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RODERICK BREMBY, Defendants. ) ) ) JUDGE THOMPSON ) ) CASE NO. 3:12-CV-00039-AWT
MEMORANDUM OF LAW IN SUPPORT OF MOTION OF BETTY J. KING TO STRIKE AFFIDAVIT OF SILVANA M. FLATTERY May it please the Court: Basic principles of law dictate that a person without first hand knowledge of the subject matter may not testify to anything in a Court of Law. Throughout this endeavor Intervenor has never once spoken with Affiant, nor has Intervenor ever emailed anything directly to Silvana M. Flattery. Rather, any and all communications have been sent to one Diane Wood. Therefore it logically follows that only Diane Wood may provide Affidavit or testimony regarding what she received because anything else is inadmissible hearsay, particularly without foundation. Also there is no attestation in the Affidavit that it is sworn and subject to the Pains and Penalties of Perjury. Unfortunately for Defendant and Counsel – who have been placed on Rule 11 Safe Harbor Notice – no such foundation exists because Silvana M. Flattery’s sole mission in this case is to misinform and to lie and to cover up for the Commission’s deficiencies. Intervenor will have no parts of any such shenanigans nor should this Honorable Court. Per Rule 801 the Declarant must be Diane Wood and ONLY Diane Wood unless she is somehow unavailable per Rule 804. But at no point do Defendants or Counsel claim that Diane Wood is in any way deceased, moved to the other side of the World or otherwise incapacitated so Flattery is out. This is basic lawyering, folks.1
Not only that, the Best Evidence Rule 1002 requires that Defendants produce the entire email chain, which they will never do because the Court would sanction them sua sponte on reading it because they are liars.
The only thing that Ms. Flattery claims at para 4 is: “I have reviewed the application materials and file for Betty J. King (“Ms. King.”) It does not say that she reviewed any and all emails as provided by Intervenor to Diane Wood, so her Affidavit isn’t worth the paper on which it is written. See Murray v. Carroll, 2008 U.S. Dist. LEXIS 52236 (CT Dist 2008)(Appendix A) Rule 56(e), partially entitled "Form of Affidavits," requires that supporting and opposing affidavits "shall be made on personal knowledge," and "shall set forth such facts as would be admissible in evidence…." Accordingly, when portions of an affidavit do not comply with [*10] Rule 56(e), the trial judge is "free to disregard the inadmissible paragraphs and consider the rest of the affidavit." United States v. Alessi, 599 F.2d 513, 515 (2d Cir. 1979). A court may therefore strike portions of affidavits which are not made upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements. See, e.g., United States v. Private Sanitation Industry Ass'n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1995) (affidavit not made on personal knowledge will not suffice to create issue of fact precluding summary judgment); H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in the Rule 56(e) affidavit); Weeks v. ARA Servs., 869 F.Supp. 194, 196 (S.D.N.Y. 1994) (generalized and conclusory affidavitsare insufficient to withstand defendant's motion for summary judgment). To the extent that a Rule 56(e) affidavit contains inadmissible hearsay which references other evidence that is properly before the court, the court may disregard thehearsay but separately consider the admissible evidence. John Hancock Property and Casualty Ins. Co. v. Universal Reinsurance Co., Ltd., 147 F.R.D. 40, 45 (S.D.N.Y. 1993). Plaintiff's [*11] Affidavit The Court will grant the motion to strike as to the following portions of plaintiff's affidavit containing inadmissible hearsay, generalized conclusory statements, and/or information which could not be attributed to plaintiff's personal knowledge…. That scenario is no different than this one. In this case, the Commissioner and Counsel have issued blatant lies as noted hereinbelow where anyone can see that the documentation necessary for Intervenor’s application was indeed provided back in December, 2011 and not in September, 2012. The Commission requested the information AGAIN at that point and Intervenor provided UPDATED information within days of the request. That is what happened and any other story they provide is absolutely poppycock.
**************** On January 23, 2012: Betty King info. Hi Diane, I know I am blowing up your email, sorry. I also know you've got about a billion other things on your plate as well. Thanks, ***************** On January 18, 2012: Any word yet on Betty King app? Thanks, Diane. On 16 Dec. 212 Diane Wood sent a confirmatory email regarding the last document, i.e. the Divorce Decree:
The package will expire on Sunday January 15, 2012 at 08:22:55 EST5.
On 15 December Intervenor provided the last necessary document -- the divorce decree:
*************** On 14 Nov. 2011 Intervenor wrote: Betty King updates -- final docs for Title XIX 1. Foreclosure: I found the Sheriff sale proof online and it is attached. Please confirm you can open and read it. 2. U.S. Bank: The package was sent and is at my apartment awaiting my return on Wed night or TH morning -- I will overnight to you. 3. Divorce Decree My father is going to fax to me shortly and I will scan and send in the next 48 hours. 4. W-1SA: Calling you now I need to find this document and send it to you. Will call you again to find it. That should complete everything. Again Diane thank you for your help. Sincerely, ********** On 22. Nov. Intervenor wrote: The Application. Note this email contained the W-1.
That is why on 20 Jan, 2012 Intervenor wrote Diane Wood: Hi Diane, I was just looking at the submission.... is there anything more that we could do. I'm stressing. Thanks and have a great weekend. Intervenor's sister – a very established corporate executive with no propensity to lie -wrote on the same day: Thanks Chris, good follow up. We are both concerned about the process and outcome. Thanks for your attention to this matter. ********** 27 August: Hello Ms. Wood, We are all concerned about our mother and this process. Do you have any more news or information for us? Thank you in advance. Sincerely, Again from Intervenor's sister: Thanks for the note Chris. Ms Wood as Chris stated we are concerned and I do not understand why this had not been resolved. We would like a full accounting of the procedures and the plans to get this approved or what has to be done to escalate it. At this stage we can no longer continue waiting. As such, Defendant's first Defense is clearly without merit and this Court must issue a stern rebuke to Defendants via the immediate imposition of sanctions, as all they needed to do (and what they were obligated to do) per Rule 11 was to read their own emails. /s/ Christopher King, J.D. _____________________________ Christopher King, J.D. http://KingCast.net -- Reel News for Real People firstname.lastname@example.org 617.543.8085 _____________________ NOTARY PUBLIC MY COMMISSION EXPIRES: ______________
CERTIFICATE OF SERVICE I the undersigned, solemnly swear that a true copy of this Memorandum Was delivered via email on 23 November 2012 And via Regular U.S. Mail, 23 September 2012 to: Defendant Roderick Bremby c/o Jennifer L. Callahan, Esq. ct 29033 CT AG 55 Elm Street PO Box 120 Hartford, CT 06141 email@example.com Plaintiffs Shafer and Harder Sheldon Toubman (ct08533) New Haven Legal Assistance Assoc. 426 State Street New Haven, CT 06510-2018 Phone: 203.946.4811 Fax: 203.498-9271 firstname.lastname@example.org __________________________________ KingCast.net By and through Christopher King, J.D. 617.543.8085m
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