Appeals Court throws Plaintiff from frying pan into the fire.
Due Process, the Brooklyn Lyceum and judicial fingers on the scale

NEW YORK APPELLATE COURT COMES UNGLUED

The Brooklyn Lyceum case really was such such a simple case, rule on the record before the court and the foreclosure was abandoned. 

But, neither the New York State Supreme Court Judge (Donald Scott Kurtz, up for re-election November 5, 2019) nor the Presiding Appellate Judge (Reinaldo Rivera, up for re-election November 5, 2019) could keep themselves focused on the record before them on the first motion in the Brooklyn Lyceum foreclosure case (10035/2008).   

That failure to stick to the record voided every substantive decision after October 26, 2009, including the decision allowing the sale of the Brooklyn Lyceum.

Instead of sticking to the record, they both looked outside the record to validate a decision premised on sworn non-appearance by Defendants RICHMOND and LYCEUM with the years later sworn appearance of Defendants RICHMOND and LYCEUM.  Is that as foolish as it sounds?  Yes.  And, the presiding Appellate Court Judge (Reinaldo Rivera) has doubled down on the foolishness.

For starters, the Appellate Court (Judge Reinaldo Rivera) went bonkers and found that Richmond's motion to dismiss the case as abandoned was too late, having come after the Judgment of Foreclosure and Sale was entered:

"The cross motion was untimely since it was made after entry of the judgment of foreclosure and sale"

This is in direct contradiction to the date and time stamps of the Motion to Dismiss (October 19, 2012) and the Judgment of Foreclosure and Sale (October 26, 2012).

The Appellate Court (Judge Reinaldo Rivera) was asked to, and refused to, correct this simpler than 5th grader math error.

In a waste of judicial resources, that same question, does October 19, 2012, come after October 26, 2012, is now knocking on the door of the Court of Appeals.

Next, because the courts went outside the record,  there are now two directly contradictory sworn affirmations (RICHMOND/LYCEUM non-appearance, RICHMOND/LYCEUM appearance) by a now suspended from the practice of law attorney for the Plaintiff, Claude Castro (https://therealdeal.com/2017/12/26/real-estate-attorney-claude-castro-suspended/).  It should be noted that contradictory sworn statements form the basis of a slam dunk perjury case.

Then there is the loaded decision wording implicitly finding that RICHMOND and LYCEUM timely appeared but, thereafter, did not timely answer the complaint (plead):

"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"

Those words can be illustrated by a comparison of the default statute (CPLR 3215) with rules everyone in New York City knows, No Stopping, No Standing and No Parking.

 Just as Stopping implies Standing and Parking implies both Stopping and Standing, the default statute has analogous words, appear, plead (answer) and proceed.  A finding of failure to answer (plead) implies an appearance and a finding of failing to proceed to trial implies both appearance and answer (plead).

"CPLR 3215 (a) Default and entry.  When a defendant has failed to appear, plead or proceed to trial ... the plaintiff may seek a default judgment against him."

All of this leads to the law of unintended consequences because, rather than stymie LYCEUM and RICHMOND permanently, all the Appellate Court decision did was insert an appearance into the record where there was none, an appearance which retroactively invoked notice and procedural requirements into action, requirements that the Plaintiff and the court failed to meet.

As discussed in later sections those include, but are not limited to:

#1 - Failure to serve any Notice of Motion on the Counsel for appearing parties,  parties the plaintiff initially swore did not appear, let alone by attorney (RICHMOND and LYCEUM).
#2 - The initial Notice of Motion in the case seeking relief (Judgment of Foreclosure and Order of Reference) under the Default Statute (CPLR 3215) that does not allow for those reliefs rather than appropriate statutes that do (RPAPL 1351 and RPAPL 1321, respectively).
#3 - The initial Notice of Motion is premised on an affidavit dated October 26, 2009 that DOES NOT EXIST.
#4 - The Decision by Judge Donald Scott Kurtz, up for re-election November 5, 2009, granted what was not requested (Judgment of Default)
#5 - The Decision by Judge Donald Scott Kurtz, up for re-election November 5, 2009, granted an Order of Reference under a statute that does not allow for an Order of Reference (CPLR 3215).
#6 - The Decision by Judge Donald Scott Kurtz, up for re-election November 5, 2009, was premised on TWO AFFIRMATIONS THAT DO NOT EXIST, one dated October 22, 2009 and one dated October 26, 2009.
#7 - The failure to serve a subsequent Notice of Motion for a Judgment of Foreclosure and Sale on the Counsel for appearing parties,  parties the plaintiff initially swore did not exist (RICHMOND and LYCEUM).
#8 - That Notice of Motion, no matter who was served, noticed the served parties on March 17, 2011 to appear on April 18, 2001, A DECADE IN THE PAST

Each of these Eight Easy Pieces of Law (with a nod to both the movie Five Easy Pieces starring Jack Nicholson and, more importantly, 6 Easy Pieces: Essentials of Physics Explained by its Most Brilliant Teacher (Richard Feynman)) are both jurisdictional (strip court of power to rule on the motion) and simple enough that a fifth grader can get the concepts and do the math.

The question remains, if a fifth grader can get it, why can't two judges, Reinaldo Rivera and Donald Scott Kurtz, both up for re-election November 5, 2019, with  27 and 20 years experience as judges, respectively, get it?

All of these easy enough for a fifth grader issues are discussed in later sections.


RULE OF LAW AT STAKE!

The rule of law is that the law is the rule.  No one may evade the rule of law, not even judges.

    1. Rule of Law says if the Plaintiff doesn't act within 365 days of the last date for your Defendant to appear or answer or proceed to trial, the case is abandoned and the court "shall deny the motion and dismiss the case as abandoned".  The Court ignored that rule of law.
    2. Rule of Law says that the court cannot use anything not on the record before the court in any decision the court makes.  The Court ignored that rule of law.
    3. Rule of Law says that the court cannot use anything not on the record before the court when a court did make a decision in any decision to validate that decision.  The Court ignored that rule of law.
    4. Rule of Law says the court cannot retroactively alter the docket, if that alteration impacts a substantial right, such as notice and opportunity to be heard, without resetting the case back to the point of alteration.  The Court ignored that rule of law.
    5. Rule of Law says the Plaintiff cannot get what is not requested in a Notice of Motion. The Court ignored that rule of law.
    6. Rule of Law says that Plaintiff must cite the law under which Plaintiff seeks a particular relief in a motion.  The Court ignored that rule of law.
    7. Rule of Law says that Plaintiff must specify supporting documents for relief it seeks in a motion.  The Court ignored that rule of law.
    8. Rule of Law says that the Court cannot grant relief not requested in a motion.  The Court ignored that rule of law.
    9. Rule of Law says the court cannot grant relief noticed under a statute that does not provide that relief.  The Court ignored that rule of law.
    10. Rule of Law says the court  cannot premise decisions on multiple non-existent documents.  The Court ignored that rule of law.
    11. Rule of Law says the court cannot grant relief not premised on notice to counsel for an appearing party.  The Court ignored that rule of law.
    12. Rule of Law says the court cannot grant relief with less than statutory notice, let alone notice to appear A DECADE IN THE PAST.  The Court ignored that rule of law.

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This cacophony of foolish all stems from:

  • the lower failing to do ministerial date math,
  • the lower court using evidence not on the record at the time of a decision to validate that decision, and
  • the appellate court also going outside the record to validate the lower court decision.

Absent the Plaintiff presenting proof of either defendant (LYCEUM or RICHMOND) appearance PRIOR TO or WITH the submission of the first motion in the case, by the Plaintiff, the lower court was bound by the record at hand, a record with a lack of any proof of LYCEUM or RICHMOND appearance. Judge Arthur Schack, deceased, was regularly slapped by the Appellate Court for going outside the record. Eventually, the Appellate court would remand case back to any judge but Schack.

All of this leads to the system collapsing on itself because the court, by doing this going outside the record, has altered the case docket to the harm of one side, something else it is not empowered to do, even under any inherent power of the court.

All Judge Kurtz, or his clerk, now civil court judge, Gina Abadi, had to do was examine 3 filing dates, calculate the last day to answer by RICHMOND or LYCEUM, and see if the date the first motion in the case was filed was more than 1 year from either of those last dates.   The simple steps they failed to do:

  • Take Filing date of the proof of service of complaint on RICHMOND (),
  • Calculate the last date to answer as the previous date +40 and add 1 year or 365 days.
  • Filing date of the proof of service of complaint on LYCEUM at the Secretary of State, 
  • Calculate the last date to answer as the previous date +30 and add 1 year or 365 days.
  • See if the filing date of the first motion in the case, no matter what kind of motion it was, was before either of those two dates.  If not, dismiss the case as abandoned.

All else is judicial chicanery to cover up failing to do their job.

The case law, following on the concept that the lower court cannot rule using what is not before it, has repeatedly cited a case by the Appellate Court (130+ times since 2011) finding that even if there was such an appearance by a defendant, failure of the Plaintiff to submit proof of that appearance in the filing papers is not allowable later on to retroactively justify the non-dismissal of  the complaint as abandoned.  In essence, if the Plaintiff had evidence of an appearance by the defendant, it needed to show that to the court, especially if the lack of an appearance would have, due to the passage of time, mandated court dismissal of the case as abandoned.


INEVITABLE LYCEUM VICTORY

LYCEUM PUTS PLAINTIFF IN CHECKMATE

The LYCEUM put the Plaintiff in legal Checkmate  by moving to have the case declared abandoned on October 17/29/22, 2012 (depending on what date one wants to use, date of service, date of filing or date of clerk stamp).

At the hearing on the motion on October 24, 2012, the Plaintiff, having already filed opposition papers that did not deny the important fact, admitted to the basic fact, it was more than a year from the the last date for LYCEUM or RICHMOND to answer till the first motion in the case, falling squarely under the abandonment statute mandating dismissal.

In addition, after the court gave the Plaintiff another 4 weeks to file "Supplemental Opposition" the Plaintiff produced an affirmation for the former Counsel for the Plaintiff, the now suspended form the practice of Law Claude Castro.

That affirmation was not on the record when the court made its initial decision and the affirmation directly contradicted a prior affirmation by Claude Castro, or, perjury. Did the court do the right thing and vacate the prior decision premised on the perjury.  Nope, the court used this outside the record information to rubber stamp a decision premised on sworn non-appearance by RICHMOND/LYCEUM with sworn appearance by LYCEUM/RICHMOND. Kafka would be proud.

RICHMOND appealed this plainly STUPID DECISION by Judge Donald Scott Kurtz, up for re-election November 5, 2019.

In order to give Judge Kurtz a pass on being STUPID, the Appellate Court (Judge Reinaldo Rivera, up for re-election November 5, 2019) doubled down on going outside the record at the time of the decision by making up a fact (finding that October 26, 2012 came before  October 19, 2012).

The Appellate Court did not play the chess game of cheating out far enough, though, as the Appellate Court also made a finding that LYCEUM and RICHMOND appeared in the case, something not evident from the record at the time. This retroactive insertion of an appearance into the record retroactively required specific notice and procedural requirements that neither the Plaintiff nor the Court met.  

APPELLATE COURT THROWS PLAINTIFF INTO ALTERNATE TIMELINE CHECKMATE

In the end, the retroactive alteration of the record by the Appellate Court opened a hornet's nest of rock solid issues that lead to the inevitable vacatur of the sale of the Brooklyn Lyceum to Greystone as the notice and procedural violations are jurisdictional (strip the court of the power to rule in motions in the case).

Think lack of notice to LYCEUM attorney and lack of statutory advance notice.


LYCEUM NEEDS: EYES ON THE LAW

To speed up the inevitable, the Brooklyn Lyceum needs your help.

We are firm believers that cheating judges cheat less if there are more eyes on their actions than just those of the participation attorneys.

To that end, we ask the public for:

  • affidavits of things you don't need to be a rocket scientist to under stand,
  • appearances here and there at important hearings,
  • appearances to help distribute fliers about the Brooklyn Lyceum situation,
  • case-law that either supports or contradicts our positions (though we think you would be hard-pressed to find on point cases that go against the Brooklyn Lyceum), and,
  • if that kind of participation isn't your bag, a direct contribution to help the BROOKLYN LYCEUM get its due process, and, then to support a couple of initiatives to keep this type of stuff from happening to others.

In return, the Brooklyn Lyceum offers a combination of curatorial voting rights or Lyceum staff time for a cause from a growing list of organizations.

You could help book a theater company or music event or art event or comedy event.


LYCEUM PROVIDES: ART CURATION VOTES


  • For each affidavit submitted that passes a minimal content and form review (limit one per affidavit type) you receive 10 votes.  
  • Each Brooklyn Lyceum use of that affidavit in court filings gets you one vote.
  • Each appearance in court gets you 20 votes.
  • Each hour of distributing fliers at designated locations gets you 5 votes.
  • Each case citation that you provide that is on point (whether for or against Brooklyn Lyceum position)  gets you 1 vote.
  • Every $25 donated gets you one vote.  You can earmark the donation to the Brooklyn Lyceum Due Process cause or to a couple of initiatives to see that this type of due process violence happens to fewer people going forward.

Each vote can be used to choose events at the Brooklyn Lyceum or any proxy location till we get things finished in Brooklyn.

Each vote can be temporarily proxied to another person or organization.

Each vote can be permanently transferred to another person or organization.

If, and when, you decide that partaking in programming the Brooklyn Lyceum is not your thing, you can trade in each vote for an hour of Lyceum staff time for a non-profit you can choose from an evolving list.


AFFIDAVITS

Repeated refrains you will see throughout this section are:

  • that bad Notice of Motion, among other things, NEVER INVOKES THE POWER OF THE COURT.
  • Another repeated refrain will be that failures to invoke the power of the court are forever, and can be raised at any time.

Mail all original Affidavits to :
Eric Richmond
2107 Regent Place
Brooklyn, NY 11226

Please make a copy for your records.  If you fail to do so, we can email you a scan.

#1 - Notice to appear in the past

This is the simplest one. The Plaintiff noticed on March 17, 2011, whomever was noticed, to appear a DECADE IN THE PAST, on April 18, 2001.
This entails reviewing a two page Plaintiff Notice of Motion HERENOTICE OF MOTION TO APPEAR A DECADE IN THE PAST.
The necessary result of the court reviewing this bad notice is that the sale of the Brooklyn Lyceum is void, right from the start, or ab initio.
Note the date of the Notice of Motion, from the second page (March 17, 2011) or the vertical date-time stamp on 1st page (2011 MAR 17 AM 11:24) and the handwritten MOTION SUPPORT date on the lower part of the first page (3-17-11).
Note the date all were noticed to appear (lines 4-6 of page #1) : "the undersigned will move this court .... on the 18th day of April, 2001 at 9:30 a.m. ...".
The affidavit  (as an open office document) is HERE : .  Download, print, take to a notary. Sign in front of the notary and mail it to us.

#2 - Appellate Court finds October 19, 2012 comes AFTER October 26, 2012
This one is just as simple, except the piece of necessary information come from three short documents, the Appellate Court Decision, a Notice of Cross Motion and a Lower Court Decision.  The Appellate court said the LYCEUM cross-moved too late, specifically that the Notice of Cross Motion (dated either October 17, October 19 or October 22, 2012) was too late because those things happened AFTER the Judgment of Foreclosure was entered (October 26, 2012).  That is a flat out lie by the Appellate Court.
NOTE (A) the text from the Appellate Decision HERE :  , specifically, "The cross motion was untimely since it was made after entry of the judgment  of foreclosure and sale".
NOTE (B) the date of the Cross Motion  HERE:  (either October 19 date of motion clerk acceptance or October 22, 2012 date of court clerk filing)
NOTE (C) the datetime stamp on the Judgment of Foreclosure and sale (signifying when the judgment was "entered").
NOTE that the Notice of Cross-Motion (either October 19 or October 22, 2012) (B) came BEFORE, not AFTER the Judgment of Foreclosure and Sale (October 26, 2012) (C).  This is in direct contrast with the finding of the Appellate Court.
The affidavit  (as an open office document) is HERE : .  Download, print, take to a notary. Sign in front of the notary and mail it to us.

#3 - Notice of Motion seeks relief not available under noticed statute.
Another easy one.  Read a two page notice of motion, note the statute the reliefs are requested under, note the reliefs requested. Note that those reliefs are not listed in the cited statute.
NOTE (A) the Notice of Motion cites only one statute, CPLR 3215.
NOTE (B) tha notice of motion seeks a Judgment of Foreclosure and an Order of Reference.
NOTE (C) the statute cited, CPLR 3215, does not allow for an order of Reference.
The affidavit  (as an open office document) is HERE : .  Download, print, take to a notary. Sign in front of the notary and mail it to us.

#4 - Notice of Motion not served on David Blum, Esq.
Another easy one.  Read a proof of service of Notice of Motion. ...
NOTE (A) .
The affidavit  (as an open office document) is HERE : .  Download, print, take to a notary. Sign in front of the notary and mail it to us.

========= STOP HERE FOR NOW ==========


# The rest --- coming soon.
#4 - Notice of Motion cites (is premised upon) a non-existent affirmation
#5 - Decision on Motion Grants Relief not requested
#6 - Decision on Motion is premised on non-existent October 26, 2012 affirmation.
#7 - Decision on Motion is premised on non-existent October 22, 2012 affirmation.

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) 

APPEARANCES

NEXT COURT APPEARANCE: TBA

FLIER DISTRIBUTION DATES:

  • Friday, October 4 12:50PM-1:50PM - New York State Supreme Court Steps - 360 Adams Street
  • Thursday, October 10, 2012 - outside the New York State Supreme Court, Appellate Division, Second Department - Monroe Place.


CROWD SOURCE CASE CITATIONS

Do you know of cases that deal with any of the following:

01: Court must address jurisdiction before proceeding.
02: Jurisdiction is forever
03: Laches unavailable for jurisdictional violations.
04: Court Reporter is a waivable right
05: Waiver of defects of Notice of Motion
06: Noticed to appear in the past
07: Failure to notice Counsel
08: Requesting relief unavailable under statute cited.
09: Notice of Motion premised on non-existent affirmation
10: Granting relief not requested.
11: Granting relief unavailable under statute cited.
12: Granting relief on cited, but non-existent, affirmation.
13: Granting Motion on un-cited AND non-existent affirmation.
14: Impact on decisions when later affirmation contradicts earlier one.
15: nun pro tunc Appellate insertion of appearance in docket.
16: Appellate Court makes up fact.

If so, fill out this form: https://brooklynlyceum.com/citation

NOTES:

  • We are smart enough to hunt down the salient portions of the citation, but be a dear, and copy and paste that section to make our lives easier.
  • The first submitter of each case who leaves an email address, if it is, in our opinion, reasonably on point, gets the vote. 
  • DOES NOT NEED TO BE NEW YORK CASE:  any state, any country, any federal district, SCOTUS all apply.

PROXY / TRANSFER / EXCHANGE

You can:

  • use your vote to help curate Brooklyn Lyceum activity
  • proxy you vote for a time to another person/entity
  • permanently transfer your vote to another person/entity
  • return your vote to the Lyceum in exchange for Lyceum staff time for a cause you choose from our list.
  • So, if you have a favorite group/entity, earn votes and proxy/transfer the votes to that favorite group/entity.



DONATIONS

It has cost thousands of dollars to fight for Brooklyn Lyceum Due Process.  Any little bit helps.

For each $25 you give, you get one vote (except for the purchase of research time).

https://brooklynlyceum.com/viewart/5


RULES OF WAIVER

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 occurred 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


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