NATURE OF ACTION This is an alleged fraud case originating from the summary legal proceeding held at the Supreme

Court of Dutchess County following allegations from the Attorney General of New York State that the respondent engaged in repeated or persistent fraud based on two causes of action: First cause pursuant to Executive Law Se c. 63 (12)- Fraud, and second cause of action pursuant to Executive Law Sec 63-1 2 - Violation of GBL Article 22-A, Sec. 349. This is an Appeal to the Supreme Court of New York State, Appellate Division; Se cond Judicial Department from a Decision/Order Judgment of Justice Thomas Dolan dated November 14, 2009, a Decision and Order and Order/Judgment of Justice Jam es Pagones dated September 29, 2010. STATEMENT OF FACTS The case is based on a complaint from Winsted, Connecticut resident Janet Spirid onakos alleging she was defrauded by the defendant, who by doing business on the Internet as Objets DArt Uniques, sold her seven Sino-Tibetan Buddhist rosaries n amed mala, over a period of about two years commencing in January 2007. The defe ndants website Objets DArt Uniques is part of an online antiques mall registered a nd maintained by Go 1 Antiques.com located in Ohio State. Go Antiques.com as a seller on Ebay Live Auc tions sold items consigned by owners of online stores registered with GoAntiques . As the seller did not have physical possession of items sold at the auctions, the consigners of these items, collected monies from buyers including the auctio n commission in the amount of 17.5 % and additional 10 % seller fees. The commis sions were charged by Go Antiques.com to the consignors credit card in addition c harged for the monthly maintenance of the store. The conditions of the auctions stated that the sales were final after a period of inspection that was of 7 days and did not exceed 30 days from the auctions date. The first two purchases of Ms . Spiridonakos were through GoAntiques.com auctions where defendant was a consig nor. One of the Sino-Tibetan jadeite rosary mala was described as fei tsui. Comp lainant ignorantly and wrongly attributed fei tsui (means jadeite in Chinese) to imperial jade used exclusively in jewelry that is rare and expensive. AG allege d that she was deceived, relied on fei tsui term and thereafter, she purchased additional five jadeite mala from the Internet store of the defendant named Obje ts DArt Uniques. In November 2008, the complainant purchased 2 jadeite handles ca lligraphy brushes that upon receipt she wrongly believed that were made of glass rather than jadeite. At 2 her request, she returned the brushes and refunded. She did not consult anybody about her suspicion and with certainty was not sure about her belief. As a matter of fact, she implored the defendant to re-sell her the brushes even at a higher price when the defendant confirmed that the brushe s were as represented. Providently, this transaction never took place. At the re commendation of her close friend, a jeweler named Tim McClelland, she submitted through him the seven Tibetan mala for a gemological testing by a company named AGTA (American Gemological Trade Association). According to Spiridonakos emails , McClelland whose store is in Great Barrington, Massachussetts, picked up the ma la from complainant house in Winsted, Connecticut, brought them to AGTA in NYC, then picked them back from AGTA and brought them to his store in Massachussetts from there the complainant brought them home on 3/28/09. She notified defendant she received the mala and the gemological identification reports reported seven mala were species quartz, variety quartzite, see enhancement. The fallacy of the reports is not only that were inaccurate, but the jadeite mala were not jewelry grade jadeite prone to be analyzed by gemological testing, rather ornamental ja de carvings that are never suitable for gemological testing due to the presence of many minerals 3 in their constituency. Subsequently, Janet Spiridonakos contacted defendant by e mail requesting a refund. He assured her she will receive a refund upon the rece ipt of the reports. Unexplained, she did not contact the defendant again until 5

/10/09 providing the respondent with the reports next day. In the email dated 5/ 10/09 she claims of paying $1000 for the testing, money she did not claim for re fund. See Record on Appeal page A458 (Defendants Exhibit B of Reply Affidavit). Last communication with Spiridonakos was an email of defendant dated 5/14/09 of fering subtraction of the third party payments from refund or exchanging the mal a with any items from the website as full refund. The email clearly shows that the refund will be satisfactory to her. While it appeared that the complainant a greed to a refund settlement, she broke the negotiations and complained with Ne w York State Attorney General (AG) alleging fraud. On her last email to defendan t dated 5/18/09, she claims that she was defrauded, paid $1000 for the gemologi cal reports and she is contacting AG. See AG Petition, Exhibit 17 ( Record pag e A164) On June 24, 2009, defendant was subpoenaed to appear for an interrogatio n at AG office in Poughkeepsie. AAG, Nicholas Garin advised defendant that is no t entitled to have an attorney present, but might need one in the future. 4 Following the subpoena, defendant received a Notice of Proposed Action affording the opportunity to respond within 5 days why such proceeding should not be star ted. The defendants response included the fact that the gemological reports of AG TA were mislabeled as carved head necklaces terminology that the defendant never u sed in the description of mala and the evidence was tampered by using an attache d photo to an identification report and same photo used again in the identificat ion of another mala sold more than one year later. The defendant vigorously deni ed the false allegations that he sold items as made of jade when the items were not made of jade and sold or advertised items as being ancient when the items we re rather of recent fabrication. In order to be ancient, the item(s) has to be m ore than 1000 year old, fact never alleged by AG and demonstrating sheer ignoran ce. These malicious allegations were never supported by factual proof and rathe r fishing expeditions of the plaintiff. Defendant sincerely believed that his resp onse to the Notice was overwhelmingly convincing and as proving the malicious charges were false, would be dismissed. On August 7 , 2009, AAG Nicholas Garin called defendant on phone to announce that a hearing about a TRO would be at courthouse 3 hours later. AAG offered to fax the documen ts but the fax did not go thru. This hearing 5 was ruled by judge James Brands to be a calendar call and no hearing at all and same with the follow up proceeding of September 14, 2009. See Record page A41-A4 3. At this calendar call, AAG brought 3 allegations in support of his request fo r a TRO: AGTA Laboratory findings of 7 identification reports, allegations of th e complainant that 2 jadeite calligraphy brushes she thought were made of glass rather than jadeite and negative comments on Amazon.com about defendants publishe d books. Defendant responded that AGTA identification reports were tampered, mis labeled and should not be considered as legal evidence. Calligraphy brushes were returned and refunded and there was no evidence whatsoever that the brushes wer e made of glass and the negative comments on Amazon.com were not substantiated b y any base. However, TRO was granted by judge James Brands and a gag on media was granted at defendants request. Defendant complained that no notification of heari ng was done by AAG. Judge Brands recommended re-testing by GIA Laboratory of ma la as AGTA findings were faulty, and set up a follow up calendar call at which r esults of GIA would be available. At follow up hearing of 9/14/2009, Judge Brand s inquired AAG about the results of GIA and at his negative reply he ruled that the results should be available at next calendar call of 9/28/2009 (never took place) 6 and by that time AAG should submit a reply to defendants response to the Petition already submitted and filed with the Court. No questions were posed to the defe ndant. Court was unable to locate any stenographic record of these 2 court appea rances and judge Brands stated in the Courts statement used in lieu of transcript that in fact there were no hearings, rather calendar calls. Judge Brands recused citing conflict of interest as his Principal Court Attorney previously represent ed defendants former wife in a divorce proceeding. Judge Thomas Dolan was assigne

d to this case but he did not set up any further hearings, calendar calls or con ference regarding the temporary injunction or any issues related to granting a summary judgment. 2 tamperings with evidence occurred in the AG Petition, Exhib it 18, article: Burmese jade: The inscrutable gem by Richard Hughes and al. First tampering appeared on page 14 of Exhibit 18 (See Record page A178) and consiste d in the over-print of a photo over a text that was exculpatory to defendant. Th e obliterated paragraph from above article clearly states that jadeite that is a silicate pyroxene may be composed from other minerals as amphiboles (nephrite), quartz, mica, etc. that are constituents of an admixture in the rock. The secon d tampering with evidence was another obliteration of the text by interposing of a photo over the text. See AG 7 Petition, Exhibit 18, page 7. Significantly, the text was exculpatory to the def endant. The obliterated portion reveals that jadeite jade is essentially a rock with a variable composition. See defendants Response to Petition Record page A208 , A209 and Exhibit 9 of defendant (record page A281); also defendants Reply Affir mation dated October 9, 2009, p. 5,6; Record page 334, A335 A337. On 9/2/2009, A AG wrote a letter to the defendant asking if he intends to have the mala re-test ed as he promised. Defendant responded by phone stating that he never promised t o have the mala re-tested. It was AG responsibility to re-test the mala as AGTA results were faulty at least, did not prove his allegations and was his responsi bility to substantiate the allegations with admissible evidence in the court. 2 days prior Judge Brands recusal, defendant received a phone call from AAG asking for consent of time extension to obtain the results of GIA; defendant declined such consent. On 10/2/2009, AAG submitted the Reply to defendants response to the Petition. The Reply contained the results of GIA Laboratory that refuted AGTA fi ndings; mala are not species natural quartz. Color enhancement in AGTA was also reported in GIA reports as common finding in all imported semi-precious stones f rom China, unfortunately, not detected by standard 8 examination. In Reply, AAG arrogantly instructs the Court to disregard the respo ndents answer to the Petition because it is not in admissible form. If the Court c onsiders it, it should be apparent that the State is entitled to summary judgmen t because the response is largely irrelevant and utterly fails to raise a triabl e issue of fact. Respondent has mislabeled his response as a motion to dismiss s ince he has not raised an objection to in point of law under CPLR 404 (a). Shoul d the Court treat the response as a motion to dismiss, the Court should exercise its discretion and deny the respondent leave to answer. AAG cites People v Wilco case where the defendant was denied leave to answer for t he reason that the answer was already given in the counter-claim to dismiss, so there is no comparison whatsoever. AAG never served the notice of Petition to de fendant so no opportunity was granted to defendant to present his side other tha n responding to the Petition that anyway was disregarded. AAG allegation was fal se, defendant raised the objection in point of law under CPLR (a) both by settin g it forth in his answer to Petition and secondly by a motion to dismiss the pet ition. In para 8 of AAG, it is falsely stated again that GIA Lab results affirm AGTA results: The GIA lab results are attached as Exhibit 3. They confirm the re sults of the AGTA lab. 9 Together these reports prove beyond any shadow of doubt that respondent repeated ly sold Ms. Spiridonakos malas (sic) that were made of everyday quartz rather th an jade as he represented. Intentionally, AAG confuses the terms of quartz and qu artzite; they are not the same, quartz is a single mineral, quartzite is a metam orphic rock that is proved to contain jadeite and is named jadeitite or jadeite quartzite. See Memorandum of law p.7 ; Record page A417. GIA reports also show a discrepancy in the comparison of mala weights that are not compatible with gemo logical reports measuring in carats, rather than grams. See Motion of re-argumen t, p. 19, para 27 (Record page A367). On 10/15/2009, AG released to media highly inflammatory statements that the defendant sold artifacts on line claiming that

they contained high quality and expensive jade, when they actually were made of quartz or glass. He then refused to provide refunds or acknowledge that the piec es were fake. Further on: This individual preyed on collectors of expensive antiqu es and artifacts and didnt deliver on his promises said Attorney General Cuomo. At the time of publishing this release, AG knew that the mala sold to a single comp lainant were not made from quartz and the unproven allegation of glass is a fant asy of the complainant. Knowingly and deliberately, AG libeled the defendant and 10 violated the gag media regarding TRO. On 10/15/09 defendant submitted a complaint to the court in his Reply Affirmation and moved to dismiss all charges with prej udice, also moved to removal of TRO. See defendants Reply to AG Andrew Cuomo Rel ease to Media (Record page A338). Respondent never received a reply from the cou rt regarding the complaint and all his motions despite that were served to court and plaintiff. Violating due process of the defendant, judge Dolan issued Decis ion/Order/Judgment in favor of plaintiff on 11/14/2009 without any hearing and d efendant never saw the judge. Court ordered defendant to provide a list of all c ustomers that purchased jade items and defendant complied. Potential restitution and assessment of penalties and cost was to be held in abeyance pending the com pletion of petttioners investigation of potential claims. Judge suggested defenda nt to retain a lawyer considering the potential implications as to assessment of restitution, costs and money judgment, but did not mention fines or retroactive interest of 9% to the claims. Subsequently, defendant retained attorney Clinton Calhoun. In long negotiations between the parties, judge Dolan proposed a settl ement based on restitution and waiving all fines and court cost. While the cost to defendant of defending this lawsuit exceeded the money claimed by the complai nant, not considering the 11 emotional and physical stress, settlement looked attractive but the admission of guilt by consenting to the injunction already granted was repugnant to moral ch aracter of the defendant. After failure of settlements negotiation, attorney Calh oun moved for re-argument and renew that was granted. Judge Dolan retired and ju dge Christine Sproat who was assigned, apparently did not take the assignment. A AG contended that by moving to reargue/renew, defendant lacked good faith and sh ould be subject to penalties, cost and imposition of 9 % interest. AAG in his in vestigation of all customers who purchased jade from defendant in the past 7 yea rs, found only 3 customers requesting restitution without providing a reason. Th is represented an attestation for the personal and professional integrity of def endant. Judge James Pagones issued Decision/Order and Order/Judgment on 9/29/10 for plaintiff. In addition to the injunction and restitution to complainant and 3 claimants, he ordered $8000 in civil penalties, $2000 in costs and retroactive interest of 9% amounting to $32.506.32 that represented more than double the o riginal money requested by AAG in the suit. Judge Pagones erroneously confused the terms of re-argument and renew. Re-argument can not be renew mo tion for the reason that brings only issues that were previously discussed; whil e the renew brings only facts that are 12 new and not previously discussed. The decision to allow a renew motion in the ju dge Pagones definition is actually to approve re-argument that by itself should bring to dismissal of action. In abuse of discretion, Judge Pagones did not tak e in consideration the renew motion while completely ignoring the re-argument th at in his ruling is renew without denying it and adhering to judge Dolan Decisio n/Order/Judgment of 11/14/2009 and decision/Order of 9/29/10 that was abandoned. ARGUMENT POINT I The prima facie of plaintiff consists of false allegations of a single complaina

nt and faulty gemological laboratory testing of AGTA The evidence submitted by defendant showed that plaintiffs evidence is based on p erjury committed by the complainant who submitted on an affidavit, contradictory statements related to expenses incurred to obtain the gemological testing. The second element of prima facie consists of seven mislabeled and forged gemologic al reports of AGTA, a defunct company since July 2009. The identification reports were mislabeled as carved head 13 necklaces, terminology never used in the defendants description of the mala. AGTA forgery is based by using a photo attached to an identification report of a jade ite mala with the same photo used again attached to an identification report of another mala sold to the complainant 18 months later. See defendant response to petition, pages 7-8 (Record page A210, A211), and motion to reargue/renew, para 24, 25, p.17-18 (Record A365, A366). POINT II Gemological laboratory testing is not the proper method of identification of ornamental art jade carvings. Gemological identification reports are exclusively used for jewelry grade jadeite in jewelry industry and never used for identification of ornamental jadeite carvings. Ornamental jade carvings are identified solely by mineralogical testing as such carvings are composed of multiple minerals with a variable composition and the results could be different by examination of an item in different areas. See defendants Response to Petition, Exhibit 1, 6 and 8 (Record pages A218-A263; and Memorandum of Law page 7; Record A417 . Prestigious Throckmorton Gallery in NYC exhibited Neolithic nephrite jade artifacts with multiple mineralogical composition other than nephrite. See 14 defendant answer to Petition, exhibit 3, p1-9; Record A237-A245. The standard used in the ornamental art jade industry is determination of the hardness by Mohs test and density by specific gravity. More sophisticated tests as SEM (scanning electron microscopy with back scattered electrons are

(BSE), X Ray fluorescence spectrometry and cato-luminescence (CL),

used exclusively in sophisticated university laboratories and reserved for research only. Diagnosis of jade is done by dealers selling jade and large auction houses by visual inspection under magnification and performance of Mohs test. Jade art carvings require a tremendous amount of work and the price is

determined by quality of the carving rather than the stone from which it is carved. Imitation jadeite carvings are always created in softer stone than jade, reducing substantially the amount of labor. Wrongly and unsupported by evidence, the AG believes that gemological testing is the standard of jadeite authentication. Imposing on defendant that any future sales of jade should have a gemological testing attached denotes extreme ignorance and absurdity. Gemological testing was never done on ornamental jade carvings by any jade dealer or auction houses as it does not make sense. Jadeite is a metamorphic rock that contains several minerals and is impure. 15 In contrast, jewelry grade jade is in minute quantity measured in carat weight (200 mg), purer and the surface is in cabochon shape with a polished surface rather than carved. Tibetan mala are Buddhist rosaries carved in different materials in shape of Buddhist monks heads, are extremely intricate and demand high prices based on the quality of carving and not the materials they are carved from. POINT III There are unexplained marked discrepancies between AGTA gemological reports versus GIA reports. AGTA gemological reports identified all seven mala as species natural quartz, variety quartzite. This identification is inaccurate and misleading as quartz is a single mineral (silicone dioxide) while quartzite is a metamorphic rock containing several minerals with a variable composition. The presence and quantity of jadeite in the rock determines the appearance and physical properties of jadeite. As demonstrated in the scientific literature exhibited in defendants response to the petition, metamorphic quartzite known as meta-quartzite is synonymous with jadeite or jadeitequartzite. See Exhibit 6 of defendants response to Petition: Record A256A263; also affidavit in support of Motion to re-argument/renew, para 18, 19, 20, 21; Record A359-A364. Enhancement of jadeite is universal as 16 practically all imported jadeite is color enhanced by dye. See Motion to re-argument/renew, para 14-15; Record A356-A357. GIA gemological

reports refuted AGTA reports as identification of mala did not mention whatsoever species Quartz. GIA identification of the seven mala as species quartzite is compatible with presence of jadeite in the poly-mineral quartzite rock. Another discrepancy between these two gemological laboratories is the wide difference reported in the mala weights. The errors are not scientifically acceptable for gemological laboratories which report weight in carat, rather than grams. See para 27 of defendants affidavit in support of motion for re-argument/renew, page 19, 20; Record A367, A368. POINT IV AG failed to exercise due diligence in investigation of the contradictory statem ents of complainants affidavit with containing perjury and attempted extortion an d impeachment. In affidavit dated 7/20/09, complainant stated she paid $1540 for the AGTA tests and reports. See Exhibit 6, AG Petition; Record A78, A79. This statement contradicts two other statements she made which declared that $1000 was paid for the above tests. (Please refer to Spiridonakos e-mail dated 5/10/09 Exhibit B of defendants reply affidavit in connection to 17 defendants motion to re-argue/renew (Record A457) and her 5/18/09 email, Exhibit 17 of AG Petition; Record A164. The contradictory statements of the complainant impeach her as a witness. See CPLR R4514. Contradictory statements to the affidavit sworn under oath represent perjury and are punishable by law. The review of her affidavit under oath reveals other disturbing facts. Affidavit is a voluntary submission of facts that affiant knows personally and not written by somebody else who is not a direct witness of the alleged facts. Spiridonakos reveals in her affidavit details of AGs Petition Exhibits pages 2-3-4-5; Record A75-A78, as she prepared these herself; or perhaps her affidavit was in corroboration with the AG because it has nothing to do with the knowledge of the alleged events.

POINT V Complainant attempted to commit extortion of the defendant. It is evident from information provided by Spiridonakos through e-mails with defendant revealing that complainant conspired with her friend jeweler Tim McClelland to defraud the defendant. McClelland served as a messenger between the complainant and AGTA Laboratories. Rather than shipping the seven mala by registered mail to be tested by AGTA, 18 McClelland who apparently had previous close ties with AGTA, picked up the mala from Spiridonakos house in Winsted, Connecticut and delivered the items to AGTA, then picked them up from AGTA in NYC and brought them to his store. One might question why a jeweler with a store in Massachussetts, would travel to Winsted, Connecticut to bring jade items to AGTA in NYC, take them back from NY to Massachussetts and from there, Spiridonakos would pick up the mala, unless some undisclosed facts are not revealed as might be incriminatory. The chain of possession of seven mala was broken several times with possibility of substitution of mala. The incriminating fact is the e-mail written by Spiridonakos on 3/28/09 in which she stated that she received the mala back from AGTA (See AG Petition, Exhibit 11, page 1; Record A139) and gemological reports showed that mala were not made of jade. However, gemological reports were dated between April 14 to April 22, 2009 when mala would have been in the complainants house. Unexplained is the fact that at the request of defendant for gemological reports in email dated 3/29/09, Spiridonakos did not reply. See AG Petition, Exhibit 12, page 1, Record A141 Defendant wrote : I expect that each item bought from me has the above analysis done with the photo in order to assure that no substitution was done. See 19 AG Exhibit 12, page 1 (A141). Spiridonakos did not reply until 5/14/09 when wrote she had the reports. It is hard to conceive that a person claiming she was defrauded would wait more than 6 weeks to produce the

requested documents as proof of the allegations. The prosecutor failed to exercise due diligence to investigate circumstances underlying the allegations of complainant although he was previously informed about her possible wrong-doing. Spiridonakos produced an invoice dated 4/23/09 from McClelland of $1540 for jade testing and reports See Exhibit 14 of AG Petition; Record A158. Bill is not marked paid nor did complainant produce a canceled check proof that the bill was paid. Invoice was not signed and her address is not shown on the bill. Prima facie proof of damages clearly shows that Spiridonakos evidence does not satisfy requirements of CPLR R4533- A and cannot be admitted as evidence. McClelland bill specifies services that were not provided by his firm. In support of the conspiracy to defraud defendant is the inflated charge of $1540 for services. As AGTA closed its operation, the only basis of comparison would be with GIA that charges $78 for a gemological testing. Accordingly, the total fee for seven gemological reports should be only $546 and the amount of $1540 claimed by complainant appears fraudulent 20 and proof of attempted extortion. POINT VI The Court erred by accepting tampered, mislabeled and obviously forged evidence. The judge who granted the TRO recused due to the fact that his Principal Court Attorney was acquainted with defendant by representing the adversarial side in a former action. The recusal was tardy after irreparable damage was done to defendant. The order to show cause with request for TRO appears signed by judge on 8/7/09. The court could not find any transcript record of this proceeding and the judge stated in his recollection that in fact, there were no hearings. There were calendar calls. Court also stated that the order for TRO would be signed pending the return date, September 14, 2009 See Record A42. This raises the ethical issue that Principal Court Attorney reviewed

document preparations of TRO. Calendar call of 8/7/09 focused only about TRO and no other issues were discussed. CPLR 6313 states that upon granting a TRO, the Court shall set the hearing for pleading issues at the earliest convenience. The follow up calendar call of 9/14/09 was also only concerning TRO and no other issues were discussed. Last paragraph on TRO order regards the personal service upon respondent states that should 21 be on or before August 7, 2009 that is violating CPLR Rule 6313 (b) specifying that service of notice to Petition upon respondent shall be in the same manner as a summons (summons are always served prior appearance in the Court to allow defendant to prepare). Defendants evidence about forgery and mislabeling of legal documents was brought as defense in defendants response to Notice of Proposed Action of AG in June 2009 and obviously brought again at the calendar call of 8/7/09. Repetition of gemological testing was ruled by judge because the prima facie of plaintiff was defective and worth to be dismissed at calendar call. POINT VII AG failed to exercise due diligence in investigating AGTA for submitting forged and mislabeled documents. AG knowingly, maliciously and intentionally used fraudulent evidence consisting in AGTA gemological reports that were mislabeled and forged, in prosecution of defendant and specifically in the Court appearance of 8/7/09. AG failed to exercise due diligence in investigating AGTA (prior their going out of business in July 2009) for issuing altered documents. POINT VIII AG complaint was vague, irrelevant, conclusory and self-serving 22 lacking any material admissible evidence to support his allegations. The Court was biased and prejudiced toward defendant with complete disregard of submitted exculpatory evidence and violating constitutional rights of the defendant. This lawsuit is meritless at the extreme based on

concocted, unsubstantiated or fraudulent evidence. The holdings of 3 consecutive judges were erroneous in the basic respect that a bare allegation without supporting material facts is insufficient. A complaint that alleges fraud based on inference originating from incorrect and disputed facts is merely conclusory by stating that the plaintiff is entitled to relief under the substantial law. It is the facts alleged, not un-alleged that the plaintiff migh t later on prove a support for claim to relief. It is not proper to assume that the plaintiff can prove facts that were not alleged. Wilson v Schneitler 365 US 381, 383 (1961). Conclusory allegations in a complaint, if they stand alone are a danger sign that the plaintiffs case is weak and is engaged in a fishing expedition. See Moores Federal Practice para 26, 46 (1) at 26146.24, 3rd Edition (2003). The cost of legal defense is colossal and as illustrated in this case, legal representation by defendants lawyer was higher than the restitution. It appears that the prosecution was forcing the defendant to spend large 23 amounts of money for retaining legal representation when was sure that the money would be lost anyway when the courts biased decisions toward defendant would ignore and disregard the defense and rubber stamp AGs allegations as true. POINT IX Prosecution committed obstruction of justice by misleading conduct and fraud upo n the Court. Title 18, Part 1, Chapter 73, Sec. 1515 (a) (3) of Federal law defines misleading conduct: (A). Knowingly making a false statement; (C ) with intent to mislead, knowingly submitting or inviting reliance on writing or recording that is false, forged, altered or other ways lacking an authenticity; (D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark or other object that is misleading in a material respect, or (E) knowingly using a tricky scheme or device with intent to mislead.

In relationship to the federal law cited above inter alia, defendant reports the presence of an altered document used for prosecution by AG in his Petition (See article: Burmese jade: The inscrutable gem in Exhibit 18 page 14; Record A178, where a photo was over-printed over text that was clearly 24 exculpatory to defendant. See the cleared obliterated text in defendants Reply Affirmation of 10/2/09 (Record A337)) and Answer to Petition, p. 5,6. (Record A208, A209). The obliterated text states the jadeite, that is a pyroxene, may be composed of other minerals as amphiboles (nephrite jade), quartz, mica, etc. constituents of an admixture present in the rock. See Exhibit 9 of defendants Answer to Petition Record A281. Another mutilation and alteration of a legal document submitted by AG was obliteration by overprint of a photo over an exculpatory print. See Exhibit 18 p 7 of AG Petition (Record A171). The original un-obliterated page obtained by defendant is totally exculpatory and vindicates the defendant of ignorant and false charges. It shows that jadeite jade is a rock with variable composition: From a gemological standpoint what does all this means? Jadeite jade is essentially a rock with a variable composition. Although some have suggested a classification scheme for jadeite based on a variation in composition or structure (Ou Yang 1993; Wang 1994) this is impractical for gemology because of the sophisticated equipment that would be needed to distinguish the various categories. Federal law imposes severe penalties under Title 18, Part 1, Chapter 73, Sec. 1512: whoever knowingly usesor engages in misleading conduct toward 25 another person with intent to: (B) Alter, destroy, mutilate or conceal an object with intent to impair the objects integrity or availability for use in an official proceeding NYS law is less stringent about penal infractions, but declares that reproductions of original are not admissible as evidence if there are any

changes from the original. See CPLR Article 45, Rule 4539. Fraud upon the Court has been defined by the 7th. Court of Appeal as to embrace that species of from which does, or attempt to deface the Court itself, or is a fraud perpetuated by officers of the Court so that the judicial machinery can not perform in the usual manner its important task of adjoining cases that are presented for adjudication Kenney v. Cir. 387 F 3d. 689 (1968). Moores Federal Practice 2nd Ed. P. 512 sec. 60.23. In Bullock v US 763 F 2 d, 1115, 1121, 10th. Cir. (1985) the Court stated: Fraud upon the Court is fraud which is directed to the machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjuryIt is when the Court or a member is corrupt or influence is attempted or where the judge has not performed his judicial function- thus where the important functions of the Court have been directly corrupted. State of Michigan defines the offense of uttering in MCL 750.249: Any 26 person who utters and publishes as true any false, forged, altered or counterfeit record, deed, instrument or other writing specifically knowing it to be false, altered, forged or counterfeit, with intent to injure or defraud is guilty of uttering and publishing. The uttering is also the act of offering a forged document to another, when the offeror has knowledge that the document is forged. See State v Greenleaf 227 NC 651, 657, 159 SE 2d, 22, 26 (1968). In this suit the uttering was represented by plaintiffs malicious, intentional and willful offering to the Court forged document with full knowledge that document was forged and uttering consisted in offering to the Court of forged and mislabeled fundamental evidence that represented the ground upon which the TRO was granted and later, granting of permanent injunction and Judgment. POINT X The Court erred in the decision of not accepting defendants pleadings and the act

ion is an example of extreme bad faith, extreme bias, extreme prejudice based on allegation of being not sworn or inadmissible form as excuse for denials of defense and should be considered a misca rriage of justice. Verified pleading as a declaration under penalty of perjury i n New York State Courts may be utilized as an affidavit whenever the latter is r equired. The Supreme Court of Dutchess County ignored defendants pleadings and 27 also the motions for dismissal enclosed with the pleading answer and replies. AG in his Reply Affirmation instructed the Court to disregard defendants response to his Petition because it is not in admissible form; if the Court considers it, it should be readily apparent that the State is entitled to summary judgment because the response is largely irrelevant and utterly fails to raise a triable issue of fact. The Court complied with his request and the Decision/Order/Judgment of justice Thomas Dolan represented a copy of all plaintiffs allegations and requests. What AG rants about? To deny the rights of a person of his own defense and representation effectively negates every legal assertion and represents flagrant violation of 14th. Amendment of USC. Proceedings were summary proceedings that are synonymous with motion for summary judgment. There was no motion for summary judgment in this case and the prosecutor was also the judge and executioner for pecuniary assessments of fines, interest of 9 % retroactive for several years regardless of statute of limitations, a permanent injunction granted without service to the defendant, no hearings related to the injunction or other issues, etc. AG and the Court ignored all defense documents and motions of the defendant because were not sworn. Defendant escaped the communist hell more than 50 years ago and this trial 28 was not different than a trial held in North Korea or Cuba. Defendant strongly protests about ethical infractions of the prosecutor and the Court. Fed R. Civ. P. 26 (c) (1) states: Evidence is essential if the Court is to fulfil l its fact finding function. The Court for good cause issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue

burden or express there is no justification for refusing to admit evidence that one party provided, on base that the evidence was not submitted properly to the Court. Trial Court did not cite any authority in support for decision of not allowing the evidence to be considered and that the defendants motions for dismissal were disregarded for not being sworn. If the documents would not be submitted properly, the fact finder had the obligation to return the documents and ask to be re-submitted in the proper form. Failure to submit documents in the proper form is not a fatal error that allows a fact finder to grant a summary judgment to adverse party as this affects his impartiality. CPLR Article 4, Rule 405-Special Proceedings provides that correction of defects on paper could be made by any party by motion. CPLR Article 20 Rule 2001 specifies that at any stage of the action Court may permit a mistake, omission, defect or irregularity to be corrected, if a substantial right of a party is not prejudiced. Nevertheless, there was no 29 error in submitting declarations in lieu of affidavit!. Both judges that ordered decision, order, judgments against the defendant fatally prejudiced defendants rights for a fair trial by suppressing or not allowing evidence to be submitted and such acts are to be considered miscarriage of justice. Extreme bias and prejudice of Court was demonstrated by allowing a fatal error of plaintiff as failure to acquire jurisdiction over defendant by failure to service of Petition. On the other side, the Court violated the statutes of New York State, violated defendants constitutional right by suppressing evidence, not allowing defendant to present evidence by wrongly declaring his responses as not sworn or not admitted in the proper form and by not responding for motions of dismissal ignoring defendants pleading and motions for alleged formal defect. It was not the defendants errors or formal defects, but rather the Courts fatal errors. Affidavit is an antiquated form of attesting the truthfulness of a statement by swearing in writing and notarized by a notary public. Blacks Law

Dictionary defines affirmation as a solemn formal declaration under penalty of perjury that a statement is true, without an oath. All the documents submitted by defendant were in form of Declaration/Affirmation that is legal in New York State and many states legislation and also US. Federal Courts 30 that accept declaration under penalty of perjury for all Court proceedings. Title 28 USC Sec. 1746. Unsworn declarations under penalty of perjury clearly specifies that where a sworn oath, affidavit, etc could be subscribed with an unsworn declaration with the same force and effect. Another Federal law, Title 35 USC Sec. 25 also provides that a declaration in lieu of oath could be subscribed in any instance where the oath is required. Other than the Federal Courts, many States including Washington, Oregon, Hawaii, Utah, Nevada, etc. use declaration under penalty of perjury in lieu of affidavit. Consistency of local court rules is to conform with Federal Statutes as is found in 28 USC Sec 2071 that Federal Law and precedent rules of practice and procedures are to take precedent over local rules. Supreme Court of US and all courts established by the Act of Congress may prescribe rules for the conduct of their business. Such rules shall be consistent with the Act of Congress and the established rules of practice and procedures. 28 USC Sec 2071 provides that local courts may make local rules. However, such rules may not be in conflict with Acts of Congress. The right to file a Petition and the right to answer to the Petition per se with motions included in the answer per se and specified as declaration under penalty of perjury is a right to ensure truthfulness. 31 Denying the right to defend represents not only abuse of discretion, but clear miscarriage of justice. Briggs v Goodwin 569 F 2d 1, 10 (DC Cir. 1977). This reflects the clear intention of the Congress to eliminate the requirements of outmoded notary seal. CPLR, Rule 105 (a) states that the definitions in this section apply to the civil practice law and rules. 105 (b): action and special proceedings. The word action includes a special

proceeding and the words summons and complaint include the notice of petition and the petition, respectively, in a special proceeding. 105 (u) clearly specifies: Verified pleading. A verified pleading may be utilized as an affidavit whenever the latter is required. POINT XI The Court committed miscarriage of justice by error of ignoring defendants motion s for dismissal of action. Defendants Response to Petition included solid evidence as scientific textbooks and articles in support of defendants defense. In his Response, defendant moved for dismissal of action based on CPLR Article 32, Rule 3211(a). Motion to dismiss cause of action. 1. A defense is founded upon documentary evidence. Defendant submitted copious documentation of scientific articles, textbooks and publications that decisively refuted AGs fabricated, false allegations completely void of any logical or scientific 32 understanding of the matter. The motion to dismiss the complaint by providing documentary evidence utterly refutes plaintiff s allegations, thereby conclusively establishing a defense to the action as a matter of law. Goshen v Mutual Life Ins Co of NY, 98 NY 2d, 314, 326 (2002). Scadura v Robillard 256 AD 2d 567 (1998). R3211 (a) (7). The pleading fails to state a cause of action. Petitioner brought 2 causes of action identical in content by stating accusations without substantiation and examples where defendant repeatedly and persistently engaged in fraud. It looks like a rubber stamp of standard accusations used in all cases of alleged fraud AG prosecutes. Nevertheless, AG fails to give examples where such infractions of law occurred. Court gravely erred by accepting such bare allegations of fraud without supporting facts that is insufficient for pleading. In landmark case of Guggenheim v. Ginzburg, 43 NY 2d 268, 276, (1977), Court held that when evidentiary material is considered, the criteria is whether the proponent of the pleading has a course of action, not whether he stated one, and unless it has been shown that a material fact as claimed by the pleader

to be one is not a fact at all, and unless it can be said that no significant dispute regarding exists. 33 AG Affirmation is based on hearsay ground and lack of knowledge. The AGs knowledge was acquired from hearsay upon hearsay and is mainly based on assumptions, inconsistent subjective opinions, intellectually defective papers or poor and false interpretation of science due to sheer ignorance of the subject and are all pure conclusory. In contrast, defendants declaration under perjury is based on personal knowledge of the facts (certainly not conclusory) consisting in a series of factual statements asserting uncontested evidence, well substantiated by law. To survive a motion to dismiss, a complaint must contain sufficient factual matter accepted as true to state a claim to relief that is plausible on its face . See Ashcroft v Iqbal 129 SCt. 1937 (2009). In Bell Atlantic v. Twombly 1550 US 544, 555, 127 SCt. 1955, Court held that Factual allegations must be enough to raise a right to relief above the speculative level. Further more: the tenet that a Court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. The threadbare recitals of the elements of a course of action supported by mere conclusionary statements do not suffice Ashcroft v. Iqbal 29 SCt 1937, 1949, 173 LEd. 2d 868 (2009), citing Twombly 550 US at 555. A conclusionary allegation does not supply facts adequate to show 34 legality. The Court in Iqbal rejected the allegations as nothing more than legal conclusions and had no role with the complaints entitlement to relief, urging Courts to exclude from consideration statements that do not reveal factual data, but merely conclusions of law masquerading as facts. CPLR 3211 (a) (8) provides the Court has no jurisdiction of the person of the defendant unless served. AG never served the defendant with a notice of Petition and this represented a fatal error sanctioned by dismissal of

action not only in NY States courts, but also by federal courts and all States courts. The concept of notice is critical to the integrity of legal proceedings. Due process forbids legal action against a person unless the person has been given notice and an opportunity to be heard. Anyone who was not served is not bound by the decision in the case. Considering the biased and prejudiced court, defendant considered that could not take the risk of default by no appearance in the Court. CPLR 3211 (a) (10). The Court should not proceed in the absence of a person who should be a party. Defendant is entitled under 6th. Amendment of USC to be confronted with the witness against him and cross examine. The witness is the person who conspired to defraud, extort money and cause physical and emotional harm, defamation of character and reckless 35 disregard of the truthfulness of the matter. Under CPLR 3211(c), defendant moved for dismissal of action in the Answer to Petition but the motion was ignored and not answered by the Court in violation of law and represented miscarriage of justice. According to this paragraph, a motion to dismiss enclosed in the defendant answer was supposed to be treated as a motion for summary judgment and a hearing for the motion was supposed to be set up. This was never done and represents another fatal error committed by the Court. Defendant moved again for dismissal as allowed in CPLR 3211 (e) by motion to plead over and dismissal of action based on the results of GIA that conclusively refuted AGTA findings destroying plaintiffs prima facie; however the Court did not respond to defendants motions. Failure to serve the Petition by the plaintiff is not a mere defect by not serving the notice properly that could be repaired, rather a fatal error that demands vacatur of the lawsuit as no notice was served at all. CPLR 3211 (g). In his motion for dismissal, defendant has demonstrated that the action subject to the motion is an action involving public petition and demonstrated malice by the plaintiff as shown in Article 7 Rule 76 A of

the Civil Rights Law. 36 POINT XII The prosecutor committed contempt of Court by releasing to media material that c reated substantial risk to affect the Court proceedings. Publication of material deemed likely to jeopardize a fair trial represents contempt of Court. Under the contempt of Court Act 1981, it is a criminal contempt of Court to publish anything that which creates a real risk that the cause of justice in proceedings may be seriously impaired. It applies only when proceedings are active and prevents the newspapers and media from publishing material too extreme or sensational until the trial is over. Section 2 of the Act specifies law applies when publishing of material creates a substantial risk of serious prejudice to a trial. The release to media by AG on 10/14/09 substantially affected the Court proceeding and defamed the defendant by malicious false statements, use of forged and mislabeled legal evidence, fabricated false evidence and acquiring false witness statements. Similar cases of prosecutorial misconduct are found in common law. See Milstein v Cooley 257 F 3d 1004 (9th. Cir 2001) in which a criminal defense attorney sued under Title 42 USC Sec 1983 for due process violations and malicious prosecution. This landmark case established the doctrine that the prosecutors acts when not done in their role as advocates are not shielded by absolute immunity. Milstein complaint alleged detailed defamatory 37 statements made by DA to the press. Limited availability of absolute immunity is indicated in Buckley v. Fitzimmons 509 US at 262, 263, 275, 276 113 SCt. 2606 (1993), The plaintiff in Buckley had also asserted a claim based upon false statements made to press. The Court refused to grant absolute immunity to the prosecutor based on the fact that comments to the press have no factual ties with the judicial process just because they are made by a prosecutor. Id at 277, 113, SCt. 2606. In two releases to media, first on October 10, 2009 and second on November 10, 2009, AG made false malicious statements with clear intent

to cause harm to the defendant. Knowingly and intentionally, AG released false statements when the plaintiff knew that the allegations are not true as: Mircea Veleanu sold artifacts online claiming that they contained high quality and expensive jade, when they actually were made of quartz or glass. He then refused to provide refunds or acknowledge that the pieces were fake. The above allegations clearly state with authority that the items actually were misrepresented when there was no objective proof to support such allegations. Another statement that shows persistence in claiming falsity of an allegation that was prior absolutely un-proved by scientific evidence is: Veleanusold two strings of jade Tibetan prayer beads malas 38 (sic) to a consumer, one of which he falsely claimed was made of fei tsui jade, an extremely valuable and high quality type of jade. Ignorantly, and persistently, despite the evidence to contrary, complainant and AG claimed that fei tsui means imperial jade. The evidence showed in the answer to the Petition showed decisively that fei tsui in Chinese means jadeite. The highly defamatory statements as: He called himself an antique dealer but he really dealt in lies and deceit said Attorney General Cuomo. Further: This individual preyed on collectors of expensive antiques and artifacts and didnt deliver on his promises said Attorney General Cuomo. The falsity of the publication is essential to render a publication a libel defined as any publication injurious to the reputation of another, injure a person in his business or occupation, or express him to public hatred, contempt, ridicule or disgrace. Bergstrom v Ridgway Thayer Co., 103 NY Supp, 1093, 1094, 53 Misc. Rep. 95. It is libelous per se to charge a person with but a single commission of an act, if the act itself amounts to or imports moral delinquency or disreputable conduct. Church v Tribune Assn 119 NY Supp 885, 886, 135 App. Div. 30. The evil intention and recklessness disregard to the truth characterizes AG intention to destroy the reputation and defaming the character of the 39

defendant accusing him of crimes that he did not commit. Defendants pleading for innocence based on incontrovertible evidence was completely ignored by Supreme Court of Dutchess County, or discarded on base of fabricated technical errors that even if could exist, would be corrected as being a meritorious case. Releases to media were not only maliciously made to injure the reputation of defendant, but were purposely done as a condemnation and vilification of the defendant with intention to be subsequently used as a document to solicit customers that bought jade from defendant to request refunds. According to common law, AG administrative function outside of the Court proceedings and consisting in releasing to media inflammatory and false statements does not qualify him of absolute immunity. Qualified immunity which shields governments officers from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights See Harlow v Fitzgerald 457 US 800, 818, 102 SCt. 2723, 73 Led 2d. 396 (1982). In Hartman v Moore 547 US 250, 126 SCt. 1695, 164 Led 2d 441 (2006), the Court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in Hartman concerned the elements a plaintiff must plead and prove in order to win. AG violated NY DR 7-107 (A) regarding the trial publicity: A 40 lawyer participating in or associated with a criminal or civil matter shall not make an extra judicial statement.. If the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. AG also violated NY EC 7-33: the release by a lawyer of out-of-court statements regarding an anticipated or pending trial may improperly affect the impartiality of the tribunal. AG violated Article 21, R2103-A Confidentiality of addresses in civil proceedings. In the two releases to media, AG revealed private addresses of the defendant and disclosure of such addresses posed an unreasonable risk to the health

and safety of defendant. Release to media of November 10, 2009, AG announced that his office won a lawsuit against the defendant. However, the decision/order/judgment of Judge Thomas Dolan was dated and signed on November 14, 2009. This is an indication and evidence that AG had ex parte communication with the judge 4 days prior the judgment signing and accordingly, the decision/order/judgment should be considered void. POINT XIII AG violated the gag order on media imposed by the Court. In the release to media of October 15, 2009, AG violated the gag on media 41 release regarding information pertinent to TRO. The following sentence is significant: The Attorney General lawsuit seeks to permanently bar Veleanu from selling artifacts unless they can be verified as authentic and obtain restitution for consumers he defrauded, plus penalties and costs to the state. This sentence as he is referring to TRO, signifies that AG intends to obtain from a temporary relief order, a permanent injunction. POINT XIV The Court has no territorial jurisdiction of this matter. Stare decisis is the p olicy of the Courts to stand by precedent and the case should be reversed. Super stare decisis is the term used for important precedent legal cases that are resistant or immune of being overthrown. See Landes, William & Posner, Richard: Legal precedent: A theoretical and empirical analysis. 19 Journal of Law and economics 249, 251 (1976), Stare decisis ensures certainty and consistency in the application of law. Existing binding precedents from the past applies in principle to new situations by analogy. In super stare decisis landmark case of Goshen v Mut Life Ins Co of NY, 98 NY 2d 314, 346, NYS 2d 858 (2002) is indicated that NYS AG is allowed broad enforcement powers under the statute General Business Law Sec 349. Plaintiff in Goshen concedes that he lives in Florida, purchased his 42 insurance policy in Florida through a Florida insurance agency. For purpose of Law 349 any deception took place in Florida, not New York. The Court

of Appeals of NY held that the statutes intent is to protect NY State consumers in their transactions that take place in NY State. It was not intended to police the out-of-state transactions of New York companies, nor was it intended to function as a per se bar to out-of-state plaintiffs claims of deceptive acts leading to transactions within the state. In another super stare decisis, landmark case of common law, Scott v Bell Atlantic Corp 282 NY 2d 180, 726 (2001), Scott and other plaintiffs sought relief for acts they alleged were deceiving. Court of Appeals of NY held that out-of-state plaintiffs were not eligible to seek relief in NY State as their complaint does not state any cognizable cause of action. As to NY State plaintiffs, however, the allegations were sufficient to withstand a CPLR 3211(a)(7) challenge. In this lawsuit, the complainant is not a resident of NY State, lives in Connecticut, paid all her purchases through Paypal, a company located in California, and acquired all her purchases in Winsted, Connecticut at auctions held by GoAntiques.com, company located in Ohio, or purchased from Objets DArt Uniques, whose website is maintained, 43 provided and located within GoAntiques.com in Ohio. According to common law precedent, the complainant is not entitled to seek restitution and relief under the law of NY State under GBL 349, 350. Similarly, the three customers who asked for a refund as a result of AG solicitation or investigation are not eligible for relief under GBL 349, 350 as all three are not residents of NY State and bought their jade at auctions held by GoAntiques.com located in Ohio and where the defendant was only a consignor and not a seller. POINT XV This lawsuit does not qualify to be eligible under Executive Law 63(12) that pro hibits persons from engaging in repeated or persistent fraud or illegality in th e conduct of any business in New York and the case should be reversed. . This lawsuit does not fulfill the requisites of Executive law 63(12) that

defines repeated as repetition of fraudulent or illegal acts or conduct which affects more than one person. The common law precedent standard to be applied is the landmark case of Wilco where the Court held that: Executive law Sec. 63 (12) defines repeated as repetition of any separate and distinct fraudulent or illegal act, or conduct which affects more than one person. Clearly Wilcos conduct was repeated within the meaning of the statute as it affected numerous individuals. See State v Wilco Energy 44 Co.284 AD 2d 469 (2001). The customers requesting a refund did not claim that were defrauded. POINT XVI Court erred in not dismissing an abandoned decision and judgment that was not fi lled and recorded within 60 days after decision. AG violated the constitutional rights of the defendant for a speedy and fair trial under 6th. Amendment of USC. Decision/Order/Judgment of Judge Dolan dated November 14, 2009 following a bench trial was never entered and according to NYC CRR 202.48 is considered to be abandoned. The time limitation for the submission of Judgment or Order contained in NYCRR 202.48 is specified as 60 days. After almost 10 months from the decision/judgment of 11/14/09, the plaintiff submitted a proposed judgment that was signed by a different judge on 9/29/10. As the new judge signed a completely different Decision/Order/Judgment and the first Decision/Order/Judgment was abandoned, it appears that the legal action as a new lawsuit was never started with the legal procedures involving with new suit. In addition, Judge Dolans Decision/Order/Judgment of November 14, 2009 was never served to the defendant. The delay in failure to prosecute of plaintiff violated constitutional rights of the defendant for a fair and speedy trial under 6th. amendment of USC. All 45 proceedings of this lawsuit were held in the judges chambers, other than first 2 calendar calls for the TRO. Despite that 4 successive judges were assigned to this case, I never saw any judge other than the first judge who

granted the TRO and decision/order judgment is a violation of CPLR 5704. The Court did not exercise its discretion by dismissing the action as abandoned due to the large interval of time since the first judgment until the entry of second judgment. After retirement of Judge Dolan, another judge was assigned and apparently declined the assignment. Finally, judge Pagones was assigned to this dormant case. It appears that if a case is abandoned, a new action should start from the beginning as a new case. See CPLR R2220 (a) and CPLR R2219(a). Judge Dolan never directed to submit or settle the case after the negotiations for settlement failed. The precedent of 4th. Division of NYS Supreme Court held that the 60 days rule is applicable even when there is no directive to submit or settle the order or judgment. All is required is to enter judgment under courts motion. See Hickson v. Gardner 134 AD 2d 930, 931. When the Courts decision expressly directs a party to submit or settle an order or judgment, the Court directs the prevailing party to draw the order and present it to the judge for signature. See Siegel Practice Commentaries McKinneys Cons Laws of NY 46 book 7 B CPLR 2220.4 at 170. Failure by the prevailing party to expeditiously submit judgment for entry carries its own sanctions including the probability to execute the judgment. POINT XVII The court violated defendants rights under 14th. Amendment, 6th. , 7th. , and 8th . Amendment of US Constitution. Right to confront a witness against defendant, cross examine him, right to be judged by an impartial jury and be informed about the nature and cause of the accusations were violated by the Court. 14th. Amendment that nor shall any State deprive any person of life, liberty or property without due process of law, nor the equal protection of law was violated at almost every stage of this lawsuit. Federal legislation was enacted in 1871 and the most important provision is 42 USC Sec 1983 that made equitable relief available to those whose constitutional rights had been violated by an actor acting

under State authority. 2 landmark court decision gave remedies to parties deprived of constitutional rights, involving privileges and immunities of an officer abuse of his position under section 1983: Monroe v Pape 365 US 167 (1961) and Monell v Dept. of Social Services of City of NY 436 US 658 (1970). The misuse of power made possible because the wrongdoer is clothed with the authority of state law and is acting under the color of state 47 law. See US v Classic 313 US 299, also Screw v US 325 US 91, pp 183, 187. Section 19 of the criminal code : making a crime to conspire, to injure or oppress any citizen in the face of exercise of any right and privilege secured to him by the Constitution. USC under Title 18, Section 20 involves the deprivation of the right to equal protection of the laws guaranteed by the 14th. Amendment of USC. Under Title 18 Part 1 Crimes, Chapter 79 Perjury Sec 1623: False declaration before grand jury or Court provides that whoever under oath or in any declarationstatement under penalty of perjury as permitted under Sec 1746 of Title 28 of US code in any proceedings before any Court knowingly makes any false material declaration or matter or uses any of the information, including any book, paper, document, record, recording or any other material, knowing the same to contain any false material declaration shall be fined under this Title or imprisoned not more than 5 years or both. Defendant established the prima facie under 42 USC Sec 1983 by proving that: 1. The action occurred under color of law and, 2, The actions were deprivations of constitutional rights and/or federal statutory rights. Any State action detrimental to the defendant under 14th. Amendment is action 48 under color of law. Martin A. Schwartz & John E. Kirklin 1 A Section 1983. Litigation, Claims and deferences para 5, 10 at 520 3rd. Edition 1997. Supreme Court had determined that State action is present when judges are asked to enforce or authorize a discriminatory practice. See E. G. Edmondson v. Leesville Concrete Co. 500 US 614, 627, 628 (1991); Shelley

v Kramer 1334 US 1, 22, 23 (1948). In both these cases the Court recognized that the discrimination would not be possible without judicial power and in this context deprivation of rights. POINT XVIII The abuse of power and abuse of authority was used in the prosecution of this ca se. The legal abuse and misfeasance in the office consisted in vexatious litigation brought in bad faith, regardless of being not meritorious, solely to harass an innocent person highly honored in the local community. Defendant never used the term doctor in selling any item or in his published books. Intentionally and maliciously, the plaintiff used the term Dr Veleanu with obvious purpose to inflict damage to personal, moral reputation and outstanding position of the defendant in the community. Plaintiffs intention is to destroy physically, emotionally and financially creating shame, disgrace and reputation damage to a respected researcher 49 nationally and internationally known for his scholar contribution to the advancement of oriental arts. Defendant practiced medicine for more than 20 years in Hudson Valley area and is a life member of American College of Surgeons and Life member of American College of Obstetricians and Gynecologists. The urge to retain legal services was made in bad faith and evil intention knowing that legal services would cause enormous cost to defend a cause that appeared to be lost from the beginning by suppression of constitutional rights well knowing that the legal defense would be dismissed by abuse of discretion of the Court. POINT XIX The plaintiff was not entitled to summary judgment due to the fact that are nume rous triable issues of fact. The Court erred by granting summary judgment to the plaintiff and this represents a miscarriage of justice. Summary judgment is granted to a plaintiff when there are no triable issues of fact requiring a trial to resolve these issues. In this lawsuit there were numerous triable issues of fact that make the summary judgment

unacceptable and definitely a biased, prejudiced and malicious act when all AG allegations were disproved by strong documentary evidence. As proved, AG allegations were based on forged, mislabeled, fabricated and false evidence that would shake the conscience of any fact finder requested to 50 grant summary judgment on base of such faulty evidence. The numerous triable issue of fact additional to the evidence already proved in the defendants pleading, response to petition and replies are testimony that a summary judgment should not be granted. The Court committed a miscarriage of justice by ignoring the issues of material fact that were triable issues exhibited in the defendants affidavit in support of motion to reargue/renew and Memorandum of Law. The following genuine triable issues of fact were listed in the Memorandum of Law in Support of Respondent Mircea Veleanus motion for leave to Renew/Reargue as follows: 1.The actual composition in the mala; 2. Dr. Veleanus awareness of dye in the mala; 3. The sufficiency of testing done by the AGTA and GIA laboratories; 4. The significance of and reasons for the discrepancies in the findings on the mala by AGTA and GIA labs; 5. Dr. Veleanus meaning in using the term fei tsui 6. Dr. Veleanus basis for representing the mala as natural and not dyed; 7. Dr. Veleanus basis for representing the mala as jadeite and 8. The offer to Ms. Spiridonakos of a refund by Dr. Veleanu 51 POINT XX Miscarriage of justice was displayed and carried throughout in the trial court. The trial Court was in complete disregard and lack of consideration to the merits of this lawsuit and lack of regard to the legal procedures and fairness leading to a travesty of justice. Defendant did not see any of the successive 4 judges involved in this case other than the first judge who granted the

TRO in a calendar call. The prima facie consisting in legal documents was forged and mislabeled, in addition to fabricated and false testimony of one complainant and regardless to all the above, the TRO was granted anyway. The judge who granted the TRO recused for conflict of interest due to the fact that his Principal Court Attorney represented an adversary party in a matrimonial legal case. It is not clear if the Principal Court Attorney prepared or reviewed the TRO . The recusal was however, tardy after irreparable damage was done. The elements of miscarriage of justice include: 1. The single adversary witness who is the complainant gave contradictory statements compatible with perjury and impeachment in her affidavit. 2. Biased editing of evidence. 3. Attributing to the defendant the terms of 52 conclusory, irrelevant, self-serving, nomenclature that amazingly fits the description of plaintiffs evidence. 4. Fabrication of evidence. 5. Prejudice toward the class of people to which defendant belongs. 5. Contaminated evidence and mislabeling of evidence. Decision, orders and judgment that are arbitrary, capricious, unconscionable, made on unreasonable grounds or without any proper consideration of the merits based on incontrovertible evidence brought by defendants pleading making the Courts decisions to be based on merely erroneous understanding of the facts. Defendant had all his defense disregarded, misapprehended, or overlooked for the unreasonable justification that the answer to Petition and Replies were not sworn. The above ruling by the Court was malicious, false, misleading, biased and fundamentally prejudicial. CPLR Article 1 Para 105: Definitions clearly states in 105 (u): Verified Pleading. A verified pleading may be utilized as an affidavit whenever the latter is required. The Court violated CPLR R409 regarding hearings. There were no hearings of any kind held in this lawsuit other than a calendar call for the granting of TRO and a follow up calendar call regarding the TRO only (In his recollection used as statement in lieu of transcript, judge Brands

sustained that TRO was signed at the second calendar call). 53 POINT XXI The court did not have personal jurisdiction upon defendant due to the fact that the Notice to Petition was never served to defendant. AG failed to obtain personal jurisdiction upon defendant pursuant to CPLR Article 32; R3211 (a) (8). Thus, the complaint of the plaintiff does not state any cognizable cause of action. See Leon v. Martinez, 84 NY 2d 83, 614 NYS 2d 972, 638 NE 2d 511 (1994). CPLR Article 3; R306 B specifies that if service is not made upon a defendant within the time specified in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant. CPLR R5015 provides relief from judgment or order in (a) (4) upon the ground of lack of jurisdiction to render the judgment or order. Most important is the Article 3; R320 c. Defendants limited appearance. It states that when the courts jurisdiction is not based upon personal service on the defendant, an appearance is not equivalent to personal service upon the defendant. As the defendant was lured to appear for the calendar call and the limited appearance was related to granting TRO and not personal service to Petition, the court never achieved personal jurisdiction. Accordingly, dismissal should be done on base of CPLR 320 c. Additionally, CPLR R5704 review of ex parte orders (a) by appellate 54 division specifies that the appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge from which an appeal would lie to such appellate division. POINT XXII The plaintiff violated New York legal ethics and discipline rules in many instan ces in this lawsuit. 1. NY DR 7-102 (A) (1) defines wrongful litigation as that which is merely to harass or maliciously injure another. 2. NY DR 7-102 (A) (1)prohibits a lawyer from taking any action in

litigation that would serve merely to harass or injure another in situations where the lawyer engages knowingly in the prohibited conduct and also in situations where it is obvious that the suit is malicious and harassing. Excessive punitive damages prayer: in re Benjamin 129 AD 2d 886, 514 NYS 2d 526 (3rd. Dept 1987) a lawyer violated DR 7-102(A) (1) by seeking grossly excessive punitive damages in two small contract actions in order to harass and intimidate defendants. 3. NY DR 7-102 (A) (4) provides that a lawyer shall not knowingly use perjured testimony or false evidence. 4. NY DR 7-102 (A) (4) prohibits the lawyer from offering evidence the lawyer knows is false (perjured testimony or false evidence). 55 5. NY DR 7-102 (A) (5) prohibits a lawyer from making knowingly false statements of law to anyone, a court, opposing party, witness, client, etc. 6. NY EC 7-26 - A lawyer who knowingly participates in introduction of fraudulent, false or perjured testimony or evidence is subject to discipline. Discovery of Document tampering in administrative proceeding: NY State Bar op. 700 (1998). 7. Under NY DR 7-102 (B) (2), an attorney is obligated to report fraud on a tribunal. 8. NY DR 109 (A) provides that a lawyer shall not suppress any evidence that the lawyer has a legal obligation to reveal. 9. DR 7-102 (A) (6) provides that a lawyer shall not participate in the creation or preservation of evidence when the lawyer knows or is obvious that the evidence is false. 10. NY EC 7-27 explains that because it interferes with the proper administration of justice, a lawyer should not suppress evidence that the lawyer has a legal obligation to reveal or produce. 11. NY DR 7-107 (A) and (B) define and describe the types of statements which constitute impermissible trial publicity. POINT XXIII 56

The imposition of severe punitive fines represents a violation of 8th amendment of USC. The judgment in favor of the plaintiff imposed excessive punitive fines that represents a clear violation of 8th. Amendment of USC: nor excessive fines imposed, nor cruel and unusual punishment inflicted. The fines by judge Pagones in his decision/order/judgment, were excessive, also added interest of 9 % retroactive for several years were imposed upon the defendant at the urge of AG only to punish the defendant for submitting through his attorney a motion for re-argument/renew. POINT XXIV AG violated civil rights of the defendant. The following civil rights of the defendant enclosed in the CVR were violated: 1. Sec 10. Article 2. Bill of Rights. Justice to be administered without favor and speedily: Neither justice nor right should be sold to any person, nor denied, nor deferred; and writs and process ought to be granted freely and without delay, to all persons requiring the same, on payment of fees established by law. Art.2. Fines must be reasonable and imposed only on cause. Art.5. Right of privacy. (Confidentiality of address was violated by AG). 57 Art 7. Vexatious suits. Punishable as misdemeanor. CONCLUSION This legal case is lacking both legal and factual grounds for consideration in a court of law. A. Legal fallacies. GBL 349 and 350 that are part or related to Executive law 63 (12) do not apply to this lawsuit that is frivolous. 1. The above law, or set of laws apply in exclusivity to New York State residents and do not apply to residents of other states or the whole world as held in Court of Appeal of NY Super Stare Decisis precedent of Goshen v

Mut. Life Ins Co 98 NY 2d 214, 346 (2002); and, Scott v Bell Atlantic Corp. 282 NY 2d, 180, 726 (2001), as discussed above in Point XIV. 2. Executive law 63 (12) refers to repeated as repetition of fraudulent conduct or acts. This case involves a single case of alleged fraud and per se does not qualify to GBL 349 and 350. This is pertinent to Stare Decisis case of State v Wilco Energy Corp. 284 AD 2d, 469 (2001) where the Appellate Court of New York held that the alleged fraudulent conduct or acts has to involve more than one individual case. See Point XV. 3. Under Consumer Protection Act, AG has to show that the alleged practice 58 or acts was consumer oriented and misleading. This case involves a single case of a transaction dispute, not general consumer oriented and originating from customers ignorance and wild imagination that an ornamental jadeite carving is a jewelry item. Defendant did not misrepresent the items sold as jewelry grade, or jewelry items. AG wrongly alleged that a jadeite Buddhist rosary mala sold to the complainant under the name of fei tsui, that in Chinese means jadeite, is synonymous with imperial jade, term used in jewelry business to describe a very expensive type of jadeite. AG claims that the complainant was deceived by this misrepresentation and she relied on this deception to purchase from the defendant additional 5 jadeite mala. The alleged deception culminated in complainants submission of all 7 rosaries mala to gemological testing done by AGTA Laboratories, a company that went out of business a few weeks after above mentioned testing. Gemological testing is done exclusively in jewelry grade of semiprecious or precious stones and is never done in the art carvings for the simple reason that ornamental jade carvings are rocks that contain several minerals other than jadeite, have a variable composition and the results could be variable depending on the area where the testing is done. Articles, excerpts offered in the defendants affidavit contains a Group discussion of 59 Friends of jade entitled Jade anomalies. In this discussion it is reported

that an examination of a cicada carving revealed to be constituted from jadeite when checked in a specific area of the stone but on the back of the carving found to be serpentinite. See Record page 401. AGTA findings of species quartz was refuted by GIA Laboratories that reported the finding of quartzite and no mention of quartz whatsoever. Quartzite is a metamorphic rock known to contain in its composition jadeite and is named quartzite/jadeite or jadeitite. Enhancement of color by dye is present practically in all imported semi-precious stones from China. Defendant did not know about the enhancement of color of the mala that is usually not discerned by visual inspection, other ways would have disclosed this to the consumer. A business is not required to anticipate the individual needs of consumers or to guarantee that each consumer has all information relevant to his or her specific situation. Oswego Laborers Local 214 Pension Fund v Marine Midland Bank 85 NY 2d 20 (1995). The Court in Oswego stated also: However, when the business alone possesses material information that is relevant to the consumer and fails to provide the information, it can be said to have acted deceptively. 4. AG need not establish injury to consumers to obtain injunctive relief. 60 Porwick v. Fortis Benefits Insurance Co. 2004 US Dist Lexis 24432 (SD NY2004). However, to establish a claim for restitution or damages, AG will be required to show such injury. Oswego Laborers Local 214 Pension Fund v Marine Midland Bank 85 NY 2d, 20 (1995). There was no injury and complainant was offered a refund settlement she turned it down. 5. Defendant never advertised any of the items placed on his website Objets DArt Uniques, or any other websites and as such GBL 350 does not apply to this case. While GBL 349 deals generally with deceptive acts or practices, GBL 350 is specific to false advertising, the standards are essentially the same. Goshen V Mut Life Ins. Co. 98 NY 2d 314 (2002). Specifically, GBL 350 refers to deceptive advertising and this case does nothing to do with advertising as the defendant never advertised in any form

and as such, all the fines imposed on defendant under GBL 350 should not be imposed. If the advertising means the title of an item, then GBL 350 would be redundant as all items for sale from any merchant have a title and GBL 349 would be sufficient to prosecute fraud. 6. AG instituted legal action against defendant not only without legal grounds, but the prima facie of evidence consisting in 7 gemological identification reports was fraudulent due to the fact that the gemological 61 reports were mislabeled and forgery was used consisting in fraudulent use of the same photograph in the identification reports of 2 different jadeite mala. 7. The complainant committed perjury by submitting false declarations under oath in her affidavit used to prosecute the defendant. 8. Complainants affidavit with all allegations in within was impeached by complainants contradictory statements regarding her payment for the AGTA gemological testing, payment claimed for restitution and damages by the complainant and AG. 9. AG used for summary proceeding hearsay from the complainant that are absurd. For example, she claims that 2 jadeite handle brushes purchased from the defendant were made from glass rather than jadeite. Not only that she did not have any grounds to make such ridiculous allegation, but this transaction was in the past, she returned the items and was refunded. She is a recurrent returner; in the past she returned a jadeite pendant claiming that had a fissure. The pendant was re-examined on return and no fissures were found. 10. It appears from the evidence that the complainant conspired with a friend jeweler to defraud and extort money from defendant. Instead of shipping the mala for examination to AGTA as is customary and plausible, 62 she used the jeweler as a messenger between her home in Winsted, Conn., to AGTA in NYC, from Massachussets where the jeweler has the business, back to AGTA in NYC and back to Massachussetts. This story appears like a

scheme to defraud and extort the defendant, materialized in complainants claim of $1540 for gemological testing that GIA charges only $546. The amount of $1540 is part of AGs claim for restitution and assessed to defendant by Courts judgment, plus retroactive 9 % interest. See defendant Reply Affidavit dated August 19, 2010, page 8, n2: Record A452. 11. AG engaged in a campaign of vilifying the defendant by publishing inflammatory releases to media considered by law to be illegal while the legal proceedings are active. The Court and AG recommended defendant to retain legal counsel with full knowledge that the legal findings would be disregarded by judge as discretionary and subsequent defendant incurred financial losses consisting in lawyers fee. 12. Defendant in his pro se representation brought evidence that was misapprehended or overlooked and the Court reason of disregarding that evidence was that the documents submitted were not sworn as affidavits. However declarations are acceptable in lieu of affidavits in New York State Courts, Federal Courts and many States Courts. Maliciously and 63 intentionally as a travesty of justice, the Court did not accept the documents submitted as evidence in Response to Petition, Reply affirmation and Reply to AG Verified Reply and more importantly, the motions for dismissal enclosed in the documents were ignored and never answered. CPLR Article 1 Rule 105 Definitions defines in 105 (b) that action includes special proceedings and under 105 (u) it is clearly stated: Verified pleading. A verified pleading may be utilized as an affidavit whenever the latter is required. Defendant used verified pleading as a declaration under penalty of perjury and should not be considered to be an error. In contrast, AG fatal error of not serving defendant with Notice of Petition was never sanctioned by the Court. The personal jurisdiction was never acquired as fraudulent luring the defendant to the Court for the calendar call related to TRO granting is not considered personal serving.

The motions of defendant to dismiss the action in the answer and replies as specified in CPLR 3211 (a) (1)(2)(7) (8)(10) and (e) were completely disregarded by the Court. More important are the motions to dismiss under CPLR (e) as those were motions based on issue of fact that came up in the process of discovery after submission of answer and replies. 10. Defendant responded within 5 days to a Notice to Proposed Action 64 following a subpoena at AG Office in Poughkeepsie. In the response, defendant denied all the charges and brought to the attention of AAG that the gemological reports of AGTA were mislabeled and tampered. Defendant was convinced that the investigation would be dismissed for lack of evidence and tampering with legal documents. 12. Defendant spent his life savings to retain a lawyer that after unfruitful negotiations moved to re-argument and renew. The re-argument was wrongly named as renew by AG and the Court. It is apparent that the Court and AG do not know the significance of re-argument versus renew, or maliciously misinterpret what re-argument and renew motion means. According to CPLR Article 22 R2221, a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination. A motion for leave to reargue shall be based upon matter of facts or law not previously offered. CPLR R3212(c) specifies that the motion for summary judgment shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. Knowingly and intentionally, Supreme Court erred in granting plaintiff the summary judgment despite that defendant showed incontrovertible evidence that disputed and refuted plaintiffs burden of proof consisting in prima facie. The misconduct of the officers of the Court should require legal 65 review by American Bar Association. Defendant has shown incontrovertible evidence of the existence of material fact that makes the summary judgment un-admissible. Respectfully, defendant Mircea Veleanu requests Appellate Court to reverse the judgment, lift TRO, void all fines, costs and grant

attorney fees reimbursement and fines to adversary party as deemed to be fair.

Somers, NY 10589 March 7, 2011 _________________________ _____ Mircea Veleanu, pr o se