19>26? Noticed to appear in past? Cite to non-existent documents? Alter docket? Ignore Plaintiif Attorney perjury?
The lower Court (Judge Donald Scott Kurtz, up for re-election 11/5/2019) and the Appellate Court (Judge Reinaldo Rivera, up for re-election 11/5/2019), did what has never been allowed by any court.
Both judges went outside the record to validate a decision they could not validate if they did not go outside the record. Such actions are a retroactive alteration of the record.
This would not be a problem if the Appellate Court followed its own rules when it uses the inherent power of the court to reset the case back to the point of the alteration of the record if that alteration impacts a party’s substantial right such as Notice and Opportunity to be heard, as with the Brooklyn Lyceum.
This miscarriage of justice, however wrong, may be irrelevant as timely appearances of Eric Richmond (“RICHMOND”) and 231 Fourth Avenue Lyceum, LLC (“LYCEUM”) retroactively inserted into the record by the lower and Appellate Court are worse for the Plaintiff. Many unmet jurisdictional procedural requirements kicked in once the Courts retroactively altered the record.
Those requirements created a Pandora’s box of failures to invoke the power of the court in the first motion in the case as well as the jurisdictional non-starter of the Plaintiff notice to appear at a hearing a decade prior (in the past) to the notice of motion, a motion to sell the Brooklyn Lyceum.
Absent an appearance by RICHMOND or LYCEUM, the Plaintiff was not required to serve any more papers on either beyond the Summons and Complaint as the failure to appear is seen by the courts an admission of all allegations. With no requirement to serve papers, it matters little about the form, or, to a certain extent, the content, of the papers, so long as the papers stick to what is outlined in the complaint.
The Appellate Court found what can only be interpreted as an informal appearance via counsel by RICHMOND and LYCEUM, subjecting all subsequent papers procedural review. From the 1st:
- Plaintiff fails to serve Notice of Motion on Counsel for RICHMOND and LYCEUM.
- Plaintiff moves under Default Statute (CPLR § 3215C) for a Judgment of Foreclosure (should be RPAPL § 1351) and Order of Reference (should be RPAPL § 1321).
- Plaintiff cites to a non-existent October 26, 2009 Plaintiff Attorney Affirmation.
- Court Decision grants what is not requested (Judgment of Default).
- Court grants what is not possible under Default Statute grounds (Order of Reference).
- Court cites the NON-EXISTENT Oct 26, 2009 affirmation.
- Court cites another NON-EXISTENT Oct. 22, 2009 affirmation.
Having been granted both an unrequested Judgment of Default and a requested under the wrong statute Order of Reference by the court, the Plaintiff then notices all (except Counsel for RICHMOND and LYCEUM) on March 17, 2011 to appear on April 18, 2001, A DECADE IN THE PAST!
All caselaw finds that unless the Party noticed with less than statutory notice either appears at the badly noticed hearing and fails to contest the lack of notice orally or submits papers that fail to contest the lack of notice, the lack of statutory notice is jurisdictional and fails to invoke the power of the court in the motion.
Since counsel for RICHMOND and LYCEUM was never noticed at all and that Counsel failed to appear a decade in the past and could not possibly file responsive papers a decade in the past, the lack of statutory notice made the decision (Judgment of Foreclosure) a nullity.
One of the most important SCOTUS cases, US v Lee, found that failure to follow due process procedurally unwound the sale of what had become Arlington National Cemetery some 15 years later.
The case also found that judges are creatures of law whose judicial violations of law cannot exist.
There are thousands of cases that show that if a violation of due process is not waived, any decision premised upon such a violation is void from the start (ab initio).
Laches is the thought that one can sit on one’s rights so long that it would be unfair to others to be allowed to assert those rights.
There is unending case law that says if the court, including attorneys, failed to follow basic procedural law, violating unwaived procedural rights, no rights can vest from such a failure.
Defendants Eric Richmond (“RICHMOND”) and 231 Fourth Avenue Lyceum, LLC (“LYCEUM”) have long argued to the courts that the foreclosure record is absent any proof of their appearance:
- A--at time of the 1st motion by Plaintiff (Oct.26, 2009)
- B--through the 1st motion decision (Jan. 18, 2011)
- C--through cross motion to dismiss (Oct. 19, 2012)
- D--through cross motion hearing (Oct. 24, 2012)
- E--Till altered plaintiff affirmation (Nov. 16, 2012)
Given the record at points A-D, the case was abandoned under CPLR 3215(c) absent any evidence of appearance, formally by virtue of CPLR 320 or informally by way a common law appearance, and it being more than a year from default to the first motion (actually 17+ months).
In addition, a Plaintiff affidavit is in the record dated October 13, 2009 where the Plaintiff’s counsel swears ”no extensions of time to answer and no interposition of an answer”.
In fact, at the hearing on the motion to dismiss the complaint as abandoned, Plaintiff’s Counsel at the time represented to Judge Donald Scott Kurtz, up for re-election 11/5/2019, that it was more than a year between the defaults of RICHMOND and the LYCEUM and the first motion in the case.
Quite simply, this was a sweet and simple a case as any judge could want, nothing on the record at the first motion about any appearance by RICHMOND or LYCEUM, affidavit then swearing as such and a later representation to the court of the same when the case is challenged as abandoned.
Then came the judicial thumb on the scale, the court defending its own decision premised on sworn defendant non-appearance by sworn defendant appearance submitted years later, both by the same since suspended from the practice of law Attorney, Claude Castro.
The Appellate Court (Judge Renaldo Rivera, up for re-election 11/5/2019), used its inherent powers twice, finding that October 19, 2012 came after October 26, 2012, and changing the past for the Plaintiff (creating defendant appearance) absent the other side of that inherent power coin used hundreds of times, ensuring that the Defendants suffer no harm to substantial rights like Notice.
Those two issues are currently knocking at the door at the Court of Appeals.
We need your help to make the inevitable happen quicker. Here is how:
- 1. Take some time to review the documents that make up some of the things in this flier,
- 2. Sign and send us an affidavit or two regarding those obvious facts,
- 3. Make an appearance (if it works with your schedule) at some future hearing as a watched judicial system might actually follow the rules.
For the help you get :
- Curatorial voting rights to assist in re-programming the Brooklyn Lyceum when it returns.
- Those votes can be proxied for a time (or transferred permanently) to a group of your choosing.
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 In fancy latin legal terms, changing the past is a nun pro tunc (now for then) retroactive insertion of a fact into the record.
 Inherent power of the court: the power of the court to do whatever it wants as long as it is fair. In this case altering the record to benefit the Plaintiff without addressing impact on Defendant is patently unfair.
The issues in the subsequent tabs are rock solid in favor of the Brooklyn Lyceum.
In a nutshell, if ANY are right, the the sale of the Brooklyn Lyceum was ILLEGAL.
- We are beginning to collect and collate caselaw to support our positions on each of the issues.
- We welcome all to submit cases to the mix.
- We welcome cases in support as well as, in an effort to be complete, any cases that do not support our position.
- We will post the cases in the tab under that issue.
- The cases can be from any jurisdiction, not just New York law.
- The cases can be old as the hills (as the Appellate Division, Second Department has opined the "old law is good law").
If you are the first to submit the case, you get one vote in the future Brooklyn Lyceum cultural voting pool.
If you give us an email address, we will stockpile your submitted cases/votes under that email.
Once the dust settles you will be afforded all voting rights with each vote. You can:
- Use the vote to help program the Brooklyn Lyceum, or any interim facility.
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- Return any single vote to the Lyceum in return for 1 hour of Lyceum staff time for a cause of your choosing from our list which we will cultivate and publish as it grows (beginning October 1, 2019).
If you do not provide an email address, that case is considered a gift of knowledge to the Brooklyn Lyceum.
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LEGAL SCHOLARS use this FORM to submit the case that will have a space for an email contact and name, neither of which is required.
If you want to help more:
- Affidavits about facts of the case and docket are welcome as are appearances at critical junctures.
- Each affidavit submitted and accepted with correct format and content is 10 votes, each use of the affidavit in court filings is one vote and each appearance is 20 votes.
Learn more about these options at https://brooklynlyceum.com/wip/10078.
Quite simply, if notice is statutorily insufficient, only active participation in the motion, either at oral argument or in written opposition, without raising the lack of statutory notice waives the notice issue.
In the first motion, the notice to counsel for RICHMOND and LYCEUM never occured per CPLR 2103(), there was no appearance at oral argument and there was no opposition filed. Thus, no waiver.
In the Motion for a Judgment of Foreclosure, the Notice gave -3,650 days notice, there was no appearance on that date, and there was no opposition filed. Thus, no waiver.