Preview
UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 1 of4 Trans ID: LCV2017706818
40 Paterson Street Thomas B. Leyhane
CU New Brunswick, NJ 08901
Tel: (732) 545-4717 Fax: (732) 545-4579
Of Counsel
tleyhane@hoaglandiongo,cam
UL www. hoaglandiongo.com
CE A ba
CS Cee
ATTORMEYS ot LAW
December 27, 2017
Civil Motions Clerk
Superior Court - Law Division - Union
Union County Courthouse
2 Broad Street
Elizabeth, NJ 07207
Re: —_ Saletko, Elsa v. Capital Senior Living d/b/a Spring Meadows Summit
Our File No.: 6197161 - TBL
Docket No.: UNN-L-002062-16
Dear Madam or Sir:
This is a letter-brief in response to plaintiff's Motion For Recusal of Judge Grispin in this matter.
A courtesy copy of this letter-brief is being sent directly to Judge Grispin. The motion is returnable on
January 5, 2018."
Preliminary Statement
The present motion seeking a recusal of Judge Grispin in this matter comes nearly 19 months
after the commencement of this matter and after numerous hearings, motions and oral arguments resulting
in a number of rulings by the Court. Extensive testimony and documentary evidence has been presented
through the long course of this matter. Ultimately, both on December 6, 2016 and subsequently, on
August 17, 2017, the Court rendered decisions unfavorable to plaintiff. At no point durin the long and
often contentious conduct of this litigation has plaintiff ever sought the recusal of Judge Grispin. Rather,
following the Court’s decision on August 17, 2017 accompanied by a lengthy Opinion, plaintiff has by
obvious and improper maneuvers sought to delay and frustrate the consequences of the Court’s Order.
Two facts are noteworthy regarding this latest effort by plaintiff. First, plaintiff resurrects stale and
baseless claims that were fully aired on several occasions in the past as reasons for recusal at this late
stage. Second, plaintiff still sought improper delay by filing this application in time for a January 5, 2018
* Plaintiff filed this application on time to be heard on January 5, 2018, but identified the motion as returnable on
January 19, 2018. On December 20, 2017, Judge Grispin directed that the plaintiff's motion be heard on January 5,
2018, not January 19.
UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 2 of4 Trans ID: LCV2017706818
Page 2
hearing, but making the application returnable two weeks later. The Court immediately altered that
scheduling such that this motion would be heard along with a motion by defendant returnable on January
5, 2018.
The law
Recusal is a matter entrusted in the first instance to the discretion of the trial judge himself.
Hundred E. Credit Corp. v. Eric Schuster Corp, 212 N.J.Super. 350, 358 (App.Div. 1986); citing Bonnet
v. Stewart, 155 N.J. Super. 326, 330 (App.Div.) cert den 77 N.J. 468 (1978). It is not only “unnecessary
for a judge to withdraw from a case upon a mere suggestion that he is disqualified: it is improper for him
to do so unless the alleged cause of recusal is known by him to exist or is shown to be true in fact.”
Clawans v. Schakat, 49 N.J.Super. 415, 420-21 (App.Div. 1958). A judge is not prevented from sitting
because he has given his opinion on any question in controversy in the pending action in the course of
previous proceedings. R. 1:12-1.
Prior adverse rulings is not a justification for recusal. State v. Walker, 33 N.J. 580, 592 (1960);
Hundred East Credit, supra. 212 N.J.Super. at 358 (“[{Paragraph (d) of R.1:21-1] shall not prevent a
judge from sitting because of having given an opinion in another action in which the same matter in
controversy came in question or given an opinion on any question in controversy in the pending action in
the course of previous proceedings therein”)
Judges are not free to err on the side of caution; it is improper lor a court to recuse itself unless
the factual bases for its disqualification are shown by the movant to be true or are already known by the
court. State v. Marshall, 148 N.J. 89 (1997); Hundred East Credit, supra, 212 N.J.Super. at 358;
Clawans, supra at 420-21; State v. Flowers, 109 N.J.Super. 309, 311-12 (App.Div. 1970); Walker, supra
at 591. Commentary by a judge that is divorced from any personal view or bias on a certain issue is not,
in itself grounds for disqualification. Lacking some demonstration of a personal or private interest
divorced from the reasonable eters of a case, disqualification is improper. Walker, supra at 592;
State v. Bolitho, 103 N.I.L. 246 (Sup.Ct 1927); affirmed 104 N.J.L. 246 (E&A 1927).
Logic and fairness would dictate that if the facts giving rise to a claim of recusal are apparent, an
appropriate motion should be made within a reasonable amount of time. Permitting a judge one party
believes should be disqualified to continue to sit and decide issues in a matter, only raising a recusal issue
after adverse rulings should, obviously, call into question the motivations and veracity of that party.
Likewise, inay riate statements by themselves do not necessarily equate to bias. Panitch v. Panitch,
339 N.J.Super. 63, 68 (App.Div.2001), citing State v. Lverette, 64 N.J. 569 (1974). Mere speculation or
subjective feelings of a party is not enough to support recusal. Id.
Plaintiff's Claims
Here, plaintiff in a “Certification” presents argument regarding purported bias or prejudice by the
Court. It is first claimed that the Court’s purported comment or question “at the beginning of the case” as
to plaintiff living for free at defendant’s facility exemplified bias. (Certification at paragraph 4,5). No
transcript of the alleged statement is supplied and the context is absent, even if the comment were made.
UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 3 of4 Trans ID: LCV2017706818
Page 3
It is hard to see how such a comment could possibly support a motion for recusal, especially nineteen
months later. To be sure, the question whether plaintiff could live free of charge at defendant’s facility for
the rest of her life is an issue in the case and was even commented upon by the Appellate Division in its
discussion on December 13, 2016.
Paragraph 6 of the Certification refers to an unidentified statement of defendant’s Executive
Director which, frankly, lacks any link to plaintiff's application. This is followed by the assertion in
paragraph 7 that plaintiffs counsel and Plaintiff (Ms. Saletko) were led to believe that the Court could not
be fair right at the beginning of the case. The credulity of this claim is lacking since plaintiff did not move
to have the Court recuse itself right then if it really believed any such claim.
Questions regarding Ms. Saletko’s competency discussed in paragraph 8 were actually prompted
by the testimony of plaintiff's first expert, Dr. Zacharias, who testified that he thought Ms. Saletko would
not be able to understand a complicated legal document. An observation by the Court or any objective
observer might well raise the precise question raised by the Court. However, this cannot form the basis
for recusal since the Court never made any substantive determination adverse to plaintiff on this issue
and, seemingly, accepted plaintiff's repeated assertions that Ms. Saletko was competent. If plaintiff
wished, she could have petitioned for a competency hearing before any ruling (there were none) that
turned on her competency. This argument is misguided and illogical.
Plaintiff further spends a lot of time on the oft-repeated assertion regarding defendant’s retention
of an expert witness. This argument has been raised on innumerable occasions, usually accompanied by a
web of conspiracy of plaintiff's counsel’s own making. As with many fantasies, a kernel of innocuous
truth does exist: the Court did send defense counsel a letter listing four names of potential witnesses and
the Court did desire the defense to use an expert, whether from the list or not. However, the delusion that
somehow the Court knew that these experts would support the defense and afford the Court its basis for
denying plaintiff's applications is just that. The Court has, when confronted with this tiresome claim over
and over again, explained that it had no knowledge of the experts and no predetermined idea what they
would say. Beyond a fevered, paranoid supposition with absolutely no factual basis, this cannot form the
basis for recusal. Indeed, I did not know any of the experts in the Court’s letter and certainly did not know
Dr. Foley or how he might view this case. The windy, hyperbolic nature of this claim is best exemplified
by the assertion by counsel that “no reported opinion” could be found “in all 50 states” of judicial conduct
as occurred here. It is difficult enough to canvas New Jersey court decisions but asserting that no reported
opinion on a specific issue exists in any of the fifty states is truly an amazing feat. Unfortunately, it is of
no moment, even if true.
The assertions that this Court simply accepted the defense presentation at face value or ignored
plaintiff's position at various times is belied by the exhaustive opinions rendered by the Court, including
its opinion of August 17, 2017 which presented a thorough and balanced consideration of all of the
proofs. It is odd that if plaintiff felt this way about the Court, she failed to bring such judicial bias to the
attention of the Appellate Division on the two occasions that plaintiff tried to invoke the jurisdiction of
that Court.
Finally, there is the claim that the undersigned “lied” to the Court during the hearing on
November 17, 2017 and that the Court ignored this groundless claim. The almost incessant barrage of
insults poured my way by plaintiff’s.counsel has become legendary in my firm and been a source of both
UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 4 of 4 Trans ID: LCV2017706818
Page 4
frustration and sadness on my part. In over 200 e-mails, letters and pleadings over the course of this
matter, plaintiff's counsel has found it necessary to accuse me of being anti-Semitic; of tampering with
medical records; of withholding of medical records; of lying to him; of lying to the Court; of purposefully
misleading the Court; of violating Court Rules, the law in general and HIPAA in particular. When pressed
for proof, none is evident. The Court is unaware of the vast bulk of these communications which I and my
staff took to calling “hate mail”. However, some measure of counsel’s penchant for making such insulting
and baseless statements is known to the Court. He seemingly uses this as a tactic but it lacks substance
and affords no facts on which this Court can or should rule. As with the innumerable other barbs thrown
my way, this latest is of the same ilk.
I thank the Court for its consideration.
Very truly yours,
Tm ©&.
THOMAS B. LE
TBL:tbl
Cc: Glenn Goldberg, Esq. (BY E-MAIL)
Honorable Kenneth Grispin, P.J. (COURTESY COPY)
Preview
UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 1 of4 Trans ID: LCV2017706818 40 Paterson Street Thomas B. Leyhane CU New Brunswick, NJ 08901 Tel: (732) 545-4717 Fax: (732) 545-4579 Of Counsel tleyhane@hoaglandiongo,cam UL www. hoaglandiongo.com CE A ba CS Cee ATTORMEYS ot LAW December 27, 2017 Civil Motions Clerk Superior Court - Law Division - Union Union County Courthouse 2 Broad Street Elizabeth, NJ 07207 Re: —_ Saletko, Elsa v. Capital Senior Living d/b/a Spring Meadows Summit Our File No.: 6197161 - TBL Docket No.: UNN-L-002062-16 Dear Madam or Sir: This is a letter-brief in response to plaintiff's Motion For Recusal of Judge Grispin in this matter. A courtesy copy of this letter-brief is being sent directly to Judge Grispin. The motion is returnable on January 5, 2018." Preliminary Statement The present motion seeking a recusal of Judge Grispin in this matter comes nearly 19 months after the commencement of this matter and after numerous hearings, motions and oral arguments resulting in a number of rulings by the Court. Extensive testimony and documentary evidence has been presented through the long course of this matter. Ultimately, both on December 6, 2016 and subsequently, on August 17, 2017, the Court rendered decisions unfavorable to plaintiff. At no point durin the long and often contentious conduct of this litigation has plaintiff ever sought the recusal of Judge Grispin. Rather, following the Court’s decision on August 17, 2017 accompanied by a lengthy Opinion, plaintiff has by obvious and improper maneuvers sought to delay and frustrate the consequences of the Court’s Order. Two facts are noteworthy regarding this latest effort by plaintiff. First, plaintiff resurrects stale and baseless claims that were fully aired on several occasions in the past as reasons for recusal at this late stage. Second, plaintiff still sought improper delay by filing this application in time for a January 5, 2018 * Plaintiff filed this application on time to be heard on January 5, 2018, but identified the motion as returnable on January 19, 2018. On December 20, 2017, Judge Grispin directed that the plaintiff's motion be heard on January 5, 2018, not January 19. UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 2 of4 Trans ID: LCV2017706818 Page 2 hearing, but making the application returnable two weeks later. The Court immediately altered that scheduling such that this motion would be heard along with a motion by defendant returnable on January 5, 2018. The law Recusal is a matter entrusted in the first instance to the discretion of the trial judge himself. Hundred E. Credit Corp. v. Eric Schuster Corp, 212 N.J.Super. 350, 358 (App.Div. 1986); citing Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App.Div.) cert den 77 N.J. 468 (1978). It is not only “unnecessary for a judge to withdraw from a case upon a mere suggestion that he is disqualified: it is improper for him to do so unless the alleged cause of recusal is known by him to exist or is shown to be true in fact.” Clawans v. Schakat, 49 N.J.Super. 415, 420-21 (App.Div. 1958). A judge is not prevented from sitting because he has given his opinion on any question in controversy in the pending action in the course of previous proceedings. R. 1:12-1. Prior adverse rulings is not a justification for recusal. State v. Walker, 33 N.J. 580, 592 (1960); Hundred East Credit, supra. 212 N.J.Super. at 358 (“[{Paragraph (d) of R.1:21-1] shall not prevent a judge from sitting because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein”) Judges are not free to err on the side of caution; it is improper lor a court to recuse itself unless the factual bases for its disqualification are shown by the movant to be true or are already known by the court. State v. Marshall, 148 N.J. 89 (1997); Hundred East Credit, supra, 212 N.J.Super. at 358; Clawans, supra at 420-21; State v. Flowers, 109 N.J.Super. 309, 311-12 (App.Div. 1970); Walker, supra at 591. Commentary by a judge that is divorced from any personal view or bias on a certain issue is not, in itself grounds for disqualification. Lacking some demonstration of a personal or private interest divorced from the reasonable eters of a case, disqualification is improper. Walker, supra at 592; State v. Bolitho, 103 N.I.L. 246 (Sup.Ct 1927); affirmed 104 N.J.L. 246 (E&A 1927). Logic and fairness would dictate that if the facts giving rise to a claim of recusal are apparent, an appropriate motion should be made within a reasonable amount of time. Permitting a judge one party believes should be disqualified to continue to sit and decide issues in a matter, only raising a recusal issue after adverse rulings should, obviously, call into question the motivations and veracity of that party. Likewise, inay riate statements by themselves do not necessarily equate to bias. Panitch v. Panitch, 339 N.J.Super. 63, 68 (App.Div.2001), citing State v. Lverette, 64 N.J. 569 (1974). Mere speculation or subjective feelings of a party is not enough to support recusal. Id. Plaintiff's Claims Here, plaintiff in a “Certification” presents argument regarding purported bias or prejudice by the Court. It is first claimed that the Court’s purported comment or question “at the beginning of the case” as to plaintiff living for free at defendant’s facility exemplified bias. (Certification at paragraph 4,5). No transcript of the alleged statement is supplied and the context is absent, even if the comment were made. UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 3 of4 Trans ID: LCV2017706818 Page 3 It is hard to see how such a comment could possibly support a motion for recusal, especially nineteen months later. To be sure, the question whether plaintiff could live free of charge at defendant’s facility for the rest of her life is an issue in the case and was even commented upon by the Appellate Division in its discussion on December 13, 2016. Paragraph 6 of the Certification refers to an unidentified statement of defendant’s Executive Director which, frankly, lacks any link to plaintiff's application. This is followed by the assertion in paragraph 7 that plaintiffs counsel and Plaintiff (Ms. Saletko) were led to believe that the Court could not be fair right at the beginning of the case. The credulity of this claim is lacking since plaintiff did not move to have the Court recuse itself right then if it really believed any such claim. Questions regarding Ms. Saletko’s competency discussed in paragraph 8 were actually prompted by the testimony of plaintiff's first expert, Dr. Zacharias, who testified that he thought Ms. Saletko would not be able to understand a complicated legal document. An observation by the Court or any objective observer might well raise the precise question raised by the Court. However, this cannot form the basis for recusal since the Court never made any substantive determination adverse to plaintiff on this issue and, seemingly, accepted plaintiff's repeated assertions that Ms. Saletko was competent. If plaintiff wished, she could have petitioned for a competency hearing before any ruling (there were none) that turned on her competency. This argument is misguided and illogical. Plaintiff further spends a lot of time on the oft-repeated assertion regarding defendant’s retention of an expert witness. This argument has been raised on innumerable occasions, usually accompanied by a web of conspiracy of plaintiff's counsel’s own making. As with many fantasies, a kernel of innocuous truth does exist: the Court did send defense counsel a letter listing four names of potential witnesses and the Court did desire the defense to use an expert, whether from the list or not. However, the delusion that somehow the Court knew that these experts would support the defense and afford the Court its basis for denying plaintiff's applications is just that. The Court has, when confronted with this tiresome claim over and over again, explained that it had no knowledge of the experts and no predetermined idea what they would say. Beyond a fevered, paranoid supposition with absolutely no factual basis, this cannot form the basis for recusal. Indeed, I did not know any of the experts in the Court’s letter and certainly did not know Dr. Foley or how he might view this case. The windy, hyperbolic nature of this claim is best exemplified by the assertion by counsel that “no reported opinion” could be found “in all 50 states” of judicial conduct as occurred here. It is difficult enough to canvas New Jersey court decisions but asserting that no reported opinion on a specific issue exists in any of the fifty states is truly an amazing feat. Unfortunately, it is of no moment, even if true. The assertions that this Court simply accepted the defense presentation at face value or ignored plaintiff's position at various times is belied by the exhaustive opinions rendered by the Court, including its opinion of August 17, 2017 which presented a thorough and balanced consideration of all of the proofs. It is odd that if plaintiff felt this way about the Court, she failed to bring such judicial bias to the attention of the Appellate Division on the two occasions that plaintiff tried to invoke the jurisdiction of that Court. Finally, there is the claim that the undersigned “lied” to the Court during the hearing on November 17, 2017 and that the Court ignored this groundless claim. The almost incessant barrage of insults poured my way by plaintiff’s.counsel has become legendary in my firm and been a source of both UNN-L-002062-16 12/27/2017 11:11:25 AM Pg 4 of 4 Trans ID: LCV2017706818 Page 4 frustration and sadness on my part. In over 200 e-mails, letters and pleadings over the course of this matter, plaintiff's counsel has found it necessary to accuse me of being anti-Semitic; of tampering with medical records; of withholding of medical records; of lying to him; of lying to the Court; of purposefully misleading the Court; of violating Court Rules, the law in general and HIPAA in particular. When pressed for proof, none is evident. The Court is unaware of the vast bulk of these communications which I and my staff took to calling “hate mail”. However, some measure of counsel’s penchant for making such insulting and baseless statements is known to the Court. He seemingly uses this as a tactic but it lacks substance and affords no facts on which this Court can or should rule. As with the innumerable other barbs thrown my way, this latest is of the same ilk. I thank the Court for its consideration. Very truly yours, Tm ©&. THOMAS B. LE TBL:tbl Cc: Glenn Goldberg, Esq. (BY E-MAIL) Honorable Kenneth Grispin, P.J. (COURTESY COPY)