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ADRIANNE PHILLIPSON MURTARI, 
			Plaintiff/Respondent,	
JOHN MURTARI,
			Defendant/Appellant
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State of New York )
County of Onondaga ) ss:

1. JOHN MURTARI, being duly sworn, deposes and states:
2. I am the defendant/appellant in this action, and I make this affidavit in support of my motion for reargument of the appeal.
   

Background

1. Justice Pine, Justice Boehm, Justice Hayes, Justice Pigott, and Justice Wisner, I make this Motion for Reargument aware of the slim chances it will have for approval, but hopeful you will thoughtfully consider my request, and as your title indicates, "Justice" will be served. Certainly, I am not a Lawyer and not studied in the "Law & Process", but I do have a lively sense of "Justice" and am concerned there may be a divergence between our "Law & Process" and the goals of "Justice" in Family Law.
2. I wish to preface my remarks by stating I have also closely reviewed the "record", one I have lived - and while admitting the possibility of blindness to my own "hidden faults", I must still conclude there is no reasonable basis to support this Judgment and the process by which it was made -- nor the pain it has visited on my family (and many, many other families!).
3. I also affirm my respect for the people involved. I don't see any "evil" people here, but good people. The present "system" makes it all too easy for good people to fall into the simple trap "the end justifies the means." And these good people can cause very real harm to others.
   

Misapprehension of the Facts.

1. Justice Pine, it was with apprehension that I noted during my Oral argument that you alone appeared to have any working knowledge of the record, or had even read the Briefs. While I honestly did not expect anyone on the Panel to read the actual transcripts, or review the entire list of exhibits. It never occurred to me some of the Justices would not have a working knowledge of the Briefs - or I would have better structured my presentation to present a deeper review of the issues.
2. I noted in the Memorandum the "unanimous" affirmation of the Judgment, and could not help but think about a Civil Jury in which five of the jurors were busy with appointments and other matters to be present for most of a trial. The five then make an appearance during closing arguments, and during deliberations rely on the opinion of the one full-time Juror to form their opinions. The Appellate Review process calls for a panel of Justices to review what happened and form their own conclusions, did that happen here?
3. Justice Boehm, you were the only other Justice to speak, and you talked about the "desire to maintain stability for the child". I think you were surprised to find out I was the parent who remained in the home, in the nice neighborhood. You didn't speak again. Justice, I was confident you, as a professional, would have really taken the time afterwards to review the Briefs and the Record to find out what happened for yourself.
4. Justices Hayes, Pigott, and Wisner - I was pleased to see your attention as I was speaking. During the earlier cases presented I appreciated your insightful questions of the litigants as you attempted to confirm your suspicions regarding the correct facts & law, versus their knowledge. How I wish that same attention and preparation had been brought to my presentation.
5. Justices, my sincere apologies if I am mistaken (I can appreciate what it is like to be falsely accused). Also, with humility, I can understand that perhaps the facts were overwhelmingly clear in this matter.
6. I ask the Court to review my point arguments: failure to have opportunity for Counsel, rushed and incomplete discovery, unethical practice by professional participants in the process, and a large amount of clear evidence regarding the warmth and depth of the relationship between Domenic and I, and to find review and reargument would be justified.
   

Misapplication of a Controlling Principle of Law.

1. Justice Pine, I was surprised by your questioning regarding the earlier appeal I had filed. I noted in the Memorandum that it was used as the basis to deny the "constitutional" issues involved..
2. The "trigger" for the Appeal which was noticed shortly before the actual Trial date was the rejection by the Trial Judge of my motion to Vacate the Note of Issue (and for other relief). I then filed a show cause order with Judge Lawton in Syracuse in an attempt to get the Trial delayed/stayed. I was surprised when Judge Lawton called me at home to explain he had reviewed my paperwork, but the Court could not stop the scheduled trial, and I could pick up the paperwork at his office, and since the Trial was going to happen anyway, to then appeal after the completion.
3. Justices, that was two years ago, and I don't recall the exact conversation, but the essence of the communication to me was this is bad timing, wait till your trial is done, and then, if necessary, appeal. I reviewed your cited case, Matter of Commissioner of Social Servs. Of County of Erie [Lange] v Crowden, 166 AD2d 888, and ask the court to consider the differentiating items of both timing & Court communication. In this case the Trial commenced almost within a month of the order leaving very little time to perfect an appeal - and post trial would have made for a confusing series of appeal.
4. Also, the Constitutional issues brought on this appeal are based on the Trial itself. The failure of the CPLR to allow for a Jury on the issue of grounds & custody, the extra-judicial conduct of the Law Guardian by introducing new factual material after the conclusion of trial, the repeated denial of Counsel even after clear evidence was introduced at Trial regarding financial resources, etc..
5. With regards to Dr. Black's report being introduced into evidence without her testimony, you cited Matter of Cynthia C. [Rebecca K.] 234 AD2d 929, in the cited case their was overwhelming and "clear evidence" of the conduct, which did not require the corroboration of another report. In this case, the evidence is certainly not "clear". The direct witness and videotape testimony clearly conflicts with Dr. Black's report. The only other "expert" that did testify was Dr. Hoenig, and she was later give a Letter of Reprimand by the Psychological Association for her conduct in this matter.

Conclusion

1. Justices, during my Oral presentation I spoke about how the Jury is essential to protecting the integrity of our Judicial Process. Experienced professionals in this matter acted the way they did because "it worked, and they could get away with it."
2. In my Reply Brief I noted the misinformation used by Ms. Walsh (Plaintiff's Counsel), in her brief. Justice Pine, during your questioning of Ms. Walsh, it appeared you also noticed she had made representation to items which were not supported by your reading of the record (and you did not seem pleased!).
3. I will soon be submitting an ethical complaint regarding Ms. Walsh's conduct, and I had hoped such conduct would also have been noted in your Memorandum. While I am sure there must have been some "back-channel" communication with Ms. Walsh to let her know your feelings - I hope the Court will recall the issue and update the Memorandum accordingly.
4. It is with some "wry amusement" I recently received Motion Papers from Ms. Walsh to the Trial Court, for some $10,000 in fees associated with the appeal, for a job well done?
   Why do professionals do this - because it works.
   

Consequences

1. In the last 7 days I have received a "barage" of motions/actions from Ms. Walsh:
   1. Adrianne wishes to relocate to California this July, with Domenic, so she can go to school.
   2. My 81 year old mother finds out here savings account (which has about $5500), and to which her Social Security check is deposited, has been put on "freeze" by Ms. Walsh. The account came up at Trial, it is a joint account with my name, but I have never put my money in the account - and just have my name on it to handle potential burial expenses for my mom.

Domenic still asks me, "Daddy, when can I spend more time with you?"

1. The "unanimous affirmation" of the Court is cited as justification. Is this Justice?

____________________

JOHN MURTARI

Sworn to before me this
28^th day of May, 1998.

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Notary Public