SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
ELLIOT ZARETSKY, HAROLD ZARETSKY,
SHIRLEY ZARETSKY, and MAXI-AIDS INC.
Plaintiffs, Index No. 17869-08
-against- DEFENDANTS’ AFFIDAVIT IN REPLY TO THE INSTANT
SHOW CAUSE AND IN
AARON BERLIN, FEIGE ZARETSKY, OPPOSITION TO PLAINTIFFS’
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
Aaron Berlin, a defendant herein, being duly affirmed deposes and states under penalties of perjury as follows:
According to the directive found in Judge Feinman’s order dated January 9, 2009 (See show cause Exhibit A), Michael Solomon, as plaintiffs’ counsel was supposed to have served each of the two defendants with a copy of that same order together with its’ notice of entry by both certified mail and regular mail. Michael Solomon did not serve any of the defendants with a copy of the order, and certainly not with its notice of entry. Michael Solomon shamelessly has submitted to Judge Steven M. Jaeger in his opposition papers to the instant show cause a pack of nonsense paper containing no date of entry, while arrogantly and deliberately misrepresenting it as though it were indeed a true and valid notice of entry.
Michael Solomon knows very well that his empty notice is valueless and legally defective, as the defendants have pointed this out to Judge Jaeger numerous times already since May 24, 2011.
In the absence of service of a valid notice of entry, the inquest held on May 7, 2009 as well as plaintiff’s money judgments against defendants derived thereof collapse like a house of cards.
It is as though Michael Solomon is coming to Judge Jaeger holding in his hand a dead fish wrapped in a paper bag and insisting that it is a notice of entry with an affidavit of service. It matters not how many times you tell him that he’s waiving nothing more than a dead fish in a paper bag, Michael Solomon insists it is a notice of entry with an affidavit of service.
For the reason that follows next, Michael Solomon legitimately believes that he could get away with his circus performance in front of Judge Jaeger, and that Judge Jaeger will accept from him anything he says as “holy and worthy”, no matter how outrageous and ridiculous.
Judge Jaeger has continuously appeared bias and adversarial toward defendants herein, and the instant show cause likewise seeks through a renewal motion the recusal of Judge Jaeger on the grounds of bias and judicial misconduct. On June 2, 2011, Judge Jaeger issued an “order” barring defendants from bringing any further motions in the case. The June 2 “order” was neither the result of a hearing nor a written motion, but motivated by bias and conspiracy with plaintiffs’ counsel, in the hope of destroying defendants’ position in the instant litigation in order to assure that defendants real property would be improperly sold through the County Sheriff. The actual conspiracy and direct roll that was seen played by Judge Jaeger’s law secretary, Eric Milgrim, in furtherance of the scheme, is very well described in the defendants first show cause seeking Judge Jaeger’s recusal, dated August 9, 2011.
Judge Jaeger had become aware on May 25, 2011 through defendants’ opposition papers to a certain then pending motion by plaintiffs, that Michael Solomon had fatally botched up the notice of entry of the underlying order of Judge Feinman, which had granted plaintiffs summary judgment against defendants. Additionally, by letter dated May 25, 2011, defendants had advised Eric Milgrim and Judge Jaeger that defendants had one day previously served and filed a valid notice of entry of the underlying order dated January 9, 2009, and were preparing to bring a motion pursuant to CPLR 5015(1)(a) to vacate same.
In furtherance of the bias and judicial misconduct, Judge Jaeger issued his order of June 2, 2011 in the form of an illegal stipulation; and where the only parties to stipulate were the plaintiffs and Judge Jaeger. The defendants were not a party to this unlawful “court ordered stipulation.” As set forth in the defendants’ previous show cause, dated August 9, 2011, which seeks Judge Jaeger’s recusal, the so called stipulation paper was hand written by Eric Milgrim; and although Milgrim tried to con the undersigned Defendant Berlin to sign his handwritten stipulation by telling him that Judge Jaeger had ordered him that he must sign it, Defendant Aaron Berlin absolutely refused. Accordingly, the only parties to the “court ordered stipulation” are plaintiffs and Judge Jaeger.
In view of all the above, it is no wonder that Michael Solomon should feel he could get away with bringing to Judge Jaeger a “dead fish wrapped in a paper bag” and shamelessly calling it a notice of entry with an affidavit of service.
Interestingly, Michael Solomon in his Affirmation in Reply dated June 1, 2011, that was deviously submitted to Judge Steven Jaeger relating to his motion that was then officially before Judge Ute Wolf Lally, and which subsequently became the subject matter of two separate motions brought by defendants seeking the recusals of both Judge Lally and Judge Jaeger, conceded therein that he failed to submit a valid notice of entry. Except that, Michael Solomon while displaying in those papers his total ignorance and absentmindedness of the law performed a different circus act while using another dead fish, and where he attempted to disguise himself as the next up and coming Professor David D. Siegel.
Now quoting Absentminded Professor Michael D. Solomon from ¶¶ 5 & 6 of the aforementioned Affirmation in Reply:
5. Defendants act as if they have discovered the motherlode (sic), when, in reality, they have afforded Plaintiffs the opportunity to expose them for the liars and manipulators that they really are. According to defendants, Plaintiffs served a defective notice of entry with the order of Justice Feinman. Allegedly, this defect is so fatal that all subsequent actions taken by Plaintiffs, including the inquest, the judgment, and all enforcement proceedings, must be vacated. This is the classic case of a red herring.
6. Defendants claim that the notice of entry failed to contain a date of entry of the order and that the affidavit of service was only for certified mail and not also for regular mail. Notice of entry has one purpose and one purpose only: to start the clock running for an appeal. CPLR 5513(a). The order of Justice Feinman granted Plaintiffs’ unopposed motion for summary judgment. This order, by definition, is not appealable paper. Pursuant to both statutory and case law, it is well settled that no appeal lies from a judgment or order entered upon default. CPLR 5511; Marino v. Termini, 4 AD3d 342, 771 NYS2d 937 (2d Dept. 2004); Vandyke v. Kelly, 9 Misc3d 131(A); 808 NYS2d 921 (Sup. CT. App. Term 2005). As no appeal lies from the grant of summary judgment based on Defendants’ default in opposing the motion, then any alleged defect in notice of entry of that order is academic.
Apparently, at the time professor Michael Solomon wrote his above law commentary he conveniently forgot the wording found in CPLR 5015(a)(1), and had hoped Judge Jaeger would too.
However, now that defendants have brought a motion to vacate pursuant to the aforesaid CPLR, Michael Solomon conveniently transforms from professor to circus clown and does a one-hundred and eighty degree flip-flop performance.
So while Michael Solomon is dancing in front of the court like Bozo, it should take only a simple rudimentary reading to see that there is no date of entry included on his defective paper submitted to the referee at the inquest. Consequently, the referee had no jurisdiction whatsoever to commence the inquest.
For the record, contrary to Michael Solomon’s attempt to legitimize his non-filed affidavit of service of his defective notice, defendants have insisted continuously that they were never served even with a copy of the underlying order alone.
Michael Solomon’s entire opposition papers as well as his frivolous cross-motion all smell from dead fish as well. However, before I dissect his latest papers, the Court is advised that defendants have brought or will be bringing another show cause seeking vacatur of the previous order of Judge Feinman dated April 30, 2010, as the notice of entry of that order is likewise defective, as it fails to describe when and with whom the order was entered.
"To be effective the ‘Notice of Entry’ must strictly comply with CPLR 5513 and state exactly when and with whom the order or judgment was entered, and if it describes the judgment or order, the description must be accurate." Unique Marble & Granite Org. Corp. v. Hamil Stratten Props., LLC, 13 Misc. 3d 1239A, 831 N. Y.S.2d 357 (Queens County Sup. Ct. 2006) citing Reynolds v. Dustman, 1 N. Y.3d 559, 772 N. Y.S.2d 247 (2003)(service of an unstamped copy of the order, with a cover letter saying it had been filed with the clerk, did not constitute proper notice of entry).
Not withstanding all the aforesaid, defendants are fully aware that it matters not as to how strong the proofs are described in defendants’ papers, that defendants will be defeated on the recusal motion at the first court level. In different words, defendants expect nothing less than Judge Jaeger’ denial of any wrongdoing and/or conspiracy with plaintiffs’ counsel and Judge Ute Wolf Lally, and his refusal to recuse. Likewise, the decision of Judge Lally denying recusal and any wrongdoing, but yet transferring her auxiliary case entirely to Judge Steven Jaeger was anticipated. Additionally, defendants don’t expect even for a moment that Michael D. Solomon would become repentant and concede to being a sleazy lawyer.
If that be the situation, then in the alternative, the audacity of Michael Solomon to insist before the Court of Judge Jaeger that his defective dead fish is a valid notice of entry brings to mind the world famous story of the Emperor’s New Clothes, written by Hans Christian Andersen. Like the two swindlers in that story that called themselves weavers, Michael Solomon comes before this Court trying to convince Judge Jaeger that the he’s looking at a valid notice of entry. Out of respect to the Court I will not follow through with the allegory.
Michael Solomon is a shameless scoundrel bringing a cross-motion claiming that defendants’ show cause seeking vacatur pursuant to CPLR 5015(a)(1) is frivolous. His cross-motion smells like a dead fish. The one that should be sanctioned for bringing frivolous actions and motions is Michael Solomon. There is nothing valid about his silly cross-motion.
Defendants show cause for vacatur under the aforesaid statute is one hundred percent appropriate. Prior to the defendants filing of a proper and legally valid notice of entry on May 23, 2011 such a motion would have been premature. The CPLR states in pertinent part:
CPLR 5015(a) states:
The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
(1) excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry...
Apparently, Michael Solomon is not only ignorant on simple law and procedures relating to notices of entry, but also ignorant as to simple litigation. From the onset of this case, Michael Solomon knows he cannot succeed against the pro se defendants in this case on the merits, and is desperate to see the defendants’
default should stick. Even the defendants’ show causes seeking recusal of Judge Ute Wolf Lally, as well as of Judge Jaeger, are all based on tricky maneuvers by Michael Solomon around his obtaining defendants’ default by his serving defendants with a Notice of Motion bearing the name of the wrong judge and courtroom and thereafter conspiring to prevent defendants from having their default vacated.
While not looking to go off on a tangent, for what reason did Michael Solomon commence the auxiliary action (Index No. 8498/10) that had been previously assigned to Judge Lally? That auxiliary action was commenced by Michael Solomon filing a Notice of Petition with an RJI on May 30, 2010, and was assigned to Judge Thomas Feinman. Now, there was already in the underlying instant case a money judgment against defendants for 1.3 million entered by the clerk of the court as of December 1, 2009. Surely, plaintiffs could have proceeded to the sheriff to sell the Defendant Feige’s home directly with that December 1 judgment. There was no reason to commence this auxiliary action six months later other than to use the court frivolously. This question was asked repeatedly to Michael Solomon’s partner, Daniel Herrera, by the clerk at the Appellate Division on Friday, July 22, 2011. Herrera had no answer.
Actually, if we are to backtrack a bit earlier in time, there is still another question; the same question as the previous but even stronger. Prior to Michael Solomon commencing the aforesaid auxiliary action, Michael Solomon commenced a similar action for the very same relief on March 8, 2011, by filing a Notice of Petition and RJI, while deliberately failing to state that the case is directly connected to the underlying instant case, then still assigned to Judge Feinman. That case can be found under Index No. 4585/2010. And yes, Michael Solomon was judge shopping. Solomon had hoped for a judge other than Judge Feinman where he could manipulate his way against defendants to another default. Solomon “rolled his dice” but was not successful. In the absence of a truthful RJI this earlier action was assigned to Judge Vito M. Destafano. Subsequently, a motion relating to the Sheriff selling Defendant Feige’s home was made to Judge Destafano returnable May 30, 2010. Michael Solomon was relying on defendants default and where he could get away with failing to disclose his botched and defective notice of entry to that Court. However, Judge Destafano realized that Michael Solomon was a sleaze and that as he was hiding from the court a copy of his actual petition. Judge Destafano actually noted by pen this question on the face of his papers. When Judge Destafano questioned Michael Solomon on the motion return date as to why he failed to file a copy of his petition with the clerk, Michael Solomon realized Judge Destafano wasn’t going to take any of his garbage. Such a judge was not for him. Accordingly, Michael Solomon withdrew his motion before Judge Destafano on that 30th day of May 2010. Later on that very same day Michael Solomon commenced a new auxiliary action (Index No. 8498/2010) seeking the same relief, but this time he wasn’t taking any more chances, and made certain through his RJI not to reveal his previous auxiliary case or the name of Judge Destafano. Instead, on that RJI Michael Solomon only revealed the underlying instant case then pending before Judge Feinman to be certain that the new auxiliary case would get assigned to Judge Feinman.
Now shamelessly, Michael Solomon brings a frivolous cross-motion seeking sanctions against the defendants for making what he purports to be frivolous.
Another frivolous action commenced by Michael Solomon with a falsified RJI is also the subject of the show cause being brought by defendants this week.
Michael Solomon inserts in his attached exhibit A, an inflated laundry list, which includes notices of appeals, Appellate Court motions, federal bankruptcy motions, matrimonial court matters, and certain previous motions brought by defendants. Since he’s looking to reopen and rehash each item on his list, he should have attached as an exhibit a full set of the entire record for each and every item and proof, together with their respective court orders, if any, so that defendants and the court can see exactly what he’s rambling about. Without a question, Michael Solomon is not a person that can be trusted for his word. Defendants should have the right to counter each item on his laundry list or as we choose. Michael Solomon’s empty statements and self-interest opinions are of no value. Michael Solomon should not be permitted to conjecture whatever is convenient for him.
As already stated, until defendants served and filed their notice of entry of the underlying the defendants were not permitted to move for vacatur of the default under CPLR 5015(a)(1).
Had Michael Solomon not illegally conspired to have Defendant Feige Zaretsky’s home sold by a falsified default through Judge Lally; and had Michael Solomon not conspired with Eric Milgrim in obtaining the pseudo stipulation order dated June 2, 2011, there would probably not have been any bankruptcy filings and motions at that court; there would not have been a need for defendants to seek redress at the Appellate Court level.
Moreover, had Michael Solomon been practicing as a lawyer instead of as a sleaze, the defendants would not have had a need to seek recusal of two state court judges for judicial misconduct, and this case would have been long disposed of or would have never commenced.
Michael Solomon comes to Court with a cross-motion seeking sanctions against defendants because he says our motion is frivolous. As his proof he proudly displays worthless papers of the equivalence of a “dead fish wrapped in a paper bag.” While holding that “dead fish” he goes even further to state that defendants should have moved to vacate two years before. Michael Solomon has conveniently forgotten that which he wrote in his June 1, 2011 reply affirmation, previously quoted.
The sleaze Michael Solomon from his opposition papers thinks he’s going to teach defendants a thing or two about the law of libel per se. This ignoramus lawyer, who we believe cheated his way through law school and the State Bar, ought to first learn how to read basic English, then he should take some courses on being truthful. Defendants’ “Affirmation in Support” of our show cause is very clear on the facts and on the law and needs no further elaborations or commentary.
The Court is advised that the files at the clerk’s office do not contain any paper resembling the Note of Issue and Certificate of Readiness provided by Michael Solomon as an exhibit to his cross-motion. The copy that defendants provided of the plaintiffs’ Note of Issue and Certificate of Readiness as an exhibit comes directly as a copy from the Clerk’s file. Likewise, Michael Solomon’s exhibited note of issue and certificate of readiness contains no evidence of having been received by the clerk for entry. The Court is reminded that Judge Feinman required him to file a Note of
Issue and made the failure to comply as directed a possible condition precedent to an abandonment of the claims. It’s not imaginable that an attorney would seek to file such a pertinent document as directed but fail to make certain that he has proof of having complied with the court’s directive. Accordingly, the defendants are of the position that the Michael Solomon has provided the Court of Judge Jaeger with a forgery of a Note of Issue and Certificate of Readiness.
Moreover, the letter bearing the date February 6, 2009, provided by Michael Solomon as his “proof” of filing a valid Note of Issue and Certificate of Readiness is not on file with the Clerk of the Court. The file has been very carefully checked and no such letter has been found. Likewise, the said letter bears no evidence of a copy received by the clerk. Accordingly, the defendants are of the position that Michael Solomon and his associate Susan Rubin have provided the Court with a forged letter dated February 6, 2009, as fabricated “proof” of their filing a valid note of issue. While the letter is in itself not a proof of anything, certainly not the filing of a valid note of issue and certificate of readiness, it serves to blame the clerks for the “missing” document by stating “Please file the Note of Issue in your usual and customary manner.” As though the clerks really needed that advice from Michael Solomon’s associate. This is not the language used for submitting a document for filing, but is the language used for trying to cover up a lie. Just who’s leg are they trying to pull?
Defendants are not contesting that Michael Solomon filed the defective note of issue and certificate of readiness, as found in the clerk’s file, and also paid the thirty dollar filing fee. Only, defendants are insisting as already stated in the Affirmation in Support of our show cause that plaintiffs’ note of issue is defective for all the reasons described therein.
The Court, has seen from the show cause and all the evidence in support, that defendants are entitled to an order vacating the underlying order of Judge Feinman; and there was never a cause of action for libel; and never any valid proof to connect defendants as the publishers of the non-libelous emails; and that plaintiffs’ counsel had never complied with the order and directives of Judge Feinman relating to service of the notice of entry and of the filing of a valid note of issue; and that plaintiffs therefore deliberately abandoned their alleged rights and claims; and that plaintiffs’ counsel, Michael Solomon and his associates are a band of serial liars that have no credibility whatsoever, and are a disgrace to the entire Court; and that plaintiffs are cut of the same defiled cloth as their attorney; and that in the interest of justice and in the interests of stopping the plaintiffs’ wasting of the Court’s time and the Court’s scarce judicial resources, should on its own motion dismiss the entire action, and bring this entire matter to a quick close.
W H E R E F OR E, for all the reasons set forth hereinabove as well as within defendants’ Affirmation in Support of the instant show cause, Defendant Aaron Berlin respectfully request that the Honorable Court grant the instant show cause in its entirety; and deny plaintiffs’ cross-motion in its’ entirety; and grant any other further relief deemed just and proper.
DATED: Brooklyn, New York
October 24, 2011
Affirmed to before me this
24th day of October 2011
Read Next Complaint >>