(Brooklyn Lyceum Theater Dilemma)
Judicial Order
on NO NOtice
on NO NOtice
the biggest
Judicial NO NO
of them all!
Have Faith in Procedural Due Process ...
Build the Brooklyn Lyceum Arts Trust!
... Focus a bit ...
And you can see procedural due process
at the end of this tunnel!
at the end of this tunnel!
Help highlight lack of statutory notice PUBLICLY!!!
Before we head ...
Once more in to the procedural due process breach!
Once more in to the procedural due process breach!
>>>Earn some say in:
- !
- !!
- !!!
Procedural due process is simple ...
NOTICE of any impending action -and- OPPORTUNITY TO BE HEARD.Notice need be of whom and when and where and what and why.
Opportunity to be heard is the opportunity to serve opposition papers and/or appear at oral argument before a judge.
If there is no notice, then there is no opportunity to be heard.
Notice is either far enough in advance to meet the venue's rule on notice, or notice is less than that or notice fails to exist at all.
The requirement is spelled out in the Fifth Amendment to the United States Constitution with regards to the Federal Government and the Fourteenth Amendment with regards to the states. From the Fourteenth:
"nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The State law of New York specifies what notice must be given,
at least 5 days under one statute and at least 7 under another.
The State Law of New York also requires all papers to be served on
opposition's attorney if that opposing party has appeared by counsel.
The State Law of New York requires that any notice of a motion
specify what is being sought, but does not require specifying the statute.
In the example below, all of these have been violated.
On issues this clear, a New York State Statute allows for expedited review.
HELLS YES IT IS A NULLITY!
There is an unending stream of case law that says, in effect:No notice or no notice to attorney or not enough notice ....
no power to rule!
Since order on no notice was a nullity ...
No rights can vest to any entity based on the order or anything subsequent to the order that can be tied back to the nullity,
THAT, as a nullity, DOES NOT EXIST.
Again, unending caselaw on that.
No rights can vest to any entity based on the order or anything subsequent to the order that can be tied back to the nullity,
THAT, as a nullity, DOES NOT EXIST.
Again, unending caselaw on that.
The order on no notice, a nullity, DOES NOT EXIST.
It NEVER EXISTED as the court was not empowered to act.
Vacating a nonexistent order is not a challenge to the order,
just a correction of the docket from what could not be.
As such, no statute of limitations exists and
the order on no notice can be corrected ...
FOREVER!
Again, unending case law on this.
It NEVER EXISTED as the court was not empowered to act.
Vacating a nonexistent order is not a challenge to the order,
just a correction of the docket from what could not be.
As such, no statute of limitations exists and
the order on no notice can be corrected ...
FOREVER!
Again, unending case law on this.
Order on No Notice
- failed to even attempt service on a party if that party had no attorney
- failed to attempt service on attorney if that party had an attorney
- served unrepresented party or attorney for represented party with less than than the statutory number of advance days notice under the statute under which relief was sought.
- served a notice of motion that cites to, as grounds for motion, papers that do not exist.
- granted, absent any notice, something other than what was requested.
- granted an order is premised on non-existent documents.
- granted a motion when the notice of motion is supported by non-existent documents.
Is an order when Movant did one of these:
-OR an order when the judge-
Yes, because it violates, federally, the 14th Amendment and,
in New York State, a host of laws.
The requirement is spelled out in the Fifth Amendment to the United States Constitution with regards to the Federal Government and the Fourteenth Amendment with regards to the states. From the Fourteenth:
"nor shall any state deprive any person
of life, liberty, or property,
without due process of law;
nor deny to any person within its jurisdiction
the equal protection of the laws."
The requirement is spelled out in the Fifth Amendment to the United States Constitution with regards to the Federal Government and the Fourteenth Amendment with regards to the states. From the Fourteenth:
"nor shall any state deprive any person
of life, liberty, or property,
without due process of law;
nor deny to any person within its jurisdiction
the equal protection of the laws."
CPLR 5704
is an expedited review
that is available as an alternative to
a long, drawn out appeal
when the issue is
solely, and starkly, an order on no notice.
is an expedited review
that is available as an alternative to
a long, drawn out appeal
when the issue is
solely, and starkly, an order on no notice.
any party/entity that is harmed by that order on no notice.
Yes, although the justice system may try to hide that fact.
ORDER ON NO NOTICE :
That is just about 20% of a cascading set of no notices,
each of which failed to invoke the power of the court to act.
- As per subsequent sworn Plaintiff Counsel affirmation,
Plaintiff Counsel communicated with attorney for multiple defendants by way of items not on docket when first motion was submitted, or, even when order on first motion was rendered:- two written extensions of time to answer
- multiple oral extensions of time to answer
- rejection mailed to that attorney for multiple defendants,
of answer received from that attorney for multiple defendants
- Plaintiff withheld existence of Attorney for multiple defendants from the court:
- Plaintiff left blank the name and address of opposing counsel (attorney for multiple defendants)
on the Request for Judicial Intervention (aka RJI),
required to get case rolling and judge assigned. - Plaintiff Counsel failed to serve the RJI on attorney for multiple defendants
- Plaintiff Counsel failed to serve notice of motion
(for Judgment of Foreclosure)
on that attorney for multiple defendants.
- Plaintiff left blank the name and address of opposing counsel (attorney for multiple defendants)
- Papers actually filed with the court cite, as grounds for relief, documents that do not exist.
- Judge rendered an order on papers that were not noticed to that attorney.
- Judge rendered an order premised on documents, even more, that do not exist.
- That order granted something, not what was defectively noticed, Judgment of Foreclosure, but Judgment of Default.
That is just about 20% of a cascading set of no notices,
each of which failed to invoke the power of the court to act.
Preparing to attack under CPLR 5704!
Defendant sought dismissal as abandoned,
as the first Plaintiff motion in the case came 181 days too late,
if no evidence of interaction with Defendant was before the court.
This is clear to anyone who bothers to look at:
date of service + 20 days to answer + 365 days to act if
no answer from defendant.
On that 366th day, or when the Plaintiff made a motion subsequent to that statutory abandonment, the court should have culled the case.
Roadmap to abandonment by the time 1st motion in case is filed, October 26, 2009.
Despite the judicial shell game with the facts, that finding could only be made if the appellate court utilized attorney communications not on record at date of motion to validate the decision, proof that Plaintiff communicated with Defendants' attorney but failed to serve motion papers on that attorney.
In an abandoned case, service of papers did not matter; since the plaintiff was (improperly?) allowed to avoid statutory abandonment by producing proofs of appearance by borrower and guarantor via counsel, service of papers does matter, and no service was made, or even attempted, upon Defendant’s named attorney, leading to an order on no notice and a 5704 motion.
as the first Plaintiff motion in the case came 181 days too late,
if no evidence of interaction with Defendant was before the court.
This is clear to anyone who bothers to look at:
date of service + 20 days to answer + 365 days to act if
no answer from defendant.
On that 366th day, or when the Plaintiff made a motion subsequent to that statutory abandonment, the court should have culled the case.
Roadmap to abandonment by the time 1st motion in case is filed, October 26, 2009.
- Service on defendant LLC at Secretary of State on April 7, 2008
- 20 days to answer making the date of default being : April 28, 2008
- 365 days for Plaintiff to seek Judgment of Default from April 28, 2008: April 28, 2009
- Date of Initial motion (for Summary Judgment, not Default): October 26, 2009
- Days late, even if we count motion for summary judgment as one for default: 181
- Any information in Motion or attached papers that Plaintiff served motion paper on, or had any interaction at all with, Defendants' attorney (which could have, if the court had that information on October 26, 2009, put the abandonment in question:):NONE
Despite the judicial shell game with the facts, that finding could only be made if the appellate court utilized attorney communications not on record at date of motion to validate the decision, proof that Plaintiff communicated with Defendants' attorney but failed to serve motion papers on that attorney.
In an abandoned case, service of papers did not matter; since the plaintiff was (improperly?) allowed to avoid statutory abandonment by producing proofs of appearance by borrower and guarantor via counsel, service of papers does matter, and no service was made, or even attempted, upon Defendant’s named attorney, leading to an order on no notice and a 5704 motion.
No, alleging a case is abandoned can't validate an order on no notice.
CASES
New York State
Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente 2011 NY Slip Op 05797
""""""
The defendant Katerina Arvanitakis (hereinafter the appellant) failed to give the plaintiff timely notice of her motion for leave to enter a judgment on her counterclaim against the plaintiff upon its purported default in replying to the counterclaim (see Bianco v LiGreci, 298 AD2d 482). The plaintiff did not receive at least 13 days' notice, the minimum required for motions served by regular mail (see CPLR 2103[b][2]; 2214[b]). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion, and deprives the court of jurisdiction to entertain the motion (see CPLR 5015[a][4]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748; Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Bianco v LiGreci, 298 AD2d 482; Welch v State of New York, 261 AD2d 537, 538). Since the Supreme Court was deprived of jurisdiction to entertain the motion, the resulting order dated February 24, 2010, and the judgment entered upon that order were nullities (see Bonik v Tarrabocchia, 78 AD3d 630, 632; Bauerlein v Salvation Army, 74 AD3d 851, 857; Welch v State of New York, 261 AD2d at 538; Golden v Golden, 128 AD2d 672). Accordingly, the plaintiff's motion to vacate both the order dated February 24, 2010, and the judgment was properly granted.
""""""
Welch v. State, 261 A.D.2d 537 (N.Y. App. Div. 1999)
""""""
The service by the defendant of the motion for summary judgment by certified, rather than first-class, mail did not comply with statutory requirements and deprived the court of jurisdiction to entertain the motion, and the resulting order of dismissal was a nullity.
""""""
Paulus v. Christopher Vacirca, Inc., 128 A.D.3d 116 (N.Y. App. Div. 2015)
""""""
we hold that the failure to provide a defendant who has appeared in an action with the notice required by CPLR 3215(g)(1), like the failure to provide proper notice of other kinds of motions, is a jurisdictional defect that deprives the court of the authority to entertain a motion for leave to enter a default judgment. While this defect requires vacatur of the judgment, it does not, standing alone, entitle the appellant to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits (see Stephan B. Gleich & Assocs. v. Gritsipis, 87 A.D.3d 216, 224–225, 927 N.Y.S.2d 349 ).
""""""
Regina R. v. Frederick S., 198 A.D.3d 1124 (N.Y. App. Div. 2021)
""""""
We affirm, albeit on a different ground as the father failed to comply with the service requirements of CPLR 2103.CPLR 2103(b) provides that, "[e]xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending [proceeding] shall be served upon the party's attorney." The record reveals, by way of an affidavit of service, that the father's motion to vacate the default, which was filed by the father's attorney, was served only on the mother herself and not her attorney, in contravention to CPLR 2103(b). Nor was the attorney for the child served with the motion. "Absence of proper service of a motion ... deprives the court of jurisdiction to entertain the motion" ( Welch v. State of New York,261 A.D.2d 537, 538, 690 N.Y.S.2d 631 [1999] [citations omitted]; seeMatter of Lydia DD.,94 A.D.3d 1385, 1386, 943 N.Y.S.2d 635 [2012] ). Therefore, the father's failure to properly serve the mother's attorney and the attorney for the child deprived Family Court of jurisdiction to entertain the motion. Based on the foregoing, we affirm Family Court's denial of the motion.
""""""
OTHER STATES
FEDERAL
New York State
Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente 2011 NY Slip Op 05797
""""""
The defendant Katerina Arvanitakis (hereinafter the appellant) failed to give the plaintiff timely notice of her motion for leave to enter a judgment on her counterclaim against the plaintiff upon its purported default in replying to the counterclaim (see Bianco v LiGreci, 298 AD2d 482). The plaintiff did not receive at least 13 days' notice, the minimum required for motions served by regular mail (see CPLR 2103[b][2]; 2214[b]). Absence of proper service of a motion is a sufficient and complete excuse for a default on a motion, and deprives the court of jurisdiction to entertain the motion (see CPLR 5015[a][4]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748; Daulat v Helms Bros., Inc., 32 AD3d 410, 411; Bianco v LiGreci, 298 AD2d 482; Welch v State of New York, 261 AD2d 537, 538). Since the Supreme Court was deprived of jurisdiction to entertain the motion, the resulting order dated February 24, 2010, and the judgment entered upon that order were nullities (see Bonik v Tarrabocchia, 78 AD3d 630, 632; Bauerlein v Salvation Army, 74 AD3d 851, 857; Welch v State of New York, 261 AD2d at 538; Golden v Golden, 128 AD2d 672). Accordingly, the plaintiff's motion to vacate both the order dated February 24, 2010, and the judgment was properly granted.
""""""
Welch v. State, 261 A.D.2d 537 (N.Y. App. Div. 1999)
""""""
The service by the defendant of the motion for summary judgment by certified, rather than first-class, mail did not comply with statutory requirements and deprived the court of jurisdiction to entertain the motion, and the resulting order of dismissal was a nullity.
""""""
Paulus v. Christopher Vacirca, Inc., 128 A.D.3d 116 (N.Y. App. Div. 2015)
""""""
we hold that the failure to provide a defendant who has appeared in an action with the notice required by CPLR 3215(g)(1), like the failure to provide proper notice of other kinds of motions, is a jurisdictional defect that deprives the court of the authority to entertain a motion for leave to enter a default judgment. While this defect requires vacatur of the judgment, it does not, standing alone, entitle the appellant to be relieved of the underlying default upon which judgment is sought, and to defend the action on the merits (see Stephan B. Gleich & Assocs. v. Gritsipis, 87 A.D.3d 216, 224–225, 927 N.Y.S.2d 349 ).
""""""
Regina R. v. Frederick S., 198 A.D.3d 1124 (N.Y. App. Div. 2021)
""""""
We affirm, albeit on a different ground as the father failed to comply with the service requirements of CPLR 2103.CPLR 2103(b) provides that, "[e]xcept where otherwise prescribed by law or order of court, papers to be served upon a party in a pending [proceeding] shall be served upon the party's attorney." The record reveals, by way of an affidavit of service, that the father's motion to vacate the default, which was filed by the father's attorney, was served only on the mother herself and not her attorney, in contravention to CPLR 2103(b). Nor was the attorney for the child served with the motion. "Absence of proper service of a motion ... deprives the court of jurisdiction to entertain the motion" ( Welch v. State of New York,261 A.D.2d 537, 538, 690 N.Y.S.2d 631 [1999] [citations omitted]; seeMatter of Lydia DD.,94 A.D.3d 1385, 1386, 943 N.Y.S.2d 635 [2012] ). Therefore, the father's failure to properly serve the mother's attorney and the attorney for the child deprived Family Court of jurisdiction to entertain the motion. Based on the foregoing, we affirm Family Court's denial of the motion.
""""""
OTHER STATES
FEDERAL
list of reasons not already done
Ask Me Anything!
functionality coming.
Procedural Due Process Breach!
Donald Scott Kurtz
Damn Yankee
- Secretary Suffolk County Bar Assn.
ABOUT THE BROOKLYN LYCEUM
THROW DOWN WITH THE BROOKLYN LYCEUM
Notice and Opportunity to be heard ...
the most powerful of American words...
No NOTICE - no authority for the court to act.
No OPPORTUNITY TO BE HEARD - no authority for the court to act.
If the court acts absent Notice or Opportunity to be heard,
that decision isn't worth the paper it is printed on.
It is a Nullity.
This is the case here.
No Notice and No Opportunity to be heard...
Nullities running about all over the place.
---
not in its possession (not on the docket)
when it made an earlier decision
as basis to later validate that decision
of Plaintiff timely following procedure
instead of disallowing their use as not part
of the record (docket) when initial decision was made.
This created, whether wrong or right, a firewall barrier from dismissal as abandoned.
Those same documents are thus fair game for Defendant Lyceum also ...
as Proof of Plaintiff not following other procedure (due process),
is the very same paper that precluded dismissal as abandoned.
This created a barrier to the initial assignment of the judge.
Good for the goose, good for the gander ... INDEED!
---
An arts center in Brooklyn ...
borrowed to keep the dream alive.
Years later, a lender began foreclosure.
An attorney was hired and we got back to running the theatre/cafe/gym.
Eventually we get a summons for contempt
from an entity who is not the entity on the summons/complaint.
Since the contempt could get us arrested,
we do a little digging and determine the case,
because the Plaintiff failed to inform the court
of the Plaintiff's interactions with our attorney,
at least 4 extensions of time to answer and service of an answer,
and because of when the date of the first motion was filed,
is technically abandoned.
We also find out that the Plaintiff is somehow now
changed, without notice, to the entity in the contempt motion.
We move to have it dismissed as abandoned....
Motion denied citing the communications the Plaintiff previously withheld from the court...
We appeal... wait years for oral argument ...
Appeal denied because of those previously withheld communications ...
AND because 17 is a larger number than 26.
This all confuses the crap out of us
and we go back to the beginning ....
and roll with the punches ...
If the case is not abandoned, as we thought,
then the court could not have assigned a judge
absent service of the Request to assign a judge
upon an attorney the Plaintiff knew represented us.
READ FURTHER TO SEE HOW TO:
STUFF HERE SOON!
The Brooklyn Lyceum Sitch...
Necessary preamble PROCEDURAL DUE PROCESS
Notice and Opportunity to be heard ...
the most powerful of American words...
No NOTICE - no authority for the court to act.
No OPPORTUNITY TO BE HEARD - no authority for the court to act.
If the court acts absent Notice or Opportunity to be heard,
that decision isn't worth the paper it is printed on.
It is a Nullity.
This is the case here.
No Notice and No Opportunity to be heard...
Nullities running about all over the place.
---
TLDR - stuff that matters
The lower court used documentsnot in its possession (not on the docket)
when it made an earlier decision
as basis to later validate that decision
of Plaintiff timely following procedure
instead of disallowing their use as not part
of the record (docket) when initial decision was made.
This created, whether wrong or right, a firewall barrier from dismissal as abandoned.
Those same documents are thus fair game for Defendant Lyceum also ...
as Proof of Plaintiff not following other procedure (due process),
is the very same paper that precluded dismissal as abandoned.
This created a barrier to the initial assignment of the judge.
Good for the goose, good for the gander ... INDEED!
---
Our pretty simple story ...
An arts center in Brooklyn ...
borrowed to keep the dream alive.
Years later, a lender began foreclosure.
An attorney was hired and we got back to running the theatre/cafe/gym.
Eventually we get a summons for contempt
from an entity who is not the entity on the summons/complaint.
Since the contempt could get us arrested,
we do a little digging and determine the case,
because the Plaintiff failed to inform the court
of the Plaintiff's interactions with our attorney,
at least 4 extensions of time to answer and service of an answer,
and because of when the date of the first motion was filed,
is technically abandoned.
We also find out that the Plaintiff is somehow now
changed, without notice, to the entity in the contempt motion.
We move to have it dismissed as abandoned....
Motion denied citing the communications the Plaintiff previously withheld from the court...
We appeal... wait years for oral argument ...
Appeal denied because of those previously withheld communications ...
AND because 17 is a larger number than 26.
This all confuses the crap out of us
and we go back to the beginning ....
and roll with the punches ...
If the case is not abandoned, as we thought,
then the court could not have assigned a judge
absent service of the Request to assign a judge
upon an attorney the Plaintiff knew represented us.
READ FURTHER TO SEE HOW TO:
UNWIND ILLEGAL ASSIGNMENT OF JUDGE,
AND TO SEE HOW TO HELP US
STUFF HERE SOON!
Six easy sworn statements
-
I have reviewed the affirmation, and attachments, by former counsel for initiating Plaintiff, Claude Castro, dated November 16, 2012 and filed with this court on December 24, 2012,
and the Supplemental affirmation of Christina Bost Seaton, dated November 19, 2012 and filed with the court on November 20, 2012.
I find the attachments thereto show that the former counsel for the initiating Plaintiff, Claude Castro, interacted, repeatedly, with counsel for both the borrower and the guarantor, one David Blum, Esq., prior to the RJI on October 26, 2009, by way of :- 2 written extensions of time to answer granted to David Blum, Esq (Dated May 9, 2008 and UNDATED, respectively)
- multiple oral extensions of time to answer granted to David Blum, Esq.
- an answer to the complaint, dated January, 21, 2009, served by David Blum on Claude Castro,
- rejection of that answer, dated February 19, 2009, by Claude Castro, rejected to David Blum, Esq.
- I have reviewed the three page Request for Judicial Intervention filed in Case #10025/2008 on October 26, 2009, filed by Attorney Claude Castro on behalf of the then Plaintiff, Lyceum Bathhouse, LLC, and find that it lists no attorney in the spot allocated for Defendant's attorney.
-
I have reviewd the RJI worksheet the court created and find it states that the proof of service upon the borrower was filed on May 7, 2008 -and-
I have reviewed the docket from the inception of the case, summons dated March 17, 2008, and filed March 27, 2008, through to the date of the decision on the motion made in conjunction with the RJI, Jan ??, 2011, and I find that it contains no proof of service on the counsel for both the borrower and guarantor. - I have reviewed the Proof of Services of both the RJI and the initial motion, both attached to the decision on the motion made in conjunction with the RJI and neither of which swear to have served David Blum, Esq., attorney for the borrower and guarantor.
- I have reviewed the Notice of Motion, dated October 13, 2009, and find it seeks a Judgment of Foreclosure and I have reviewed the judgement on the motion and find it grants a Judgment of Default (court, later, on a subsequent motion was asked again for a judgment of foreclosure which was granted).
-
I have reviewed the notice of motion dated October 13, 2009 and filed October 27, 2009, and find that it informs, whomever is served, that the Judgment of
Foreclosure will be premised upon the October 26, 20109 affirmation of Claude Castro,
-and-
I have reviewed the Judgment of Default and have found that it references TWO affifmations by Claude Castro dated October 26, 2009 and October 22, 2009.
and-
I have reviewed the docket thru January 21, 2011, and I find it contains no affirmations whatsover with those dates.
Six not so easy sworn statements
-
I have reviewed appearance statute, CPLR 320. Defendant's appearance:
(a) Requirement of appearance. The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete. -
I have reviewed informal appearance :
Private Capital Grp., LLC v. Hosseinipour, 170 A.D.3d 909 (N.Y. App. Div. 2019)
A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" ( Myers v. Slutsky , 139 A.D.2d 709, 711, 527 N.Y.S.2d 464 ; see De Lourdes Torres v. Jones , 26 N.Y.3d 742, 772, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; HSBC Bank USA, N.A. v. Grella , 145 A.D.3d 669, 670–671, 44 N.Y.S.3d 56 ; HSBC Bank USA v. Lugo , 127 A.D.3d 502, 503, 9 N.Y.S.3d 6 ; Hodson v. Vinnie's Farm Mkt. , 103 A.D.3d 549, 959 N.Y.S.2d 440 ). - I find that the interactions between Plaintiff and Counsel and attorney for borrower and guarantor fail to meet statutory appearance standard BUT meet the definition of informal appearance
-
Informal appearances also invoke the power of CPLR 2103(b) to require service of all papers on attorneys.
CPLR 2103: Service of papers
(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. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. - I find that the Plaintiff Counsel failed to prove it served the RJI on the known to then Plaintiff Counsel for borrower and guarantor
- I find this failure stripped the court of the authority to assign a judge.
Six more easy sworn statements
IF NECESSARYSix more not so easy sworn statements
IF NECESSARYTHROW DOWN WITH THE BROOKLYN LYCEUM
Notice and Opportunity to be heard ...
the most powerful of American words...
No NOTICE - no authority for the court to act.
No OPPORTUNITY TO BE HEARD - no authority for the court to act.
If the court acts absent Notice or Opportunity to be heard,
that decision isn't worth the paper it is printed on.
It is a Nullity.
This is the case here.
No Notice and No Opportunity to be heard...
Nullities running about all over the place.
---
not in its possession (not on the docket)
when it made an earlier decision
as basis to later validate that decision
of Plaintiff timely following procedure
instead of disallowing their use as not part
of the record (docket) when initial decision was made.
This created, whether wrong or right, a firewall barrier from dismissal as abandoned.
Those same documents are thus fair game for Defendant Lyceum also ...
as Proof of Plaintiff not following other procedure (due process),
is the very same paper that precluded dismissal as abandoned.
This created a barrier to the initial assignment of the judge.
Good for the goose, good for the gander ... INDEED!
---
An arts center in Brooklyn ...
borrowed to keep the dream alive.
Years later, a lender began foreclosure.
An attorney was hired and we got back to running the theatre/cafe/gym.
Eventually we get a summons for contempt
from an entity who is not the entity on the summons/complaint.
Since the contempt could get us arrested,
we do a little digging and determine the case,
because the Plaintiff failed to inform the court
of the Plaintiff's interactions with our attorney,
at least 4 extensions of time to answer and service of an answer,
and because of when the date of the first motion was filed,
is technically abandoned.
We also find out that the Plaintiff is somehow now
changed, without notice, to the entity in the contempt motion.
We move to have it dismissed as abandoned....
Motion denied citing the communications the Plaintiff previously withheld from the court...
We appeal... wait years for oral argument ...
Appeal denied because of those previously withheld communications ...
AND because 17 is a larger number than 26.
This all confuses the crap out of us
and we go back to the beginning ....
and roll with the punches ...
If the case is not abandoned, as we thought,
then the court could not have assigned a judge
absent service of the Request to assign a judge
upon an attorney the Plaintiff knew represented us.
READ FURTHER TO SEE HOW TO:
STUFF HERE SOON!
The Brooklyn Lyceum Sitch...
Necessary preamble PROCEDURAL DUE PROCESS
Notice and Opportunity to be heard ...
the most powerful of American words...
No NOTICE - no authority for the court to act.
No OPPORTUNITY TO BE HEARD - no authority for the court to act.
If the court acts absent Notice or Opportunity to be heard,
that decision isn't worth the paper it is printed on.
It is a Nullity.
This is the case here.
No Notice and No Opportunity to be heard...
Nullities running about all over the place.
---
TLDR - stuff that matters
The lower court used documentsnot in its possession (not on the docket)
when it made an earlier decision
as basis to later validate that decision
of Plaintiff timely following procedure
instead of disallowing their use as not part
of the record (docket) when initial decision was made.
This created, whether wrong or right, a firewall barrier from dismissal as abandoned.
Those same documents are thus fair game for Defendant Lyceum also ...
as Proof of Plaintiff not following other procedure (due process),
is the very same paper that precluded dismissal as abandoned.
This created a barrier to the initial assignment of the judge.
Good for the goose, good for the gander ... INDEED!
---
Our pretty simple story ...
An arts center in Brooklyn ...
borrowed to keep the dream alive.
Years later, a lender began foreclosure.
An attorney was hired and we got back to running the theatre/cafe/gym.
Eventually we get a summons for contempt
from an entity who is not the entity on the summons/complaint.
Since the contempt could get us arrested,
we do a little digging and determine the case,
because the Plaintiff failed to inform the court
of the Plaintiff's interactions with our attorney,
at least 4 extensions of time to answer and service of an answer,
and because of when the date of the first motion was filed,
is technically abandoned.
We also find out that the Plaintiff is somehow now
changed, without notice, to the entity in the contempt motion.
We move to have it dismissed as abandoned....
Motion denied citing the communications the Plaintiff previously withheld from the court...
We appeal... wait years for oral argument ...
Appeal denied because of those previously withheld communications ...
AND because 17 is a larger number than 26.
This all confuses the crap out of us
and we go back to the beginning ....
and roll with the punches ...
If the case is not abandoned, as we thought,
then the court could not have assigned a judge
absent service of the Request to assign a judge
upon an attorney the Plaintiff knew represented us.
READ FURTHER TO SEE HOW TO:
UNWIND ILLEGAL ASSIGNMENT OF JUDGE,
AND TO SEE HOW TO HELP US
STUFF HERE SOON!
Six easy sworn statements
-
I have reviewed the affirmation, and attachments, by former counsel for initiating Plaintiff, Claude Castro, dated November 16, 2012 and filed with this court on December 24, 2012,
and the Supplemental affirmation of Christina Bost Seaton, dated November 19, 2012 and filed with the court on November 20, 2012.
I find the attachments thereto show that the former counsel for the initiating Plaintiff, Claude Castro, interacted, repeatedly, with counsel for both the borrower and the guarantor, one David Blum, Esq., prior to the RJI on October 26, 2009, by way of :- 2 written extensions of time to answer granted to David Blum, Esq (Dated May 9, 2008 and UNDATED, respectively)
- multiple oral extensions of time to answer granted to David Blum, Esq.
- an answer to the complaint, dated January, 21, 2009, served by David Blum on Claude Castro,
- rejection of that answer, dated February 19, 2009, by Claude Castro, rejected to David Blum, Esq.
- I have reviewed the three page Request for Judicial Intervention filed in Case #10025/2008 on October 26, 2009, filed by Attorney Claude Castro on behalf of the then Plaintiff, Lyceum Bathhouse, LLC, and find that it lists no attorney in the spot allocated for Defendant's attorney.
-
I have reviewd the RJI worksheet the court created and find it states that the proof of service upon the borrower was filed on May 7, 2008 -and-
I have reviewed the docket from the inception of the case, summons dated March 17, 2008, and filed March 27, 2008, through to the date of the decision on the motion made in conjunction with the RJI, Jan ??, 2011, and I find that it contains no proof of service on the counsel for both the borrower and guarantor. - I have reviewed the Proof of Services of both the RJI and the initial motion, both attached to the decision on the motion made in conjunction with the RJI and neither of which swear to have served David Blum, Esq., attorney for the borrower and guarantor.
- I have reviewed the Notice of Motion, dated October 13, 2009, and find it seeks a Judgment of Foreclosure and I have reviewed the judgement on the motion and find it grants a Judgment of Default (court, later, on a subsequent motion was asked again for a judgment of foreclosure which was granted).
-
I have reviewed the notice of motion dated October 13, 2009 and filed October 27, 2009, and find that it informs, whomever is served, that the Judgment of
Foreclosure will be premised upon the October 26, 20109 affirmation of Claude Castro,
-and-
I have reviewed the Judgment of Default and have found that it references TWO affifmations by Claude Castro dated October 26, 2009 and October 22, 2009.
and-
I have reviewed the docket thru January 21, 2011, and I find it contains no affirmations whatsover with those dates.
Six not so easy sworn statements
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I have reviewed appearance statute, CPLR 320. Defendant's appearance:
(a) Requirement of appearance. The defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer. An appearance shall be made within twenty days after service of the summons, except that if the summons was served on the defendant by delivering it to an official of the state authorized to receive service in his behalf or if it was served pursuant to section 303, subdivision two, three, four or five of section 308, or sections 313, 314 or 315, the appearance shall be made within thirty days after service is complete. -
I have reviewed informal appearance :
Private Capital Grp., LLC v. Hosseinipour, 170 A.D.3d 909 (N.Y. App. Div. 2019)
A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" ( Myers v. Slutsky , 139 A.D.2d 709, 711, 527 N.Y.S.2d 464 ; see De Lourdes Torres v. Jones , 26 N.Y.3d 742, 772, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; HSBC Bank USA, N.A. v. Grella , 145 A.D.3d 669, 670–671, 44 N.Y.S.3d 56 ; HSBC Bank USA v. Lugo , 127 A.D.3d 502, 503, 9 N.Y.S.3d 6 ; Hodson v. Vinnie's Farm Mkt. , 103 A.D.3d 549, 959 N.Y.S.2d 440 ). - I find that the interactions between Plaintiff and Counsel and attorney for borrower and guarantor fail to meet statutory appearance standard BUT meet the definition of informal appearance
-
Informal appearances also invoke the power of CPLR 2103(b) to require service of all papers on attorneys.
CPLR 2103: Service of papers
(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. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. - I find that the Plaintiff Counsel failed to prove it served the RJI on the known to then Plaintiff Counsel for borrower and guarantor
- I find this failure stripped the court of the authority to assign a judge.
Six more easy sworn statements
IF NECESSARYSix more not so easy sworn statements
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