FRANCOIS RIVERA - Pouting that a litigant took bat out of his hands... or petty tyrant?
ALPHA LAST REVISION -- July 5, 2017
At thegrowler.org (wannabe news-ish) we sometimes take a look at the legal system from many viewpoints. Sometimes word of a situation reaches ears of those who have had not too dissimilar episodes in court.
Almost all of these are cases wherein the litigant is pro-se and is getting savaged by the court or they are represented by an attorney that fails to stand up to such judicial savagery.
One such case involves NYS Supreme Court Judge Francois Rivera.
I was asked to attend the proceedings to serve papers. That did not happen and I stayed to watch the proceedings.
It was quite an eyeful and earful.
First Call - Did not attend as all parties were not yet present.
Second Call - Saw a few cases. Most pretty innocuous. But there were three cases where Francois Rivera distinguished himself with considerable aplomb before the equivalent of a judicial F-Bomb on a litigant.
02: CASES HANDLED WITH APLOMB
Case #1 - Abandoned claim
A long stale cross claim was dismissed as abandoned under CPLR 3215c.
Judge Rivera went out of his way to ask the cross claimant if he put ANY reasons in the motion for default judgement on the cross claim some several years after the default that would explain or excuse the fact that the motion for default on the cross claim was more than a year after the default (the deadline before case becomes statutorily abandoned).
After some nuanced back and forth with the attorney who was a bit light on the English, it was admitted that there was not even an alleged reason was present in the motion papers.
Judge Rivera promptly dismissed the case as lack of reason for greater than one year delay is fatal to cross claim.
Good job Rivera, you should give lessons to people like Donald Scott Kurtz who muck up this simple concept.
Case #2 - USURY
Some poor, nearly homeless gentleman with a monies due him in a few years of about $20,000 has sold the debt to a company that was going to pay him early and at a discounted rate of 18% per year in advance.
Judge Rivera said he couldn't live with himself if he approved 18% and asked the company fronting the monies to drop it to something under 9%. The attorney fro the fronting entity said that that would not work. Rivera said make a phone call and see what you can do and adjourned the case.
The attorney came back later and hit 12%. A win for all.
CASE #3 - Missing Pages
There was a case before Rivera about a car lease. One side said, hey I only have the first page that says it is the first page of 6.
How can the other side be allowed to continue by placing only the first page of a document under dispute with the court?
Judge Rivera walked the parties through it very clearly and in a logical stepwise fashion. Essentially he encouraged the litigant that supplied the partial paper to ask for leave to amend and for the other litigant to not object.
03:LONG MEMORY PROBLEM
In several of the cases before the F-Bomb case, Rivera let the attorneys know that he had a veeerrrry long memory and that it was, in effect, unwise to cross him.
It is hard to interpret that as anything as a standing implied threat. One can only come to the conclusion that he knows what he does is often wrong and that the attorneys before him should not actually act as a zealous advocate lest they pay a price, an unwarranted one at that.
If the long memory statement was innocuous the same results could be achieved by thanking attorneys for their gracious actions in the furtherance of getting to the bottom of things absent delay avoided by their gracious acts.
04: JUDICIAL F-BOMB
Now we come to the case we came to court for. Case # 507156/2013.
The case was on for three reasons: DEFENDANT: Quash Subpoena and Protective Order (related to the Subpoena);PLAINTIFF: Sanctions for the motion
Sharp Knife Rob Glunt (Cornell and Columbia, Quinn Emmanuel) defending Bright Bulb Kyle Taylor (Michgan, Cornell, Quinn Emmanuel) and taking over for Rishi Bhandari (Vassar, NYU, Quinn Emmanuel).
First words out of Glunt's mouth was that he didn't know what the document was and that it looked like some kind of discovery device.
First words out of judge's mouth were that he did not know what it was either and that it was not any sort of discovery device.
By the end of the hearing wherein the judge and the attorneys hid in Rivera's chambers.... (you can't plot discovery unless hidden from public view, i guess), the judge wagged an angry finger and said, I will write a decision on Tuesday but this is effective NOW that, among other things, if the person who filed the document (the one he didn't understand or know what it was) doesn't withdraw it, he will be sanctioned. In addition Rivera ordered the ridiculous, that the author of the document was a ward of the court in that he must always go through his attorney, even for things not related to the cae as this document was.
What is it? It is an affidavit stating facts (truths) that Brett Wynkoop is willing to go to jail for... under penalty of perjury.
Well, I am befuddled , it is not filed and has no case number. So it is not a part of the courts. What, pray tell, does a poor judge to do....? Strike out I guess.
05:THE FISHING EXPEDITION
The complaint against Wynkoop alleges Wynkoop occupies a particular floor in a building and that there is a spiral staircase between that floor and the one above (both of which are part of Wynkoop's co-op lease).
Lets see, Plaintiff alleges A and B against Defendant.
Defendant admits to both A and B. Not much else to do about A and B, right?
Well, not unless you are Judge Francois Rivera who is threatening to allow the Plaintiff to enter into Wynkoop's home absent any articulable goal. That seems to be a fishing expedition is hilarious when you understand that a long time ago Rivera was being investigated for doing bad things to become a judge. Part of his defense was that the prosecution shouldn't get unfettered access to his records absent a articulable goal backed by something more than .... you got it ... a fishing expedition.
Rivera, to quote someone in a Federal trial I witnessed, "Is acting like a jackass."
06: WHAT IS REALLY GOING ON
One need read the legal tea leaves to see a possible reason why.... the author of the document had recently made a pointed scathing complaint to the Administrative Law Judge Lawrence Knipel.
Well, Rivera was on good behavior for one hearing and then.... this ... a judge who threatened to sanction anyone calling out lawyerly malfeasance blows a gasket when someone finds an extra judicial mechanism to deal with issues.
Extra judicial.... not of the courts. That's right, you have rights outside the court. The courts hate that.
Predate the Constitution they do.... and absent constitutional amendments or statutes ratified by congress they still exist. They don't teach them to lawyers much anymore, but watch the fur fly when you file one. As is the case here. Someone took a bat out of Rivera's hand and he went batty (pun intended - bat - batty).
Well, this particular version of batty is a violation of due process and in excess of Rivera's jurisdiction. He cannot threaten people who serve affidavits on other people.
That is just plain stupid.
The takeaway is that the court's have no extra-judicial power and when they try to assert extra judicial power.... the need to be stopped.
07: THE MISSING PAGE
As noted, a case before Rivera that day included someone who put in an incomplete document, the penalty, absent a request to supplement the record, is dismissal.
In the case in point here Rivera was aware that there was a missing page from the document in the initial complaint against Wynkoop that spoke directly to the issues at stake that would bury the opposition.
08: UNTOLLED COSTS
In a case that can be solved/settled by actually looking at one page of a co-op lease, more than a Million dollars has been wasted by Rivera. Churn those fees baby.
09: END STATEMENT
One of the problems we find is that judges like Francios Rivera often do what the should (3215c, USURY, incomplete document) as well as what they should not (allow incomplete document, threaten people if they don't undo something not before the courts, threaten to allow fishing expeditions).
Wynkoop should fight this judicial barbary to the end, the end of Rivera'a career if need be.
****FULL Disclosure #1.
I Know Mr. Wynkoop. He is so fastidiously honest, to a fault. I was a non-believer until I saw this Rampaging Rivera up front and in person.
****FULL DIsclosure #2.
I have served a few of these affidavits sworn to under penalty of perjury. The results are spotty but there are results. Power to the people I guess.
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