Courtesy of gowanagus.com- future Lyceum events
GOWANAGUS
Re-Programming the Brooklyn Lyceum. - Fighting the due process MARU it must and prepping to hit the swamp running.
Cliff Notes Version

Gowanagus.com: Managing the vote of Due Process Warriors who now come to the aid of the Brooklyn Lyceum.

The Brooklyn Lyceum has had its due process rights savaged in court and is fighting the fight to its inevitable conclusion, the restoration of those due process rights, come what may no matter the cost, as we all should.  

In short and simple terms, this is the problem:

  1.  You can't use evidence you withheld from the court when seeking and obtaining a judgment to validate the judgment when that judgment is later challenged, especially when that evidence contradicts sworn attorney affidavit.
  2.  If the court does accept such late evidence outside the record, that is a nun pro tunc action, a changing of history to be what the court "feels" it should have been.  And, that the court in nun pro tunc'ing of the past court must ensure that the other side is not procedurally harmed by the nun pro tunc changing of the past.  In this case, changing the past makes the affidavit upon which the judgment is premised perjury, and the court can have no part in perjury.  Thus the court should have, a la a now common Science Fiction theme (see Star Trek Voyager : Year of Hell), reset the timeline to the point of the change in history and let the case play out again from that point, just as the same court did weeks before in Fed. Sav. & Loan Assn. of Charleston v Tezzi 2018 NY Slip Op 05826 Decided on August 22, 2018 Appellate Division, Second Department.  From that decision:
    1. """
    2. In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (see CPLR 2001; Discover Bank v Eschwege, 71 AD3d 1413, 1414). The court may not make such relief retroactive, to the prejudice of the defendant, by placing the defendant in default as of a date prior to the order (see Khan v Hernandez, 122 AD3d at 803; Discover Bank v Eschwege, 71 AD3d at 1414), "nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur" (Discover Bank v Eschwege, 71 AD3d at 1414 [internal quotation marks omitted]; see Bank of New York v Schwab, 97 AD2d 450). Rather, the defendant must be afforded an additional 30 days to appear and answer after service upon her of a copy of the decision and order (see CPLR 320[a]; Buist v Bromley Co., LLC, 151 AD3d at 683; Khan v Hernandez, 122 AD3d at 803; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 750; Discover Bank v Eschwege, 71 AD3d at 1414).
    3. """
  3.  If the court does go outside the record and accept such late evidence, the court must ensure that the Plaintiff followed the due process procedural rules such evidence would have required.  In this case, not serving a non-appearing party is ok, not serving counsel for an appearing party is not ok, and is fatal to whatever was not noticed.

SUMMARY: If you got this far, you can see a potent legal storm a brewing and you might be a Due Process Warrior.

ROCKIN THE DUE PROCESS VOTE: The Brooklyn Lyceum is well aware that art spaces are hard to come by and harder to keep in operation, and that no man is an island.  To that end, the Lyceum has always worked with others to program the Lyceum.  It is no different now, for the Lyceum has hundreds of groups/individuals that have performed or taught or rented or held court at the Lyceum and thousands of performers that have performed at the Lyceum as probably the best pool of community arts knowledge in the entire country.

Since full-time programming was never the Lyceum founder's goal, what better way is there to thank/honor those Due Process Warriors who now come to the aid of the Lyceum as well as those who have already crossed the Lyceum Cultural Threshold and become Due Process Warriors, than to invite them to participate in determining the cultural future of the Lyceum?

When dust settles ...
Gowanagus will be at the ready for programming the Brooklyn Lyceum (or any transitory stop-gap), be it theater, music, debate, classes or dance.

To that end we are lining up productions we will produce, about 20%, and seeking submissions for production from others.

We are also opening up the voting process on programming to a wide swath of the warrior public who come to the aid of the Brooklyn Lyceum.

Read a little, think a bit, scribble your name on an affidavit or two and, maybe, park your but in a courtroom on occasion.  With these simple acts the light of day can reach the innards of the halls of justice and due process can rise from an ashy grave.

Eventual Upside
The Brooklyn Lyceum held ground as a community facility of almost unimaginable variety of community activity from 1995-2014.

Then the Brooklyn Lyceum ran into a buzz saw of due process violations by Donald Scott Kurtz, Ellen Spodek, Devin Cohen, Reinaldo E. Rivera, to name a few.

What is mind-bogglingly inappropriate is that these decisions all sound in things as disconcerting as the following (although there are many more):

  • don't do a thing within a year of another thing and the case is abandoned,  and
  • the court can only rule using what is before the court when the motion is made, and
  • once you have an attorney, all papers must be served on that attorney, and
  • being noticed to appear a decade in the past is a fatal flaw to a motion, and
  • if the court, with its inherent powers, retroactively alters the case for one party, it must ensure the other party is not harmed, and
  • the court can't just change the words in an appeal brief to create a statute of limitations.
  • Siegel's Practice Review is not irrelevant (COHEN).
  • you can't avoid a motion to dismiss by an amended complaint (COHEN)
  • you can't ignore jurisdictional challenges (COHEN). 

Armed with such simple things, the Brooklyn Lyceum is confident that, when the dust settles, the Brooklyn Lyceum will rise from the legal ashes and must hit the swamp running with programming.

Gowanagus.com is that programming mission.

And, since programming a theater was never the founder's life goal (save for a few annual productions), the programming is being opened up to all those who stand for her now with extra thanx to those who stand for her now who crossed the Lyceum Cultural Threshold.



Programming

Operating for two decades as a central public square for Brooklyn, and hosting a little bit of everything imaginable,

The large open spaces and the more intimate mezzanine spaces became a launching pad for hundreds of artists and an event venue that hosted tens of thousands of patrons.

Once the Lyceum legal dust settles, the Lyceum will return to such a varied programming, this time with the founder programming about 20% and an involved community choosing the rest.

VOTING

Whomever has put "skin in the game", by way of standing for the Brooklyn Lyceum now (with added votes for those who crossed the Brooklyn Lyceum Cultural threshold in the past) ...

Will be able to cast votes for programming at the Brooklyn Lyceum.

How many votes is dependent on the level of earlier participation and how early and often you come to the aid of the Brooklyn Lyceum in its hour of need.

All voted are anchored, or vested, by receipt of first signed affidavit that meets some minimal criteria on content and form.

CREWE Votes
Sweep floors, take tickets, draw espressos, bake, negotiate agreements, do artwork, help marketing under Lyceum direction?

All these and more prove you crossed the Lyceum threshold for good in the past.

 How many votes do you get?

Well, we are working on an algorithm for that.  But you will have a say.

UnCREWE Votes

Did you book the Brooklyn Lyceum, perform here, fulfill a role integral to an event or run (director, lighting design, costume design, etc.)?

If so, you have garnered votes you can vest by stepping in and stepping up for the Brooklyn Lyceum

MARKET Votes

Were you a vendor at a market or a con? Did you do something at a market (face painting, silk screen class)?

If so, you have garnered votes you can vest by stepping in and stepping up for the Brooklyn Lyceum

RENTAL Votes

Did you rent the Lyceum for  Production, Class, Event (private or public), ...?

If so, you have garnered votes you can vest by stepping in and stepping up for the Brooklyn Lyceum

WARRIOR Votes

After having vested your votes by way of initial affidavit, add to the votes every time we use your affidavit and for each additional affidavit (for different issues) submitted (and accepted) and each use of the same.

More votes are garnered votes you can vest by stepping in and stepping up for the Brooklyn Lyceum by way of appearances when summoned.

****And, if you crossed the Lyceum threshold in any fashion more than a consumer (produce, act, design, teach, work), extra votes are allocated base on the type/length/number of such threshold crossings.

ProxyVote

Voting on day to day programming may not be your thing.

You can tell us, that until you say otherwise, your votes are held by proxy by another voter entity.

For example, if you are  fan of a particular theater group that also has vested votes, you can temporarily assign your votes to that group.

So make sure that group has stepped up also so they can receive your votes.

TransferVote

You may just want to transfer some votes, forever, to another voting entity.  

That is fine by us as you have stepped in and stepped up for Due Process and the Brooklyn Lyceum.

So make sure that group has stepped up also so they can receive your votes.

RULE of Vote

SUBJECT TO CHANGE

  • Voting will be done online.
  • Voting may eventually be done by BlockChain to keep some relative anonymity and some transparency to the voting process.
  • Voters will be given a few days advance notice of what programming options are up for a vote along with a minimal press pack, blurb, pics, videos, URLS and a basic description of the event/activity.
  • You can either vote on the proposed activities, not vote and your vote will have no value for that activity or you can actively "rollover" up to 6 votes (just like minutes in your phone).
  • Any vote that is unused after 6 voting opportunities loses all value.  You still get to vote as new votes occur, but past votes are gone if you wait too long.
  • Use a voting opportunity before the rollover expires!
  • Any votes unused for more than 12 months will immediately be traded in to the Lyceum, with choice of how to compensate for the votes left open for a year, after which the Lyceum chooses the compensation.

TradeInVote

In the end, voting on programming may not be what you want to do forever.

As noted, you can proxy or transfer your vote.

You can also trade in your vote, whenever. 

Today, tomorrow or next year.

Votes will be redeemable for volunteer time for a Not For Profit you can choose from an ever changing list.

The votes traded in will revert back to the Brooklyn Lyceum.

The trade-in process and value of votes TBD.

Stay tuned.

CAVEATS
This voting system is being developed under the set of circumstances unique to the Brooklyn Lyceum, violations of due process that will eventually get unwound.


Either:

  • the case, based on the papers presented to a judge, are taken at the sworn to under the penalty of perjury value they should have, and the case was abandoned by application of a statute (negating the sale of the Lyceum) .... or,
  • the court altered the past to the benefit of the plaintiff/developer without preventing harm to the defendant/theater (negating the sale of the Lyceum); or,
  • the affidavit a judgment is premised upon is perjury by way of the court altering the past, in and of itself killing the decision for fraud upon the court (negating the sale of the Lyceum), and
  • the failure to serve any papers on the attorney hidden from the court by perjury kills all relevant decisions (negating the sale of the Lyceum), or
  • no matter whom was served, all were noticed by the Plaintiff to appear a decade in the past which failed to invoke the power of the court in the motion for the sale of the Lyceum (negating the sale of the Lyceum), as the power of the court to rule on a motion is only invoked by proper notice or waiver of that notice.


Funding

It is imperative that both sides in a dispute before the court keep the court on its procedural toes.

Failure to stop a court from violating due process can only harm the entity that benefits from such violations.

In fact, when such violations of due process have jurisdictional impact, the harmed party can get damages from the party that benefitted from the harm.

We will be funding the Lyceum, or its proxy locations, operations and marketing from these accruing damages to the tune of 10% of the damages.

To that end we are creating a damages model such that the damages can be estimated.

What has happened ...

Brief Blow By Blow : (this is still a bit messy, working on cleaning up and simplifying the words)
  • Brooklyn Lyceum was, and will be again, a cultural town square from 1995-2014 having played host to:
  • 31 Bond, Fiona Apple, Vernon Reid, Polyphonic Spree, Knights Orchestra, Yo La Tengo, Brooklyn Mutt Show, King Con Brooklyn, Richard II, Craft Markets, Brooklyn Underground Film Festival, Brooklyn International Film Festival, Brooklyn Repertory Opera Company ...
  • Brooklyn Lyceum (as a defendant) gets sued by a Developer (as Plaintiff) over Mortgage (March 2008).
  • Developer seeks a decision from the court (assigned to Judge Donald Scott Kurtz)  (October 2009) premised upon Plaintiff attorney swearing no communication with or appearance by any Defendant.  Kurtz is up for re-election in November, 2019.
  • Developer gets a decision from the court (Kurtz) premised on Developer's attorney (now suspended from the practice of law) affidavit swearing, under penalty of perjury, no communication with or appearance by any defendant. (January 2011).
  • Lyceum/Defendant files motion to dismiss the case as abandoned (October 2012) as, absent any communication with or appearance by any Defendant, the Developer/Plaintiff failed to seek judgment within one year of Defendant Default in answering (June 2008) violating CPLR 3215c.
  • In opposition, in an attempt to show that there was less than a year between default and motion for judgment, same suspended from the practice of law attorney  submits evidence to the court that it withheld from the court when seeking the judgment premised on no communication with the Lyceum/defendant, communication with the attorney for Lyceum/ Defendant, information that was not before the court when it rendered the judgment in question.
  • The Court, Donald Scott Kurtz, instead of following Giglio v. Ntimp (can't present evidence after judgment to justify judgment when that evidence was available to movant seeking the judgment), goes outside the record to cover up  his failure to follow non-discretionary statute.
  • Appealed to the New York State Supreme Court, Appellate Division, Second department and appeal was fully briefed 12/2015.
  • Waited more than 2.5 years for oral argument, which finally occurred on September 6, 2018.
  • At oral argument, Appellant (Lyceum) raised a jurisdictional arguments, that, having now used an appearance by counsel by defendant/Lyceum to validate, in December 2012, a decision rendered in January 2011, the court, if it is going to accept the late evidence needs to deal with the impact of accepting evidence after the fact.
    • To wit #1: the Plaintiff now admits that Defendant/Lyceum  was represented by an attorney upon which no notice of motion for judgment was ever served. 
    • To wit #2: the Plaintiff/Developer now admits that the Defendant/Lyceum was, whether by counsel or otherwise, noticed in March of 2011 to appear in April of 2001, a decade in the past and a facial jurisdictional nullity that did not invoke the power of the court to rule.
    • To wit #3: the Plaintiff/ Developer now admits that the Defendant/Lyceum was never served the requisite notice of entry of the Judgment of Foreclosure and Sale.
  • The presiding judge, Reinaldo Rivera (up for re-election in November 2019), when addressing the issues presented at oral argument, said that the Second Department has an excellent reputation and that his court would get to the bottom of things.
  • The presiding judge, Reinaldo Rivera (up for re-election in November 2019), then asked the Respondent representative, Glenn Patrick Warmuth of Stim and Warmuth, what he had to say in response to the issues presented at oral argument,
  • To that, Warmuth replied that he would not be addressing anything raised that was not in the papers.
  • The appellate court then rendered a decision that ignored the jurisdictional arguments raised at oral argument.
  • The appellate Court Decision  found that a paper filed and date time stamped October 19, 2012, had been filed after a paper filed and date time stamped on October 26, 2012, and an impossibility the Appellate Court (Judge Reinaldo Rivera) has refused to correct.
  • The appellate court decision, when parsed with the knife of logic, reached a conclusion that, after accepting evidence not on the record at the time of the motion, found that Defendant/Lyceum had failed to timely answer, not that Defendant/Lyceum had failed to timely appear.
  • Left with a timely appearance by counsel for Defendant/Lyceum, the appellate court:
    • ==== failed to address the procedural requirements invoked and not fulfilled by the Plaintiff/Developer with regards to service of motions, a jurisdiction argument raised at oral argument.
    • ==== failed to address the procedural requirements invoked and not fulfilled by the Plaintiff/Developer with regards to service of notice of motion to appear a decade in the past, a jurisdiction argument raised at oral argument.

ASK ME ANYTHING

The Brooklyn Lyceum knows that all of this seems implausible, why would two judges up for re-election violate the due process rights of anyone?

Well, that is where we are and as a Markov Chain example, the question is not how likely are we to be here, but that being here, what are the likelihoods of the next possible results?

There may only be one chance in a thousand the Judge Donald Scott Kurtz would ignore anyone's due process rights and only one chance in a thousand that Presiding Judge Reinaldo Rivera would double down on violating those rights or add his own violations to the mix, but that 1/1,00,000 chance is where we are.

Given the one in a million chance of the situation, what are the chances that the Court of Appeals steps in and does what it must, address the jurisdictional arguments raised for the first time at oral argument and the misstatement of fact about when relief was sought?

We hope they do what they must lest faith in the system be damaged.

=====

But, you may still be thinking, "Lyceum, you are full of it!"

If so, Ask Me Anything and we will address it.

Just send your questions to : gowanagus@gmail.com

QUESTIONS:

...