SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION FIRST DEPARTMENT
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JONATHAN R. STEINBERG ESQ
Plaintiff-Appellant
-against- 
PAZER and EPSTEIN P.C. Index Nos 9909/88
Respondents-Respondents
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AFFIDAVIT IN SUPPORT OF MOTION TO REARGUE
State of New York )
ss
County of New York )

This is the affidavit of Jonathan Steinberg esq, attorney at law of 10 Mitchell Place, New York City. I am the plaintiff/appellant in the above captioned action. I swear the following to be true under penalties of perjury.

I am an international attorney based in New York. This is an action for recovery of fees charged for services rendered as counsel to the defendant law firm Pazer & Epstein in two matters; one known as Fredericks v. Rheinmetall (Berlin). An invoice for such services was submitted on 7th August 1987 and was in the amount of $7,245.00. The other is known as Dayan v. Sheraton & ITC Limited for which a final invoice was submitted on 18th September 1988 in the amount of $18,450.00. These invoices remain wholly unpaid.

This is an appeal from an Order of Shainswit J. in the Supreme Court of the State of New York. A copy of the Notice of Motion is annexed hereto. This was a motion to vacate a dismissal and for summary judgment based on the defendant's default in filing any answer to a Complaint. This court has acted sua sponte to strike out the appeal. Re-argument of that action is sought.

Justice Shainswit's Order treated the motion as if it were merely a motion to reargue, denying that part of the motion which requested re-argument. Appeal does lie from a motion to vacate and a motion for summary judgment. Review of the sua sponte determination is sought at this stage because it is now clear that the Order denying summary judgment and denying the motion to vacate the dismissal will not be properly reviewed in the lower court and was incorrect in law.

In December 1992, prior to rendering the decision in the motion which was before her, Justice Shainswit called for a conference, to be held on 12th January 1993. The appellant had moved for stay in this court because it was thought that at that time mention should be made of the reasons for wanting Justice Shainswit to review her prior decisions. A secondary intention was to remind her that she had no power to re-classify the original Summons and complaint as a bare summons retrospectively in order to dismiss the action. There was no request for particularisation of the Complaint by the defendants at the time of service, nor any indication whatsoever that the defendants objected to the Complaint, nor that the Complaint took effect as anything other than a Complaint.

After such conference or motion it would be clear that the decision of Justice Shainswit from which appeal is sought was based on law and not fact. This should have obviated the need to trouble the Appellate Division with further hearings in this matter.

Prior to that conference, the appellant had moved the in lower court to inform Shainswit J. that there had been probable impropriety in prior presentation of evidence to her honor by the defendants. The defendants had, in effect, seized funds which they had been paid as damages for their client (a rape victim) in the Dayan matter and were refusing to pay such funds over to Miss Dayan pending the determination of their own liability to this plaintiff for work which the defendants had asked this plaintiff to perform. They had further demanded that Dayan swear an affidavit in this matter in an attempt to influence Shainswit J. to find against this plaintiff.

As the law on which this appeal is to be based is wholly at variance with the finding of the lower court, it was felt that Shainswit J. must have been persuaded by the Dayan affidavit. Under those circumstances, any possible professional misconduct by the defendant law firm or relevant undue influence which the defendant law firm had over their client in procuring that affidavit by unlawfully holding on to her money would be of the utmost relevance.

No response has been made by the defendant law firm to the allegations that undue influence was exerted by the defendants over their client, or that facts and matters were sworn in the Dayan affidavit which were blatantly untrue and designed solely to mislead the court into denying the relief sought by this plaintiff.

On 12th January 1993 without reference to her honor, Justice Shainswit's administrative clerk refused to permit the conference to go ahead, and told the plaintiff to write a letter to Justice Shainswit setting out any application which the plaintiff intended to make on that occasion. No response has been received to that letter.

In this way the matter has run on until the present and now comes before the Appellate Division on the question of whether on the facts set out in the Notice of Motion which is now before the court, namely that the appeal was from a motion to vacate, the determination of this court sua sponte that no appeal lies from a motion to re-argue remains appropriate.

Wherefore it is respectfully requested that this court review it's sua sponte determination that the appeal be struck out and direct that the matter be set down for appeal as to the motion to vacate and the motion for a default judgment.
 

Dated this 25th February 1993
J. R. Steinberg esq
Plaintiff-Appellant, pro se
10, Mitchell Place
New York City 10017
212-750-9777