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, on December 26, 2018, 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, based on the record before the court, a statute required, the appellate court (Judge Reinaldo Rivera, up for re-election 11/5/2019) made up a fact (October 19 is after October 26) and doubled down on the lower court going outside the record (using an appearance by the Defendants that the Plaintiff hid from the court, and swore did not exist, in prior motion), creating a situation wherein a plaintiff obtained a judgement against the Lyceum premised upon swearing no appearance by the Lyceum, and, when that judgment was challenged based on the sworn non-appearance, obtaining a validation of that judgment premised upon the Plaintiff swearing, yup, that the Lyceum appeared.
Judicial Wave-Particle duality, indeed!
In addition, the appellate court ignored its own recent and long-standing common sense 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 failed to meet, requirements the appellate court conveniently failed to address.
The inconvenient fact, addressed in detail further on, is that due process violations fail to invoke the power of 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 (October 19 is after October 26), 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.
- made a finding that perjury by an attorney about when his client, not the initiating Plaintiff, acquired standing in order to cover up appearing without standing is intrinsic, part of the allegations, and not, as alleged, extrinsic, or a lie about procedure used to induce the court to issue a decision by trickery.
- failed to used all the prongs of the case cited, specifically, was an order in effect at time of a hearing?
- the court failed to address jurisdictional arguments raised at oral argument that the Plaintiff failed to contest.
The same appellate court has opined that "old law is good law" while ignoring a few controlling SCOTUS granddaddies, U.S. v. Lee - 1882 (Judges are creatures of the law and jurisdiction is forever) and Ex parte Mccardle - 1869 (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 not appear in the case (from the record) or did the Brooklyn Lyceum 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 by Lyceum and no extension of time for Lyceum to answer in a required affidavit in support of a required foreclosure motion.
- #2 - The decision in favor of Plaintiff 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 unequivocally (no discretion) 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 if the Defendant fails to move for dismissal under the statute.
- #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, now swore an appearance occurred and 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 (procedurally required without need of dealing with any of the merits of the case, something a law clerk could handle) 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, a decision by Judge Donald Scott Kurtz, premised on a sworn non-appearance, is validated by a decision by Judge Donald Scott Kurtz, now premised on a sworn appearance, all by an attorney suspended from the practice of law for lying to a disciplinary committee. That decision is then validated by the appellate court by way of finding the October 19 is after October 26 and the appellate court retroactively altering the record in favor of a developer.
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, which never invoked the power of the court. 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.
- holding a hearing on a date other than was noticed
- 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 to defend decision), and
- ignoring misrepresentation of facts to the court by attorneys.
- Four (4) 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:
- Did the Plaintiff swear to the court, under penalty of perjury, that the Lyceum had not appeared when filing the first motion? (YES)
- Was the decision on the motion premised on that swearing of no appearance? (YES)
- 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)
- 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)
- If so, did the Plaintiff hide that fact by committing perjury to hide that fact? (YES)
- Did Lyceum appear by attorney? (YES)
- Did Plaintiff fail to serve any motion papers on that attorney? (YES)
- BONUS QUESTION:-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 the 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.
The court (Judge Donald Scott Kurtz, up for re-election November 2019), 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, 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, by 172 days, between the last day for defendants to answer and the date of the motion, 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 retroactively required some advance notice of a hearing they never served on the Lyceum Attorney which noticed all parties on March 17, 2011, to appear on April 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. - This is a work in progress from here on out. bear with us.
#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 that coalesces around standards no one may violate.
Legislators, like everyone else, 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 but 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.
#10 - LYCEUM DID NOT WAIVE BY APPEARANCE OR FAILURE TO RAISE STATUTORILY INSUFFICIENT NOTICE IN PAPERS
As there was a hearing held on a date not noticed, no way the Lyceum waived by appearing a decade in the past.
As the attorney for Lyceum was never noticed at all, let alone to appear in the past, the Lyceum could not appear in past to waive lack of notice and did not appear to waive lack of notice.
In addition to no appearance at hearing (a decade in the past) by un-noticed attorney or un-noticed to anyone hearing, no papers were filed by any Defendant and thus, no waiver by failing to raise in papers.
Lack of statutory notice of proposed hearing failed to invoke the power of the court.
Lack of any notice of actual hearing failed to invoke the power of the court.
No waiver by appearance or b failure to contest notice in papers means just that, no waiver.
Lack of statutory notice with lack of any notice with failure to waive = THE POWER OF THE COURT WAS NEVER INVOKED.
When presented with an affidavit from an attorney for the non-initiating plaintiff swearing, on August 24, 2010, that the non-initiating plaintiff had acquired standing by November 18, 2009 (date non-initiating plaintiff appeared) via an assignment of claim dated August 22, 2010,
The court should have denied the motion as it was submitted after the transfer on November 9, 2009 and also after new entity first appearance on November 18, 2009.
An analysis of the situation is revealing for its simplicity.
To start a foreclosure (the claim) you need ...
- Note for $$
- Mortgage backing up the Note with collateral (like real estate) that can be sold upon default in paying the Note.
- Allegation by lender that Borrower has not complied with the terms of the note, a default.
- Demand that the mortgage (sale of collateral/property) be held to discharge the now allegedly in default debt.
Take those 6 things, write it up as a summons and complaint, pay a fee for an index number (case number), serve the summons and complaint and you are off to the races.
If you serve a person by other than personal service that person gets 40 days from the date the proof of service is filed.
If you serve a corporation via the secretary of state, that corporation has 30 days from the date the secretary of state is served.
Once those times to answer have expired, the Plaintiff can move for an order of reference (or default in non-foreclosure cases) followed by getting and serving a referee's report followed by obtaining, by motion, a judgment of foreclosure and sale.
If the initiating Plaintiff decides to sell its interest in the note/mortgage, the Plaintiff is welcome to sell the note and mortgage to a new entity and wash its hands of the matter.
But, selling the note and mortgage only allows the new entity to start its own foreclosure. Such a sale does not transfer any rights to the existing claim (thus the new entity cannot yet appear or participate in the case), and, in fact, it strips the Plaintiff of the right to appear until there is filed with the court some document documenting the transfer of the claim, usually an assignment of claim.
Absent some document of claim transfer presented to the court the case is in limbo and, any motions noticed by the initiating Plaintiff must, at oral argument date, be struck from the calendar as an appearance by the initiating Plaintiff absent any continuing dispute with the Defendants or the new entity, who has no chain of ownership of the claim, is without standing absent a transfer of the claim.
Once the claim is transferred, the initiating Plaintiff, by statute, can proceed in the case.
See, not rocket science, simple logic.
Simple logic beyond the grasp of Judge Donald Scott Kurtz, up for reelection November 5, 2019.
Judge Donald Scott Kurtz, up for re-election November 5th, 2019, couldn't be bothered to review the documents, he just took them at face value.
And, why not? If there are egregious errors, the Plaintiff swore to stuff, not the court.
If the Plaintiff lied to the court, that is not the court's problem save for automatic reversal when it is brought to the court's attention.
The burden should be with the perjurer and the court should have no part of perjury lest faith in the system of laws be utterly destroyed.
All the appellate court need to do was:
- Look at the docket to see the date the initial motion was filed (October 26, 2009).
- Look at the date of the contract of sale (November 9, 2009).
- Note that that document is not an actual assignment of claim and that, even so, was not put into the court's hands until after November 9, 2009.
- Look at the date the motion was purportedly argued .
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 article on the issue : brooklynlyceum.com/wip/10094, 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.
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!
***NOTE: Past participants at the Brooklyn Lyceum can vest votes in addition to the ones for acting now. Consider it recognition that all who passed through the Brooklyn Lyceum doors were appreciated.
The Brooklyn Lyceum has had its due process rights savaged in court and is fighting the fight to correct those violations. In short and simple terms, this is the problem:
- The primary premise is an appellate court cannot make up facts to avoid uncomfortable truths, that, according to the record available to the court at the time the Plaintiff sought judgment, there was no proof presented to the court of any Lyceum appearance and the Plaintiff swore no appearance by the Brooklyn Lyceum.
- The secondary premise is 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, and, importantly, that evidence cannot contradict prior sworn affidavits by the same person.
- The tertiary premise is, 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.
- The quaternary premise is that, if the court is gonna 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 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, save for the Lyceum has hundred of groups 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 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 those Due Process Warriors to determine the cultural future of the Lyceum?
Art makes us what we are, describes a point in time for society, and, when it is ignored, takes away a part of what we could be.
Unfortunately, art is often, no matter the talent or effort or time to make the piece, far too expensive for most of us.
Artist have to eat and so do the buyers, if the artist wants widespread distribution.
What is usually the answer is for the artist to eschew exposure to the masses until they have reached great acclaim.
That road to fame, despite anecdotal rare circumstances, is almost always fatal to the earnings of the artist, and to the career of the artist as well, should they not win the lottery of acclaim.
Enter TheSmee, an art exhibit intending to get the art into the hands of a wider audience before that artist has become so famous the average joe cannot afford their art.
****NOTE: Those who have votes to program events via GOWANAGUS.com can use those votes to vote on art at THESMEE.com exhibitions NOW and not just when the Lyceum gets its due process violations unwound as we have a location for the summer of 2020..
****NOTE: Tentative locations summer 2020 - Coastal Maine, Upstate New York, Philadelphia
rocking the vote by removing elected officials who are demonstrably not smarter than a 5th grader
Early in the millenium, educated young people migrated to (cheap) places where they could congregate. They sought adventure there, in the coastal cities, places where many of there parents had fled in the decades long exodus to the suburbs (Levittown, Naperville, ...)
Then the recession struck, a by product of specious financial regulation and billions and billions on questionable wars to protect, mostly, oil interests.
This may have just been a blip in history, but those young-ish needed to eat, and put a roof over their heads. Once congregated, they became a market unto themselves with critical mass enough to support almost anything as long as they were willing to live in the abandoned carcass of the cities.
Being a recession and all, they created their own economies by reinventing artisanal craftsmanship everywhere there had been just bland commodities for decades.
Beer, Pizza, chocolate, coffee, COFFEE, soda, mustard, mayonnaise, peppers, cupcakes, barbeque, whiskey, theater, music, ... It was if a great cry arose and said, YUCK!
Nowhere was this most evident than in Brooklyn, close enough to the wellspring of all media, Manhattan, but far away enough for cheap rents in nearly abandoned neighborhoods (Bushwick?). They worked this for awhile and even elected the first black president, in part, by using nascent social media and sending droves of people to toss-up states door to door. Then they went about their non-political business as the economy slowly recovered. Until 2016, the vote heard round the world.
All the media championed a candidate that had a several million vote advantage OVERALL, but failed to address the chess game afoot, the ELECTORAL COLLEGE, the only game that mattered (whether you agreed with the rules or not, they are the rules in play).
It is often said that votes are yards and states are points. Who hasn't seen a team garner massive yardage but fail in the red zone. The losers complained that they didn't know it was about points, but that yards should be the only metric.
They then complained that social media was used to influence voters, as if that hadn't been the case in 2008, whether foreign backed or not. Disingenuous at best.
But then came the 2018 mid-terms and a shift in the firmament occurred. Longstanding politicians saw the handwriting on the wall and did not run for re-election. Other long time elected officials played the same old game and got beat by any other perspective than holding on to power for the boomer generation.
Thus, Ocasio-Cortez .