Thursday, November 11, 2010

The Fall of the Phillips Empire - Seth Berkman, The Brooklyn Ink

The Fall of the Phillips Empire

Mon, Oct 11, 2010
By Seth Berkman
Clarence Hardy, current caretaker of the Slave Theater, holds a photo of Judge John L. Phillips. (The Brooklyn Ink/Seth Berkman)
Clarence Hardy, current caretaker of the Slave Theater, holds a photo of Judge John L. Phillips. (The Brooklyn Ink/Seth Berkman)


During his early days at East Haven Nursing and Rehabilitation Center in the Bronx in 2005, 81-year-old John Phillips would practice karate moves as other patients sat idly. A former judge in Civil Court in Brooklyn, Phillips was diagnosed with dementia five years earlier, but his physical health had not yet deteriorated.


Friends who visited Phillips said he was also still mentally fit and did not belong at East Haven, where they claimed his room reeked of urine and garbage bags full of his clothes covered the floor. Phillips always asked his visitors to bring him home and inquired about the condition of more than a dozen buildings he owned in Bedford-Stuyvesant.


In 2000, after court-appointed doctor James Lynch concluded that Phillips was showing signs of early dementia, Judge Leonard Scholnick placed him in the State Supreme Court’s guardianship program. At the time of Scholnick’s ruling, Phillips’ fortune was estimated at $10 million. Now, the estate owes more than $2 million—a net loss of $12 million during the years a series of guardians were supposed to be safeguarding Phillips’ interests.


Nearly all the court files relating to the guardianship have been sealed. Even the orders to seal the files are sealed. An investigation by The Brooklyn Ink, in which copies of some of the sealed files were reviewed, found that a series of court-appointed guardians failed to pay property taxes and utility bills, kept insufficient finance records—or no records at all in certain cases—and sold a number of Phillips’ properties with almost none of the revenue going back to his estate. Phillips died on February 16, 2008, having lived his final years in a series of nursing homes, under much different circumstances than a decade earlier when he freely walked the streets of Bedford-Stuyvesant as the “kung fu judge,” an unconventional local hero with a 10th-degree black belt in martial arts who had worked his way from poverty to a spot on the bench.


Rev. Samuel Boykin, Phillips’ nephew and the current administrator of the estate, said he must now sell Phillips’ prized property, the Slave Theater, which was a center for political activity in Bedford-Stuyvesant in the 1980s and attracted speakers including Rev. Al Sharpton and Stokely Carmichael.


“He always wanted the theater to remain in service of the community,” Boykin said about Phillips. “It’s a very sad day for justice. This case clearly gives the guardianship program a black eye. The justice system that my uncle served so diligently for 17 years really let him down.”


In 1976, Phillips ran for Civil Court judge in Brooklyn and, surprisingly, won an election without strong backing by the Brooklyn Democratic organization. Phillips served until 1994, when he retired at the mandatory age of 70.


Malika Alcindor, a friend of Phillips’ for 26 years, said he was an eccentric character who wore the same robe during his entire time on the bench. “The sleeves looked like they were in a paper shredder,” Alcindor said. “He wore rubber bands around both of his arms to hold them together.”


Phillips also had a passion for filmmaking and produced Hands Across Two Continents, a story about interracial love. He also often carried a pistol with him in plain sight. In 1997, the day after Phillips announced his plans to run for Brooklyn District Attorney against Charles Hynes, he was charged with exhibiting and displaying an unlicensed weapon and resisting arrest. After that incident, Phillips decided not to run for office.
In 2000, at age 76, Phillips again announced plans to run for the district attorney’s office. Phillips would never officially enter the race though, as soon after his announcement, his life would take a dramatic turn.
Phillips first encountered difficulties with his properties when one of his buildings was used as collateral for bail in an unrelated court case. He later met with Brooklyn Assistant District Attorney Steven Kramer, who discovered a pattern of fraud dating back to 1998.


In an email to The Brooklyn Ink on August 17, 2010, Jonah Bruno, deputy director of public information at the Brooklyn District Attorney’s office, wrote that while Judge Phillips was “clearly the victim of a crime, something caused ADA Kramer even greater alarm.” According to Kramer, the retired judge appeared “disoriented and uncared for.” Bruno said Kramer sought to help since Phillips was considered a friend and mentor to many in the district attorney’s office and wrote letters to judges recommending a guardian oversee Phillips’ finances and protect his assets.


Phillips’ supporters disagree with Kramer’s assessment on Phillips’ health, saying that the judge was in fine mental health at the time and that the district attorney’s office initiated the action to have Phillips declared incompetent to force him out of the race.


“They literally took him off the street and threw him in guardianship,” said Clarence Hardy, Phillips’ friend and caretaker of the Slave Theater.


Bruno said in his email that neither Hynes nor anyone on the staff of the district attorney’s office “ever sought to have Justice Phillips placed into a retirement home” and Phillips was “never an official candidate for district attorney.” Since 1990, Hynes won all of his races by comfortable margins, and although Phillips had never officially run for office, his friends said the judge had the money and support, especially from the Bedford-Stuyvesant community and in nearby neighborhoods, to pose a serious challenge.


Frank Livoti, a Long Island lawyer who initiated the court request for the appointment of a guardian for Phillips, requested the proceeding be sealed due to pending criminal prosecutions involving Phillips’ estate and his embarrassment at becoming a victim. Judge Scholnick issued an oral order to seal the Phillips case on February 21, 2001; the order was not officially entered until over a year later. Scholnick retired in February 2002 and was replaced on the case by Judge Michael Pesce, who officially sealed the files on September 17, 2002, according to Kali Holloway, assistant director of communications for the New York State Unified Court System. Through Bruno, Hynes declined to be interviewed about how common the sealing process is in guardianship cases.


Robert Freedman, a lawyer focusing on elder law and planning for individuals with disabilities and their families, said sealing is not supposed to happen “unless there’s a specific order.”


“It does happen, I’m not sure on what legal standing,” Freedman said. “The incapacitated person usually would have standing to ask. But it hasn’t been a routine practice to seal the records.”


Though Livoti initiated the motion for a guardian, Harvey Greenberg, a lawyer who was a former chief of staff for Hynes, was appointed the first temporary guardian. Greenberg spent only a few months as Phillips’ guardian before being replaced by co-guardians Livoti and Ray Jones, of a Brooklyn law firm.


Phillips did not trust Livoti’s motives for becoming his guardian. In a letter he wrote to his attorney, Dominick Fusco, in April 2001, which was printed in the February 18, 2004 edition of The New York Sun, Phillips said that he never met Livoti, and believed he was planning to take his properties and that Kramer was behind a plan to declare Phillips incompetent. Fusco, who died in 2007, said in the same article, “For some reason they were trying to take his property. He wanted to run for district attorney, that’s what started all the trouble. He wasn’t incompetent. He was a little eccentric, but he knew what the hell he was doing. It was all politically motivated.” Neither Jones nor Livoti returned calls for comment.


Though the files for the Phillips case are officially sealed, The Brooklyn Ink reviewed copies of some of the sealed files. Records show Livoti stated that Phillips personally requested he be appointed the guardian of property and personal needs.


Despite petitioning to pay bills, file tax forms and other duties on Phillips’ behalf, Livoti and the guardians kept virtually no records of financial transactions, according to reports submitted by court examiner Seth Coen and James H. Cahill Jr., Phillips’ guardian from November 2006 until his death in 2008. Other documents, which The Brooklyn Ink reviewed, also show Phillips should have received monthly pension checks for $1,095. Boykin said it is unknown where those checks were mailed and that no guardians ever reported receiving checks for the judge’s pension. Boykin also noted that many of Phillips’ bank accounts had zero balance.
Dee Woodburne, who spearheaded the Free Judge Phillips committee, a grassroots organization formed in 2004 that wanted Phillips out of the guardianship system, often told guardians of her worries relating to Phillips’ treatment in the nursing homes and how his properties were being handled, but she said they never investigated her concerns.


On September 4, 2003, Manhattan lawyer Emani Taylor was named the fourth guardian. In a New York Times article on November 18, 2007, Taylor said she entered the guardianship through a mutual acquaintance, “after friends of the retired judge said that Mr. Livoti and Mr. Jones were not properly caring for [Phillips’] estate.”


According to court records and confirmed by friends who often visited Phillips while he was in the guardianship program, Taylor moved Phillips to a series of residences in the Bronx, including her mother’s home and eventually East Haven. Taylor’s mother also cared for Phillips at East Haven and was paid with funds from Phillips’ account. Court documents prepared by Cahill showed that Taylor’s mother was paid almost $50,000 for services.


In May 2007, after years of complaints about living conditions from Phillips and friends, Pesce finally ordered Phillips to be transferred to a different home, Castle Senior Living in Brooklyn.
A report investigating Taylor’s tenure as Phillips’ guardian from the New York Supreme Court, Appellate Division, filed on December 27, 2007, shows that from 2003 to 2006, Taylor wrote herself numerous checks from Phillips’ account, totaling $200,000. The report also said that Taylor “allegedly took $696,000 from the sale of the 132, 136 and 140 Herkimer Streets,” and “helped herself to $327,491.23 in the guardianship account from October 24, 2003 to August 8, 2006.”


As a result of the report, in 2008, Taylor was suspended from practicing law by the Departmental Disciplinary Committee for the First Judicial Department and ordered to repay Phillips’ estate $403,000. In an article from the New York Law Journal on July 1, 2008, Judge Michael Ambrosio recognized that Taylor had entered a difficult position as Phillips’ guardian, given that Phillips’ finances were “in shambles” and “virtually no properties” were left in his name. According to the article, Ambrosio noted the difficulty of determining the “precise amount” Taylor had paid herself for legal work without court approval.


Taylor, whose last known email address and phone numbers were out of service, could not be reached for comment. Boykin said that the estate has yet to see any of that money and that he has contacted the district attorney’s office and the Supreme Court, but has not received any answer.


Cahill, a Brooklyn lawyer, replaced Taylor as guardian in November 2006. Cahill was the first to bring the previous guardians’ lack of records and alleged mismanagement of funds, specifically relating to Taylor, to Pesce’s attention. Cahill reported that he inherited a guardianship that owed almost $2 million in taxes and received notice from the Internal Revenue Service that returns had not been filed from 2001 through 2005.
On October 16, 2006, on Cahill’s urging, Pesce approved a private investigator to examine Phillips’ and Taylor’s assets. The matter was referred to the district attorney’s office, which found no evidence of wrongdoing, prior to the findings of the Departmental Disciplinary Committee.


On July 20, 2007, Seth Coen, the newly assigned court examiner, was also dismayed at the poor record keeping by the previous court examiner and that of the previous guardians.


“Coming into a case as a successor court examiner, annual filings are required and they hadn’t been done,” Coen said by phone interview.


Due to the sealing of the records, it is unknown who preceded Coen. Coen did not recall who the previous court examiner was, but said that person had not done an exemplary job.


“As court examiner in a guardianship, you’re the eyes and ears of court, keeping an eye on the guardian,” Coen said. “Reporting responsibilities are to the judge and protecting the interests of the incapacitated person.
“Did [Pesce] do everything perfectly? No, but he had other court functions at the time. It’s probably physically impossible to micromanage every one of these cases. That’s the occasion for the court examiner.”
Pesce referred all requests for comment to David Bookstaver, director of communications for the New York State Unified Court System. Bookstaver did not return calls for comment.


Pesce recused himself from the case in 2007 after facing a review by the New York State Commission on Judicial Conduct for his role in the Phillips guardianship case. Only sanctioned judges’ decisions are made public and Pesce’s name was not found on the commission’s searchable online database. All other investigations are confidential. Judge Ambrosio, to whom the case was assigned following Pesce, now works in Brooklyn Family Court.


The Brooklyn guardianship program has come under heavy scrutiny in recent years. In 2000, the State Justice Institute largely rewrote Article 81 of the New York State Mental Hygiene Law. On September 12, 2007, Leah Nelson wrote in an article for the website Judicial Reports, that the changes came after two Brooklyn attorneys wrote a letter to a Democratic Party boss, saying they did not receive guardianship appointments to which they felt entitled.


In December 2001, just over a year after Phillips was first placed in the guardianship program, the New York State Commission on Fiduciary Appointments and the Inspector General’s office released reports saying guardians were failing to comply with filing requirements, that judges often indiscriminately granted high fees to guardians and that guardians often did not act in the best interest of their clients’ personal care and financial decisions.



“I would love to propose a solution, but I don’t know what the solution is,” Coen said. “People can be corrupted and when you’re a guardian, you have the keys to the piggy bank.


“I practice law and I have an escrow account, and in plain English, you don’t f— with your escrow account because it’s not yours. And guardians are told to be even more careful than they are with their own money because you’ve been entrusted by the law with other people’s money.”


After Phillips’ death in February of 2008, his case was to be transferred to Surrogate’s Court. Cahill stepped down and was the only person to receive payment for work as Phillips’ guardian, according to the compensation records. Cahill received $44,836.50 in 2007 and $146,597.19 in 2008 for the Phillips case.
In October 2008, Boykin became temporary administrator of the estate and in January 2009 was appointed the permanent administrator. Boykin has filed complaints to eight organizations—including the offices of Attorney General Andrew Cuomo, State Comptroller Thomas DiNapoli, the FBI and the IRS—asking for an investigation into all of the previous guardians’ handling of Phillips’ estate. Boykin also has a wrongful death lawsuit against Castle Park, now known as Prospect Park Residence, filed in State Supreme Court in February, alleging that the facility’s negligent care of Phillips led to his death. The company did not return calls for comment, but Prospect Park Residence director David Pomerantz told the New York Daily News on February 11, 2010 that he was “saddened by the judge’s death” but declined to comment on the lawsuit on the advice of attorneys.


Examining the properties listed in court records as part of Phillips’ estate, as well as one property, 10 Halsey Street, that Boykin said was also included, raised questions about the transactions that occurred during and right before Phillips was placed under guardianship.


For example, on October 7, 2003, Phillips’ name appeared on a document transferring 146 Herkimer St. to Vincent Longobardi and Magdy O’Kelly for $10,000. Longobardi plead guilty in 1999 on felony charges in United States District Court in Brooklyn for participating in a conspiracy to rig bids at real estate auctions and O’Kelly was stabbed to death on July 19, 2007. Gerald E. Davis sold the properties.  Emani Taylor had written to the court on July 31, 2007, that Davis committed fraud by initiating the sale and that he had also fraudulently sold 10 Halsey St. on December 23, 2003 to Phyllis Susi for $5,000. Taylor’s letter also said Davis had been served with a restraining notice prior to her appointment as guardian, prohibiting him from engaging or conducting any business on behalf of Phillips and at no time did the court order the properties to be sold. Davis did not return calls for comment before publication.


Many of the documents also show noticeably different signatures for Phillips, as some are signed in cursive handwriting, while others are signed in capital letters.


Coen said Phillips purchased the buildings in Bedford-Stuyvesant when the neighborhood was going through tough economic times in the 1980s.


“It was the mean streets, the bottom of the barrel,” Coen said about Bedford-Stuyvesant during those years. “It got terrible during the race riots in the late 60s and was decimated even further by the crack epidemic in the early 80s. They were magnificent old buildings at one time. Judge Phillips had the foresight and belief in his neighborhood; he picked up all these buildings for a song. The circumstances under which some of those properties were transferred are a total mystery to me.”


Boykin said his uncle purchased most of the buildings in the early 1980s, but that Phillips had owned a few of the properties since the late 1960s. Boykin said Phillips bought many when their prices hit rock bottom, in an effort to fix and rent them to local residents who had trouble finding affordable housing.


“He had an attachment to Bedford-Stuyvesant, believed it would rebound, and he also thought they were good investments,” Boykin said. “He was in Bedford-Stuyvesant before Rudy Giuliani cleaned up New York and consequently the property values were way down in that area.”


On a visit to Phillips’ old house at 155 Herkimer St. on September 19, 2010, the building’s windows were boarded and graffiti was scrawled on the front door. With an abandoned car and unkempt weeds in front of the property, it looked as if the building hadn’t been taken care of since a 2004 fire, an unfortunate symbol of Phillips’ legacy. Woodburne said that Phillips wanted to be buried in Ohio with his mother, but said he is buried in a cemetery in Long Island.


“A lot of people, when they reach a certain level, specifically black Americans, they exclude themselves from the community,” Woodburne said. “His continuous connection to the community kept the fabric of black America in Bed-Stuy together. It’s a disgrace to have everything he did overshadowed by the way his life ended. It was a horrible experience for any person to go through.”

SIDEBAR:



Listed below are a summary of the deeds to the 12 properties and 10 Halsey Street, a vacant lot Boykin said is also part of the estate, since the time Phillips was placed under guardianship. All data is from the New York City’s Automated City Register Information System:


-On July 11, 2008, James Cahill and Phyllis Susi agreed to a 75 percent (Cahill)/25 percent (Susi) share of the transfer of 10 Halsey Street. Somehow, the agreement was ordered by Pesce, who was off the Phillips case by that time, and occurred after Phillips’s death. On December 23, 2003, 155 Herkimer Street Realty INC transferred 10 Halsey Street for $5,000. On August 31, 2004, 140 Herkimer Street Realty INC transferred the lot at 10 Halsey Street for an undisclosed amount to Susi, saying 155 Herkimer Street Realty was not authorized for the previous sale. Both 140 and 155 Herkimer Street were addresses of other properties Phillips’s estate owned.


-On November 22, 2000, Phillips transferred his home at 155 Herkimer Street for an undisclosed amount to Franklyn Radix. Phillips lived in the property until Emani Taylor moved him to the Bronx. On March 5, 2003, Radix transferred the property for an undisclosed amount to Federico Frazer. On July 19, 2004, Frazer transferred the property back to Radix for $20,000. In the next deed for 155 Herkimer, Radix is not listed though. On December 1, 2004, Jules Martin Haas, a New York City estate-planning lawyer, transferred the property for $390,000 to Gurpal Cheema.



-On January 16, 2007, 155 Herkimer Street Realty INC and Cahill transferred 135 Herkimer Street for $600,000 to IRBEH Realty LLC.


-On October 7, 2003, a deed states that Phillips transferred 146 Herkimer Street to Vincent Longobardi and Magdy O’Kelly for $10,000. The next deed showed that on August 25, 2004, the property was transferred for $310,000 by neither Longobardi or O’Kelly, but Gregory Cerchione, an appointed referee from a previous action between US Bank National Association (plaintiff) and Phillips (defendant) on March 13, 1999.


-On April 21, 2000, Phillips’s name appears on the deed transferring 68 Herkimer Street to Orleani (Orlaine) Clarke for an undisclosed amount. On January 7, 2004, Clarke transferred the property for $435,000 to Derek McCaskie. A month later, in documents filed on February 6, 2007, Orlaine Clarke transferred the property again for $5,000 back to John Phillips and Emani Taylor, and then on the same date, Taylor filed documents transferring the property for $590,000 to John Clarke, Charles Williams and herself. Taylor was somehow listed as a party as both a seller and buyer of the latter transaction. Yet in a court document signed on October 11, 2004, Taylor claimed John Clarke had been “engaged in deceptive business practices with the IP’s (incapacitated person) property.”


-On February 28, 2001, James Latimore Mason, with an address at 146 Herkimer Street, one of Phillips’s properties at the time, transferred the properties at 132 Herkimer Street, 136 Herkimer Street and 140 Herkimer Street to Philips for an undisclosed amount. On September 11, 2005, Taylor and New York Affordable Housing Herkimer Associates transferred the properties for $3,341,227.98 to 68 West 126th Street Associates LLC, which is now known as New York Affordable Housing Herkimer Associates (New York Affordable Housing Herkimer Associates is part of New York Affordable Housing Associates.) On December 7, 2005, New York Affordable Housing Herkimer Associates transferred the three properties for $689,798.79 to New York Affordable Housing Herkimer Associates and 954 CON LLC.



-On April 29, 2002, Ray Jones transferred 563 Nostrand Avenue for $145,000 to 563 Nostrand LLC; 565 Nostrand Avenue for $145,000 to 565 Nostrand LLC; and 567 Nostrand Avenue for $135,000 to 567 Nostrand LLC. According to a memorandum written from Judge Michael Pesce to Judge Neil J. Firetog on May 27, 2004, in response to Phillips’s case, Judge Scholnick waived the Real Property Actions and Proceedings Law requiring a property to be advertised for four consecutive weeks. George Clark Realtors appraised 563 Nostrand at $125,000, 565 Nostrand at $112,000 and 567 Nostrand at $112,000. Boykin asked Massey and Knakal Realty, a real estate firm with offices throughout the tri-state area, to evaluate what the properties should have been worth in 2002 and the estimates came in at between $750,000 and $1 million each. George Clark Realtors did not return emails or phone calls requesting comment.


-The Slave Theater and Black Lady Theater at 1215 Fulton Street and 750 Nostrand Avenue have had a series of tax liens assigned between the New York City Department of Finance and The Bank of New York Mellon since 2001.


- To add further confusion as to which properties were remaining in Phillips’s estate and if all the sales were verified, according to the New York City Department of Housing Preservation and Development online database, 155 Herkimer Street, 146 Herkimer Street and 68 Herkimer Street are still registered to John Phillips.
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