Motion-Secondary: Anthony Morris v. Thembisa Mshaka-Morris

On June 07, 2016 a Motion-Secondary was filed involving a dispute between Anthony Morris, and Thembisa Mshaka-Morris, for Matrimonial - Contested in the District Court of Kings County.

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FILED: NEW YORK COUNTY CLERK 06/21/2024 03:27 PM INDEX NO. 158620/2023
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/21/2024

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
--------------------------------------------------------------x
MAGDALENA TRZUSKOT et al,

Plaintiffs, Index No. 158620/2023

-v- PlaintiffsÕ Affirmation in Opposition to Mr.
ScherzÕs Motion to Dismiss
and Cross-Motion to Strike Answer
Defenses /Move to dismiss defenses
pursuant to CPLR 3018(b) and CPLR
3211(b).

PAUL W MATTHEWS et al.,

Defendants.
--------------------------------------------------------------x

Magdalena Trzuskot, pro se, affirms the following under the penalties of perjury:

1. That I am a party to this action and am pro se, and as such, I am fully familiar with the

facts and circumstances of this action.

2. I submit this Opposition Affidavit in response to Opposing CounselÕs Motion seeking

dismissal pursuant to CPLR 3211(1) [defense is founded upon documentary evidence] and

3211(7) [pleadings fail to state a cause of action].

3. And further, I am cross-moving against Mr. Scherz, Esq. to strike his Answer affirmative

defenses, and for service of process to be deemed sufficient nunc pro trunc under the factual

circumstances of this case; for good cause.

PROCEDURAL HISTORY

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1. Plaintiff filed a Summons and Complaint on August 30, 2023. And sent an email to

Mr. Scherz, Esq. that same day of a digital informal service of the Complaint. See

Exhibit A.

2. Chronological family procedural history in family court, Manhattan, clearly shows

there was never a temporary custody hearing; contrary to whatever is alleged in State

CounselÕs description of the facts (see NYSCEF DOC NO. 1, Complaint, Page 37, para

116-128).

3. See also Family Procedural History before Judge Dawson (see NYSCEF DOC NO. 1,

Complaint, Page 43, para 146-171).

4. Therein, Plaintiff alleged the following against Mr. Scherz:

ü Mr. Scherz, Esq. of ÒLawyers for ChildrenÓ is a court-appointed childÕs lawyer

and Director of the Domestic Violence Project for Lawyers for Children

(NYSCEF DOC NO. 1, Complaint, Page 11, para 33).

ü Michael Scherz had no objections to the Father removing the child out of state

for a vacation, despite PlaintiffÕs repeated allegations that he would abscond

with the child. Michael Scherz did not care whatsoever that his client (child)

was taken care of primarily by his mother from birth to 8 months, and that all

of the impropriety experienced in NYC Courts unlawfully and

unconstitutionally separated Mother-son from each other, and he did not care

that his client was being deprived of his mother unlawfully. Instead, he

advocated for a random 3rd party who has ZERO business being around

PlaintiffÕs child, but now, remarkably, has been the primary caregiver to

PlaintiffÕs son for 3 years, while Plaintiff has not seen her son at all for 3 years.

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Honestly, Michael Scherz should go find a new job, as he is unfit to be a childÕs

attorney (re: to page 50, para 171, NYSCEF DOC No. 1 Complaint. See also,

para 172-205).

ü Para 206 alleges the Attorney for the Child and Sandra Spennato (opposing

counsel) worked in concert together to ignore credible and accurate allegations

of serious abuse by Father inflicted onto Mother during her entire pregnancy

and postpartum. (page 59-60, NYSCEF DOC. No. 1).

ü After 2 years (26 months later) of prejudicial, unlawful, and unconstitutional

proceedings, Judge Dawson started a combined trial on October 13, 2021. See

Para 210. See Para 223, page 66-67, where Plaintiff wrote that the trial that was

conducted in Judge DawsonÕs courtroom started around September of 2021,

and continued into January and May of 2022 in violation of 22 NYCRR 205.14

and other regulations and case law that underscores the importance of resolving

custody disputes promptly with a view toward thorough and fair hearings.

Hence, there is zero effective and efficient case management orders in NYC

IDV Court. Instead, they permit garbage to persist harming parties, and ignore

valid claims of parties, toward a fruitful and rehabilitative disposition for

everyone.

ü See Para 224, page 69, where Plaintiff writes: ÒJudge Dawson and the ADA

created state sponsored Maternal neglect through their persistent refusal to

follow lawful judicial process and hear the merits while not formally finding

mother to be neglectful.Ó Hence, the proceedings were fundamentally unfair.

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And under color of law, a state-appointed attorney for the child should be liable

for that too.

ü See page 76, Para 233, where Plaintiff states ÒIn fact, Mother testified that she

wanted a deposition, and by this point, all interested parties in IDV Court were

clearly cognizant of a civil lawsuit against Father. Judge Dawson should have

exercised her discretion to find a deposition was necessary, and directed

lawyers to engage appropriately.Ó The Attorney for the Child should have

stepped in on his clientÕs behalf and didnÕt either.

ü See page 78, Para 235, ÒMother did everything to demonstrate she is not

forfeiting her custody or visitation rights, but all parties worked to deprive her

son of contact with his mother.Ó

ü ÒNow the child lives with the FatherÕs 4th wife, and primary care has fallen on

her to care for a child that is not hers. This is bizarre and completely retarded.Ó

(Para 237, page 79).

ü Michael Scherz also gave insufficient attention to facts and evidence, despite

being sent emails to shed light on the circumstances, which will become

apparent at discovery.

ü ÒFather has a history of violent conduct, erratic, irrational and unreasonable

behavior, and clear patterns of instability, but her courtroom did everything to

ignore MotherÕs valid allegations in preference of painting Mother as the

problemÓ (page 80).

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Complaint Count 5 Ð Plaintiff Mother on behalf of subject child against Michael Scherz,
Attorney for the child for legal malpractice (Page 96, para 308-339, NYSCEF DOC No. 1,
Complaint)

5. This count pertains to Michael Scherz being in violation of section 7.2 of the Rules of

the Chief Judge (22 NYCRR 7.2), which sets out the requirements for the attorney for

the child.

6. He failed to put on a case despite intending to put one on. Breached his duties fully.

He chose to be a witness against the Mother instead of putting on a case after receiving

various emails from Mother that enlightened him about the underlying dispute. It is not

his role to stand up before the Courtroom and introduce a criminal conviction as an

unsworn witness. His role was to put on a case in the childÕs best interest, and he failed.

7. Instead, on the record, he decided to object to evidence that Mother was the primary

caregiver from the start, and on the record, also took verbal positions against Plaintiff-

Mother having a meaningful relationship with her son, in preference of Father going

on a vacation with his 4th wife when Plaintiff wanted overnight visitation with her son.

8. He was totally biased. And thatÕs evident by his inaction even after Plaintiff sent an

email and attempted to file a OSC for a plenary hearing on visitation in IDV Court, and

after notice of appeal was filed Ð he still did nothing. See Exhibit E.

9. The role of the attorney Òis to aid the court in arriving at an appropriate dispositionÓ

(Matter of Apel, 96 Misc 2d 839, 842-843 [Fam Ct, Ulster County 1978]). On what

planet is the disposition that these manipulative, ugly professionals have created

acceptable wherein a biological, natural mother is ousted out of her childÕs life so

Father could abscond with the child when the child was enjoying meaningful contact

with his mother for 7 hours per week? Essentially, the AFC assisted Father in reducing

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MotherÕs visitation to nil. Mother was diligent to be more involved in her childÕs

rearing, while the entire system engineered for her to be alienated and estranged.

PATHETIC. DISGUSTING. DEPLORABLE. (Page 326, para 98).

10. Para 331. He served in the role for the purpose of collusion with Sandra Spennato and

Judge Dawson.

11. Para 333. Furthermore, a system where parties are forced to have state-appointed

actors, such as an Attorney for the child, without consent of the parties, and thereafter

the state appointed actor is negligent and fails to fulfil his obligations should not be

shielded by quasi-judicial immunity. Absolutely nonsensical that the Appellate

Division found that the AFC did not properly advocate for the interests of the child, but

the lower court did not want to overcome immunity. ItÕs time to hold these attorneys

accountable (see J.D. v Galchus 2022 NY Slip Op 22139 [75 Misc 3d 737]).

12. Para 334. As a result of the fraud, collusion and malicious acts (as argued in all prior

proceedings under this index no.), special circumstances dictate qualified immunity

should be denied.

13. Para 336. Mr. Scherz chose to not perform his purpose in an integral or important

manner to the judicial process, and therefore his appointment was against public policy.

It was actually a total waste of resources.

14. Michael Scherz was provided this information: Ò(10) a summary document from Laura

Nugent (Carl JohnsonÕs 2nd ex-wife) summarizing their domestic violent abusive

relationship wherein she supplied information to ACS Investigation Progress Notes

noting he was a drug addict, went to drug rehab, and has a temper, along with a lot of

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blackened paragraphs probably describing their domestic violent relationshipÓ (Page

107, para 374).

Complaint Count 11: Negligent Failure to Prevent Constitutional Violations Pursuant to 42
U.S. Code Section 1986 as Against Judge Dawson, Sandra Spennato, Esq. and Michael
Scherzs, Esq. (Complaint, NYSCEF DOC NO. 1, Page 117, Para 439-445)

15. Para 442. Michael Scherz and Sandra Spennato teamed up as colluding partners for the

purpose of impeding and hindering the due course of justice with intent to deny Plaintiff

the equal protection of the laws solely to injure PlaintiffÕs parental custody and

visitation rights. Obstructing timely justice.

16. Para 444. Judge Dawson and these lawyers have a duty to prevent or aid in preventing

the commission of the all these constitutional violations, and instead, having sufficient

knowledge of the case and facts, and the legal power to prevent or aid, they refused to

ensure a fundamentally fair proceeding and courtroom.

Service of Process on Mr. Scherz was completed and should be deemed sufficient under
the circumstances for good cause and Mr. Scherz answered the Complaint so their
Motion to Dismiss is rather redundant and misplaced.

17. Plaintiff served the Summons on Mr. Scherz on January 10, 2024 and on his employ,

Lawyers for Children, Inc. on February 2, 2024, so after 120 days of filing.

18. The same facts and procedural arguments with respect to service upon Ms. Sandra

Spennato/Cedeno Law Group, as advanced in NYSCEF DOC. NO. 61 apply to this

service of process. See Exhibit B.

19. Hence, PlaintiffÕs process server attempted to serve Michael Scherz WITHIN 120 days

of filing the Complaint, on December 21, 2023, and thereafter again, on January 10,

2024. Therefore, for good cause, Michael Scherz, like Sandra Spennato, were

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informally served, and formally served as timely as possible, after due diligence was

attempted within 120 days.

20. Counsel for Mr. Scherz filed an Answer with Affirmative Defenses on January 30,

2024 [NYSCEF DOC NO. 23].

21. Defendants generally waive their right to file a motion to dismiss if they file an answer

to a complaint first. Hence, the Motion to Dismiss by Mr. ScherzÕs counsel is

subsequent to their Answer. They already responded in a meaningful way to the notice

of claims against Mr. Scherz. Hence, the proper vehicle for challenging a complaint

after an answer has been filed is a motion for judgment on the pleadings. Once a

defendant files their answer, it generally becomes procedurally impossible for the court

to rule on the motion to dismiss. See Smith v. Bank of America, N.A., No. 2:11-cv-

676, 2014 WL 897032, at *9 (M.D. Fla. Mar. 6, 2014) (citing Lockwood v. Beasley,

211 F. AppÕx 873 (11th Cir. 2006); Brisk v. City of Miami Beach, Fla. 709 F. Supp.

1146, 1147 (S.D. Fla. 1989) (citing Beary v. West Pub. Co., 763 F.2d 66, 68 (2d. Cir.

1985); Zebrowski v. Denckla, 630 F. Supp. 1307, 1308 n.1 (E.D.N.Y. 1986); Martin v.

Delaware Law School, 625 F. Supp. 1288, 1296 n.4 (D. Del. 1985); In re Arthur

Treacher's Franchisee Litigation, 92 F.R.D. 398, 413 (E.D. Pa. 1981).

22. Notwithstanding, the court may consider a subsequent motion to dismiss based upon

those defenses included in its answer. See Jennings Oil Co., Inc. v Mobil Oil Corp., 80

F.R.D. 124, 127 n. 4 (S.D.N.Y. 1978).

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PlaintiffÕs Opposition to other Matters addressed in his LawyerÕs Motion to Dismiss.

23. In the course of this litigation, Plaintiff has filed various submissions that address

matters pertaining to Mr. Scherz, Esq. Specifically, NYSCEF DOC NO. 33. See

Exhibit C.

24. As mentioned, there was no temporary custody hearing on child custody in Manhattan

Family Court contrary to what is alleged.

25. There was a prolonged delay for a fact-finding hearing on permanent child custody also

in IDV Court. An unreasonable delay.

26. The Òdescription of the procedural and factual underlying criminal and family court

mattersÓ EXCERPT that Opposition adopts from State CodefendantsÕ Motion to

Dismiss is at issue.

27. First, Mother and FatherÕs family offense or custody or relocation petitions were not

heard on December 11, 2019. THUS, Opposition CounselÕs reliance on the description

of State Co-defendantÕs Motion to Dismiss [of the procedural history] is INCORRECT.

28. There are no hearings on extending an Order of Protection or modification or anything

that remotely amounts to any type of hearing in Judge DawsonÕs courtroom either.

29. Judge DawsonÕs courtroom is the anti-thesis of a court of law Ð as neither criminal

procedural law nor civil procedural law is followed, and substantive law or rights are

outright irrelevant. It is simply a court of delay and abuse. Specifically, Plaintiff-

Mother was abused by the courts for their willful refusal to do their job, as required

under the law, by both lawyers and Judge Dawson.

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30. Plaintiff was muted on June 4, 2021, because Judge Dawson did not want to do her job,

nor did she want to hold Sandra Spennato to any professional standards (motion to

disqualify; motion to sanction) for her repeated abuse of the law and process.

31. Judge Dawson is an abusive judge. She not only refuses to do her job in a timely and

professional manner, but she punishes a victim-mother when she wanted a timely fact-

finding hearing and due process.

32. Instead, Judge Dawson chose to suspend PlaintiffÕs visitation rights than sanction

Sandra Spennato, Esq. for her legal malpractice. And Judge Dawson chose to describe

Plaintiff-Mother as ÒunhingedÓ so as to make it appear that her decision was not

unsubstantiated when she CLEARLY abused her discretion solely to allow the father

to travel out of state while refusing to hold his lawyer accountable for THEIR ABUSE.

Judge DawsonÕs courtroom traffics children while the law is circumvented and abused.

And the Attorney for the Child, Michael Scherz negligently failed in his duties to

prevent this.

33. Plaintiff was the primary caregiver to her child Jett, and Michael Scherz, Attorney for

the Child, on the record, [which is very dumbfounding], argued that the health records

Plaintiff submitted that prove Plaintiff-Mother was the primary caregiver, as she

brought her child to every doctor appointment from childbirth to 8 months of life, was

not demonstrative of her being his primary caregiverÉ when the record also reflects

that Plaintiff-Mother was a homemaker, and father was working, and the doctorÕs noted

she was the primary caregiver.

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34. Michael Scherz ignored the truth that Plaintiff-Mother was abused by father, and these

so-called professionals teamed up against Plaintiff to give an abuser a child, as reward

for abusing Mother. MENTAL.

35. It appears that the threats and harm that Plaintiff suffered at the hands of her abuser is

IRRELEVANT in Judge DawsonÕs courtroom. All interested parties ignore the facts,

and prefer to misconstrue, misrepresent, misdiagnose, and miss the SHOT completely

on purpose, beyond reckless, by focusing now on the root causes, or what actually

transpired, but how Plaintiff-Mother is reacting to her rights being eviscerated. A

complete travesty and miscarriage of justice that they willfully allowed.

36. Judge Dawson prefers to create worse conditions than conduct a timely fact-finding

hearing when Plaintiff was interested in rehabilitation and recovery. Apparently, rather

than doing her job, putting a stop to an abuse of the process, and misusing/abusing an

Order of Protection, and getting to the truth, Judge DawsonÕs courtroom is more

interested in escalating conflict and creating conditions for violence; not the eradication

of violence.

37. Plaintiff does not suffer from bipolar II or psychotic disorders. It turns out not only is

Judge Dawson manipulating outcomes and distorting the truth by creating her own

record, but so are the incompetent doctors she relies on to cover-up her WRONGS as

a judge and the harm she creates on her own, which is unbelievably BAD.

38. Dr. Baxter came up with her demented diagnoses after 2 hours of speaking with

Plaintiff while relying on a disqualified former psychologistÕs report. Hence Dr.

BaxterÕs opinion is moot, but Judge Dawson still allowed it to have force in law.

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39. Michael Scherz, Esq. is equally incompetent in performing his duties and tasks as an

attorney for ANY CHILD. I would not pay him a penny. IÕd like discovery to know

who paid for his ill representation.

40. Further, Plaintiff repeatedly told the Court that the diagnoses are fitting to the Father,

after the psychological and emotional abuse he inflicted on Plaintiff-Mother. But Judge

Dawson and the interested lawyers ignore all the facts, because they are more interested

in framing the victim for their inability to resolve conflict in a mature, safe, and

rehabilitative manner.

41. Judge DawsonÕs courtroom needs to be FULLY investigated, as it does not uphold the

rule of law, and completely disrespects human rights and procedural and substantive

rights of parties. Judge Dawson doesnÕt seem to comprehend what abuse is, how it

presents on parties, and it is as if she enjoys abusing parties for her own gratification,

rather than getting to the bottom of the abuse and getting the child in the hands of the

NORMAL person/parent, that was unfortunately reacting to repeated abuse inflicted

by a real perpetrator, his lawyer, and the courtroom for failing to do its job.

42. The Father is a pathological liar who abused his corporate position of power, and

abused the legal system to win. And ironically, all these stellar lawyers didnÕt care

about the truth and doing their job to ensure the childÕs best interest, but rather, enabled

an abuser to win. Knowingly and also negligently.

Plaintiff has already argued in prior proceedings that Plaintiff must have standing to sue on
behalf of her minor child given proceedings were unlawful and unconstitutional.

1. Opposition relies on Fuentes v BD of Educ. of City of NY to argue that Plaintiff-Mother has

no standing to sue on behalf of her child. However, that case law concerns demanding a

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hearing under the Individuals with Disabilities Education Act in relation to public

education. The case at bar concerns a courtroom that refused to do its job justly under

statutory laws, both criminal and civil procedure, which ultimately, were

UNCONSTITUTIONAL.

2. Here, Plaintiff isnÕt suing under some education act. And has already argued that Plaintiffs

have been denied timely due process, and her right to a timely appeal of the unlawful and

unconstitutional custody decision, and therefore, SHOULD have standing to sue on behalf

of child, because that is in the childÕs best interest. Because the Attorney for the child

FAILED COMPLETELY. He failed to put on a case, and failed to file a notice of appeal

afterward knowing PlaintiffÕs prior misdemeanor counts were dismissed, and the felony

counts were in violation of statutory and constitutional rights. He knew the courts were

smearing Plaintiff to willfully keep her from her son, and he did nothing objectively. As if

he does not know anything about criminal law or family offense petitions, or due process.

3. The case law relied on by opposition does not consider the context that Judge DawsonÕs

courtroom created Ð they all wilfully and strategically allowed an abuser to win and ousted

Plaintiff-Mother out of the childÕs life, contact, and decisional control.

4. Standing arguments were advanced in NYSCEF DOC NO. 62, starting at page 14; and also

at page 22 onward. You can substitute the name Sandra Spennato for Michael Scherz in

those arguments. See Exhibit D.

The majority of Mr. ScherzÕs Answer/Affirmative Defenses, as outlined in NYSCEF DOC.
No. 23 should be stricken, and the remaining ones are not defenses to dismiss this action
against him at this stage of litigation.

1. Claims against Mr. Scherz are valid, and his reckless, careless, and negligent representation

of PlaintiffÕs child is the reason Plaintiff and son have had ZERO physical or digital contact

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for 3 years and counting, which is unlawful and unconstitutional. Plaintiff is a victim of

domestic violence and other crimes, and Plaintiff did the best she could to mitigate THEIR

errors, and SEEK due process timely, however, it wasnÕt a priority for either the lawyers

or the Judge in this legal system. As such, strike 1st Defense [Plaintiff at Fault]. There is

no merit to this defense. Plaintiff is a victim and survivor of gross errors.

2. Mr. Scherz should be held liable for the claims and damages his representation has caused,

such that his 2nd Defense [Limitations of Liability] should be held in abeyance until we

reach that stage of litigation.

3. Mr. ScherzÕs 3rd Defense [Admissibility of collateral source of payment] is not a Defense

to dismiss this action. This defense is premature at this stage. The damages the flow from

his and other lawyers' malpractice is on top of the harm that Plaintiff's employer has caused

her. And Plaintiff would argue that should she be awarded any source of payment from her

former employer for the harm they caused; that it should not reduce the amount of any

award, judgment or settlement that should stem from this separate lawsuit. Plaintiff is suing

for non-economic costs and other damages too. Lawyers should not get a free pass for

causing reckless and negligent ADDITIONAL harm. And somehow escape liability or get

a deduction from plaintiff's recovery for harm stemming from separate series of events and

occurrences resulting in damages. But this is not about money per se, this is about who is

at fault when a murder or suicide happens because courts refuse to dispense with due

process or justice timely, and allow for reckless misconduct to occur? This is about liability

for unnecessary and preventable harm.

4. For the same reasons, as above, 4th Affirmative Defense is not a defense to dismiss this

action.

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5. Plaintiff alleges various tortious misconduct and legal malpractice, and different types of

injury occurred, such that 5th Defense is not applicable, and too premature to assert or rule

out.

6. The 6th Affirmative Defense [Apportioning of liability] is also not a defense to dismiss

this action.

7. Claims against Mr. Scherz are not time bared. Strike 7th Defense [statute of limitations].

There is no merit to this defense.

8. Claims against Mr. Scherz are not frivolous. Strike 8th Defense [frivolous action]. There

is no merit to this defense.

9. Claims against Mr. Scherz sufficiently plead prima facie causes of action. Strike 9th

Defense [fails to state a cause of action]. There is no merit to this defense.

10. PlaintiffÕs address was protected in IDV Court. Strike 10th Defense [Plaintiff's

address omission]. There is no merit to this defense.

11. Plaintiff has addressed the 11th defense (Plaintiff lacks capacity to commence action),

and respectfully seeks a hearing to resolve this under the factual circumstances of this case

and under the law if necessary.

12. Plaintiff has addressed the 12th defense (service of process), and respectfully seeks this to

be ruled in PlaintiffÕs favor for good cause.

13. Plaintiff has addressed the 13th defense (PlaintiffÕs lack of standing to sue for the minor

child) and respectfully seeks a hearing to resolve this under the factual circumstances of

this case and under the law if necessary.

14. This Court has subject-matter jurisdiction over the complaint claims. Strike 14th Defense

[subject matter jurisdiction]. There is no merit to this defense.

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WHEREFORE, for the foregoing reasons, Plaintiff cross-moves to strike Michael Scherz, Esq.Õs

affirmative defenses, and this Court should deny his motion to dismiss.

Pursuant to CPLR 2016(b), I affirm this 21st day of June, 2024, under penalties of perjury, under

the laws of NY, which may include a fine or imprisonment, that I am physically located in Queens,

NY, that the foregoing is true, and I understand that the foregoing may be used in an action or

proceeding in a court of law.

Dated: June 21st, 2024 _/s/Magdalena Trzuskot__
Queens, NY Magdalena Trzuskot, Pro se

Exhibit A: Email to Mr. Scherz of Informal Service of Complaint within 120 days of filed
complaint
Exhibit B: Email Correspondence between Plaintiff and Process Server of attempted service on
Mr. Scherz within 120 days of filing and 2 weeks after 120 days.
Exhibit C: NYSCEF DOC NO. 33 Ð PlaintiffÕs Affidavit in Opposition to Motion to Dismiss
with Memo of Law and Exhibits
Exhibit D: NYSCEF DOC NO. 62 Ð PlaintiffÕs Supporting Memorandum of Law
Exhibit E: Post-final permanent custody decision Ð PlaintiffÕs Proposed Order to Show cause for
a plenary hearing for visitation (email and submission denied by IDV Court) and Notice of
Appeal

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Document Filed Date

June 21, 2024

Case Filing Date

June 07, 2016

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Motion-Secondary: Anthony Morris v. Thembisa Mshaka-Morris

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