to practice law in the state of New York, affirms the following under the penalty of perjury:1. Before I begin, like the Assistant Attorney Generals, I too wish this matter was long gone, and I had never heard of Cypress nor agreed to serve the Court, which is, and ought to remain, a badge of honor, and not a visit into a latent den of inequity. But, as a consequence of Rosenberg�s failure to comply for over 3 years with my repeated requests since March 2000 for final accounting material, I have lost approximately $130,000 by agreeing in Bankruptcy Court to take a 90% cut with Rosenberg�s clan swallowing the savings, given their now-partially disclosed self-dealing, and I have been thrust back into this vortex, given my undeniable �standing� as a Receiver as to my Cross-Motion�s Branches 1, 2B, 2D, 2E, and 2F, and as an �Officer of the Court� as to Branches 2A, 2C, 3A and 3B. This Reply is served and filed pursuant to the Order of this Court issued on the record on 12/18/03; annexed hereto as Exhibit �31" is copy of Application made by Ravi Batra; also annexed hereto as Exhibit �32" is the un-settled Transcript of the Application and Argument. Also, it needs to be mentioned, that there is a critical error that destroys res judicata: the stipulations entered in-court were not by Lot Owners, and no jurisdiction was ever obtained over Lot Owners. Indeed, even the Stipulation that allowed JHO Silverman to �hear and determine� (and hold the election) instead of the usual �hear and report� , pursuant to Article 22 of the Judiciary Law, in accordance with the provisions of Part 122 of the Rules of the Chief Administrator of the Courts (NYCRR Part 122), was not signed by the Lot Owners, but merely the Plaintiff-Attorney General, and the Receiver, Douglas Rosenberg, with a redundant signature of Receiver�s counsel, Lazarus & Lazarus. The necessary parties, the corporation�s members, in this case, known as Lot Owners, were never served and remain not subject to the Court�s jurisdiction. The legal rights of the families of those buried at Cypress or who own lots were simply ignored, as jurisdiction was never acquired over them, and self-dealing Rosenberg converted his court-appointed status into permanent control over the cemetery by evading even the AAGs assigned to this case. Let it suffice to say that there is more to Douglas Rosenberg than meets the eye.Overview: Cypress is a Historic Opportunity to Cause Cultural Change in KingsA. Receiver Batra Has Standing to Object to Rosenberg�s Accounting Materials, and As An Officer of The Court to Expose the Fraud Perpetrated Upon The Court;B. Rosenberg, BPC, Desmond, Gil, and Moloney Breached Their Fiduciary Obligations by Repeated Self-dealing and These Court-Appointed Fiduciaries Illegally Seized Control of Cypress, and Have Not Properly Accounted For Over $16 Million that They Spent From 12/1/98 - 2/28/02;C. a New Election Has to Be Held as There Was a Fundamental Flaw in the One That Was Held, as Jurisdiction Was Not Obtained over The Lot Owners and Receiver Rosenberg Is Barred from Representing or Acting as a Party Without Destroying His Required Neutrality: The Election Stipulations and Orders Are Fatally Defective.
2. It was in Cypress that Garry & Ludwig (G&L) acted improperly and illegally, and were fired. It was as a result of their being fired for cause from Cypress that G&L tried to burn down the courthouse, as they believed themselves above the law as a consequence of their political status and pedigree. It is now in Cypress again that this Court is presented with a historic and unique opportunity to declare that the laws of the United States and New York State will apply in Brooklyn with equal force to even those that are politically connected and in so doing, cause a cultural change and restore public confidence in the Court and Court-appointees. Across the river, in M/O Sarah Gershenoff, Index #400941/01, Justice Walter B. Tolub issued a decision dated 12/24/03, NYLJ 1/5/04, that the accounting was fundamentally flawed because receipts were not produced for the monies spent, even though it was a matter between an aunt and her fiduciary nephews. A court-appointed receiver is not only a fiduciary, but one who represents the court itself. A receiver, therefore, is subject to a standard if not more, than certainly equal to a familial fiduciary, as in M/O Gershenoff. Here, it is not $163,000 to be accounted for, but $10,653,809.39 in Douglas Rosenberg�s Motion and an additional $5,507,097.49 in Batra�s cross-motion, all spent by Rosenberg, since 12/1/98 to 12/28/02, with a total amount of $16,160,906.88 to be judicially settled and not a single receipt produced by Rosenberg. That is arrogance; over $16 million worth of arrogance. Throw in undisclosed fraudulent self-dealings, and we have a recipe for theft that shocks even the callous and the cynical. It bears noting that Douglas Rosenberg has issued no Conflict of Interest disclosure to-date. Those issued on behalf of Desmond, Mario Gil and William Moloney were obtained as a result of my cross-motion, and are merely cursory and unable to be consented-to. I shudder to think, now that we know that there was fraudulent undisclosed self-dealing going on by Rosenberg et al, the prior judicially settled accounting of maybe over $20,000,000 may also be tainted with fraud and self-dealing.3. Over four years ago, on 12/6/99 I terminated Garry & Ludwig for cause, in writing, as counsel to the receiver. They violated their fiduciary obligations and were caught attempting to steal estate assets by churning legal fees (Ex. 10). It was a dark day in the annals of law when in December 1999 Garry & Ludwig memorialized their obliteration of the necessary partition between politics and the Court after judge-birth, be she appointed or elected.4. The fact that politics, aka democracy, is far better than tyranny is not in dispute. It is also beyond dispute that it is a good thing for society that a judge-candidate is mainstreamed through the political process to avoid extreme judicial activism; see the Constitutional grant of �Advise and Consent� power to the Senate, prolonging the political process for nominating federal judges so as to sensitize them to concerns of all 50 States. Indeed, see the benefit the Republic has received from Justice Sandra Day O�Connor�s prior public service in the legislative branch as she fashions nuance-sharp narrow opinions to critical issues of the day. Not since society abandoned �Trial by Combat� for �Trial by Jury� has the law been more shamefully assaulted in modern times than in December 1999 with Garry & Ludwig�s letter (Ex.12).5. Illegal bankruptcy per the AAG, as Receiver is not a Party, etc. The shadow of that dark day is still with us, and what injury they caused still needs additional reforms to restore public confidence in its courts. What facts were unavailable for our Inspector General and the Birnbaum Commission is now available for further edification and clarity in the present and pending, albeit fundamentally flawed, 1st-ever Final Accounting Motion by Douglas Rosenberg 3 years late, which seeks from the Court approval for all of the shameful misdeeds, while hiding from the Court all receipts and documentation, including disclosure of Douglas Rosenberg�s undisclosed conflicts of interests, which if produced, would probably bar Court approval, and perhaps, order a surcharge. Perhaps, equally troubling as escrow defalcation is the repeated and arrogant violation of the rule that before a receiver�s lawyers can get paid, the Court and Court alone must review and approve the services and billing rate prior to payment. Here, Rosenberg violated not only that rule, but even Chief Judge Kaye�s Rule 36.1 and CAJ Lippman�s 3/9/00 Memo so as to illegally hire and pay Garry & Ludwig. Only an evidentiary hearing will expose these substantial issues to the disinfectant of judicial sunshine, given Rosenberg�s control of the now-private Cemetery, documented �double dipping�, Mario Gil�s heretofore undisclosed M.G. Construction Company getting paid during the receivership, and inter alia Desmond�s admission of Cemetery Vehicle usage without reimbursement. The unbridled greed, churning of legal fees, self-dealing and arrogance of Garry & Ludwig, Douglas Rosenberg, John Desmond, Mario Gil, and inter alia William Moloney are all here, including a defective election that permits Douglas Rosenberg to do indirectly what he cant do directly: convert his receivership and managing agent status into permanent control of Cypress. Also documented is the slick manner by which the Conflict-Free rules that our able Attorney General Spitzer has been enforcing from �Wall Street� to �Main Street� were evaded by Douglas Rosenberg and his erstwhile associates and counsel. The record is complete with objections by the AAG to Rosenberg�s counsel�s tactics of delaying the election and creating issues. Indeed, The AAG wanted Richard Fishman, Executive Director of NYS Cemetery Board as the Election Inspector and Chair at the Election; Rosenberg�s lawyers objected, and wanted and got JHO Silverman to preside over the election. In fact, annexed hereto as Ex. 33 is the AAG�s Letter of 9/12/00 to the court that the 2nd Circuit Court of Appeals does not allow a Receiver to file for Bankruptcy, when Rosenberg, after allowing his lawyers to churn legal fees and get paid without the court�s prior necessary review and approval, wanted to do just that so as to also pocket whatever savings were obtained through Bankruptcy as he intended to steal and swallow the entire escrowed-Cemetery and control the new private Cypress, which he does with at least 3 out of 5 votes on the Board with a tainted election. On 9/19/00, Rosenberg, a mere receiver and not a �party� or �owner�, filed for bankruptcy with Lazarus & Lazarus as his lawyers. It is noted that on 5/15/01, Ex. 34, the AAG raised issues for the Court: 1. One deed one vote; one grave one vote; 2. Validity of Desmond Proxies; 3. Joint owner issue; ...6. can proxies be voted in favor of a cemetery employee notwithstanding by-law prohibition?..6. Dark Day; and G&L�s falsely shifting blame when caught. On 12/20/99 Garry & Ludwig, as officers of the Kings County Democratic Committee, having failed to intimidate the undersigned court-appointed fiduciary into retracting the 12/6/99 Termination-for-Cause Letter with political pressure from many sources friendly to them, wrote a letter to Law Chairman Michael M. Freeman and declared a political war where the �bounty� was the courthouse itself, and their stated quid pro quo admission that without court appointments they will no longer do any free legal work for the Party (Ex.12). They went on to state:�Mr. Batra claims that our firing was as a result of our firm�s lack of competent legal representation. As you can personally attest, our firm is well recognized as an authority in the area of Receivership Law. I can assure you that any such claims are merely a transparent attempt to deflect attention from Mr. Batra�s true motive of obtaining both legal fees generated from these matters in addition to collecting a Receiver�s commission from said cases.� ...�I must reiterate that Mr. Batra is merely attempting to secure legal fees for his own firm while continuing to collect commissions on these matters as well.�They went on to bitterly complain that �...[Batra is] an outsider�;They admitted their state of mind as to quid pro quo (free party-work only with court-appointments) while obliterating the necessary partition between a political party and the Court, to wit:�To continue on in our capacity as Law Committee members in light of Mr. Batra�s inexcusable actions would be far too much to expect, given the fact that the Organization has permitted an individual with no party position or history in this County to dictate how our Organization is run.� ( i.e. dismissal them from a court-appointment caused their resignation; hideously confusing the court to be part of the �Organization�).
The fact that I had a non-negotiable fiduciary duty owed to the Court that compelled their termination as receiver�s counsel was of no moment to them. It appears they illegally saw the Court as a piece of property that they owned or controlled or could inherit due to their political status.7. Four years later, the truth emerges in Cypress itself. Garry & Ludwig had falsely transposed their own greed on the undersigned to shift blame away from being caught in trying to steal by churning legal fees. The record is now clear. After the Court denied the motion to remove the undersigned as receiver on 2/10/00, Rosenberg got himself substituted by the Court by offering to self-police without a fee over and above his $200,000-a-year Managing Agent fee. One of Rosenberg�s 1st acts as Receiver on 3/3/00 was to illegally pay Garry & Ludwig�s bill of 2/7/00 with incredulously enhanced legal fees that were hidden from then-Receiver Ravi Batra, without regard to the fact that he could not do so, given a. they were fired for misconduct and b. the self-proclaimed Receivership Law Experts, Garry & Ludwig, knew you had to have the bill reviewed by the Court before getting paid! It gets worse. Garry & Ludwig are brought back into the case by Rosenberg, despite the seizure they gave the legal profession, and issued yet another bill, dated 7/14/00, for services rendered after CAJ Lippman�s 3/9/00 Memo barring them from any court appointments. Rosenberg paid them again with consent from attorney Lazarus. G&L were illegally paid $16,957.72 that we know off. What if any payment they have received from the now-private Cypress remains to be seen. The Rules of Chief Judge Kaye and CAJ Lippman were ignored and violated by Rosenberg and G&L, so G&L could make money. That is not just greed; its illegal greed.
The Law applies in Brooklyn as well.8.The Gershenoff Court held that �[W]hen Justice Garson consented to act as an attorney in fact, he became a fiduciary. A power of attorney creates a fiduciary relationship between principal and agent (Matter of Roth, 283 AD2d 504 (2nd Dept 2001), Mantella v. Mantella, 268 Ad2d 852 (3rd Dept 2000), and Guardianship of Kent, 188 Misc.2d 509 (Sct Dutchess Co., 2001)). As such, [the Agent] had a duty to act with the utmost good faith in accordance with the principles of moral fidelity, loyalty and fair dealing (Semmler v. Naples, 166 AD2d 751 (3rd Dept. 1990), app. Dismissed, 77 NY2d 936 (1991)). That duty, as far as it relates to this proceeding, includes accounting for all of the withdrawals made from Ms. Gershenoff�s accounts (Guardianship of Kent, supra). The right to an accounting is premised on the relationship of the parties. There is no requirement that there be any allegation of wrongdoing (Morgulas v. Yudell Realty, Inc., 161 AD2d 211 (1st Dept. 1990)). However, the burden of establishing the legitimacy of all of these transactions lies with the fiduciary (Gordon v. Bialvstoker Center and Bikur Cholim, Inc., 45 AD2d 692 (1978); Sepulveda v. Aviles, 308 AD2d 1 (1st Dept. 2003), and it is the failure to establish the legitimacy of these transactions that renders the fiduciary liable. ...As a fiduciary, Justice Garson has a duty to account for the monies he withdrew from his aunt�s accounts; that is the standard by which he is being held to account, and to the extent that he has been unable to do so, renders him liable. The Court concludes that Justice Garson has breached his fiduciary duty in that he has failed to account for the funds at issue in this application, and that he is liable to Ms. Gershenoff�s estate for the amount unaccounted for.� NYLJ 1/5/04 p.18 col 1.9. Rosenberg, and BPC and its employees are fiduciaries. When Douglas Rosenberg and BPC agreed to become the Managing Agent in 1995, BPC and all of its employees were fiduciaries. When Rosenberg agreed in February 2000 to self-police as a Receiver also, he personally became a fiduciary, while BPC remained a secondary fiduciary.10. Rosenberg and BPC have not properly accounted for the currently pending disbursements of over $16 million. The pending Rosenberg Motion sought to judicially account for over $10 Million on the basis of 2 pages of monthly recap of disbursements. This is wrong, and inadequate. After my Cross-Motion was filed with the Rosenberg materials dated 10/24/03, with reservations as is clear from the alternative relief requested in Branch 1 of the cross-motion, on 12/17/03 Rosenberg�s counsel �back-up� was received after a Stipulation was made on 12/9/03 wherein Stanley Shapiro admitted that he had not served anyone, including the court anything other than the 2-pages. In fact, the �back-up� was served to the Court on 12/18/03.11. The Rosenberg �Back-Up� is nothing more than a computer run and is objected-to; not a single receipt, invoice, or check is attached or produced. Over $16 million has been spent by Rosenberg, replete with undisclosed self-dealing, since 12/1/98 to 2/28/02, and all we have is a computer run. This in inadequate. The self-dealing requires proper and complete disclosure in a timely fashion, not after the fact, and cursory at that. Rosenberg has violated his fiduciary duties. He must be made to properly account; disclose his self-dealings which he has as yet not done, as well as those of his employees and agents.12. Rosenberg violated his duty to Receiver-Ravi Batra when Rosenberg allowed M.G. Construction to get paid by the receiver without disclosing that Mario Gil Owns it. Littered throughout the Rosenberg computer run, masquerading as �back-up�, are payments to M.G. Construction, Mario Gil, William Moloney, and others. Now with heightened knowledge and awareness of the heretofore undisclosed conflicts that were forcibly obtained after I filed my cross-motion, the three Conflict of Interest Forms attached as Ex. 6 to the AG�s Opposition papers make clear that I, as a receiver, was fraudulently misled by inter alia Rosenberg. At no time did Rosenberg tell me, while I served as a Receiver that Mario Gil owned MG Construction; only that Mario Gil was a long-term Cemetery employee. Now, I want to know why was Mario Gil getting paid in addition to salary, separate checks in his own name as well as for M.G. Construction. At no time did Rosenberg tell me while I served as a receiver that William Moloney was hired by Rosenberg to act as Rosenberg�s agent to obtain proxies and steal the Cemetery out of escrow. At no time did Rosenberg tell me even the cursory information contained in all the Three Conflict Forms produced by the AG. The fact that Rosenberg apparently used Cemetery�s assets to give undisclosed patronage to his employees and associates, while hiding it from the court-appointed receiver to assemble an illegal team to get proxies and even become Lot Owners so as to control the eventual private cemetery is the grossest breach of fiduciary duties. Its worse then robbing the bank; they stole the bank. It gives new meaning to an inside job.13. Batra�s accounting period. A brief review of the Rosenberg Computer run, annexed to Batra�s cross-motion as Ex. 21 shows payments in addition to any salary checks written by ADP:Mario Gil or his now-disclosed M.G. Construction Co.12/8/98 Mario Gil $1108.07;12/22/98 � $3002/2/99 � 3002/23/99 � 118.484/6/99 � 3004/27/99 � 5006/2/99 M.G.Con 5256/23/99 Mario Gil 127.748/17/99 � 269.109/7/99 M.G.Con 5,6609/23/99 � 4,00010/4/99 � 6,30010/13/99 Mario Gil 20010/19/99 M.G.Con 7,00011/3/99 Mario Gil 20011/9/99 M.G.Con 8,40012/1/99 Mario Gil 1,362.0112/29/99 � 30001/25/00 � 1,0002/15/00 � 551
Mario Gil, assisted by BPC�s Rosenberg, illegally and fraudulently pulled out during Batra�s accounting period $38,521.14: $31,885 as M.G. Construction, and $6,636.40 as Gil.
William Moloney: undisclosed as an agent of Rosenberg to help take illegal control of Cypress11/23/99 W.M. 20012/29/99 � 645.901/11/00 � 200$1,045.90
All these above payments were signed off by the undersigned receiver in direct relation to the fraud and deceit perpetrated upon me by Rosenberg�s willful non-disclosure of Mario Gil�s self-dealing that was permitted by Rosenberg, but unauthorized by the Receiver or the Court. Similarly, undisclosed, was William Moloney�s role in assisting Rosenberg to take illegal control by giving patronage to his team members assisting him in taking the receivership estate private. I object to these payments after reviewing Exhibit �6" of AAG Pigott�s Opposition Papers of 12/15/03. This self-dealing was and is unauthorized.
14. Rosenberg�s Accounting period. A brief review of Rosenberg�s Computer run forcibly taken from Rosenberg as to his accounting of over $10 Million spent (which no other party on the service list was served as confirmed by Mr. Shapiro in the 12/9/03 Stip as well as in-Court on 12/18/03) shows payments in addition to salary checks:Mario Gil or his now-disclosed M.G. Construction Co;undisclosed agent of Rosenberg to help take illegal control of Cypress4/6/00 M.G.Con 4,9504/12/00 Mario Gil 3005/10/00 � 4506/6/00 � 4007/20/00 � 139.568/24/00 � 3009/11/00 M.G.Con 12,5009/14/00 Mario Gil 20010/3/00 � 2,224.0110/10/00 � 2,741.9410/17/00 M.G.Con 3,90011/1/00 Mario Gil 617.1811/1/00 M.G.Con 1,15011/14/00 � 7,22511/21/00 Mario Gil 30011/29/00 � 638.44� � 300.5712/4/00 � 655.5212/28/00 � 1,0452/15/01 � 1,8003/1/01 � 1,5403/7/01 � 232.253/27/01 � 675.754/12/01 � 754/18/01 � 754/26/01 � 1,413.905/3/01 � 720.365/10/01 � 382.26� � 150� M.G.Con 1,587.195/18/01 Mario Gil 790.485/24/01 � 2,104.236/8/01 � 404.656/14/01 � 384.746/21/01 � 459.936/28/01 � 1,875.897/12/01 � 258.407/19/01 � 256.648/1/01 � 644.448/15/01 � 138.359/6/01 � 442.1210/4/01 � 388.2610/18/01 � 671.6610/24/01 � 249.4911/1/01 � 111.1911/14/01 � 183.8011/20/01 � 272.62� � 495.65(there are some strange payments of 900,900, 1000 on 11/30/01 were these to buy-back graves/lots or obtain proxies?)12/6/01 � 307.6212/11/01 � 8001/18/02 � 209.1001/24/02 � 295.012/1/02 � 317.032/26/02 � 588.123/1/02 � 249.40
Mario Gil illegally took $61,587.75: $30,275.56 as Gil plus his M.G. Construction Co. took an additional $31,312.19. The grand total of the Gil �taking� during the current accounting periods of Batra and Rosenberg is $100,109.15: $36,919.96 as Gil and $63,197.19 as M.G. Construction!
William Moloney: undisclosed agent of Rosenberg to help take illegal control of Cypress5/24/00 W.M 309.5112/4/00 � 30012/28/00 � 3001/31/01 � 3003/1/01 � 3004/12/01 � 3004/26/01 � 3006/14/01 � 362.717/5/01 � 3008/1/01 � 30010/5/01 � 30011/14/01 � 50012/13/01 � 3001/3/02 � 300$4,472.22
As a point of interest 5 car lease payments being made, not 2 during Batra�s tenure6/1/01 Chrysler $367.91; Gold Key $384.99; GMAC $349.89; GMAC $399.55; GMAC $473.53. For whom were these vehicles leased, and were they court-approved?
Un-reviewed and Un-Approved-by-Court payments to receiver�s lawyers who looted the estate before taking it into bankruptcy:3/3/00 G&L 8,607.967/13/00 Lazarus 12,972.258/2/00 Ellman 44,965.768/8/00 Lazarus 15,664.148/11/00 G&L 8,349.769/1/00 Ellman 50,858.669/11/00 Ellman 23,923.689/11/00 Lazarus 8,028.059/13/00 Lazarus 135,000.009/14/00 Ellman 57,008.159/18/00 Ellman 11,139.259/18/00 Lazarus 8,409.50$384,927.16
That is over $360,000 pulled out in 2 months! (Batra resigned as Counsel on 5/10/00, until successor was appointed).
Cypress filed for Bankruptcy on or about 9/19/00 (after the lawyers cleaned out the Cemetery, with Ellman�s work automatically becoming worth zero to the estate as the Kirtman case would not be tried in Court, and the Bankruptcy benefit would flow to Rosenberg after he took the Cemetery private into his control. Did they disclose these preferential payments to the Bankruptcy Court and the Creditors? Is there Bankruptcy Fraud to boot? I certainly did not receive such notice or disclosure as required by the Bankruptcy Code. Why did Ellman run up the hours when they knew they would never try the case by filing for bankruptcy protection? Is that good faith representation expected of a fiduciary? No. The duty imposed upon fiduciary counsel, all of whom were court-appointed (except G&L which was ineligible for appointment), is to serve the client�s best need, not the lawyer�s improper desire to churn legal fees, as is obvious here. That is separate and apart from the purposeful, repeated lack of submitting any legal fee bill for court review as required, opting, instead for an orgy of plundering a cemetery under the �watchful� eyes of a receiver, Rosenberg, that coveted the Cemetery itself. An appropriate refund is required under the circumstances.
15. Why does Rosenberg fight the AAGs on who can chair the Special Meeting and the Voting Standard to be used? What standing does a non-party fiduciary have to raise any Voting or Procedural issues? What standing did he have to spend the estate�s money on his illegal desire to steal the escrowed-cemetery? The AAGs after serving their 1st and 2nd Report to the Court, annexed as Ex. 27 and 28, further efforts were required by the AAG to promptly move the Cemetery into private hands. Rosenberg, as Receiver, had no standing to object to any substantive issues. Neither he nor his employees or agents could acquire graves or lots, as it violated basic principles of moral fidelity, loyalty, and good faith and fair dealing owed to the Court or to Cypress, their employer, as the case maybe. Yet, it occurred. AAG Pigott wrote a letter on 11/17/00 to the Court; and again on 11/27/00 with motion papers, collectively annexed hereto as Ex.35. The motion sought to expeditiously have a Lot Owners meeting so as to elect a Conflict-Free Board of Directors, and recommended NYS Cemetery Board Executive Director Richard Fishman to serve as an Election Inspector and to Chair the Meeting (see Branch 2e of said motion). Surprisingly, and without standing, Rosenberg�s counsel Lazarus fought the AAGs on the standard for voting, and �strongly opposed� their �one vote per deed� standard (see Lazarus� affirmation of 12/15/00 at �6, annexed hereto as Ex. 36; it also includes Rosenberg�s Affidavit of 12/14/00). Question: why? What standing did a Receiver or his counsel have on this issue? None, of course, except, that if they had been surreptitiously buying lots or obtaining proxies to steal the cemetery when it came out of receivership, then they have a very strong interest. Further, what lawful interest could a receiver have to depose Barbara Davis, other than to block her from utilizing her voting power as a consequence of being a Lot Owner and claims of being a descendant of the Founder of Cypress Hill Cemetery; annexed hereto as Ex. 37 is a signed letter by Barbara Davis that is in the County Clerk�s file. On 12/18/00 AAG Pigott issued a Reply Affidavit along with a cover letter of 12/19/00, annexed hereto as Ex.38, and objected to the delays caused by Rosenberg (see Pigott at �3); he even objected to Rosenberg�s keen interest in the election process and who gets to vote process (at�7, 9, 11, 13), and cited NPCL715 as to self-dealing, NPCL717 as to fiduciary duties. Then, on 01/26/01, AAG Pigott issued yet another letter with Supplemental Affidavit to the Court to put before it the desire by CJ Duberstein to move the Cemetery into private control. This Motion resulted in a strange Stipulation between a plaintiff-AG and a non-party court-appointed Receiver, without any standing but with unlawful covetous intentions in breach of fiduciary obligations, to wit: annexed hereto as Ex. 40 are two versions of a Stipulation and Order signed by the Court, complete with jurisdictional defects that render it fatally and fundamentally defective. By the way, Rosenberg�s lawyers all got paid to fight the AAGs, with the sole benefit to Rosenberg and to the detriment of the Lot Owners. Did I mention that after review of all opposition papers, not a single Order of a Court has been produced that permitted Rosenberg to pay his lawyers to help him gain illegal control of the now-private cemetery. No benefit accrued to the Lot Owners, and there were no parties left in the litigation. The wolf was put in charge of the chicken coop. The wolf won.16. Troubles from the beginning to the end. Annexed hereto as Ex. 41 are copies of documents found in County Clerk�s file, with the exception of the 1st page, which was produced by Martin Riskin (and correlates to Batra�s Ex. 30):a. 1-page copies of checks to Receiver Richard Goldberg for $20,515.78, after BPC reduced their inflated receivership bills by almost 1/3 given charges for work not done etc., including G&L�s legal fees, and ironically, a check to Bleakley Platt as bank�s foreclosure attorneys (they also represented Kirtman v. Cypress, which Ellman represented for six months before filing for bankruptcy as expected, and got paid over $240,000);b. 2 page letter with, dated 9/30/95 by Donald Davis; request for Lot Ownership records un-produced;c. a 2-page letter of 1995 to receiver Jaffe, stating that �New York State sued to take control of the Cemetery�, and named Miles Trust of 1000 Lots with 20 graves per lot. �You were placed in temporary control of the assets of the Cypress Hills. As of date no accurate Lot Accounting has ever been done by you�;d. AAG Pigott�s letter of 3/29/01 re Order of Reference (this is the one tainted with a stipulation by non-party Receiver illegally acting as a party, and allowed to stipulate, as if he represents all Lot Owners);e. 3/29/01 Lazarus�s reply in objection;f. Notice of Appeal taken by Allen Schmidt, proposed intervenor-appellant, as the 2/2/01 Stipulation and Order, without notice to, or jurisdiction over, Lot Owners and violative of the Corporation�s By-Laws and/or the Certificate of Incorporation;g. AD 2nd Dept Docket # 2001-02818: bare OSC declined to sign by J. Townes on 4/3/01;h. 6/26/01 AAG Pigott�s letter to JHO Silverman regarding proxy solicitation by BPC employee Desmond, as well as Cemetery employees Mario Gil and William Moloney, and M and G Construction.17. Response to Opposition papers received from the AAG Pigott, Desmond and Cypress�s Richard Cea, Rosenberg�s Stan Shapiro, and Steve Ellman.A. The AAG is quite correct about standing issues; just not the way he uses it. In fact, the very standing issue he raises shows that the election held, with Rosenberg in-charge, was fatally flawed, as jurisdiction was never obtained over the Lot Owners, the members of the Cypress corporation, and hence, the 2/2/01 Stipulation Order is legally defective, as is the election that allowed an escrow agent, Rosenberg, to do indirectly what he cannot do directly: steal the Cemetery. My standing is clear. As to matters during my tenure as receiver, with my obligation to account, is my right to object when my Managing Agent lies, self-deals, and creates a cabal of well-fed associates who will do his illegal bidding. As to matters that I see as perpetrating a fraud upon the Court, much as Rosenberg perpetrated a fraud upon the undersigned court-appointed receiver, who as such represent�s the court�s independence, impartiality and integrity, I have standing given my service as Receiver who has as yet not been discharged and as an Officer of the Court, which obligation is perpetual and un-ceasing and is defined by the Court of Appeals as a �core� obligation of the profession, see Weider v. Skala. The Res Judicata argument must fail, as jurisdiction was never obtained over the Lot Owners by the AAG before the Stipulation and Election was conducted by putting Rosenberg in-charge in the first instance. Curiously, AAG Pigott objects to my accounting, an objection that I welcome, given the exposure now of the fraud perpetrated by Rosenberg upon me, when I was a receiver; however, the raw data that the AAG finds objectionable when proffered by the undersigned, but acceptable when proffered by Rosenberg is inexplicable, but of no moment as Rosenberg must be compelled in the alternative relief sought in Branch 1 of Batra�s cross-motion.B. Desmond and Cypress� Opposition. Desmond admits to: being a 1099 consultant-employee of BPC, while BPC was a fiduciary in control of Cypress, and also when Rosenberg, BPC�s president became a receiver to self-police; Desmond at Rosenberg�s request has worked for yet-another company, New England Management and paid by it, while using the Cemetery vehicle for which no credit has been given by BPC to the Cemetery as promised by Rosenberg to me (see Batra�s Ex. 6); Desmond being free to solicit proxies and buy lots or graves, and did so. Has he heard of fiduciary obligations of moral fidelity, loyalty and fair dealing? Is stealing a business opportunity that belongs to the estate or using insider information acceptable as fiduciary conduct? I think not. Using court-issued control for self-gain is improper. It is as improper as if a judge was to ask for a portion of the legal fee a lawyer earned in a case in a case assigned to, and tried before, her. See Peo. v. Barron. The election was fatally flawed as jurisdiction was never obtained over the Lot Owners, nor was the Certificate of Incorporation ever produced. In addition, since it was a Special Meeting, and the Conflict of Interest Forms were not mailed out with the initial Notice of Meeting, the Conflicts disclosure, even if of the waive-able variety, which I believe it is not, was legally improper and defective. As to Mario Gil whose fraud and deceit upon the undersigned as Receiver was assisted by Rosenberg and BPC, he is ineligible as he has breached his fiduciary obligations as an employee of the Cemetery by �double dipping� with his undisclosed ownership of MG Construction, as well as repeated additional payments, over and above that as a salary. All of which needs examination during an evidentiary hearing if the fraud upon the court and its receiver is to be objected-to by the Court as well as the receiver.C. Ellman�s 12/15/03 Affirmation only makes clear that he should not have received a single penny, as no Court ever ruled on his services, his rate, or the value of what he churned up before having the Cemetery go into to Bankruptcy and vitiating the value of what he had done to zero. He also admits to birth-defects in the Order of Appointment, claiming life before birth. A refund is in order. He did pull out over $240,000 real fast, and then bailed out with zero value to the estate. But its other peoples money, helpless dead ones at that; and that, is a breach of fiduciary obligations. Lazarus has filed no opposition papers.D. Rosenberg�s Opposition and the pulled-teeth Rosenberg Computer run. The accounting by Rosenberg, including his computer run masquerading as �back-up� and un-served to anyone until I demanded and objected. Having seen it, it is objected-to, as it does not pass muster. Not a single receipt. See M/O Gershenoff, supra. I remind Mr. Shapiro that our profession is a self-policing profession, which creates a non-negotiable duty. I have honored my duty. As to matters that occurred during my tenure as receiver, the standing argument is frivolous. Fraud upon the undersigned receiver by BPC�s Rosenberg, Desmond, and inter alia Mario Gil and his M.G. Construction is fraud upon the Court itself. Rosenberg has acted in a most base manner while boldly breaching his fiduciary obligations with casual and comfortable arrogance. Cultural change is indeed needed. The other argument is equally unavailing. Does Mr. Shapiro really want court appointees to hide what they have learned from the court that they are sworn to honestly and honorably serve? To do so would violate the trust placed by the appointing court in every appointee. No. I am duty bound to share with the Court whatever credible information I have that effects the Court�s comprehension of what is before it. Mr. Shapiro does admit to his error of not serving any of the persons on the service list with Rosenberg Computer run. A real stealth motion, albeit unintended. Mr. Shapiro also admits after the argument that he was wrong, as was his client Rosenberg, as to what I had been paid as receiver�s commission. I am glad they now accept the incontrovertible. It is quite disturbing to read Rosenberg�s self-puffery, trying to convert his fraud and deceit into honesty-in-fact. I reject such attempt. Just a review of M.G. Construction shows how Rosenberg cultivated a culture of corruption, wherein all of his cabal, profited mightily from the defenseless dead.Wherefore, the Rosenberg motion should be denied, the undersigned�s cross-motion granted with Branch 1's alternative relief requested as I can not in good conscience negotiate into the stream of justice Rosenberg�s Computer run as a basis for judicially settling my accounts, when it is clear to me that he defrauded the estate using inter alia M.G. Construction company. An evidentiary hearing is required, as are the Orders to compel Rosenberg, and his erstwhile employees, agents and contractors. The great, honest, and hardworking people of Brooklyn deserve more from their Court Appointees, while the Court expects and will tolerate nothing less that actual honesty and integrity from every appointee. Now, a new private board of directors is apparently guilty of conflicted conduct in the extreme. Therefore, this Court needs to review this entire matter through an evidentiary hearing so that the facts will become known and the issues of substantial misconduct addressed.Dated: January 5, 2004Respectfully,Ravi Batra, Esq.3rd Temporary Successor Receiver, Cypress .III. Batra�s Sur-Reply:Index #38143/93
Sur-Reply Affirmation in Support of Ravi Batra�s Notice of Cross-Motion pursuant to leave granted by the Court on 1/27/04 to do so
Filed on 2/6/04
RAVI BATRA, an attorney duly admitted to practice law in the state of New York, affirms the following under the penalty of perjury:1. This Sur-Reply is served and filed pursuant to the leave granted by the Court on January 27, 2004, and limited pursuant to it terms, to wit:�I have received your letter dated January 27, 2004 objecting to the supplemental submissions of mr. Rosenberg and Mr. Shapiro, The court hereby grants all parties until February 6, 2004 to submit any additional papers in opposition to those submissions. As is the rule with all sur reply�s the papers should specifically only address issues raised in the supplemental papers.�(emphasis added).
2. Unless the legal standard of review has become �see no evil, hear no evil�, to paraphrase Mahatma Gandhi, this Court is confronted with a magnificent opportunity to restore public confidence in the well-deserving judiciary, while deterring those who seek to defile the rule of law for self-gain after being invested by the Third Branch to a position of power and control. It is after all the Third Branch�s responsibility to define �merit�, �wrong� and �right�, while the other two branches reach a collective consensus, a latter-day version, albeit mercifully democratic and �separated�, of �might is right.�3. This Affirmation, unlike the one submitted by conflicted counsel Richard Cea, counsel for both John Desmond and Cypress Hill Cemetery, will address those submissions, for which leave is granted. No other papers have been received. The undersigned�s January 27, 2004, Letter-Affirmation, with exhibits, is included herein by reference in its entirety, and deemed as Batra�s exhibit �42�.3. Cea�s above-described submission is objected-to as it violates the limitation imposed by the court in granting leave to file a sur-reply, as well as Zuckerman v. City of New York, 49 NY2d 557, as he affirms matters not within his personal knowledge (e.g. �4 �His relationship to MG Construction was always disclosed.�). I do however, appreciate his admission that I did not know about Mr. Maloney (George or William) being hired by Rosenberg during my tenure as receiver; and it is up to Rosenberg to explain his deceit upon his principal, Receiver-Batra. It also seems to have been not served on all those that were to be served. Cea, it appears, has taken the opportunity to merely apply �a good offense is the best defense� and create a smokescreen of client-based animus intended to befuddle the court�s inquiry into the very substantial matters of concerns, not the least of which are:a. jurisdictional defects that vitiate the cemetery election (also see footnote 3 in Batra�s reply papers, for the identical mistake made in viewing a Receiver as a party-in-the-main-litigation, rather than a �neutral�, just like the appointing court (Garry & Ludwig made the same error in asking for an assignment of the cause of action to the receiver, Batra, rather than a general release to terminate the Kirtman case);b. violating our Attorney General�s Conflict-free rules;c. unambiguous violation of the Rules of the Chief Judge and Chief Administrative Judge�s March 9, 2000 Memo in the then-immediate re-hiring of Garry & Ludwig by Rosenberg, despite prior termination-for-cause and breach of their fiduciary obligations owed to the court through receiver-Batra;d. Rosenberg, as receiver, self-authorizing the payment to his firm, BPC, the $17,500-a-month managing agent fee without prior court approval allowed Rosenberg to evade the $5000-a-year rule that bars a potential fiduciary from being appointed by the court to any new assignments, absent a waiver of �continuity of service� or �unusual circumstances� issued by the court consistent with the part 36.1, and if Rosenberg or BPC has received any court appointments since he became receiver on 3/1/00 and after CAJ Lippman�s Memo of �secondary fiduciaries� without disclosure of being above the $5000-a-year rule, there is potential violation;e. allowing lawyers to churn legal fees with a frenzy, as if the Cemetery was consenting to be raped (consent that is legally unavailable as a matter of law, no matter what Rosenberg said or did), and purposefully evaded the mandatory court supervision and approval, and paid the lawyers in violation of law and Court Rules, including those barred as a matter of law, Garry & Ludwig;f. payment of self-dealing and conflicts of interests that have permitted a court-appointee, Rosenberg, using his employees/consultants, inter alia Desmond, as well as the cemetery�s employees, inter alia Mario Gil and �William� Maloney (and all of their family members hired to hopefully not no-show jobs) to defalcate the trust placed in Rosenberg�s hands, and take the Cemetery private under their collective control, while ignoring elementary principles of trust and betraying the institutional interests of justice; and inter aliag. fraud upon the court, calculated to allow politically-connected individuals to simply walk the cemetery out-of-court control and into their private hands for self-gain.
Rosenberg and Shapiro Submission of 1/20/04.4. Rosenberg�s 1/16/04 Affidavit, notarized by his ex-mother-in-law Josephine Viti, makes certain sworn-to assertions (I will try to keep the response brief as possible). Rosenberg starts with bravado, well suited to a poker player hoping to bluff his way out of a huge mess; see his opening line at �2 : �outrageous false accusations�; �A few simple facts will demonstrate the gross absurdity of Batra�s reply affirmation.� He continues with his specifics:a. at �3 are the simple facts Rosenberg speaks of: �During the time Batra was receiver, Batra himself was the one who signed all the checks issued for cemetery expenses from the receiver�s accounts.� (Emphasis in the original).
Response: This is not a blanket truth. While I instituted a protocol of having Rosenberg send me back-up for the checks being submitted for signature, not all checks had back-up. The agreed-to exception was salary checks being paid by a payroll service, for which I signed only �lump amount� checks that transferred money from one cemetery account to another. That is why I had at the beginning of my service as receiver asked for employee lists, pre-receiver, and then per-each-receiver to ferret out any misconduct; It was understood that any employee changes would then be sent to me for approval, and there were none. Hence, Rosenberg hid his employee changes, to suit his personal selfish interests, in a core violation of the principles of trust and his fiduciary obligations owed to me and the Court;b. continuing at �3: �Not only was Batra responsible for the expenditures he issued, but of he was further responsible for keeping the records of the checks he issued.�Response: I was responsible, and allowed to rely upon representations made to me by my then-counsel Garry & Ludwig, as well as my managing agent, BPC and its president, Rosenberg. It only became clear as to the manner of deceit when opposition papers to my cross-motion disclosed the incompetent and incomplete Conflict of Interest forms used to make an incomplete and inadequate disclosure of conflicts, some non-waiveable, to an audience, jurisdictionally incomplete and inadequate. The checks I signed, I relied upon Rosenberg�s direct knowledge, and his, as Garry & Ludwig put it, who owes �unfettered loyalty� to his receiver, Batra. On the point of keeping records, why then did Rosenberg, as receiver, not produce a single receipt or back-up to the court for his 1st ever accounting, that is almost 4 years late (he became receiver on 3/1/00). Leaving that issue aside, I averred to the court, knowing what I have recently become aware of, or �understood� courtesy of an unrelated colleague zealously doing his job, in Branch 1 of my cross-motion that I was uncomfortable with what Rosenberg had provided on 10/24/03, and instead moved in the alternative to compel production of proper material. After receipt of opposition papers, it is obvious, the receipts are not the limits of the inquiry. Indeed, an evidentiary hearing is required to flush out all conflicts of interest that Rosenberg and his �crew� are awash in, and I fear, it is not all legal.c. at �3: �BPC facilitated this for Batra by supplying him with a copy of each check and a copy of the bill being paid by each check. The �back-up� Batra purports to call for in his reply affirmation in point of fact has been in Batra�s possession from the start, and of course was his fiduciary obligation to maintain.�
Response: The last sentence is a standard that Rosenberg asserts, but is unwilling to follow, despite a cross-motion, and proffers up the same lame computer run he gave the undersigned on 10/24/03. His computer run is not back-up, even though he shared it only with Batra on 12/18/03 and with the court on such date, keeping all other service-parties in the dark; a defective motion by Rosenberg, if there ever was one, procedurally, as well as substantively; no prompting has forced Rosenberg to disgorge his records and his conflicts for the court to focus some of its �sunshine� upon. My difficulty is that I will not aver to Rosenberg-created or transmitted documents as truthful anymore. His deceitful manner in how he defrauded me as receiver by keeping me in the dark about MG Construction or Maloney or family members being added to the payroll, hopefully not no-show-jobs by Desmond, Maloney and Gil all leads to one conclusion: mere averment by Rosenberg does not a predicate make for judicial settlement of Rosenberg�s accounting, nor Batra, as Batra�s is based upon Rosenberg and his defrauding Batra. As a point of clarity, BPC only sent me copies of checks and bill-copies upon my direction and imposition of that protocol, until, sometime later, I imposed a higher protocol: bills being �approved� by Rosenberg and not merely �posted�. Now, with specific information of Rosenberg�s deceit and collusion with Desmond, Gil and Maloney, the �approved�-by-Rosenberg is unavailing to permit me to aver to its veracity. Direct evidence is needed, and to be tested. The best evidence rule is clearly implicated here, given the exposure of Rosenberg�s orgy of self-dealing and deceit of his Receiver, Batra, and the Court.d. at �4 Rosenberg hides behind the fact that the books he hides from the court, were audited, and hence, good enough.Response: False. Just look at Parmalot and phony bank statements showing 5 billion dollars in non-existing accounts. Look at Enron. Rosenberg, with his own deceit a la MG Construction and changes to Cemetery�s employee roster without proper disclosure worthy of notification of conflicts, and the assemblage of his �crew� to take surreptitiously take Cypress into his private control in plain sight bespeaks of casual and comfortable misconduct. One wonders, where does this comfort level arise? It can not be from breaching fiduciary obligations or engaging in fraud or disloyalty. It must emanate from political connections, which are of no moment to the rule of law; even in Brooklyn.5. In conclusion, a court appointment ought to be and must remain a badge of honor, where payment as acting so is incidental to same. I estimate I have rendered services to the Court in excess of $500,000 on a time-basis since I agreed to accept his assignment in May 1998 to-date; more than half have been to preserve and protect my right to honorably discharge my fiduciary obligations owed to the court from politically connected people who think themselves immune from the rule of law because of who they are and whom they know.6. The Rosenberg motion, it is respectfully submitted, must be denied, and it is respectfully requested that the cross-motion be granted in its entirety (and as to the first branch, in the alternative).Dated: February 6, 2004Respectfully,Ravi Batra, Esq.3rd Temporary Successor Receiver, CypressThe Law Firm of Ravi Batra, P.C.The Batra Building142 Lexington AvenueNew York, NY 10016212-545-1993.
IV. �Un-settled� Court Transcript of Argument on 12/18/03:1 SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS - CIVIL TERM - PART 162 ----------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK,3 by ROBERT ABRAMS, as ATTORNEY GENERALof the STATE OF NEW YORK,4 PLAINTIFFS,
5 -against-
6 CYPRESS HILLS CEMETERY, a NEW YORKNot-for-Profit CEMETERY CORPORATION, and7 GERALD EGAN, WILLIAM TODD, NICHOLASBARATOFF, CORNELIUS H. BOYLE, JR. and8 ALBERT THOMPSON, as DIRECTORS OFCYPRESS HILLS CEMETERY,9DEFENDANTS10 ----------------------------------------------X
11 Index No. 38143/93 360 Adams StreetBrooklyn, New York12 December 18, 2003
13 B E F O R E:
14 HONORABLE LEON RUCHELSMAN,Justice15A P P E A R A N C E S:16STATE OF NEW YORK17 OFFICE OF THE ATTORNEY GENERALELIOT SPITZER18 120 BroadwayNew York, New York 1027119 BY: JAMES ROBERT PIGOT, JR., ESQ.
20RAVI BATRA, ESQ.21 142 Lexington AvenueNew York, New York 1001622
23 WINGATE, KEARNEY & CULLEN32 Court Street24 Brooklyn, New YorkBY: RICHARD J. CEA, ESQ.25
es
2
1ZEICHNER ELLMAN & KRAUSE LLP2 575 Lexington AvenueNew York, New York 100223 BY: STEPHEN F. ELLMAN, ESQ.
4STANLEY SHAPIRO, ESQ.5 Attorney for Douglas Rosenberg
6 GARRY & GARRY, P.C.404 Park Avenue South7 New York, New York 10016BY: THOMAS J. GARRY, ESQ.8
9
10ESTHER STERNLICHT, RPR11 OFFICIAL COURT REPORTER
12
13
14
15
16
17
18
19
20
21
22
23
24
25
es
Proceedings 3
1 THE COURT: Basically we have all the
2 appearances, and this is the People of the State of New
3 York by Robert Abrams against Cypress Hills Cemetery. And
4 I believe all the papers that need to be submitted in this
5 motion have been submitted to the Court.
6 MR. BATRA: No, Your Honor. We had made a
7 stipulation on December ninth, asking that any opposition
8 papers to my crossmotion would be received in hand no later
9 than Tuesday evening, the 16th of December. I received
10 papers from the Attorney General's office timely. I have
11 not received papers from -- I believe I got papers from
12 Mr. Richard Cea who represents John Desmond and the
13 cemetery at the end of the day on Tuesday, but by fax and
14 they were incomplete, and we had a Fed Exed copy yesterday.
15 But the papers from Mr. Rosenberg, who was the original
16 movant, I've just been handed the papers in hand. And I
17 understand that it's the holiday, and Stan Shapiro
18 certainly told me he had other matters that were taking his
19 time, but in knowing that I had not gotten what I was
20 supposed to get in a timely fashion, I prepared the
21 application that I have in writing. So it's a little bit
22 lengthy and it'll give the Court a little bit of a flavor,
23 a road map, of where we're going and what the issues are,
24 which I've handed up to the Court and I've handed a copy to
25 every counsel who's here.
es
Proceedings 4
1 So I have an application to make. Given the fact
2 that papers have, A, not been submitted -- I understand as
3 of yesterday that there were some papers that Mr. Ellman
4 was submitting. I haven't gotten them. And I'm not
5 suggesting anyone who doesn't want to submit has to submit,
6 but if they are submitting, then certainly I should be
7 getting them and getting them in a timely fashion. And so
8 I don't have everything.
9 THE COURT: Is there anybody else that's going to
10 submit any other papers?
11 MR. SHAPIRO: Your Honor, there is one other
12 submission if Your Honor wants it. This is a back-up of
13 the individual documents which was referred to in Mr.
14 Rosenberg's moving -- Mr. Rosenberg's accounting affidavit
15 as Schedule B-1. It had not been copied. It was really
16 intended to be just for, if anybody wanted to see it to be
17 made available because of its size.
18 THE COURT: Okay. Except for that everything has
19 been submitted. Basically I have all the papers. If
20 anybody wants to say anything in regard to the motion, they
21 can say it now, and if anybody wants to submit any other
22 papers, which I don't see what for, they could ask for the
23 application now.
24 MR. BATRA: Your Honor, I would like to address
25 the Court as to both issues.
es
Proceedings 5
1 THE COURT: Okay.
2 MR. BATRA: In fact, my application subsumes part
3 of my objection. One, just for the record, I do want to
4 confirm that pursuant to the stip of December 9, 2003,
5 Mr. Shapiro had confirmed that he had not served his motion
6 with one of the critical exhibits which is the back-up. I
7 actually did get it yesterday afternoon. After I made a
8 cursory review of this, I don't know if any of the other
9 persons who were entitled to get it got it. Leaving that
10 issue aside, I can tell you that I have essentially a
11 similar objection to this as I did with my own crossmotion.
12 I got papers from Douglas Rosenberg on October
13 24, 2003 which is annexed as an exhibit to my crossmotion.
14 This is essentially a computer generated recap. This is
15 not -- this is hearsay evidence albeit subject to the
16 exception hearsay business record rule, but it's still not
17 the best evidence rule. It doesn't comply with that.
18 There is no direct evidence here. This document that I got
19 which is a computer generated document, represents over $10
20 million of money spent by Mr. Rosenberg when he was both a
21 managing agent and a receiver. And there is not a single
22 record of how he spent the dollar, any of those dollars.
23 So I have asked in my -- when I moved, when I cross-moved,
24 I asked that if the Court wasn't going to accept my
25 crossmotion as to that particular branch, because I was not
es
Proceedings 6
1 comfortable with it, because there's nothing I can recite
2 or rely on and have a comfort level, other than someone's
3 computer records. And it doesn't really give the Court an
4 opportunity to really test the validity of the assertions
5 from real evidence. Now what I've been given is
6 essentially the same thing again. And I'm troubled
7 because, you know, in Manhattan we've got a couple hundred
8 thousand dollars being looked at and receipts being asked
9 for. This is over $10 million and there's no receipt here,
10 not the front and back of checks, not invoices, not
11 proposals for work done.
12 I also want -- as I said, I drew up a written
13 application which I've handed to the Court this morning --
14 rather this afternoon. And what I'd like to just do is hit
15 some of the salient points because ultimately I'm asking
16 that the matter be adjourned so that if there are any
17 opposition papers that still are going to be coming, that I
18 have -- when I get them, I should have them and there
19 should be a cut-off date set by the Court.
20 THE COURT: There are no more opposition papers.
21 MR. BATRA: I understand that from Mr. Shapiro
22 yesterday, Mr. Ellman was submitting something, unless he
23 is not submitting anything to the Court.
24 THE COURT: Who's representing Mr. Ellman?
25 MR. ELLMAN: I am Stephen Ellman, Your Honor. I
es
Proceedings 7
1 served on Monday by mail a copy of my attorney's statement
2 and I have an extra copy for Mr. Batra.
3 MR. BATRA: I'll be happy to take it because we
4 were supposed to get our papers in hand by Tuesday.
5 THE COURT: Just give it to him.
6 MR. BATRA: I'll take it.
7 MR. ELLMAN: You should have a set in your
8 office. Perhaps the mail from my office in midtown to
9 yours is slightly delayed.
10 MR. BATRA: I have no doubt that you mailed it
11 when you say you did.
12 MR. ELLMAN: I would point out, Your Honor, I was
13 not consulted about this stipulation. I was not a party to
14 the stipulation. I've provided the papers which I hope are
15 helpful to the Court.
16 THE COURT: Except for Mr. Batra's part of the
17 motion, are you opposing in regards to any accounting or
18 anything?
19 MR. ELLMAN: No, not at all.
20 MR. BATRA: If I might, Your Honor, there are
21 matters that I want to address in terms of the opposition
22 that I have received from the Attorney General's office
23 and, of course, the papers I've gotten now from Mr. Shapiro
24 representing Doug Rosenberg and BPC as well as the papers
25 I've just gotten from Mr. Ellman. So I'd like to put in
es
Proceedings 8
1 reply papers at some time and a subsequent argument before
2 the Court and any evidentiary hearing. I just want to
3 bring to the Court's attention as of now what has been
4 submitted so far.
5 There's an issue of standing that has been
6 raised. Without belaboring the record, there is no doubt
7 that as to my period of receivership, no challenge can be
8 made of my standing to question those who owed me
9 unfettered loyalty, to wit, BPC, Doug Rosenberg and all
10 their employees to that extent. There is unquestioned
11 standing to the extent that my end is Doug, Douglas
12 Rosenberg's beginning when he became receiver in addition
13 to managing agent. There can be no doubt about that relay
14 race or that nexus. So without my predicate period being
15 looked at it's difficult for a court to have a starting
16 line, baseline, if you will, because the only other prior
17 baseline that's been judicially settled is my period which
18 ended November 30, 1998. So what has been unsettled is
19 December 1, '98 through December -- through February 28th
20 or 29th of 2000 which is my period, and then when
21 Mr. Rosenberg took over wearing two hats. So that's one.
22 Second, clearly, as an officer of the court and
23 mindful of both Judge Newman in U.S v. Eisen as well as
24 Justice Rosenberg which I've cited in my crossmotion, and
25 in addition in the landmark decision of Weider versus
es
Proceedings 9
1 Skala, where our Court of Appeals said that every lawyer
2 lawyer relationship, imported into it and implied as a
3 covenant is the code of professional responsibility, and it
4 gave attorney Weider a cause of action. Here a court
5 appointed individual, whether myself or anyone else, that's
6 a badge of honor and that honor is no less -- the duties
7 attendant as a court appointee are no less than at least
8 those standards attributable to every fiduciary that holds
9 a position of trust, whether it's an escrow, a lawyer
10 acting as an escrow agent who can't steal the escrow or
11 self-deal with the escrow or anything of the kind. So the
12 principles of trust are imported. And to the extent that,
13 as I said, I have direct standing which can't be
14 questioned, as a receiver and certainly as an officer of
15 the court, had an obligation via Weider versus Skala, to
16 bring to the Court's attention anything that I'm aware of
17 when I see stuff or when I can, I can make sense out of
18 stuff, so that the self-policing function of our profession
19 can actually be observed, which ultimately the Weider
20 versus Skala court says is a core obligation of the
21 profession.
22 With respect to what I've received so far, Your
23 Honor, from the Attorney General's office, it is already
24 documented that there were acknowledged conflicts of
25 interest. However, with acknowledged conflicts of interest
es
Proceedings 10
1 certain critical basic issues have to be looked at. One is
2 what was or is the conflict of interest? Was the
3 disclosure complete and proper or merely conclusory or
4 inadequate? How was it disclosed? When was it disclosed?
5 To whom was it disclosed, and if legal consent was issued
6 that obviated the conflict. Now, the record that is
7 already before the Court, even the papers that have been
8 submitted so far reflect that, contrary to my belief, when
9 I filed the crossmotion, that the two out of the five board
10 members of the new private cemetery Cypress Hills were
11 conflicted with BPC or Doug Rosenberg or any of the other
12 entities that he may own, legally or de facto, that, in
13 fact, a third individual -- they have three out of five and
14 the third one is George Maloney. And, in fact, there is a
15 document produced as Exhibit 6 of the Attorney General's
16 papers in opposition to my crossmotion. And instead of --
17 and while it certainly shows a good faith attempt by the
18 participants then involved to try to deal with the issue,
19 because the Attorney General had previously established a
20 conflict free zone in the administration of the election,
21 because of their involvement and their statutory obligation
22 to insure things are done properly, my looking at it,
23 knowing what I'm aware of, not only during the time I was
24 the receiver to Cypress but subsequent to my service to the
25 court, and as a lawyer in an unrelated matter in the year
es
Proceedings 11
1 2001, I became aware of something that had occurred that
2 was troublesome in 1993 which is Exhibit 30 of my
3 crossmotion. And what Exhibit 6 of the Attorney General's
4 papers reflect raised certain critical issues that the
5 Court needs to look at.
6 A, was the disclosure as a matter of law adequate
7 or inadequate? This was a special meeting, not a general
8 meeting of the lot holders, so the BCO provisions that
9 allow unagenda items to be dealt with in a regular meeting
10 are inapplicable to a special meeting. And, in fact,
11 Exhibit 6 says the special meeting. The question then
12 arises, was this disclosure made when the notice of the
13 special meeting was sent out, or was it made at the time of
14 the meeting itself? If it was made at the time of the
15 meeting itself, the inquiry can end there because then it's
16 per se defective. If it was sent out with the mailing of
17 the notice, then the inquiry needs to be sharpened and that
18 is, was the disclosure proper, was it complete, etc.?
19 I can tell you looking at this, with the
20 knowledge that I had before I became Cypress's receiver,
21 while I was Cypress's receiver and after I was no longer
22 serving the court as the receiver for Cypress, the
23 disclosure leaves unanswered very critical questions that
24 would define the nature, texture, quality, and duration of
25 the conflict and could not, I submit to the Court, lead to
es
Proceedings 12
1 an informed consent waiving the conflict, assuming, Your
2 Honor, assuming, and I say that for emphasis sake, the
3 conflict was of the waiveable variety. Because conflicts,
4 like the human race, come in two varieties, waiveable and
5 non-waiveable. The Second Circuit Court of Appeals set
6 aside Charlie Schwartz's conviction because the conflict
7 that was waived by his attorneys representing in a civil
8 case the PBA, they said that was a non-waiveable conflict
9 of interest. And even Charlie Schwartz saying to his
10 lawyer, it's okay; it's not okay. It's not enough for the
11 institutional interests of justice because that is a
12 separate pillar that must always be protected.
13 And I'm not certain given the record that we
14 have, that that inquiry at this juncture really can be
15 addressed other than raising the questions for the Court.
16 And I wanted, as a matter of good faith to my colleagues,
17 to do this in writing so there would be no ambiguity as to
18 what issues troubled me and I believe ought to trouble the
19 Court. So that they can look into the appropriate facts
20 and submit whatever additional documentation that they may
21 well have so we can find out whether the conflict which we
22 know is real, because they disclosed it, but we can find
23 out really what that conflict is and is it waiveable,
24 non-waiveable? Was the conflict disclosed in a proper way
25 appropriate for a special meeting?
es
Proceedings 13
1 There is no attachment, for example, Your Honor,
2 to this, to the papers before the Court of the certificate
3 of incorporation of Cypress. Because in the order that
4 allowed the administration of the election to take place,
5 there is a clause which caught my eye, cumulative voting.
6 Cumulative voting which is BCL Section 618, was designed to
7 allow a minority stockholder of stock just some
8 representation on the board of directors. Otherwise a 50
9 percent stockholder would control the entire board and it
10 so was put in place for that. But we have no such entity
11 here and yet absent the certificate of incorporation
12 provision which is required by the BCL Section 618. Yet in
13 an order issued by this -- by the Court of the prior
14 justice presiding, that clause was grafted in. We don't
15 know where it came from, who suggested it, who wanted it.
16 Certainly the beneficiary of that clause are the three
17 conflicted parties, John Desmond, Mario Gil and now George
18 Maloney.
19 With respect to John Desmond, as I said in my
20 supporting affidavit -- affirmation, forgive me, to the
21 crossmotion, I knew before I became receiver to Cypress
22 from prior receivership matters where BPC was my managing
23 agent, that I had dealt in that capacity, that prior
24 capacity with John Desmond as an employee of BPC.
25 Knowledge is something you can't ignore if you have it.
es
Proceedings 14
1 And since I had it I raised the issue when on the very
2 first meeting post-appointment of me as a receiver and
3 meeting with my counsel which I inherited, and I met John
4 Desmond face-to-face, so I now had a face to the name, and
5 becoming aware that he is working at the cemetery, I raised
6 the issue to prevent double dipping during my tenure. And,
7 in fact, obtained a letter of October 1998 from Doug
8 Rosenberg confirming to me in writing two things. A, John
9 Desmond does work for him and does other matters which I
10 already knew. And second, that if he uses cemetery assets,
11 for example, the cemetery vehicle, he will issue
12 appropriate credit.
13 We now have from the papers that Mr. Richard Cea
14 has submitted on behalf of the cemetery, where he
15 acknowledges that he was counsel to John Desmond during the
16 electioneering process, and now counsel to the cemetery
17 where John Desmond is not only a for payment or paid --
18 although that's kind of glossed over in the papers -- but
19 the implication is unavoidable, that John Desmond is a paid
20 CEO of the private cemetery Cypress Hills, in addition to
21 being chairman of the board of the same cemetery. In that
22 affirmation issued by Mr. Cea he acknowledges that, and
23 it's a critical admission against interest, Your Honor. He
24 admits as to the double dipping possibility and
25 self-dealing which is now admitted to, that they are aware
es
Proceedings 15
1 of at least one instance which they themselves are willing
2 to, as an act of good faith to this Court, proffer up that
3 they are aware of, at least one instance where John Desmond
4 did use the cemetery vehicle for non-cemetery business at
5 the direction of Douglas Rosenberg. And then goes on to
6 say that the work that Mr. Desmond performed was not even
7 performed for BPC but for New England Management, or
8 whatever the record reflects in Mr. Cea's affidavit, and
9 was paid accordingly.
10 A reasonable question arises in my mind, what's
11 the nexus or linkage between BPC, Doug Rosenberg and this
12 third, yet another entity that Mr. Rosenberg has at least
13 de facto control over, that he can assign John Desmond from
14 place A to place B or C and so on? We've certainly put
15 into the record, and absent that predicate, we would --
16 there would be a good faith omission which certainly is not
17 here. We had a good faith basis to make the motion we did,
18 because when in the year 2001 I became aware that John --
19 that Douglas Rosenberg, as president of BPC, had control de
20 jure or de facto over a maintenance company, Old Town
21 Maintenance, and they had submitted bills in an unrelated
22 matter in 1993, that's ten years ago. In fact, in January
23 of 1993, and it's before Bobby Abrams ever brought this
24 lawsuit that started Cypress to intersect with the stream
25 of justice. And what you have, Your Honor, is in January
es
Proceedings 16
1 of '93 --
2 MR. SHAPIRO: Your Honor, I have to object.
3 Mr. Batra has been going on at great length about the
4 Cypress Hills matter. Now to go on and start making wild
5 charges about some event in 1993 which he says is
6 completely unrelated, I object because it's irrelevant to
7 this hearing.
8 THE COURT: Let me ask you something, isn't all
9 this in your papers?
10 MR. BATRA: It is, Your Honor. But Your Honor
11 asked for an application. I certainly gave it to you in
12 writing, but I think I'm mindful of Mr. Shapiro's
13 objection. I would simply say that the nexus, however, is
14 that the disclosure of conflicts that were from the record
15 appear to have been given too late. At the special meeting
16 itself there is disclosure that Mario Gil also had his own
17 private company called MG Construction, a new fact --
18 THE COURT: I'm sorry to interrupt you but I have
19 a jury waiting.
20 MR. BATRA: I thought we had the afternoon, I'm
21 sorry. I didn't know.
22 THE COURT: Maybe the night but not the
23 afternoon.
24 MR. BATRA: So then, Your Honor --
25 THE COURT: Basically what else does anybody want
es
Proceedings 17
1 to say? Short and to the point.
2 MR. PIGOTT: If I may, Your Honor, Assistant
3 Attorney General Robert Pigott from the attorney general
4 charities bureau. I think much of what Mr. Batra alleges
5 in his crossmotion can be disposed of without any of the
6 papers that he got after Tuesday because these are -- he's
7 raised the questions of law, and even if you accept as true
8 everything that he says in his papers, you can dispose of
9 98 percent of his crossmotion.
10 This was a lawsuit brought by the Attorney
11 General in 1993. The Attorney General is the plaintiff.
12 There were five defendants who were the members of the
13 board of directors at Cypress Hills at that time in 1993.
14 That aspect of the lawsuit was settled in 2000. At that
15 time a temporary receiver was serving. Mr. Douglas
16 Rosenberg, he was the fourth temporary receiver. There was
17 a temporary -- Mr. Batra became temporary receiver in May
18 of '98 and he stepped down in February of 2000. And that's
19 when Mr. Rosenberg became temporary receiver. As of that
20 moment in time when the Attorney General settled his claims
21 against the individual defendants, the only reason that
22 this lawsuit continued was so that there could be a
23 temporary receiver to manage the cemetery until a, until a
24 shareholders meeting. And when I say shareholders I mean
25 lot owners. They function as the members of a
es
Proceedings 18
1 not-for-profit corporation. It's lot owners of a cemetery
2 corporation that have the right to elect the board.
3 Once the lawsuit was settled with the individual
4 directors, individual defendants, the former directors, at
5 that point the lawsuit continued for the sole purpose of
6 allowing a temporary receiver to manage the cemetery until
7 a lot owners meeting could be held to elect a board of
8 directors. And the Attorney General and the Division of
9 Cemeteries worked very hard to bring that out -- bring that
10 about. I would venture to say there has never been an
11 election of lot owners for cemetery directors that's been
12 more scrutinized by the judiciary than the one at Cypress
13 Hills Cemetery in February of 2000. In addition to the
14 procedures for member, member meetings that are contained
15 in the not-for-profit corporation law, we recommended
16 certain additional procedures; we, the Attorney General's
17 office, to the Court, and those were adopted by the Court,
18 and the election was held pursuant to those procedures.
19 For example, we required conflicts of interest
20 disclosure because when you are the member of the board of
21 directors of a not-for-profit cemetery corporation you are
22 not disabled from serving by conflicts of interest. It's
23 not uncommon that there be self-dealing transactions.
24 Those are governed by Section 715 of the not-for-profit
25 corporation law. But we felt that the lot owners should
es
Proceedings 19
1 know in advance before voting what these conflicts of
2 interest were so that they could evaluate whether they were
3 so great that the director would have to recuse himself
4 from matters so frequently that he couldn't effectively
5 serve as director. So we had this disclosure at an initial
6 meeting of lot owners in April of 2001.
7 This was really a preliminary meeting and it was
8 held down in the jury room on the second floor of this
9 building. It was supervised by Judicial hearing officer
10 Silverman. It was transcribed, and at that meeting those--
11 the disclosure was made. The disclosure statements were
12 received. The disclosures were made to lot owners and the
13 vote was not held at that time. The vote did not take
14 place until the following February. So all that time the
15 lot owners had the opportunity to evaluate these conflicts
16 of interest.
17 In between April of 2001 and February of 2002,
18 the Attorney General's office, working with the Division of
19 Cemeteries and the temporary receiver, Douglas Rosenberg,
20 evaluated hundreds of claims by lot owners to voting
21 rights, pouring over in some cases hundred-year-old
22 documents. We made recommendations where we disagreed with
23 the lot owners' claims. We made a recommendation to
24 Judicial hearing officer Silverman. He ruled on those
25 decisions in an order that is Exhibit 8 to my affidavit. I
es
Proceedings 20
1 have another copy handy if Your Honor doesn't have one.
2 And a lot of the issues Mr. Batra attempts to raise in his
3 papers were considered by Judicial hearing officer
4 Silverman; whether employees could run, whether the bylaws
5 of the cemetery prohibited Mr. Desmond from soliciting
6 proxies. These were put before the Court and they were
7 ruled on by Judicial hearing officer Silverman.
8 After this decision, when all voting rights of
9 lot owners were established, about a month and a half
10 later, we came back to a different courtroom in this
11 courthouse and held the election again with JHO Silverman
12 there, again with a court reporter, and the votes were cast
13 and the election results were tallied. They were confirmed
14 by orders of the Court the following day, Justice Hutner
15 and JHO Silverman both signing that order. Notice of entry
16 of that order was served on a number of parties, including
17 Mr. Batra. He had notice back in February of 2001, more
18 than a year and a half ago, about the results of this
19 election. In fact, at that point --
20 MR. BATRA: 2002.
21 MR. PIGOTT: 2002, thank you. At that point
22 Mr. Batra really should not have had anything to do with
23 this matter at all because when he stepped down, in
24 February of 2000, he was ordered by the Court to account
25 within 90 days of service of notice of entry of that order,
es
Proceedings 21
1 and that fell in June of 2000. Despite reminders from the
2 Attorney General's office, he never accounted. Had he
3 accounted, as he was required to do by prior order of the
4 Court, we wouldn't even be here listening to Mr. Batra's
5 objections. I think there is a legal basis for disposing
6 of his objections. He's not a plaintiff, he's not a
7 defendant. He's never -- he's asserting claims against a
8 lot of individuals, Mr. Gil, Mr. Desmond. He's never
9 acquired personal jurisdiction over those individuals. If
10 he wants to do that he has to go downstairs and buy an
11 index number and start his lawsuit.
12 But even that would not avail him because even if
13 he had his own lawsuit going, he doesn't have standing to
14 assert these kinds of claims. He is seeking to upset this
15 election and under Section 618 of the not-for-profit
16 corporation law, only a member, which in the case of a
17 cemetery is a lot owner, only a lot owner aggrieved by the
18 election or the Attorney General can raise claims to upset
19 the results of an election. He's also asserting claims,
20 money damage claims against the current officers and
21 directors of a not-for-profit corporation, Cypress Hills
22 Cemetery, seeking their removal. Again, the not-for-profit
23 corporation law sharply limits the standing of individuals
24 with those kinds of claims. And Mr. Batra, as a former
25 temporary receiver, who should have accounted and been out
es
Proceedings 22
1 of the picture three years ago, has no standing to raise
2 those kinds of claims.
3 Now, the issues that he said he raises were
4 already decided by JHO Silverman in a well-reasoned
5 decision which should not be relitigated. A lot of the
6 factual matters that he alleges about the connection
7 between BPC and Mr. Desmond and Mr. Rosenberg, we see
8 nothing in the record to support that. But I'll leave that
9 to Mr. Rosenberg and Mr. Desmond and through his counsel to
10 address. I say that based on what the Court has before it,
11 we can dispose of 99 percent of Mr. Batra's application.
12 MR. CEA: Your Honor, on behalf of Cypress Hills
13 Cemetery which now for years has been trying to get back to
14 a state of normalcy, and it's suffered through really a
15 receivership --
16 THE COURT: Who are you?
17 MR. CEA: Richard Cea, Your Honor. And it's even
18 been through a bankruptcy. Mr. Batra clearly has no
19 standing. His allegations are clearly frivolous. I don't
20 need to repeat what the Attorney General just stated, but
21 clearly there was an order served upon him which oversaw
22 the whole election process. That order can't be attacked
23 in this proceeding. It's just not legally possible. It
24 shouldn't even have been appealed by Mr. Batra. If he
25 thinks he has standing or should have been attacked by him
es
Proceedings 23
1 by way of reargument or renewal or something, it is far too
2 late to do that. And I'm really lost to understand where
3 this is even coming from or what's motivating him. Because
4 the one time Mr. Desmond did service on the building for
5 BPC, he was paid by another management company, not by
6 Cypress Hills money, which was the proper thing to do.
7 What I would ask is when you do look at it and you realize
8 there is really no standing here, and you find that this is
9 frivolous, I would ask you to impose sanctions against
10 Mr. Batra because this is really a waste of about six
11 attorneys' time, tying up your time. And we are trying to
12 get the cemetery back to a normal keel at this point, and
13 this is only another hindrance to that. And I would just
14 ask you to end this now and not adjourn this matter, to
15 approve the accounting of Doug Rosenberg and let this
16 cemetery get on with its life. There is approximately
17 $90,000 sitting in HSBC. That is the cemetery's and we
18 can't get to it and so we need an order from you that those
19 funds can be released.
20 This is a cemetery that's trying to rehabilitate
21 itself. This is just another one of the people trying to
22 take advantage of it. I don't know the motivation. I
23 don't know what gain Mr. Batra believes is here for him,
24 but it's just one more person trying to exploit this
25 cemetery, and I would ask you to please stop it now.
es
Proceedings 24
1 MR. SHAPIRO: May it please the Court, Stanley
2 Shapiro. I am the attorney for the temporary receiver,
3 Mr. Douglas Rosenberg. I just, Your Honor, just wanted to
4 back up for one second. Mr. Rosenberg has submitted his
5 final accounts for the period of his tenure as the
6 temporary receiver. No one with any standing or authority,
7 oversight authority, for that period when Mr. Rosenberg was
8 the receiver has objected to Mr. Rosenberg's accounts. The
9 Attorney General has no objection. The cemetery's board
10 has not objected. The new management, new board of
11 directors, the newly elected board of directors of the
12 cemetery has not objected. And, in fact, I think that
13 based upon the representations by the Attorney General's
14 office to me and in their papers, I think everyone agrees
15 that Mr. Rosenberg very ably served and honestly and with
16 great integrity and diligence carried out his duties as the
17 receiver, as his company ably did as the managing agent
18 which they were appointed by the Court, and in their
19 contract approved back in 1995 and then reapproved by the,
20 by subsequent courts. Mr. Batra himself retained BPC and
21 submitted accounts approving the payments to them and their
22 management contract.
23 So I would say -- not again to repeat all the
24 substantial, just limiting to the accounting portion,
25 Mr. Rosenberg's motion to have his accounting approved, we
es
Proceedings 25
1 have no objection by any of the interested oversight
2 parties. The standing rules under the not-for-profit
3 corporation provides standing for objections only to the
4 Attorney General, to any creditors or any members. Now, no
5 one who fits into that category has raised any objection,
6 Your Honor. Mr. Batra cannot -- has not alleged that he
7 has any, any interest or standing with regard to the period
8 when Mr. Rosenberg was the temporary receiver. His only
9 claim for interest standing here is that he had -- he was
10 the third temporary receiver. Obviously by the very same
11 order of this Court on the motion of the Attorney General's
12 office to terminate Mr. Batra's receivership, that same
13 order was the one that appointed Mr. Rosenberg receiver.
14 There is no overlap. He has no interest or say during that
15 period and, therefore, any conceivable objection he has
16 made to cast, raise some shadow or tried to assert is
17 without standing. There's no basis for not approving
18 Mr. Rosenberg's accounting on unanimous -- without
19 opposition.
20 Now, to back up one second on a point that
21 Mr. Batra raised earlier about the Schedule B-1, the best
22 evidence rules, he has no interest in seeing those
23 disbursements during the time that Rosenberg was the
24 receiver. But they were not hidden. All those, all of
25 that stack, that telephone book of back-up documents was
es
Proceedings 26
1 made available to the Attorney General. It was supplied by
2 me to the -- it was passed along by me to the Attorney
3 General's office prior to the submission of the accounting
4 for their review. Mr. Rosenberg worked hand-in-hand with
5 the Attorney General's office throughout his tenure. So
6 there's nothing at all of any substance or merit to this
7 claim that those back-up documents are insufficient or
8 inadequate. They show exactly what took place. Everything
9 was on the up-and-up and there is no objection by anybody
10 to that.
11 Going backwards to the question of, you know, so
12 this now -- moving on to the crossmotion which Mr. Batra
13 has put in which Mr. Rosenberg has put in an objection, to
14 the extent that Mr. Batra seeks some kind of relief against
15 Douglas Rosenberg --
16 MR. BATRA: I am going to object because this is
17 really on my application to adjourn this because the papers
18 weren't submitted properly. I didn't come here prepared to
19 argue a motion substantively.
20 THE COURT: Let me just put it very shortly, I'm
21 not adjourning the case. I'll reserve decision on the
22 motion. I'm going to give you one week to hand in any
23 other papers you wish to hand in, Mr. Batra, and then I am
24 going to issue a decision.
25 MR. BATRA: Then, Your Honor, I would like the
es
Proceedings 27
1 opportunity then for another two minutes to just respond to
2 the points that have been made.
3 THE COURT: Two minutes.
4 MR. BATRA: Absolutely.
5 THE COURT: Two minutes.
6 MR. BATRA: One, there was a court transcript of
7 the April 15, 2001 special meeting in Kings Supreme, not
8 part of the record. I ask that it be included. Second,
9 the disclosure of the conflict on April 15, 2001 in Kings
10 Supreme would only by a priori have been to who had
11 appeared. If the notice of that meeting had carried the
12 conflict disclosure forms, any other lot owner or owners
13 who were affected by that conflict may have chosen to
14 appear at the special meeting on April fifth -- I'm sorry,
15 April 15, 2001. But not having gotten prior notice, only
16 those that were there got the disclosure. It's sort of
17 like, mirror, mirror on the wall, do I have a conflict or
18 not? If the persons present were basically proxy holders
19 or persons involved with and tainted with the conflict, it
20 raises issues about conflict resolution.
21 Second, in fact, my very first letter within two
22 weeks of my having resigned as receiver on March 6, 2002,
23 on March 24th I wrote a letter to Douglas Rosenberg, BPC,
24 asking for the accounting material which would be a
25 predicate for my final accounting. He got subsequent
es
Proceedings 28
1 letters from me over the last three years. All of that
2 was ignored until after he moved to judicially settle his
3 accounting for the first time three years after he first
4 started as receiver as well. Because he ignored not one
5 letter, which is Exhibit 20 of my crossmotion, but
6 subsequent letters and reminders, including through his
7 counsel, it cost me over $130,000 because I then agreed in
8 bankruptcy court to take less. And I made sure because I
9 was afraid that, you know, when someone is being looked at
10 for possible misconduct, the best defense is a great
11 offense. And we've heard it today, that this is frivolous.
12 We're trying to -- I'm trying to exploit this trust. There
13 must be some other motivation. So to prevent that issue
14 from arising I stated to the Court that I was not seeking
15 that 90 percent, that I had agreed in bankruptcy court to
16 let go. So that's not an issue.
17 The fact of standing I've already stated, so I'm
18 not going to repeat myself. But I take great interest in
19 the fact that Mr. Rosenberg felt comfortable enough that he
20 could file a motion with this Court seeking approval of his
21 $10 million of expenditure over his two years as receiver,
22 over half a million dollars in legal fees, without ever
23 coming back to court for the necessary prior order of
24 oversight reviewing those bills, and then approving those
25 bills before the lawyers got paid. He spent over $400,000
es
Proceedings 29
1 without court approval.
2 MR. SHAPIRO: Your Honor, there is absolutely a
3 court order.
4 MR. BATRA: There are no court orders proffering
5 fees, having reviewed bills. Now, there are clear
6 violations of the rules of our chief judge, 36.1. there's
7 clear violation of our chief administrative judge, Judge
8 Lippman's memo of May ninth, reported in the law journal on
9 May 9, 2000, which also reflected the Garry Ludwig, who I
10 previously fired for cause on December 6, '99, brought back
11 by Mr. Rosenberg and then paid twice, once before Judge
12 Lippman's memo, once after. The ones after is per se
13 improper and invalid. The ones before, I obviously have
14 standing because the issue of cause arises.
15 Finally, Your Honor, my Exhibit 21 which is sort
16 of similar to what the Court has been given today, my
17 Exhibit 21, which is the same computer generated
18 information that Mr. Shapiro handed up to the Court today,
19 as well for the first time, I gather is very problematic
20 because there is no back-up to this.
21 THE COURT: Okay.
22 MR. SHAPIRO: I just want to respond.
23 THE COURT: One minute.
24 MR. SHAPIRO: I mean --
25 MR. BATRA: Your Honor, just some housekeeping, I
es
Proceedings 30
1 am going to be out next week. Can I have until the fifth
2 of January to reply?
3 THE COURT: Okay.
4 MR. BATRA: The first Monday back.
5 THE COURT: Okay.
6 MR. BATRA: Thank you.
7 MR. SHAPIRO: Mr. Rosenberg did supply Mr. Batra
8 with all the statements during the time of Mr. Batra's
9 tenure as receiver back in 2000 shortly after we had a
10 letter from Mr. Batra. He himself puts in the letter,
11 dated May tenth of 2000, in which Mr. Batra represents to
12 Justice Hutner that the last task of finding -- that he is
13 undertaking the last task of the final accounting within
14 the next 30 days. He represented that he was ready to do
15 it and that didn't happen. The next time we heard about
16 this, that he needed anything, was a letter in October of
17 2003, and within short order, a week or two, we supplied
18 him with that. Mr. Rosenberg supplied that back-up
19 information.
20 MR. BATRA: That's a material misstatement of
21 fact, Your Honor.
22 MR. SHAPIRO: I would like to know if Your Honor
23 would like me to address the points raised by Mr. Batra.
24 THE COURT: We have everything in the papers.
25 MR. BATRA: Yes.
es
Proceedings 31
1 THE COURT: That's it. That's it.
2 MR. SHAPIRO: One last thing which has to do with
3 the -- as a result of this crossmotion, Mr. Rosenberg has
4 incurred additional disbursements that I have laid out of
5 several hundred dollars, as well as well over ten more
6 hours of legal time which were not expected, were not
7 reflected in the original accounting papers. I would like
8 the opportunity -- I agreed with the Attorney General's
9 office on a discounted reduced fee previously for the work
10 done in preparing the final accounting. I would like an
11 opportunity to discuss with the Attorney General and
12 arrange to submit whatever supplemental fee and
13 disbursement application.
14 THE COURT: Discuss it with them.
15 MR. PIGOTT: We have no objection.
16 THE COURT: We'll see what the story is.
17 MR. GARRY: One last thing, Thomas J. Garry,
18 formerly of Garry & Ludwig, 404 Park Avenue South, New
19 York, New York 10016. Does the Court wish me to address
20 the points raised by Mr. Batra concerning the chief judge's
21 rules of 36.1?
22 THE COURT: Did you submit papers?
23 MR. GARRY: No, I did not because I agree with
24 every attorney on the right side of the table concerning
25 Mr. Batra.
es
Proceedings 32
1 THE COURT: So if you didn't or if you'd like to
2 submit anything additional, you'll have the same time as
3 Mr. Batra, to January fifth to do it.
4 MR. GARRY: Your Honor, I would like to beg the
5 Court's indulgence. If Your Honor decides that Mr. Batra
6 does, in fact, have standing, which I seriously doubt you
7 will, we would like to have an opportunity at that point,
8 because he's raising issues which have nothing to do with
9 this particular matter concerning --
10 THE COURT: You have two choices, you could
11 either submit anything you want on January fifth or wait
12 till after my decision.
13 MR. GARRY: I'll wait till after your decision.
14 MR. ELLMAN: I'd like to make clear for the
15 record since I believe exaggerations were stated on the
16 record, I have handed up to the Court today a copy of an
17 affirmation which has attached to it as Exhibit 8 a copy of
18 the order that Justice Hutner signed on May 15, 2000, which
19 appointed me as special counsel to Mr. Rosenberg in his
20 capacity as temporary receiver with respect to the Kirtman
21 litigation. And I am a commercial litigator. I have
22 practiced law for the past 29 years, representing major
23 financial institutions in litigation in state court, in
24 federal court. I have represented a fiduciary on one
25 occasion, this case. I stepped into it. I believe that I
es
Proceedings 33
1 have fully complied with the court rules and attempted to
2 comply with the court rules. I'm not a professional
3 attorney for fiduciaries as others may be, but I think the
4 record is clear. And I would like to make a statement for
5 the record that I performed my services in accordance with
6 the order and to the best of my abilities.
7 THE COURT: So we all understand each other, I'm
8 reserving decision. Mr. Batra has until January fifth to
9 submit anything he wants. If we get it by that day, fine.
10 If not it won't be considered and that's it.
11 MR. SHAPIRO: One last item, Your Honor, I
12 apologize for not -- it occurs to me, it was just raised
13 for the first time by Mr. Batra a minute or two ago. As I
14 understand it, Mr. Batra is claiming somehow that records
15 which were supplied to him by Mr. Rosenberg again recently
16 in which it details -- it's a list of every single check
17 that was, was issued out of the receiver accounts during
18 the months which Mr. Batra hasn't submitted accounting for
19 yet, and also all the income that came in from that. Now,
20 I'm having -- it's starting to -- I get the fear now that
21 Mr. Batra is going to start harassing Mr. Rosenberg with
22 additional requests for actual copies of the checks, etc.,
23 etc., etc. Now, three years later, Mr. Rosenberg is not
24 being compensated anymore and he's complied completely with
25 this. Mr. Batra has already submitted one interim account
es
Proceedings 34
1 reflecting the same things, has collected fees over
2 $117,000 for a six month period which he paid himself based
3 upon Mr. Rosenberg's statements which were good enough
4 then. He submitted it himself to the Court. He's put in
5 claims, I understand, of fees for several hundred thousand
6 dollars more based upon the good service that Mr. Rosenberg
7 did as the managing agent. So I would ask Your Honor to
8 consider including in any decision an order reflecting the
9 adequacy, at least as far as Mr. Rosenberg's part, of these
10 account statements he supplied to Mr. Batra.
11 THE COURT: I'll read the papers.
12 MR. BATRA: One last thing, I never received
13 $117,000. It was $30,000 or $31,000 and the record is
14 reflective.
15 THE COURT: I'll read the papers.
16 MR. BATRA: Thank you, Your Honor.17 MR. PIGOTT: Thank you.18 * * *1920 It is hereby certified that the foregoing is a true andaccurate transcript of the proceedings.2122 ----------------------------ESTHER STERNLICHT, RPR23 OFFICIAL COURT REPORTER.V. 4/26/04 Batra�s Appeal from Order:RADI�s Issues on Appeal:Specify the issues proposed to be raised on appeal. Reversible error was committed below Inter alia:
1. Abuse of Discretion.The court abused its discretion in denying Batra�s cross-motion on the legally inapplicable basis of lack of standing and collateral estoppel, while granting Douglas Rosenberg, 4th Temporary Receiver and Managing Agent�s motion without a stated reason despite Rosenberg�s:a. violation of the core principles of trust, the Rules of The Chief Judge, and the Chief Administrative Judge�s Memo of March 2000 regarding anti-nepotism policy and barring Garry & Ludwig from serving as court appointees (or as secondary fiduciaries);b. permitting fraud to be perpetrated upon the Court and its appointee, receiver Batra, by allowing an associate of his in establishing a dummy company, without appropriate disclosure and consent or court approval, and approving such bills for payment by Receiver Batra;c. permitting fraud to be perpetrated upon the Court, by allowing an associate of his to continue using his dummy company, without appropriate disclosure and consent or court approval, and paying such bills as both Managing Agent and Receiver Rosenberg;d. allowing lawyers to churn fees, over $400,000, including one that was paid almost $250,000 within 6 months without the requisite court review and approval of billing rates or time spent and the value imparted to the estate;e. rehiring Garry & Ludwig without court approval and in direct violation of the Rules of the Chief Judge and The Chief Administrative Judge�s anti-nepotism Memo and paying their fees 4 years ago in 2000, without court review or approval;f. essentially defalcating the escrow corpus, the cemetery, and taking control of same by and through his associates using his court-appointee status and control to obtain proxies from lot owners and voting same in their own favor;g. taking the cemetery into bankruptcy, despite a letter opinion by the office of the Attorney General that a receiver lacks standing as a party to file for bankruptcy protection;h. entering into a stipulation, as a receiver, with just one party, the plaintiff, without any defendants participating as they were then-already dismissed, and without obtaining necessary jurisdiction over the lot owners, fabricated a set of election rules that did away with lot owners� rights not within the court�s jurisdiction, and made the receiver the initial arbiter of voting rights disputes, and allowed his associates, despite being infected with non-waive-able conflicts of interest, to run and win control of the new private cemetery;
2. The court committed plain error in applying collateral estoppel, when it had failed to obtain jurisdiction over the lot owners.
3. The Court committed plain error in not acknowledging Batra�s standing, as part of Batra�s motion to judicially settle his accounts, and notifying the Court that fraud had been perpetrated upon the Court and its court appointee Batra by its other court appointee Rosenberg in allowing a dummy company to be set up and paid.
4. It was an abuse of discretion for the court below to issue a blanket order, without any stated reason, and approve items sought by Rosenberg�s motion and approved almost $16 million dollars of disbursements by Rosenberg without a single receipt being exhibited to the court.
5. It was an abuse of discretion by the court below to allow prior orders of the court, despite being tainted by due process deficiencies and inter alia unrestrained and unbecoming self-dealings by Rosenberg to go unquestioned, and overruling Justice Rosenberger of the Appellate Division, First Department, which held on just that issue in Cohoes Realty Associates v. Lexington Insurance Co. (1st AD, 2002), NYLJ 4/1/02, p.17, col3 :�[A]s an initial matter, neither Lexington nor any other party to a litigation holds a vested right to have a court perpetuate its mistakes. Moreover, an appellate court has inherent and plenary authority to exercise its discretion to review a previous order obtained by means of misconduct by a party toward the court (see Matter of Lockett v Juviler, 65 NY2d 182, 186, citing Furman v Furman, 153 NY 309, and Matter of Holden, 271 NY 212, 218; Oppenheimer v Westcott, 47 NY2d 595, 604; Belesi v Connecticut Mutual Life Insurance Company, 272 AD2d 353, 354, lv dismissed 95 NY2d 886; Peterson v Melchiona, 269 AD2d 375, 375-376). This authority is rooted in the notion that a party successful in obtaining an order by means of misconduct does not render a court powerless to undo that order when the truth is brought to light. Neither "law of the case" nor stare decisis is applicable in such instances. These principles generally provide courts with the power to prevent unnecessary relitigation of claims decided on the merits. They are not intended to shelter parties who have engaged in acts of misconduct or misrepresentation to the courts.�
5. In the interests of justice, the order appealed should be reversed, and rules of integrity, not self-dealing, should be enunciated by the court for its appointees, particularly, receivers, who stand in for the Court and must have its impartiality and integrity in fact and deed.
Transcript Information: the appeal is from an order where minutes were taken, and are an exhibit to Batra�s Reply papers, which will be part of the record on appeal.Dated: April 28, 2004Respectfully,Ravi Batra, Esq.
(Original publication: July 5, 2004)
Accepting the challenge from New York's reform-minded Chief Judge Judith Kaye, former Fordham Law School Dean John Feerick, fondly known as "John The Good," assumed the chair of Judge Kaye's Commission to Promote Public Confidence in Judicial Elections. The commission acted with significant interim recommendations some months ago.
Now, a second great step has been taken: The state Assembly has responded with its bills: the Judicial Qualification Act (A.11456); and a measure calling for public financing and limitation on private contributions to judicial campaigns (A.11457). Assuredly, the Senate and the governor will also act to find a balanced solution to restore public confidence in the noble judiciary. That our elected representatives, including district attorneys, will honorably rise to the occasion can never be in dispute. Neither should be the appropriate consideration of the pros and cons of alternatives. Not only to promote confidence, but to make it almost impossible for a corrupt or corruptible candidate to make it to the noble bench.
The simple facts:
� The law is the law, and not a political party-appendage;
� The members of the bench are overwhelmingly hardworking and honest, comprehend the awesome power and fiduciary responsibility of judging one's fellow human being, and know that the absolute predicate to wielding such power is actual, not just merely apparent, integrity;
� A judge is not required to be in agreement with conventional wisdom, or else slavery and anti-Semitism would still be legal;
� Corruption apparently comes in two varieties � episodic temptation, and causal and comfortable corruption. The latter can be destroyed by cultural change, while the former diminished by removing temptation.
Having served as one of New York County Lawyers' designee to the City Bar's Judiciary Committee, and then later on Kings County Democratic Independent Judicial Screening Panel for Supreme Court and having absorbed subsequent events, I offer a solitary nuance for public consideration: Politics is the ultimate escrow account.
All judicial screeners are, and will remain, human beings, with human dynamics and the inherent lack of X-ray capability to see the future or into another person's heart and motivation. Most screeners are persons of integrity, and will exercise their judgment without fear of retribution or seeking illegal favor. While screening, they must rely upon the self-policing organs of the profession for professional safety and not seek political immunity, or else even ax-grinding or contract-candidate killers could function on panels with improper collateral immunity and chill judicial independence. I have seen or smelled some version of that on the panels.
Taking a page from our founding fathers and their singular contribution to history's march from tyranny to self-determination: "Absolute power" is bad, and "separated power" is better. If at every turn, our reform-minded leaders work to dilute power, rather than concentrate power in the judicial selection and election process, then the greater-separated power will reduce the chance of a corrupt or corruptible candidate getting through to the noblest status of all: a judge.
The challenge for political parties is to see themselves as escrow agents holding democracy itself in escrow. They are then free to argue that their ideology is better than that of the other political parties, and that their judicial candidate deserves voter approval. To increase the pool of meritorious candidates, aside from screening reforms, judicial salaries also need to be substantially adjusted upward. As for all other matters, politics can safely go back to seeking political consensus, while the honest judiciary separate truth from lie and injury from frivolity, and painstakingly fashion justice, one case at a time.
(The writer, of New Rochelle, is an attorney in Manhattan.)"
Re: L&O�s Floater based upon Paul Siminovsky-J. Gerald P. Garson Story
L&O is a reality show, with a nod and a wink. The defendants, with malicious recklessness, cast real-life "Ravi Batra," a Manhattan commercial and personal injury litigator, to play the role of admitted-criminal and divorce attorney Paul Siminovsky with indicted felon Justice Gerald P. Garson. The defendants maliciously called the character �Ravi Patel� to portray Paul Siminovsky, and got an actor, who is a Ravi Batra look-alike, to insure that the bench and bar and members of the public that knew real-life "Ravi Batra," understood that �Ravi Patel� is �Ravi Batra.� To add insult to injury, this episode aired the day after the New York Times ran a A1 front-page story (national/international story), with Ravi Batra's picture, which rendered Ravi Batra an �egg-shell� plaintiff who was therefore subjected to maximum damage. New York Times� correction ran on November 22, 2003, which gutted the essence of their story and was a de facto retraction of their headline of coziness for an intended purpose, rather than freedom of association and pursuing the ever-elusive incremental nuances in life that collegiality, separate and apart from adversity, helps to attain.
The pure malice of defendants is a solitary fact: Ravi Batra never appeared before J. Gerald P. Garson in his life! This fact was ascertainable by defendants by calling Office of Court Administration or visiting its website; calling the Office of the Kings County District Attorney, Hon. Charles "Joe" Hynes; visiting the county clerk; or calling the Ravi Batra's Office before tortiously writing, casting and airing a story that had "Ravi Batra" playing Paul Siminovsky, an admitted criminal. That�s chutzpah.
Unfortunately, like a rape victim, a libel per se victim has to expose the details of the rape (or re-publish the libel) in order to seek redress. Here, because of defendants� re-runs and DVD sales, the injury is perpetual, and legal action was needed to stop the repeated rape of one�s reputation, and stop the re-runs.
Ultimately, all of us are mere fiduciaries of the good name our parents gave us before we pass them on to our children. Society needs to balance the greatest of our freedoms, the First Amendment, with reality television that on occasion tramples innocent lives and the good name and legacy of those who have passed on. In point of fact, it is nothing less than disclaimer-tyranny that defendants� wish to use same as a licence to maliciously or recklessly commit libel per se; the law needs to to expose, inter alia, the de facto fabricated disclaimer to be nothing more than Swiss cheese.
For investors, reality tv is a nightmare, as disclaimers won�t grant immunity for such contemptible misconduct. Even the late great Patrick Henry won�t rescue such misconduct; he never said I will fight to the death for your right to be malicious or act with reckless disregard of the truth, as there is no such right known to the law, and the basis for Pat�s zeal for the First Amendment was truth-seeking, not malicious injury with a big lie. (Can you imagine Adolf Hitler trying to hide behind the First Amendment or the illegal Nuremberg laws with any success?)
The beauty of the law is that it will even answer the question "why were defendants acting maliciously or recklessly and evincing a criminal disregard of their civil obligations owed to Ravi Batra?" That they were malicious and/or reckless while committing libel per se, and intended to be so, no reasonable person can doubt.
----------------Now, the actual lawsuit filed:----------------SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKRavi Batra,Plaintiff,-against-1. Dick Wolf, 2. Lydia Mayberry, 3. Eric Overmyer, 4. Noah Baylin, 5. Mary Gambardella, 6. Jennifer Von Mayrhauser, 7. Ruth Pontious, 8. Sandy DeBlasio, 9. Anne Newtown-Harding, 10. Michael Struk, 11. Park Dietz, 12. Wolf Films, 13. Richard Sweren, 14. Peter Jankowski, 15. Jeffrey Hayes, 16. Matthew Penn, 17. Michael S. Chernuchin, 18. David Post, 19. Lorenzo Carcaterra, 20. Aaron Zelman, 21. Marc Guggenheim, 22. Gary Karr, 23. William N. Fordes, 24. Roz Weinman, 25. Arthur W. Forney, 26. Wendy Battles, 27. Kati Johnston, 28. Richard Dobbs, 29. Suzanne Ryan C.S.A., 30. Lynn Kressel, 31. Lynn Kressel Casting, 32. NBC television, 33. Universal Network Television LLC, 34. NBC Universal NY, and 35. Universal Studios,Defendants.Index No. 116059/04Date Purchased: 11/12/04
SUMMONS
THE ABOVE NAMED DEFENDANT(S) IS/ARE HEREBY SUMMONED, to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Attorneys for Plaintiff within twenty (20) days after the service of this summons, exclusive of the day of service or within thirty (30) days after the service is complete if this summons is not personally delivered to you within the State of New York; and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.
County Designated as the Place of Trial: New York.
Basis of Venue: New York County is the Place of Business of plaintiff.
Addresses for service of Legal Process include:
NBC Universal NY30 Rockefeller PlazaNew York, NY 10112
UNIVERSAL STUDIOS100 Universal City Plaza, Universal City, CA 91608 (818-777-1000)
DICK WOLF FILMS, 100 Universal City Plaza, Bldg 2252, Universal City, Ca. 91608; 818-777-3131;SUZANNE RYAN and LYNN KRESSEL CASTING: Pier 62, Suite 304, N.Y. N.Y. 10010; 212-414-2941;Richard Dobbs, Dick Wolf Films, for the �Floater�; 818-777-6716.
Dated: November 12, 2004
Howard R. Birnbach, Esq.Attorney for Ravi Batra111 Great Neck Road, Suite 413Great Neck, NY 11021516-829-6305
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKRavi Batra,Plaintiff,-against-1. Dick Wolf, 2. Lydia Mayberry, 3. Eric Overmyer, 4. Noah Baylin, 5. Mary Gambardella, 6. Jennifer Von Mayrhauser, 7. Ruth Pontious, 8. Sandy DeBlasio, 9. Anne Newtown-Harding, 10. Michael Struk, 11. Park Dietz, 12. Wolf Films, 13. Richard Sweren, 14. Peter Jankowski, 15. Jeffrey Hayes, 16. Matthew Penn, 17. Michael S. Chernuchin, 18. David Post, 19. Lorenzo Carcaterra, 20. Aaron Zelman, 21. Marc Guggenheim, 22. Gary Karr, 23. William N. Fordes, 24. Roz Weinman, 25. Arthur W. Forney, 26. Wendy Battles, 27. Kati Johnston, 28. Richard Dobbs, 29. Suzanne Ryan C.S.A., 30. Lynn Kressel, 31. Lynn Kressel Casting, 32. NBC television, 33. Universal Network Television LLC, 34. NBC Universal NY, and 35. Universal Studios,Defendants.
Index No. 116059/04------------------Verified Complaint------------------Plaintiff Ravi Batra, by his attorney, Howard R. Birnbach, as and for his complaint, respectfully alleges upon information and belief as follows:
PREAMBLELaw & Order Maliciously and/or Recklessly Ignores the Law, and Rips a Loyal Fan1. The First Amendment Right, guaranteed by the Constitution of these United States of America and New York State, is the �eternal vigilance� that Nat Hale spoke of and the need to preserve our Liberty, that our light-weight Constitutional framework of government is designed to protect and serve faithfully. The First Amendment right is not absolute; and for entertainers, unlike journalists who serve the public good and keep government, corporations and people honest, it is subject to common decency and the law of defamation in general and libel per se in particular, especially when false assertions are made about the commission of crimes or professional misconduct against innocent members of the public and licensed professions.2. �Ripped From the Headlines,� a proud description of the Law & Order show and a basis for its high viewer ratings and re-run vitality in syndication and DVD Season sales, imposes a no-lower due diligence standard of care and a need to be factually correct just because the show creates its own hazardous condition: rushing to judgment, as it rushes the story line and creates characters to fulfill its entertainment promise of �ripped from the headlines,� evincing a criminal disregard for its civil obligations owed to persons it injures and defames, even professional, on a continual basis with re-runs and video/DVD rentals and sales. Such has occurred herein when defendants created for the Floater episode a Brooklyn attorney-character �Ravi Patel�, a clearly identifiable Indian-American by name, and gave him gender, ethnic, and many physical similarities with real-life plaintiff Ravi Batra, an Indian-American Manhattan attorney, bald, with hair on sides, and with facial hair. A first-time use of a character name of �Ravi� as and for an attorney-criminal on Law & Order. As a matter of documented fact and proof of defendants� instant malicious and reckless injury inflicted upon plaintiff, Ravi Batra has never had a single case before Justice Gerald P. Garson, who presided over matrimonial and custody cases in Brooklyn Supreme Court, and never made a single appearance on any case in J. Gerald P. Garson�s court. As part of Defendants� good faith and due diligence obligations owed to plaintiff before writing and airing the Floater, a simple check by defendants: of the Office of Court Administration�s (OCA) court appearance system on the web or OCA�s press office would have confirmed same fact; as would a review of the court clerk�s records; as would a call to the Office of the Kings County District Attorney; and/or a call to the Plaintiff himself inquiring about same before tortiously writing, casting, and inter alia filming the accusations, the charges, the prosecutions, and the guilty plea of Ravi Patel being aired to the personal and professional detriment of plaintiff with many in the public, bench and bar, be they Jewish-Americans, Irish-Americans, Italian-Americans, African-Americans, Hispanic-Americans, Indian-Americans and inter alia West-Indian-Americans who know or recognize plaintiff knew the character, Ravi Patel, that actor Erick Avari was playing in the �Floater� to be modeled on the real-life plaintiff and were disturbed and distressed by the story line of criminal conduct attributed to plaintiff by defendants; said episode has been re-run on NBC and inter alia TNT Network, aside from DVD/Video sales and rental worldwide.3. As a matter of tortious and defective protocol, defendants deliberately rush to judgment, intentionally and purposefully true to their marketing and market-share promise of �ripped from the headlines� entertainment, even beating the schedule of real-life events being depicted; e.g.,.see Daily News�s Dennis Farina�s piece on Wednesday, November 10, 2004 entitled:�Inner Tube� �It�s �Law� & ardor� with McGreevey theme�: New Jersey Gov. James McGreevey�s resignation takes effect in a few days [November 15, 2004], and NBC�s �Law & Order� will send him off with one of its �ripped from the headlines� episodes, tonight at 10 on WNBC/Ch.4. The episode, �Gov Love,� revolves around a married Connecticut governor who has an affair with a crooked business developer ...The relationship comes to light when the Governor�s wife is murdered and Detectives Green and Fontana investigate...� Annexed hereto as Exhibit �1".
Gov. McGreevey will leaves office next week, on November 15, 2004. As of the filing of this suit, Justice Gerald P. Garson has as yet not been tried on his criminal indictment. On February 24, 2004, Ravi Batra filed his civil suit against Hon. Gerald P. Garson for slander per se and inter alia the judge�s fraud and deceit upon the Office of the Kings County District Attorney; Manhattan Supreme Index #102849/04.4. The Brooklyn-Attorney Paul Siminovsky & Brooklyn Justice Gerald P. Garson Story, has been unfolding since Justice Gerald P. Garson�s arrest on April 24, 2003. Indeed, at a trial of two court employees, retired court clerk Paul Sarnell, and Louis Salerno, a court officer, Paul Siminovsky testified and same was reported upon by inter alia New York Times� Jennifer Medina on September 3, 2004 in a piece entitled �Lawyer Says Court Aides Steered Cases for Him;� annexed hereto as Exhibit �2" is said article, which includes a true and accurate picture of Paul Siminovsky, with a full head of hair, and of different ethnicity than plaintiff. The trial of the two (2) Court Aides resulted in one conviction, one acquittal. The criminal allegations include: the corruption by Paul Siminovsky of Justice Garson and his courtroom, J. Garson�s illegal matrimonial and custody rulings favoring Siminovsky, Siminovsky bribing court clerk/court officer to illegally steer his cases on J. Garson�s case docket by illegally evading the random case assignment system of the Court System, and the various resulting investigations, prosecutions, convictions, �not guilty� verdict, grant of defense motions to dismiss indictments as a matter of law and resulting appeals, and plea-bargained convictions are all part of the still on-going saga. During the Spring, Summer and Fall of 2003, the dust clouds rumors and quotes, some true and others false, were widely reported and swirling when defendants rushed to mis-write, mis-cast, mis-cloth, mis-direct, tortiously film, mis-edit, tortiously market and air Law & Order�s Floater episode on November 12, 2003, ripped as it was from Brooklyn�s Siminovsky-Garson Scandal to the detriment of the �egg-shell� plaintiff, Ravi Batra. The Garson-Siminovsky Story was the basis in Law & Order parlance for the �Floater� episode (�E4307"), aired for the 1st time on November 12, 2003 on NBC television network and all other media outlets worldwide that contract for 1st-run airing. Its rating was 12.7, share 21, and weekly ranking of 5. It has been re-run on inter alia TNT Network, and available on DVD purchase and rental. Annexed hereto as Exhibit �3" is a copy of a NBC.Com printout for L&O Floater episode, Law & Order Credits, NBC Corporate Info, TVTome L&O Guide, NBC Law & Order About The Show, TV-Tome Law & Order Intro (Show Information, Show Stars, Show Crew, Show News, Show DVDs), 9-page TV-Tome Law & Order-Crew Guide, the booklet that accompanies the 3-DVD disc set for the �Law & Order Fourteenth Year 2003-2004 Season,� as well as a videotape copy of the Floater for the Court, the contents of which videotape are incorporated herein by reference. Also, annexed hereto as Exhibit �4" is a printout from Law & Order: Floater - TV Tome, which states critically:�SYNOPSIS: The husband of a woman whose partially decomposed body is found floating in the Hudson River becomes the prime suspect in her murder until prosecutors uncover a connection between her prospective attorney [Ravi Patel] and a judge [J. Ruth Alexander] who has heard a suspiciously high number of his cases.�
�NOTES: This episode appears to be �ripped from the headlines� of the case of Brooklyn Attorney who bribed a judge to steer cases in his favor.� (Emphasis added)
This calculated conclusion is exactly what defendants intended, and is libel per se of Plaintiff.
PARTIES5. Plaintiff Ravi Batra (Ravi) is an attorney duly licensed to practice law in State and Federal Courts in New York, as well as the Supreme Court of the United States.6. Plaintiff is the principal of The Law Firm of Ravi Batra, P.C. (TLFRB), a domestic professional corporation, whose principle place of business is in the County and State of New York, and whose sole stockholder at all material times is Ravi Batra.7. Ravi Batra has devoted countless hours to professional bar associations, and contributed to civic and social institutions since the early 1980's.8. Ravi Batra, having learned law at Fordham Law School from such scholars as Joseph R. Crowley, John Calamari, Joseph Perillo, Thomas Quinn, Leonard Manning, Hon. Joseph M. McLaughlin, Edward McGonagle, Robert Byrne, Michael Lanzarone and Barry Hawk among others, graduated from Fordham Law School�s Night Division in 1980, and has thereafter served for a period of time as a member/committee chair/director/officer of The Association of Indians In America, the National Advisory Council on South Asian Affairs to the US Department of State, a delegation to Japan led by then US Attorney General Ed Meese, an Honorary Delegate to the 1988 Presidential Convention in New Orleans, New York County Lawyers Association, Association of the Bar of the City of New York, The Metropolitan Black Bar Association, The Puerto Rican Bar Association, The Jewish Lawyers Guild, New York State Bar Association and its House of Delegates, New York State Trial Lawyers Association, American Bar Association, Association of Trial Lawyers in America, and The Federalist Society.9. Ravi Batra co-authored with Marjorie Smith the Report on Summary Orders, issued by New York County Lawyers Associations� Appellate Courts Committee and the Federal Courts Committee which led to a change in the non-publication policy of Summary Orders issued by the U.S. Court of Appeals for the Second Circuit in 1995.10. Ravi Batra chaired an ad hoc committee of New York County Lawyers Association and in May 1997 authored a �Report on Senator James J. Lack's Bill, S4264, as it relates to Judicial Discipline.�11. Ravi Batra served as a designee of New York County Lawyers Association to Judiciary Committee of the Association of the Bar of the City of New York in the early 1990's.12. Subsequent to such service, Ravi Batra was appointed in 1995 by the Kings County Democratic Party as a member of its Supreme Court Judicial Screening Committee also known as the "Karp Committee," named after its longtime chair Hon. Jerome Karp, and joined already serving members Barry Kamins, George Farkas, Louis Rosenthal, Richard Goldberg, Roger Adler, Sanford Rubenstein, Bruce Berrins, and John Gulino, among others in 1996. Ravi Batra was appointed as Vice-Chair of that Committee and served in that capacity until June 19, 2003, when he resigned. The Karp Committee never screened candidates for NYC Civil Court, while Plaintiff was a member.13. Hon. Clarence Norman Jr., a former Assistant District Attorney, Assemblyman and Kings County Democratic Leader became "Of Counsel" to The Law Firm of Ravi Batra, P.C. in June 1995, and served in that capacity until his resignation on July 3, 2003.14. The offending Law & Order Floater episode�s credits include:a. Starring: Jerry Orbach, Jesse L. Martin, S. Epatha Merkerson, Sam Waterston, Elisabeth Rohm, and Hon. Fred Dalton Thompson, Esq., a retired United States Senator, who served the nation with distinction;b. Guest Stars (character name in parentheses): Jan Maxwell (Judge Ruth Alexander) Sean Cullen (Gene Marchetti) Leslie Hendrix (D r. Elizabeth Rodgers) Erick Avari [tortiously casted to appear as real-life Ravi Batra appearing to act as the admitted-criminal Paul Siminovsky] (Ravi Patel) John E. Cariani (Julian Beck) Jason Kolotouros (Derek Greer) David Lipman (Judge Morris Torledsky) Zena Grey (Lena Marchetti) William Bogert (Alvin Hartmann) Dion Graham (Ron Hamilton) Greg Wood (James Markle) Sophie Hayden (Karen O'Farrell) William Paulson (Raoul Welch) Amy Delucia (Terry Collins) Nicole Orth-Pallavicini (Jane Evans) Michael Rupert (Darryl Prior) Diane Tyler (Tamara Fein) Adrienne D. Williams (Linda Fairborn) Paul Albe (Doorman) Greg Thornton (Chet) Nicoye Banks (David) Keith Byron Kirk (Forensic Technician) Kirsten Sans (CSU Technician) Frank Bonsangue (Clerk);c. Law & Order concept Created by Defendant Dick Wolf, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;d. Edited by Defendant David Post, who designated �outtakes� and caused same to be removed, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;e. Production Designer Gary West;f. Producers Defendants Lorenzo Carcaterra, Aaron Zelman and Marc Guggenheim who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;g. Supervisory producers Defendants Gary Karr and William N. Fordes who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;h. Co-Executive Producers Defendants Roz Weinman, Arthur W. Forney, Wendy Battles and Eric Overmyer who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;I. Produced by Defendant Kati Johnston, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;j. Co-Executive Producers Defendants Richard Sweren, Peter Jankowski, Jeffrey Hayes, Matthew Penn and Michael S. Chernuchin who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;k. Written by Defendant Eric Overmyer, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on real-life disgraced Brooklyn attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and facial hair like real-life Indian-American Manhattan attorney Ravi Batra, and defamed Batra in his professional capacity given the story line of Patel�s case-rigging, clerk-bribing to evade the random case assignment system in the court system and appear very frequently on the case docket of Judge Ruth Alexander, a character modeled across gender-line on real-life indicted felon Justice Gerald P. Garson, a Brooklyn Supreme Court Justice suspended without pay, and have his �extras� (such as billing a client $3000 for dinner at Le Circe when he had lunch for $300) on his legal fee bills rubber-stamped approved by Judge Alexander who also was illegally issued rulings on alimony, and even in child custody cases in violation of the �best interests of the child� standard while hiding behind the appellate court�s normal deference to the trial jurist on credibility issues;l. Directed by Defendant Richard Dobbs, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;m. Defendant Executive Producer Dick Wolf (displayed on the air for over 2 � seconds in the Closing Credits), who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;n. followed by a Swiss-cheese Disclaimer in Closing Credits �The Preceding story was fictional. No actual person or event was depicted.� (shown on the air for approximately � the air time given the credit for Dick Wolf, as Executive Producer), and a futile attempt by defendants to self-immunize their malicious and reckless tortious conduct that evinces a criminal disregard for the civil obligations owed to plaintiff in violation of law;o. Casting by Defendants Suzanne Ryan C.S.A., Lynn Kressel, and Lynn Kressel Casting, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;p. Associate Producer Kathy O�Connell;q. Executive Story Editor Defendant Noah Baylin, who identified changes in earlier draft-story scripts, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;r. Unit Production Manager Rebecca Saionz; First Assistant Director Robert Warren; Second Assistant Director Greg White;s. Costume Designer Defendant Jennifer Von Mayrhauser, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;t. Camera Operator David Tuttman; Sound Mixer Larry Loewinger; Supervising Sound Editor Jeffrey Kaplan; Music Editor Libby Pedersen; Assistant Cameraman Peter Ramos; Art Director John Pollard; Property Master Ron Stone; Assistant Property Robin McAlister;u. Script Supervisor Defendant Mary Gambardella, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;v. Production Coordinator Gene Ritchings; Location Manager Matthew J. Lamb;w. Key Make-up Artist Defendant Ruth Pontious, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;x. Key Hairstylist Defendant Sandy DeBlasio, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;y. Gaffer Patrick Cousins; Key Grip Carl Petersen; Still Photographers Jessica Burstein, and Barbara Nitke;z. Key Wardrobe Defendant Anne Newtown-Harding, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on disgraced attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and with facial hair like Indian-American attorney Ravi Batra, and defamed Batra in his professional capacity given the story line;aa. Assistant Wardrobe Diana Collins; Construction Coordinator John Grimolizzi; Transportation Coordinator Bill Curry, Jr.; Scenic Charge Linda Skipper; Set Decorator Edward Briggs; Set Dresser T.J. Horan; Boom Operator Jerome Vitucci; Best Boy Jeremy Hill; Dolly Grip Terence Burke; Background Casting Sylvia Fay and Fleet Emerson;bb. Technical Advisors Defendants Michael Struk and Dr. Park Dietz who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on real-life disgraced Brooklyn attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and facial hair like real-life Indian-American Manhattan attorney Ravi Batra, and defamed Batra in his professional capacity given the story line of Patel�s case-rigging, clerk-bribing to evade the random case assignment system in the court system and appear very frequently on the case docket of Judge Ruth Alexander, a character modeled across gender-line on real-life indicted felon Justice Gerald P. Garson, a Brooklyn Supreme Court Justice suspended without pay, and have his �extras,� (such as billing $3000 for dinner at Le Circe when he had lunch for $300), on his legal fee bills rubber-stamped by Judge Alexander who also illegally issued rulings on alimony and even in child custody cases in violation of the �best interests of the child� standard while hiding behind the appellate court�s normal deference to the trial jurist on credibility issues;cc. A �thank you� message is displayed on the air before closing: �Filed entirely in New York City with the cooperation of the New Tork City Mayor�s office of Film, Theater and Broadcasting, (Katherine Oliver, Commissioner), the members of the NYPD Movie/TV Unit, and the N.Y. State Governor�s Office for Motion Pictures and Television Development.�;dd. Assistant to the Executive Producer (Dick Wolf) Defendant Lydia Mayberry, who maliciously and/or recklessly made the character Ravi Patel dress and appear like Ravi Batra and defamed Batra in his professional capacity given the story line;cc. The �Floater� episode, aired for the first time on Defendant NBC television network on November 12, 2003, showed a copyright �) by Defendant Universal Network Television LLC, who maliciously and/or recklessly created or assisted in creating the character of Ravi Patel, modeled on real-life disgraced Brooklyn attorney Paul Siminovsky, dress and appear bald, with hair on the sides, and facial hair like real-life Indian-American Manhattan attorney Ravi Batra, and defamed Batra in his professional capacity given the story line of Patel�s case-rigging, clerk-bribing to evade the random case assignment system in the court system and appear very frequently on the case docket of Judge Ruth Alexander, a character modeled across gender line on real-life indicted felon Justice Gerald P. Garson, a Brooklyn Supreme Court Justice suspended without pay, and have his �extras,� (such as billing $3000 for dinner at Le Circe when he had lunch for $300), on his legal fee bills rubber-stamped by Judge Alexander who also illegally issued rulings on alimony and even in child custody cases in violation of the �best interests of the child� standard while hiding behind the appellate court�s normal deference to the trial jurist on credibility issues; such episode has been syndicated, re-aired on NBC and TNT networks, among others, and published on DVD �The Fourteenth Year 2003-2004 Season, to the great profit, including of defendants, including �residuals,� and grave professional injury to plaintiff, Ravi Batra, an injury that is continuing in futuro with every re-airing and DVD sold, causing permanent irreparable harm;dd. The Floater ends with airing: Defendant �Wolf Films� and Defendant �in association with Universal Network Television,�, and �www.UniversalStudios.com�; Defendant Universal Studios; these defendants claim an ownership/financial interest in this libelous episode that �ripped from the headlines� the Brooklyn judicial scandal involving real-life then-attorney Paul Siminovsky and indicted felon Justice Gerald P. Garson.
General Allegations15. At all material times, Hon. Gerald P. Garson lives in Manhattan with his wife, Hon. Robin S. Garson, who was elected in Brooklyn in 2002 to the Civil Court of the City of New York.16. Upon information and belief, Hon. Gerald P. Garson held various positions for many years, de jure and de facto, in the Kings County Democratic Party, including Treasurer, which he resigned (and was succeeded by Arnold J. Ludwig of Garry & Ludwig) to pursue becoming a Justice of the New York State Supreme Court.17. In 1997 Hon. Gerald P. Garson, then a private tort defense lawyer for the Taxi industry, submitted an application to the Karp Committee as part of his Supreme Court candidacy. The Karp Committee found him to be a qualified candidate, despite his prior sanction by the Court for giving excessive gifts to a judge, because of the "technical nature" of the offense and the �long standing social relationship� between the two men, that decision sanctioning then-attorney Gerald Garson was annexed to his Karp Committee application.18. Hon. Gerald P. Garson was subsequently nominated by the Executive Committee of the Kings County Democratic Party and then at its statutorily mandated Judicial Convention, and elected as a Justice of the New York State Supreme Court in 1997.19. Hon. Gerald P. Garson and Hon. Robin Garson were in the 1990s close friends of Garry & Ludwig and many prominent people in Brooklyn political and legal circles.20. Hon. Gerald P. Garson, having undergone the judicial screening process, did not complain of any untoward activity by Ravi Batra or anyone else when he was elected as a New York State Supreme Court Justice in 1997 and started to serve on the bench in 1998.21. In 1997, Hon. Gerald P. Garson, as a lawyer and later as a judge, had an ethical obligation as a lawyer and jurist to report to the authorities any "judgeship-for-sale" activity of which he was personally aware if any such activity occurred during his quest for judicial office. He never complained of any such activity at that time.22. Similarly, Hon. Robin Garson never complained of any such activity by Ravi Batra or anyone else, in connection with her election to the bench in 2002.Hon. Gerald P. Garson is Arrested and IndictedDay 1 - April 24, 2003:23. Tom Perrotta reported in NYLJ 4/24/03 �Arrest of Brooklyn Judge is Expected� that �David Bookstaver, a spokesman for the Office of Court Administration (OCA), said Justice Garson, who is certificated, had been away from court for the last month, taking two weeks of vacation and another two weeks of sick leave.�24. Nancie Katz of the Daily News reported on April 24, 2003, that �[G]arson comes from a well-connected Democratic family. His wife and cousin are judges.�25. Murray Weiss of the New York Post in an exclusive, reported on April 24, 2003 that �[A] Brooklyn judge was busted for accepting money and vacations, including an exotic jaunt to Bali, in exchange for fixing divorce cases - and has been wearing a wire for investigators probing the sale of judgeships, The Post has learned.� He continued:['W]e have uncovered a cancerous cell in the civil courts', a law-enforcement official confirmed.�;
�The DA�s office obtained court authorization from Ann Pfau, the chief administrative judge of Brooklyn and Staten Island - who�s been assigned to weed out corruption in the courts - to eavesdrop on Siminovsky�s phones and to secretly record his actions.�;
�Investigators bugged Garson�s courthouse chambers and installed a video camera and began listening to his phones.�;
�[W]hen the probers confronted Garson, he arrogantly brushed them aside, claiming they had no evidence against him, sources said. But when they described several of the highlights caught on tape, Garson revealed that judgeships were bought and sold in Brooklyn for upward of $50,000 and said he could expose it�;
�He volunteered to wear a recording device to help capture the political bigwigs he claimed were brokering those deals.�;
�Sources say Garson started meeting with various politically connected figures in Brooklyn about a month ago.�;
�It is unclear whether those meetings recorded any incriminating evidence against members of the borough�s political parties.�;
�Garson, 72, arrived at the DA�s Jay Street office at 9:45 last night, smoking a cigar and wearing a blue trench coat - but said nothing to reporters.�
26. Andy Newman of The New York Times reported on April 24, 2003, that:
�A judge with deep roots in Brooklyn Democratic politics is to be arraigned today on charges that he took gifts from lawyers � including airline tickets, boxes of expensive cigars and cash � in return for favoritism towards their clients in divorce cases, a criminal justice official said yesterday.�;
�A longtime treasurer of the Kings County Democratic organization, Justice Garson was elected in 1997 to State Supreme Court in Brooklyn, the equivalent of county court. He is expected to be charged with receiving a reward for official misconduct, a felony �notch below� bribery carrying a maximum sentence of four years in prison, the criminal justice official said.�;
�Generally, [Garson] gave a break to their clients,� the official said, adding that there were many instances of inappropriate conduct.�;
�Justice Garson has been a fixture at the intersection of law and politics in Downtown Brooklyn for decades. In the 1970's and 1980's, he had a lucrative practice representing owners of taxi fleets.�;
�According to the criminal justice official, Justice Garson accepted boxes of cigars in his chambers, while for free meals, he favored restaurants on the Upper East Side, near his home.�
Day 2 - April 25, 2003:27. Tom Perrotta reported in NYLJ on April 25, 2003, that:�At Justice Garson�s arraignment Thursday, [Hon. Charles J.] Hynes said applications for surveillance were reviewed and approved by Ann T. Pfau, Supreme Court Administrative Judge for Brooklyn and Staten Island.�;�At a press conference Thursday, to discuss the charges against Justice Garson, Hynes initially put aside the arraignment and launched into an attack on New York�s process of electing Supreme Court judges.�;�Any suggestion that this is a process giving voting rights to the public is a sham,� Hynes said.�;�Hynes said the special grand jury was convened on April 7 [2003] and would sit for at least six months. He declined, though, to say what inspired his decision and if future corruption indictments involving judicial elections would be forthcoming. A grand jury could also make findings on public policy matters and issue a report, without handling down indictments.�;
�Hynes also declined to comment on a report in the New York Post that Justice Garson had told investigators that candidates in Brooklyn could buy judgeships, and that he agreed to wear a wire to prove it.�;
�Prosecutors insisted Thursday that there had been no cooperation in the case and that no deals had been offered to any of the defendants. They said the investigation into Justice Garson began last October [2002].�
28. Nancie Katz of the Daily News reported on April 25, 2003, that:
�Brooklyn District Attorney Charles Hynes called the system of electing judges in Brooklyn a 'sham' yesterday and revealed that he had convened a special grand jury to investigate possible corruption in the process.�;
�Law enforcement sources said the special grand jury was examining allegations that �judgeships in Brooklyn are for sale� and added that �well-known political figures� were being subpoenaed. �Can a judgeship be bought? There are credible leads that it is possible,� one source said.�;
�...the district attorney said evidence turned up during the sting that led to the arrest of Garson, 70, changed his mind.� �For the first time, Hynes said, �we have specific information� about the alleged wrongdoing.�
29. Kati Cornell Smith, Murray Weiss and Todd Venezia of the New York Post reported on April 25, 2003, that:�According to court papers and law-enforcement sources, the veteran [Garson] of Brooklyn bench also allegedly took cash and gifts to fix at least five cases. The swag included cash payoffs of $5000 and $10,000, a trip to Bali, bottles of scotch and dinners at Manhattan restaurants such as Nino�s and Campagnola. Sources said Siminovsky may have been fixing cases with Garson for the entire four years Siminovsky appeared in his court.�
30. Murray Weiss, Kati Cornell and Dan Mangan of the New York Post reported on April 25, 2003, that:�[Hynes�] spokesman said leads developed during the investigation of Supreme Court Judge Garson for fixing divorce cases in exchange for bribes led to the convening of the grand jury.�;
�Garson, after being confronted with evidence of his crimes, wore a recording device for investigators in an effort to substantiate his claim that judgeships were bought and sold in Brooklyn for upwards of $50,000, according to law enforcement sources.�;
�[Garson] said he could help them develop evidence proving the scheme reached the top of Brooklyn�s Democratic political machine.�;
�Garson met with a Democratic insider in a Brooklyn restaurant three weeks ago to discuss how to get his alleged acquaintance a judgeship, sources said.�;
�But Garson�s efforts to meet other Democratic power players to discuss the matter were unsuccessful, sources said�.
31. Nancie L. Katz and Tracy Connor of the Daily News reported on April 25, 2003, that:
�They called him [Garson] the screamer.�;
�We called him 'The Screamer' because he was crude, nasty, and overly prejudiced,� said one lawyer who has known Garson since the jurist�s days as a Court St. Personal-injury lawyer.�
32. Andy Newman of The New York Times reported on April 25, 2003, that:
�You have someone who was alleged to be the corrupt businessman, working with alleged corrupt clients to an allegedly corrupt attorney, to an allegedly corrupt court clerk, court officer and then judge,� Mr. Hynes said.�;
�Justice Garson�s wife, Robin, who once served as Mr. Norman�s election lawyer, was given a spot on the ballot and won a judgeship last year.�
33. Writing about an emergency morning meeting on April 25, 2003 (the morning after Justice Gerald P. Garson was arrested) of all judges in Brooklyn and Staten Island called by Hon. Ann Pfau day after the arrest and arraignment of Hon. Gerald Garson, David Seifman of the New York Post wrote on May 3, 2003, in his �Inside City Hall� column that:�Brooklyn�s administrative judge has warned fellow jurist to steer clear of Ravi Batra, a veteran lawyer who has close ties to Brooklyn Democratic leader Clarence Norman. Sources said Judge Ann Pfau issued an edict in a meeting with judges last week [on April 25, 2003, the day after Garson was arraigned], after the court system was rattled by the indictment of Judge Gerald Garson for taking bribes. While wearing a wire for the DA�s office, Garson met with Batra and tried - without success - to get him to concede that judgeships were for sale. One source quote Pfau as saying, �If I ever get a call from Ravi Batra it won�t be returned. Anyone who deals with him is on your own.� A second source confirmed Pfau�s comments. Batra serves on the Brooklyn Democratic Party�s judicial screening committee. Batra told The Post that he�s being maligned unfairly.�
Day 4 - April 27, 2003:34. Jimmy Breslin of New York Newsday wrote on April 27, 2003, in �Judging from the Past, It�s Still Here� that:�[Meade] Esposito knew a good way to pick judges. He ran the Brooklyn Democratic organization.�;
�Esposito sat in an office on Court Street and named people to openings for judges. ... But first, you had to come up with cash for Esposito. It started with $50,000 and over the years doubled and tripled at least.�;
�Gerald Garson, a lawyer for the taxicab fleet owners, was part of the furniture in Esposito�s office.�.
Day 5 - April 28, 2003:35. Joyce Purnick of The New York Times wrote on April 28, 2003, in �Talk of Reform Could Remain Just That� that:�If we can get statewide momentum, maybe we can do it,� Mr. Hynes said this weekend.�
Day 6 - April 29, 2003 1st ever mention of Ravi Batra to-then date after the arrest of J. Gerald P.Garson:36. Colin Miner of the New York Sun reported on April 29, 2003, that:
�When Judge Gerald was confronted with evidence against him, he saw an opportunity to save himself. Sources said he told prosecutors he would wear a wire for them and get members of the Brooklyn Democratic machine talking about how, for as much as $50,000 a pop, they were buying and selling seats on the bench. Intrigued, prosecutors went along. Mr. Garson said the first person he would call would be Mr. Batra�;
�So, sources say, Mr. Garson sat down with Mr. Batra, and they talked about themselves for a while and then Mr. Garson explained he had a friend to help move up in the judiciary . He suggested that money could be paid to help this judge�s efforts. Mr. Batra didn�t say it was a bad idea. He didn�t say it was a good idea. And later, when Mr. Batra would relay the story of his meeting with Judge Garson, he would say he couldn�t understand what the judge was trying to get at. Investigators determined the tape had no prosecutorial value, and last week the book was closed on Mr. Garson�s investigative efforts, he was arrested and a grand jury was convened to look into the matter.�; and
�The grand jury has a tough road ahead because, despite Mr. Garson�s efforts, members of the Brooklyn Democratic machine caught in a scandal � witness current convicts Victor Barron and Angel Rodriguez � tend to keep their mouth shut. And when they do talk, it�s not often out of the desire to do good. In December 1999, two Brooklyn clubhouse lawyers [Garry & Ludwig], feeling Mr. Batra was cheating them out of work, wrote a letter complaining about what was going on. �It is unknown as to what Mr. Batra has accomplished in any capacity to benefit our organization,� the two lawyers wrote.� (Emphasis added).
5 days after J. Garson�s arrest, the Colin Miner article put defendants on notice of plaintiff�s innocence, and that they could not re-cast admitted-criminal Paul Siminovsky to look-like real-life Ravi Batra, as defendants did by using Erick Avari.37. Tom Robbins of the Village Voice wrote in �Judicial Fever in Brooklyn� on April 30, 2003, that:�Last week, Brooklyn District Attorney Charles J. Hynes, announcing that he had convened a grand jury to investigate corruption in the selection process of judicial candidates, invoked Lopez Torres�s underdog victory as an example of how democracy can and should work when the public gets a chance to know the candidates. �This was a woman who beat the organization,� Hynes said.�;
�A short man, with a passing resemblance to an older and dispirited Martin Sheen, Garson stood behind Hynes� tall frame at the arraignment, his shoulders slumped. The night before, when he had surrendered to the DA, Garson had been represented by Barry Kamins, an influential Brooklyn attorney who serves on Norman�s super-secretive judicial selection panel and who also represented Judge Victor Barron, who pleaded guilty to bribe charges of his own in July.�(Incorporated herein by reference are all of the news articles quoted from, in their entirety).
38. Hon. Gerald P. Garson is still a Justice of the Supreme Court of the State of New York, suspended without pay by order of the Court of Appeals after being arrested and then-indicted by the Office of the Hon. Charles J. Hynes for receiving an award for official misconduct: gratuities from matrimonial lawyer(s) in consideration for rulings during such matrimonial proceedings.39. Upon information and belief, on or about March 10, 2003, Hon. Gerald Garson, when confronted with specific evidence of his wrongdoing by the DA�s office, and aware that he had breached the sacred public trust imposed in him as an elected jurist by good, decent and hardworking New Yorkers, in an effort to win immunity or a reduced penalty fabricated that Ravi Batra had participated in an unethical and criminal scheme that would grossly undermine the public trust and confidence in the judiciary and damage the institutional interests of justice and Ravi Batra�s reputation.40. Upon information and belief, on or about March 10, 2003, Hon. Gerald Garson, when confronted with specific evidence of his wrongdoing by the DA�s office, Justice Garson, in exchange for reduced penalty or immunity, told them of an unethical and criminal enterprise to obtain money from potential judicial candidates in Kings County in exchange for the Democratic Party�s nomination, a/k/a "judgeships-for-sale", that Ravi Batra was among the people involved in the scheme and that Justice Garson would start with Ravi Batra and work inwards and upwards.41. Upon information and belief, Hon. Gerald Garson stated to the employees of the Kings County District Attorney�s Office that Batra was involved in an unethical and criminal enterprise to obtain money from potential judicial candidates in Kings County in exchange for the Democratic Party's nomination.42. Upon information and belief, Hon. Gerald Garson stated to the employees of the Kings County District Attorney�s Office that Ravi Batra was somehow selling judgeships and controlling who got on the bench in Brooklyn. See the law enforcement official/sources cited by New York Law Journal, The New York Times, Daily News, New York Post, New York Sun, and Village Voice, supra. Also see Murray Weiss of the New York Post, on April 24, 2003 that:�[A] Brooklyn judge was busted for accepting money and vacations, including an exotic jaunt to Bali, in exchange for fixing divorce cases - and has been wearing a wire for investigators probing the sale of judgeships,�;
43. Hon. Charles J. Hynes, a duly elected officer of the court, sworn to uphold the criminal law of the State of New York fairly and impartially, without passion or prejudice, was obligated to investigate such a claim by one so close to the inner workings of the Kings County Democratic Party over decades.44. As a result of Garson�s allegation of "judgeships-for-sale", the DA�s Office wired Justice Garson up with an electronic recording device and caused him to call, among others, Ravi Batra for a meeting, without specifying a topic or agenda and instructed him to meet with Batra to entrap him into making inculpatory statements.45. As a result of repeated calls by Hon. Gerald Garson, Batra and Garson did, in fact, meet during lunchtime in a Brooklyn restaurant on March 17, 2003. Unbeknown to Batra, Hon. Gerald Garson surreptitiously wore an electronic recording device throughout the meeting.46. In truth and fact, Hon. Gerald Garson had absolute personal knowledge that Ravi Batra had no role in any "judgeship-for-sale" scheme in Brooklyn, given Garson's own ascension to the bench in 1997 after an appearance before his many Brooklyn-lawyer friends who served on the Judicial Screening Panel, (a/k/a the Karp Committee). Indeed Batra was the only Manhattan lawyer on that Committee.47. In truth and fact, Hon. Robin Garson, just like Hon. Gerald Garson, had absolute personal knowledge that Ravi Batra had no role in any "judgeship-for-sale" scheme, given her own ascension to the bench in 2002.48. In truth and fact, Gerald P. Garson�s statements to the DA�s office claiming such a criminal enterprise that included Ravi Batra was totally false and lacked any basis in fact, and Hon. Gerald P. Garson knew at the time of his statements to the DA�s Office that Ravi Batra was innocent of any participation in any criminal enterprise that Hon. Gerald Garson spun to gain advantage and limit the punishment for his alleged criminal misconduct.49. Hon. Gerald P. Garson�s statements and conduct against Ravi Batra has and will continue to subject plaintiff to hatred, contempt and ridicule as an individual and as a practicing attorney, and caused Ravi Batra to be injured emotionally, economically, and professionally.50. Hon. Gerald Garson perpetrated a fraud upon the DA�s office, by making statements against Ravi Batra known at the time made to be false and without a basis in fact, upon which the DA�s office relied to their and Ravi Batra�s detriment, and allowed Hon. Gerald Garson to remain unindicted for a period of time until that office concluded that his cooperation was of "no prosecutorial value." See Colin Miner�s article in the New York Sun, on April 29, 2003, supra, wherein he reported that:�Investigators determined the tape had no prosecutorial value, and last week the book was closed on Mr. Garson�s investigative efforts, he was arrested and a grand jury was convened to look into the matter.�
51. The public policy of the State of New York, which support the investigative function of the law enforcement agencies by granting a qualified privilege to such statements, does not include a criminal-target�s knowingly making false statements to deceive the investigators, as it leads to inter alia damage to the institutional interests of justice and violations of the civil and constitutional rights of those unfairly, maliciously, recklessly or falsely inter alia investigated, such as with Ravi Batra, and consequentially subjected him to hatred, contempt and ridicule.52. As of April 29, 2003, 5 days after J. Gerald P. Garson�s arrest and the 1st time Ravi Batra�s name was mentioned in any news item, Defendants were on notice that Ravi Batra was innocent of the foul allegations being spun by an indicted felon, Justice Gerald P. Garson, as part of his �jail house rock,� i.e. sing songs that were never written, and in the process settle some old scores for his Brooklyn friends who were unhappy with Ravi Batra, who had picked law over politics and honored his high fiduciary obligations owed to the Court in the Cypress Hill Cemetery case and fired the politically connected law firm of Garry & Ludwig after discovering that they intended, as confirmed in writing, to inter alia churn legal fees and pierce the necessary neutrality required of court-appointed Ravi Batra by having him sue his own wards, a legally impossible and impermissible event.53. Defendants were obligated, in the exercise of good faith and �real� due diligence, not to defame plaintiff, as they did, by falsely accusing, prosecuting, and accepting a guilty plea from him for professional misconduct and felonies tortiously scripted for their maliciously and/or recklessly look-alike character Ravi Patel (intended by defendants to look like Ravi Batra): case-rigging, padding legal fees bill with un-held dinner meetings at Le Circe and having them court-approved by a corrupted judge, bribing a court clerk to steer cases to Judge Ruth Alexander (and for Judge Ruth Alexander to share in the bribe moneys) in violation of the Court systems� random case assignment system, etc.
GENERAL ALLEGATIONS AS TO L&O FLOATER EPISODE: LIBEL PER SE54. Defendants created a story line, wherein Ariana Marchetti, a clerk in a NYC Family Court is found murdered. L&O has Lt. Anita Van Buren acted by S. Epatha Merkerson state: �Contrary to popular opinion, there is no such thing as an ironclad prenup.� ... �Alimony clauses maybe, but custody clauses are irrelevant�the court decides whats in the best interest of the child.�Subject to an actual transcript of the episode, which is incorporated herein by reference:NEXT SCENE--- ADA Southerlyn is talking to a woman clerk/friend of Ariana:A woman court clerk, a colleague and friend of the murdered Ariana Marchetti is shown talking to ADA Southerlyn: �[H]e [Gene Marchetti] was having an affair with his secretary. What would you do?� �She {Ariana] swore me to secrecy...� �My husband told me not to get involved.� �Look, nobody knew they were having problems. She said if Gene found out she hired Patel, he�d freak. He�d take Lena [their daughter] and split the Country or something.�ADA Southerlyn: Patel?Woman Clerk/Friend: �Her lawyer. This hotshot Indian guy. A real smoothie. She was psyched. She thought he was going to really clean Gene�s clock.�ADA Southerlyn: �She was Pissed!?�Woman Clerk/Friend: �She wanted to strip him naked in court in front of God and send him home in a barrel.�
NEXT SCENE--- Tennis Court, ADA Southerlyn (ADA S) and Ravi Patel, holding a tennis racket and walking towards J. Ruth Alexander:Ravi Patel (RP): �She must have changed her mind.�ADA S: �She never asked you to handle her divorce?�RP: Never came to see me; never made an appointment. You know Judge Alexander? ADA Southerlyn.Judge Alexander (JA): Ms. Southerlyn.ADA S: Your Honor.RP: Ms. Southerlyn is working on the Ariana Marchetti matter.JA: Terrible; what a tragedy.ADA S: Did you know her?JA: Not well; but like a family at the courthouse, everyone is devastated. We�re counting on you.ADA S: Thank you.
NEXT SCENE�Jack McCoy and ADA S in DA�s office:ADA S: 3 weeks before she disappeared, she sold some stocks and wrote Ravi Patel a check for $5000.ADA Jack McCoy (ADA M): Sounds like a retainer to me.ADA S: Not only that, her computer calendars several meetings with Ravi Patel. The last one was a few days before she went missing.ADA M: Maybe you should have another chat with Mr. Patel.
NEXT SCENE�Ravi Patel, in dark navy pinstripe double breasted 6-button suit, wearing a spread collar shirt, talking to ADA Southerlyn in a courthouse corridor:RP: Called to tell her I couldn�t take her case after all.ADA S: Why?RP: Once I read the pre-nup, thought parties were better off going to binding arbitration. Why waste everyone�s time, money, litigate.ADA S: But I hear you eat pre-nups for breakfast.RP: perhaps.ADA S: what about custody?RP: She would have gotten custody; mothers always do. Her concerns were strictly financial. She had a scorched earth attitude; take no prisoners. I just thought in everyone�s best interest not to go to trial.ADA S: What did Mrs. Marchetti think?RP: I really don�t know what course of action she decided to pursue, if any.ADA S: Then why did you lie to me and tell me that she hadn�t talked to you? (Felony/professional misconduct alleged)RP: I am sorry about that; (admission of lying to an ADA and obstructing the self-policing function of the legal profession, an act of �core� professional misconduct); but I just didn�t want to discuss it in front of the judge. Take a retainer, that�s it; your committed; she�s old school. (Possible Professional misconduct; an attorney is committed upon accepting a retainer)ADA S: we pulled Ariana�s phone records; you called her the night before she disappeared.RP: To tell her that I was going to return her money.ADA S: Did you?RP: Still in the client�s a/c, accumulating interest; but I�ll send her husband a check in the morning. I am sure he could use it for his defense fund. But, thanks for reminding me.
NEXT SCENE�Apartment of Jane Evans, a former client of Ravi Patel, with ADA Southerlyn talking with Jane Evans:Jane: How did you get my name?ADA S: I called your lawyer. Your divorce was in the Court Examiner (a la NYLJ).Jane: Oh God, that.ADA S: Mr. Patel appears regularly in that periodical, among others.Jane: Price of a very high profile clientele. Ravi does love the attention not that I begrudge him that. He deserves it.ADA S: Well, it looks like he did well by you.Jane: Got me everything I asked for and more. Just eviscerated my Ex. Still those billable hours do add up.ADA S: I wouldn�t know.Jane: Let me tell you darling, it�s the extras that kill you.ADA S: Extras?Jane: $3000 for dinner at LeCirce?ADA S: I�ve never been.Jane: he didn�t even have dinner at Le Circe; it was lunch and I know for a fact that the tab was $300. (Phony billing; mail fraud, a federal felony; and possible grand larceny, a felony)ADA S: That�s quite a markup. But, then your Ex paid your legal fees right?Jane: Oh, Ravi�s bills were so outrageous I paid them myself. We didn�t want my husband�s lawyer pitching a fit.ADA S: the judge signed off on it?Jane: without batting an eye!
NEXT SCENE�DA�s office with ADA Jack McCoy and ADA Southerlyn:ADA S: All of his clients say the same thing. They knew he was padding the tab, but they didn�t care. It was worth it; he delivered.ADA M: Unethical; but not illegal. (�unethical� is Professional misconduct) You can�t get a contingency fee in a divorce case, so this is a way of picking up a performance bonus under the table. (professional misconduct)ADA S: Still, he could get disbarred for it. (Extreme professional misconduct)ADAM: Not much chance of that; his clients don�t mind it and the Judge rubber-stamps it. Whose to know?ADA S: But, why take Ariana�s retainer in the 1st place? She is not his type of client. Most of his clients are super-wealthy. The Marchettis are just not in that league. There is no big payoff at the end of the day.ADA M: Maybe, he decided it wasn�t worth the candle and dropped her.ADA S: Did he drop her? We only have his word for that. What if she knew about the billing scheme?ADA M: she threatens to expose him, if he doesn�t take her on as a client.ADA S: She writes a check, he strings her along. She disappears and he is off the hook. And he gets to keep the deposit.ADA M: You think he may be involved in the murder? (A felony)ADA S: If she knew what he was up to.ADA M: follow your nose.
NEXT SCENE�ADA Southerlyn coming down Courthouse steps and runs into Ravi Patel, who is going up (wearing a grey double breasted grey flannel suit):RP: Miss Southerlyn. What a coincidence.ADA S: I had a question.RP: You�re very persistent. Like a bulldog on a meatwagon. What can I do for you?ADA S: Judge Alexander?RP: Fair; impartial; tough. An excellent jurist.ADA S: You sound like a bumper sticker. Is she running for election?RP: Always. And I always vote for her.ADA S: I am sure you do. How is it that you draw her court so often? (Case-rigging; case steering; clerk-bribing; all felonies and professional misconduct in the extreme)RP: Actually, I don�t think That�s true.ADA S: Yeah, about three times more than most your colleagues.RP: Courtroom assignments are picked at random by the clerk. You know that.ADA S: They are aren�t they?
NEXT SCENE�DA�s Office ADA Southerlyn and ADA Jack McCoyADA S: A disproportionate number of Patel�s cases, certainly the high profile ones, were tried in front of Judge Alexander.ADA M: How did he do with other judges?ADA S: Well, according to the clients I�ve spoken with, in front of Judge Alexander, he is a saddle slew. In front of anybody else, he�s just another nag; an also ran. He loses as many as he wins.ADA M: How does he get on her calendar so often? (Possible case-rigging and case steering; both felonies)ADA S: A couple of the other lawyers have also appeared before her way too many times in the past couple of years. Jeff Thornsten; Raoul Welch.ADA M: do you think the docket is rigged? (Felony) (Paul Siminovsky)ADA S: it has to be. It�s just not the luck of the draw. (Positive felony) (Paul Siminovsky)ADA M: The clerk would have to be involved. (Paul Siminovsky; see Exhibit �2")ADA S: It would be interesting to see how J. Alexander ruled in these cases.ADA M: Matrimonial cases are sealed. Only the parties involved can get them opened.ADA S: Or the Court, if she consistently favored Patel and his friends. (Felony) (Paul Siminovsky)ADA M: Lean on the other lawyers. Find me more, we can get a subpoena.
NEXT SCENE�Raoul Welch�s (RW) office, with ADA Southerlyn:RW: I can�t afford to lose my license.ADA S: You�re going to be disbarred Mr. Welch; whether you go to prison or not is up to you.RW: Prison? What can I do?ADA S: We could discuss a suspended sentence; probation. Depends on what you give us.RW: I do what I have to do to get on Alexander�s docket. (Case rigging; case steering; felonies admitted)ADA S: Why?RW: she likes me. Bends over backwards to give my clients the benefit of every doubt. Get it?ADA S: Spell it out for me.RW: I jack up my bill; the client pays a surcharge. I grease the Clerk to make sure J. Alexander hears the case.ADA S: The clerk who sets the calendar?RW: The judge hears the case. My client hits the lottery. My client thinks I walk on water; doesn�t mind paying a premium, especially, if the Ex gets screwed.ADA S: And the judge likes you because? Your winning personality? You went to law school together? What?RW: come on..ADA S: Mr. Welch!RW: I pay a lot of money to the clerk to get on the judge�s docket, you understand what I am saying? A lot. I am not talking about slipping the usher a �for a better seat at the stadium. (Clerk-bribing, a felony admitted)ADA S: And the clerk takes a piece and kicks the rest to the judge? (Judge-bribing, a felony)RW: I don�t know that for a fact. Not at all. I don�t deal with her directly; only with her clerk. But I don�t see her clerk driving a brand new car every year, if you know what I mean?
NEXT SCENE�DA�s Office District Attorney Arthur Branch (DA), ADA Jack McCoy and ADA Southerlyn:DA: Ruth Alexander was the brightest student I ever had.ADA M: I didn�t realize you had a history.DA: I helped her get her 1st job. I used to tell her she�d become the state�s 1st woman governor. Nah, I just can�t believe she would get involved with something like this. There�s got to be something more than meets the eye.ADA S: There might be.DA: What�s that supposed to mean?ADA S: It may be linked to Ariana Marchetti�s murder.ADA M: I know you don�t want to believe, but if cases are being rigged, then Judge Alexander has got to be involved.DA: that�s a big �if�. Can Welch give us Patel?ADA S: He can only put himself in. And there are rumors that other lawyers have similar arrangements, but he has no 1st-hand knowledge.DA: With Welch�s deposition, I can get a subpoena to open her cases, but I don�t know what its necessarily going to tell us. ... Its not like criminal court, where a client is guilty or innocent. It wont be clear-cut.ADA M: she has to be able to defend her decisions on appeal.DA: It�s like point-shaving in basketball, and subtle, open to interpretations. Unless, she made some really egregious rulings.ADA S: There is one way to find out.DA: Soon as I issue subpoenas, its going to be all over town before you can say Jack Robinson. Now, I don�t want to drag her name through the mud unless there is something to this. (A District Attorney worried about besmirching an innocent subject of an investigation).
NEXT SCENE�ADA McCoy and ADA Southerlyn:ADA M: What if it wasn�t the bill padding that Ariana knew about? What if it was the case rigging? She sees the same handful of lawyers going in and out of Alexander�s courtroom, racking up favorable decisions time after time and puts 2 and 2 together.ADA S: she goes to Patel and says take my case or I�ll blow the whistle.ADA M: In that scenario, he is looking at prison, not disbarment. (Felony)ADA S: But why not just take her case to keep her quiet?ADA M: Because, Ariana wanted that pre-nup annulled. But, if Alexander throws out the pre-nup it would be so blatantly obvious it gets reversed on appeal and brings the whole rotten arrangement come to light....ADA M: her clerk can help us make the corruption case. We�ll need more than that for the Marchetti murder.
NEXT SCENE�Ravi Patel, in a navy pinstripe double breasted suit, comes to the DA�s office and speaks with ADA McCoy:ADA M: Mr. Patel, thanks for coming.RP: I thought about bringing an attorney.ADA M: why didn�t you?RP: I think I can adequately represent my own interest. Besides, why turn this into an adversarial situation.ADA M: any idea why I asked you to come?RP: You know how the courthouse isADA M: a hot bed of gossipRP: a petri dish. Rumors are flying. DA is convening a grand jury, looking into allegations of corruption.ADA M: we may ask you to appear.RP: Its true thenADA M: that would be prematureRP: I don�t think I�d be of much useADA M: you�re not aware of any irregularities?RP: noADA M: know Raoul Welch?RP: yesADA M: he�s confessed to bribing the clerkRP: why would he do that?ADA M: to get his cases heard by J. AlexanderRP: Ms. Southerlyn intimated there may be something amiss with the judge�s docket. But I didn�t know what she was getting at.ADA M: you�re not curious why he bribed the clerk to get on the judge�s calendar?RP: J. Alexander is fair and smart. What you want in a judge, but don�t often get. Why wouldn�t he want to have her (professional misconduct-unaffected by clerk-bribing to evade random case assignment)ADA M: you appear before J. Alexander quite often. More often than Mr. Welch in fact, or Mr. Storsten.RP: I wouldn�t know that. Where is Ms. Southerlyn?ADA M: she is interviewing the judge�s clerk. We are working out a plea bargain.RP: perhaps, I do know something more about this than I realized. If I can be helpful in anyway.ADA M: No thanks. We have all the witnesses we need.RP: well, sorry, I couldn�t have been of more assistance.ADA M: Unless you know something to tell us about the murder of Ariana Marchetti?RP: I don�t think I know anything about that.ADA M: Your phone records suggest that you do.RP: am I a suspect?ADA M: you made several calls to J. Alexander the night before Ariana disappeared.RP: purely for business, I�m sure.ADA M: after 10pm? And after speaking with the judge for an hour, you hung up and called Ariana Marchetti, spoke with her briefly and called the Judge back again.RP: the calls were not related. I�ve told Ms. Southerlyn I called Ariana, because I wanted to return her money.ADA M: you called to set up a meeting between Ariana and Judge Alexander. Once we lay out the magnitude of your corruption the jury will find it easy to believe that you and Judge Alexander conspired to murder Ariana Marchetti to silence her.RP: I can give you the judge.ADA M: I thought you could.
NEXT SCENE�DA�s office, with DA Branch and ADA McCoy:DA: been reading this damned deposition all evening; can�t seem to get past the 1st paragraph. Patel?ADA M: full statement.DA: any room for doubt?ADA M: noneDA: Ariana Marchetti?ADA M: That too. Patel says the judge just wanted to talk to her; doesn�t know what went wrong.DA: well, something sure as hell did!!! What a waste.....LAST SCENE�DA Branch and ADA McCOY:DA: ... you know the old saying �even the wicked�... �even the wicked get worse than they deserve.�
AS AND FOR A FIRST CAUSE OF ACTION55. Plaintiff repeats and realleges each and every allegation contained in paragraphs �1" to �54" as if set forth herein in full.56. In truth and fact, defendants had absolute personal knowledge that Ravi Batra was not Paul Siminovsky, who is an admitted-criminal.57. In truth and fact, defendants had absolute personal knowledge that Ravi Batra had no role in any "steering cases in violation of the court�s random case assignment system to get on J. Gerald P. Garson�s calendar,� or �bribing J. Garson�s court clerk or court officer to get on J. Garson�s calendar with the expectation that the court clerk or court officer was sharing the bribe-money with J. Garson (a la character J. Ruth Alexander),� or �had padded the bill for legal services for dinner-not had at Le Circe and which was rubber-stamped approved by J. Garson (a la character J. Ruth Alexander).�58. In truth and fact, defendants, with the exercise of due diligence and good faith, had absolute knowledge that Ravi Batra had never appeared before J. Gerald P. Garson on any case, and hence, could not be used as a foul character-replacement for Paul Siminovsky as defendants scripted and cast the Floater episode, ripped as it was from the headlines about the criminal allegations about Paul Siminovsky and Hon. Gerald P. Garson.59. Defendants knew at the time the created the Floater and aired same as well as prior to each re-publication, that Ravi Batra was not guilty of Paul Siminovsky�s professional misconduct and criminal behavior and lacked any basis in fact; defendants knew at the time of their publication, and re-publication of the Floater episode that Ravi Batra was innocent of any participation in any criminal enterprise that existed between Paul Siminovsky, Siminovsky�s matrimonial and child custody clients, Hon. Gerald Garson, and J. Garson�s court clerk and court.60. Defendants� published and re-published statements and conduct portrayed in the Floater against Ravi Batra has and will continue to subject plaintiff to hatred, contempt and ridicule as an individual and as a practicing attorney, and caused Ravi Batra to be injured emotionally, economically, and professionally.61. Defendants maliciously and/or recklessly made false and defamatory statements concerning Ravi Batra in the Floater episode, including the commission of crimes and disbarable-offenses; indeed, the inclusion of a Ravi Batra look-alike with the name �Ravi Patel� to do the crimes and misdeeds that Paul Siminovsky allegedly did, when Ravi Batra had no (zero) role in the alleged corruption of Hon. Gerald P. Garson�s matrimonial courtroom, case disposition or docket is libel per se.62. Defendants� statements, as aired in the Floater, including all of the false and defamatory statements concerning Ravi Batra, were known by defendants to be false and fabricated when made.63. Defendants� false statements, aired and re-published repeatedly, about Mr. Batra has injured his reputation and caused him economic loss in his professional practice, and inter alia suffer unnecessary expense as a result in an amount that exceeds the jurisdictional limit of all lower courts.64. Defendants� false and defamatory statements concerning Ravi Batra made in the Floater episode constitute libel per se because they affect a person in his profession by falsely accusing him of dishonesty, misconduct and unfitness to practice law and defendants are liable for damages to be established by a jury at trial in the reasonable amount of $5,000,000.00 or 100% of defendants� gross earnings, fees, royalties, advertisement revenues and �residuals�, whichever is greater, and accepted by a jury at trial.
65. The defendants� statements against Ravi Batra were malicious and made with actual malice in that they were known by them to be false at the time made with reckless disregard for the truth, and the defendants, jointly and severally, are therefore liable for punitive damages to be established by a jury at trial.AS AND FOR A SECOND CAUSE OF ACTION66. Plaintiff repeats and realleges each and every allegation made in paragraphs �1" to �65" as if set forth herein in full.67. Defendants� statements against Ravi Batra made in the Floater, including scripting and casting a character Ravi Patel to play the ignoble Paul Siminovsky role with Justice Gerald P. Garson, were false and known to be false when made and were made in reckless disregard of the truth.68. Defendant's statements against Ravi Batra made in the Floater to constitute libel per se because they affect a person in his profession by falsely accusing him of dishonesty, misconduct and unfitness to practice law, and defendants are liable for damages to be established by a jury at trial.69. The defendants� statements against Ravi Batra were malicious and made with actual malice, in that they were known to be false at the time made and with reckless disregard for the truth, and the defendants, jointly and severally, are therefore liable for punitive damages in a constitutionally proper amount of $10,000,000.00 or 10% of defendants� individual net worth, whichever is greater, and accepted by a jury at trial.70. Along with all additional remedies that appear just and proper to the Court that will prevent the re-publication of this libelous episode and recurring re-injury of plaintiff.WHEREFORE, it is respectfully requested that this Court enter a judgment in favor of plaintiff and against defendant in an amount to be determined by a jury at trial, together with costs, disbursements, and attorney's fees incurredDated: November 12, 2004
Respectfully,
Howard R. Birnbach, Esq.Attorney for Ravi Batra111 Great Neck Road, Suite 413Great Neck, NY 11021516-829-6305
\L&OFloater.111204 EXHIBITS �1" - �5" ANNEXED TO THE VERIFIED COMPLAINT
�1"-11/10/04 NY Daily News Dennis Farina�s piece on �GOV LOVE;��2"- NYTimes article with Paul Siminovsky blow-up;�3"-is a copy of a NBC.Com printout for L&O Floater episode, Law & Order Credits, NBC Corporate Info, TVTome L&O Guide, NBC Law & Order About The Show, TV-Tome Law & Order Intro (Show Information, Show Stars, Show Crew, Show News, Show DVDs), 9-page TV-Tome Law & Order-Crew Guide, the booklet that accompanies the 3-DVD disc set for the �Law & Order Fourteenth Year 2003-2004 Season,� as well as a videotape copy of the Floater for the Court, the contents of which videotape are incorporated herein by reference;�4"- WWW.TVTOME.Com Synopsis and Notes; and�5" Erick Avari�s biographical data, including playing Ravi Patel in the Floater.VERIFICATIONThe undersigned, an attorney admitted to practice in the courts of New York State, shows: that deponent is the attorney of record for RAVI BATRA; that deponent has read the foregoing Verified Complaint and knows the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. Deponent further says that the reason this verification is made by deponent and not by plaintiff is that plaintiff does not reside in the County where deponent's office is located. The grounds of deponent's belief as to all matters are as follows: upon review of the public record, and discussions with Ravi Batra. The undersigned affirms that the foregoing statements are true, under the penalties of perjury.Dated: November 11, 2004___________________________Howard R. Birnbach, Esq.
Index No. 116059/04
NEW YORK SUPREME COURTCOUNTY OF NEW YORK
RAVI BATRA,Plaintiff,-against-1. Dick Wolf, 2. Lydia Mayberry, 3. Eric Overmyer, 4. Noah Baylin, 5. Mary Gambardella, 6. Jennifer Von Mayrhauser, 7. Ruth Pontious, 8. Sandy DeBlasio, 9. Anne Newtown-Harding, 10. Michael Struk, 11. Park Dietz, 12. Wolf Films, 13. Richard Sweren, 14. Peter Jankowski, 15. Jeffrey Hayes, 16. Matthew Penn, 17. Michael S. Chernuchin, 18. David Post, 19. Lorenzo Carcaterra, 20. Aaron Zelman, 21. Marc Guggenheim, 22. Gary Karr, 23. William N. Fordes, 24. Roz Weinman, 25. Arthur W. Forney, 26. Wendy Battles, 27. Kati Johnston, 28. Richard Dobbs, 29. Suzanne Ryan C.S.A., 30. Lynn Kressel, 31. Lynn Kressel Casting, 32. NBC television, 33. Universal Network Television LLC, 34. NBC Universal NY, and 35. Universal Studios,Defendants.
------------------------------Summons and Verified Complaint------------------------------
HOWARD R. BIRNBACH, ESQ.Counsel for Ravi Batra111 Great Neck Road, Suite 413Great Neck, NY 11021516-829-6305
I've followed the case of Judge Gerald Garson for some time now, and was delighted that he finally received justice. Speaking as someone who struggled for years through the family court system against a judge who was both directly, unbelievably sarcastic and insulting to me for trying to protect my child, and who denied the rights of my child several times, and I believe in my former husband's pocket, I thank the Lord that this particular judge's sentencing is sending a powerful message to all judges - - Do the right thing. You are often the last resort that a struggling parent (and child!) has. Is that bribe worth depriving a trusting mom, dad, or child of hope and perhaps even safety?
This man says the Lord is with him? I don't doubt that. But the Lord was also with all those children and moms (and dads, too), the day this reprehensible man was sentenced. The day this judge received his own justice, was a day for children and mothers (dads, too) across America.
Judges, pay attention.