due process lemonade from judicial lemons
Lyceum takes another shot at due process as court has both gone outside the record & found 17>26!
a once and future Lyceum if ...

we get a little help from some friends.

What must come if the Court of Appeals fails to address simple facts such as ...

is 17 a larger number than 26?

Issues of three appeals the lower appellate court clearly fumbled.

Appeal #1 - Was the case abandoned?

a) The lower appellate court found the Lyceum moved too late (October 17) to have the case deemed abandoned by moving AFTER the Judgment of Foreclosure and Sale was entered (October 26) when exactly the opposite is clear from the date-time stamps on the documents.  Such a finding turns a law on its ear as cases abandoned by Plaintiff inaction now become unabandoned by further Plaintiff action when the court fails to dismiss the case as abandoned according to unequivocal statute.

b) When then addressing whether the first Plaintiff motion in the case was within 365 days of the last date for the defendants to appear, absent which the court was required to deem the case abandoned, found something impossible to find from the record available to the court at the time of that initial motion.

The court found, oddly, that the Plaintiff moved within a year of the Defendant's failure to answer, implying an appearance followed by default in timely answering.

The only proof of any interaction whatsoever the Plaintiff had with the Defendants was withheld from the court in the initial motion by the now suspended from the practice of law Plaintiff attorney, proof of appearance by counsel for the Defendants popping up some three years after the submission of the initial motion.

Appeal #2 - Why did the court fail to analyze whether a court order was in effect?

In citing a case to hold defendant in contempt, the court failed to address one of the required prongs of the test, was the court order in effect, the sole issue addressed in defendant appellate brief but ignored by the appellate court.

Appeal #3 - Is an attorney shown to have lied by a document he attached to his own sworn statement about how and when his client became (took over as) Plaintiff about the merits (intrinsic) or about procedure (extrinsic)?

This is important because by relabeling an allegation of "extrinsic" fraud to that of "intrinsic" fraud, in addition it being an alteration of the docket by the appellate court, allowed the appellate court to use a statute of limitations on "intrinsic" fraud that does not exist for allegations of "extrinsic" fraud.

INEVITABLE AS OF RIGHT APPEAL TO THE COURT OF APPEALS

There are unavoidable ramifications of the Court of Appeals failure to deal with:

  • whether a court can find 17 >26, and
  • whether or not it is OK to go outside the record to the benefit of the Plaintiff and to the harm of the Defendant, and
  • whether attorney lying about when that attorney's client acquired a case is extrinsic or intrinsic, and,
  • whether an order required to be served within 30 days and served at 45 days is in effect

Absent addressing these issues now, there is a direct avenue to the Court of Appeals as the appellate decisions (implicit finding that Defendant appeared by counsel) would, as per the statute on appealability to the Court of Appeals, necessarily impact a future final Judgement of Foreclosure that was now done on no notice to that counsel and whomever was noticed was noticed to appear a decade in the past.

As all appeals of such final judgments allow the Court of Appeals to address any and all prior intermediate (interlocutory) decisions in the case, the Court of Appeals will necessarily have to deal with another fact created by the lower appellate court, that the existence of the attorney appearing for the defendants was never served the initial motion (or any other papers) in the case.

The Court of Appeals would also need to address other annoying initial motion details such as:
  • did lower court grant what was not requested and was not on notice and to which the un-noticed party/attorney did not appear and unnoticed party/attorney did not provide opposition papers??
  • did lower court premise its initial motion decision on two non-existent affirmations (attorney affidavits) which, again, were not on notice ?
  • did lower court grant a relief in the initial motion decision that was not warranted due to failure to notice the statute that grants that relief which, again, was not on notice?

A LITTLE HELP FROM OUR FRIENDS

If you see these as miscarriages of justice and violations of statute and due process, and you are culturally inclined, read further to see how, with a little help of some friends, the Brooklyn Lyceum can obtain the due process long denied.

By doing so you can also trade in that effort for some Brooklyn Lyceum programming rights that you can use or transfer to your favorite cultural groups/people.

Or, alternatively, you can trade in the votes for some some Lyceum staff time for a cause you can select from a growing list of causes.

JURISDICTION: Power to Rule

Jurisdiction is simple.

The court must have the power to rule on a type of case (subject matter jurisdiction).

For example, in New York, Small Claims court actions are limited to $5,000.  Thus if you file an action in Small Claims court for $5,001, the Small Claims court must dismiss the complaint with leave to refile in appropriate court.

Within a case, the power of the court, jurisdiction, must be invoked and be present by such proper invocation of the power of that court in every motion.

  • Each notice of motion must give at least the statutory minimum advance notice.
  • Each notice of motion, if a party has appeared by counsel (attorney), must be served on that counsel.

The failure to provide the statutory number of days notice OR the failure to serve counsel for an appearing party fail to invoke the power of the court rendering any decision on such motion void from the start, or ab initio.

The Supreme court found this in 1868:

Ex parte McCardle, 74 U.S. 506 (1868) : 

"Without jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and, when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle."

In New York, the legislature codified one version of the loss of jurisdiction, the failure to act within a year of a defendant:

  • default in appearing
  • default in answering, after having appeared
  • default in proceeding to trial after having appeared and answered

One should note the similarities with McCardle:

CPLR 3215(c): 

"Default not entered within one year.  If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."

FOUR CORNERS

The court is bound to stay within the "four corners" of the record for facts.  That is, the court may not go outside the record created by the Plaintiff and Defendant for facts to help in creating a decision, save for constitution, statute, case law or indisputable public record (deed, etc.)

If a court does go outside the record for facts, it loses the power to rule as all parties are not on notice that the court will be using information not in the record.

WAIVER

Sometimes, when a substantial right of a party, such as notice, is not addressed in oral argument or in opposition papers, that right is waived.

That clearly cannot be the case here as the Plaintiff never noticed a party's attorney who never showed up to oral argument to which he was not noticed and never filed opposition papers to what he was not noticed.

IF YOU READ THIS FAR, WE APPLAUD YOU:

From our general statement of the case thus far,  you can see that the courts in the Brooklyn Lyceum case have either let the Plaintiff violate numerous statutes or have violated statute themselves.

Read further for a more detailed presentation and to see what we need from our friends to restore that most basic right, Notice and Opportunity to be Heard, aka Due Process.

i ain't blind ...

In the end, all we Americans have is due process, aka Notice and Opportunity to Be Heard.  Absent this, we are no longer a government of, by and for the people.

When due process is not present, access to it is hidden or procedural chicanery creates/hides its loss, all are harmed.

Thus is the case of the Brooklyn Lyceum.

When push came to shove the Appellate Court could not bring itself to follow the rules and, thereby, stripped the Defendants of the shield of Due Process with some surely unexpected by the court unintended consequences.

What rules?

Three inviolate rules were violated that matter and that are common sense.

  1. The court cannot use anything that is not a public record that is not in the record (papers presented to the court by the parties) in any decision.  To do so is to do so without one side having Notice and Opportunity to be Heard on that issue/fact.
  2. The court cannot make up impossible math.  That is a little more esoteric, but also a lack of Notice and Opportunity to be Heard created by an attorney/judge who clearly violates his oath by making up, and refusing to correct, impossible math.
  3. The court cannot alter the record to make it say something other that what was noticed to all parties.

The oath each judge takes in New York State:

I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties of the office of ______________________, according to the best of my ability.

It is that simple, the Appellate Court had to a) alter the record, b) go outside the record and c) find that October 17 comes AFTER October 26 to find against the Brooklyn Lyceum.

i don't like what i think i see #1

ABANDONMENT: In order to avoid finding the the case against the Brooklyn Lyceum was abandoned by statute:

FIFTH GRADE MATH FAIL: 17>26

The Appellate court said the Lyceum must cease to exist because the Lyceum moved too late to have the case deemed abandoned by Plaintiff inaction because Notice of Motion was entered (October 17, 2012) AFTER the Judgment of Foreclosure was Entered (October 26, 2012).

That is a ridiculous on its face for three reasons:

  1. It is clear from the date and time stamp of the entry of the Notice of Motion and the Judgment of Foreclosure that the Notice of Motion was entered BEFORE, not AFTER the entry of the judgment of foreclosure and sale.
  2. To find that it is ever too late to have a case that is abandoned by statute (legislatively passed law describing abandonment conditions) become unabandoned means that such a case abandoned by Plaintiff inaction (with statute mandating dismissal when brought before the court) can be "unabandoned" by further motion practice by the abandoning Plaintiff if the court failed to follow statute.  More to the point, it would make the abandonment statute pointless as any Plaintiff could unabandon a case by just filing another motion.
  3. But even if the concept were valid, the relevant time would be if the motion to have the complaint declared abandoned occurred after the notice of entry of the judgment of foreclosure, yet a month later.  But, that would still rubber stamp the court violating statute.

The problem is the entry dates date-time stamped on the papers say exactly the opposite in that the Motion, entered October 17, 2012, was actually entered 9 days prior to the Judgment of Foreclosure which was entered on October 26, 2012.

GOING OUTSIDE THE RECORD:

There are few things worse for a court to do than to go looking in places outside what is called the "four corners" of the complaint.

As whatever is on the record was either served by a party or on a party, the court can rest assured that, with sworn affidavits of service on all the parties, that all parties are on notice off all things in the papers up to the date of any decision the court makes.

The wheels come off the bus when the court decides to use anything not in that record to make a decision.

While there are exceptions for indisputable public records and judicial records and laws, statutes and constitutions, there is no exception for the court to use information one party hid from the court to get a decision to later validate that same decision.

In the case of the Brooklyn Lyceum, the Appellate Court made the finding that is flat out impossible from the record on the date of the decision being appealed.

There is a statute that allows for a Plaintiff to seek a judgment of default when a Defendant has a) not appeared, b) appeared but not answered (pled), c) appeared and answered (pled) but not proceeded to trial.

The Appellate Court found that the Plaintiff had moved within a year of the Brooklyn Lyceum's failure to timely answer (plead), not within a year of the Brooklyn Lyceum's failure to appear.  This was without explicitly stating the the Brooklyn Lyceum appeared.  

That is the only explanation for the court not finding that the complaint was abandoned.

ALTERING THE DOCKET:

That artifact of finding that the Plaintiff moved within a year of the Brooklyn Lyceum's failure to plead (answer), which was impossible from the record available to the court and provided solely by the Plaintiff to the court, is that the court altered the docket to find that, despite it being impossible from the record, the Brooklyn Lyceum appeared.

DO NO HARM:

The same body (Appellate Division, Second Department) which had one of the Brooklyn Lyceum Panel Judges (Reinaldo Rivera) had found mere days before oral argument on the appeal, the court could not harm a party by validating a judgment of default against a defendant by way of changing something to the benefit of the Plaintiff.

First Fed. Sav. & Loan Assn. of Charleston v Tezzi 2018 NY Slip Op 05826 Decided on August 22, 2018 Appellate Division, Second Department

"""In granting this relief, however, the court must do so upon such terms as may be just, and only where a substantial right of a party is not prejudiced (see CPLR 2001; Discover Bank v Eschwege, 71 AD3d 1413, 1414). 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). """

i don't like what i think i see #2

CONTEMPT: was order in effect

The Appellate decision on the contempt finding of the lower court cited a case with several requirements to uphold a finding of contempt.

The Appellate Court addressed all but the one raised in the Lyceum appeal brief, was the order in effect?

That is quite telling, as the order in question required the Plaintiff to serve a copy of the order on the Defendant within 30 days of the date of the order itself.

The Defendant has never contested that the order was served 45 days after the date of the order.

The Plaintiff claimed that Plaintiff waited to serve the Defendant the order as a "favor" to the Defendant.


i don't like what i think i see #3

EXTRINSIC OR INTRINSIC FRAUD

This one is especially troubling as the Appellate Court swept away an allegation of officer of the court malfeasance without any analysis whatsoever.

The Defendant appeal brief claimed that an officer of the court, an attorney, committed extrinsic fraud, that species of fraud that has nothing to do with the merits of a foreclosure, such as the presence of note and mortgage and an allegation of failure to comply with the terms of the note, but procedural chicanery that attacked the very integrity of the court.

The Defendant alleged, after labeling the act extrinsic fraud, that someone other than the Plaintiff showed up at the oral argument on the initial motion in the case, someone who did not have all the requisite ducks in a row.

In New York State, when a movant fails to show at a hearing the plaintiff noticed, that motion is either denied or struck from the calendar.

There are no instances, anywhere, where a motion was granted where neither the movant nor any non-movants appeared at a hearing.

Defendant alleged, and Plaintiff did not deny that the original Plaintiff did not appear at the hearing  and neither did the Plaintiff deny that the subsequent Plaintiff appeared at the hearing.

NO MAN'S LAND

If the note and mortgage that are the basis of the claim are transferred, the  transferee can start a new claim.

If the claim is transfrerred as well, the transferee need not begin a new case, it can continue the old case.

In addition,  if a note, mortgage and claim are transferred to a subsequent party, that the transferor can continue the case as well.

The sticky bit is when the note and mortgage are transfered but the claim is not.

In that instance the original Plaintiff cannot appear because, absent possession of the note note and mortgage, there is no dispute between the original Plaintiff and the anydefendant.

In that instance the subsequent Plaintiff cannot appear because, absent possession of the  the claim, it has no standing.

What we have here is either no one showed up and the motion should have been denied or struck from the calendar, or the originating Plaintiff appeared without standing, or the subsequent plaintiff appeared without standing or both the initiating Plaintiff and the subsequent Plaintiff appeared without standing.

As noted in Ex Parte Mccardle, if the court sees it does not have standing, the court cannot rule.


i don't like what i think i see #4

A PREMONITION

Defendant waited 2.5 years after the case had been fully briefed before the appeals were calendared for oral argument.

That is along time by anyone's estimate.  Fearing such a long wait was a sign that the appeals would not be honestly addressed, defendant researched the other side of the coin, how on earth could the court claim the case was not abandoned?

Such a finding would run afoul of Occam's razor (not the simplest explanation for a situation), and, although Defendant did not make the overarching statement at oral argument that any finding that case was not abandoned would necessarily imply an appearance by the Defendant, Defendant did, in excruciating detail, lay out that no papers had been served on his attorney, no matter whom was served, the Notice of Motion for Judgment of Foreclosure and Sale noticed a hearing a decade in the past and the the required Notice of Entry of the Judgment of Foreclosure and Sale was fatally flawed in that it did not accurately describe the attached document.

The first issue, failure to serve counsel for the Defendant the initial motion in the case, struck at every decision in the case, just a hair short of abandonment which would strike at the case itself.

The second issue, also not served on the counsel for Defendant, as it included a motion to confirm the referee's report, needed to be served on all parties, and, if the issue was not waived by failure to raise it at oral argument and failure to raise in opposition papers, notice to appear in the past, no matter whom was served the notice, struck at the court's power to enter any judgment on the motion.

The third issue, the facial deficiency of the Notice of Entry of the Judgment of Foreclosure and Sale did not and has not started the time for the Defendant to appeal the issues, and, along with those issues, any decision premised upon that decision. 

Having raised these issues at oral argument, the Appellate Court asked the Plaintiff at oral argument, having now heard the issues being raised, what it thought?

Rather than assert any argument against the three jurisdictional issues, how could the Plaintiff do so having not disputed these very issues in the lower court, the Plaintiff refused to address issues not raised in the briefs despite overwhelming case law finding that jurisdictional issues can be raised at any time, even as late a oral argument on appeal (AD2 VIDEO).

takin` it to the streets

WHAT WE NEED FROM SOME FRIENDS OF THEATER AND DUE PROCESS

The law is five things that all should not, but often do, run afoul of due process:

  1. The Science of Procedure (you don't need to be an attorney to understand/do this stuff)
  2. Art of Law (where honest people do their legal business be they attorneys or judges)
  3. Theater of Power (what judges often do)
  4. Valley of Ambush (sly judicial tools)
  5. Tower of Isolation (why judges feel free to do the Theater of Power and Valley of Ambush)

We need your help to tear down the tower of isolation.

Here is how:

COMING SOON

EXCRUCIATING DETAIL AND LEGALESE

You maywant to dig in by virtue of being:

  • a lawyer,
  • a lawyer in training,
  • have some legal training 
  • care about due process 
  • care about theaters without due process or
  • just want to exercise some brain cells on legal issues

If so, here are the detailed legal arguments along with Officer Obie type stuff (picture with arrows and such) that show how simple the case is.

COMING SOON

WHAT HAS GONE BEFORE
(or music to learn legal by)
  1. Cyro Baptista / Beat the Donkey - https://www.cyrobaptista.com/
  2. Kelly Zullo -  http://www.kellyzullo.com/media/
  3. Natalia Zukerman - https://www.nataliazukerman.com/music/
  4. Nadine Goellner - https://www.allmusic.com/album/sing-it-to-me-anyway-mw0000492257
  5. Amy Speace - http://www.amyspeace.com/videos/
  6. Earthdriver - https://earthdriver.bandcamp.com/album/earthdriver
  7. Lauren Cregor - http://laurencregor.com/2017/11/i-resolve-live/ - 
  8. Mark Lesseraux  / Citizens - https://music.marklesseraux.com/album/mark-lesseraux-and-the-citizens-live-remastered-2018 
  9. Kate Klim - https://www.kateklim.com/listen/
  10. Rebecca Pronsky - https://www.rebeccapronsky.com/listen/
  11. WIllPilot - ????
  12. Yo La Tengo - https://yolatengo.com/
  13. Marc Ribot - http://marcribot.com/discography1
  14. Duck Baker - http://duckbaker.com/video/
  15. Amanda Palmer - http://amandapalmer.net/music/
  16. Seryn Potter - ??
  17. Polyphonic Spree - https://archive.org/details/pspree2002-11-01.flac16/pspree2002-11-01d2t05.flac
  18. Fiona Apple - https://www.youtube.com/watch?v=FFOzayDpWoI
  19. Chris Komer - http://www.thunderheadrefuge.com/ 
  20. Joe Phillips / Numinousmusic - https://www.numinousmusic.com/
  21. Knights Orchestra - http://theknightsnyc.com/more-videos
  22. Jen Chapin - https://jenchapin.com/category/videos/  - https://jenchapin.com/Jukebox/ 
  23. Lucy Woodward - http://www.lucywoodward.com/videos/ 
  24. Victoria Vox - https://www.victoriavox.com/media
  25. Greta Gertler - https://gretagertlergold.com/music
  26. Milton - http://www.miltonmusic.com/media
  27. Jen Murdza - http://jenmurdza.com/music
  28. Stacy Rock - http://stacyrock.com/music
  29. Rachel Loshak - https://rachelloshak.com/music 
  30. Pamela Means - http://www.pamelameans.com/music.html
  31. Dan Shuman - https://store.cdbaby.com/cd/danshuman
  32. Andy Mac - https://www.andymacmusic.com/music
  33. Alice Bierhorst  - https://www.alicebierhorst.com/the-beacon 
  34. David Berkeley - http://davidberkeley.com/media/
  35. Gretchen Witt - https://store.cdbaby.com/cd/gretchenwitt2
  36. Greg Hoy - http://www.greghoyandtheboys.com/MUSIC.php
  37. Katie Sawicki - http://www.thecabinproject.com/media.html n
  38. Monica Attell https://www.amazon.com/Band-Geek-Monica-Attell/dp/B000H5VG7O
  39. Nial Connolly - https://niallconnolly.com/music
  40. Rebecca Hart - http://www.rebeccahart.net/music
  41. Mari Rosa - https://www.marirosa.com/listen/
  42. Jenn Taranto - https://store.cdbaby.com/cd/taranto
  43. Paul Basile - https://greatelk.bandcamp.com/album/great-elk
  44. Matt Lydon - ??
  45. Gray Sky Girls - https://store.cdbaby.com/cd/grayskygirls
  46. Erika Kulnys - http://erikakulnys.com/music/
  47. Roxanne Bohana - ??
  48. Bronwen Exter - http://www.bronwenexter.com/video
  49. Yellow Dog  project:ground control - https://store.cdbaby.com/cd/yellowdog
  50. Christina Courtin - https://www.christinacourtin.com/#about-section
  51. Martha Redbone - http://www.martharedbone.com/
  52. Polygraph Lounge - http://www.polygraphlounge.com/buy.html
  53. Black Dice - http://blackdice.net/c/vault/video/
  54. Wayne Kranz - http://www.waynekrantz.com/?album_categories=buy
  55. Vernon Reid - https://www.vrbogrb.com/
  56. Wendy Richmond -
  57. Black Rock Coalition -
  58. Josh Weinstein - https://store.cdbaby.com/Artist/JoshWeinstein
  59. The Sharp Things - http://www.thesharpthings.com/
  60. Nicole Collins - https://www.sonicbids.com/band/nicolecollins/audio/
  61. Julie Grower - https://store.cdbaby.com/cd/grower
  62. Jennifer Richman - https://www.dancingroserecords.com/gallery
  63. Brooklyn Rider - http://brooklynrider.com/tagged/watchandlisten
  64. Damian Quinones - https://www.damianquinones.com/media
  65. Hungry March Band - http://hungrymarchband.com/blog/video/
  66. Reverend Billy & the Stop Shopping Choir - http://www.revbilly.com/musicandspokenword
  67. rocky: the musical : https://www.youtube.com/watch?v=qTw-qlkm1A4
  68. oakley hall - https://www.youtube.com/watch?v=iSGVSmHITb4
  69. calla - http://arenarock.com/bands/calla/
  70. pinataland - https://music.pinataland.com/