Failure of our legal system

Dear Justice Fisher-Brandveen,

This landlord, and its predecessor, have succeeded in perpetrating a fraud on this court, placing the possessory rights of my client -- Tran Han Ho, and his grocery store, Sun Mei Food Market -- in jeopardy for more than 3 years. Non-payment proceedings in December, 2000 resulted in a Judgment for the landlord which validated what was later proved to be a fake "second lease." The landlord continues to get away with this fraudulent scheme, initially by blocking the Tenant from viewing the only original of the alleged "second lease" and the, trial court not only believed the perjured testimony of the landlord 's witnesses, but failed to accurately describe the 4 original lease documents in evidence. Fundamental errors were made in the findings of fact, based on false assumptions not supported by the lease documents. Since the trial, the Judgment has not been disturbed primarily because of the trial court's refusal to seriously consider the proof of the fraud, which was discovered and immediately presented-in a post-judgment 5015(a)(2) Motion (based on newly discovered evidence) in June, 2002. Civil Court Judge Eileen A. Rakower effectively refused to consider the compelling evidence of fraud, misconstrued that "new evidence" and misled the Appellate Term, in the Order denying any relief and erroneously implying that the Tenant could have discovered the new evidence during the trial. In fact, it was explicit misconduct by the landlords, not only of fabricating a fake "second lease," but by blocking the Tenant from viewing the only original of that fake document, which prevented the discovery of the truth about that document. Thus it was not the Tenant's lack of due diligence, but the landlords 'misconduct which prevented discovery of the fake "second lease" any earlier. (Copies of first page and signature pages of the landlord's 2 originals at Exh #4, and tenant's 2 originals at Exh #5 -- with the caveat that none of the defects ultimately discovered on the only original of the disputed "second lease" are visible on any of the copies. The forensic expert, John P.Osborn, photographed some of the most glaring defects, but the enclosed photos following his Report (Exh #3) are copies of his photographs.)

The underlying Judgment resulted from two commercial non-payment proceedings consolidated for trial. The two cases assume the existence of two leases, and the only issue before the court was the disputed existence of the alleged "second lease." A 10-year lease was executed in quadruplicate, on December 11, 1992, by the previous landlord and Tran Han Ho, "or corporate assignee," including a 5-year option to renew.

This dispute arose in the 7th year. (And although the Tenant exercised the option to renew before the lease expired on December 31, 2002, the option has been rejected unless the Judgment is reversed.) A hearing to determine "prevailing market rates" began on November 5, 2003, after the trial court refused to recuse itself. For the landlord, the only purpose of that hearing is to determine Use & Occupancy for the 10 months of 2003 since the lease expired. However the Tenant still seeks to retain possession, having exercised the renewal option, to determine a reasonable market rent after establishing that there was never more than the one genuine lease. The landlord fully intends to evict the Tenant, conceivably before December 5, (when the hearing is to resumed), despite the fact that the two Money Judgments, (over $158,000) are now fully satisfied. The last stay expired on October 22, after the Appellate Division denied leave to appeal. Execution of the warrant, which is not stayed at the moment, could occur as soon as Tuesday, November 25, 2003, without a stay.

The base rent under the genuine (undisputed) lease was $1,775/month with increases of 3% starting with the 4th year, but the previous landlord collected increases in the 5th and 6th years only. Suddenly, and inexplicably, in October of the 7th year, (1999), the landlord rejected the Tenant's corporate (Sun Mei Inc.) rent check for $1,883. Four months later, these two non-payment proceedings were commenced. (After the October, 1999 rent check was rejected, the Tenant mailed a money order for the rent under the genuine lease each month by certified mail, adding 3% as of January, 2000.) However, the landlord still brought two non-payment proceedings, despite the fact that the Tenant owed no rent under the only genuine lease. Thus, the landlord commenced one non-payment proceeding for "each lease." The Tenant's lawyer made repeated demands to view the only original of the alleged "second lease" but all demands were ignored. The Tenant was provided only copies of the alleged "second lease," making it impossible to discover any of the defects which I ultimately discovered, since those defects are only visible on the only original of the "second lease."

After answering, the Tenant's lawyer made several attempts to transfer the dispute to a court of equity, claiming that the landlord was effectively seeking declaratory relief. For, the only issue was whether the alleged "second lease" existed. The Tenant first sought Removal to Supreme Court which was denied by Justice Braun, stating that this was a landlord/tenant dispute which belonged in the Civil Court.

After removal was denied, the Tenant brought an action in Supreme Court alleging fraud, requesting declaratory and other equitable relief and immediately moved to consolidate the non-payment proceedings with the new action, again arguing that only the Supreme Court has the necessary equity jurisdiction to issue declaratory relief. Not only was consolidation denied, but that Order stayed all discovery in the new action. And since it is elementary that discovery is unavailable in non-payment proceedings, the Supreme Court was the only forum where, with discovery, the Tenant might have viewed the only original of the alleged "second lease." Thus, once discovery was stayed, the Tenant had no choice but to go to trial. All of the Tenant's demands to examine the only original were ignored and the Tenant received only copies of the alleged "second lease."

The Decision after trial directly contradicts the 4 lease documents which were admitted into evidence, (2 originals from each party), with findings of fact that (1) there were "two leases for two stores," (2) that "there were two originals of each lease" and that (3) Mr. Tran's two originals were for "distinct premises," meaning that the also possessed an original of each lease. (Decision, and Order affirming Judgment at Exhibit #1) These findings are directly contradicted by the 4 original lease documents themselves. The trial court did not notice that there was only one original of the questioned "second lease," and it assumed, incorrectly, that if there was a "second lease," there had to be two copies. (The genuine lease is also referred to as the "223" lease and the "second lease" is also referred to as the "225" lease, where 223 and 225 Centre St. both refer to the same building.)

While assembling the Record at Counsel press, the undersigned carefully studied the 4 original lease documents (after Petitioner's original Exhibits were returned to the appellate printer). I literally jumped out of my chair when I first noticed the use of wite-out only visible on the one original of the "second lease." Under the 3 areas of wite-out the following alterations were revealed: (1) the date was changed, (2) a forgery of the Tenant's deceased sister's signature (next to initials at the bottom of the page) (his sister is named as a co-tenant on the "second lease" only when all 4 lease documents were signed only Mr. Tran and Donna Chen, for the landlord's company, and (3) the Tenant's corporation, "SUN MEI FOOD... " is referred to as a party to the genuine lease, in the single-space heading at the top of the first page of the "second lease" when this corporation did not yet exist, which is why the genuine lease names the Tenant as Tran Han Ho "or a corporate assignee. "

These alterations under wite-out were the tip of the iceberg, and the wire-out was not the only "new evidence, "as stated by Judge Rakower in the Order denying the 5015(a)( 2) Motion. After discovering the 3 areas of wite-out, and what was under the wite-out, I took-the 4 original lease documents to two forensic document experts who discovered 4 or 5 more categories of defects which supported several conclusions, including that the first page of the "second lease" is nothing more than "a replacement page, not present when the document was originally prepared/executed." (See Osborn Report) In other words, the document purporting to be the "second lease," is nothing more than one of the 4 originals of the genuine lease, (each party received two originals) after removal of the first page which was replaced by what became the terms of the "second lease. "With the new evidence, the Tenant was able to prove that the "second lease " is nothing more than an altered version of one of the 4 originals of the genuine lease for the subject grocery store. It was not noticed that there are 3 originals of the genuine lease, not 2, and that there is only one original of the "second lease," not 2. These fundamental errors remain uncorrected, since the Appellate Term affirmed the trial Decision based on "credibility." Thus the contradictions between the findings of act and the 4 original lease documents were ignored. The Appellate Term also affirmed the Order denying the Tenant 's newly discovered evidence Motion, acknowledging the possibility that the "second lease" is fake, but finding that the Tenant had not satisfied the "due diligence " criteria 05015(of a)(2) because of Judge Rakower's misleading Order. The misconduct by the landlords was again totally overlooked. (See Match 6,200l Decision, (Exh. #1) June 20,2002 Order denying 5015(a)(2). Motion (Exh. #2) affirmed by the Appellate Term December 20, 2002 and January 21, 2003, respectively (Exhs. #1 and #2) and Order of Appellate Division denying leave to appeal dated October 14, 2003 (Exh. #8))

Recent events

On November 5, 2003 -- the same day scheduled for a hearing to determine "prevailing market rates," and additional attorney's fees, the undersigned submitted an Order to Show Cause to Part 52, seeking to permanently vacate the warrant on the grounds that the Money Judgment was being satisfied, and based on good cause shown, given that this is a bona fide dispute as to the validity of the alleged "second lease." Certainly this was not a routine non-payment proceeding.) After the hearing and my Order to Show Cause was randomly referred from Part 52 to Judge Rakower, (in a back-up part), I moved for recusal which was denied, on the record. (More than a week later, I obtained the transcript.) Judge Rakower refused to sign the Order to Show Cause, stating, 'The issue presented here was fully litigated at trial - on appeal - on post trial motions - also appealed ... Decline to sign." Thus, the Tenant was left without a stay, and without an order, meaning that there is no basis to seek a stay from the Appellate Term. While the same motion was immediately served on ordinary notice, returnable on November 14, the landlord requested an adjournment which was agreed to on the 13th, and on Monday, November 17 the Tenant received a 6-day Eviction notice.

After contacting the Judge's court attorney, a letter was hand-delivered yesterday (Nov 20) with the original transcript and rejected. The letter was never seen by the Court. The message relayed through the court attorney after rejecting the letter and transcript was that that the Court would entertain nothing further until the continued "market rent" hearing on December 5. Without a signature, the transcript is not considered an Order, and thus there is nothing to appeal, preventing the Tenant from seeking an interim stay from the Appellate Term. It was clearly a "litigated motion" since both sides were heard on the motion. A copy of my letter to Judge Rakower and the 25-page transcript were transmitted by facsimile to my adversary. On the phone, the court attorney suggested that I had attempted an ex parte communication, which is not the case, nor is there any reason for same. I am effectively paralyzed from applying for a stay from the Appellate Term. And the Court's position is reminiscent of what occurred in June, 2002 when the Court effectively refused to seriously entertain the 5015(a)(2) Motion, totally misconstrued the "new evidence " and rendered a decision which misled the Appellate Term, as if the Motion had been considered and was rejected on the merits. The Court refused to consider. conducting a hearing, and never took the time to find out what it was claimed that the new evidence would prove. There was and continues to be a clear basis for reversal of the Judgment based on the unequivocal evidence which proves that the "second lease" is fake. But, at this moment, the market rent hearing is to continue on December 5, while the Tenant could be evicted as soon as November 25.

In seeking recusal, it was argued that the Order denying the Tenant's 5105(a)(2), it was a pivotal decision, made without bothering to consider that motion on its merits. For the Court totally misunderstood and misconstrued what was offered as the "new evidence" and relied on its incomplete and out of context recollection of the trial, without bothering to consider my papers or the Reports of two experts, and thus, without any knowledge of the grounds. In affirming, the AppelIate Term, which still recognized the possibility that the "second lease" could be fake, but solely because of the Court's suggestion that the Tenant had failed to exercise due diligence, the landlord 's fraud was overlooked, and the inconsistencies between the documents and the Court's original findings remained undisturbed. Based on a recent First Department decision concerning litigation about a fire, and-the non-disclosure of a Report that the sprinkler was not working, in Cohoes Realty v. Lexington Co., 292 AD2d 51, the First Department clearly and recently articulated its power to correct a situation where it was the misconduct by one party, not the lack of due diligence by the other party, (based on the criteria for newly discovered evidence). A Motion for Reargument was recently filed with the Appellate Division, but after leave to appeal was denied on October 14, it seemed extremely unlikely that a second stay would be granted, particularly since there is no reasoning in the Order denying leave to appeal, although one assumes that the grounds were related to judicial economy.

Judicial economy cannot be an excise for these two landlords to defraud this Court, notwithstanding the fact that all of the Tenant's efforts to expose the fake "second lease" have been frustrated, and, thus, to overturn the underlying Judgment. Since the Money Judgments are now satisfied, there are clear grounds for the new motion to vacate the warrant for good cause shown, if the Tenant can remain in possession long enough to litigate that motion. There is no question that this landlord wants to get rid of this Tenant, although in 4 years, the landlord has never admitted to that position, since it prevailed, despite the new evidence which proves the fraud. The intransigence of the Court has worked to the landlord's benefit in arbitrarily refusing to consider that a mistake could have been made in its original decision of March 6, 2001, based on credibility, while ignoring and ultimately contradicting the central documents.

After refusing to recuse itself on November 5, the next morning Judge Rakower "declined to sign" the Tenant 's Order to Show Cause denying an interim stay and effectively refusing to permit the Tenant to make his Motion seeking to permanently vacate the warrant since this has been a bona fide dispute. That is, the Tenant raised a new issue for which there is ample precedent in both the First and Second Departments. (In 41st Avenue v. Choices Women s Medical Center, 288 Misc2d 274 (2d Dept. 2001), "The underlying proceeding was not a case of a tenant refusing to pay rent. There was a good-faith dispute over which party to the lease was obligated to pay the fire guard coverage." In the instant case the good faith dispute concerns the validity of an alleged "second lease." While the Tenant's efforts to expose the fake "second lease" continue to be frustrated, there can be no question that this was a genuine dispute, and never concerned this Tenant's failure to pay rent.

It is urged that this Office must not allow a landlord to get away with this kind of fraud which has been perpetrated on this Court. The Tenant remains the primary victim. But Judge Rakower's refusal to consider the Tenant's 5015(2) Motion could be interpreted as the effect of the fraud perpetrated on the Court. This has continued with the refusal to sign an Order to Show Cause, after refusing recusal, and now refusing to sign the transcript, which would at least provide an order from which an appeal could he taken, and a request for a stay of execution of the warrant so that the motion can be fully litigated. It is also adjourned to December 5 which is a long way away, with an outstanding Marshal's Notice.

Thus, intervention of Your Honor's office is requested to prevent any further injustice to this Tenant and to finally expose the fraud of which Judge Rakower has also become a victim.

Respectfully,

POLLY EUSTIS

PE:mce cc: Ofeck & Heinze, LP Attorneys for Petitioner 401 Broadway, Suite 1600 New York, N.Y. 10013 (212) 343-2662 fax: 966-4333

#8 Order of Appellate Division, dated October 14, 2003 denying Motion for Leave to Appeal Consolidation and for Stay pending appeal (see al60 interim stay granted by Appellate Division, dated July 10, 2003)