STATE OF NEW YORK
APPELLATE DIVISION, THIRD DEPARTMENT
TERENCE FINNAN, Appellant
Appeal Motion
v Index No. 403-03
RJI 15-1-03-0167
MARSHA A. FINNAN, Respondent
Reply Affidavit to Answering Affidavit of Marsha “Finnan” Kameron dated 9/22/2009
State of New York, County of Essex ss:
Terence Finnan, being duly sworn, deposes and says:
Recusal and the unethical conduct of Judge Ryan and due process impossibility
1. In addition to the fact that Judge Ryan’s staff told me by phone after 4/11/2009 that they had called into CVPH Hospital on 4/10/2008. An earlier fax communication was also claimed in Exhibit H (from Marsha Finnan’s answering affidavit to this motion) which is the fax of Judge Ryan to Terence Finnan dated 4/7/2008.
A. This fax by Judge Ryan claims it was faxed to Terence Finnan when neither Terence Finnan, nor his computer could receive faxes. Terence Finnan didn’t have a fax machine, nor did Terence Finnan ever indicate to Mr. Asadourian or the court that he could receive faxes. Terence Finnan is able to use his Word Perfect program to send faxes, but said program cannot receive faxes. Therefore Terence Finnan did not and could not have received this Notice (fax) from Judge Ryan. This was a lack of due process. Also, undenied by Marsha Finnan was the fact that the April 10, 2008 court date was in a different action (Index #145-06).
B. It was unethical for Judge Ryan to ask his staff to speak to my doctor or my doctor’s staff as described in above fax. Judge Ryan asked to “speak to your doctor and his staff regarding treatment” in violation of ethical rules about initiating, permitting and considering communications outside the presence of the parties.
C. Judge Ryan’s request also violated ethical rules about independently investigating facts in a case.
D. I’ve computer copied applicable sections with the commentary from the
NEW YORK STATE BAR ASSOCIATION CODE OF JUDICIAL CONDUCT Adopted by the New York State Bar Association Effective April 13, 1996
CANON 3 [1O0.3]
(6) A judge shall accord to every person who has a legal interest in a
proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding,
E) Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned
Commentary:
13.4] 13B(6)(e)]The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.
13.5113B(6)(e)JTo the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.
[3.6]13B(6)(e)] Whenever presence of a party or notice to a party is required by Section 3B(6), it is the party’s lawyer, or if the party is unrepresented the party, who is to be present or to whom notice is to be given.
13.9113B(6)(e)JA judge must not independently investigate facts in a case and must consider only the evidence presented.
[3.21]13E(1)] tinder this rule, a judge is disqualified whenever the judges impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply.
E. In the certified Exhibit D of original motion medical records and Exhibit F -page 9 of original motion prove that I was only released from the Hospital at 4/11/2008 at
11:56 AM and could not have been at the trial on 4/11/2009.
F. In regard to Judge Ryan’s specious claims about my health, I follow my doctor’s advice from the attached document from the Harvard Medical School (Exhibit A -attached to this affidavit). I have been defribrillated five times and had a stroke. A main danger to my life was fibrillation and not heart attack or ischemic damage. Judge Ryan is not my doctor, nor should or would I follow his dictates on my medical treatment.
In regard maintenance
2. Judge Ryan by his above faxed letter was aware that the health and medical treatment of Terence Finnan was a known issue. Also, in earlier trial testimony by Marsha Finnan, Judge Ryan knew that Terence Finnan was a candidate for a heart transplant and was over 65 when he signed his final judgement order. Judge Ryan knew by certified medical records submitted to him from CVPH Hospital that Terence Finnan had serious health problems. Judge Ryan failed to follow the law as copied below with applicable parts bolded:
6. Maintenance, a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court may order temporary maintenance or maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. Such order shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporaly maintenance which has been paid. In determining the amount and duration of maintenance the court shall consider.’
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part,’
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
3. Marsha Finnan has not denied that she committed a major fraud concerning the Discover Bank CD and that it was never separately maintained as her non-martial property as claimed at distribution trial, or even that any of her “Separate funds” were used to buy said Discover CD.
4. Marsha Finnan has not denied that she committed fraud in either the Supreme Court or in filings under oath with US Department of Education, which reveal the Plaintiffs business/farm had a net worth of $98.700.00 which was not disclosed to the court in the distribution trial. Marsha Finnan has not denied that this fraud by Marsha Finnan meets the NY penal law definition of perjury. It is not necessary to prove which is false for conviction for perjury.
5. Further fraud and perjury by Marsha Finnan is confirmed in her affidavit filed to commence this action, wherein she claimed all the CDs, including the Discover CD, MBNA CD and Adirondack Bank CD were marital property. (See Exhibit B attached to this reply which is Marsha’s affidavit).
Note at bottom of Exhibit B- page 2, she identifies the MBNA CD as marital property and on Exhibit B-page 3, she identifies the Adirondack Bank CD and the Discover CD as marital property. But at the distribution trial she claims they’re all her separate property which she knew and kept separate. How convenient for Marsha Finnan, but fraud/perjury under NY Penal Law.
Further reason for recusal of Judge Ryan
6. Judge Ryan is a defendant in federal action 08-5977-cv scheduled for argument on 11/18/2009 with Terence Finnan. Judge Ryan is the object of a Complaint before the NY Commission on Judicial Conduct. Judge Ryan is revealed as corrupt at NY Senate Hearing by Terence Finnan on 9/24/2009.
Needless money and court time will be wasted
7. The trial misconduct and fraud will mandate a new trial. Why waste time with transcripts and further Appellate decisions, which will only enrich Marsha’s attorney.
The Honor of this Appellate Court
8. Judge Ryan’s actions as described in the Federal action against him and in testimony before NY Senate Committee on the Judiciary on 9/24/2009 and the video of said Senate Hearing will be posted on the NY Senate website and would only cause this court and its judges being taken into disrepute.
1. Vacating Final Judgement Order in Finnan v Finnan, Index No. 403-03, filed in the Essex County Clerk’s office on July 2, 2009 because of fraud and denial of due process to the defendant, Terence Finnan.
2. Directing Hon. Kevin K. Ryan to recuse himself from Finnan v Finnan, Index No. 403-03.
3. Directing the Essex County Supreme Court in Finnan v Finnan, Index No. 403-03 to hold a hearing concerning spousal support for Terence Finnan.
4. Directing the Essex County Supreme Court in Finnan v Finnan, Index No. 403-03 to review all proceedings in the fault trial and insure that there was due process.
______/s/________________
Terence Finnan
Sworn to before me this 25th day of September 2009 by Terence Finnan who acknowledges that he is the Defendant in the above-mentioned action and that he swore the contents of this affidavit are true under the penalty of perjury under the Laws of the State of New York
_________________
Notary