Brooklyn Judges Make Up Facts
in Lyceum Case - you only get the rights you fight for, or, altering the timeline has unexpected effects

ONCE MORE UNTO THE due process BREACH

Dear  Due Process Fan  :

The Brooklyn Lyceum has been fighting the good fight for a long while, long enough for some appeals to be decided at the Appellate Court on Monroe Place.

Rather than do what the statute required, the Appellate Court (Judge Reinaldo Rivera, up for re-election November 5, 2019) doubled down on the lower court's going outside the record to justify a decision (by Judge Donald Scott Kurtz, up for re-election on November 5, 2019) it could not justify from the record (with Rivera making up facts along the way).  Rivera also used a case that had never been cited in its 8 years of existence while ignoring the court’s own, directly on point, decision that had been cited 120+ times in 8 years (Giglio v NTIMP, Inc. 2011).

--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 [1975]; Di Carlo v Bravo Tours, 129 AD2d 552 [1987]; Perricone v City of New York, 96 AD2d 531, 532 [1983], affd 62 NY2d 661 [1984]; Shepard v St. Agnes Hosp., 86 AD2d 628, 630 [1982]).{**86 AD3d at 309}

That is a story for another day.

The Decisions on the Appeals are painful, and wrong.  But, that is where we are.

After months of consulting with various attorneys and law professors and other legal resources, one thing emerged as a consensus, by changing the past the Appellate Court  retroactively invoked requirements that the Plaintiff did not meet.  The Plaintiff failed to Notice to the Attorney for the Lyceum anything, ever, the first Notice had fatal facial flaws, and the Plaintiff failed to provide the statutory minimum advance notice (or any notice) of the Motion to sell the Brooklyn Lyceum.  

Those failures strike right at the heart of the power of the court to rule, JURISDICTION.

We have gone over the docket more than a hundred times and a few things stand out.

  1. The Appellate Court made up a fact by finding October 19 comes after October 26, to avoid finding for the Brooklyn Lyceum on appeal (courtesy of Judge Reinaldo Rivera).
  2. The Appellate Court also found that the Defendants appeared by counsel prior to the 1st motion, absent proof of same on the record, a record where the Plaintiff swore otherwise in the 1st motion.
  3. The Plaintiff never served the initial motion papers in the case, or any papers in the case,  on our attorney, one the Plaintiff swore did not exist in the first several motions.
  4. First Notice of Motion was fatally flawed as it asked for a relief not available under the cited statute.
  5. That Notice of Motion was fatally flawed as it  is premised upon the NON-EXISTENT affirmation.
  6. The Notice of Motion  was fatally flawed being dated prior to the document it is premised upon, that DOES NOT EXIST.
  7. The Decision is premised on the Attorney affirmation that DOES NOT EXIST.
  8. The Decision is premised upon another affirmation that DOES NOT EXIST.
  9. The Decision grants relief that was not even requested, which the court is not allowed to do absent notice that the court is expanding the scope of the motion.
  10. A subsequent Notice of Motion for the right to sell the Lyceum was not served on the attorney for the Lyceum, and, in addition, the Notice of Motion dated March 18, 2011 instructs all parties to appear on April 17, 2001,  DECADE IN THE PAST.

The Court and Appellate Court failed to do even a cursory review of the papers during the case.  The court even has an affirmation from the Attorney for the Plaintiff admitting #3 and #10.

All this from a Judge, Donald Scott Kurtz, up for re-election on November 5, 2019, who, in a Brooklyn Eagle story around the time of the first motion in the case was quoted saying :

  “When a case is before me, I try to give it my full attention,” Justice Kurtz said.
“Some judges would have just read the papers and signed them,” Kurtz said.

We need to button down the next action as each of the last 8 items (#3-#10) unwinds the sale of the Brooklyn Lyceum because each error sounds in the court exceeding its authority.

These 10 things, Ten Easy Pieces of Law, will be the subject to actions in the case (with a nod to Richard Feynman's Six Easy Pieces: Essentials of Physics Explained by Its Most Brilliant Teacher. )

Given all this, it would be tremendously helpful if, in addition to the players, some other people took a look at the relevant pieces of the record and stated, in affidavit form, what they have seen.

That is where you, Friend of the Due Process, come in.  We invite, cajole, request, and beg you to follow our process, logically and then legally,  here  https://brooklynlyceum.com/wip/10078. Pressed for time?  Start with the 4 RED tabs.

When you finish, you are invited to sign affidavits, more forceful than a petition, as to these 8 simple things (#3-#10), the first 7 (#3-#9) in one affidavit, and the 8th (#10) in another.

What we can offer in return, is, since facts and the law indicate the Brooklyn Lyceum will rise from the legal ashes, is the opportunity to participate in curating the Brooklyn Lyceum's next incarnation.  Details are roughed out here :  https://brooklynlyceum.com/wip/10078/19.

>>>Legal scholars should note we are offering one vote for each on-point citation submitted that supports or casts doubt on any of our points with the vote for that citation going to the first scholar submitter. 

Affidavits are at brooklynlyceum.com/static/images/10078/AFFIDAVIT_1.pdf & AFFIDAVIT_2.pdf

Because you only get the rights you fight for, ONCE MORE UNTO THE  due process BREACH, INDEED!

Eric Richmond
brooklynlyceum.com