The Penguin’s Downfall

For the final installment of the Penguin Trilogy, (faithful readers of my missives should be more than familiar with my crusade against Judge Penguin), I detail the account of when I soundly and wholly drubbed the Penguin into submission, so that nothing he could do could stop me from winning, and where no ridiculous evil scheme he devised could get him his way.

We had a run-of-the-mill emergency room hospital bill at Gotham City Hospital for what the patient believed to be a heart attack, but what turned out to be heartburn. But that didn’t stop Dwayne Schneider from having Ann Romano take him to the hospital.  (Yep, 70’s sitcom, and Batman. Totally mixing up pop culture allegories.)

Schneider presented insurance, but apparently, when he wasn’t the superintendent of that apartment building in Indianapolis, he was moonlighting at Arkham Asylum. Accordingly, the insurance carriers denied payment because they did not know which carrier was the primary insurance, and Schneider never responded to any mail from the carrier, or the hospital.

So, we sued Schneider. He telephoned us, and told us he was too busy taking care of Mackenzie Phillips and Valerie Bertinelli. Then, he told us that he was also too busy cleaning up after The Riddler’s messes in the mess hall. Either way, it was clear he was served process. But Schneider never responded to the pleadings, and we entered a default judgment. We then sent a wage garnishment to Arkham, who began to pay on a regular basis, as apparently, the high turnover at Arkham leads to a lucrative pay scale.

Two years later, the entire judgment was satisfied, including costs and post-judgment interest. Then Schneider called our office, and said that he was a victim of identity theft. He alleged that he did not work at Arkham Asylum. He said he was never in Gotham City Hospital. He claimed identify theft, and he even identified the person who had done it! It was the Janitor from Sacred Heart Hospital, who, while not cleaning up after Zach Braff, (confused yet? I am.) had implemented a scheme where he would not only steal Schneider’s identity to apply for jobs, work, take out credit cards, but also go to the Hospital with Schneider’s best friend.

Any way, Schneider brought an Order to Show Cause to vacate the judgment, and have the funds returned. He also filed an Attorney General complaint for the identity theft, and also filed a police report with Commissioner Gordon. Of all Judges to be assigned, it went to Judge Penguin. Despite my vehement opposition, Judge Penguin vacated the judgment and dismissed the case, on the basis of Schneider’s flimsy allegation of identity theft.

I immediately filed a Notice of Appeal, a temporary stay, and a Motion to Reargue. On the return date of the Motion to Reargue, Schneider appeared, and now, no longer spoke English, requiring a Creole interpreter. As such, the case was adjourned. The next time, the interpreter was there, but Schneider was not. Judge Penguin adjourned it again. The next time, all parties appeared. At this Court appearance, I presented a cogent argument that Schneider was clearly on notice, indicative by the telephone calls and wage garnishment that was unopposed for over two years. Judge Penguin did not want to hear it. He wanted me to litigate the issue of identity theft. I told him that I was prepared to do so, but was handcuffed because I could not obtain the medical records. Accordingly, in the middle of the Court room, on the record, Judge Penguin had Schneider execute a blanket medical record release authorization, and gave me a whopping two weeks to prepare for a hearing on identity theft.

As such, I contacted Gotham Hospital, who provided me with records for two dates of service, where Schneider was admitted. Both times, he was accompanied by Ann Romano, and have her contact information. Both times, he signed the consent to the treatment and guarantee of payment. Apparently, before this admission, Schneider was admitted for a knife wound to the left hand.

What I did next was something that would make Bruce Wayne proud. I cut and pasted (physically, with scissors and glue, not Ctrl+C and Ctrl+V) Schneider’s signature line from the Order to Show Cause affidavit, the Federal identity theft affidavit, the Gotham City police report, the two medical record consents, and the medical record release authorization onto a piece of paper, in random order, and then photocopied the list.  I made an “Answer Key”, on a separate page, showing the corresponding source of each signature. Each signature was identical, and it didn’t take a graphologist to ascertain that they were identical.

On the hearing date, I presented Schneider with the list of signatures, and directed his attention to the first one.

“Mr. Schneider, I am showing you the first line, marked line A. Is that your signature?

(Through the interpreter) “No, it’s not, that is a forgery! By the Janitor!”

I responded, “I would like to direct the Court’s attention to the corresponding document, marked as Exhibit ‘A’. Mr. Schneider, do you recognize that document?”

“It is a forgery. I have never seen it before.”

“Please let the record reflect that Exhibit ‘A’ is the medical record release authorization signed by Mr. Schneider in open Court, before Your Honor at the previous Court appearance. Mr. Schneider, please look at line B. Is that your signature?”

Judge Penguin interrupted. “I see where you are going, counselor. No need to belabor the point. I am still inclined to believe Mr. Schneider.”

“Fine, Judge. I would like to move onto another line of questioning. Mr. Schneider, have you ever been in Gotham City Hospital?

“No, never. Never in my life. The Janitor has, though. And he pretended to be me. I don’t have a heart problem. I never had a heart attack.”

“I don’t doubt that.” I replied. “Mr. Schneider, would you mind holding your left hand up to the Court?

“Why?” asked Judge Penguin.

“Your Honor, in the medical record for a patient named Dwayne Schneider, with an identical signature the person sitting on the stand, it shows that Schneider was stabbed in the left hand, and required surgery.”

“I don’t appreciate your theatrics.” said the Penguin.

“If you look at his hand, and there is no stab wound, I will move on.” I responded.

Judge Penguin asked to look at Schneider’s hand, and there was a stab wound, just as the medical record detailed.

“Judge, do I need to continue?”

“No, counselor. Decision reserved.”

Five days later, I received a decision from Judge Penguin, vacating his prior decision, vacating the stay, and marking the case disposed of, as paid in full, and academic.

Since that case, Judge Penguin has been downright cordial to me. Goes to show that sometimes, good triumphs over evil.

 

Timothy Wan is a partner in the firm Smith Carroad Levy & Wan, in Commack, New York, and can be reached at twan@smithcarroad.com. Tim also affirms under penalty of perjury that other than the names being changed, that is almost exactly how it happened.

 

(Originally published in Commercial Law World Magazine, September 2011)

 

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