Motion for New Trial due to fraud illegality unconscionability

by | Feb 4, 2023 | Motions

CIVIL COURT OF THE CITY OF XXX

COUNTY OF XXX: HOUSING PART O

 

EB MANAGEMENT PROPERTIES, LLC,

                                    Petitioner- Landlord,

   -against-

XXX,

                                    Respondent- Tenant.

 Index No. XXX

Notice of Motion for New Trial 

 

P E R S O N S:

 

PLEASE TAKE NOTICE that upon the annexed affirmation of Sultan Al Maruf., (the “Respondent”), the exhibits annexed hereto and the prior proceedings herein, the undersigned will move this Court on [ENTER DATE YOU WILL FILE THIS MOTION] or as soon thereafter as counsel may be heard for Orders:

 

  1. For a new trial; and, 
  2. For such other and further relief as this Court may seem just and proper.

 

Dated: City of XXX

 

CIVIL COURT OF THE CITY OF XXX

COUNTY OF XXX: HOUSING PART O

 

EB MANAGEMENT PROPERTIES, LLC,

                                    Petitioner- Landlord,

   -against-

XXX,

                                    Respondent- Tenant.

 Index No. XXXX

Affirmation

 

I, Sultan Al Maruf, a resident of XXX, XXX, affirm under penalty of perjury as follows:

 

  1. THAT I am the Respondent in this case.

 

  1. THAT I am fully familiar with the facts of this case and make this affirmation in support of Defendant’s motion made herein. 

 

  1. THAT unless otherwise specified, all allegations herein are based upon my reasonable information and belief, the inspection of the record of this case and the attached exhibits. 

 

Dated: City of XXX

 

CIVIL COURT OF THE CITY OF XXX

COUNTY OF XXX: HOUSING PART O

 

EB MANAGEMENT PROPERTIES, LLC,

                                    Petitioner- Landlord,

   -against-

XXX,

                                    Respondent- Tenant.

 Index No. XXXX

Motion for New Trial (CVP Rule XXX)

 

GENERAL BACKGROUND

 

  1. This case involves a Holdover action based upon an alleged chronic non-payment. 
  2. On or about November 4, 2019, I, through my then Attorney, submitted an answer to Petitioner’s complaint, which contained a general denial of Petitioner’s allegations and several affirmative defenses namely breach of warranty of habitability; abatement; harassment; and discrimination. I also counterclaimed for an abatement and attorney fees.  
  3. The matter went into trial with both sides represented by attorneys and was tried before the Hon. Judge XXX The trial took place prior to the closure of the Courts due to COVID-19. On XXX, the Court prepared a Decision/Order after trial in which the Petitioner was awarded a final judgment of possession with the warrant forthwith and execution stayed to XXX for Respondent to vacate. A copy of the Order annexed as Exhibit “A”.
  4. The subject matter of this Motion concerns the conduct of the trial, which Respondent finds highly and sufficiently questionable as to require a new trial. 

 

Summary of Allegations (Grounds for Grant of the Order Requested herein)

  1. Specifically, in the conduct of the trial, Respondent was subjected to racist actions and remarks. The Hon. Judge said thus: “And any Bangladeshi conversation is excluded.” (R XXX transcript p. 56, lines 19-20).
  2. The Hon. Judge signed, used, and/or approved fraudulent documents. Respondent contends that the Judge signed backdated document(s) to help the Petitioner. Respondent further avers that forensic ink dating analysis might prevail that the court’s Order labeled in the Annexure herein as Exhibit “A” was not even signed on XXX. 
  3. Respondent further maintains that the Petitioner’s lawyer filed a motion with an almost identical Order as Exhibit “A” herein to the court and that the said document did not have Judge’s signature and Court’s Seal.
  4. Respondent alleges that the Judge used false and/or fabricated information in the Order. (Exhibit “A”). The Order states, on page two, paragraph 3 that: “On cross-examination Respondent testified that the ceiling collapse occurred in XXX). The Judge’s statement is false because according to the transcript, Mr. Cooper questioned Respondent about the ceiling collapse:
  1. When did that happen?
  2. Ceiling collapse happened in XXX, ’18, every times, and also XXX, it’s in the lobby, too.

…

  1. I’m not asking you about the lobby. I’m asking you about your apartment. You said the ceiling collapsed in your apartment, did you not? How it hit you on your head, you lost your memory, remember?
  2. Yes, that’s XXX.

 

(R January XXX)

  1. The Judge also committed retaliatory actions against Respondent. Respondent contends that the Judge retaliated because of Respondent’s action regarding XXX).
  2. The Judge covered up perjury. Notably, the Judge took the time to cover up Superintendent, Mr. XXX perjury. The Judge stated thus:

Respondent offered into evidence as exhibit D, a transcript of his conversation with the superintendent, Mr. Flores dated April 3, 2014 to show that Mr. Flores asked him to pay for the repairs. That may have been Respondent’s interpretation. It could also be interpreted as the superintendent suggesting that Respondent give him a gratuity for doing work that was outside the normal repairs that a superintendent would undertake. In any event this whole conversation was outside the scope of this proceeding as it predated the relevant time period.

 

XXX

 

  1. Respondent has attached the transcript of his conversation with the Superintendent, herein, as Exhibit “B”. 
  2. The Judge tampered with evidence that was before the Court. Notably, the Judge ripped top part of Respondent’s submitted transcript about Superintendent Berman Morale’s conversation while yelling and screaming. Also after noticing words by words statement from the audio recording about superintendent’s perjury, she stated that she would determine whether it was asking money or not. 

 

LEGAL ARGUMENT

Respondent avers that the said grounds constitute irregularities which are prejudicial to Respondent’s rights, and are sufficient grounds for the granting of a new trial.

  • Racist Actions and Remarks
  1. In XXX, the Defendant’s sentence was reduced by ten years by the appellate court judges because the trial Judge had made   outrageous and blatant racist remarks about the Defendant. In the words of the Appeal Court, “the court’s remarks cannot be condoned or countenanced.” The Trial Judge had commented that due to the Defendant’s native origin, her brain was not properly developed. Accordingly, the appeal judges found held that “[t]o invoke such reasoning today is utterly racist and has no place in our system of justice.”
  2. It follows; a judgment can be altered if it the Judge used racist remarks and/or comments.
  3. In the instant case, the Judge’s comments to wit, “And any Bangladeshi communication is excluded”, is definitely racist because it targets a particular ethnic origin, and seeks to exclude Respondent’s communication in that regard. 
  4. Accordingly, the Respondent is entitled to a new trial on this ground. 
  • Use of Fraudulent Document(s)
  1.  Courts can have a final order in declared null and void if it is found that the trial court relied on evidence obtained by fraud. See Wells v. Bridgeport Hydraulic Co., 30 Conn. 316. Courts may exercise this jurisdiction in cases of necessity and where there is no accurate remedy at law. Huggins v. King, 3 Barb. 616.
  2. In the instant action, the Respondent avers that the Order (Exhibit A) was fraudulent in that it was not even signed on the alleged XXX. Besides, the Petitioner filed a Motion containing the said Order without the signature, and court seal. 
  3. Respondent avers that there is no reasonable explanation for the lack of signature or seal on Petitioner’s attached Order. 
  4. Besides, there remains no accurate remedy at law for Respondent, save for the granting of a new trial. Notably, the trial Judge’s Order and/or judgment is already corrupted by the said fraud. Therefore, there is need to have a fresh hearing in the interest of justice. 
  • Use of false and/or fabricated information
  1. A party is entitled to redress if a judgment was entered against the party using false and fabricated evidence because “it violates the right to not … be deprived of liberty on the basis of false and fabricated evidence.” Myers v. County of Nassau, 825 F.Supp.2d 359, 367 (E.D.N.Y. 2011).
  2. Use of false and fabricated evidence may also amount to a violation of due process rights. See XXXX, at *1 (Pa. Super., XXX).
  3. In the instant case, the judge falsely states that I testified that the ceiling collapse occurred in XXX and it was not in my apartment. However, in the transcript of the Court hearing I stated that the ceiling collapsed in my apartment. 
  4. It follows; therefore; the Judge relied on false information to issue the Order. Accordingly, the Respondent is entitled to a new trial in that regard. 

 

  • Retaliatory acts of the Judge
  1. A judge must view and handle the matter(s) before him/her on their merits alone, and must void creating the appearance that he would decide the matter(s) in any other manner. See In XXX. 
  2. In the instant case, the judge made reference to a complaint I made against regarding Judge XXX. The judge stated thus: “Respondent additionally filed a complaint with the XXX Commission on Judicial Conduct against Judge XXX.” It follows; by making this statement, it appears the judge had already developed prejudice against the Respondent because the Respondent previously filed a complaint against a sitting judge.
  • Covering up perjury
  1. The XXX, et seq gives the statutory definition of Perjury. According to the said section, perjury is the act of swearing falsely (or “perjury”) occurs when a person makes a false statement which he or she does not believe to be true while either giving testimony or under oath. Notably, perjury in the Second Degree is a class E felony punishable by up to 4 years in state prison. It is done in the following circumstances: when one swears falsely and when his false statement is (a) made in a subscribed written instrument for which an oath is required by law, and (b) made with intent to mislead a public servant in the performance of his official functions, and (c) material to the action, proceeding or matter involved. See XXX. 
  2. In the instant action, the respondent contains proof that the Superintendent asked Respondent for a bribe. However, the superintendent refused to acknowledge this fact and the judge stated that the statements in the transcript of the conversation were capable of many interpretations.  
  3. It follows; it can be reasonably concluded that the judge covered up the Superintendent’s perjury by failing to admit and acknowledge the transcript.
  • Tampering with evidence
  1. According to Penal Law § 215.40(2), “a person is guilty of Tampering with Physical Evidence when, believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent such production or use, he or she suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.”
  2. In the instant action, the judge ripped the top part of Respondent’s submitted transcript about Superintendent Berman Morale’s conversation while yelling and screaming. The judge did this knowing that the transcript would be used for Respondent’s case. And from the judge’s statement, it appears the judge wanted the said evidence excluded from the case. 
  3. It follows; the Respondent should be granted a new trial in that regard. 

CONCLUSION

The foregoing issues and facts clearly prove that Judge XXX sold Respondent’s fate to the corrupt Petitioner. Besides, she did not consider the many threats the Petitioner sends several times. Notably, Respondent filed a police report to the NYPD in XXX), but it was never investigated even though Respondent had the audio record to prove it. 

 

WHEREFORE, the affiant upon the foregoing grounds respectfully requests this Court to grant the following reliefs:

 

  1. A vacation of the Court’s Order delivered on XXX.
  2.  A prompt and fair investigation of NYPD Complaint #XXX.
  3. Any other and further relief as to this Court may seem just and proper.

 

Respectfully submitted, 

 

Dated: City of Queens, XXX

 

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], copies of the foregoing Motion have been sent to the Petitioner in the following address:

 

[ENTER ADDRESS FOR PETITIONER]

 

Dated: City of XXX

 

APPENDIX

The Appendix contains the following attached documents:

Exhibit “A” – Written documents labeled Decision/Order 

Exhibit “B” – My submitted transcript where superintendent was asking for money.

Exhibit “C” – Trial Transcript

Exhibit “D” – Complaint about Judge XXX to the XXX Committee of Judicial Misconduct

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