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Affidavit and Supporting Documentation 7/27/01
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Affidavit

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
$50,000.00 deposit.

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.

2.

 

Weinstock v. Weinstock

 

A.

 

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

attorneys;

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
Association

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

follows:

 

a) "The plaintiff's own testimony indicates a fatal lack of disclosure respecting his

financial affairs";

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

below.

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).

 

B.

 

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.


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