Thanks to my readers

Yesterday’s story about judge’s resistance to NY Chief Judge’s Lippman’s bail reform plan was more than twice as high as previously recorded on any single day— more than 1100 page views.

I am glad you found it interesting enough to share with your friends and hope that I can continue to find topics of such interest to write about.

Thank you,

Dan Wise

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Anger Over Lippman’s Bail Reform Plan Sweeps Through NYC Criminal Judges

Judges, both present and former, in Manhattan, Queens and the Bronx report in interviews that a wide swath of their colleagues handling criminal cases are adamantly opposed to Chief Judge Jonathan Lippman’s bail reform plan.

The judges say there is a widespread sentiment within the criminal bench that the Lippman plan is not reflective of the realities they face in setting bail; will sow discord among judges handling criminal cases; was rolled out in a manner that was demeaning to judges and the quality of work they do; and is at odds with statutory requirements and ethical restraints designed to protect the judiciary from outside influences.  Continue reading


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Misguided Conservative Attack with Lynch Nomination a Cliffhanger

Conservative critics of Loretta Lynch have raised a bogus argument in an effort to derail her nomination for U.S. Attorney General as her nomination enters a critical and perilous stage.

In the past week Senate vote-counters are predicting that, even if the Senate votes on her confirmation, the result would be a 50-50 tie with Vice President Joe Biden casting the deciding vote. That leaves Lynch, who has been the U.S. Attorney based in Brooklyn since 2010 zero-room for defectors. Four of the senators currently in her column are Republicans, one of whom is Hatch (R-Utah), who sits on the Judiciary Committee.

On Tuesday Senator Dick Durbin (D-Ill.), who as minority whip is the Democrats chief vote counter, told the Huffington Post link that he is “worried” about the outcome of a vote on Lynch’s confirmation. But yesterday, Senator Lindsey Graham (R-S.C.) told the Huffington Post that he thinks “a couple” of Republican votes will be found to put Lynch over the top.

In the past two weeks, two prominent publications with a conservative editorial bent have launched a factually inaccurate attack claiming that Lynch mislead Hatch in responding to a written question he posed to her after her two-day hearing before the Judiciary Committee wrapped up on Jan. 29.

On Thursday, March 11, the New York Observer ran an article written by a former federal prosecutor under the headline “Breaking: Loretta Lynch Caught in Deceptive Disclaimer.” The Observer story was followed a week ago Tuesday, March 17, by an editorial in the Washington Times, which likewise accused Lynch of misleading Hatch. Continue reading

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Did Bank Complaints Result in Transfer of Foreclosure Referee?

I have come into possession of a copy of an internal e-mail from a court attorney to a top official at the Office of Court Administration that paints an unsettling picture of bank influence in the handling of foreclosure cases in Brooklyn. The e-mail was from Deborah Goldstein, a court attorney at the Supreme Court in Brooklyn, who for four years had been supervising conferences required by state law between banks and homeowners facing foreclosure.

In her-email, Goldstein asked Judge Lawrence K. Marks, the number two official in charge of court administration throughout New York, to stop an imminent plan to move her to a pool of lawyers whose job is to help judges draft opinions. In her e-mail, Goldstein advised Marks that Lawrence S. Knipel, the administrative judge in charge of civil cases at the Brooklyn court, was moving her out of her mini-courtroom after having received complaints “verbally made at a private meeting” with lawyers who represent banks at the settlement conferences, without providing her “any [of those] complaint(s) in writing or an opportunity to respond.”

Goldstein’s appeal was unavailing, and she was re-assigned to desk duties five days later on April 22, 2013.

I obtained a copy of Goldstein’s email to Marks from a confidential source, not Goldstein. When I advised Goldstein that I was in possession of the email, she asked me not to write about it and declined to be interviewed for this story.

Goldstein’s account of her removal finds support in a number of circumstances that surrounded her reassignment. Some of the most telling were: During his first four months as administrative judge, Knipel unilaterally revised the rules for handling the settlement conferences to the dismay of many judges who were actually in charge of the cases. The revised rules seemed aimed at Goldstein and designed to curb some of her practices that drew criticism from the bank bar. And homeowners’ lawyers, and even some judges, were unaware of the rule changes amid signs that bank lawyers knew about them in advance.

Additionally, during the last two years, 14 judges have agreed with Goldstein’s recommendations that the banks failed to negotiate in good faith—sometimes in highly critical opinions. Also, Goldstein’s findings served as the predicate for two important decisions issued by the appeals court in Brooklyn last year. Continue reading

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Courthouse Confidential: Tingling’s 1st Appointment was Suspended for Lapsed Registration


  • A likely Tingling Appointee Circulated a Set of Politically Incorrect Jokes
  • Court IG Opened Inquiry on Goodman; Reardon Put It to Rest
  • Heitler Bid to Extend Term as Administrative Judge doesn’t succeed; Top Contenders

  Continue reading

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Courthouse Confidential: Tingling Makes 1st High-Level Appointment as County Clerk

Former Manhattan Justice Milton A. Tingling, who succeeded Norman Goodman as New York County Clerk on Jan. 1, has appointed as his counsel, Manuel Tavarez, who has been his law secretary since 2001. The appointment is confirmed by a change in the County Clerk’s Office public phone directory.

It is unclear what will happen to the number two position in the office, which was handled by James A. Rossetti for 28 years until his forced departure in December 2013. Rossetti, a lawyer, departed as a result of an OCA Inspector General’s investigation, which was opened after Tingling brought to the attention of top court officials racist and misogynistic postings in the County Clerk’s records room (see WiseLawNY story dated Mar. 6, 2014 for details).

For the last year of Goodman’s 45-year tenure, Rossetti’s position as chief deputy county clerk remained unfilled. Instead, Goodman’s counsel, Phyllis Mingione, who had been working half-time, was made a full-time employee and took over some of Rossetti’s responsibilities.

Sources are reporting that Tingling has settled upon Nelson Capote, who is currently in charge of the pro se staff office at the Manhattan Supreme Court, to fill one of the office’s top posts. Under Goodman, Rossetti was the top deputy county clerk, and under him were two deputies, one in charge of jury operations and the other in charge of all other office functions. Whichever position Capote is transferred to, he will remain at the same pay level, Grade 30. Capote, who has been with the court system since 1987, earned a total of $134,000 in 2013, according to the website SeeThroughNY.

While the ultimate parameters of Capote’s duties have not been publicly revealed, Tingling brought both Capote and Tavarez along with him to the annual luncheon sponsored by the Managing Attorneys and Court Clerks Association held earlier this week, according to a source.

Politically Incorrect Jokes

Both Tavarez and Capote bring some baggage with them to the County Clerk’s Office. Tavarez was suspended in November 2013 by the Appellate Division for failing to keep his attorney registration current for more than four years, according to court records. The suspension was lifted three months later after he paid $1,100 to bring his registration up to date. It is not clear whether he was required to certify that he had completed his continuing legal education credits during that period. Continue reading

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Did Manhattan DA Go Easy on Mogul Said to Have Procured Underage Woman for Prince Andrew?

UPDATED: 6:43 Jan. 6, 2015

The billionaire money manager accused of supplying underage girls to Prince Andrew, Queens Elizabeth’s second son, and to renowned defense attorney Alan Dershowitz was given inexplicably lenient treatment by the Manhattan District Attorney’s Office in a 2011 sex offender registration proceeding, according to the judge who presided over the case. Continue reading

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News Flash: Tingling Applies to Succeed Goodman


Manhattan Supreme Court Justice Milton A. Tingling has submitted an application to the Appellate Division in Manhattan to succeed Norman A. Goodman as New York County Clerk, according to three independent sources. The Appellate Division, First Department could take a vote on Goodman’s replacement as early as its next regularly scheduled conference this coming Monday,  Nov. 24.

Tingling had triggered a series of events that resulted in the forced departure of James A. Rossetti, who was Goodman’s top aide and heir apparent. (See WiseLawNY, March 6, 2014).

In late July 2013, Tingling brought a photo of a racist image that had been posted in public view in the County Clerk’s Office to Justice Sherri Klein Heitler, the administrative judge in charge of civil cases at the Supreme Court in Manhattan. Over the next six months, the court system’s Inspector General’s Office conducted an investigation, which found that Rossetti had failed to take swift action to remove the offensive images and had misled investigators.

Relying on those findings, Deputy Chief Adminsitrative Judge Fern A. Fisher, who is in charge of courts in New York City, suspended Rossetti for 90 days and informed him that, upon his return, his salary would be cut by $30,000 and that he would be barred from entering the Manhattan courthouse on official business. Faced with that stern punishment, Rossetti submitted his resignation.

With Rossetti out of the picture, the biggest question became, who would replace Goodman when he retired.  Goodman was 90 years old and had been County Clerk for 45 years when Rossetti resigned in December, 2013. Rossetti had been the number-two man in the office since 1985. In 2000, Rossetti was given the title of Chief Management Analyst and was paid an annual salary of $145,000 in 2013. Goodman’s annual salary is $174,000, the same as is paid to Supreme Court justices.

In the months following Rossetti’s resignation, there were rumors at the 60 Centre St. courthouse that Tingling had expressed an interest in Goodman’s position. When I asked him about the rumors in connection with the March 6 article, he sidestepped the question, and instead answered, on the record, “I am running for re-election. My sole objective is to be re-elected.” Tingling was elected to a second term last November.

Tingling did not return several calls placed to him late Thurday afternoon.

The New York Post reported in October that New York County’s democratic leader, Assemblyman Keith Wright, was eying the post but two sources said he has not submitted an application. By statute, the Appellate Division, First Department appoints the County Clerks in New York County and the Bronx.

A well placed source reports that 60 candidates have submitted applications to succeed Goodman, seven of whom have been interviewed by the First Department. In addition to Tingling, the source said, Bronx Justice Richard Lee Price and Mark Brantley, who is the New York County office’s administrator, are among those who have been interviewed. Both Price and Brantley declined to comment.

Evidence Cuts Two Ways

Tingling’s pursuit of the job brings into sharper relief an issue I tried to flesh out in the March 6 article. Was Tingling trying to rid the courthouse of an inflammatory racial image as his supporters contended? Or was he seeking to push aside the heir apparent to open a path for himself or someone else as Rossetti’s backers maintained?

OCA Inspector General Sherrill Spatz’s report remains out of public view. The only inkling of what it contains comes from unattributed sources in the New York Law Journal’s story published about Rossetti’s resignation (Dec. 18, 2013). The Law Journal reported that the investigation faulted Rossetti, as reported above, but also concluded that he had not been involved in displaying the offensive images.

From the narrative I was able to develop in the March article, it appeared that the members of District Council 37, the union which represents workers in the County Clerk’s records room, took photographs of the offensive posts and forwarded them to Tingling. An article in the District Council 37 newspaper, which was published in March, said as much. It noted that several workers had taken photos with their cellphones of “racist” images of “monkeys and apes” and had prompted the Inspector General’s investigation by complaining to “the union and state Supreme Court Justice Milton Tingling.”

Tingling then promptly informed his administrative judge, Heitler, about the inflammatory images on his cellphone. After summoning Tingling and Rossetti to her chambers, Heitler dispatched Rossetti to the records room, which is in the basement of the courthouse, to inspect the posted images. Rossetti reported back that he did not see any offensive images.

I was troubled that Rossetti was unable to find the offensive images. They were indeed inflammatory. One of the images contained a drawing from a children’s book of an ape and a bird with “Nigger be like” and “I love me a bitch bird” scrawled across it.

It is altogether plausible that a worker (the records room staff is mostly black) was so enraged by the images that they were ripped down during the brief interval between the forwarding of the photo to Tingling’s cell phone and Heitler’s sending Rossetti to inspect the record room wall.

On the other hand, a source with no ties to either Rossetti or Tingling told me that the racist images had been posted in public view “for quite some time,” possibly as long as a year. That leaves two questions lingering: Why had  the images  been allowed to remain on the wall so long? Why did the union and Tingling wait until late July 2013 to bring the issue to a head.

One thing is clear. Once the Inspector General’s report was complete, Fisher moved swiftly to punish Rossetti. She summoned him to her chambers on Friday, Dec. 13, 2013, and, without providing either Rossetti or his lawyer a copy of Spatz’s report, informed Rossetti of his punishment. She gave him until the following Monday at 5 p.m. to advise her of whether he would accept the punishment.

A court officer in plain clothes then escorted Rossetti three blocks down Centre Street from the Civil Court, where Fisher has her chambers, to the Supreme Court where Rossetti had his. The officer remained with Rossetti while he gathered his belongings and exited the courthouse.

Rossetti submitted his resignation on Dec. 16. ahead of the 5 p.m. deadline.


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News Flash: Tingling Seeking To Succeed Goodman

Manhattan Supreme Court Justice Milton A. Tingling has submitted an application to the Appellate Division in Manhattan to succeed Norman A. Goodman as New York County Clerk, according to three independent sources. The Appellate Division, First Department could take a vote on Goodman’s replacement as early as its next regularly scheduled conference  this coming Monday,  Nov. 24.


Questions about Goodman’s successor arose in the summer of 2013 when his heir apparent, First Deputy James A. Rossetti, was forced to step aside after the Office of Court Administration Inspector General’s Office concluded that he had not acted vigorously enough to insure that a racist image was taken down from a public wall of the office.

Goodman has held the post for the past 46 years, and Rossetti was the second in command for 28 years before he was forced to retire.

As I reported in March, Tingling brought the issue of the racist post to the attention of Justice Sherry Klein Heitler, the administrative judge of the Supreme Court in Manhattan (WiseLawNY, March 6, 2014). That started a process which six months later ended in Rossetti’ forced removal in December, 2013.

The New York Post reported in October that New York County’s democratic leader, Keith Wright, was eying the post but two of the sources said he had not submitted an application. By statute, the Appellate Division appoints the County Clerk in New York City.

Tingling could not be reached for immediate comment.

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News Flash: Tolling Upheld for ‘Good Faith’ Violations

On Wednesday, Oct. 29, the Appellate Division in Brooklyn, for the first time, ruled that the forfeiture of interest and attorney fees is an appropriate sanction for banks that fail to honor their statutory obligation to negotiate in good faith with homeowners facing foreclosure.

The Second Department’s unsigned unanimous decision in U.S. Bank N.A. v. Williams, 2014 NY Slip Op 07349, is the first from any appeals court in the state to approve a penalty for a bank’s failure to negotiate in good faith at mandatory settlement conferences. The conferences were first required in 2008 in the wake of the nation’s economic meltdown. Civil Practice Law and Rules Section 3408 was amended a year later to require banks to conduct their negotiations in good faith. The new section added in 2009—3408(f)— did not specify a remedy for a bank’s failure to negotiate in good faith.

Undeterred by a clear-cut remedy, the banks’ handling of the settlement conferences has been problematic. In the last two years, 30 judges throughout the state have found banks to have failed to negotiate in good faith, often finding that the negotiations have stretched out for a year or longer or that loan reductions were approved only to later be withdrawn or that banks often either lost homeowners’ documents or required that they be resubmitted because they had grown outdated as the negotiations had dragged on.

Another measure of the depth of problems New York homeowners have encountered is found in a motion the New York State Attorney General’s Office has pending to force Wells Fargo Bank to comply with processing deadlines for mortgage-relief applications set in a 2010 nationwide settlement. The Attorney General’s motion in U.S.A. v. Bank of America, 12-cv-361 (District of Columbia) cited 200 instances in which Wells Fargo had failed to meet the settlement’s processing deadlines in cases involving 97 New York families.

The facts in the Second Department’s case were quite typical of those cited in prior “bad faith” findings and the Attorney General’s motion. Homeowner Fay Williams attended 10 conference sessions that had stretched out for more than year before Referee Deborah Goldstein, who supervised the conference process. Ultimately, Goldstein recommended that U.S. Bank N.A. be found not to have negotiated in good faith and that sanctions be imposed.

Williams’ case was also typical in that her mortgage is now owned by a syndicate, which has formed a mortgage pool as security for bonds it had issued to raise capital. In the 30 bad faith cases surveyed,[1] often the holder of the mortgage was a syndicate like U.S. Bank. As was typical in those rulings, U.S. Bank waited until negotiations had sputtered for 13 months before advising either the homeowner or the referee that the legal documents forming the pool precluded it from altering either the interest or duration of the mortgages it owns.

In their ruling, the four Second Department judges dryly stated that, under those circumstances— which were reflected in many of the “bad faith” rulings—Brooklyn Justice Richard Velasquez “providently exercised” his discretion in requiring the syndicate to forfeit interest and attorney fees, which it would otherwise have been entitled to.

The panel—which consisted of Peter B. Skelos, Sheri S. Roman, Sylvia O. Hinds-Radix and Hector D. LaSalle—also refined Velasquez’ order and directed that fees and interest be tolled from the date of the initial conference in June, 2010 until the conferences resume under the panel’s mandate. That reflects a period, which has already extended for more than four years.

Prior to the posting of this article, Pamela Ann-Marie Walker, the attorney  who handled Williams’ case at the conference and trial levels through the Brooklyn Bar Association’s Volunteer Lawyers Project, was unable to provide an estimate of how much interest is currently at stake under the panel’s tolling order.

In the last two years, the Second Department has been edging toward the approval of a remedy for good faith violations. In 2013, a panel in the case of Wells Fargo Bank v. Meyers, 108 A.D.3d 9, approved the notion that judges have the authority to approve a remedy, just not the one ordered by the trial judge in that case (the trial judge’s order had required specific performance of a trial modification which the bank had subsequently withdrawn). The Court in Meyers held off endorsing any specific remedy but it listed a number of possibilities.

In July of this year, another panel in U.S. Bank v. Sarmiento, 2014 NY Slip Op 05533, let a order tolling interest and fees stand even though it expressly stated that a legal technicality prohibited it from deciding whether judges have the power to order tolling.

The length of the delay attributable to the bank’s bad faith and the amount of the mortgage debt in Sarmiento is roughly analogous to that in the Williams case. A. David Fuster, who represented the homeowner in Sarmiento, was quoted in the New York Law Journal (Aug. 4, 2014) as estimating that the tolled interest for his client amounted to approximately $300,000.


[1] [1] See Wise, “Panel Shifts Toward Remedy in Sarmiento, ”New York Law Journal, Aug. 29, 2014, page 6, footnote 1. Since Aug. 29, I have added six more rulings finding that banks failed to negotiate in good faith: MERS v. Lieberman, 29970/09, decided 9/12/14, (Battaglia, J. Brooklyn); US Bank NA v. Garcia, 32313/2009, decided 9/22/14, Kurtz, J. Brooklyn; and U.S. Bank v. Smith, 34/2010, decided July 5, 2013, Solomon, J. Brooklyn; U.S. Bank v. Williams, 3685/10, Velasquez, J. Brooklyn, decided Nov. 18, 2013; Wells Fargo v. Ayala, 19783/12, decided Aug. 20, 2014, Pineda-Kirwan, J., Queens; and LaSalle Bank v. Dono, 2014 NY Slip Op 24224, decided Aug. 12, 2014, Spinner J., Suffolk).

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