LYCEUM AFFIDAVIT SALVO #2 ...
this second affidavit should help break a judicial logjam:
The existence of the case at all was challenged as, based on the record before the court on the date the first motion was made, it was more than a year from the default of Richmond and the Lyceum to the date of the first motion.
To avoid the case being deemed abandoned, the court, Judge Donald Scott Kurtz, went outside the record to use facts not presented to the court by the time of the initial motion or with the initial motion. That is extremely uncool as it is a judicial rule that they can only rule on what was on the record and cannot go outside the record to make the decision or to latter justify the decision. But that is what Judge Donald Scott Kurtz did. Shame on him. The appellate court backed that play. Shame on them.
Those decisions opened quite a can of unintended consequences worms.
The first affidavit deals with the unintended consequences on the first motion in the case. If there was an appearance by counsel that counsel needed to be served and, since the case is not abandoned, the papers (motions and decision) in the case were reviewed and found lacking. Thus the first affidavit that will help unwind the first decision by the court in the case.
Having given the plaintiff a mulligan on the abandonment of the case,
should the court give the Plaintiff another mulligan on:
- the bad service of the first Notice of Motion
- the bad content of the first Notice of Motion
- the court premising its decision on non-existent documents
- the court granting what was not requested
we move to DEFCON 2 - Nextstep to nuclear war,
BATTLE AGAINST THE TIME TRAVEL MULLIGAN.
That is the second affidavit, which is blazingly simple.
Since the court and appellate court have ruled, in effect, that Richmond and the Lyceum appeared by an attorney, all Notices of Motion needed to be both served on that attorney, and, they must conform to statute, specifically did they serve the attorney for Richmond and the Lyceum and, the facially fatal defect in the Notice of Motion, is notice to appear a decade in the past, proper advance notice of the motion?
>>>>> From the MARCH 17, 2011 NOTICE OF MOTION FOR JUDGMENT OF FORECLOSURE AND SALE
- Note the date of the Notice, March 17, 2011 (Page #2).
Note the date of the noticed hearing, April 18, 2001 (Page #1),
a decade in the past.
>>>>> From the statute on how much notice is required to invoke the power of the court (in red):
CPLR 2214 - Rule 2214. Motion papers; service; time
(a) Notice of motion. : A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.
(b) Time for service of notice and affidavits.A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.
>>>>>> FROM THE CASELAW
All you now need is caselaw, and there are hundreds of cases that say that less than statutory notice never invokes the power of the court.
We are creating a list of those cases to choke the court with. They will all be here.
With that being done, YOU CAN HELP SAVE THE BROOKLYN LYCEUM!
All you need is an affidavit swearing to what you have read, TWO WHOLE PAGES and that the Notice of Motion instructs all parties, on March 17, 2011 to appear on April 18, 2001 (good job inspectors, you are smarter than a fifth grader;) )
We are working on that affidavit at the moment, so, if you want to let us know you have done the requisite docket review and are ready willing and able to sign and send a notarized affidavit, contact us (https://brooklynlyceum.com/contact ) telling us you are ready to do Affidavit #2 and we will reach out when we have the affidavit ready.
ONCE MORE UNTO THE BREACH INDEED! (our motion paper mockup (for the first motion premised on Affidavit #1), opinions welcome.