Westchester Guardian/The Court Report.

Thursday, September 18, 2008

The Court Report
By Richard Blassberg

At Long Last, Justice For Bobrowsky
Yonkers City Court
Judge Michael A. Martinelli Presiding

Last Tuesday morning, September 9th, in Judge Michael A. Martinelli’s Court, Yonkers City Court, had been essentially unremarkable for the
first two hours; unremarkable in that Judge Martinelli had handled the usual stream of DWI, Drug Possession, Assault, Menacing, etc., cases with the thoughtful judicial temperament and dedication this observer had seen any number of times from him.

At 11:20am, the Judge announced, “The Court will be in recess for 20 minutes. We will be handling the Bobrowsky case.” Assistant District Attorney Paul Stein had been sent down from White Plains and now entered the courtroom. Attorney Anthony John Messina, of White Plains, representing Sherry Bobrowsky, of Yonkers, now addressed the Court. He told Martinelli, “I’m seeking a modification of the Order of Protection issued by this Court. The Order stipulated that my client was to stay away from the house. The question is, who owns the house? It’s been determined that my client does.”

Judge Martinelli asked, “Has there been an eviction?”

Messina responded, “My application is for a modification because this is a family matter that has been blown way out of proportion.” Referring to
Dr. Sherry Bobrowsky, he went on, “She can’t even get her mail. She has no place to live. Her brother, Jacques, doesn’t even live in the house.”
Pausing for a moment, Messina went on, “For two and a half years, Your Honor, the People have, in effect, put this woman out of her home.”
Martinelli then reminded Messina that his client had an open pro se application before the Court, asking, “She’s not withdrawing the motion now?” Messina then turned to Bobrowsky, privately conferenced with her, and turned back to Martinelli, responding, “Your Honor, she’s agreed to withdraw them now.”

Then, Martinelli turned to ADA Stein, asking, “What’s the People’s position on the modification of the Permanent Order of Protection?”

Stein responded, “She was given an Order to stay away from her 82-year old mother. There was a first Criminal Contempt Order, and a second Criminal Contempt Order. The victim in this case is elderly.”

Stein went on, “Ownership is irrelevant to the Order of Protection.” He then tried to make an argument that Sherry Bobrowsky’s relationship with
her mother Lillian was analogous to a relationship between spouses, with elements of domestic violence under one roof. Reading from the Order of Protection, he declared, “This Defendant is to stay away from Lillian Bobrowsky and her home.”

At that point, Mr. Messina came back with, “Your Honor, I think we can call that a jurisdictional defect. This is how we got here, staring at her mother while her brother was sitting right next to her.” Judge Martinelli then observed, “It’s a Misdemeanor Complaint.” Messina followed with, “My first notion.” Martinelli then inquired, “Where are we now with regard to the non-jury trial?” Messina replied, “Judge, you can leave it on for this Thursday if they wish to.”

The Judge replied, “I’m going to withhold my action on the modification of the Order of Protection pending the outcome of the non-jury trial.”

Analysis:

Sherry Bobrowsky was finally before a judge, perhaps the only judge in the City Courts of Yonkers worthy of the title. She had been before Klein
and Wood and Duffy and had not been treated with the proper respect due any citizen in her situation. Her experience in the Yonkers City Courts had been one of callous and, in some instance, belligerent treatment by police, City Corporate Counsel, assistant district attorneys, and judges alike.
It had been clear and unjustifiable prejudice for more than two years, that supported and played into the hands of a brother with serious mental
health issues, represented by an attorney, Herbert N. Posner, who had been disbarred some 20 years ago for fraudulent practices, and this year, had lost his Notary license, also for fraud.

Now things were different; she was before a judge who was clearly a gentleman, Michael A. Martinelli, someone who would actually wield his powers with compassion and fairness; one who would approach her circumstances and those of her brother and 82-year-old incapacitated mother even-handedly, in a genuine effort to hopefully resolve matters.

Dr. Bobrowsky had been to Federal Court, appearing before Judge Stephen C. Robinson several months earlier, in an attempt to prevail upon him to intercede in the series of unconstitutional violations by the Yonkers Police and Corporate Counsel, the Westchester District Attorney’s Office, and Yonkers City Courts, who, acting in concert, had been ganging up on her, aiding and abetting a very transparent effort by Posner to deny her Constitutional Right to enjoy her own property, her home, her disability income, even the privacy and possession of her mail.

Unfortunately, Robinson found that he could not grant her the relief sought, by reason of jurisdictional failure. Bobrowsky had succeeded, however,
in State Supreme Court under Judge Richard Liebowitz, in getting a favorable determination with respect to her ownership and clear title to her Yonkers home, despite a fraudulent attempt by Attorney Posner in connection with Judicial Title Insurance Company, to file a deed outside of the chain of title.

She would be appearing again Wednesday and Thursday, September 10th and 11th, before Judge Martinelli; Thursday to answer to recent
allegations by Yonkers Police that she had violated a Permanent Order of Protection by being in the vicinity of her aged mother on June 2nd, when, in fact, she had been in the company of Attorney Mayo Bartlett, nowhere near her mother.

On Wednesday morning, September 10th, Dr. Bobrowsky was back before Judge Martinelli; this time in answer to an Order To Show Cause
filed by Attorney Posner with regard to a Default Judgment issued against his client, Bobrowsky’s mother Lillian, with respect to an eviction notification. Her mother and brother were present in Court, together with Posner. As he had done once before in State Supreme Court, Posner claimed that he wasn’t served by the Court and that Attorney Messina should have served him.

Martinelli ruled that the responsibility for notice lay with the Court. He asked what Posner’s argument was in light of his failure to show up. Posner declared, “It’s in the papers,” claiming that what Messina verified wasn’t true, asking for a recess to research the Real Property Law.
It turned out that Messina was right.

People v Sherry Bobrowsky

Thursday afternoon, September 11th, Dr. Bobrowsky appeared, once more, in Yonkers City Court before Judge Martinelli; this time to answer
to charges by the Westchester District Attorney’s Office. Martinelli opened, asking, “What’s happening on this?” The Assistant District
Attorney responded, “Judge, I’m serving a superceding Misdemeanor Complaint with respect to the June 2nd incident.”

Attorney Messina replied, “Your Honor, they’ve announced readiness but they don’t provide a certified copy.” Martinelli responded, “You will be
getting a certified copy today.” He then asked Messina, “How do you plan to proceed? You’ve waived the right to a jury trial.”

At that point, Messina asked, “Judge, may we approach?” And Messina and the Assistant District Attorney approached the Bench. Returning from a brief conference, Messina announced, “Judge, we prefer actual notice.” The ADA then indicated to the Court that he would prefer more time.
Martinelli then responded, “Based on what?” The ADA indicated that he wanted to involve the Domestic Violence Unit. Martinelli then set September 25th, at 2pm, for trial. Turning to Bobrowsky, he asked, “Ms. Bobrowsky, do you understand that in requesting a non-jury trial the Judge will sit as Judge and Trier of Fact?” She acknowledged that she understood. Closing the criminal hearing, Martinelli moved right along to handle the civil matter.

Sherry Bobrowsky v Jacques and Lillian Bobrowsky

Judge Martinelli opened with, “Let’s start off by being off-the-record. Is there any hope of resolution of the differences between the parties?”
Posner, speaking in a discouraging tone, told the Court, “We’ve tried.” Martinelli then told Posner, “Let’s assume Ms. Bobrowsky proceeds to
evict your clients.” At that point, Posner began to double- talk about events in Supreme Court under Judge Richard Liebowitz. He emphasized that Lillian had lived in the house for 62 years.

Going back on the record, Martinelli said, “So we are here on the Landlord/Tenant matter, and we will proceed with that.” At that point Attorney
Messina handed papers to Posner. Posner then asked for a “stay to allow sufficient time for Lillian to file a Show Cause Motion.” He went on to tell the Judge, “When the Order of Protection was drawn up in Family Court, there was a subsequent altercation which was established by a jury of her peers.”

Following brief arguments, Martinelli told Attorney Posner, “I’m going to deny your Order To Show Cause. I’m going to issue an Order and sign the warrant, with a 14-day Stay.”

Analysis:

The 14-day Stay was included because they were all scheduled to be back in Court on the 25th of September. Now that Judge Martinelli has effectively consolidated and taken over all of Dr. Bobrowsky’s court issues, there is realistic hope that she will soon reoccupy her home and normalize her life.