Judge Devin Cohen Ignores ...
Oral Argument, AGAIN!!! Fool me once ... - judge puts thumb on the judicial scale by ignoring oral argument

JUDGE IGNORES ORAL ARGUMENT, AGAIN?

Is failure to acknowledge/ address oral argument that occurred on August 14, 2019 or July 18, 2018, at all, let alone a standing argument raised each time, jurisdictional?

Just what happened at Oral Argument on August 14, 2019 and July 18, 2018?

We were in court on August 14, 2019 to do oral argument seeking re-argument of court findings subsequent to a prior oral argument on July 18, 2018 that found:

  • The Defendant Lyceum had no attorney, and, as such, any answer filed was irrelevant despite the attorneys name and signature being on the answer filed and served electronically on September 20, 2017 as docket # 10 and docket #11.
  • Any answer filed to the complaint, by attorney or not, or motion to dismiss the complaint, was made irrelevant by the Plaintiff filing an amended complaint (against a tidal wave of case law that says Plaintiff can not amend a complaint to escape a motion to dismiss or answer targeting the original complaint).

The decision after the July 18, 2018 oral argument does not acknowledge oral argument even occurred, let alone address the standing argument raised therein, that the Plaintiff, by selling all right, title and interest in the subject property to another entity, had, absent some documentation of the transfer of the claim, made it illegal for the plaintiff or the new entity to appear as Plaintiff no longer had a cause of action and the new entity did not have title to the claim.


JUDICIAL THUMB ON SCALE OF JUSTICE?

After oral argument on August 14, 2019, with a court reporter, on reconsideration of the decision that failed to acknowledge or address the July 18, 2018 oral argument, the court added a notation to the electronic record, that the motion was now, oddly, going to yet again be decided on the record “ON RECORD”:

Appearance

Date

Time

Court Date

Purpose

Outcome

Type

Justice

Part

Remarks

Motion

Seq

08/14/2019 

 

Motion

FULLY SUBMITTED 

DEVIN P. COHEN, PT. 91 

MOTION PART 91 

ON RECORD  

12



This is despite, with regards to the Lyceum LLC’s attorney, the one the court found did not exist:

  • Non-existing attorney appeared at oral argument, and
  • Non-existing attorney’s sworn statement of filing the Sep. 20, 2017 Answer, and
  • That he, that non-existing attorney, has not, to date, withdrawn the Answer. That the other Defendant’s (Richmond) case law on amended complaints is on point and that the court’s chosen case was not.
  • That service of reply papers, per statute, was complete upon mailing on August 13, 2019.

This oral argument also, with regards to argument with Defendant Richmond, included:

  • The Plaintiff had denied no fact, legal argument or case law presented by Richmond, especially that Plaintiff had no standing, and
  • The court acknowledging that the injunction cited as the only defense by the Plaintiff to Defendant’s motion was unenforceable absent an undertaking, no matter how small, and
  • The Plaintiff attorney’s failure to deny scheduling a hearing on September 18, 2018 soon after learning Defendant Lyceum LLC’s attorney was out of country.
  • Defendant Richmond’s final statement, that Richmond had an absolute right to a pre-answer motion to dismiss that no court could waive for Richmond.

The papers submitted by Defendant Richmond show, by abundant case law of the Second and First Departments (Brooklyn/Manhattan) that:

  • Any paper (be it answer or motion) directed at a complaint is not made irrelevant by the Plaintiff amending the complaint.
  • That papers targeting a complaint survive at the Defendant’s discretion, not the court’s or the Plaintiff’s, to target the amended complaint
  • That the court had no right to declare unwaived less than statutory notice to be sufficient.

UNAVOIDABLES
  1. If the court was right on neither (Lyceum LLC clearly had an attorney who filed an answer and Plaintiff cannot evade answer or motion to dismiss by amending complaint), then the judgments of default against Richmond and the Lyceum’s LLC were inappropriate (illegal?) as they directly struck the Opportunity to Be Heard part of Due Process, Notice and Opportunity to Be Heard.
  2. If the court was right on the first one only, that Lyceum’s LLC had no attorney, a judgment of default against just the Lyceum’s LLC was warranted, but not against Richmond.
  3. If the court was right on the second one only, in finding the Plaintiff can evade both an answer and a motion to dismiss, a judgment of default against Defendant Richmond and Defendant Lyceum, LLC were warranted.
  4. If the court was right on both, that Defendant Lyceum had no attorney and that answers and motions to dismiss can, against all relevant case law, be evaded by amending a complaint, a default judgment was warranted against Richmond who filed a motion to dismiss the complaint and the Lyceum’s LLC which either did not file any answer or filed an answer, purportedly by a non-attorney for an LLC.

LYCEUM LLC HAD ATTORNEY WHO FILED ANSWER

As noted earlier that Defendant Lyceum LLC’s attorney appeared on August 14, 2019 and told the court he had filed an answer on behalf of Defendant Lyceum’s LLC on September 20, 2017, 9.5 months prior to the Plaintiff seeking judgment of default.

The same attorney at the same oral argument said that the answer had not been withdrawn. That filing is clear from the electronic court record (items #10 and #11):

Document

#

Date

Received/Filed

Document

Description

Motion

#

Filing User

07/31/2017 

SUMMONS + COMPLAINT

Summons and Verified Complaint 

 

AVERY S MEHLMAN 

07/31/2017 

EXHIBIT(S)

Exhibit A to Verified Complaint 

 

AVERY S MEHLMAN 

07/31/2017 

EXHIBIT(S)

Exhibit B to Verified Complaint 

 

AVERY S MEHLMAN 

07/31/2017 

EXHIBIT(S)

Exhibit C to Verified Complaint 

 

AVERY S MEHLMAN 

07/31/2017 

EXHIBIT(S)

Exhibit D to Verified Complaint 

 

AVERY S MEHLMAN 

07/31/2017 

EXHIBIT(S)

Exhibit E to Verified Complaint 

 

AVERY S MEHLMAN 

08/11/2017 

AFFIRMATION/AFFIDAVIT OF SERVICE

Affidavit of Service on 231 Fourth Avenue Lyceum, LLC 

 

AVERY S MEHLMAN 

08/21/2017 

AFFIRMATION/AFFIDAVIT OF SERVICE

--none-- 

 

AVERY S MEHLMAN 

09/19/2017 

MEMORANDUM

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION 

 

AVERY S MEHLMAN 

10 

09/20/2017 

ANSWER

--none-- 

 

DAVID BUNJI FROMARTZ 

11 

09/20/2017 

EXHIBIT(S)

Answer Exhibit 1 - Original Referee's Deed 

 

DAVID BUNJI FROMARTZ

The important questions are:

  • Did Defendant Lyceum’s LLC have an attorney when Defendant Lyceum Lyceum filed an answer on September 20, 2017. (YES, uncontested by Plaintiff)
  • Did that attorney file that answer? (YES, uncontested by Plaintiff)
  • Did that attorney withdraw that answer?(NO -based on oral argument testimony) and lack of withdrawal on record.




AMENDED COMPLAINT ISSUES

THE IMPORTANT QUESTIONS ARE:

  1. Does an amended complaint automatically make papers directed at original (answer and pre-answer motion to dismiss) academic?
  2. Does a Defendant have an absolute right to a pre-answer motion to dismiss?
  3. Did Defendant Richmond timely file a pre-answer motion to dismiss for failure to join a necessary party?(YES, uncontested by Plaintiff)
  4. Did Richmond withdraw that motion?(NO, uncontested by Plaintiff)
  5. Can any judge force Defendant to file an answer before ruling on pre-answer motion to dismiss?


AMENDED COMPLAINT DOES NOT EVADE ANSWER/MOTIONS

AMENDED COMPLAINT 
DOES NOT ELIMINATE PAPERS TARGETING ORIGINAL COMPLAINT

In the decision of which Defendant Richmond seeks reargument, the court cites a case out of context, Golia v Vieira 2018 NY Slip Op 04536, which finds that an appeal of a pre-answer motion to dismiss decision is made academic by the Plaintiff amending the Plaintiff’s complaint.

The original complaint was superseded by the amended complaint. "The original complaint is no longer viable, inasmuch as the amended complaint takes the place of the original pleading'" (Taub v Schon, 148 AD3d 1200, 1201, quoting 100 Hudson Tenants Corp. v Laber, 98 AD2d 692, 692; see Pourquoi M.P.S., Inc. v Worldstar Intl., Ltd., 64 AD3d 551; Land v Merchants Despatch Transp. Co., 255 App Div 929, 929). Thus, the appeal from the order entered August 20, 2015, which granted LICH's motion pursuant to CPLR 3211(a) to dismiss the original complaint, has been rendered academic (see Chalasani v Neuman, 64 NY2d 879, 880; Mannino v Wells Fargo Home Mtge., Inc., 155 AD3d 860, 864; CRAFT EM CLO 2006-1, Ltd. v Deutsche Bank AG, 139 AD3d 638, 638-639; Pourquoi M.P.S., Inc. v Worldstar Intl., Ltd., 64 AD3d at 551-552; DePasquale v Estate of DePasquale, 44 AD3d 606, 607) - Golia v Vieira 2018 NY Slip Op 04536

That dismissal unwound an appeal and a decision on a pre-answer motion to dismiss, but did not, in and of itself, eliminate the pre-answer motion.

In fact, in the motion to reargue, Defendant Richmond trotted out unavoidable and, as opposed to Golia, on point case law. Hon. Carolyn E. Demarest (Ret. former presiding Judge of Kings Supreme), nailed it with academic rigueur, whether motions directed at a pleading survive to be redirected at an amended pleading at the discretion of the non-amending party.

From Toikach v. Bbvmanov, 31 Misc. 3d 615, 619 (N.Y. Misc. 2011) :

In the Second Department, an amended complaint does not render a motion to dismiss academic and the moving party has the discretion as to whether the motion should be applied to the new pleading ( see Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370 [2d Dept 2003], citing Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38[1st Dept 1998] [holding that an amended pleading does not automatically abate a motion to dismiss "that was addressed to the original pleading" and "that the moving party has the option to decide whether its motion should be applied to the new pleadings"] and Matter of D'Addario, 73 Misc 2d at 62 [holding that an amended complaint did not abate a pending motion to dismiss and the court could treat the motion to dismiss as directed to the amended complaint]; see also Sholom Zuckerbrot Realty Corp. v Coldwell Banker Commercial Group, 138 Misc 2d 799, 801 [Sup Ct, Queens County 1988] [holding "the better rule is one which allows the moving party the option of withdrawing its motion or pressing it with regard to the amended pleading"]). This court concurs that the "better rule" is one that most expeditiously advances the litigation.

From Livadiotakis v. Tzitzikalakis, 302 A.D.2d 369, 370 (N.Y. App. Div. 2003):

The plaintiffs' contention that the branch of the motion which was pursuant to CPLR 3211(a)(5) was rendered academic by service of an amended complaint is without merit (see Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38, revd on other grounds 91 N.Y.2d 30; Baker v. Reis, 223 A.D. 842; Matter of D'Addario v. McNab, 73 Misc.2d 59, 61).

From the 1st Department, a big hitter citing Siegel and Mckinney’s, Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38 (N.Y. App. Div. 1998) :

At the outset, we note that the motion court properly applied the dismissal motion to plaintiffs' first amended complaint. While the lower court cases are in conflict over whether the filing of an amended pleading automatically abates a motion to dismiss that was addressed to the original pleading ( compare, Sholom Zuckerbrot Realty Corp. v. Coldwell Banker Commercial Group, 138 Misc.2d 799, 801, with Gonzalez v. Mather Mem. Hosp., 147 Misc.2d 1082, 1084), we prefer the rule set forth in Sholom that the moving party has the option to decide whether its motion should be applied to the new pleadings. This approach also finds support in Siegel, Practice Commentaries (McKinney's Cons Laws of NY, Book 7B, CPLR C3211:65, at 94).

From Campbell v. Bank of Am., N.A., at *7 (N.Y. Sup. Ct. 2014):

HSBC and the other defendants herein made their motions to dismiss prior to the service of the amended complaint and have elected to have their motions applied to the amended pleading ( Toikach v Basmanov, 31 Misc 3d 615, 918 NYS2d 844 [Sup Ct, Kings County 2011]; D'Addario v McNab, 73 Misc 2d 59, 342 NYS2d 342 [Sup Ct, Suffolk County 1973]; see also Livadiotakis v . Tzitzikalakis, 302 AD2d 369, 753 NYS2d 898 [2d Dept 2003]). Accordingly, all references herein are to the amended complaint dated February 28, 2014.

The case cited by the court, Golia v. Vieira, 80 N.Y.S.3d 297 (N.Y. App. Div. 2d 2018), deals, not with whether a papers directed at a complaint survive an amended complaint, but whether a appeal of the dismissal of an initial complaint becomes academic when the appellant amends the complaint as of right.

100 Hudson Tenants Corp. v. Laber, 98 A.D.2d 692, (N.Y. App. Div. 1983):

“Thus, the appeal from the order based on the first amended complaint pleading, is rendered academic. ( Mattsson v. Johns-Manville Prods. Corp., 78 A.D.2d 793; Abrams v. Community Servs., 76 A.D.2d 765.)”

And, since the amended complaint changes consist solely of striking inflammatory material and the amended answer does not address the failure to join a necessary party whose long term right to occupancy would be impacted by a lost quiet title action, there really was no reason for 231 to serve a duplicative answer or for RICHMOND to serve a duplicative motion to dismiss when the amended complaint does not address the failure to join a necessary party, a tenant with 15 year lease.

As the abundant caselaw shows, it is the non-amender’s option as to whether its answer or motion to dismiss aimed at the original complaint should be applied to the amended complaint.


ABSOLUTE RIGHT TO PRE-ANSWER MOTION

CPLR 3211(a) Motion to dismiss cause of action.  A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

...
10. the court should not proceed in the absence of a person who should be a party.

...

CPLR 3211- (e) Number, time and waiver of objections;  motion to plead over.  At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a)

...

CPLR 3211 (f) Extension of time to plead.  Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order


PRE-ANSWER MOTION TO DISMISS NOT WITHDRAWN?

There is no proof anywhere, nor does Plaintiff allege, that the pre-answer motion to dismiss was ever withdrawn.


JUDGE NO POWER TO FORCE FORCE ANSWER BEFORE ...

Can any judge force Defendant to file an answer before ruling on pre-answer motion to dismiss?

This is a rhetorical question, because it is ridiculous unless the laws, which are the rules in the rule of law, have no meaning when an entity is self represented.


JUDGE IGNORES / DISALLOWS CHALLENGE TO STANDING?

Fool me once, shame on me, fool me twice, won't get fooled gain.

July 18, 2018 - Oral Argument

The court allowed the non-movant to speak first.

The first words out of the non-movant's mouth (Attorney Avery Mehlman of Herrick Feinstein) was that if the deed is not corrected that any future owner would have problems.

To that Richmond immediately informed the court that, since the last appearance in court the Plaintiff had sold all right, title and interest in the property to another entity, and, that without some assignment of the claim to the new entity, neither the Plaintiff nor he new entity could appear in court, an that it was a simple one page form.

To that Avery Mehlman stated it didn't matter because he represented both the Plaintiff and the new entity.

This, of course did not address the issue.

In the court's September 18, 2018, neither did the court.

Odd, how can a court not address standing raised at oral argument?

Can you say JURISDICTION?

I Knew you could!

August 14, 2019  - Oral Argument

As movant, was allowed to speak first this time.

Submitted reply papers along with copy date-time stamped by clerk.

Judge attempted to refuse papers for the court and for opposition.

Was informed, by Richmond and Lyceum LLC's attorney, that they were timely according to statute.

Court then accepted them without saying whether they were accepted.

Richmond then raised the same standing argument the court failed to address in the decision under reargument, to which the court replied "".



JURISDICTION CORNUCOPIA

There are power to rule based on subject matter jurisdiction, which no one contest in this case.  The court has the right to rule over quiet title actions.

But then there is procedural jurisdiction (a subset of subject natter jurisdiction).

If the parties, or the court itself, fail to follow procedure, the power of the court, despite its power to rule in those types of cases, is not invoked to act .

A few examples of when the court loses the right to rule at a moment of failure to follow procedural due process: