United States District Court

Southern District of New York State

Docket number 13 CV 5566 (NSR)
Docket number 13 CV 5693 NSR
_______________________________
Mircea Veleanu
Plaintiff
V.
Andrew Cuomo et al
Defendants
_______________________________________________________________________
Mircea Veleanu
Plaintiff
V.
Janet Spiridonakos
Defendant
Freeboard International, Inc.
Defendant
________________________________________________________________________
PLAINTIFF’S AFFIRMATION IN SUPPORT OF MOTION AVERRING LACK OF
STANDING TO RENDER ORDER AND JUDGMENT THAT ARE MOOT DUE TO THE
LACK OF SUBJECT MATTER JURISDICTION OF THE COURT
________________________________________________________________________

I, hereby, Mircea Veleanu, Plaintiff in the above captioned legal actions, declare under the penalty of

perjury that the following statements are true and known to me be accurate as being a factual witness of

the material facts. This declaration is in compliance with 28 USC Sec 1746, submitted in good faith in

support of the undersigned’s application for the annulment of the moot Orders and Judgments decreed

by this Court in lack of standing and consequent lack of subject matter jurisdiction.

1. The undersigned, Plaintiff in the fore captioned legal cases, challenges the subject matter

jurisdiction of this federal court of justice who knowingly rendered unenforceable Orders and

Judgments, void ab initio in clear lack of jurisdiction.

2. This application for relief is pertinent to two legal cases, 13 CV 5566, and 13 CV 5693,

consolidated by Nelson S. Roman, presiding judge of this Court, who rendered an Order and Judgment

by which he dismissed both cases in a single decision after the consolidation. Thus, this application is
legally challenging the subject matter jurisdiction of dismissal of the Complaint in both fore captioned

cases, by a single contemporaneous instant decision and Order of this Court dated November 12, 2013

(Dkt. # 47 in case 13 CV 5566)..

3. Subject matter jurisdiction never can be waived, never can be disregarded by a court due to lapse of

time or course of events, other than sufficient pleading in an unprejudiced court. When subject matter

jurisdiction is challenged (as in the present application), the party asserting that the court has subject

matter jurisdiction (in the present case, judge Nelson S. Roman who acted sua sponte), has the burden

of showing that such jurisdiction exists. Once the court has knowledge that subject matter jurisdiction

is lacking, the court (judge Nelson S. Roman) has no discretion but to dismiss the action and grant

summary judgment to the party who asserted and proved the default of the defendants.

4. The background of case 13 CV 5566, reveals that the defendants were served by Plaintiff with the

waiver of summons on August 9th, 2013 and according to FRCP 12(a)(1)(A)(ii), the Answer or a

Motion was due “within 60 days after the request for a waiver was sent”. Thus, in order to comply with

the above cited Rule, the Answer or a Motion had to be submitted prior October 9th., 2013. Nonetheless,

the defendants submitted a Motion to Dismiss, on October 11, 2013. (See Dkt. # 22 dated 10/11/2013).

As such, the defendants defaulted as a matter of fact and a matter of law.

5. The background of case 13 CV 5693 illustrates that defendant Janet Spiridonakos and Freeboard

International, Inc., were served with the Waiver of summons on August 14, 2013. Rather than

responding to the Waiver of summons, on August 30, 2013, she made a voluntary appearance in the

Court presided by judge Vincent Briccetti. She did not retain legal representation for the Corporation,

Freeboard International, Inc. and subsequently, the Corporation defaulted on October 14, 2013. In

accordance with FRCP Rule 12(a), Defendant Spiridonakos failed to submit a responsive pleading

within the time provided by the Rule and subsequently defaulted as a matter of fact and law in the case

13 CV 5693 prosecuted for breach of contract and acts of fraud. (on October 22, 2013, she submitted a
tardy motion to dismiss both legal cases (irrational, as in case 13 CV 5566, she was not named as a

defendant and defendants’ counsel, Joshua Pepper refused to defend her). This motion irrationally

invoked res judicata, collateral estoppel and Rooker Feldman doctrine, when she was not ever sued by

the Plaintiff in the state court, or any court. Such motion would entitle any unbiased presiding judge of

a federal court to deny the motion and request a psychiatric evaluation of the defendant.

6. Subsequent to Defendants default, on October 18, 2013, Plaintiff submitted a motion for Entry of

default in accordance with FRCP 55(a) to be entered by the clerk of court, Ruby Krajick. (See Dkt. # 6

of case 13 CV 5693). Exhibit # 1. FRCP 55(a) provides that when a party fails to plead, the clerk of

court must enter a default. Although Plaintiff Veleanu moved under Rule 55(a) and submitted all the

required documentation including the affidavit in support, the clerk of court failed to act upon the

properly submitted motion without any defect. FRCP 55(a) is not discretionary and obliges the clerk

of

court to comply to ministerial function, otherwise, is considered gross negligence and prosecuted as

an obstruction of justice in a potential suit. Rule 55(a) clearly specifies: “Entering a default. When a

party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,

and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default”. On

November 12, 2013, judge Roman “terminated” Plaintiff’s motion without any dictum, reasoning or

explanation that determined him to act so. Judge Nelson Roman violated Plaintiff’s due process rights

in dismissing applications without any legal support to do so, without hearing or even a conference,

whatever. As a matter of fact, Plaintiff never saw judge Roman who decreed all his orders and

judgments from the bench without any hearing or an initial conference.

7. In addition, the defendants of case 13 CV 5566 did not default for the first time. On November 14,

2013, Plaintiff submitted a motion to strike defendants’ motion to dismiss pursuant to FRCP Rule 12(f),
as redundant, immaterial and impertinent based on the incontrovertible facts that defendants’ counsel

submitted a motion to dismiss that was identical in the documents submitted with the motion to dismiss

in the Supreme Court of NY Appellate Division Second Department. The identical motion to dismiss

was actually denied by the Supreme Court of NY Appellate Division in the Article 78 proceeding.

Further on, res judicata, collateral estoppel and Rooker Feldman doctrine prevent the defendants’

counsel to submit the identical motion to Dismiss the Complaint in the federal district court. More

importantly, defendants’ counsel did not contest or reply in defense to Plaintiff‘s application, thus the

unopposed motion is deemed to be accepted by

the court as a matter of law, based on defendants’ default by failure to defend.

8. In addition to the application pursuant to FRCP 55 (a), Plaintiff submitted to the court a motion for

Default judgment in accordance with FRCP 55 (b)(2). See Dkt. # 29 entered in the general docket of

case 13 CV 5566, dated October 18, 2013. Exhibit # 2.

Judge Nelson S. Roman presiding of SDNY failed to act upon this application that till present time

failed to be acted upon by clear gross negligence and failure to perform the mandatory and ministerial

legal function to act upon the applications submitted to the court. Nonetheless, judge Nelson Roman

acting sua sponte, in a Memorandum and Order, ordered that Motion for Entry of Default pursuant to

FRCP Rule 55(a) be “terminated” without any explanation. His Memorandum pertinent to case 13 CV

5566, state that “In sum, the Court finds that the Plaintiff failed to properly plead any case of action”.

This characterization is false and misleading as judge Roman by fraud upon the court, failed to

adjudicate Plaintiff’s Complaint causes of action pertinent to 42 USC Sec. 1983, as well as causes of

action of Plaintiff’s causes of action pursuant to USC Sec. 15 c named State Attorney General

prosecuted by Plaintiff under RICO where AG is sued in his official capacity, as well as the associates

in the “Enterprise” racketeering acts precluded of an opportunity to claim 11th Amendment defense.
Instead, judge Roman plagiarized word-by-word Discussion and Argument of Memorandum of

Decision and Order of the case of Anghel v. NY State Department of Health et al. (US District Court

Eastern District Of NY, 2:12-CV-03484 (ADS)(WDW), dated 5/29/2013 where 11th Amendment and

absolute immunity of the defendants indeed applies to.

9. Wherefore, it is incontrovertible that the Defendants in the aforementioned legal cases defaulted as

a matter of fact and law, by failure to submit a timely answer or motion within the limits of time

established by the statute under FRCP Rule 12.

10. Wherefore, it is incontrovertible that the defendants in both legal cases, did not ask the Plaintiff or

the court for an extension of time to submit a responsive pleading, or contest the default by submitting

any evidence, nonetheless inadmissible, due to counsel of the defendants AAG Pepper,

acknowledgment of default. In addition, Counsel of defendants, AAG Joshua Pepper, requested this

court that his motion for Dismissal of Complaint in accordance to FRCP 12(b)(6), need not convert the

instant motion to one for summary judgment. See Defendants Memorandum of Law in support of their

motion to Dismiss and in opposition to Plaintiff’s motion to disqualify counsel., page 3, bottom.

11. Wherefore, it is incontrovertible that the default of the defendants in both legal cases, created a

moot court that precluded such court to proceed further, due to lack of standing.

Therefore, this court should take notice that the Orders and Judgments decreed by this court in lack of

subject matter jurisdiction, are void as a matter of law, null and unenforceable and could be attacked at

any time as by this application.

Thus, Plaintiff requests this Court to grant the relieves requested in the Complaints of fore captioned

legal cases. This Affirmation is served in lieu of an affidavit in accordance to 28 USC Sec. 1746 and

the undersigned, Plaintiff in this legal action in good faith declare under penalty of perjury that the

foregoing statements and contentions are true and only the truth, so help me God in this legal action.

6
God bless US of America my beloved adoptive country!

God save US of America from its enemies from outside and within!

May 12th, 2015

Somers, NY ___________________________

Mircea Veleanu, acting Pro Se

275 C Heritage Hills

Somers, NY

Telephone: 914-617-9304

Email: objetsdartuniques@comcast.net

7
United States District Court

Southern District of New York State

Docket number 13 CV 5566 (NSR)
Docket number 13 CV 5693 NSR
_______________________________
Mircea Veleanu
Plaintiff
V.
Andrew Cuomo et al
Defendants
_______________________________________________________________________
Mircea Veleanu
Plaintiff
V.
Janet Spiridonakos
Defendant
Freeboard International, Inc.
Defendant
________________________________________________________________________
PLAINTIFF’S AFFIRMATION IN SUPPORT OF MOTION AVERRING LACK OF
STANDING TO RENDER ORDER AND JUDGMENT THAT ARE MOOT DUE TO THE
LACK OF SUBJECT MATTER JURISDICTION OF THE COURT
________________________________________________________________________

I, hereby, Mircea Veleanu, Plaintiff in the above captioned legal actions, declare under the penalty of

perjury that the following statements are true and known to me be accurate as being a factual witness of

the material facts. This declaration is in compliance with 28 USC Sec 1746, submitted in good faith in

support of the undersigned’s application for the annulment of the moot Orders and Judgments decreed

by this Court in lack of standing and consequent lack of subject matter jurisdiction.

1. The undersigned, Plaintiff in the fore captioned legal cases, challenges the subject matter

jurisdiction of this federal court of justice who knowingly rendered unenforceable Orders and

Judgments, void ab initio in clear lack of jurisdiction.

2. This application for relief is pertinent to two legal cases, 13 CV 5566, and 13 CV 5693,
consolidated by Nelson S. Roman, presiding judge of this Court, who rendered an Order and Judgment

by which he dismissed both cases in a single decision after the consolidation. Thus, this application is

legally challenging the subject matter jurisdiction of dismissal of the Complaint in both fore captioned

cases, by a single contemporaneous instant decision and Order of this Court dated November 12, 2013

(Dkt. # 47 in case 13 CV 5566)..

3. Subject matter jurisdiction never can be waived, never can be disregarded by a court due to lapse of

time or course of events, other than sufficient pleading in an unprejudiced court. When subject matter

jurisdiction is challenged (as in the present application), the party asserting that the court has subject

matter jurisdiction (in the present case, judge Nelson S. Roman who acted sua sponte), has the burden

of showing that such jurisdiction exists. Once the court has knowledge that subject matter jurisdiction

is lacking, the court (judge Nelson S. Roman) has no discretion but to dismiss the action and grant

summary judgment to the party who asserted and proved the default of the defendants.

4. The background of case 13 CV 5566, reveals that the defendants were served by Plaintiff with the

waiver of summons on August 9th, 2013 and according to FRCP 12(a)(1)(A)(ii), the Answer or a

Motion was due “within 60 days after the request for a waiver was sent”. Thus, in order to comply with

the above cited Rule, the Answer or a Motion had to be submitted prior October 9th., 2013. Nonetheless,

the defendants submitted a Motion to Dismiss, on October 11, 2013. (See Dkt. # 22 dated 10/11/2013).

As such, the defendants defaulted as a matter of fact and a matter of law.

5. The background of case 13 CV 5693 illustrates that defendant Janet Spiridonakos and Freeboard

International, Inc., were served with the Waiver of summons on August 14, 2013. Rather than

responding to the Waiver of summons, on August 30, 2013, she made a voluntary appearance in the

Court presided by judge Vincent Briccetti. She did not retain legal representation for the Corporation,

Freeboard International, Inc. and subsequently, the Corporation defaulted on October 14, 2013. In

accordance with FRCP Rule 12(a), Defendant Spiridonakos failed to submit a responsive pleading
within the time provided by the Rule and subsequently defaulted as a matter of fact and law in the case

13 CV 5693 prosecuted for breach of contract and acts of fraud. (on October 22, 2013, she submitted a

tardy motion to dismiss both legal cases (irrational, as in case 13 CV 5566, she was not named as a

defendant and defendants’ counsel, Joshua Pepper refused to defend her). This motion irrationally

invoked res judicata, collateral estoppel and Rooker Feldman doctrine, when she was not ever sued by

the Plaintiff in the state court, or any court. Such motion would entitle any unbiased presiding judge of

a federal court to deny the motion and request a psychiatric evaluation of the defendant.

6. Subsequent to Defendants default, on October 18, 2013, Plaintiff submitted a motion for Entry of

default in accordance with FRCP 55(a) to be entered by the clerk of court, Ruby Krajick. (See Dkt. # 6

of case 13 CV 5693). Exhibit # 1. FRCP 55(a) provides that when a party fails to plead, the clerk of

court must enter a default. Although Plaintiff Veleanu moved under Rule 55(a) and submitted all the

required documentation including the affidavit in support, the clerk of court failed to act upon the

properly submitted motion without any defect. FRCP 55(a) is not discretionary and obliges the clerk

of

court to comply to ministerial function, otherwise, is considered gross negligence and prosecuted as

an obstruction of justice in a potential suit. Rule 55(a) clearly specifies: “Entering a default. When a

party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend,

and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default”. On

November 12, 2013, judge Roman “terminated” Plaintiff’s motion without any dictum, reasoning or

explanation that determined him to act so. Judge Nelson Roman violated Plaintiff’s due process rights

in dismissing applications without any legal support to do so, without hearing or even a conference,

whatever. As a matter of fact, Plaintiff never saw judge Roman who decreed all his orders and

judgments from the bench without any hearing or an initial conference.

 7. In addition, the defendants of case 13 CV 5566 did not default for the first time. On November 14,

2013, Plaintiff submitted a motion to strike defendants’ motion to dismiss pursuant to FRCP Rule 12(f),

as redundant, immaterial and impertinent based on the incontrovertible facts that defendants’ counsel

submitted a motion to dismiss that was identical in the documents submitted with the motion to dismiss

in the Supreme Court of NY Appellate Division Second Department. The identical motion to dismiss

was actually denied by the Supreme Court of NY Appellate Division in the Article 78 proceeding.

Further on, res judicata, collateral estoppel and Rooker Feldman doctrine prevent the defendants’

counsel to submit the identical motion to Dismiss the Complaint in the federal district court. More

importantly, defendants’ counsel did not contest or reply in defense to Plaintiff‘s application, thus the

unopposed motion is deemed to be accepted by

the court as a matter of law, based on defendants’ default by failure to defend.

8. In addition to the application pursuant to FRCP 55 (a), Plaintiff submitted to the court a motion for

Default judgment in accordance with FRCP 55 (b)(2). See Dkt. # 29 entered in the general docket of

case 13 CV 5566, dated October 18, 2013. Exhibit # 2.

Judge Nelson S. Roman presiding of SDNY failed to act upon this application that till present time

failed to be acted upon by clear gross negligence and failure to perform the mandatory and ministerial

legal function to act upon the applications submitted to the court. Nonetheless, judge Nelson Roman

acting sua sponte, in a Memorandum and Order, ordered that Motion for Entry of Default pursuant to

FRCP Rule 55(a) be “terminated” without any explanation. His Memorandum pertinent to case 13 CV

5566, state that “In sum, the Court finds that the Plaintiff failed to properly plead any case of action”.

This characterization is false and misleading as judge Roman by fraud upon the court, failed to

adjudicate Plaintiff’s Complaint causes of action pertinent to 42 USC Sec. 1983, as well as causes of

action of Plaintiff’s causes of action pursuant to USC Sec. 15 c named State Attorney General
prosecuted by Plaintiff under RICO where AG is sued in his official capacity, as well as the associates

in the “Enterprise” racketeering acts precluded of an opportunity to claim 11th Amendment defense.

Instead, judge Roman plagiarized word-by-word Discussion and Argument of Memorandum of

Decision and Order of the case of Anghel v. NY State Department of Health et al. (US District Court

Eastern District Of NY, 2:12-CV-03484 (ADS)(WDW), dated 5/29/2013 where 11th Amendment and

absolute immunity of the defendants indeed applies to.

9. Wherefore, it is incontrovertible that the Defendants in the aforementioned legal cases defaulted as

a matter of fact and law, by failure to submit a timely answer or motion within the limits of time

established by the statute under FRCP Rule 12.

10. Wherefore, it is incontrovertible that the defendants in both legal cases, did not ask the Plaintiff or

the court for an extension of time to submit a responsive pleading, or contest the default by submitting

any evidence, nonetheless inadmissible, due to counsel of the defendants AAG Pepper,

acknowledgment of default. In addition, Counsel of defendants, AAG Joshua Pepper, requested this

court that his motion for Dismissal of Complaint in accordance to FRCP 12(b)(6), need not convert the

instant motion to one for summary judgment. See Defendants Memorandum of Law in support of their

motion to Dismiss and in opposition to Plaintiff’s motion to disqualify counsel., page 3, bottom.

11. Wherefore, it is incontrovertible that the default of the defendants in both legal cases, created a

moot court that precluded such court to proceed further, due to lack of standing.

Therefore, this court should take notice that the Orders and Judgments decreed by this court in lack of

subject matter jurisdiction, are void as a matter of law, null and unenforceable and could be attacked at

any time as by this application.

Thus, Plaintiff requests this Court to grant the relieves requested in the Complaints of fore captioned

legal cases. This Affirmation is served in lieu of an affidavit in accordance to 28 USC Sec. 1746 and

the undersigned, Plaintiff in this legal action in good faith declare under penalty of perjury that the
foregoing statements and contentions are true and only the truth, so help me God in this legal action.

God bless US of America my beloved adoptive country!

God save US of America from its enemies from outside and within!

May 12th, 2015

Somers, NY ___________________________

Mircea Veleanu, acting Pro Se

275 C Heritage Hills

Somers, NY

Telephone: 914-617-9304

Email: objetsdartuniques@comcast.net