Brooklyn Lyceum : Due Process Assist
Just Another F***KING Observer - or, you only get the rights you fight for ...
LYCEUM ATTENTION TODAY

OR NO JUSTICE  FOR ANYONE TOMORROW.

TL/DR: The Brooklyn Lyceum (LYCEUM), aka Public Bath #7 (designed by Raymond Francis Almirall), and a community fixture for 20 years as a theater and cafe, needs your help.

The way is clear and certain for the LYCEUM, but can be shortened tremendously with a little help from some friends, be they artists, locals, arts organizations or people / organizations (Brooklyn or otherwise) who think the rule of law and due process are good things, things the NYS Supreme Court and the Appellate Courts need to follow (and that the Appellate Court should not be in the business of suborning perjury or making up facts).

Quite simply, we had/have four slam dunk due process related appeals, waited forever to be heard and the Appellate Court actually lied at oral argument, made up facts (19 > 26), altered our appeal brief, ignored dealing with an inconvenient fact (45> 30) and retroactively altered perjury away for the Plaintiff in order to avoid the lower court being "dunked on".

With a little help from some friends, we may be able to resurrect the rule of law and due process, if even for a little while.

Pay it forward: Read, review, sign and send affidavit.  Maybe an hour of your life.  Maybe two.

By doing so you get some say in future LYCEUM programming, or, if that is not exciting, we will double your time investment in a cause you select.

>>>> Don't be scared, just :

  1. --learn simple rules about Jurisdiction in the next few tabs,
  2. --read about what went down (from the LYCEUM perspective),
  3. --watch/listen to parts of an oral argument,
  4. --look at 5 pages (3 pages of meat) of decision (noting the failure of the court to even acknowledge what went on at oral argument) and
  5. look at the timing of a few docket items 
  6. Sign an affidavit and send it to us.

>>>>Look at what we offer in return and make up your mind about paying it forward in the tab labelled OPTIONS.

>>>>You can see our ever growing list of prior activities/performers in the tabs at the end.

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LONG VERSION:

The Brooklyn Lyceum waited patiently for a decision after oral argument, more than three (3) months.

That was after waiting more than 2.5 years to be calendared (after the appeals were fully briefed by both sides and ready to be argued).

This was after filing four appeals revolving around 4 incredibly simple issues, sure shot wins that should have corrected lower court shortcomings:

  • --non-initiating plaintiff appearing without standing seeking a judgement of default and later committing unequivocal, yes unequivocal, perjury to cover up that appearance without standing,
  • --lack of standard / court ordered notice of a judgment at least 30 days prior to sale of collateral (the Lyceum itself),
  • --failure to serve another order within 30 days as mandated buy the order itself,
  • --refusal to allow attorney to appear who had filed motion (by way of Order to Show Cause), and
  • --whether, on the record before the court, created and submitted by only the plaintiff, was it more than a year from default (statutory time allotted to respond) to the motion seeking a judgment of that default (if so the case was abandoned).

As we had put non-trivial effort into the appeals and addressed both the strong points of our argument and any perceived weak points with argument, logic and case law specifically on point, we awaited decisions in 4 appeals expecting that the court would address the arguments and the case law presented and synthesize it with the facts of the case and the record on appeal and come to a reasoned decision.

We did not expect the Appellate court to MAKE UP FACTS.

Additionally, after we raised jurisdictional arguments for the first time at oral argument, a basic right for all people, the lead judge said the Second Department had an excellent reputation to uphold and that the court would get to the bottom of the issues.

We were shocked that the panel did not address, or even acknowledge, the jurisdictional arguments.

We were also sorely disappointed with decisions in the four appeals where :

  1. -- the Appellate Court made up facts,
  2. -- the Appellate Court misrepresented appellants's allegation of extrinsic fraud as one for intrinsic fraud thereby invoking a statute of limitations for intrinsic fraud that does not exist for extrinsic fraud,
  3. -- the Appellate Court selectively quoted a case directly on point to ignore the dispositive fact that an order was no longer in effect,
  4. --and, in the most interesting appeal, the Appellate Court just reiterated a challenged conclusion of law the lower court  while citing the same case as the lower court without addressing the arguments and decades of cases noted in the Appeal Brief finding exactly the opposite.

This is especially troubling since the case cited by both courts makes absolutely no sense when actually broken into component parts.  

The fourth appeal was procedurally dismissed in a way we found appalling as it puts a ridiculous burden on all litigants, especially pro se (self represented) litigants, when it is clear from the record presented that the lower court refused to hear a motion filed by an attorney without a notice of appearance when the client and filing attorney were present at the hearing, a situation where a notice of appearance is not required or useful, resulting in a clear lack of Opportunity to be Heard, a due process violation negating any subsequent decisions.

We long fought, some 20 years, to make the Brooklyn Lyceum an arts facility and we are not willing, after waiting 2.5 years just to get the appeal heard, to be brushed off like so much dandruff.

We will continue to fight for due process for as long as it takes, as the numerous and repeated jurisdictional violations of the court never go away, never expire and have no statute of limitations.

To that end, shining a little light on these simple issues, issues that are core to the American justice system, seems like a good idea such that others in the future can see things for what they are sooner.

If you, JAFO, find yourself convinced of these simple issues we will shortly explain, you can help, and maybe we can help you.

Help by becoming J.A.F.O., Just Another F***ing Observer.

It is simple. Read some documents, watch a couple of minutes of court video and evaluate what you have read. Sign and mail/email an affidavit to us.

Help the Brooklyn Lyceum by paying it forward by paying attention now to ensure others due process later.

Why anyone should care

 ... if due process falls by the wayside for a theater (Brooklyn Lyceum, AKA Public Bath #7)?

This is a very important question.

Why should anyone care about anything not directly related to themselves? 

Well, if it is OK for due process, also known as notice and opportunity to be heard, to be repeatedly and continuously ignored for the Brooklyn Lyceum, you can probably expect due process to erode such that you, your children and your children's children don't have any real rights left whatsoever.

Primarily, you should care:

  • --If you value the rule of law (constitutions and statutes).
  • --If you want that rule of law to apply to both rich and poor.
  • --If you want that rule of law to apply to judges.
  • --If you think due process (notice and opportunity to be heard) is a part of the rule of law.
  • --If you want the court to actually address your arguments in a decision.
  • --If you want the court to actually address the cases you cite in support of your arguments.
  • --If you want the judges to not flat out lie to you.
  • --If you want the courts to avoid any appearance of favoritism.
  • --If you want the courts to follow similar results for similar fact patterns, that is, rely on precedent that all can see (stare decisis).
  • --If you want to be able to handle simple things absent an expensive lawyer.
  • --If you want your lawyer to actually be a zealous advocate for your position, not just someone fearful of a vengeful court should the attorney challenge the status quo.
  • --If you want to make sure that all of the above apply to you, your children and their children.
  •  
  • Secondarily, you should care:

    1. --If you want there to be another arts facility in Brooklyn.
    2. --If you want moby dick: the sermon, a Charlie Brown Christmas, rocky: the musical, Richard II, The Nose and the Overcoat, Neofuturists ... at the Brooklyn Lyceum again (or any other theater production).
    3. --If you want  a home near the shores of the Gowanus Canal for such acts such as Fiona Apple, Jose Gonzalez, Yo La Tengo, Amanda Palmer or the Knights Orchestra.
    4. --If you think just a gym is a less than stellar use of the Brooklyn Lyceum.
    5. --If you want affordable opera.
    6. --If you want Shakespeare.
    7. --If you ever attended an event at the Brooklyn Lyceum.
    8. --If you ever performed at the Brooklyn Lyceum.
    9. --If you got married at the Brooklyn Lyceum.
    10. --If you really like Mutt Shows or Comicons or epic Markets.
    11. --If line dancing matters.
    12. --If film festivals are cool.
    13. --If you want better coffee.

Minutes for art justice

.. to make sure this doesn't happen to anyone you know.

You can help a theater, the Brooklyn Lyceum  (aka Public Bath #7), and others by doing the following simple things, a trip to a notary, and a stamp.

Here is what we need:

--Read this collection of sections a few times to get a handle on the concepts and some basic facts.

--Watch a couple of short snippets from Lyceum Oral Argument of four pretty straight forward appeals on September 6, 2018 from the horses mouth, the official New York State Appellate Division, Second Department (AD2) website.

--Watch a couple of short snippets where a panel at the same court said something we said in one of our oral argument snippets (that jurisdiction can be raised at any time, even at oral argument on appeal especially if the court could not have avoided finding that information with a review of the docket.)

--Read a few snippets from some historic Supreme Court of the United State (SCOTUS) and New York court cases.

--Read a three page decision, concerning three Lyceum appeals, and a two page decision, concerning the 4th appeal, noting that the jurisdictional arguments went unaddressed in either decision.

--Sign and send an affidavit to having seen the snippets, having read the brief case quotes and having reviewed the 4 pages of decisions that don't address jurisdiction.

Notary = skin in game

This is where you really pay it forward.  

Time is one thing, but swearing to the truth of something is another.

We lay it all out both simply and by references to unimpeachable sources.

We think this is how people have to pay attention to get noticed as internet based petitions have peaked and waned and are never part of the public record.

Here, by getting a notarized statement that you have seen some things, read some simple case law and sought out what does not exist but must in 5 pages of decisions for the court to have any power whatsoever, due process may have the slightest sliver of a chance of rising from the dead.

Jurisdiction : TL/DR

Jurisdiction is "the power to declare the law", which makes common sense, and is the actual definition used by the Supreme Court of the United States since 1868.

In New York City, Small Claims court is relegated to a dollar limit of $5,000, the subject matter of its jurisdiction being claims less than or equal to $5,000. Ask for $5,001 and the court has no power to do anything save for dismissing it without prejudice allowing the Plaintiff/Petitioner to file it somewhere else again without fear of res judicata, the rule against retrying a litigated case, or transferring it to a higher court, the civil court, which can hear claims greater than $5,000.

The court never obtains the power to rule if the amount is not within the statutory bounds of Small Claims.  The court never obtains jurisdiction.

Another example is if a Plaintiff withdraws the case as one of the tenets of jurisdiction is that there must be an actual dispute alleged. 

If, in initiating a case, the allegation of a dispute does not meet some minimum threshold, the Defendant can move to dismiss for failure to state a cause of action.

Again, the court can dismiss the case without prejudice leaving the Plaintiff/Petitioner to refile, this time after correction.

Then there is the place that is most interesting, what if the court had subject matter jurisdiction, but somehow loses it.

If a case settles, clearly the court has no power because there is no longer truly a dispute before the court.

If the Plaintiff withdraws the case, the court would have no power as there is no dispute before the court.

The New York State Legislature went further stating a complaint is abandoned by act of law (no court action necessary) if you serve a complaint,  a Defendant does not answer within the prescribed time (either 20 days if served personally or 40 days after proof of service), and more than a year passes after the expiration of the answering period without the Plaintiff making a motion for a Judgment of Default.

In this circumstance, the applicable law, CPLR 3215c is unequivocal law that the court must, on its own or on request of a party, dismiss the case as abandoned.

There is a savings clause in CPLR 3215c should the Plaintiff wish to use it.  If the Plaintiff can show something, almost anything, even a "dog ate my homework" excuse, that shows that the default really didn't happen at service of complaint + 20/40  days, it can ask the court to approve its "sufficient cause" for not seeking a default within the year.

Those things must be in the motion for default, tardy as it may appear to be, as decades of  case law unequivocally shows, or it matters not if there was just cause. 

Essentially, if you are late, you should know it and address it upon taking the tardy action.

This includes things like the parties spent months negotiating a settlement or extensions of time great enough to bring the tardy period under a year exist.

Case law also holds that those just causes must be backed by documentary evidence showing that the default was extended by the parties to a specific date, a sworn statement by an attorney, absent evidence to show exactly how the statutory default date was sufficiently tolled, fails.

Personal Jurisdiction:  There is a lot of flavors of personal jurisdiction, but there is one think you can take to the judicial bank.

If you are not served papers, the court has no power, and, any decision it reached and any act it takes premised upon the lack of service is what is called void ab initio, from the start, and NEVER is in effect even if someone has acted depending on the void ab initio judgment.  

In addition, if you have retained an attorney and have informed the Plaintiff of this hiring, all papers must be served on that attorney and not on the client.  Papers served on the client are a nullity and never invoke the power of the court.

Essentially, the court has no power if there is no notice. And the notice must be to the attorney if the attorney has appeared in the case.

Fail to serve the motion (notice the motion) on the known attorney for a party and any resulting judgment thereafter is void as the power of the court is never invoked by failure to serve the attorney for a party.

Serve a defective notice (say notice to appear in the past or with less than the statutory number of days notice), the decision of that hearing is void.

Jurisdiction: A Primer

Salmon P. Chase, Chief Justice of the  Supreme Court of the United States (SCOTUS) was the real deal.

In one decision way back in 1868, in the case known as IN RE McCardle, wherein he struck a blow for fairness when he defined jurisdiction in layman's terms: "Jurisdiction is power to declare the law ..."

Then he explained that absent jurisdiction, the court is unable to do anything: "Without jurisdiction the court cannot proceed at all in any cause."

Then that what the court must do if jurisdiction, once had, is lost:

"... when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."

To top it off he said the principle was so basic it did not need a law:  "And this is not less clear upon authority than upon principle."

Put all together:

"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 is a scorcher, a high hard one in baseball lingo. Jurisdiction is the power to rule and if it is lost, the game is over.

That limitation on the power to rule was chiseled in the American jurisprudence some decades later in U.S. v. Lee (1882):

"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes upon the exercise of the authority which it gives."

Challenges to jurisdiction must be addressed.

"The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." - Maine v. Thiboutot, 100 S. Ct. 2502 (1980).


Challenges to jurisdiction must be addressed by party asserting jurisdiction, the court can only rule on the sufficiency of the proof:

Jurisdiction, once challenged, is to be proven, not by the court, but by the party attempting to assert jurisdiction. The burden of proof of jurisdiction lies with the asserter. The court is only to rule on the sufficiency of the proof tendered.

If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof.  McNutt v. GMAC, 298 US 178.

The origins of this doctrine of law may be found in Maxfield's Lessee v Levy, 4 US 308.

What must be done if the challenge to jurisdiction shows the court does not or did not have jurisdiction?

Melo v. United States : "When it clearly appears that the court lacks jurisdiction, the court has no authority to reach the merits. In such a situation the action should be dismissed for want of jurisdiction."

Essentially, jurisdiction is the third rail of Justice, unless the court refuses to adhere to its inherent limitations in violation of U.S. v. Lee.  

Jurisdiction : is forever

"Rhode Island vs. Massachusetts, 37 U.S. 657 (1838)". “However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties.”)

Jurisdiction: no discretion to ignore
Joyce v. United States, 474 F. 2d 215 - Court of Appeals, 3rd Circuit 1973

"Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction."

Summary: What you now know.

You now know, beyond any question, that:

  • --Jurisdiction is the power to declare the law.
  • --Jurisdiction can be raised at any time and in any court.
  • --Once challenged, jurisdiction must be addressed by the court.
  • --The challenged opposing side must produce evidence of jurisdiction.
  • --The court must rule on the sufficiency of the evidence of jurisdiction presented.
  • --The court may only rule on the evidence presented.
  • --Absent any, or sufficient, evidence presented in support of jurisdiction, the court must dismiss the case.
ASK ME ANYTHING

The issues can't be this simple.

There must be a flaw in your logic!

The courts wouldn't make things up!

All of these are valid thoughts. We understand that what we are saying might seem incredulous. We understand that you might think we are leaving out things that should come before our arguments. Well, here is where you can ASK ME ANYTHING!

Just email your question / statement to jafo.bkn@gmail.com.

We will answer the questions here:

NOTES
The sections (tabs)now visible are just the beginning.  More will come online as they are fleshed out.
Anonymous peeps say ...
  1. No way this is true, you made it up!
  2. Appellate division can't afford to let a self represented (pro se) win.