FIRST DEPT FIXES ATTORNEY MALPRACTICE CASE FOR LIPPMAN

FOR IMMEDIATE RELEASE
(Free-Press-Release.com) November 12, 2009 --

November 12, 2009, New York NY: In the latest development in the scandal of case fixing allegations against the First Department, the activist appellate division dismissed three related attorney malpractice cases prior to “brief filing”, an act believed to have been undertaken to ensure that the frauds that allowed the "Lippman Panel" to throw out the underlying discrimination verdict against employer WPP in 2007 would never be tried or investigated. The First Department had ironically criticized the lawyers for negligent handling of evidence in their final Order. The malpractice cases had come before Supreme Court judge Marcy Friedman, also believed to be instrumental in the elaborate conspiracy of case fixing, who dismissed all three malpractice cases (against trial counsel Laurence Lebowitz, Gary Phelan of Outten & Golden, and David Fish), prior to discovery. Plaintiff Jordan had filed the latter malpractice cases after the Lippman Panel of the First Department issued its Decision in December 2007 reversing the jury verdict citing negligent handling of evidence that was “fatal” to the case, placing the blame squarely on the discovery and trial attorneys. Jordan has contended that the related Malpractice cases were dismissed despite “numerous issues of triable fact and law” in order to perpetuate Chief Judge Lippman’s fraud and fixing of the Jordan v. Bates discrimination case. A trial of the malpractice cases would almost certainly have re-opened the cover up of the reversal of the underlying discrimination case.

Apparently, Jordan’s suspicions were not unfounded. As soon as she filed her Malpractice cases in New York Supreme Court, Judge Rolando Acosta, the jurist who had upheld the jury verdict in February 2006 but later sabotaged it in his Final Judgment of November 2007 while he was being vetted for a promotion to the First Department,

attacked Jordan as “contemptuous” in his Order and had himself assigned as the judge on the Malpractice case, the latter a serious conflict under the Rules. Judge Acosta had advised Jordan that he would “act as a fact witness against you” and adjudicate the Malpractice case in an “Ex Parte” meeting initiated by discharged attorney Laurence Lebowitz, a threat he carried out and a blatant violation of the Rules of Judicial Conduct. Jordan believes that a deal went down for the $1,300,000 legal fee during that closed door Ex Parte meeting between Judge Acosta and Mr. Lebowitz. "

Judge Acosta then recused himself from the malpractice case long enough for Judge Friedman to appear and dispose of it prior to discovery. Once the case was on appeal, Judge Catterson, a principle appellate jurist in the underlying Jordan v. Bates case fixing scheme, made an appearance which was contested by Jordan for conflict reasons. Then Jordan formally petitioned for his recusal and for an Enlargement of Time to file the appeal given the severely delayed Record by the County Clerk and the absence of a bona fide Attorney Statement. Jordan is disabled and made the request under the Americans with Disability Act. Judge Acosta was again noticed on that Panel, perpetuating his threat to obstruct Jordan’s efforts to have her cases heard. Jordan objected again but received no response. This week the Appellate Division, under a “new” panel, denied Jordan’s right to argue her appeal of the dismissal of all three malpractice cases ,without explanation.

In dismissing the appeals, the activist First Department deviated from the Rules of Appellate Procedure, which require a Certified Record and signed Attorney Statement, prior to Brief filing, and also demand that Jurists disclose Conflicts, which neither Judge Catterson nor Judge Acosta did. Jordan has repeatedly argued that the Lippman-Catterson paneled “fixed” her case, reversing a bona fide jury verdict without meeting the statutory requirements for the same, to do a favor for defendant employer Bates Advertising, a former unit of WPP GROUP , who lost the case and had to post a $3.3M bond. WPP refused to settle, instead demanding that Jordan endure a decade long litigation, and ultimately lost the case. After losing, instead of simply paying the bond, they filed a frivolous appeal, knowing their clients had admitted their guilt under oath and agreed on the record to the jury instructions.

Judges Acosta and Lippman, who were both being vetted for promotions at this time, saw an opportunity to ingratiate themselves with a large employer like WPP GROUP and its lawyers at Drinker Biddle, who might return the favor in the future. Consequently, Judge Acosta concocted a scheme to ‘sanction” Jordan for reporting his and Lebowitz’ misconduct, attacking her as “contemptuous” to discredit her allegations, serving up to Judge Lippman a new pretext to challenge the otherwise iron clad case. Lippman eagerly accepted the unsworn attack on Jordan as fact, and used it to discredit her otherwise credible and consistent testimony over four days of instense grilling by DBR. Bates executives admitted under oath to knowing about a viscious hazing campaign and taking no remedial action during the Federal Case that originally went before Judge Rakoff. Rakoff, like many federal judges reluctant to take on discrimination cases, declined to hear the "perceived disability" case, and issued an erroneous Opinion that misapplied discrimination law to the facts, accepting the unproven pretext of “financial problems” by the employer as dispositive of the allegations of discrimination and setting into motion Jordan’s 14 year ordeal in her pursuit of justice.
It was a matter of record that the employer fired the disabled executive after hazing her and replaced her with “several” non disabled executives claiming “financial problems”. It was also proven that Bates was embarked on a major hiring campaign for Planners during the identical period of the alleged “financial crisis”. The jury rightfully saw through this pretext.

The First Department essentially accepted WPP’s legal arguments that the “financial problems” were a legitimate reason to fire the visibly disabled Jordan. However the Supreme Court in the precedent McDonnell Douglas case required that all discrimination cases be subjected to a tripartite analysis to ascertain the employers motivations or “real reason” for the adverse employment action. The latter is the standard adopted by most Courts around the country. Having accepted the “financial reasons” pretext at face value (it was never proven), the Lippman panel then discounted all the evidence of admissions of wrongdoing and attacked Jordan’s credibility, embarking on a quest for “facts” to patch together to support the employer’s pretext, a highly improper practice for an appellate court. The Lippman-Catterson panel then reversed the jury verdict. Because the remedy for the alleged defects would have been remand for retrial, Judge Lippman effectively fixed the case for WPP GROUP. It was also later revealed in a case filed by then Chief Judge Kaye against the Governor that Judges Lippman and Kaye were envious of the salaries paid private sector executives like Jordan, who held a $250K base salary position at the agency.

In the Decision dismissing the case Chief Judge Jonathan Lippman cited negligent handling of evidence and certain legal issues as “fatal” to the case, placing blame squarely on the attorneys representing Ms. Jordan. However, when the Malpractice case came to trial, Supreme Court Judge Marcy Friedman dismissed all three malpractice cases prior to discovery. She also excused Jordan’s attorney, Andrew Lavoot Bluestone leaving Jordan to argue the cases Pro Se. Judge Friedman threw out all of the cases, despite numerous triable issues of fact and law. Jordan appealed to the First Department.
The Appellant, a disabled woman with MS,. had filed for an extension of time to file her appellate brief after the County Clerk took over a year to certify the file and after there were serious issues of evidence tampering in the trial court. The Appellate Division instead of providing the extension used Jordan’s failure to meet the arbitrary deadline as a pretext to deny all three appeals. Jordan had argued that without a Certified Record or signed Attorney Affirmation, she could not even begin her Brief.

The issue of “case fixing” has become very high profile on the legal scene after the New York State Senate Judiciary Committee under Senate Majority Leader John Sampson held public hearings and heard countless citizens attest to corruption in the Courts ranging from evidence tampering to censorship and abuse of discretion to outright fixing of the outcome of cases.

“The Jordan v. Bates case is a microcosm of what ails the Judiciary in New York today: cronyism, favor dispensation, abuse of authority and “deal” making instead of justice administration. Once the Lippman panel fixed the Bates case so that the jury nullification would appear to be justifiable, they then reversed the verdict, instead of remanding the alleged defects for retrial, to allow for the statutory exhaustion of remedies. The First Department felt entitled to use its judicial discretion to alter the laws on proving discrimination cases making it even harder to prove discrimination than before the "Bates" case. This act of “legislating from the bench” new law is illegal, and the decision the hear the frivolous appeal a fraud upon the tax payers”, Jordan stated. “The denial of the Malpractice cases was “tying up loose ends” by the First Department, who has refused to take the issue of attorney malpractice seriously but who recognizes the important role that attorneys play in these “armslength” case fixing deals".

More information can be found online at http://ENDDISCRIMINATIONNOW.COM

appellate division     attorney malpractice     first department     jonathan lippman     Kathryn Jordan     WPP