Published in the March 2020 edition of Queens Bar Bulletin, Editor’s Note, by Paul E. Kerson.

As cooperative and condominium apartment houses continue to be built in Queens County, disputes between their Boards of Directors and their apartment owners have become increasingly common.

However, a Co-op Board or Condominium Board, though governed by the New York Business Corporation Law (BCL) is much more similar to a village, town, or city government than it is to a business corporation.

This bit of judicial philosophy was set forth by former Chief Judge Judith Kaye of the New York State Court of Appeals in Levandusky v. One Fifth Ave. Apartment Corp., 75 N.Y. 2d 530, 554 N.Y.S. 2d 807 (1990).

In Levandusky v. One Fifth Ave. Apartment Corp., Chief Judge Kaye gave us all the following guidance: “As Courts and commentators have noted, the cooperative or condominium association is a quasi-government – “a democratic sub society of necessity” (Hidden Harbour Estates v. Norman, 309 So.2d 180, 182 [Fla.Dist. Ct.App]). The proprietary lessees or condominium owners consent to be governed, in certain respects, by the decisions of a board. Like a municipal government, such governing boards are responsible for running the day-to-day affairs of the cooperative and to that end, often have broad powers in areas that range from financial decision making to promulgating regulations regarding pets and parking spaces (see generally Note, Promulgation and Enforcement of House Rules, 48 St. John’s L.Rev. 1132 [1974]). Authority to approve or disapprove structural alterations, as in this case, is commonly given to the governing board. (See, Siegler, Apartment Alterations, N.Y.L.J., May 4, 1988, at 1, col 1.” (Emphasis added)

A careful reading of Justice Kaye’s philosophy on this subject was revealed in a bitter struggle on a Queens County Co-op Board some years ago where my law firm represented the tenant-shareholder. In Co-op Board v. Smith and Jones, we represented Ms. Smith and Ms. Jones, former members of the Co-op Board. (The names have been changed to protect the privacy of the litigants).

Its seems that after Ms. Smith and Ms. Jones had completed their terms as members of the Co-op Board, they complained to the new members of the Board of Directors that the apartment house was inadequately maintained and that the superintendent was not doing his job. Ms. Smith and Ms. Jones also complained that the finances of the Co-op Board were in disarray and adequate accounting procedures were not being followed.

The new Co-op Board, headed by the new president, Mr. Maniac, then filed a Summons and Complaint against Ms. Smith and Ms. Jones in the name of the Co-op Board with the following causes of action:

Replevin. The Co-op Board sought repossession of “numerous financially sensitive and privileged documents of the corporation” that Ms. Smith and Ms. Jones allegedly kept after their term on the Co-op Board had expired. The fact of the matter was that the Co-op Board continued to maintain all of its own records all of the time.

Conversion. The Co-op Board claimed that Ms. Smith and Ms. Jones, the former members of the Board wrongfully converted the documents.

Conspiracy. The Co-op Board took the position that Ms. Smith and Ms. Jones were part of a conspiracy to deprive the Co-op Board of its “sensitive documents”.

Prima Facie Tort. The Co-op Board claimed that Ms. Smith and Ms. Jones’ failure to return these “sensitive documents has caused substantial harm” to the Co-op Board in its daily operations.

Punitive Damages. The Co-op Board wanted punitive damages against Ms. Smith and Ms. Jones, its former members and its neighbors in the same apartment house.

In their Ad damnum Clause the Co-op Board requested $500,000 from Ms. Smith and Ms. Jones, its former members and its continued neighbors in the very same apartment house.

Years later it is easy to chuckle over this kind of dispute. But while it was going on Ms. Smith and Ms. Jones felt very threatened in their own home. Ultimately, after two years of litigation in our home court, the Queens County Supreme Court in Jamaica, New York reason prevailed and Mr. Manaic’s lawyers were able to convince him to withdraw the Co-op Board’s Complaint.

Accomplishing this objective on behalf of Ms. Smith and Ms. Jones required numerous Court appearances for Motion practice seeking to dismiss the Complaint. We of course submitted an Affidavit of our clients. We were also able to obtain an Affidavit from a different member of the Co-op Board, Ms. Blue, who testified that the entire litigation was wrongful, and that the Co-op Board never was missing any of its records.

We were also able to obtain an Affidavit from the former Treasurer of the Co-op Board Mr. Auditor, who stated that he made a Motion at a Board meeting of the Co-op Board to have the Complaint dropped, but this Motion was never entertained and not put to a vote.

Throughout the two years we litigated this case, we were in continual contact with our adversaries, Mr. Reasonable and Ms. Peacemaker. We were finally able to convince them that the Co-op Board’s Complaint should be dropped.

Lesson: The lesson in all of this is as follows: Living together in crowded apartment houses is never an easy task. When there is a commercial landlord, he or she rules as if he or she were an Absolute Monarch. However, once a Coop Board or Condominium Board has been established, we now have democracy between neighbors. A Cooperative or Condominium apartment house is much more like a suburban village or town then it is like a rental building in the City of New York. In suburban villages and towns, there are politics and personalities and elections and the democratic way of life prevails.

Despite the experience of this type of case as listed above, Co-op and Condominium Boards are a much better way to live than the rental apartment buildings where owner is King or Queen. On a Co-op Board or a Condominium Board members are elected to pass rules much like legislation that governs the lives of their neighbors.

Chief Judge Kaye has instructed us in Levandusky v. One Fifth Ave. Apartment Corp., cited above, that a Coop Board or a Condominium association “is a quasi-government – a little democratic sub society of necessity.” For this piece of judicial philosophy, Judge Kaye quoted from an opinion of the Florida District Court of Appeals, Hidden Harbour Estates v. Norman cited above. Chief Judge Kaye went on to instruct us that a Co-op Board or Condominium Association is “like a municipal government, such governing Boards are responsible for running the day-to day affairs of the cooperative and to that end, have broad powers …”

This is all worthwhile remembering when approaching a case of this type. The lawyer involved on either side is not dealing with the ordinary business corporation whatsoever at all. Even though the New York Business Corporation Law (BCL) may technically govern, one is now deep in the subject of local politics.

In New York City terms, dealing with the Co-op Board is much more similar to dealing with a Community Board or with the New York City Council itself. However, because New York City is so large and contains five counties within it, the distance between a citizen and his or her local government is very far indeed. A New York City resident views the City Council as similar to the State Legislature or the United States Congress itself.

Not so inside of a Cooperative apartment house Board or Condominium Association. With Co-op and Condominium Boards, we are dealing with a very similar situation as to a suburban Village Board or Town Board. The politics of who supports whom and why must be taken into consideration. There are factions that are similar to political parties on a Co-op Board or Condominium Board that must be dealt with.

The entire mindset in a Co-op Board or Condominium conflict situation must be different. In rental apartment houses, a fight between neighbors and/or with the superintendent and/or with the landlord may wind up in the police station. On a Co-op Board, it is we members of the Bar and our Court system who must resolve the dispute. As wise lawyers have always said: “The more lawyers you have, the less police officers you need.” This is never more true than in the Co-op Board or Condominium Board case. Upon reflection, it is clear that the Court system is a far better place to resolve disputes between neighbors than the police station.

Read March 2020 Bulletin

Published in the February 2020 edition of Queens Bar Bulletin, Editor’s Note, by Paul E. Kerson.

The New York State election of 1994 was enough to horrify even the most seasoned among us.

George Pataki beat incumbent Governor Mario Cuomo by three percentage points. Pataki promised to reinstate the death penalty, and that was his major campaign theme.

New York had not had an execution in decades, since 1963. Our members thus had no experience with this ultimate sentence and how to prevent it.

Worse, many of the State’s prosecutors jumped on the Pataki death penalty bandwagon. There was a bloodlust in the air. The qualities of justice, mercy, understanding, rehabilitation, family, and forgiveness that define New York’s character seemed to be forgotten entirely in 1994.

Pataki was determined to pull us down into the cesspool of racism and revenge that characterized the leading death penalty states such as Alabama and Texas. He was going to take the New York out of New York.

Fortunately, in the new death penalty legislation he pushed through in 1995, the State Assembly forced Pataki to allow the creation of the brand new State Capital Defender’s Office (CDO). The CDO would be adequately funded. There would be staff attorneys and court appointed lawyers on a case-by-case basis who qualified for the new Capital Defender Panel. The pay was to be considerably more than that of the Homicide Defense Panel for “ordinary” (non death-penalty) homicides.

The brand new New York State Capital Defender was an excellent choice, the Alabama Capital Defender Himself, Kevin Doyle, the very religious Catholic son of a Bronx police officer. Kevin Doyle believed in the sanctity of human life above all, and that the State had no business taking life.

There was no time to waste. The new statute authorized the State’s mad-dog prosecutors to start seeking the death penalty in September 1995.

Kevin was equal to the task. In July 1995, he summoned the State’s most experienced criminal defense lawyers to a low-budget hotel in White Plains for a three day crash course in capital case defense.

It was a deeply religious experience, whether one believed in Organized Religion or not. Kevin lectured us at length about the sanctity of human life. He told us his goal: George Pataki’s sick electoral cynicism or not, no one was going to be executed in New York as long as Kevin was our Capital Defender. And we, each of us, were going to help him achieve this goal – very New York: Everyone from everywhere is welcome, and we don’t kill people, we take care of everyone and their families, and they take care of us. This is what we mean by the motto: Empire State.

Your Editor was President of the Queens County Criminal Courts Bar Association at the time, a Member of the Homicide Defense Panel, and the holder of the record for jury trial acquittals in homicide or attempted homicide cases – five.

Sure enough, as predicted, in September 1995, the capital charges started to be filed in record numbers. Kevin assigned the first case out of the box to your Editor. I was honored, but frightened beyond any fear I ever had before. If I made a mistake, a man could die. Yes, I had been a lawyer for 20 years at that point, and yes I had the record for jury trial acquittals, but, as Kevin kept telling us: Death is different.

It was a Nassau County case. Bill Morton was riding in a Hempstead taxicab when his fellow passenger, Joe Green, put a loaded gun in the face of the driver, and demanded money. The driver refused. Green shot the driver, and he died in the hospital later that day. (Names have been changed to protect the innocent.)

Bill Morton had no gun. Bill Morton did not rob anyone. Bill Morton did not kill anyone. Bill Morton had no idea Joe Green was going to pull out a gun and seek to rob and shoot the cab driver.

What was wrong with the Nassau County District Attorney? What planet did he come from? Even if one “believed” in the death penalty, how could it be used in a case like this? Certainly there was more than reasonable doubt here.

But this was the political climate Pataki created in the Election of 1994. He used his status as a major party nominee for Governor to whip up the public into its worst instincts. This was not leadership. This was cowardice and raw ambition. And it trickled down to the State’s District Attorneys and their Assistants.

At the arraignment on October 2, 1995, I met Shiela Morton, Bill’s mother. I sat on a bench with her outside the courtroom at the Nassau County courthouse on 262 Old Country Road. I knew it was her by the horrified look on her face. I told her my name, gave her my card, and told her I was appointed by the State Capital Defender to defend her son Bill.

She started to cry, great big tears rolling down her face. She could not talk for a long time. I held her hand tightly in mine.

Finally she said, “They want to kill my baby boy….” and her voice trailed off into her sobs.

“Oh, no,” I said. “No one is going to kill your boy as long as I am alive.” I meant it, and I squeezed her hand all the harder.

I wished George Pataki had been with me on that Nassau County Court bench outside the courtroom. Then perhaps he could have seen the recklessness and stupidity and needless pain he caused with his outrageous 1994 campaign for Governor and foolish insistence on his 1995 Death Penalty statute. I studied the discovery materials I received from the District Attorney. The crime had allegedly occurred on September 14, 1995. I looked at Bill’s date of birth on the police report. He was not yet 18 years old on September 14, 1995. The new New York Death Penalty statute provided that the defendant had to be 18 years old at the time of the crime. I immediately made an oral motion to dismiss the capital charge as totally illegal under the existing new statute. “Not granted,” said the Judge. “I want to see the actual birth certificate”. I instructed Mrs. Morton to bring her son Bill’s birth certificate at our next court date in three days. Sure enough, on October 5, 1995, I again made the same oral motion to dismiss the capital count and handed up the birth certificate. “Not granted,” said the Judge. “It could be a forgery”. I imagined Franz Kafka looking down on us. This is beyond absurd. I was holding a New York City Health Department Birth Certificate with the signatures of Mayor Edward I. Koch and Health Commissioner Pascal J. Imperato, M.D.

Mrs. Morton could not believe this. Neither could I. I sent her to the Hospital where Bill was born to get a hospital birth certificate with a raised seal. Despite this bureaucratic hurdle for a 17 year old hospital birth certificate, Mrs. Morton managed to do it.

On October 17, 1995, our next adjourned date, Mrs. Morton appeared with a Hospital birth certificate with a raised seal. The Assistant District Attorney carefully studied it, turned it over and over a few times, and pronounced it genuine. My motion to dismiss the capital charge was granted.

Under the terms of the new Death Penalty statute, I was now off the case, and lesser paid counsel substituted under Article 18-B of the County Law, as this was no longer a capital case.

I submitted my voucher on Dec. 7, 1995. It was cut by one-third by the Nassau County Judge by an Order on July 2, 1997, 19 months later. I received a State check for the reduced amount of the fee on August 8, 1997 from the Pataki Administration.

Was the cutting of the voucher and the nearly two years it took to get paid a Message? Maybe it was, and maybe it was just bureaucratic ineptitude. But Kevin Doyle succeeded in his stated goal. No one has been executed in New York since George Pataki demanded executions in 1995. Kevin and his staff and panel attorneys either won every trial and/or appeal, or negotiated pleas that took the death penalty off the table.

Kevin’s biggest win was People v. LaValle, 3 N.Y. 3d 88, 783 N.Y.S. 2d 485 (2004). Our Court of Appeals struck down Pataki’s death penalty statute as violative of our State Constitution. The State Legislature, under a new Governor in 2007, Eliot Spitzer, prohibited the death penalty. Governor David Paterson issued an Executive Order in 2008 requiring the removal of the State’s execution equipments. Sanity had returned to New York.

Not so in Alabama. Read Bryan Stevenson’s 2014 book, Just Mercy: A Story of Justice and Redemption, Penguin Random House, Publishers, New York. It is the story of Bryan’s public interest law firm, Equal Justice Inititative, of Montgomery, Alabama.

It is an inspiration. Bryan saved his case files. In them, we meet police officers who fake investigations, judges who put up with this, and prosecutors who are completely indifferent to justice. And Alabama’s stakes are much higher. They execute people. Bryan had many capital cases going at one time. From the above description, you can see how this would be the most difficult, challenging practice of all.

Let us hope and pray that the U.S. Supreme Court reads Bryan’s book, and acts accordingly.

Read February 2020 Bulletin

Published in the January 2020 edition of Queens Bar Bulletin, Editor’s Note, by Paul E. Kerson.

People v. Cardwell and Goss, 78 N.Y. 2d 996, 575 N.Y.S. 2d 267 (1991) is a leading decision concerning severances in multi-defendant criminal cases.

The Court of Appeals stated the law on this subject as follows:

“Special factors unique to this case compel us to conclude that there should have been a severance. These factors include the conduct of the trial itself. While no one factor is dispositive in such matters, we note that in this case McCoy’s attorney took an aggressive adversarial stance against both Goss and Cardwell, in effect becoming a second prosecutor. Goss’ attorney then responded by attempting to impeach McCoy’s story with evidence of a recantation, which elicited an assertion from McCoy that the recantation had been induced by Cardwell’s threats – damaging evidence elicited not by the People, but by a codefendant…” See 78 N.Y. 2d at 998.

Westlaw indicates that People v. Cardwell and Goss has been cited in 73 cases after 1991, and mentioned in 20 law review articles, form books, legal encyclopedias and textbooks.

None of these descriptions of the case give even the remotest clue as to what happened, or why it was important, or what it all means for future generations of lawyers trying to make justice happen.

I was Johnny McCoy’s attorney in that trial, and I saved my case file all these last 36 years so I could explain all this to you, my loyal readers all this time, in the far distant future of 2020. Everything in this article is from the public record of the case. No confidential communications between Johnny McCoy and me are used here.

It all “went down” on March 21, 1983 in a high speed chase on the Van Wyck Expressway (to the extent that any travel on the Van Wyck Expressway can be called “high speed”).

A robbery and homicide had just been committed in a grocery store on Linden Blvd. The police had a lead on the car involved.

Johnny McCoy, age 40, was a Black man with white hair. He had five children, aged 19, 17, 11, 10 and 3. After he lost his job, Johnny McCoy took to supporting his family by driving his own car as a “gypsy cab”.

Note to 21st century readers: Before cell phones, Uber, Via, Lyft, and Juno, the five counties of New York City were served by yellow cabs that did not like to leave Manhattan except for airport runs. The balance of the City, including most of Queens County, depended on neighborhood car services and brave individuals who drove the streets in their own cars picking up passengers.

After weaving in and out of Van Wyck traffic and followed at “high speeds” by more than 10 police cars, Johnny McCoy pulled his 2-door 1971 red Pontiac Firebird to a stop at the gasoline station on Hillside Avenue at Queens Boulevard. He was surrounded by police cars and police officers. One officer opened the driver’s door. Johnny, hands up, said “You got me”.

Johnny McCoy was taken to the police station, where he was beaten until he “confessed”. Johnny McCoy’s family raised money. They hired private counsel. Wade, Mapp and Huntley hearings were conducted. The family ran out of money. Private counsel was discharged. On May 2, 1984, more than a year after the crime, your Editor was appointed by Justice Seymour Rotker of the Queens County Supreme Court, Part C-1, to represent

Johnny McCoy as his public defender under Article 18-B of the County Law. Johnny McCoy was never able to make bail. He was caught red handed in a high speed chase. There was a confession right after the crime occurred. There was a plea offer involving a sentence of 8 and 1/3 to 25 years imprisonment.

None of this looked right to me. Cardwell was 27 years old. Goss was 31 years old. Neither was supporting any children or had any gainful employment. Both were in the back seat of the Pontiac when McCoy was surrounded by police officers in the gasoline station.

More to the point, two pistols were found in the back seat of the Pontiac. No gun was found in the front seat. The only logical conclusion: Goss and Cardwell committed the robbery and homicide, hailed a gypsy cab driven by Johnny McCoy, and directed him, AT GUNPOINT to speed away from the crime scene onto the Van Wyck.

The Assistant District Attorney would not listen to me about this, no matter how hard I tried to persuade him that this is what happened. But how could I possibly convince any jury that a gypsy cab driver would use a two door car? All gypsy cabs had four doors. No one ever heard of a gypsy cab with only two doors. So there is was: A human life, the father of five dependent children, depended on me to convince a jury that a two door car could be a gypsy cab. How to do such a thing? The police reports, Grand Jury Minutes, Wade, Mapp and Huntley hearing transcripts were of no help. They all said – guilty, guilty, guilty. I decided I would uncover my own alternative line of evidence. I wrote to nine people who had been Johnny McCoy’s passengers on unrelated trips – trips to church on Sunday, trips to the hospital to visit sick relatives, trips to the grocery store for people who had no car, trips to pick up sick children.

Much to my surprise, all nine showed up for the six week trial. And Justice George Balbach in Part K-6 let them testify that yes, Johnny McCoy drove his 2-door 1971 red Pontiac Firebird as a gypsy cab in 1983, and that yes, they each rode in it and paid Johnny McCoy to take them to church, the hospital, the grocery store or to pick up sick children.

I very vigorously cross-examined Goss and Cardwell. I pointed my finger at them with an outstretched arm and a booming voice – “YOU committed this crime and now YOU are trying to frame Johnny McCoy for it. YOU pointed a gun at his head and forced him to drive at high speed on the Van Wyck. YOU did that, not him.”

At the joint six week trial, Johnny McCoy was acquitted on Oct. 24, 1984. Goss and Cardwell were convicted. Johnny McCoy was in jail for more than a year and a half for a crime he did not commit because he could not make bail. I walked him out of the courthouse on Queens Boulevard, a free man after that long period of completely improper incarceration. I gave him money to take the subway home to his wife and five children. In all the past 44 years of practicing law with all of you, I can count on my hand the number of times I felt the level of pride I felt that day.

LESSON:

Always be very skeptical of the other side’s evidence in both criminal and civil cases, particularly if it comes from a large corporation or government agency, such as a Police Department. Do your own investigation. Gather your own evidence. What the other side thinks is “open and shut” is rarely that. There are always many sides to every story.

And I make a special plea to Westlaw: Write to all the lawyers on every case you publish. Ask them for essays on the real story behind every case. And publish those essays under the “Secondary Source Citing References” for each case you publish. Then we, your loyal lawyer-readers, will have a much better understanding of what the law is, what it means, why it is what it is, and where it came from. I hope you will list this Queens Bar Bulletin article under your Secondary Source Citing Reference for People v. Cardwell and Goss, cited above.

Read January 2020 Bulletin