Legal Document: Leon Simon, Grace Edwards Simon v. Bernard E Lewis, Coleen Weaver Aka Coleen Whyte As Administrator Of The Ethans Estate Trust

On September 19, 2023 a AFFIDAVIT OR AFFIRMATION IN SUPPORT OF MOTION (Motion #13) *Corrected* - Motion to Strike and dismiss was filed involving a dispute between Grace Edwards Simon, Leon Simon, and Bernard E Lewis, Coleen Weaver Aka Coleen Whyte As Administrator Of The Ethans Estate Trust, for Real Property - Other (Adverse Possession) in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 10/23/2023 12:55 AM INDEX NO. 305209/2013E
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 10/24/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------------------------------------------------------------------------X
LEON SIMON
GRACE EDWARDS-SIMON
Plaintiffs
against Index No. 305209/2013E

BERNARD E. LEWIS
COLEEN WEAVER, aka Coleen Whyte as Administrator
of Ethans Estate Trust Defendants
------------------------------------------------------------------------X

MOTION TO STRIKE, VACATE PRIOR ORDERS FOR MISREPRESENTATION,
FRAUD AND NEW EVIDENCE, DISQUALIFY DOUGLAS MARTINO, DISMISS
AMENDED COMPLAINT & REFERRAL TO THE INTERNAL REVENUE SERVICE

Defendants Bernard Lewis, and Coleen Weaver as Administrator of Ethans Estate Trust, hereby

file their joint motion pursuant to CPLR 3024 (b), CPLR 5015 (a) (2), CPLR 5015 (a) (3), CPLR

5015 (a) (5), rules 1.3, 1.7, 3.4 & 8.4 of the New York rules of professional conduct, and CPLR

3211 (a) (7), and as grounds state the following:

1. Douglas J. Martino of the law firm of Martino & Weiss filed a notice of appearance,

along with an order to show cause seeking an order for Albert Hatem to turn the file over

to his law firm. See Doc Nos. 5 and 6.

2. Douglas J. Martino is now the fifth attorney to represent the plaintiffs in this case with

intent to steal the subject property hiding behind the adverse possession laws.

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a
J. The notice of appearance, and the order to show cause are void ab initio because the

attorney of record is Jack A. Addesso of the law firm of Jack A. Addesso PLLC, who

failed to file a notice of withdrawal as required by CPLR $ 321 (b). ,i

4. Therefore, the Court lacks jurisdiction to entertain the notice of appearance and the order

to show cause filed by Douglas J. Martino.

5. "A statement that a Court lacks'Jurisdiction" to decide a case may, in reality, mean that

elements of a cause of action are absent (see, e.g., McNamara v Allstate Ins. Co., 3 A.D,

2d295,299). Similarly, questions of mootness and standing of parties may be

characteized as raising questions of subject matter jurisdiction (see, e.g., Sosna v Iowa,

419 U.S. 393,398,402, supra; Massachusetts v Mellon, 262U.5.447,484-485). But

these are not the kinds ofjudicial infirmities to which CPLR 5015 (subd {a}, par 4) is ,

addressed. That provision is designed to preserve objections so fundamental to the power

of adjudication of a Court that they survive even a final judgment oi order (see,

generally, 5 Weinstein-Korn-Mil1er, N.Y. Civ Prac, par 5015.10). In Thrasher v United

States Liab. Ins. Co. (19 N.Y.2d 159,166), this Court, in discussing subject matter

jurisdiction, drew a clear distinction between a Court's competence to entertain an action

and its power to render a judgment on the merits (accord Burnet v Desmornes, 226 U.S.

145, 147. Absence of competence to entertain an action deprives the Court of subject

matter jurisdiction." Lacks v Lacks 41 N.Y. 2d 71 (N.Y. 1976).

6. "While a Court of original jurisdiction may entertain a motion to renew, or to vacate a r;

prior judgment on the ground of newly discovered evidence even after an Appellate

Court has affirmed the original order or judgment on a post appeal motion to renew or

vacate, the movant bears a heavy burden of showing due diligence in presenting the new

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evidence to the Supreme Court in order to imbue the Appellate decision with a degree of

certainty." Sealey v. Westend Gardens Housing Development Fund Co., Inc., 97 A.D.3d

653, 654-655 {2'dDep't, 2012}.

7. The facts and evidence in the affidavit of Bernard Lewis attached will show that Leon

Simon and his witness Marlene Dennis executed false affidavits that were submitted to

the Court by their former attorney Hatem which induced decisions based upon fraud.

8. The affiant Marlene Dennis is also known to conduct business under the names of

Merlene Palmer, Marlene A. Benjamin, Merlene Dennis, Merlene Palmer-Dennis, and

Merlene Palmer Dennis aka Merlene Dennis. :

9_ According to a process server who ran a skip search, Marlene Dennis drivers licensed isl

in the name of Marlene A. Benjamin with an address of 459 Dunham Avenue, Apt2,

Mount Vernon, New York which comports with her 2013 Bankruptcy Petition.

10. Marlene Dennis filed for Bankruptcy protection on July 12,2A8 inthe Bankruptcy

Court for the Southern District of New York, case No. 13-23151 (RDD), and used the

address of 459 Dunham Avenue, Apt2, Mount Vernon, New York 10553, but used the

name of Marlene A. Benjamin.

11. Marlene Dennis filed for Bankruptcy protection on August 16,20t6 in the Southern

District of New York, case No. 16-23114 (SHL), with the address of 75 Lord Kitchener

Road, New Rochelle, New York 10804,but used the name of Merlene Dennis.

12. The Bank statements attached to Lewis affidavit will show that Dennis perjured herself.

13. The facts and evidence in the affidavit of Bernard Lewis attached will show that Leon

Simon and Grace Edwards-Simon do not reside in the subject property, but made

misrepresentations and false representations to the Court with intent to deceive.

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14. The facts and evidence in the affidavit of Bemard Lewis attached will show that Marlene

Dennis submitted a known false affidavit to the Court which induced the Court to vacate

a laufirl eviction carried by the New York City Marshall Thomas J. Bia.

1 5. The Court is required by operation of law to vacate the prior orders entered by Judge

Rodriguez on March 11 , 2019 and July 5 , 2019 , and dismiss the amended complaint.

16. Under CPLR 5015 (a), a Court is empowered to vacate a judgment or order for several

reasons, including; excusable neglect, newly discovered evidence, fraud,

misrepresentation or other misconduct by an adverse party,lack ofjurisdiction, or upon

the reversal, modification or vacatur of a prior order.

17. CPLR 5015 (a) (2) provides that the Court which rendered a judgment may relieve a

party from it upon such terms as may be just upon the ground of newly-dissovered

evidence which, if introduced at the trial, would probably have produced a different

result and which could not have been discovered in time to move for a new trial.

18. Evidence only qualifies as newly discovered if it was in existence at the time of the

original order or judgment, but was undiscoverable with due diligence." Coastal Sheet

Metal. Corp. v. RIR Mechanical Inc., 85 A.D.3d 420,421 { l't Dep't., 20ll}.

19. "To succeed on a motion to vacate a judgment on the ground of newly-discovered

evidence, the movant must establish, among other things, that the evidence could not

have been discovered earlier through the exercise of due diligence." State Farm Ins. Co.

v. Colangelo,44 A.D.3d 868 {2'd Dep't. 2007}.

20. "Further, the evidence must be of such anattxe that in all probability, it would produce a

different result if a new trial is had." Structural Concrete Corp. v. Campbell Assoc.

Corp., 224 A.D.2d 516 {2"d Dep't., t996}.

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21. Because Albert Hatem submitted a known false affidavit to the Court executed by Leon

Simon with intent to induce a decision based upon fraud, the Court is required by

operation of law to vacate all prior orders and dismiss the amended complaint.

22. Pursuant to CPLR 5015 (a) (3), a Court has the discretion to vacate its prior order upon a

showing of "misrepresentation or other misconduct."

23.In Travelers Insurance Co. v. Rogers, 84 A.D. 3d 469 { 1't Dep't., 20ll}, the trial Court

granted an Insurance Company's Petition to permanently stay arbitration of an uninsured

motorist claim and denied a subsequent motion to vacate the order. The First Department

reversed writing: Vacatur should have been granted on the ground of "fraud,

misrepresentation, or other misconduct of an adverse party" (CPLR 5015 {a} 13}). A

review of the record in this case reveals several potential instances of intentional and

material misrepresentations of fact by Petitioner, which, at least in part, may have formed

the basis of Supreme Court's decision and order to permanently stay arbitration." Matter'

of Travelers, 84 A.D.3 d at 469.

24.Under Federal Law which is applicable to all States, the United States Supreme Court i

stated that if a Court is without authority, its judgments and orders are regarded as i.

nullities. Elliot v. Piersol, 1 Pet. 328, 340,26 U.S. 328, 3400 (1828).

25. The facts and evidence in the affidavit of Bernard Lewis attached will show that Douglas

J. Martino and his employer, the law firm of Martino & Weiss intends to induce a

decision by making false representations to the Court which requires disqualification. :

26. The record now shows that Hatem submitted false affidavits to the Court executed by

Leon Simon and Marlene Dennis which induced decisions based upon fraud.

27. This conduct requires the Court to vacate all prior orders, and dismiss the complaint. ;

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, {}N(lI-trSIO)'i

Frr;he rssso$s stated ahoye. defsndents Le*"is and W'eaver as Adrninistrator. respecii:i,r-

ffi€:ur$t that the f*urt strike the nctice of appearariee. ftlsng with the crder to sholv *ausc filed

bv *ouglas J. Martiao. vaeete the trders enlered by Jutlge Rodnguez ** March 11. 2019 a::et

Jiriy 5, i019, disqualifu D**glas J- Martin* alrd iris exrpl*yer Marti** & Weiss fronr

represe*tiag the pl*intifts in this actica, dismiss *r* ameadert courplaint f*r trar:d upon ihe

C*$rt. anel refer the *atter t* the fuiernal fi.eveuue Serrnice pursuant ter for:r 3949 A. lbr

plaintiffs eo*dact *f u.si:rg C*rp*rate fiinds ts psy legal fees to Hatsr:- r* pay their perscnai

*retiit card bills. alrd buy gr*c*ry at tire $upermarksl *ce*rdiag t* the Barrk statement; sublniued

to the Westcbester C+un{y Supreme Co*rt hy tirsir former afion:ey Halen:. asd frrr any ot}er

re li*f this eaurt ds*ms ;ust and pr*p*r u*e{er ti:e e ircum;tance .

i)ated: Octol,cr 10. 2{)ll

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"'-..' re of N*lary Pubhe
LEllVl U, vYll.l.rltftr)
l{otaty Public - State of New York
No.01Wl4983ss7
tln" Quallfied in Bronx County
July 1, 2027
1t,

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FILED: BRONX COUNTY CLERK 10/23/2023 12:55 AM INDEX NO. 305209/2013E
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Administrator of Ethans Estate Trust
Pro Se Defendant

230 Kings Mall Court, Suite 254

Kingston. New York 12401

84s-216-7102

*i, Bifaay of october 2

of Notary Public

ilotary nioitc - siiiJ6i r'iew vort<
No.01Wl4983ss7
Quallfied ln Bronx County
I Comm. Exoires Julv l, 2027

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October 23, 2023

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September 19, 2023

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Document for Leon Simon, Grace Edwards Simon v. Bernard E Lewis, Coleen Weaver Aka Coleen Whyte As Administrator Of The Ethans Estate Trust

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