WHERE'S ERIC? Out and about through Nov 5 Election
talking about two judges up for re-election

WHERE'S ERIC

Eric Richmond, owner of the Brooklyn Lyceum, will be out and about through election day, November 5, 2019, distributing fliers and talking about two judges involved in the Lyceum case who are up for re-election, NYS Supreme Court Judge Donald Scott Kurtz (cited non-existent documents) and Appellate Judge Reinaldo Rivera (found October 19 is AFTER October 26).

Richmond will also discuss similar cases where the same Appellate Court has treated other litigants differently under the same conceptual fact pattern, that of the court retroactively (nun pro tunc) altering the docket in favor of a litigant and correctly refusing to thereby harm the substantial rights of other litigants as well as how October 19 cannot be AFTER October 26.

Richmond’s next appearances out and about:

Grand Army Plaza Central Library: Nov 2, 3:30-5:30PM & Nov 3, 2:30-4:30PM - Room 3


Frying Pan Into the Fire

Appellate Court pushes Plaintiff from Frying Pan Into the Fire

The Brooklyn Lyceum has argued, since October 19, 2012, to the Kings Supreme Court (10035/2008), and the Appellate Court (2013-2106/7/8), that the case under which a Judgement of Default was rendered against the Lyceum was actually abandoned earlier by the Plaintiff per statute (CPLR 3215c) based on the record in existence at the time of the motion.

In order to find against the Brooklyn Lyceum and the now pro se (self-represented) litigant Richmond, the Appellate Court found that October 19, 2012 came AFTER October 26, 2012.

If that was not enough, the Appellate Court made a finding that can only be mean, based on the record before the court at the time of the motion, that the Brooklyn Lyceum and the litigant Richmond timely appeared via an attorney, but then failed to timely answer the complaint.

That timely appearance finding was not possible with the record available at the time of the motion.

Thus the decision finding appearance implicitly and retroactively altered the docket (nun pro tunc) for the Plaintiff without addressing basic fairness to defendants. This contradicts Appellate Court practice as recent as two weeks prior to the Lyceum Appellate oral argument.

The implicit finding that the defendants timely appeared leads directly to the Plaintiff being thrown from one legal Checkmate (abandonment of case) to other legal Checkmates:

  1. failure to serve Defendants’ Attorney any motion papers or decisions whatsoever,
  2. facially insufficient motion papers (things like citing non-existent documents),
  3. the court citing multiple non-existent attorney affirmations in decision,
  4. the court granting what was not requested,
  5. the court granting what was requested under improper statute, and,
  6. the March 17, 2011 notice to appear on April 18, 2001, a DECADE IN THE PAST.

The Appellate Court found a now suspended from the practice of law attorney, Claude Castro, a perjurer by way of accepting and using a second affirmation swearing Defendant appearance in contrast to the affirmation filed with the court years earlier swearing Defendant non-appearance.

It would have been much simpler if the Courts had ruled on what was before them at the time of the motion instead of validating a decision premised on sworn non-appearance of Defendants with a Decision premised on sworn appearance by Defendants.

NOTE: The Court of Appeals has been asked to address if October 19 is actually after October 26.

NOTE: Richmond raised jurisdictional arguments at oral argument that the Appellate court failed to address: youtube link / brooklynlyceum.co link.

-The situation is discussed in more detail at: brooklynlyceum.com.

-Eric Richmond can be reached at 646.256.961 and/or brooklynlyceum@gmail.com.


Oct. 19  IS NOT AFTER  Oct. 26

The New York State Court Appellate Division, Second Department, on Monroe Place in Brooklyn convened a panel headed by Judge Reinaldo Rivera (up for re-election on November 5, 2019) to hear oral argument on September 6, 2018 in the Lyceum appeals.

One of the appeals dealt with whether the abandonment  statute (CPLR 3215c) had required the lower court to dismiss the case as abandoned rather than allowing the lower court to make a case abandoned by Plaintiff inaction rise from the dead if the court failed to follow the abandonment statute which required dismissal of the case as abandoned.

The court found that the lower court had not erred because of two issues, one dealt with here and one dealt with in the next section.

The first was that Judge Reinaldo Rivera  (up for re-election on November 5, 2019) found that the Appellant had moved too late to force the court to dismiss the case as abandoned.  Specifically, the court found:

"We agree with the Supreme Court’s determination denying Richmond’s cross motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned. The cross motion was untimely since it was made after entry of the judgment of foreclosure and sale (see Fuentes v Virgil, 88 AD3d 643). " (emphasis added)

That dispositive fact is flat out wrong whether that logic makes sense at all (can it ever be too late to have an abandoned case dismissed as such and does the lower court ignoring statute make the statute meaningless?)  It is interesting that the court did not "do the math" and state the dates of entry of the cross-motion and the judgment of foreclosure and sale.

Were the court to do what a fifth grader could easily accomplish,  look at the date-time stamps of the two documents, the court could not have made that ridiculous finding of fact.

The date-time stamp of the Cross Motion was , at the either of three dates, all prior to the entry of the Judgment of Foreclosure and Sale.  It could be:

  • the date the papers were served Wednesday, October 17, 2012,
  • the date the clerk accepted the papers, Friday, October 19, 2012, or,
  • the date and time stamp when it got to clerk, Monday, October 22, 2012.

All three possible dates for the cross-motion come before, not after, the October 26, 2012 @10:15AM date-time stamp from the signature page of the Judgment of Foreclosure and Sale.

In addition,  the first page of the cross-motion is dated the date of oral argument, October 24, 2012, noting the date Opposition papers were due (November 19, 2012), the date Appellant's Reply papers were due (December 7, 2012) and the date the parties were to be back in front of the court, December 11, 2012.

Thus, the court actually held oral argument on the cross-motion PRIOR to the entry of Judgment of Foreclosure and Sale.  The Plaintiff even admitted as such in the opposition served in November, 2012.

The Appellate court was wrong on simple date math comparison of two dates.

For the Appellate Court to get this wrong tilts away from sloppy of busy to more nefarious descriptors.


THE PAPERS

The Court's Decision:

THE CROSS MOTION:

  • UNANNOTATED Lyceum Website:
  • ANNOTATED: Lyceum website:  and
  • UNANNOTATED: scribd: found 
  • ANNOTATED: scribd: found :

THE JUDGEMENT OF FORECLOSURE AND SALE:

  • UNANNOTATED Lyceum Website:
  • ANNOTATED: Lyceum website:  and
  • UNANNOTATED: scribd: found 
  • ANNOTATED: scribd: found :

PLAINTIFF AFFIRMATION admitting that there was oral argument

  • UNANNOTATED Lyceum Website:
  • ANNOTATED: Lyceum website:  and
  • UNANNOTATED: scribd: found 
  • ANNOTATED: scribd: found :

STEALTH  nun pro tunc  (now as before)

The courts have the power of the Common Law, Constitution, Statute and Case-Law.

When all is said and done, all four of those fall under what is often called "the inherent power of the court."

That inherent power is the power to do whatever it damn well pleases ... so long as no harm comes to a party.

IN ANOTHER CASE JUST BEFORE LYCEUM ORAL ARGUMENT

Judge Reinaldo Rivera, up for re-election on November 5, 2019, as as well as being the Judge that botched whether October 19 comes after October 26 in the Lyceum Appeals, sat on a panel where in a decision was rendered in a Westchester foreclosure case. 

In that case, the Plaintiff clearly missed a filing deadline by 7 days.  A paper needed to be filed within 20 days of an event but was mailed in 14 days after that event and eventually docketed 7 days late, 27 days after  the event. The court, headed by Judge Reinaldo Rivera, went out of its way to give the Plaintiff a mulligan, a do over.  To do so the court, using its inherent powers, deemed the seven days late document to be timely filed.

The court, in an act of common sense, refused to harm the Defendant by the retroactive (in legal terms, nun pro tunc ) correction of the Plaintiff error by the court.  Thus, the court rewound the case to the point of the alteration of the record for the Plaintiff. In doing so, the sale of a property was unwound.  The interesting parts from that case:

"The court may not make such relief retroactive, to the prejudice of the defendant, by placing the defendant in default as of a date prior to the order (see Khan v Hernandez, 122 AD3d at 803; Discover Bank v Eschwege, 71 AD3d at 1414), "nor may a court give effect to a default judgment that, prior to the curing of the irregularity, was a nullity requiring vacatur" (Discover Bank v Eschwege, 71 AD3d at 1414 [internal quotation marks omitted]; see Bank of New York v Schwab, 97 AD2d 450). "
...
Accordingly, the Supreme Court should have vacated the default judgment, and, upon deeming the affidavit of service timely filed, nunc pro tunc, should have extended the time for the defendant to serve and file an answer." (emphasis added)

In the Lyceum appeal, the court altered the past for the Plaintiff without ensuring no harm came to the other parties.

Quite simply, the lower Court (Judge Donald Scott Kurtz, up for re-election November 5, 2019), validated his own decision premised on either nothing (addressed in later sections)  or premised on Plaintiff swearing the Lyceum did not appear ("none of the defendants have appeared herein") with another years later affidavit by the same attorney swearing that the Lyceum had appeared.

The higher court, Judge Reinaldo Rivera, up for re-election November 5, 2019, rather than slap the hands of a judge going outside the record to validate a judgment (as nothing in the record on the date of either the 1st motion in the case or the date of the decision in that 1st motion) shows any appearance by the Lyceum) that could not stand otherwise, made a subtle finding that, when parsed, was clearly stealth nun pro tunc alteration of the record (insertion of an appearance by Lyceum into the record that the Plaintiff swore did not exist) to validate the decision that could not stand otherwise.

FAILURE TO APPEAR, ANSWER OR PROCEED TO TRIAL

To understand what the court did, we first take the important line from the Lyceum Appellate decision:

"In any event, Lyceum Bathhouse took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]) within one year of Richmond’s default in answering the complaint (see HSBC Bank USA, N.A. v Roldan, 155 AD3d 942, 944; Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 774; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712)" (emphasis added)

The operative words are "default in answering." Note that it did not say "default in appearance."  That is important because the statute makes a clear distinction between failing to appear (any substantive interaction between Plaintiff and defendant), failing to plead (answer) and failing to proceed to trial.

"CPLR 3215(a) Default and entry.  When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him." (emphasis added)

It is clear that any decision premised on a failure to timely answer is actually a finding a timely appearance followed by a failure to answer.

The only thing on the record that show a Lyceum appearance is an affirmation by then Attorney Claude Castro (now suspended fom the practice of law for withholding information from the 1st Department Disciplinary Committee) some three years after the first motion in the case stating that he had communicated with Counsel for Lyceum, granted two written extensions of time to Counsel for Lyceum, granted multiple oral extension to Counsel for Lyceum and even rejected an answer from Counsel for Lyceum, all of which constitute informal appearances by Counsel for Lyceum  prior to the first motion in the case.

The Appellate Court could not find a failure to appear based on the record at the time of the first motion. It could only have used the three years after the first motion by Claude Castro which was outside (in legal latin dehors) the record at the time of that fist motion.  And, by using something outside the recoird at the time of the motion to justify a decision on the motion is that old bugaboo, a nun pro tunc insertion of an appearance.

Having appeared  retro-actively, by counsel no less, a cascade of jurisdictional procedural requirements sounding in Notice and Opportunity to Be Heard (aka Due Process) reared their heads.


LAW OF UNINTENDED CONSEQUENCES

HAVING APPEARED, RETROACTIVELY ...

Having appeared, by retroactive insertion into the record by the Appellate Court, all the procedural requirements that did not need to be met absent an appearance, need to be met retroactively.

  • A non-appearing party need not be served any further papers.
  • An party appearing invokes a jurisdictional responsibility of the Plaintiff to serve all papers till the end of the case on that appearing party.
  • A party appearing by counsel invokes a jurisdictional responsibility of the Plaintiff to serve all papers till the end of the case on that Counsel.

The next sections discuss the cascade of procedural due process violations the retroactively inserted into the record appearance created.


FAILURE TO SERVE  ANYTHING  ON ATTY

Statute requires service of all papers on the attorney for an appearing party.

"CPLR 2103 (b) Upon an attorney.  Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney."

Counsel for initial Plaintiff swears that he interacted with counsel for Lyceum by way of several extensions of time to answer for Lyceum and by way of rejecting an answer submitted by that Counsel on behalf of Lyceum.

All communication was to that counsel :

  • David Blum
  • 286 Madison Avenue # 1802
  • New York, New York  10017

The Counsel for the subsequent Plaintiff swears to this communication: 

8. As outlined in the Castro Affirmation and the exhibits attached thereto, unbeknownst to present Plaintiff and its counsel, Mr. Castro granted Mr. Richmond, both on his own behalf, and on behalf of the Defendant Mortgagor, through their counsel at that time, David Blum, Esq. ("Blum"), repeated adjournments of answering time, as there were ongoing settlement talks between the parties.

There is nothing in the record at all, let alone up to and including the cross-motion to dismiss, about service of any papers on Counsel for the Lyceum or Richmond.

To dig in one would have to look at the Judgment of Default and the supporting papers (147 pages).

In pages 140 - 142 is the proof of service of the Motion.  Nowhere is there any reference to or any claim to have served David Blum, Esq.

Unending caselaw finds that failure to serve papers on an appearing party's counsel is a jurisdictional non-starter.  The court is not empowered to grant any motion not on any notice.


NOTICE PREMISED ON  NON-EXISTENT AFFIRMATION

The first Notice of Motion in the case says:

"PLEASE TAKE NOTICE that upon ... and upon the annexed affirmation of Claude Castro, ESQ., dated October 26, 2009, ... the Plaintiff will move this court for ... a) an order pursuant to CPLR 3215 for a Judgment of Foreclosure  ... and ... b) an order appointing a referee to compute"

The non-starter here is that there is no affidavit anywhere on the record dated October 26, 2009.

The movant is strictly held to the points of the Notice of Motion unless there is some waiver by participation on the merits.

As the movant moved for relief under a non-existent document, the court is not empowered to grant the relief, unless the court orders a change on notice, or, the opposing parties appear and do not orally contest non-existent document or the opposing parties submit opposition without contesting the non-existent document.

It is a procedural right that can be waived, in legal terms, only by participation on the merits.

In this case, since they never served Counsel for Lyceum and Richmond, and that neither Counsel nor Lyceum nor Richmond appeared at oral argument and that neither Counsel nor Lyceum nor Richmond filed any papers in response, no threshold for waiver has been met. 

Absent any such waiver, as here, the power of the court was not invoked in the Notice of Motion.

The court had no power to grant an anything premised on a non-existent document.


RELIEF UNAVAILABLE  UNDER STATUTE

The statute on Notice of Motion requires that the movant notice a time and a place for the motion (with statutory advance notice).

The same statute mandates that the movant specify in the notice what relief the movant is seeking.

The statute continues to mandate that the movant specify the grounds (statute) under which the movant is seeking the relief.

The statute:

Rule 2214. Motion papers; service; time (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded. (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard.

The logic is clear, the movant must specify what he wants, and under what authority he wants it.

The courts have long held that if it is not noticed properly, the failure to appear in the motion, failure to argue the motion orally and failure serve opposition papers do not waive these requirements.  They are jurisdictional.

Were the movant to, as here, seek something (Order of Reference and Judgment of Foreclosure) without placing the correct laws under which that relief can be sought (RPAPL § 1321 and RPAPL § 1351, respectively), the court is not empowered to grant the relief, unless the court orders the change on notice, or the opposing parties appear and do not orally contest the Notice of Motion or they opposing parties submit opposition without contesting the notice of motion.

It is a procedural right that can be waived only by participation on the merits.

In this case, since they never served Counsel for Lyceum and Richmond, and neither that counsel nor Lyceum nor Richmond appeared at oral argument and neither that counsel nor Lyceum nor Richmond filed any papers in response, no threshold for waiver has been met. 

The court had no power to grant an Order of Reference or a Judgment of Foreclosure.



DECISION GRANTS RELIEF NOT REQUESTED

The first Decision in the case says:

"... ORDERED, that a default judgment in favor of the Plaintiff be granted as to the claim described in the Plaintiff's Complaint herein ..."

The court ordered a default judgment.  Problem is, the movant did not request a default judgment.  From the Notice of Motion:

PLEASE TAKE NOTICE that upon ... and upon the annexed affirmation of Claude Castro, ESQ., dated October 26, 2009, ... the Plaintiff will move this court for ... a) an order pursuant to CPLR 3215 for a Judgment of Foreclosure  ... and ... b) an order appointing a referee to compute"

The Notice of Motion statute mandates that the movant specify in the notice what relief the movant is seeking.  The statute: 

"Rule 2214. Motion papers; service; time (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded. (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard."

The movant was granted  a judgment of default absent requesting such, something the court is not empowered t give..

The courts have long held that if it is not noticed properly, the failure to appear in the motion, failure to argue the motion orally and failure serve opposition papers do not waive these requirements.  They are jurisdictional.

The movant is strictly held to the points of the Notice of Motion unless there is some waiver by participation on the merits.

As the movant did not move for a default judgment, the court is not empowered to grant a default judgment, unless the court orders a change on notice, or, the opposing parties appear and do not orally contest unallowable relief request or the opposing parties submit opposition without contesting the unallowable relief request.

It is a procedural right that can be waived, in legal terms, only by participation on the merits.

In this case, since they never served Counsel for Lyceum and Richmond, and that neither Counsel nor Lyceum nor Richmond appeared at oral argument and that neither Counsel nor Lyceum nor Richmond filed any papers in response, no threshold for waiver has been met. 

Absent any such waiver, as here, the power of the court to issue a default judgment was not invoked in the Notice of Motion.

The court had no power to grant an anything not requested in the Notice of Motion.


DECISION PREMISED ON NON-EXISTENT AFFIRMATIONS

The Decision lists the papers the decision is premised upon:

"... the affirmation of Claude Castro, ESQ., of counsel to the firm of Cohen & Perfetto LLP, the then attorneys for the Plaintiff, dated October 26, 2009,  ... the October 22, 2009 affirmation of Claude Castro ..."

The problem is there are no affidavits in the record anywhere dated October 26, 2009 or October 22, 2009, whether by Claude Casto or Santa Claus.

The court was not and is never empowered to grant the relief under multiple non-existent documents (affirmations).


COURT GRANTS RELIEF UNAVAILABLE UNDER STATUTE

The first Decision in the case grants an Order of Reference:

"... ORDERED, that this action be, and the same is hereby referenced to Gregory Cerchione, ESQ., having an office at Subin Associates, LLP, 150 Broadway, New York 10038, telephone number 212-285-3800, as Referee to ascertain and compute the amount due to the Plaintiff ..."

The only statute mentioned in the Notice of Motion is CPLR 3215.  An Order of Reference is not available under that statute.

The Notice of Motion statute mandates that the movant specify in the notice what relief the movant is seeking.

The statute continues to mandate that the movant specify the grounds (statute) under which the movant is seeking the relief.  The statute:

"Rule 2214. Motion papers; service; time (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded. (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard."

The logic is clear, the movant must specify what he wants, and under what authority (statute) he wants it.

The courts have long held that a court may not grant a relief unavailable under a statute listed in a Notice of Motion.

If opposing parties are not noticed of the relief under grounds that can grant that relief, the failure to appear in the motion, failure to argue the motion orally and failure serve opposition papers do not waive these requirements.  They are jurisdictional.

It is a procedural right that can be waived only by participation on the merits.

In this case, since they never served Counsel for Lyceum and Richmond, and neither that counsel nor Lyceum nor Richmond appeared at oral argument and neither that counsel nor Lyceum nor Richmond filed any papers in response, no threshold for waiver has been met. 

The court had no power to grant an Order of Reference under a statute that does not allow for an Order of Reference.


NOTICE TO APPEAR -  DECADE IN PAST

No matter whom was served, unless waived by participation on the merits, less than statutory notice is a jurisdictional defect and fails to invoke the power of the court.

The Notice of Motion statute mandates that the movant specify in the date and time of the hearing.

The statute continues to mandate that the movant provide a minimum of eight (8) days notice.  The statute:

"Rule 2214. Motion papers; service; time (a) Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded. (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard."

The statute is clear, the movant must provide at least eight days notice for a regular motion.  It should be noted that the only exception is if the  motion is for a Judgment of Default, in which case appearing parties are entitled to 5 days notice.  As the movant did not seek a Judgment of Default, the 8 day requirement is the one addressed herein, but the logic applies to 5 day notice as well.

That being said, there is a stream of case law as long as summer solstice day that says even one day less notice than the statutory minimum is jurisdictional, save for if those noticed participate on the merits of the motion without objection to the less than statutory notice.

Here it is quite silly.  As noted before, the Plaintiff did not serve any documents on counsel it knew had appeared.  The failure to serve that counsel was jurisdictional in any motion.

That notwithstanding, the Notice of Motion for a Judgment of Foreclosure and Sale noticed on March 17, 2011, whomever it noticed, to a appear on April 18, 2001, A DECADE IN THE PAST.

The courts have long held that even one day less than the statutory minimum is jurisdictional if those noticed fail to appear at oral argument and fail to file opposition papers.  In that instance, they cannot be seen to have waived the statutory notice.

If opposing parties are not noticed of with the statutory minimum days of advance notice, the failure to appear in the motion, failure to argue the motion orally and failure serve opposition papers do not waive these requirements.  They are jurisdictional.

It is a procedural right that can be waived only by participation on the merits.

In this case, since they never served Counsel for Lyceum and Richmond, and neither that counsel nor Lyceum nor Richmond appeared at oral argument and neither that counsel nor Lyceum nor Richmond filed any papers in response, no threshold for waiver has been met. 

The court had no power to grant an anything when Notice was never served on counsel for Lyceum and Richmond, and when whatever notice was served, required a time machine to participate.