200. The trial and appellate court decisions in Handler, Walker and Kaminetzer
Yeshiva of Jerusalem v. Weinstock thus took from me my right to trial by jury of my
claims against Walker. I relinquished these claims in consideration for the assignment of
80% of the stock in 4200 Avenue K.
201. While I cannot here contest Justice Douglass' findings, fallacies in his rationale
are instructive as regards mitigation. For what Judge Douglass found unconscionable was
settlement of my claims (which he expressly denied trying but described as nebulous
nonetheless) for "80% of a building worth $4,000,000.00."
202. Evidence presented at the trial and never disputed established that at the time
of my settlement with Jack Walker the only asset of 4200 Avenue K was a right of
appeal. The vendors offered "nuisance value" to settle the specific performance case
after the second trial. On January 13, 1985 Jack Walker himself agreed with Emmerich
Handler's estranged former law partners to sell 50% of his interest in the contract for
$790.00 per percentage point. Expert valuation evidence at trial further established that
mortgages on the property totaled some two million dollars.
203. It is clear to me on these facts that Emmerich Handler's claim of influence in
Kings County is not an idle boast.
204. My perception, then as now, of the transactions in which I acquired shares of
4200 Avenue K Realty Corp., is that they were entirely proper.
205. I first acquired 20% of the shares in consideration of legal services performed
as a fee proposed by Jack Walker in lieu of a cash payment of $20,000.00. This type of
transaction occurs daily in New York as elsewhere. There is no basis in fact to
conclude that this created any conflict of interest. Justice Douglass had no difficulty
with this transaction, standing alone.
206. Any breach of the disciplinary rules on the facts as found is in my view one of
form only, the substance of the transaction being in no way reprehensible, and in no way
deserving of retribution. At issue was whether a commercial transaction was or was not
consummated-a rather dry and non-dramatic question. No moral issue was presented. The
only pain suffered, if at all, was financial.
207. I feel that 4200 Avenue K Corp. was well served by me, my efforts having
produced a result very favorable to my client. Emmerich Handler and others have taken
great pains to obtain the benefits of my effort on behalf of my client.
208. I subsequently acquired 80% of the shares of the corporation in settlement of
my claims against Jack Walker. I believe that he was then the owner of those shares, and
my understanding is that he wished to forego any appeal-and allow the defendants to evade
the contract of sale for the property. I was unable to change that decision, under which
circumstances Jack Walker could have gained at most only the return of 80% of is
209. Meanwhile, Jack Walker had acted reprehensibly in besmirching my
reputation. His settlement with me, worth at most $40,000.00 at that time, gained him
peace. For my part I forgave my claims respecting truly outrageous conduct in a
"civilized" society. I then made something of the corporation's naked right of appeal.
210. I believe that I have acted honorably, and that there is no basis upon which to
conclude that my conduct adversely reflects on my fitness to practice law.
Weinstock v. Weinstock
Statement of Facts
211. As previously stated, I believe that charges Three and Four of the Petition
herein evidence the attempt of Emmerich Handler (and others) to obtain leverage with
which to dissuade me from pursuing them.
212. I believe that these charges were brought by a Grievance Committee intent on
furthering that purpose. Denial of my motion to present evidentiary testimony precludes
my ability to present the evidence of Emmerich Handler, Robert Saltzman, Esq. and
Susan Korenberg, Esq. in this regard.
213. As related above, I can testify to the following:
a) "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!;
b) In 1999 The Lawyers' Fund for Client Protection reported that six attorneys have
paid a $10,000.00 sanction under N.Y.C.R.R. Part 130 since its inception in 1990.
There exist no published reports of disciplinary action taken against any of the
c) A review by my office of the Annual Reports on Lawyer Discipline in New York
State for the years 1994 through 1999 published by the New York State Bar
has located 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;
d) The simple taking of an appeal has engendered no disciplinary matters respecting
violation of DR 7-102(a)(1) or DR 7-102 (a)(2) absent further allegations of serious
professional misconduct-which are absent here.
214. The facts respecting the appeal for which I was sanctioned are instructive.
215. The subject appeal taken to the Appellate Division, Second Department
appealed the Order of Justice Simeon Golar of the Supreme Court, Kings County made
March 26, 1997. That Order denied my motion to vacate the decision of Judicial
Hearing Officer the late Joseph Modugno, which set aside the separation agreement
between my former wife Esther and I and denied my application for a conversion
divorce. The motion was made under CPLR § 5015(a)(2) and §5015(a)(3) on the basis
of fraud and newly discovered evidence.
216. In denying my application for a conversion divorce under the terms of the
separation agreement J.H.O. Modugno had simply found that the agreement was
unconscionable considering the fact that I had a worth of approximately $2,000,000.00,
and because, although Esther was provided with her basic living expenses for life, she
did not receive a lump sum or equitable distribution.26
217. I appealed the decision. The Appellate Division affirmed based upon
additional findings that have proved very damaging to me (and to my family), as
a) "The plaintiff's own testimony indicates a fatal lack of disclosure respecting his
b) "The record is replete with evidence of the defendant's diminished capacity due
to her periods of dependence upon Valium and alcohol"; and
c) "The agreement is so manifestly unfair, and the apparent product of coercion and
overreaching on the part of that the plaintiff, that it was properly set aside"
218. My CPLR § 5015 motion was made to Justice Simeon Golar, who presided at
the trial of the equitable distribution action resulting from J.H.O. Modugno's decision.
The motion arose substantively from admissions made by Esther at the equitable
distribution trial and from documents that came to light there.
219. My motion arose procedurally out of the peculiar set of circumstances set out
220. At the equitable distribution trial the late J.H.O. Modugno made no findings
whatsoever respecting the allegations that Esther had no knowledge of our finances, that
she was undergoing psychiatric care, and that she suffered from problems with alcohol
and drugs. He had simply found that the separation agreement was unconscionable
considering the fact that I was worth approximately two million dollars, and because
although Esther was provided with her basic living expenses for life she did not receive
a lump sum or equitable distribution. I got too much, she not enough.
221. The Appellate Division, Second Department had gone considerably further,
however, and found for Esther on the issue that her attorneys had made the centerpiece
of their appeal-"a fatal lack of disclosure respecting his (my) financial affairs".
222. The Appellate Division further found of particular significance the testimony of
a Dr. Norman J. Levy, purported to be Esther's treating psychiatrist, who gave vague
testimony that Esther was "capable of signing an agreement to relinquish all her
property if she was told that said agreement would be an act of love or an act of trust
towards her husband".27
223. My motion to vacate the Order setting aside our separation agreement was
based upon three pieces of evidence showing that the courts' findings were the product
of fraud perpetrated by Esther and by her attorneys. I have always believed that Esther
was manipulated by her attorneys to pursue me solely for their financial benefit. 28The
newly discovered evidence consisted of:
a) Esther's testimony before Justice Simeon Golar at the equitable distribution trial
evidencing her intimate knowledge, as bookkeeper, of our finances, causing Justice
Golar to specifically find that "the court...doubts defendant-wife's claim that she had no
knowledge that plaintiff had partners in the various ventures. Defendant wife worked
for plaintiff and made various bookkeeping entries that belie a lack of knowledge by
her" (emphasis added);
b) a letter Esther sent to the Grievance Committee before the equitable distribution
trial, written with the assistance of her counsel, seeking disciplinary action against me,
and failing to mention in any way either ignorance on her part of our finances, or
coercion, or fraudulent procurement of her signature to our separation agreement as a
"symbol of love" on my part; and
c) a letter Esther sent to me in which she described her defiance of me over the
course of our marriage (as opposed to her compliance as testified to by Dr. Levy).
Weinstock v. Weinstock: Procedure
224. My decision to seek relief from J.H.O. Modugno's decision led me to prepare
within my law firm a motion asking the Appellate Division to vacate its affirmation of
the trial court decision.
225. Rod Kovel, Esq. of my office spoke with a clerk of the court, quite possibly
Chief Clerk Brownstein, and told him about the case status. Mr. Kovel told him that the
factual foundation of the Appellate Division's decision had been disproved by
subsequent findings that were unpublished, and from which I had not taken an appeal.