ABANDONMENT = NO MORE BLINK
Greystone and Blink are at the mercy of the misrepresentation of foreclosure attorneys.
BLINK BLANK BLUNK - abandoned complaint = no foreclosure
Two years and waiting for oral argument at AD2.
That is the unfortunate circumstance, but that circumstance has not stopped the flood of inquiries about the future of the Lyceum.
As we believe that the appeal is airtight and we want to get the word out about what the battle revolves around, we present this mini-argument for public consumption so the world can see how the system must work.
BASICS of Every Appeal
With any appeal there are :
-- the merits : the issues of the case or decision
-- jurisdiction, which has three aspects:
--Personal - Were you served properly?
--Subject Matter - does the court have the power to hear this particular type of cases (small claims court cannot hear claims for more than $5,000.)
--continuing controversy: a dispute must still exist at each and every point in the case.
MERITS NOT REACHABLE absent a dispute before the court.
The Lyceum will argue that lower court had no right to enter any decision on the merits...
or a non-merits based default because, on a date months prior to the motion for a default judgment, the case was abandoned as defined by act of the NYS Legislature.
What Does Lyceum Appeal Challenge?
- The Lyceum does not contest proper service.
- The Lyceum does not contest that the court had subject matter jurisdiction.
- The Lyceum does not dispute that there was a dispute before the court on the date the complaint was initiated (03/17/2008).
What is disputed is whether there was a dispute before the court on the day the motion for a default judgment was made (10/26/2009).
How the court lost the right to rule in the case?
- Service on Richmond: 4/17/2008
- Date affidavit of service filed: 5/7/2008
- Date service was complete: 5/17/2008
- Richmond time to answer: 30 days starting 10 days after completion of service: 6/16/2008
- Date of next action by Plaintiff: 10/26/2009
- Date service complete (DateA): May 17, 2008
- That date + 30 days (DateB): June 16, 2008
- Date of first action in case (DateB): October 26, 2008
- Days between DateB and DateC: 498
There were 498 days from the default until the motion for default.
The NYS Legislature, in an effort to keep stale claims from hanging over the heads of defendants, created a statute to define the point at which a complaint and the court's power to rule in the case, cease to exist.
That point is 365 days from default.
498-365=133 DAYS LATE.
CPLR 3215c - the abandonment statute
The NYS Legislature created a statute, CPLR 3215c, that echoes a historic ruling by the US Supreme Court.
In 1868 Justice Salmon P. Chase said in U.S. Supreme Court. Ex parte McCardle, 74 U.S. 7 Wall. 506 506 (1868):
'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.'
That Supreme Court case case makes it clear what EVERY COURT IN THE COUNTRY MUST DO WHEN JURISDICTION IS LOST.
The court MUST DISMISS THE CASE!
The relevant part of the NYS Statute:
CPLR 3215 (c) :
Default not entered within one year. If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.
Just how late?
The statute says on the 366th day after default, the case becomes abandoned and the court cannot rule in the case, it must dismiss the case as abandoned.
That is because, absent action for that many days, the NYS Legislature has defined it, by an act of statute, as abandoned for failure to prosecute.
As was shown earlier, the motion for default was not until 498 days after default, some 133 days too late.
Cherry on Top
One can check that math forever and it will not change.
One additional fact slams the door shut on Greystone / Blink.
The decision (that the court could not make) states quite explicitly the following:
"""...more than the legally required number of days had elapsed since said defendants were so served and/or appeared; and that none of the defendants had served any answer to said Complaint, nor had their time to do so been extended..."""
So, as we shall see next, the combination of the dates of completion of service and date of motion combined with the judgment of foreclosure and sale shut the door hard on Greystone / Blink.
...NEXT PART COMING SOON...
DOMINO 1 - RECORD BEFORE THE COURT