Heads - Arts Wins ...
Tails Developers Lose ... but Brooklyn? - Lyceum will return, If due process has any meaning at all.
(blue & red bold tabs = overview, the rest = devilish details).
After a decade, the courts stopped kicking the Brooklyn Lyceum Foreclosure can down the judicial road and made a finding that threatens to make a mockery of due process, precedent, statute and common sense.
The ramifications of the contradictory court choices are unavoidable.
In order to avoid finding for the Brooklyn Lyceum and to avoid calling out the lower court judge (Judge Donald Scott Kurtz, up for re-election 11/5/2019) for failing to do what a statute required, the appellate court (Judge Reinaldo Rivera, up for re-election 11/5/2019) made up a fact and doubled down on the lower court going outside the record, creating a situation wherein a plaintiff obtained a judgement upon swearing no appearance by the Lyceum and, when that judgment was challenged, obtaining a validation of that judgment premised upon the Plaintiff swearing the Lyceum appeared.
Judicial Wave-Particle duality, indeed!
In addition, the appellate court ignored its own recent precedent of ensuring that no harm is done to a party when the court retroactively alters the record for another party.
The retroactively altering the record also retroactively invoked some due process requirements the Plaintiff utterly failed to meet, requirements the appellate court failed to address.
The inconvenient fact, addressed in detail further on, is that due process violations fail to invoke the power f the court, and, due to that, there is no statute of limitations to address them.
What follows is why we keep fighting, like many others in life, because we are right.
Benjamin Ferencz: And I'm still in there fighting. And you know what keeps me going? I know I'm right.
The higher court (Judge Reinaldo Rivera, up for re-election November 5, 2019) has avoided, at all costs, calling out a state court judge (Judge Donald Scott Kurtz, up for re-election November 5, 2019) violation of a non-discretionary statute, AND Judge Reinaldo Rivera
- --made up a fact to decide the case, and
- --doubled down by citing a never cited before not-on-point case rather than citing his own 120+ times directly-on-point case, and
- --went outside the record to benefit a developer by retroactively changing the past for the benefit of that developer absent the requisite analysis of whether that retro-active changing of the past invoked any unmet procedural requirements, of which there are several, and
- --by that retroactive alteration of the past, making necessary Plaintiff documents perjury or, again, retroactively, waived Plaintiff attorney perjury.
The same appellate court has opined that "old law is good law" while ignoring a few SCOTUS granddaddies, U.S. v. Lee (Judges are creatures of the law and jurisdiction is forever) and Ex parte Mccardle (a court that loses jurisdiction it once had must admit it and dismiss the case).
In the end, one question determines what is required of the court, but even that question does not substantively alter the required outcome, the sale of the Brooklyn Lyceum must be vacated as the power of the court to authorize its sale was never invoked.
Did the Brooklyn Lyceum appear in the case or did the Brooklyn Lyceum not appear in the case?
Did the Brooklyn Lyceum appear in the case (from the record) or did the Brooklyn Lyceum not appear in the case (from outside the record) or did the Brooklyn Lyceum both appear and not appear at the same time? (from the record and from outside the record)
The 1st (did not appear) leads to the required dismissal of the case as abandoned (negating the sale of the Brooklyn Lyceum), the 2nd (did appear) will force the court to reset the case to before any action was taken in the case (negating sale of the Brooklyn Lyceum) with the Plaintiff's failure to serve any papers on the attorney for the defendants, and the 3rd (both appeared and did not appear) is the ridiculous situation of the case, which is perjury, by definition of swearing to two opposite things (negating the sale of the Brooklyn Lyceum).
- --#1 - The Plaintiff swore no appearance and no extension of time to answer in a required affidavit in support of a required foreclosure motion.
- --#2 - The decision is premised on that required affidavit swearing non-appearance and non-extension of time.
- --#3 - Absent, from the record, any interaction with the Plaintiff whatsoever, the court was bound by an abandonment statute, CPLR 3215c. That statute says if more than one year between last date to answer for a defendant and the Plaintiff motion towards getting a judgment of default in the case, the case is abandoned by act of statute and the court, when presented with such clear facts, must dismiss the case as abandoned.
- --#4 - The last date for the Lyceum to answer, 30 days after the summons and complaint was served on the Secretary of State on April 7, 2008, was May 7, 2008.
- --#5 - The last date to file was that date May 7, 2008 + 365, or May 7, 2009.
- --#6 - The motion was filed on October 26, 2009, some 537 days after the last date to answer and 172 days too late according to CPLR 3215c making the case abandoned by law.
- --#7 - That case was challenged as abandoned by a motion under the abandonment statute (CPLR 3215c).
- --#8 - The Plaintiff, in order to validate the judgment premised on Plaintiff's sworn non-appearance, presented proof of appearance that the Plaintiff had kept from the court making its sworn statement perjury and the decision itself to be based on perjury.
- --#9 - The court (Judge Donald Scott Kurtz, up for re-election November 5, 2019), unwilling to correct its failure do the ministerial task of dismissing the case based on the record, failed to do the simple alternative task of vacating a judgment premised on clear perjury by the Plaintiff as, having sworn both that there was no appearance in order to obtain a judgment swore to the opposite in order to validate the judgment. In addition, the court failed to address the procedural impact of appearing by an attorney.
There you have it, there is a decision premised on a non-appearance is validated by a decision premised on an appearance. Can't get more kafka-esque than that.
As Special Added Bonus #1, If the court finds that the Lyceum somehow appeared in the case, that retroactively requires that the Plaintiff to have served the counsel for the appearing party notices of all motions, absent which the power of the court was never invoked. Plaintiff never served any Notices of Motion on the counsel for the Lyceum.
As Special Added Bonus #2, the Plaintiff noticed all parties, whoever was served, in March 2011 to appear in April 2001, a decade in the past. That necessitates resetting the case to before the sale of the Brooklyn Lyceum.
A moment of Brooklyn Lyceum truth is nigh after a decade of court (Judge Donald Scott Kurtz, up for re-election November 2019) avoidance by :
- --getting 5th-grade math wrong,
- --failing to understand (or implement) New York Statute,
- --refusing REPEATEDLY to provide a constitutionally required court reporter,
- --committing perjury by lying to the appellate court about the refusal to provide a reporter.
- --ignoring due process (rendering a decision when the defendants were noticed to appear a decade in the past),
- --ignoring perjury by attorneys (swearing non-appearance by Lyceum to get decision, and, once decision was in hand, swearing appearance by Lyceum), and
- --ignoring misrepresentation of facts to the court by attorneys.
- >>>Four simple questions determine the Brooklyn Lyceum fate.
- --#1 - Did the Lyceum appear in the case?
- --#2 - If so, when and how?
- --#3 - If so, did the Plaintiff commit perjury by swearing the Brooklyn Lyceum did not appear?
- --#4 - What is the impact of not appearing or appearing?
The sale of the Brooklyn Lyceum gets unwound whether the court finds the Lyceum appeared in the case or the Lyceum did not appear in the case and even if the Lyceum both appeared and did not appear in the case (wave-particle duality indeed!).
Items 01-03 lead to a required dismissal of the entire complaint (no sale of the Brooklyn Lyceum), items 04-07 reset the case back to before the first action was taken in the case (no sale of the Brooklyn Lyceum) and item 08 resets the case to before the Judgment of Foreclosure (no sale of the Brooklyn Lyceum). The eight easy pieces in play:
- 01-Did the Plaintiff swear to the court, under penalty of perjury, that the Lyceum had not appeared when filing the first motion? (YES)
- 02-Was the decision on the motion premised on that swearing of no appearance? (YES)
- 03-Based on papers presented to the court up to three years after filing the first motion, was first motion more than a year since the last date for Lyceum to answer? (YES)
- 04-Did the Lyceum actually appear in the case before the first motion was filed (based on papers submitted by the Plaintiff years after the first motion)?(YES)
- 05-If so, did the Plaintiff hide that fact by committing perjury to hide that fact? (YES)
- 06-Did Lyceum appear by attorney? (YES)
- 07-Did Plaintiff fail to serve any motion papers on that attorney? (YES)
- BONUS QUESTION #1
- 08-Did Plaintiff notice another motion in March of 2011 for all to appear in April of 2001? (YES)
If even 01-03 are true, the Brooklyn Lyceum will return.
Given that 01-08 are all true, with this incredible certitude in the future of the Brooklyn Lyceum (if due process has any meaning whatsoever) and issues that affect us all that made it take some 11 years for the courts to stop kicking the legal can down the road, the Brooklyn Lyceum is starting several programs ....:
- --Vote on re-programming the Brooklyn Lyceum at Gowanagus.com.
- --Rack up Gowanagus.com votes by becoming JafoMaru.com.
- --Pay attention to our roving art show at TheSmee.com.
- --Help make sure this happens to fewer people at Haruchai.com.
While assisting a booth at a recent Brooklyn Street Festival, we put up some Public Bath #7 and Brooklyn Lyceum Tea Towels out for sale and a Brooklyn Lyceum banner about due process not being what it used to be.During the event we ran into a variety of people who knew Brooklyn Lyceum, all thought fight for Brooklyn Lyceum was over and done.
Included in the passersby were people who had performed at the Lyceum (theater, music, comedy and dance groups), people who had regularly attended those performances, people who frequented the Lyceum Coffee shop, people who had rented the Lyceum, people who had taught classes and even those who saw the likes of Amanda Palmer, Fiona Apple, Yo la Tengo, Jose Gonzalez and a Charlie Brown Christmas.
After perusing the Tea Towels and chatting a bit, most were perplexed at how what we allege has, and continues to happen, can exist in this day and age. Some were incensed, some were in disbelief that judges would be so cavalier about their duties, some, like another friend has been pushing me to do for years, asked for a simple version of what was really at stake, not just years of legal jargon, and some said prove it with documents.
To that we say, finally, it is time to lay bare the truth publicly as the courts have kicked the can down the road such that the Lyceum is at a crossroads, simple application of law (that the court should have done) means the Brooklyn Lyceum wins, a complicated and contorted application of law (what the lower court did and the higher court seems to have rubber stamped) means the Developer loses.
Thus, the Lyceum will be back if due process has any meaning whatsoever.
When presented with a Plaintiff motion and proofs of service of that motion on Defendants, a motion which contained a Plaintiff affidavit swearing that no Defendant had appeared or served an answer, the court failed to do the requisite 5th grade math of (Motion Date - Service date + 20 days) > 365, such math that would show, unequivocally, that it was more than a year between the last day for defendants to answer and the date of the motion, the court (Judge Donald Scott Kurtz, up for re-election November 2019) was required to dismiss the case as abandoned.
The only way out was for the Plaintiff to tell the court, in the motion papers, and not three years later, some reason, a "sufficient cause" why it was more than a year.
There is case by the higher (Appellate) court cited over 120 times for this proposition that says the obvious (even by the Lead Judge on the Appellate panel, Judge Reinaldo Rivera, also up for re-election November 2019), if you can't be bothered to tell the court why it was more than a year in the motion papers, you can't benefit by telling the court later.
That just follows the legal maxim that the court is constrained to the "four corners" of the pleading, that the court can't go outside the record to support a decision.
Instead the judge, up for re-election in 2019, Donald Scott Kurtz, decided to ignore simple math or he failed simple math, i.e. he is not smarter than a fifth grader.
When that decision was challenged, the lower court (Kurtz again) said you could wait too long to ask the court to do what the court was required to do absent your asking, plainly ridiculous. In addition, the lower court (Kurtz) also allowed in evidence the Plaintiff had kept from the court when it filed the motion.
In order to support that notion, the court cited a case some months before wherein Second Department got sloppy. After letting someone back into a case (vacating their judgment of default for failure to answer), the court then rightfully denied an appeal seeking a finding that the court had no power as the case was abandoned.
But, rather than an apropos and pithy statement such as “You can’t be serious bringing in a motion asking the court to declare the court has no power in the case after having invoked that very same power to reopen and participate in the case”, the court used sloppy “did not move for such relief until after Fuentes had already entered the default judgment against her” which sends a clearly ridiculous implication that a case abandoned by Plaintiff inaction that the court was required to dismiss even if the Defendant failed to request dismissal, becomes un-abandoned by the court failing to dismiss the case.
One would think that given the record at the time of the motion and the lower court's going outside the record and the lower court citing a case that reduces a statute to irrelevance, that the Appellate Court would make quick work of the cleanup.
Top that of with the Lyceum, in the 2.5 years the appeals were fully briefed, uncovered some jurisdictional issues, that if the court was going to use evidence outside the record, that evidence being retroactively given credence would have retroactively mandated service of all papers on the Lyceum's attorney, which did not happen, and and retroactively required some advance notice of a notice they never served on the Lyceum Attorney which noticed all parties on March 17, 2011, to appear on March 18, 2001, a decade in the past.
Those two issues were raised at oral argument and Judge Reinaldo Rivera, also up for re-election in 2019, said the that Second Department had an excellent reputation and that they would get to the bottom of it, after which the court asked the Plaintiff for a response to the issues raised, and none was given.
THE APPELLATE DECISION
The appellate court failed to uphold its reputation AND the appellate court failed to get to the bottom of anything. Instead, the court doubled down on the lower court logic (or lack thereof) by making up a fact (that a document date and time stamped October 19 was after a document date and time stamped October 26).
The appellate division also left one nugget they could not get away from, a finding that can only be interpreted that there was some timely interaction between the Lyceum's counsel and the Plaintiff, a common law appearance (any interaction that is placed in the way of a getting a judgment, in this case, an extension of time to answer).
This unfortunate finding made the original decision to be premised upon perjury by then counsel for the plaintiff, that decision is now subject to jurisdictional attack.
In addition, having found appearance by counsel, an appearance discernible only by evidence fully held by the Plaintiff and withheld from the court by the Plaintiff, the court changed the past, seemingly using the "inherent power of the court" to the benefit of the plaintiff without ensuring that such a mulligan did not impact a substantial right of a defendant, such as notice to counsel the Plaintiff swore did not exist and notice to appear a decade in the past.
All of the information in the prior 5 sections are statements that are made without any backup, as a purely logical exercise. Here, in Nuts and Bolts #1, we address all statements in turn, with proof.
#1 - STATUTE AND COMMON LAW
New York is a common law state, which is to state that its rules, statutes, are written so as to navigate the boundless centuries of case outcomes that make up the law of thousands of decisions, the common law.
Legislators being imperfect, the Statutes sometimes are an imperfect representation of the common law.
Every time a case presents itself and the laws do not reflect the common law, case law extends the statutes towards the common law. And where caselaw does not adequately reflect the common law in a particular situation, new case law is created extending the case law towards the common law.
Now, this may seem to be unlikely, but all you have to do is look at one of the statutes the CPLR, #4511:
Rule 4511. Judicial notice of law. (a) When judicial notice shall be taken without request. Every court shall take judicial notice without request of the common law, constitutions and public statutes of the United States and of every state, territory and jurisdiction of the United States and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts.
In addition, there are places wherein statute specifically does away with common law (no common law marriages in New York State), there are places where statute replaces the common law (writs of prohibition and mandamus replaced by Article 78 of the CPLR), and there are places wherein the statute actually expands the CPLR (such as motions to vacate which can now, by statute, be brought by any impacted entity).
#2 - WHAT IS AN APPEARANCE
An appearance is either statutory or informal (common law). Statutory appearance is a subset of the common law.
You appear by statute by under CPLR 320:
Rule 320. Defendant's appearance. (a) Requirement of appearance. The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete.
You appear informally, not by statute or by common law, by taking any action that would stand in the way of an immediate judgment.
This is very much akin to the statutory "making a motion which has the effect of extending the time to answer".
Things that count as informal or common law appearances include extensions of time to answer the complaint as the extension stands in the way of an immediate judgment.
#3 - IMPACT OF NOT APPEARING
If you are served (and the Plaintiff files sworn proof of service) and fail to timely appear or fail to timely answer by the appropriate deadline, the Plaintiff can, upon such swearing that you have not appeared or, having appeared, not answered within the proscribed timeframe, file a motion for a default, or fast track, judgment.
Importantly, if you have not appeared, the Plaintiff need not serve you the notice of motion for the judgment of default.
#4 - IMPACT OF NOT SEEKING JUDGMENT WITHIN YEAR OF NOT APPEARING
This is muddied up a bit if the Plaintiff fails to move for a judgment of default within a year of the failure to appear or failure to answer.
In such a circumstance, the Plaintiff must serve the notice of motion for a judgment of default on the non-appearing or non-answering party.
In addition, the Plaintiff must provide an excuse, any excuse, as to why the motion was made more than a year after a default in appearing or answering.
The seminal case in this issue in the Appellate Division, Second Department, is :
"""Where, as here, a party moving for a default judgment beyond one year from the date of default fails to address any reasonable excuse for its untimeliness, courts may not excuse the lateness and "shall" dismiss the claim pursuant to CPLR 3215 (c) (see County of Nassau v Chmela, 45 AD3d at 722; Keyes v McLaughlin, 49 AD2d 974 ; Di Carlo v Bravo Tours, 129 AD2d 552 ; Perricone v City of New York, 96 AD2d 531, 532 , affd 62 NY2d 661 ; Shepard v St. Agnes Hosp., 86 AD2d 628, 630 ).""" - Second Department, June 14, 2011 - Giglio v NTIMP, Inc., 2009 NY Slip Op 32855(U)
#5 - COURT LIMITED TO THE FOUR CORNERS OF THE CASE
This one is a bedrock principle of American jurisprudence. The court cannot go outside the papers filed to make, or validate, a decision save for some authoritative source, such as a filed deed or court decisions.
To go outside the "four corners" the court must give notice of its intent to do so. Absent notice by the court of such an intent, the court is not authorized to do so, and, as such, any decision premised on the court going outside the record absent notice to the parties, NEVER INVOKES THE POWER OF THE COURT.
#6 - IMPACT OF APPEARING
If a party has actually appeared, all papers must be forever served on that party. Failure to serve papers on an appearing party NEVER INVOKES THE POWER OF THE COURT.
If a party has appeared by an attorney, all papers must be forever served on that attorney for that party. Failure to serve papers on the attorney for an appearing party, NEVER INVOKES THE POWER OF THE COURT.
#7 - LACK OF STATUTORY NOTICE
In addition to failure to serve notice on an appearing party never invoking the power of the court and failure to serve notice on the attorney for an appearing party never invoking the power of the court, there is an even bigger gotcha when related to service of notice.
If you serve notice, it must have statutory advance notice.
If the statute says 8 days is required and you give 7, the notice NEVER INVOKES THE POWER OF THE COURT.
If the statute says 5 days is required and you give 4, the notice NEVER INVOKES THE POWER OF THE COURT.
In our case, the notice of the motion for the authorization to sell the Brooklyn Lyceum noticed all parties in March of 2011 to appear in April of 2001.
#8 - WAIVER BY APPEARANCE
If a party appears at a hearing that is improperly noticed, and does not contest the notice, the lack of statutory notice is waived.
#9 - WAIVER BY FILING OF PAPERS
If a party files papers in response to the insufficiently noticed motion but the papers do not call out the bad notice, the lack of statutory notice is waived.
JAFO = Just Another F---ing Observer (see move Blue Thunder) - an unwanted, but necessary to the process, observer.
MARU = Battle the system is predisposed to make you lose, but that can be won. (see kobayashi maru - Star Trek - TOS) -
To Kobayashi Maru a situation is really to find the win in the no-win situation.
If you have read much of the prior parts of this page, you now that something is wrong in the Brooklyn courts.
JAFOMARU is one way to make the system do what it is supposed to do, apply the common law, constitution, statute and case law to the facts consistently no matter who is the litigant, not just to favor developers.
JAFOMARU seeks public support (read! think! act! appear!) at focal points such that there are ramifications to not following simple rules, starting with the Brooklyn Lyceum case and then, maybe, extended to other issues.
All it takes is for you to read this article and then head to the JAFOMARU.com website to see the myriad of ways to benefit from such playing it forward.
Initially, all the efforts at JAFOMARU.com (affidavits submitted, affidavits used, appearances at focal points, etc.) will garner votes to participate in re-programming the Brooklyn Lyceum after victory is obtained. Once obtained, you can utilize those votes to program the Lyceum or you can trade them in for volunteer time by the Brooklyn Lyceum staff at a growing number of Not-For-Profits.
So, even if you live far from the Brooklyn Lyceum or even if the arts ain't your thing, you can help, JAFOMARU!