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Affidavit and Supporting Documentation 7/27/01
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Affidavit

B.

 

Handler, Walker and Kaminetzer Yeshiva of Jerusalem v. Israel Weinstock

 

164. Emmerich Handler and Jack Walker can also give evidence corroborating my

testimony respecting the following episode. It underlies the allegations of coercion made

against me.

165. In September, 1986 after the favorable Appellate Division decision in the

specific performance action, after I was diagnosed with "terminal" cancer, and once

again represented by attorneys provided and paid for by Emmerich Handler, Jack Walker

was again recruited by Emmerich Handler to join him in commencing a second fabricated

action. This was the case of Jack Walker, Emmerich Handler and the Kaminetze Yeshiva

of Jerusalem v. Israel Weinstock, Supreme Court, Kings County Index No. 27600/86.

166. Ultimately tried before Justice Lewis Douglass, the action (hereinafter

"Handler, Walker and Kaminetzer Yeshiva of Jerusalem v. Weinstock") sought to set

aside Jack Walker's assignment to me of Walker's rights in 4200 Avenue K on the basis

of fraud, duress, coercion and lack of consideration. It also sought an order "requiring

Weinstock to disgorge all fees paid to him or his nominee, including the 20% interest (in

4200 Avenue K)...".

167. Jack Walker did not then seek, and has not sought to date, to vacate the

stipulation of discontinuance of the Ocean Avenue, Nassau County action or any other of

the several aspects of the settlement he reached with me.

168. He has since admitted in testimony given at trial that the central allegations

contained in his verified complaint in the Handler, Walker and Kaminetzer Yeshiva of

Jerusalem v. Weinstock action, that he was allegedly "threatened", "coerced" or "subject

to duress" in making the subject assignment, were false when made!19 He testified that

his own lawyer had told him to make these false allegations!20

169. Indeed, Justice Ira Gammerman, before whom Jack Walker testified in the case

of Weinstock v. Handler et al., in Supreme Court, New York County, Index No. 11188-88

accepted Walker's position that there had been no threat or coercion. 21

170. Jack Walker has conceded that the Handler, Walker and Kaminetzer Yeshiva of

Jerusalem v. Weinstock lawsuit, like the Ocean Avenue, Nassau County action, was

instituted at the instance and expense of Emmerich Handler, and that contrary to the

allegations of the verified complaint he was not "coerced" by me and no "duress" was

"practiced on him". He has testified that there was no overreaching, and has conceded

that he understood the nature of the assignment and "voluntarily" gave it22. He has

testified that he owned one hundred per cent of 4200 Avenue K before he assigned it to

me.

171. Representation of all Plaintiffs by attorney Edward Rubin on the appeal of

Justice Douglass' decision in the Handler, Walker and Kaminetzer Yeshiva of Jerusalem

v. Weinstock action, despite a clear conflict of interest between plaintiffs Handler and

Walker, each of whom accused the other of criminal activity, has since corroborated Jack

Walker's testimony of collusion.

172. Prior to trial in the case of Emmerich Handler, Jack Walker and the Kaminetzer

Yeshiva of Jerusalem v. Israel Weinstock (Kings County, Index No. 27600/86) attorney

Jacques Catafago, Esq. appeared to represent plaintiff Jack Walker.

173. The case had been assigned to Justice Richard Huttner.

174. Prior to trial of the case Jack Walker gave trial testimony in a separate case,

Israel Weinstock and JB Trading International. Inc. v. Emmerich Handler et al (Supreme

Court, New York County, Index No. 11188-88), in which he admitted that there had been

no coercion, duress, fraud, threat or overreaching involved in his settlement with me on

February 15, 1985. (A transcript of that testimony is attached hereto at Exhibit "J", pp.

16-19, 46-47, 52-53, 60-61, 276-277, 782).

175. Walker testified that Emmerich Handler and his attorneys had directed him to

make these allegations, after my success on appeal in the 4200 Avenue K action granting

specific performance of the contract of sale respecting the 4200/4211 Avenue K

properties and that he had to do as Handler directed, otherwise Handler would embarrass

him in the community (Exhibit "J" pp. 46-53, 61, 298)23

176. I therefore filed a Motion for Summary Judgment in the Kings County case of

Emmerich Handler, Jack Walker and the Kaminetzer Yeshiva of Jerusalem v. Israel

Weinstock.

177. While Emmerich Handler (and his nominee Kaminetzer Yeshiva of Jerusalem)

were named plaintiffs the complaint alleged that Jack Walker's transfers to me of his

shares in 4200 Avenue K. Realty Corp. should be set aside due to fraud, duress and

coercion practiced by me upon Jack Walker.

178. Walker's confession under oath that no such thing had occurred, that the

complaint was another of Emmerich Handler's fabrications (like the Ocean Avenue

complaint), should have resulted in dismissal of the lawsuit.

179. In hindsight, Judge Huttner's inexcusable failure to dismiss the lawsuit was quite

predictable. (Judge Huttner had earlier shown an interest in the matter well beyond that

proper under the circumstances)24.

180. Jack Walker's opposition to the motion was remarkable in several respects.

181. First, Jack Walker himself did not submit an affirmation at all. The opposition,

then, should have been struck because the opposition was not supported by evidence in

admissible form from a "person having knowledge of the facts" as required under CPLR

3212 (b). Nor was any excuse offered as to why such evidence was not presented.

182. Secondly, the affirmation of Jacques Catafago, Esq., the only affirmation filed on

behalf of Jack Walker in opposition to my motion for summary judgment, was itself

astounding.

183. Jacques Catafago obviously was not a "person having knowledge of the facts" of

the case.

184. In attempting to negate the significance of Jack Walker's testimony before Judge

Gammerman that there had been no threat, coercion, duress, fraud or overreaching,

Walker's attorney Jacques Catafago argued that the court couldn't tell whether his client

verified a false complaint or committed perjury at the trial-therefore there were triable

issues respecting material facts. These had to be tried! (Jacques Catafago affirmation

dated May 24, 1996, paras 32-33).

185. Following upon the logical flaw in this approach is the impediment in law, i.e.,

that a party cannot create a triable issue of material fact by testifying himself to two

contradictory facts. One version constitutes an admission against interest, and is thus

conclusive evidence of the fact. Jack Walker testified that there was no fraud, coercion,

threat, duress or overreaching-that the Complaint alleging this was fabricated. Judge

Huttner should thus have dismissed the contrived case.

186. That he did not evidences Emmerich Handler's influence in Kings County.

187. Further evidence of that influence lies in the fact that despite the testimony of

Walker's own attorney that Jack Walker lied under oath, Justice Lewis Douglass (to

whom Judge Huttner sent the case for trial) found no "inconsistencies so significant as to

suggest that Walker did not tell the truth in this proceeding".

188. Judge Douglass ultimately ignored a second telling Catafago statement,

backhanded as it was, that "Weinstock concedes that defendant Walker was the sole cash

investor in Realty Corp." (Catafago affirmation of May 24, 1996, paragraph 54).

189. At the trial of the Walker v. Weinstock action Handler's attorney Edward Rubin,

Esq. himself admitted his role in altering the existing facts, as follows;

"You see, Your Honor, I am a very simple guy, Your Honor. When I came into the

case I had to ask the question. Everybody seems to think Walker owns stock. Even my

side of the case seemed to think Walker owned stock as the pleading indicates. And the

question I asked to everybody, really, where did Walker get that? When did he acquire

the interest? How did he get it."

190. Judge Douglass, adopting Rubin's theme, held that Jack Walker never owned any

shares of 4200 Avenue K Realty Corp. In doing so, Judge Douglass ignored not only the

facts but further ignored Judge Gammerman's conclusion after trial that "At least you

(Weinstock) are in a better position to the extent that at least at the time Dr. Walker made

an assignment to you in February, at least he had some interest in Avenue K. Maybe 100

per cent. Maybe 40 per cent. But he had some interest" (Exhibit "J", p. 1070).

191. And in assailing the sufficiency of consideration in my settlement of claims

against Walker for defamation (arising from the sale of the Ocean Avenue property) in

exchange for 80% of the shares of 4200 Avenue K Realty, Judge Douglass ignored Judge

Gammerman's recognition of the sufficiency of that consideration (Exhibit "J", pp. 33-34,

39).

192. Emmerich Handler's influence in Kings County has resulted in the prosecution of

these disciplinary proceedings against me.

193. Justice Lewis Douglass, upon being apprised of Jack Walker's admissions, did

not then put an end to this case, however, as was his duty, I believe. Justice Douglass

proceeded to ignore the admissions that the allegations of the Complaint were fabricated,

and let the case proceed to trial on contradictory allegations of ownership and unpleaded

assertions of unconscionability, upon which, as a secondary theory of recovery, he found

against me.

194. Justice Douglass granted judgment to plaintiff Emmerich Handler on a primary

theory of recovery in which he found for Plaintiff Handler to the exclusion of Plaintiff

Jack Walker!

195. I wish again to inform the Court here that this episode is presented in mitigation,

and not in an attempt to "relitigate" facts I am at present collaterally estopped from

asserting.

196. Although professing not to try my statute-barred malicious defamation and

malicious prosecution case, Justice Douglass nevertheless held that Walker had a

"powerful defense" to my "nebulous" action (arising from Jack Walker's admittedly

malicious Nassau County action ), that I "sustained no measurable damages" and that the

assignment by Walker to me must be set aside due to "gross unfairness".

197. Justice Douglass professed not to "try" my case, but he decided it against me

anyway! The decision makes it patently clear that Jack Walker was simply a tool for

Emmerich Handler.25

198. Although Justice Douglass rendered a decision in a case he acknowledged he

could not try but nevertheless decided, and in deciding it failed to allow me the jury to

which I was in any event entitled, the Appellate Division affirmed.

199. That affirmation, however, decided against me, stated that the assignments from

Walker through which I claimed ownership were rendered void as the products of

coercion and overreaching. The trial court, however had found in favor of plaintiff

Emmerich Handler, awarding him complete ownership of the shares of 4200 Avenue K!


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