NY County Index No /2016

Transcription

1 May 9, 2018 Segal, McCambridge Singer & Mahoney, Ltd 850 Third Avenue, NY, NY, Re: EARL LIND, JR. & DOROTHY LIND - against TISHMAN CONSTRUCTION CORPORATION OF NEW YORK & TISHMAN CONSTRUCTION CORPORATION NY County Index No /2016 Assigned to: Acting Supreme Court Judge Barbara Jaffe Counselors: In accordance with the attached letter of Joan Levenson, Esq., the Lind written report of their grave concerns regarding the conduct of acting supreme court judge Barbara Jaffe, which demonstrates an appearance of bias against the Lind Plaintiffs and a partiality in favor of the Tishman defendants in the Lind above action, is being provided to your firm via efile. Yours etc, BERNADETT ANZELLA, P. By: B atefte Panzella, sq. cc: Honorable George Silver, New York State's Deputy Chief Administrative Judge for the New York City Courts Hon. Deborah Kaplan, Administrative Judge (This letter is printed on plain paper as part of our Firm's continuing efforts to" go green".)

2 February 1, 2018 Hon. Deborah Kaplan, Administrative Judge New York County Courthouse 60 Centre Street New York, N.Y Re: EARL LIND, JR. & DOROTHY LIND -against-tishman CONSTRUCTION CORPORATION OF NEW YORK & TISHMAN CONSTRUCTION CORPORATION NY County Index No /2016 Assigned to: Acting Supreme Court Judge Barbara Jaffe Honorable Justice Kaplan : I write with grave concerns about the very troubling conduct of Judge Jaffe with respect to the above personal injury action. The Rule of Law must have meaning. For the Rule of Law to have meaning, it must be applied fairly, equally, to both sides. Judge Jaffe did not do so in this case as will be explained in this letter. Brief Summary of Action: Earl Lind is a married man with two infant children who, at the age of 45, was severely injured on March 27, 2015 in an elevated related construction accident at the Vehicle Security Center at the World Trade Center. Mr. Lind has undergone multiple surgeries, including a hip replacement and is now scheduled for further surgery. Mr. Lind is a veteran construction worker and has been rendered permanently disabled. Because the Tishman defendants are the General Contractors (GC) at this job site, and because Mr. Lind is a Worker protected under New York's Labor Law, the above Tishman defendants are strictly liable to Mr. Lind under the Labor Law for his elevation -related injuries. However, as the GC the Tishman defendants have hired /retained/employed multiple sub-contractors for the project, some of whom may also be liable to Mr. Lind under New York's Labor Law, under common law negligence, or both.

3 The statute of limitations in this action is three years and therefore expires on March 27, Plaintiffs must commence their action against these sub-contractors now. But, the Tishman defendants, in defiance of court orders and their CPLR obligations, refuse to disclose the names of their subcontractors. This crucial information is in the exclusive control of the defendants and not otherwise available to the Plaintiffs. The First Court Appearance, January 17, 2018; Part I: The Ad journment of the Lind Plainti Motion : As a result of the Tishman defendants violations of three court orders and their CPLR Tishman' obligations, moved to strike answer and for other, alternative relief. (See, Attachment No. 1, Lind Motion,without exhibits. I appeared in Court on January 17, 2018 for argument on this motion but defense counsel said that he was not prepared to argue and that someone else from his office might be handling the argument. Concerned that the statute of limitations was fast approaching I was reluctant to adjourn the motion but at the insistence of the law secretary I agreed to a two week adjournment, to January 31, ' The First Court Appearance, January 17, 2018; Part II: Judge Jaffe's January 16, 2018 Order which granted de motion that did not even have a return date until some three weeks later, on February 8, 2018 At this same January 17, 2018 court appearance, I was handed an Order issued the day before, on January 16, 2018, which granted a motion made by the defendants to compel a physical examination of the Plaintiff - which had already been waived by the defense. Defendants insisted that Mr. Lind travel 2 ½ hours to a particular doctor in Long Island although this action is pending in New York County and the Lind Family lives in Staten Island. This defense motion was not returnable until three weeks later, on February 8, But, that did not stop Judge Jaffe from making a decision on this motion on January 16, 2018 two weeks before cross-motion and opposition were even due.

4 See, Attachment No. 2 Judge Jaffe's "pre-emptive" re- January 16, 2018 Order. See, Attachment No. 3 Defendants' notice of motion showing the February 8, 2018 return date. It was only because I complained so emphatically that this motion was decided before the noticed return date, thereby foreclosing any opposition and/or cross-motion by Plaintiffs, that one of the law secretaries said that this order would be "recalled ". It is very troubling to see that in this January 16, 2018 order which granted motion, on the merits, Judge Jaffe gave her reason, "plaintiff failed to move to modify or vacate the IME notice ( 22 NYCRRR " " (a). The order also included a threat failure to appear for the " IME may result in sanctions, including dismissal of the action. As will be discussed below, Judge Jaffe applied a completely different Rule of Law to defendants when she denied motion to strike defendants answer - on January 30, THE DAY BEFORE the scheduled January 31, 2018 argument date The Second Court Appearance, January 31, 2018: The January 30, 2018 Decision Made the Day Before the January 31, 2018 Scheduled / ' Defendants' Adjourned ArgumentDate on the Lind Plaintiffs Motion to Strike the e endants Answer and for Other, Alternative Relief : On January 30, 2018 Counsel received an claw alert that defense counsel had served ' an order with notice of entry of Judge Jaffe's decision on the Lind Plaintiffs Motion to Strike the Defendants' Answer and for Other, Alternative Relief. That is, Judge Jaffe issued an Order on January 30, 2018 on the motion that was to be argued on January 17, 2018 but which was adjourned - at the request of the defense and at the insistence of the law secretary - for two weeks, to January 31, When I requested to see the Judge about this, I was informed by one of the three law secretaries down" that the Judge was "not coming. When I said that I certainly had the right to see the Judge, I was told that I had no such right. " happening" When I asked to make a record, I was told by another law secretary that is not

5 When I said that the law secretaries were giving me no choice but to request assistance from the Administrative Judge, the same law " happening" secretary that said that is not about my right to make a record, said that it is Judge Jaffe that decides whether or not she will come down to the courtroom and that it is Judge Jaffe that decides whether or not I can make a record. When I asked the law secretary who had adjourned the motion from the original argument date of January 17 to the adjourn date of January 31 what had happened and why Judge Jaffe had decided the motion the day before the scheduled argument date, the law secretary said guaranteed" "argument on a motion is not. Another law secretary then actually yelled out across " motions" the room this Judge never hears argument on motions"... This assertion however is not true. I know this because I stopped in Judge Jaffe's part when she was briefly assigned to the 91st Street Crane Collapse Litigation after Justice Feinman was elevated to the First Department. I wanted to see the layout of the courtroom. When I was there Judge Jaffe was hearing arguments on motions. Judge Jaffe recused herself very quickly after she was assigned to 91st Street because her relationship with the main attorneys, Wilson Elser, created an irreconcilable conflict As to the January 30, 2018 Order which denied the Lind motion, Judge Jaffe failed to state - as she had in her January 16, 2018 order which granted motion, that the defendants had failed to move for a protective order, to modify or vacate as to any of Plaintiff's demands/notices and had failed to move to vacate any one of the three court orders defendants had violated. In so doing Judge Jaffe improperly and unfairly applied a completely different Rule of Law to defendants then she applied to Plaintiffs. According to Judge Jaffe, Plaintiffs had to file a motion for a protective order to modify notice for a defense physical - which they had already waived - but defendants did not have to do anything about their utter non-compliance with CPLR demands and the Court's three orders? See Attachment No. 4, the January 30, 2018 Order, which also failed to order the defendants to comply with discovery! Instead, the order implies that the Lind motion to strike answer and for "premature" other, alternative relief, was because Plaintiffs had not first moved to compel compliance. The order falsely implies that such motion to compel is a required - prerequisite under CPLR 3126 it is not.

6 American FeltBuilding Judge Jaffe with a modicum of research on her own or by one of her three law secretaries should know the provisions of the CPLR and should also not blindly cite a commercial case that on its face is irrelevant here. It troubling indeed that Judge Jaffe: (1) issued an order granting motion three weeks before the return date; (2) issued an order denying the Lind argument date; motion the day BEFORE the scheduled (3) refused to come down to the courtroom; (4) refused to allow me to make a record. Further conduct that is very troubling here is that Judge Jaffe improperly and unfairly applied a different Rule of Law to Plaintiffs then she did to defendants, which certainly demonstrates a bias against the Plaintiffs and in favor of the defendants. And, if not an actual bias, certainly the appearance of bias in favor of one party over the otherhere, the defendant over the Plaintiffs. Robert Schacht and I know about fighting for our Clients rights - we were on trial before Justice Mendez for a year in the 91st Street Crane Collapse litigation - but it is difficult to fight that honorable fight with a judge like Judge Jaffe who is not being even handed and is improperly "V" applying a different Rule of Law depending on what side of the you are on. Between Robert Schacht ( 20 years) and me ( 35 years) we have a lot of time representing Plaintiffs - we know what our Clients rights are and we know what our rights are as attorneys. It is true that we have the right to appeal the order -but that right has nothing to do with the fact that Judge Jaffe issued two orders and applied two different standards one to the Plaintiffs and another to the Defendants. And, that she issued these two orders, one before the return date, and the other before the argument date. Such conduct is unbecoming a judge of the Supreme Court, especially in New York County supreme" even if that judge is - "acting which is exactly what she ought to be doing. -

7 I am most respectfully requesting that Your Honor take such action as is necessary to insure that our Clients - the Lind Family, are treated fairly and that the conduct of Judge Jaffe does not add to the tremendous stress that this Family of real people has already endured. Thank you for your patience; please do not hesitate to contact either of us should you have any questions or concerns. Respectfully submitted, BERNADETTE NZELLA,.C. ROBERT SC CHT, P.C. By: By: adette Panz I sq. R ert Schacht, Esq. cc: Honorable George J. Silver, New York State's Deputy Chief Administrative Judge for the New York City Courts. " (This letter is printed on plain paper as part of our Firm's continuing efforts to go green".)

8 upreme af the burt frate af þfefn park $l H$$ $~s 60 CENTRE STREET NEW YORK, NY lp L$ C$$rl 'I HON. DEBORAH A. KAPLAN ADMINISTRATIVE JUDGE FOR CIVIL MATTERS Bernadette Panzella, P.C. Robert Schacht, P.C. 13th 114 East Street, Studio 5A Re: Earl Lind, Jr. & Dorothy Lind v. Tishman Construction, et. al. Index Number /2016 Dear Counsel: Judge Kaplan is in receipt of your letter dated February 1, 2018, regarding the abovereferenced matter. It appears that in contravention to the Rules of Professional Conduct, this letter was sent ex-parte. If you have not already done so, a copy should be sent forthwith to counsel for the defendants. In any event, Judge Kaplan does not have the authority to interfere with matters pending before another judge of coordinate jurisdiction. As you well know, you may make whatever application you deem is warranted before Judge Jaffe or seek other appropriate relief. cer y, o Levenson, Esq. Pr neipal Law Clerk to H n. Deborah A. Kaplan, dministrative Judge, New York County Civil Branch

9 February 19, 2018 Hon. Deborah Kaplan, Administrative Judge New York County Courthouse 60 Centre Street New York, N.Y Re: EARL LIND, JR. & DOROTHY LIND - against TISHMAN CONSTRUCTION CORPORATION OF NEW YORK & TISHMAN CONSTRUCTION CORPORATION NY County Index No /2016 Assigned to: Acting Supreme Court Judge Barbara Jaffe Honorable Justice Kaplan: We are in receipt of the enclosed letter from Joan Levenson, Esq., and as a result there is uncertainty about how to proceed. On January 31st, when I went up to your chambers directly from Judge Jaffe's courtroom, I explained to your part clerk why I was there and he instructed me to wait. When he returned, he directed me to write a letter to Your Honor detailing my concerns and to hand deliver the letter to your chambers, which I did the next afternoon. I specifically asked whether or not I should copy the letter I was being asked to write to defense counsel - who had refused to come up to your chambers with me. I was told that if the letter did not concern issues in the case but rather the conduct of the Judge that I should not copy defense counsel. Since our letter concerned the conduct of Judge Jaffe - as outlined in our letter dated February 1, 2018, which is also enclosed, I did not copy defense counsel. We will await Your Honor's further advise. Respectfully, BERNAD TE PANZELLA, P.C. ROBERT SCHACHT, P.C. By: By:

10 cc: Honorable George Silver, New York State's Deputy Chief Administrative Judge for the New York City Courts Mr. Earl Lind, Jr. " (This letter is printed on plain paper as part of our Firm's continuing efforts to go green".)

11 STATE OF NEW YORK UNIFIED COURT SYSTEM FIRST JUDICIAL DISTRICT SUPREME COURT, CIVIL BRANCH 60 CENTRE STREET NEW YORK, NY (646) FAX (212) LAWRENCE K. MARKS Chief Administrative Judge DEBORAH A. KAPLAN Administrative Judge for Civil Matters First Judicial District GEORGE J. SILVER Deputy Chief Administrative Judge New York City Courts March 7, 2018 Bernadette Panzella, P.C. Robert Schacht, P.C. 130' 114 East Street, Studio 5A Re: Earl Lind, Jr. & Dorothy Lind v. Tishman Construction, et. al. Index Number /2016 Dear Counsel: Judge Kaplan is in receipt of your letter dated February 19, In the letter, you state that the judge's part clerk advised you that you should not copy defense counsel on a letter to Judge Kaplan regarding the above-captioned matter if it concerned the conduct of the judge presiding over the matter and not issues in the case. I am not certain precisely what the part clerk told you, but that is of no moment since in my letter to you, I asked that you forthwith send a copy of your letter to counsel for the defendants. cere, Joat Levenson, Esq. Pri ipal Law Clerk to Ho. Deborah A. Kaplan, inistrative Judge, New York County Civil Branch