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Supreme
Court of the State of New York
Appellate
Division, Second Judicial Department
Cheryl D. Uzamere
Plaintiff-Appellant,
-against-
Senator Ehigie Edobor Uzamere, a/k/a
"Godwin E. Uzamere, Allen E. Kaye,
P.C.,
Allen E. Kaye, Esq., Harvey Shapiro, Esq.
Bernard J. Rostanski and Jack Gladstein,
Esq.
Respondents-Respondents
__________________________________________________________________________________________________
APPELLANT'S BRIEF
__________________________________________________________________________________________________
Cheryl D. Uzamere
Appearing Pro Se
1209 Loring Avenue
Apt. 6B
Brooklyn, NY 11208
Tel.: (718) 647-2199
Fax: (347) 227-0118
QUESTION PRESENTED
Did the lower court abuse its discretion
by rendering its decision barring Appellant from litigating against
Respondents based on the doctrines of res judicata and collateral estoppel?
STATEMENT WITH
REGARD TO RESPONDENT ROSTANSKI
Appellant is
satisfied that Mr. Bernard J. Rostanski's only purpose with regard to his
association with Respondents Allen E. Kaye and Harvey Shapiro was to
notarize their documents, so that continuing to litigate against Mr.
Rostanski would be unjust. Further references to Respondents in
Appellant's Brief will not include Mr. Rostanski.
NATURE OF THE CASE
This is an appeal from a
Decision and Order of the Supreme Court, Kings County, (Arthur M.
Schack, Justice) entered on July 13, 2010. The lower court's Decision and
Order is based on the lower court's act of conspiracy with a lateral
court to illegally “overturn” the lateral court's prior decision and
order that properly held that Respondent Uzamere's name is Ehigie Edobor
Uzamere and that he was married to the Appellant.
The first part of the lower
court's goal to assist the lateral court in “overturning” the lateral
court's decision occurred when the lower court and the lateral court
conspired with the Respondents to submit fraudulent affirmations that
falsely hold that Appellant is married to “Godwin Uzamere”, based on
their erroneous belief that Appellant would not read them.
The second part of the lower
court's plan to assist the lateral court in illegally “overturning” the
lateral court's decision and order dated May 12, 2009 that recognizes
Respondent Ehigie Edobor Uzamere as Appellant's husband occurred when the
lower court conspired with staff writer Scott Shifrel of the Daily News
to publish that Appellant was married to the fictitious “Godwin Uzamere”,
and that Appellant is an “anti-Semitic wacko” with a mental illness that
causes Appellant not to know the difference between the fictitious
“Godwin Uzamere” and the real Ehigie Edobor Uzamere.
The third part of the lower
court's and the lateral court's plan to illegally “overturn” the lateral
court's decision occurred when the lower court and the lateral court
conspired to arrest Appellant, and later to have her hospitalized as
“mentally unfit.”
The fourth part of the lower
court's and lateral court's plan to illegally “overturn” the lateral
court's decision occurred when the Appellant Division found Appellant
ineligible to proceed as a poor person, thereby forcing her to pay for
her appeal, based on the lower court's, the lateral court's and the
Respondents' erroneous belief that Appellant would not be able to proceed
with her appeal because of her inability to pay.
The last part of the lower
court's and the lateral court's attempt to “overturn” the lateral court's
decision that holds that Respondent Uzamere was Appellant's husband (that
is, if the lower court, the lateral court and the Respondents do not
attempt any more acts of fraud), is for this Court to render its decision
affirming the lower court's illegal use of res judicata and collateral
estoppel, accompanied with this Court's tacit
acceptance of the Respondents' fraudulent documents that hold that
Appellant was married to the fictitious “Godwin Uzamere.”
Appellant respectfully informs
this Court that if it renders a decision that refuses to honor the
lateral court's prior decision dated May 12, 2009 and instead honors the
fraudulent affirmations submitted by the Respondents' and the lower
court's act of fraud upon the court, Appellant will ask for certiorari
from the New York State Court of Appeals.
The goal of the lower court's
Decision and Order is to assist the lateral court's judge to save face,
and to avenge Appellant's use of her website http://www.thecrimesofsenatoruzamere.net to publish what Appellant holds were the lateral
court's prior acceptance of Respondent Uzamere's fraudulent affirmation
that falsely held that “Godwin Uzamere” is Appellant's husband and that
“Godwin Uzamere” is Respondent Uzamere's cousin. The lateral court
rendered an interim decision and order dated January 12, 2009 that
tacitly held out the possibility that Appellant's mental state caused her
not to be able to tell if she was married to “Godwin Uzamere” or Respondent
Ehigie Edobor Uzamere, and that Appellant may not know the identity of
the father of the child of the marriage. Appellant also uploaded to her
website the 8 or 9 S.L.A.P.P-like adjournments (out of 19 adjournments) that the
lateral court's judge made on behalf of Respondent Uzamere, who never
interposed an answer, never presented a validly notarized affirmation and
never filed a notice of appearance.
Appellant respectfully informs
this Court that her allegations have already been forwarded to the New York State Court of Claims, the New York State Commission on
Judicial Conduct, the Honorable Eric H. Holder, Attorney
General, U.S. Department of Justice; Richard Skinner,
Inspector, U.S. Department of Homeland Security; Tristram Coffin, U.S.
Attorney's Office, Vermont; Loretta Lynch, U.S. Attorney's
Office Eastern District of New York; John F. Pikus, Special
Agent in Charge, FBI, Albany, New York; Janice K. Fedarcyk, Special
Agent in Charge, FBI, New York City Office; T. Diane Cejka, Director, FOI/PA Office, U.S. Citizenship and
Immigration Service (she is the person whose office
provided proof of Respondent Uzamere's identity); Rachel McCarthy, Bar
Counsel, U.S. Citizenship and
Immigration Services; the Honorable F. Sise,
Presiding Judge, New York State Court of Claims; Gwendolyn Hatcher, Assistant Attorney General, New York State Attorney
General's Office.
Appellant respectfully informs
this court that based on the endemic corruption that Appellant has
experienced within the New York State Unified Court System, Appellant is
forced to become familiar with the following sets of laws: 1) New York State Civil Practice
Law and Rules, Section 1101(d) (with regard
to what Appellant believes is this Court's bias against Appellant, based
on its arbitrary refusal to allow Appellant to proceed as a poor person;
2) Title Twenty-Two, New York
Code, Subtitle A, Chapter I, Standards and Administrative Policies,
Subchapter C, Rules of the Chief Administrator of the Courts, Part 100,
Judicial Conduct; New York State Penal Law,
Section 210.15, perjury in the first degree, New York State Penal Law,
Section 210.10; perjury in the second degree; New York State Constitution,
Bill of Rights, Article I, Section 6, due process of law; New York State Constitution,
Bill of Rights, Section 11, equal protection under the law; U.S. Constitution, Fifth
Amendment, due process of law; and, U.S. Constitution, Fourteenth
Amendment, equal protection under the law.
This Court should not see
Appellant's informing it of her knowledge of law as arrogant insofar as
this Court refused to provide mentally disabled Appellant with an
attorney. Appellant reiterates that by the time this Court receives
Appellant's brief, it will be filed against this Court with the
appropriate law enforcement agencies based on past and continuing
violations with regard to bias, fraud upon the court and discrimination
against Appellant for having a mental illness.
Except for Respondent Uzamere,
the lower court's Decision and Order with regard to Appellant's improper
service of Respondents is no longer at issue.
STATEMENT OF FACTS
Appellant asserts that because
the lower court's Decision and Order is the latest in a series of new and
continuing acts of fraud designed to illegally “reverse” a lateral
court's Decision and Order that recognizes Respondent Ehigie Edobor
Uzamere as Appellant's husband to allow the Respondents and the judge in
the lateral court to save face, it is necessary to include past acts of
fraud so that this Court can see that by the preponderance of the
evidence, the lower court's use of res judicata is illegal.
This action originally arises
out of a fraudulent marriage that Respondent Ehigie Edobor Uzamere
contracted with the unwitting Appellant for the purpose of obtaining
lawful permanent residence, and for which Respondents Allen E. Kaye and
Harvey Shapiro, and later Respondent Jack Gladstein offered their
green-card-marriage/identity-cover/financial-support-avoidance services.
On November 21, 1979, Appellant,
trusting the name and birth date "Godwin Ehigie Uzamere, June 1,
1955" to be true and correct, unwittingly contracted a marriage with
Defendant Uzamere (Appellant's fraudulent marriage certificate). A.1.
On or around November 30, 1979,
the Appellant accompanied Respondent Uzamere to the law offices of
Respondent Kaye and former associate Respondent, where she was tricked by
the aforesaid Respondent to sign the 1-130 relative sponsorship. At the
time that Appellant signed the I-130 immediate relative sponsorship form,
Appellant was pregnant with Respondent Uzamere's daughter Tara. The
Appellant was 20 years old at the time that she was abandoned by
Respondent Uzamere (Fraudulent I-130 immediate relative sponsorship
form). A.2.
On or near October 1, 2003, Appellant
received correspondence from Respondent Gladstein; the aforesaid
correspondence fraudulently holding out “Godwin Uzamere” as Appellant's
husband (Correspondence from Jack Gladstein dated October 1, 2003). A.3.
On October 11, 2007, Appellant
served Respondent Uzamere with the Summons, Verified Complaint, Request
for Preliminary Conference/Demand for Bill of Particulars and Net Worth
Statement with regard to Appellant's divorce action. By November 20,
2007, Respondent Uzamere defaulted.
On February 22, 2008, Appellant
filed case Docket No. 2008-CV-891 against, among other defendants,
Respondents Kaye, Shapiro, Gladstein and Uzamere for failing to act on
Appellant's report that Respondent Ehigie Uzamere entered into a sham
marriage with Appellant as “Godwin Uzamere” and committed bigamy by
marrying another woman using Respondent's real name. Judge Nicholas G.
Garaufis of the United States District Court for the Eastern District
dismissed Appellant's complaint. Appellant's complaint was never tried by
a jury.
On October 7, 2008 Respondent
Uzamere's attorney Osato Uzamere personally handed to Judge Jeffrey S.
Sunshine on behalf of Respondent Uzamere a fraudulent counter-affidavit
swearing that Appellant was married, not to Respondent Uzamere, but to
Respondent Uzamere's cousin “Godwin Uzamere”, and that Appellant's
obsession with “Godwin Uzamere's “destruction has taken her mental
ailment to a new level which should not be encouraged.” Judge
Sunshine allowed Respondent Uzamere to submit the fraudulent
counter-affidavit using the fictitious name “Godwin Uzamere”, and
did not hold him liable for perjury (Counter-affidavit of “Godwin
Uzamere”, pages 1-2). A.4 – A.5.
On February 23, 2009, Appellant
filed case Docket No. 2009-CV-01617 against, among other defendants,
Respondents Allen E. Kaye, P.C, Allen E. Kaye, Esq. and Jack Gladstein
Esq. Judge Leonard Sands of the U.S. District Court for the Southern
District of New York dismissed Appellant's complaint. The case was never
tried by a jury.
On May 12, 2009, approximately
four (4) months after Appellant e-mailed a complaint to the former
Ambassador to Nigeria Robin Renee Sanders regarding Justice Jeffrey S.
Sunshine's and Respondent Uzamere's plan to video-conference an unknown
Nigerian citizen pretending to be “Godwin Uzamere” from Nigeria, Justice
Sunshine rendered his Decision and Order that “Today at 10:35
a.m. Defendant was declared in default for failure to appear at the
hearing. Accordingly, defendant's motion to dismiss this action upon the
grounds that he is not the husband of the plaintiff is denied in its
entirety. The defendant is the husband in conformity with the parties
marriage on November 21, 1979” (Decision and Order of Jeffrey S.
Sunshine dated May 12, 2009, pages 1 – 2). A.6 – A.7.
On or around July 31, 2009 and
August 3, 2009, Appellant effected service of process on all Respondents
with regard to her action for fraud, after receiving proof from the U.S. Citizenship and
Immigration Service of Respondent's identity on or near
October 28, 2008, and on or near June 12, 2009 (Report by Rachel
McCarthy, USCIS regarding Uzamere's identity, received on or near October
28, 2008; correspondence from USCIS regarding Uzamere's identity, and
correspondence from USINA regarding Uzamere's identity, dated February
10, 1984 on or near June 12, 2009; Affidavit of Service of Summons
and Complaint by Express International Mail to Respondent Uzamere). A.8 –
A.11. Appellant effected service of process on Respondent Uzamere by
express international mail. Appellant effected service of process on
the remaining Respondents by certified mail; however, personal
service was not effected on any of the Respondents. Respondents failed to
interpose an answer.
On September 18, 2009, Appellant
effected service of process of her Order to Show Cause on Respondent
Uzamere by express international mail. (Affidavit of Service of Order to
Show Cause to Respondent Uzamere). A.12. Appellant effected service on
the remaining Respondents by certified mail.
On or near October 28, 2010,
Respondents Kaye, Shapiro and Gladstein interposed perjurious, notarized
affirmations holding out “Godwin Uzamere” as Appellant's husband.
(Affirmation in Opposition of Respondent Kaye, pages 1 - 10). A.13 – A.22.
(Affirmation in Opposition of Respondent Shapiro, pages 1 – 10). A.23 –
A.32. (Affirmation in Opposition of Respondent Gladstein, pages 1-3).
A.33 – A.40.
On November 5, 2009, five (5)
days after Respondents Kaye, Shapiro and Gladstein filed their perjurious
affirmations with the lower court, the Daily News, by staff writer
Scott Shifrel published a newspaper article that falsely charged
Appellant with the halachic/Jewish religious crime of anti-Semitism by
saying “Cheryl Uzamere, 50, known around courthouse circles for
her anti-Semitic screeds, was declared mentally unfit and taken to
Bellevue Hospital for observation”; and, that “...she's a
smart person and she really know how to use the system, said one courthouse
source...she comes in here and files all these papers and threatens
people...”; and that “the senator, however, is a cousin of
her actual ex-husband, Godwin Uzamere, according to affidavit filed in
Supreme Court”; and “Her obsession with his destruction has
taken her mental ailment to a new level which should not be encouraged,
Godwin Uzamere said.” (Daily News article). A.41.
Appellant asserts that on
November 3, 2009, less than a week after Respondents filed their
fraudulent affirmations with the Court, at the behest of Justice
Sunshine, Appellant was jailed and committed to Kingsboro Psychiatric Center; that according to the facility's psychiatrist Dr. Marie
Bauduy, Justice Schack personally called and ordered the facility not to
produce the Appellant; that Justice Schack obtained Appellant's history
regarding her confinement and mental health hearing from the Honorable
Anthony Cutrona; that Justice Schack rendered a decision and order on
January 25, 2010, falsely making it appear that the psychiatric facility
prevented Appellant from appearing in court based on being mentally
unfit; and that on March 19, 2010, while Appellant was in attendance
before Respondent Schack to litigate Index 18012-2009, Respondent Schack
accused Appellant of the halachic/Jewish religious crime of
anti-Semitism.
On May 14, 2010, Appellant and
Respondents' attorney Matthew A. Kaufman appeared before the lower court.
Appellant informed the lower court that Respondents “falsified forms”;
however, attorney Matthew A. Kaufman stated “I stand on my
papers” that Respondents falsified. (Uzamere vs.
Uzamere, et al, transcript dated May 14, 2010). A.59.
Plaintiff asserts that on July
13, 2010, Justice Arthur M. Schack, rendered a decision barring Plaintiff
from filing further lawsuits against all Respondents.
ARGUMENT
This appeal is from so much of
the lower court's Decision and Order that stated directly or implied
that: 1) the lower court has the legal right to invoke res judicata on behalf of Respondent Uzamere, although Respondent
Uzamere waived res judicata by failing to interpose an answer or filing an
appearance; 2) that the lower court has the right to invoke res judicata on behalf of the remaining Respondents for federal
lawsuits that were never tried in the presence of a jury; 3) that the
lower court has the right to invoke res judicata in spite of Respondents' new and continuing acts of
fraud by conspiring with the Daily News to falsely hold out to the public
that “Godwin Uzamere is Appellant's husband and by submitting perjurious
affirmations that falsely holds that Appellant is married to “Godwin
Uzamere” when a lateral court of competent jurisdiction decided that
Respondent Ehigie E. Uzamere was the Appellant's and is the person that
Appellant divorced; 4) that the lower court has the right sua sponte
tacitly “overturn” the decision and order of a lateral court; and 5) that
the lower court has the right to tacitly discriminate against Appellant
as a mentally disabled litigant by ignoring both the irrefutable
documents Appellant presented to the lower court regarding Respondent
Uzamere's identity and a lateral court's decision that rendered a
decision acknowledging Respondent Uzamere to be Appellant's husband, and
instead accept the fraudulent affirmations from the Respondents that
falsely hold that the Appellant was married to the fictitious “Godwin
Uzamere.”
The lower court's Decision and
Order is arbitrary, capricious and malicious. It is fraudulent. It is
illegal. It ignores Appellant's well-established allegations that
Appellant is a victim of Respondents' continued commission of fraud. It
attempts to illegally overturn the decision and order of a lateral court
of competent jurisdiction by manipulating nonjudicial events to ram its
illegal decision and order down the Appellant's throat by having the public
render an opposing “decision” instead of the court. It shows no mercy
toward the child of the marriage, whose birth certificate still bears the
fictitious name “Godwin Uzamere” nor the Appellant, whose mental illness
was exacerbated by the Respondents' continued acts of fraud. The lower
court's Decision and Order greatly
facilitates green-card-marriage/identity-cover/financial-support-avoidance
mills that are used by unscrupulous, green-card-seeking immigrants and
operated by unscrupulous individuals like the Respondents who are not
loyal to the New York State and U.S. Constitutions. The lower court's
fraudulent use of res judicata for Appellant's federal lawsuits that were never tried
in the presence of a jury, combined with the lower court's willful
acceptance of the Respondents' perjurious affirmations sets a dangerous
precedent for individuals who are victims of green card marriage fraud.
Its Decision and Order serves no useful purpose, and is not
supported by good cause. It creates detriment with no ascertainable
benefit and should be vacated.
LOWER COURT ABUSED ITS DISCRETION BY INVOKING
RES JUDICATA
A)
Lower Court's Use of Res Judicata is Fraudulent as
Appellant's
Federal Cases Were Not Tried
Appellant asserts that the lower
court's Decision and Order fraudulently implies that the decisions that
were rendered in Appellant's federal lawsuits were rendered based on an
examination of facts and a final judgment based on those facts having been
tried by a jury. This is patently false as none of Appellant's federal
cases were presented to a jury even though Appellant requested a jury
trial.
Appellant respectfully presents
as persuasive authority the Seventh Amendment of the U.S. Constitution.
It says that “no fact tried by a jury, shall be otherwise
re-examined in any Court of the United States, than according to the
rules of the common law.” Appellant again respectfully asserts that the
federal cases to which the lower court referred were never presented to a
jury and were therefore never tried.
West.net's “Judgment On the Merits” says the
following with regard to res judicata: “The requirement that a judgment, to be res judicata, must be rendered "on the merits" guarantees to
every plaintiff the right once to be heard on the substance of his claim.
Ordinarily, the doctrine may be invoked only after a judgment has been
rendered which reaches and determines "the real or substantial
grounds of action or defense as distinguished from matters of practice,
procedure, jurisdiction or form." Appellant again asserts that
she was never heard, based on her federal actions having never been tried
by a jury.
Under the title Prerequisites for Collateral
Estoppel, two of the criteria for invoking
collateral estoppel are: (1) the issue must have been
actually litigated; and 2) the issue must have been necessary to the
court's judgment. The issue of whether Respondents committed acts of
fraud was never litigated by the federal courts. To put it more
succinctly, no federal court ever decided: “the Respondents committed
fraud” or “the Respondents are not guilty of fraud.” One of the issues on
which the federal courts made a decision was that Appellant seeks to
relitigate her divorce from Respondent Uzamere however, the causes of
action in Appellant's divorce were adultery, cruel and inhuman treatment
and abandonment. Appellant made no attempt to litigate her divorce action
against Respondent Uzamere based on fraud.
In the U.S. Supreme Court
case Lawlor v. National Screen
Service Corp., 349 U.S. 322 (1955), it says the following: “The basic distinction between the
doctrines of res judicata and collateral estoppel, as those terms are used in this case, has frequently been
emphasized. [Footnote 6] Thus, under the doctrine of res judicata, a judgment
"on the merits" in a prior suit involving the same parties or
their privies bars a second suit based on the same cause of action. Under
the doctrine of collateral
estoppel, on the other hand, such a judgment
precludes relitigation of issues actually litigated and determined in the
prior suit, regardless of whether it was based on the same cause of
action as the second suit. Recognizing this distinction, the court below
concluded that 'No question of collateral estoppel by the former judgment
is involved, because the case was never tried, and there was not,
therefore, such finding of fact which will preclude the parties to that
litigation from questioning the finding thereafter.'”
Appellant asserts that, based on
the foregoing, the lower court fraudulently invoked res judicata/collateral
estoppel. None of Appellant's federal actions were
ever presented to a jury for the purpose of holding a trial.
B) Res Judicata Must be Invoked by Litigant or it is Waived
There is no issue with regard to
Appellant's properly service of process on Respondent Uzamere, who is
domiciled in Nigeria. With regard to service of process without the
state, New York State Civil Practice
Law and Rules, Section 313 states that “A person domiciled in
the state or subject to the jurisdiction of the courts of the state under
section 301 or 302, or his executor or administrator, may be served with
the summons without the state, in the same manner as service is made
within the state, by any person authorized to make service within the
state who is a resident of the state or by any person authorized to make
service by the laws of the state, territory, possession or country in
which service is made or by any duly qualified attorney, solicitor,
barrister, or equivalent in such jurisdiction. At the U.S. Department of
State's website regarding service of process to the Federal Republic of
Nigeria, it says that “Nigeria is nota party to any
multilateral agreements on judicial assistance...Nigeria
is not a party to the Hague Service Convention. In the absence
of any prohibition against it, service of process in Nigeria may be
effected by mail...”
Appellant asserts that insofar
there is no issue with regard to the manner in which Respondent Uzamere
was served, the only legal obstacle preventing this Court from rendering
a decision in Appellant's favor is whether the lower court' abused its
discretion by invoking res judicata on behalf of Respondent Uzamere, who never interposed
an answer and never filed a notice of appearance.
Res judicata and collateral
estoppel, as affirmative defenses, must be pleaded
in a timely manner by a defendant in order for the court to consider
them, or else they are considered waived by the defendant's failure to
assert them. According to New York State Civil Practice
Law and Rules, Section 3018(b), it says
that “A party shall plead all matters which if not pleaded would
be likely to take the adverse party by surprise or would raise issues of
fact not appearing on the face of a prior pleading such as arbitration
and award, collateral estoppel, culpable conduct claimed in diminution of damages as set
forth in article fourteen-A, discharge in bankruptcy, facts showing
illegality either by statute or common law, fraud, infancy or other
disability of the party defending, payment, release, res judicata, statute of frauds, or statute of limitation.” If Respondent Uzamere failed to
interpose an answer and failed to appear, subsequently, by operation of
the aforesaid law, he waived his right to present them as affirmative
defenses. Futhermore, there is nowhere in the statute that permits a
judge to waive an affirmative defense on behalf of a defendant who failed
to interpose an answer. Defendant Uzamere failed to interpose an answer;
therefore the issue of res judicata does not apply to him.
LOWER COURT'S ACCEPTANCE OF RESPONDENTS' PERJURED
AFFIRMATIONS IS AN ACT OF FRAUD UPON THE COURT
A) Lower Court's Biased Decision is an act of Fraud upon the Court
The lower court's acceptance of
Respondents' fraudulent affirmations that falsely hold that Appellant's
ex-husband's name is “Godwin Uzamere” is a criminal act, and therefore,
an act of fraud upon the court.
“In the U.S., when an officer
of the court is found to have fraudulently presented facts to [the] court
so that the court is impaired in the impartial performance of its legal
task, the act, known as "fraud upon the court", is a crime
deemed so severe and fundamentally opposed to the operation of justice
that it is not subject to any statute of limitation.
Officers of the court include:
Lawyers, Judges, Referees, and those appointed; Guardian Ad Litem,
Parenting Time Expeditors, Mediators, Rule 114 Neutrals, Evaluators,
Administrators, special appointees, and any others whose influence are
part of the judicial mechanism.”
Appellant offers this Court
persuasive authority by way of the website entitled Fraud On The Court By An
Officer Of The Court" And Disqualification Of Judges, State and
Federal says the following:
“Whenever any officer of the
court commits fraud during a proceeding in the court, he/she is engaged
in “fraud upon the court”. In Bulloch v. United States, 763 F.2d 1115, 1121 (10th
Cir. 1985), the court stated “Fraud upon the
court is fraud which is directed to the judicial machinery itself and is
not fraud between the parties or fraudulent documents, false statements
or perjury...It is where the court or a member is corrupted or influenced
or influence is attempted or where the judge has not performed his
judicial function --- thus where the impartial functions of the court
have been directly corrupted.”
The article continues by saying
that “Fraud upon the court has been defined by the 7th Circuit
Court of Appeals to "embrace that species of fraud which does, or
attempts to, defile the court itself, or is a fraud perpetrated by
officers of the court so that the judicial machinery cannot perform in
the usual manner its impartial task of adjudging cases that are presented
for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968). The 7th
Circuit further stated "a decision produced by fraud upon
the court is not in essence a decision at all, and never becomes final.”
The aforesaid article ends by
saying that “Fraud upon the court makes void the orders and
judgments of that court..under...federal law, when any officer of
the court has committed fraud upon the court, the orders and judgment of
that court are void, of no legal force or effect.”
B) Lying on a Sworn Statement is an Act of Perjury
New York State Penal Law
§210.15, Perjury in the first degree says the
following: “A person is guilty of perjury in the first degree
when he swears falsely and when his false statement (a) consists of
testimony, and (b) is material to the action, proceeding or matter in
which it is made. Perjury in the first degree is a class D felony.”
New York State Penal Law
§210.10 Perjury in the second degree says the
following: “A person is guilty of perjury in the second degree
when he swears falsely and when his false statement is (a) made in a
subscribed written instrument for which an oath is required by law, and
(b) made with intent to mislead a public servant in the performance of
his official functions, and (c) material to the action, proceeding or
matter involved. Perjury in the second degree is a class E felony.”
The lower court's acceptance of
Respondents' fraudulent affirmations is a criminal act of bias and is
therefore an act of fraud upon the court, which, not only vitiates its
own Decision and Order, but requires the arrest of the Respondents and
the justice who accepted the fraudulent affirmations as true and correct.
C) Lower Court's Acceptance of Respondents' Fraudulent
Affirmations is an Illegal Attempt to Sua
Sponte “Overturn” a Lateral Court's Decision and
Order
On May 12, 2009, approximately
four (4) months after Appellant e-mailed a complaint to former Ambassador
to Nigeria Robin Renee Sanders regarding Justice Jeffrey S. Sunshine's
and Respondent Uzamere's plan to video-conference an unknown Nigerian
citizen pretending to be “Godwin Uzamere” from Nigeria, Justice Sunshine
rendered his Decision and Order that “Today at 10:35 a.m.
Defendant was declared in default for failure to appear at the hearing.
Accordingly, defendant's motion to dismiss this action upon the grounds
that he is not the husband of the plaintiff is denied in its entirety.
The defendant is the husband in conformity with the parties marriage on
November 21, 1979” (Decision and Order of Jeffrey S. Sunshine dated
May 12, 2009, pages 1 – 2). A.7 – A.8. The lower court's acceptance of
Respondents' fraudulent affirmations that falsely hold out the fictitious
“Godwin Uzamere” to be Appellant's husband seeks to illegally “overturn”
the prior lower court's decision.
Based on the doctrine of stare decisis, the lower court has the responsibility to honor the
lateral court's decision that Appellant's husband was Respondent Ehigie
Edobor Uzamere, and not make chaotic attempts to change it. Wikipedia.org
holds the following concerning stare decisis: “Stare decisis... is a legal
principle by which judges are obliged to respect the precedents
established by prior decisions. The words originate from the phrasing of
the principle in the Latin maxim Stare decisis et non quieta
movere: "to stand by decisions and not
disturb the undisturbed. In a legal context, this is understood to mean
that courts should generally abide by precedents and not disturb settled
matters...The principle of stare decisis can be divided into two components. The first is the
rule that a decision made by a superior court is binding
precedent (also known as mandatory authority) which an inferior
court cannot change. The second is the principle that a court should not
overturn its own precedents unless there is a strong reason to do so and
should be guided by principles from lateral and inferior courts.”
Appellant logically asserts that
the lower court has no legally viable reason to overturn the lateral
court's decision, which was rendered based on irrefutable documentation
produced by the Appellant, for the sole purpose of illegally supplanting
the prior Decision and Order with a material “fact” that the lateral
court discounted as false.
D.
Overturning a
Decision and Order of a Lower Supreme Court is the Responsibility of the
Appellant and the Appellate Court
The responsibility to have an
undesirable decision and order overturned lies with the Appellant, not
the lower court. According to Title Twenty-Two of the New
York Codes, Rules and Regulations, Part 670.3(a),
Filing of Notice of Appeal, Request for Appellate Division Intervention,
Order of Transfer, it says that “Where an appeal is taken in a civil
action or proceeding, the notice of appeal, or the order of the court of
original instance granting permission to appeal, shall be filed by the
appellant in the office in which the judgment or order of the court of
original instance is filed.
E.
Lower Court's Refusal to Charge Respondents with Perjury
Violates
22 NYCRR's Rules with regard to Judicial Conduct
According to Title Twenty-Two of the
Judiciary Subtitle A. Judicial Administration Chapter I. Standards and
Administrative Policies Subchapter C. Rules of the Chief Administrator of
the Courts, Part 100, Judicial Conduct, the lower court's judge had the duty to “establish,
maintain and enforce high standards of conduct by all.” Appellant asserts
that the lower court judge failed to observe those standards so that the
integrity and of the judiciary would be preserved. The Decision and Order
of the lower court illustrates that its judge failed “to be faithful to
the law and maintain professional competence. Appellant asserts that the
lower court's Decision and Order is an act of fraud upon the court based
upon doing the the following:
a) the lower court conspired to
deprive Appellant of her constitutional right to privacy by disclosing to
the Daily News, for a purpose unrelated to judicial duties, nonpublic,
HIPAA-protected information regarding the Appellant that it acquired in a
judicial capacity and divulged under color of authority in violation
of Title Eighteen of the United
States Code Section 241, conspiracy against rights; Title Eighteen of the United
States Code Section 242, deprivation of rights under color of
law/authority and of relevant sections of Title Twenty-Two of the New
York Codes Rules and Regulations, Chapter I, Standards and Administrative
Policies, Subchapter C, Rules of the Chief Administrator of the Courts,
Part 100;
b) the lower court conspired to
adjudicate Appellant's case in a manner that makes Appellant appear to be
a liar/wacko/anti-Semitic to falsely validate the Daily News libelous
article regarding the Appellant;
c) the lower court conspired to with Scott Shifrel of the Daily News to
divulge Appellant's HIPAA-protected, information, including Appellant's
photo, name, age, town of residence, treating hospital, diagnosis and
symptoms of Appellant's mental illness for a member of the public to feel
emboldened (by pure hatred or chance to make money) to have Appellant
seriously maimed or killed so as not to get its own hands dirty;
d) the lower conspired to perform judicial duties with bias and prejudice
against Appellant based on Appellant's status of having a mental illness
by allowing Respondent Uzamere's attorneys to file affirmations
containing the fictitious name “Godwin Uzamere” in violation New York State Penal Law
Section 210.15, perjury in the first degree, and New York State Penal Law 210.10,
perjury in the second degree, knowing that Appellant's having been
publicly libeled an anti-Semitic wacko would facilitate the aforesaid
attorneys' filing of their fraudulent affirmations, and in violation of
the Federal Rehabilitation Act of
1973 that prohibits institutions that
receive federal funding from discriminating against individual based on
their status of being disabled.
e) the lower court failed to perform its duties without bias and without
prejudice against Appellant by conspiring with a lateral court to
adjudicate Appellant's action for fraud in a manner that would allow the
lateral court to “take another bite of the apple” by “overturning” its
own Decision and Order dated May 12, 2009, that correctly identified
Appellant's ex-husband by the proper name Senator Ehigie Edobor Uzamere,
and to renew its past failed, illegal attempt to adjudicate Appellant's
action for divorce by illegally excusing Respondent Uzamere's failure to
attend the first and second preliminary conferences, in
violation of Title Twenty-Two of New York
Code Rules and Regulations, Subtitle A, Judicial Administration, Part Two
Hundred Two, Section 16(f)(1)(vi)(b) that
says “Both parties personally must be present in court at the
time of the conference, and the judge personally shall address the
parties at some time during the conference”; and in order for
Respondent Sunshine to falsely validate the fraudulent Decision and Order
dated January 12, 2009 in which Respondent Sunshine stated that “...the
opposition submitted by defendant raises a genuine issue as to whether or
not plaintiff and defendant were married in the first instance”; and
that falsely identified Appellant's ex-husband by the fake name “Godwin
Uzamere” that Appellant reported to Robin Renee Sanders, Former
Ambassador of the U.S. Embassy in Nigeria, U.S. Department of State;
Appellant also asserts that with
regard to a judge's responsibility to take appropriate action when
receiving information indicating a substantial likelihood that a lawyer
has committed a substantial violation of the New York Lawyer's Code of
Professional Conduct, the lower court, by its Decision and
Order allowed the Respondents to:
a) violate a Disciplinary Rule of
the New York Lawyer's Code of
Professional Responsibility by submitting fraudulent affirmation
to the court;
b) circumvent a Disciplinary Rule
through the action of the Daily News, who conspired with the lower court
to hold out “Godwin Uzamere” to be Appellant's husband. Appellant reminds
this Court that divorce actions are private, not for public consumption,
so that while the lower court's decision allowing Respondents to
misrepresent Appellant's husband as “Godwin Uzamere” would be public,
Appellant's divorce that holds that Respondent Ehigie Edobor Uzamere was
Appellant's husband would not be public, and would therefore feed the
lower court's attempt to illegally “overturn” the lateral court's
decision that recognizes Respondent Uzamere as Appellant's husband.
c) engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation by submitting
affirmations containing the fictitious name “Godwin Uzamere.”
d) engage in conduct that is prejudicial to the
administration of justice.
Unlike other papers
that Appellant submitted to this Court that showed Appellant's lack of
knowledge of the Appellant Division's due process responsibility to
render a decision for or against a lower court's decision based on
reasons that are codified in New York State Law, Appellant has made a
feeble attempt to specify what Appellant believes are relevant laws to
preserve the lower court's right to have its Decision and Order affirmed
or overturned based on the law, and not solely based on Appellant's tears
and unsophisticated, inartfully drawn requests that are not recognized in
law. Appellant asserts that based on that understanding, Appellant
respectfully quotes from Title Twenty-Two of the New
York Codes Rules and Regulations, Chapter I, Standards and Administrative
Policies, Subchapter C, Rules of the Chief Administrator of the Courts,
Part 100 to show this Court that the lower
court's Decision and Order violates codified law. Appellant asserts that
the lower court's Decision and Order made no attempt to recognize that
Appellant and her daughter, Tara are still victims of Respondents'
attempts to deny Appellant and the child of the marriage the right to
bear Respondent Uzamere's proper name, and financial benefits that the
Appellant and the child of the marriage lost based on Respondents' past
successful attempts to hide Respondent Uzamere's true identity, and
illegally supplant his true identity with the identity “Godwin Uzamere”,
a name that a lateral court of competent jurisdiction accepted from
Appellant as fictitious and nonexistent. The Appellant reiterates that
the lower court's Decision and Order serves no useful purpose and is not
supported by good cause. It creates detriment with no ascertainable
benefit and should be vacated.
CONCLUSION
Appellant prays this Court to
vacate that part of the lower court's Decision and Order with regard to
barring Appellant from filing its complaint against Respondents as res judicata and collateral
estoppel does not apply; to vacate the lower
court's Decision and Order in its entirety as it pertains to Respondent
Uzamere and to find Respondent Uzamere in default for failure to
interpose an answer or file an appearance pursuant to CPLR §3215 AND CPLR §320; to render a decision allowing Appellant to refile her
actions against Respondent if service of process is found to be
inadequate, and for such other and further relief as this Court deems
just and proper.
Dated: Brooklyn,
New York
January 4, 2011
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