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Affidavit and Supporting Documentation 7/27/01
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Affidavit

V

 

THE CHARGES AGAINST ME ARE UNIQUE AND VIOLATE MY

CONSTITUTIONAL RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF

THE LAWS12

 

120. This proceeding violates my constitutional right to equal protection of the

law under the Equal Protection Clause of the 14th Amendment to the United States

Constitution and under Article 1, 11 of the Constitution of the State of New York.

121. I have been singled out for disciplinary action where all others similarly

situated have not been pursued.

122. The facts set forth herein establish that this prosecution is unlawfully

motivated by political concerns and by the desire of a politically connected

Emmerich Handler to silence me. This motive is wholly unrelated to any legitimate

objective.

123. This treatment of me is constitutionally forbidden under the equal protection

principles enunciated in cases such as Village of Willowbrook v. Olech 120 S. Ct.

1073, 528 U.S. 1073 (2000); City of Cleburne v. Cleburne Living Center, 473 U.S.

432, 439 (1985); Latrieste Restaurant & Cabaret, Inc. v. Village of Portchester, 40

F.3d 587, 590 (2d Cir. 1994); and Lisa's Party City, Inc. v. Town of Henrietta, 185 F.

3d, 12, 17 (2d Cir. 1999).

124. "Sua sponte" investigation by the Grievance Committee following
imposition of a sanction under N.Y.C.R.R. Rule 130-1.1 is unique to me!

125. In 1999 The Lawyers' Fund for Client Protection reported that six attorneys

paid a $10,000.00 sanction under N.Y.C.R.R. Part 130 since its inception in 199013.

There exist no published reports of disciplinary action taken against any of the other

attorneys. In one case, Musinski v. Harran Transportation, Co. Inc, (Supreme Court,

Nassau County Index. Nos. 94-02847, 94-03213 and 94-03216) the Decision and

Order on Motion of the Appellate Division, Second Judicial Department dated June

16, 1995 refers to three specific frivolous appeals as well as some fifteen other

appeals, exhibiting "a pattern of frivolous conduct warranting the sanction imposed".

126. My office has found no report of disciplinary action taken against any

attorney in the Musinski case. Indeed, there is no report of disciplinary action taken

against anyone other than me sanctioned under N.Y.C.R.R. Part 130 - absent some

further professional misconduct.

127. Similarly, the simple taking of an appeal has engendered no reported

disciplinary matter respecting violation of DR 7-102(a)(1) or DR 7-102 (a)(2) absent

further allegations of serious professional misconduct.

128. Disciplinary proceedings charging an attorney with taking an interest in the

subject matter of litigation are rare, and charges respecting a contingency fee type

arrangement are unique to me. (Acquisition of stock in a client corporation is favored

by the courts).

129. Attached hereto and marked Exhibit "I" is a detailed analysis of these

matters.

130. It is obvious that my prosecution in these proceedings is unconstitutional,
and imposition of any discipline herein not only unnecessary for the protection of the

public, but unconstitutional.

131. This proceeding further violates my constitutional right under the Fifth

Amendment to the United States Constitution not to be punished twice for the same

offense.

132. I have paid a sanction of $10,000.00 imposed by the Appellate Division,

Second Department following its finding that I filed a frivolous appeal.

133. The same Court has now determined that I am collaterally estopped from

denying that its prior finding establishes a violation of Disciplinary Rule 7-101(a)(2)

of the Lawyer's Code of Professional Responsibility.

134. While the Court's decision respecting the collateral estoppel effect of prior

decisions in my case is error, for factual as well as for constitutional reasons, it

would be contrary to constitutional principles of double jeopardy under the Fifth

Amendment to the United States Constitution that I now be punished a second time for

the same act.

 

VI

 

The Facts Underlying the Charges Against Me, Seen In the Context of Emmerich

Handler's Misuse of the Disciplinary Process, Warrant No Further Action.

 

1.

 

Walker v. Weinstock, Statement of Facts

 

A.

 

The Genesis: 355 Ocean Avenue, Lawrence, New York

 

135. Judge Lewis Douglass in the case of Jack Walker, Emmerich Handler and

Kaminetzer Yeshiva of Jerusalem v. Israel Weinstock, stated that the transfer by Jack

Walker to me of 80% of the shares of 4200 Avenue K Realty Corp. in consideration

of settlement of my claims against Walker arising from my earlier representation of

him personally in a real estate transaction was unconscionable and must be declared

void. Judge Douglass relied so heavily on this notion that he declared void as

"tainted" an earlier transfer to me of 20% of the corporate stock in consideration of

legal services.

136. The settlement Judge Douglass referred to occurred February 15, 1985 after

an initial trial court decision denying 4200 Avenue K Realty Corp. specific

performance of a contract of sale of the 4200/421 Avenue K properties, and after

Emmerich Handler had recruited Jack Walker to sue me in September, 1984 in

Supreme Court in Nassau County. That suit, Jack Walker v. Israel Weinstock (Nassau

County, Index No. 15210/84) alleged fraud on my part and forgery by me of Walker's

name to a deed of sale to a residential property at 355 Ocean Avenue, Lawrence,

New York while I represented Walker. Jack Walker told me that Emmerich Handler

had concocted the lawsuit.

137. The allegations made by Walker/Handler are of course extremely serious.

When I told Jack Walker that I intended to sue him for defamation and malicious

prosecution he said " I love you Izzy ". He told me that the lawsuit was Emmerich

Handler's idea and pleaded with me that all would be all right once Emmerich

Handler succeeded in using the lawsuit (and the accompanying lis pendens) as

leverage in his dispute with his former law partners.

138. My ultimate settlement with Jack Walker of my defamation and malicious

prosecution claims in exchange for 80% of the stock of 4200 Avenue K provided

Emmerich Handler unexpected benefits. It became central to Judge Douglass'
decision denying me the stock. It forms the basis of Charges One and Two of the
Petition herein. And I am presently collaterally estopped from denying the facts
supporting those charges.

139. Those "facts", however, in no way suffice to allow Special Referee the

Honorable Albert A. Blinder and this court to ascertain the mitigating factors which

must be considered before any imposition of discipline. My character, and my

credibility, are here on trial.

140. I have personal knowledge of a myriad of facts pertinent to this inquiry.

Fabrication of the allegations against me in the Nassau County lawsuit evidence

Emmerich Handler's mode of operation, which I contend is now put to work in these

proceedings. Inasmuch as the Grievance Committee has taken no action against me

arising from allegations of fraud and forgery, while it pursues me respecting

allegations of coercion that Jack Walker, the supposed object of it, himself concedes

are also fabricated, Emmerich Handler's role in these proceedings clearly warrants

careful consideration.

141. Beginning at the (unfortunate) beginning, I believe the circumstances

surrounding the Nassau County lawsuit (and the settlement of my claims against Jack

Walker) to be as follows.

142. In 1983 Emmerich Handler practiced law and undertook real estate ventures

with client investors together with his law partners David Segal, Martin Sukenik and

Joshua Graff . (I was affiliated with the Handler firm at about that time on an "of

counsel" basis, periodically handling litigated matters for the firm. I became a part

owner of several of its investment properties-although not the Nassau County
property addressed below).

143. Jack Walker, a client of the Handler, Sukenik, Segal & Graff law firm,

purchased from another of the firm's clients a residential property located at 355

Ocean Avenue, Lawrence, in Nassau County at what seemed a low price considering

the risks. In 1982 Jack Walker asked me to represent him in the purchase of the

property. Because he intended to resell the property no transfer papers were

recorded. On April 8, 1983, without informing me, he sold the property back to the

Handler firm, receiving a profit of 100% on his $50,000.00 investment. He received

a check for $100,000.00 signed by Emmerich Handler. That check contained a

notation in Emmerich Handler's handwriting stating that it was "In full payment of

Walker's interest in 355 Ocean Av, Lawrenc(e)".

144. In late 1983 Emmerich Handler and his partners became involved in an

acrimonious dissolution struggle. Wishing to apply pressure on his former law

partners, Handler retained his lawyer Robert Gutman, Esq. to "represent" Jack

Walker in filing a lawsuit against me.

145. The fabricated lawsuit was designed to enable Emmerich Handler to tie up

the Ocean Avenue property by filing a lis pendens against it and thus put pressure on

Handler's former partners to settle with him. By using Jack Walker to tie up the

property through the filing of this bogus lis pendens, Handler's former partners,

Sukenik, Segal and Graff , were severely prejudiced. The property was heavily

mortgaged, and they were carrying all mortgage and maintenance costs.

146. Thus in September, 1984 at the instance and expense of Emmerich Handler,

plaintiff Jack Walker instituted a baseless suit against me in Supreme Court, Nassau

County, making serious (contrived and false) allegations of fraud and forgery. The

Complaint alleged that, inter alia, I had purportedly "fraudulently procure[d] the

signature of Walker on the deed of certain real estate". Walker published statements

in my community that I had forged his name to the contract of sale. Walker

subsequently admitted that all these allegations were fabricated.

147. Quite apart from Walker's admissions that the Ocean Avenue lawsuit was

fabricated at Handler's request, the allegations of the Complaint evidence the motive

behind it. For while Walker had initially claimed that I had improperly signed his

name to a "contract of sale"14, this allegation would not be sufficient in law to

support a lis pendens and cast a cloud on the true ownership of, and title to, the

property. To do so required an allegation that a deed to the property was improperly

executed, and so the complaint prepared by Robert Gutman, Esq. at Emmerich

Handler's behest contained allegations that I had improperly procured Walker's

signature to a deed.15 Handler was thus able to file a lis pendens on the property and

saddle his partners with the financial burden of a property they could not sell.

148. I was astounded! I told Jack Walker that I would sue him for defamation and

malicious prosecution. Indeed, before instituting "his" action Walker had signed a

statement that he had been warned by "his" attorney Robert Gutman, of his exposure

to an action for damages. I have a copy of that writing prepared by Robert Gutman.

149. At that time I represented the corporation 4200 Ave. K Realty Corp. ("4200

Avenue K"), in the case of 4200 Ave. K Realty Corp. v. 4200 Realty Co. and 4211

Realty Co., 123 A.D.2d, 419; 506 N.Y.S.2d 723 (2d Dep't 1986). The action sought

specific performance of a contract of sale of two Brooklyn residential rental

properties, 4200 and 4211 Avenue K, entered into by Jack Walker and Fred Pfeffer

on behalf of and as principals of 4200 Avenue K.16

150. In September, 1984 we were preparing for retrial of the specific

performance action after recusal by Justice Nicholas Clemente following a first

complete trial of the case before him. I had been paid nothing for my efforts to that

time.

151. When I confronted Jack Walker respecting the Ocean Avenue action he

pleaded with me to continue representation of 4200 Avenue K in the specific

performance action. "I love you, Izzy" he said. "Handler asked me to file this case.
It's nothing".

152. I told him that I took his action seriously and that I was not prepared to

ignore it, but that I would complete the trial of the specific performance case as I

believed it had merit-and I had of course tried it once already. I wished to assure

payment for my legal services, however. I agreed with Walker, on behalf of 4200

Avenue K, that I would be paid $20,000.00 as my legal fee for the past and

forthcoming trial of the matter. We agreed that the money would be paid at the

conclusion of the trial, or credited against my purchase of twenty percent of the

premises which were the subject matter of the action.

153. Shortly thereafter Jack Walker asked, and I agreed, that this agreement be

changed such that I would simply receive twenty percent of the shares of 4200

Avenue K. Walker told me that he did not want to spend any money on the litigation,

and he proposed this arrangement-which I (like Judge Douglass) considered the

equivalent of a contingency fee17.

154. I tried the case the second time in late December, 1984 and in early January,

1985. In early February, 1985 Justice Hurwitz dismissed the 4200 Ave. K Realty

Corp. v. 4200 Realty Co. and 4211 Realty Co. action. I believed that his decision

was wrong and that we had a very good appeal. I so advised Jack Walker and

advised that an appeal be taken. Walker, who had purchased Fred Pfeffer's share in

4200 Avenue K, did not want to spend any more money on the case-and thus on the

deal to purchase the properties.

155. Meanwhile, in January, 1985 Jack Walker broke from Emmerich Handler.

He complained that Handler had blackmailed him into filing the Nassau County

lawsuit. Admitting that the allegations of the Nassau County action were contrived at

Handler's request, Walker asked to settle my claim against him arising out of his

slander and malicious prosecution of me.

156. With the intervention of and at the request of third parties, one of them a

former partner of Emmerich Handler then in litigation with him and to whom I owed a

large favor, I consented.

157. At this time I represented neither 4200 Ave. K Realty Corp. nor Jack

Walker. Justice Hurwitz had dismissed the 4200 Ave. K Realty Corp. v. 4200 Realty

Co. and 4211 Realty Co. action. The corporation did not wish to pursue an appeal of

Justice Hurwitz' decision. No Notice of Appeal had been filed, nor was I retained to

file one. The terms of my engagement by 4200 Avenue K ended at the conclusion of

the retrial.18

158. Further, my services to Jack Walker respecting the Ocean Avenue property

had long since terminated.

159. On February 15, 1985 as part of a global settlement of differences including

those of Emmerich Handler's former law partners, I exchanged general releases with

Jack Walker, he discontinued with prejudice his Nassau County lawsuit (admitting

under oath to its fabrication), and in return for my general release Jack Walker

assigned to me his "entire right, title and interest" in 4200 Avenue K.

160. At that time, the corporation had lost its action for specific performance of

its contract to purchase the 4200 and 4211 Avenue K properties in Brooklyn. Its only

asset was its right to appeal (at substantial expense) the loss in that case and to

possibly obtain the return of the $50,000.00 deposit on contract.

161. Relying on Jack Walker's assignment to me of his "entire right, title and

interest" in 4200 Avenue K (and on the exchange of general releases), I filed a notice

of appeal and perfected the appeal at my sole expense, including ordering the record,

printing it, etc. I heard from no one. In January, 1986 (nearly one year after Walker's

assignment to me, after the statute of limitations had run on my intended action against

Walker for defamation and malicious prosecution, and after the appeal from Justice

Hurwitz' decision was perfected with the filing of the reply brief in December, 1985)

I heard from the law firm of Cleary, Gottlieb, Steen & Hamilton.

162. It purported to represent Emmerich Handler and the "Kaminetzer Yeshiva of

Jerusalem" (which Emmerich Handler by affirmation dated March 21, 1996 admitted

served only as his "nominee"). Cleary, Gottlieb's letter alleged their clients' interest

in 4200 Avenue K. While not representing Jack Walker, the letter also purported to

assert an "omnibus" claim on Walker's behalf of wrongdoing on my part! (Indeed,

Jack Walker later informed Agent Richard Rheinhardt of the Federal Bureau of

Investigation that Handler had not sought "to become a partner in the property" until

after the success of the appeal in the4200 Ave. K Realty Corp. v. 4200 Realty Co.

and 4211 Realty Co. specific performance action).

163. I wish to adduce the corroborative testimony of Emmerich Handler and Jack

Walker at the hearing in mitigation herein.


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