Dear  Brooklyn Lyceum Due Process Fan  :

The Brooklyn Lyceum has been fighting the good fight for a long while, long enough for some appeals to be decided at the Appellate Court on Monroe Place.

Rather than do what the statute required, the Appellate Court (Judge Reinaldo Rivera, up for re-election November 5, 2019) doubled down on the lower court's going outside the record to justify a decision (by Judge Donald Scott Kurtz, up for re-election on November 5, 2019) it could not justify from the record (with Rivera making up facts along the way).  Rivera also used a case that had never been cited in its 8 years of existence while ignoring the court’s own, directly on point, decision that had been cited 120+ times in 8 years (Giglio v NTIMP, Inc. 2011).

--Where, as here, a party moving for a default judgment beyond one year from the date of default fails to address any reasonable excuse for its untimeliness, courts may not excuse the lateness and "shall" dismiss the claim pursuant to CPLR 3215 (c) (see County of Nassau v Chmela, 45 AD3d at 722; Keyes v McLaughlin, 49 AD2d 974 [1975]; Di Carlo v Bravo Tours, 129 AD2d 552 [1987]; Perricone v City of New York, 96 AD2d 531, 532 [1983], affd 62 NY2d 661 [1984]; Shepard v St. Agnes Hosp., 86 AD2d 628, 630 [1982]).{**86 AD3d at 309}

That is a story for another day.

The Decisions on the Appeals are painful, and wrong.  But, that is where we are.

After months of consulting with various attorneys and law professors and other legal resources, one thing emerged as a consensus, by changing the past the Appellate Court  retroactively invoked requirements that the Plaintiff did not meet.  The Plaintiff failed to Notice to the Attorney for the Lyceum anything, ever, the first Notice had fatal facial flaws, and the Plaintiff failed to provide the statutory minimum advance notice (or any notice) of the Motion to sell the Brooklyn Lyceum.  

Those failures strike right at the heart of the power of the court to rule, JURISDICTION.

We have gone over the docket more than a hundred times and a few things stand out.

1. The Appellate Court made up a fact by finding October 19 comes after October 26, to avoid finding for the Brooklyn Lyceum on appeal (courtesy of Judge Reinaldo Rivera).
2. The Appellate Court also found that the Defendants appeared by counsel prior to the 1st motion, absent proof of same on the record, a record where the Plaintiff swore otherwise in the 1st motion.
   
3. The Plaintiff never served the initial motion papers in the case, or any papers in the case,  on our attorney, one the Plaintiff swore did not exist in the first several motions.
4. First Notice of Motion was fatally flawed as it asked for reliefs not available under the cited statute.
5. That Notice of Motion was fatally flawed as it  is premised upon the NON-EXISTENT affirmation.
6. The Notice of Motion  was fatally flawed being dated prior to the document it is premised upon, that DOES NOT EXIST.
7. The Decision is premised on the Attorney affirmation that DOES NOT EXIST.
8. The Decision is premised upon another affirmation that DOES NOT EXIST.
9. The Decision grants relief that was not even requested, which the court is not allowed to do absent notice that the court is expanding the scope of the motion.
10. A subsequent Notice of Motion for the right to sell the Lyceum was not served on the attorney for the Lyceum, and, in addition, the Notice of Motion dated March 18, 2011 instructs all parties to appear on April 17, 2001,  DECADE IN THE PAST.

The Court and Appellate Court failed to do even a cursory review of the papers during the case.  The Court even has an affirmation from the Attorney for the Plaintiff admitting #3 and #10.

All this from a Judge, Donald Scott Kurtz, up for re-election on November 5, 2019, who, in a Brooklyn Eagle story around the time of the first motion in the case was quoted saying :

  “When a case is before me, I try to give it my full attention,” Justice Kurtz said.
“Some judges would have just read the papers and signed them,” Kurtz said.

We need to button down the next action as each of the last 8 items (#3-#10) unwinds the sale of the Brooklyn Lyceum because each error sounds in the court exceeding its authority.

These 10 things, Ten Easy Pieces of Law: Essentials of Brooklyn Due Process Violations, will be the subject to actions in the case (with a nod to Richard Feynman's Six Easy Pieces: Essentials of Physics Explained by Its Most Brilliant Teacher. )

Given all this, it would be tremendously helpful if, in addition to the players, some other people took a look at the relevant pieces of the record and stated, in affidavit form, what they have seen.

That is where you, Friend of the Due Process, come in.  We invite, cajole, request, and beg you to follow our process, logically and then legally,  here  https://brooklynlyceum.com/wip/10078. Pressed for time?  Start with the 4 RED tabs.

When you finish, you are invited to sign affidavits, more forceful than a petition, as to these 8 simple things (#3-#10), the first 7 (#3-#9) in one affidavit, and the 8th (#10) in another.

What we can offer in return, is, since facts and the law indicate the Brooklyn Lyceum will rise from the legal ashes, is the opportunity to participate in curating the Brooklyn Lyceum's next incarnation.  Details are roughed out here :  https://brooklynlyceum.com/wip/10078/19.

>>>Legal scholars should note we are offering one vote for each on-point citation submitted that supports or casts doubt on any of our points with the vote for that citation going to the first scholar submitter. 

Affidavits are at brooklynlyceum.com/static/images/10078/AFFIDAVIT_1.pdf & AFFIDAVIT_2.pdf

Because you only get the rights you fight for, ONCE MORE UNTO THE  due process BREACH, INDEED!

Eric Richmond
brooklynlyceum.com

Captain Kirk would have a tough time with Brooklyn Courts

Star Trek's Captain Kirk re-programmed a Star Fleet Academy simulation that was designed to have the Star Fleet candidate either lose his ship, himself and all his crew in battle or lose a freighter (the Kobayashi Maru) in the Neutral Zone.

That was a situation no one could win, a Catch-22. In Brooklyn Courts we have a worse situation, judges re-programming (altering) the docket to avoid what the record and the abandonment statute, CPLR 3215(c) required, dismissal of the case as abandoned.

The Brooklyn Lyceum, aka Public Bath #7 (by Raymond Francis Almirall), a community fixture for 20 years as a theater / cafe / gym / batting cage, needs your help, a couple of affidavits, and, if it works with your schedule, an appearance here and there to let the courts know someone is watching.

The courts (lower and appellate), in an ill advised attempt to short circuit due process for the Brooklyn Lyceum (made up multiple dispositive facts, selectively quoted caselaw, altered the docket for the benefit of the Plaintiff, ignored attorney perjury, ...), created a winnable battle for the Brooklyn Lyceum in that, under the altered record:

• Plaintiff failed to serve initial Notice of Motion (or any papers whatsoever) on Lyceum Attorney.
• Plaintiff Notice of Motion cites, as the required document, an affidavit that does not exist.
• Plaintiff Notice of Motion dated October 13, 2009 cites non-existent, and impossible, October 26, 2009 Affidavit.
• Plaintiff Notice of Motion asks for relief (Judgment of Foreclosure and Order of Reference) under a statute that does not allow for Judgment of Foreclosure or Order of Reference.
• Decision by Judge Donald Scott Kurtz is premised on two affidavits that do not exist, one cited to by the Plaintiff in the motions papers, and, one out of whole judicial cloth.
• Same Decision grants relief not requested in Motion (Judgment of Default)  and relief not available under the statute  presented as the basis for the Motion (Order of Reference).
• Another Notice of Motion, to foreclose on the Lyceum, notices everyone on March 18, 2011, to attend a hearing on April 17, 2001, A DECADE IN THE PAST!!

HERE IS HOW YOU CAN HELP:

• Read, and mentally process, all the tabs.  We know it will take some effort, but the payoff is worth it. If you already believe us and want to dig right in, read and become one with the 4 RED tabs.
• Sign & send a couple of affidavits regarding what you have processed regarding the bullet points above.
• If it works with your schedule, show up at a hearing on occasional basis.
• Or, if direct participation is not your bag, buy things from  brooklynlycem.com/viewart or roxysteeparlour.com .
• Or,  if you just want to help in the least involvement way possible, give $$ to the cause (https://brooklynlyceum.com/viewart/5) that may entail a new attorney and two projects to help keep this from happening to other people.

THE PAYOFF: Convert your affidavits and our use of your affidavits or your appearance at some hearings or your contributions into curatorial voting rights when the Brooklyn Lyceum rises from the ashes.  Help program a venue that has seen the likes of Fiona Apple, Amanda Palmer, Vernon Reid, Yo La Tengo, Marc Ribot, Jose Gonzalez, and scores of others.

Quite plainly, any judge, after 20 years of being one, who does work this sloppy OR puts his thumb on scale for developers like this OR hides behind unnecessary formalities when the jurisdictional issues are raised by Defendants in a sworn statement and at oral argument and admitted in a sworn statement and not contested at oral argument by Plaintiff should not be elected, let alone re-elected, especially if the court refused to provide a court reporter for that hearing.  To wit, Judge Donald Scott Kurtz, up for re-election November 5, 2019.

This from a judge who said, in 2009: 

“When a case is before me, I try to give it my full attention,” Justice Kurtz said.

“Some judges would have just read the papers and signed them,” Kurtz said.

Plaintiff:

• Sent  Notice of a Motion to a Defendant, not Defendant's attorney (failure to serve attorney did not invoke the power of the court),
• Noticed whomever that the motion would seek Judgement of Foreclosure under a law (CPLR 3215) that only allows something different, Judgment of Default(facial deficiency of paper  cannot invoke the power of the court),
• Notice to whomever was premised upon a 10/26/2009 affidavit by an attorney when there is no such dated affidavit (facial deficiency of paper  cannot invoke the power of the court),
• Affidavit actually attached, not dated 10/26/2009, says it is premised upon an already filed proof of service when there is no priorly filed proof of service (power of the court not invoked if premised on non-existent paper).

Decision (Judge Donald Scott Kurtz):

• premised on the same non-existent 10/26/2009 affidavit
• premised on non-existent previously filed proof of service referenced in motion.
• premised on a false instrument created by the court, an Request for Judicial Intervention Worksheet page.
• granted Judgment of Default, which was not requested (which is not legal), instead of Judgment of Foreclosure (not available under the statute)

Years later Plaintiff admits in affirmation (attorney affidavit) in support of a Plaintiff Cross-Motion:

• Plaintiff never served Notice of Motion on Defendant's attorney.
• Defendant Noticed another motion for parties to appear a decade in the past.
• Defendant failed to comply with the express terms of the order allowing sale of Property.

Years later Judge  (Donald Scott Kurtz, up for re-election November 5, 2019):

• Grants Plaintiff Cross Motion while finding that the Motion the Cross-Motion responds to was not properly served and was of no effect.
• Fails to address jurisdictional non starter (admission Counsel for Defendant was never served Notice of Motion) in granting Plaintiff Cross Motion.
• Fails to address jurisdictional non starter (admission Counsel for defendant noticed all to appear a decade in the past for a hearing).
• Fails to do 5th grader math by failing to figure out that Defendants were noticed to appear a decade in the past.
• Failed to provide a court reporter (and, thereby, lost jurisdiction) when defendant invoked New York State Constitution Article VI right to a court reporter.

This cacophony of jurisdictional errors cannot stand if due process has any meaning whatsoever.

Thus, "Once More Unto the Breach" we go for due process.

In Pascal's Wager, the premise was why not believe in a higher being as the time spent (church, prayer, etc.) is minimal compared to the cost of eternal damnation? 

In that case, your actions were not known to actually influence your fate, they were just checkpoints if the higher being counted attendance somewhat akin to Grantland Rice's :

"For when the One Great Scorer comes.
To mark against your name,
He writes - not that you won or lost
But HOW you played the Game."

A Due Process Wager follows a slightly different tack.   The time spent to ensure a Brooklyn Theatre due process, if due process still truly exists, is trivial compared to the value to society of a successful application of due process, AKA Notice and Opportunity to be Heard, with a cultural collateral impact of allowing a Brooklyn Theatre to rise like a Phoenix.  It would also send a signal to that due process is a thing still, even in the BK.

The minimal time spent produces some substantial upsides:

• DUE PROCESS is re-affirmed/re-instituted in Brooklyn, NY, returning to existence a venue that has showcased the likes of Fiona Apple, Jose Gonzalez, Vernon Reid, Amanda Palmer, Yo la Tengo, moby dick: the sermon, project: ground control,  Josh Walden's All is Full of Love, Brooklyn Repertory Opera Company's  Fidelio, 31Bond, A Charlie Brown Christmas, rocky: the musical and a growing list of others.
• Helpers, AKA Due Process Warriors, vote via Gowanagus.com to assist in re-programming the Brooklyn Lyceum by garnering votes via fighting the JafoMaru.  
• Those VOTES can be temporarily proxied, permanently re-assigned or traded in for Lyceum Staff time spent on one of an evolving list of Not-for-Profits and causes.
• NOTE: once the lyceum fate is assured, we will work to take on other just due process battles.

ALL ONE NEEDS TO DO IS :

• Read up on a few straightforward rules/concepts the court system is premised upon.
• Review a few controlling decisions regarding those concepts.
• Review 6+/- items on a certified court docket (one or two line descriptions of papers filed).
• Review certified copies of a few documents on that certified docket list.
• Note facts sworn to or sworn facts a decision (by Judge Donald Scott Kurtz, up for re-election November 5, 2019) is premised upon.
• Note the Plaintiff never served any papers on the defendant's attorney.
• Note the papers served, no matter whom was served,  noticed in March of 2011 for all to appear in April of 2001.
• Note that the Plaintiff has sworn to two contradictory things, that the Lyceum never appeared, and, when that non-appearance became a problem,  that the Lyceum appeared by way of attorney.
• Listen to a few snippets of court hearings/oral arguments to hear that jurisdictional arguments were raised.
• Review some short (1-3 page) decisions by Judge Reinaldo Rivera (up for reelection November 5, 2019) noting whether or not the jurisdictional arguments were even addressed.
• Review date-time stamps on two documents to note whether a court found that October 26, 2012 came before October 19, 2012.
• Review a notice of motion that notices all in March of 2011 to appear in April of 2001.

THEN...

• Print and sign affidavits related to some combination of the above facts.

THE RETURN:

• You get Brooklyn Lyceum re-programming votes for each affidavit sent to us as long as they pass simple rules of format and content.
• You get more votes each time we use that affidavit.
• You get even more votes if you appear (a watched judiciary more often does its job) at critical junctures going forward.
• Voting begins as soon as the Lyceum case gets due process  (votes vest upon receipt of 1st affidavit).

OLD LYCEUM WARRIORS:

• who crossed the Lyceum threshold in the past by way of working, performing, renting or designing things at the Brooklyn Lyceum get additional votes that vest upon that person's or that entity's first affidavit.

(blue & red  bold tabs = overview, the rest = devilish details).

After a decade, the courts stopped kicking the Brooklyn Lyceum Foreclosure can down the judicial road and, on December 26, 2018, made a finding that threatens to make a mockery of due process, precedent, statute and common sense. 

The ramifications of the contradictory court choices are unavoidable.

In order to avoid finding for the Brooklyn Lyceum and to avoid calling out the lower court judge (Judge Donald Scott Kurtz, up for re-election 11/5/2019) for failing to do what, based on the record before the court, a statute required, the appellate court (Judge Reinaldo Rivera, up for re-election 11/5/2019) made up a fact (October 19 is after October 26) and doubled down on the lower court going outside the record (using an appearance by the Defendants that the Plaintiff hid from the court, and swore did not exist, in prior motion), creating a situation wherein a plaintiff obtained a judgement against the Lyceum premised upon swearing no appearance by the Lyceum, and, when that judgment was challenged based on the sworn non-appearance, obtaining a validation of that judgment premised upon the Plaintiff swearing, yup, that the Lyceum appeared.

Judicial Wave-Particle duality, indeed!

In addition, the appellate court ignored its own recent and long-standing common sense precedent of ensuring that no harm is done to a party when the court retroactively alters the record for another party.

The retroactively altering the record also retroactively invoked some due process requirements the Plaintiff failed to meet, requirements the appellate court conveniently failed to address.

The inconvenient fact, addressed in detail further on, is that due process violations fail to invoke the power of the court, and, due to that, there is no statute of limitations to address them.

What follows is why we keep fighting, like many others in life, because we are right.

Benjamin Ferencz: And I'm still in there fighting. And you know what keeps me going? I know I'm right.

If you have read much of the article on the issue : brooklynlyceum.com/wip/10094, you now that something is wrong in the Brooklyn courts.

JAFOMARU is one way to make the system do what it is supposed to do, apply the common law, constitution, statute and case law to the facts consistently no matter who is the litigant, not just to favor developers.

JAFOMARU seeks public support (read! think! act! appear!) at focal points such that there are ramifications to not following simple rules, starting with the Brooklyn Lyceum case and then, maybe, extended to other issues.

All it takes is for you to read brooklynlyceum.com/wip/10094 and then head to the JAFOMARU.com website to see the myriad of ways to benefit from such playing it forward.

Initially, all the efforts at JAFOMARU.com (affidavits submitted, affidavits used, appearances at focal points, etc.) will garner votes to participate in re-programming the Brooklyn Lyceum after victory is obtained.  Once obtained, you can utilize those votes to program the Lyceum or you can trade them in for volunteer time by the Brooklyn Lyceum staff at a growing number of Not-For-Profits.

So, even if you live far from the Brooklyn Lyceum or even if the arts ain't your thing, you can help, JAFOMARU!

***NOTE: Past participants at the Brooklyn Lyceum can vest votes in addition to the ones for acting now.  Consider it recognition that all who passed through the Brooklyn Lyceum doors were appreciated.

FIRST MOTION IN CASE

1. You can't fail to send a Notice of Motion to the attorney for a party, especially an attorney you swore did not exist.
2. Your Notice of Motion, whomever is served, can't ask for a Judgment of Foreclosure under the Default Statute.
3. Your Notice of Motion, whomever is served, can't be dated before documents it references.
4. Your Notice of Motion can't reference a non-existent affidavit / affirmation.
5. The Judge can't issue a decision for what was not requested.
6. The Judge can't issue a decision premised on a non-existent affidavit / affirmation. 

GRAB BAG OF JURISDICTIONAL GOODIES

1. You can't use evidence you withheld from the court when seeking and obtaining a judgment to validate the judgment when that judgment is later challenged, especially when that evidence contradicts sworn attorney affidavit.
2.  If the court does accept such late evidence outside the record, that is a nun pro tunc action, a changing of history to be what the court "feels" it should have been.  And, that the court in nun pro tunc'ing of the past court must ensure that the other side is not procedurally harmed by the nun pro tunc changing of the past.  In this case, changing the past makes the affidavit upon which the judgment is premised perjury, and the court can have no part in perjury.  Thus the court should have, a la a now common Science Fiction theme (see Star Trek Voyager : Year of Hell), reset the timeline to the point of the change in history and let the case play out again from that point, just as the same court did weeks before in Fed. Sav. & Loan Assn. of Charleston v Tezzi 2018 NY Slip Op 05826 Decided on August 22, 2018 Appellate Division, Second Department.  From that decision:
1. """
2. 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). Rather, the defendant must be afforded an additional 30 days to appear and answer after service upon her of a copy of the decision and order (see CPLR 320[a]; Buist v Bromley Co., LLC, 151 AD3d at 683; Khan v Hernandez, 122 AD3d at 803; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 750; Discover Bank v Eschwege, 71 AD3d at 1414).
3. """
3.  If the court does go outside the record and accept such late evidence, the court must ensure that the Plaintiff followed the due process procedural rules such evidence would have required.  In this case, not serving a non-appearing party is ok, not serving counsel for an appearing party is not ok, and is fatal to whatever was not noticed.

SUMMARY: If you got this far, you can see a potent legal storm a brewing and you might be a Due Process Warrior.

ROCKIN THE DUE PROCESS VOTE: The Brooklyn Lyceum is well aware that art spaces are hard to come by and harder to keep in operation, and that no man is an island.  To that end, the Lyceum has always worked with others to program the Lyceum.  It is no different now, for the Lyceum has hundreds of groups/individuals that have performed or taught or rented or held court at the Lyceum and thousands of performers that have performed at the Lyceum as probably the best pool of community arts knowledge in the entire country.

Since full-time programming was never the Lyceum founder's goal, what better way is there to thank/honor those Due Process Warriors who now come to the aid of the Lyceum as well as those who have already crossed the Lyceum Cultural Threshold and become Due Process Warriors, than to invite them to participate in determining the cultural future of the Lyceum?

Art makes us what we are, and, when it is ignored, takes away a part of what we could be.

Most importantly, art is often, no matter the talent or effort or time to make the piece, far too expensive for most of us.

Artist have to eat and so do the buyers.

What is usually the answer is for the artist to eschew exposure to the masses until they have reached great acclaim.

That road to fame is almost always fatal to the earnings of the artist, and to the career of the artist as well.

Enter The Smee, an art exhibit intending to get the art into the hands of a wider audience before that artist has become so famous the average joe cannot afford their art.

Some artists may choose not to participate having looked deep into their soul and finding the process lacking.

Other artists will seize the day and enter The Smee.

Make it so.

The conscience and common sense of the nation as a whole keep down the evils which have crept into the working of the Constitution, and may in time extinguish them. Public opinion is a sort of atmosphere, fresh, keen, and full of sunlight, like that of the American cities, and this sunlight kills many of those noxious germs which are hatched where politicians congregate. That which, varying a once famous phrase, we may call the genius of universal publicity, has some disagreeable results, but the wholesome ones are greater and more numerous. Selfishness, injustice, cruelty, tricks, and jobs of all sorts shun the light; to expose them is to defeat them. No serious evils, no rankling sore in the body politic, can remain long concealed, and when disclosed, it is half destroyed.

LONG VERSION

Maru stands for circle or ship in Japanese.

Maru is also a recurring part of Star Trek, whereby Captain Kirk reprograms a simulator (system) that has been designed to not allow success.

The system is called the Kobayashi Maru : https://en.wikipedia.org/wiki/Kobayashi_Maru

KOBAYASHI MARU : "The test's name is occasionally used among Star Trek fans or those familiar with the series to describe a no-win scenario, a test of one's character or a solution that involves redefining the problem and managing an insurmountable scenario gracefully."

We think a system that covers up judicial violations of due process and false statements by judges counts as "a test of one's character" and "a no-win scenario" or an "insurmountable scenario" to be managed by the public at large.

We are not finished till sunlight kills the "noxious germs".

for a reason to get out of the muck.

SwampSlurry.com is that reason.

Where evolution failed us, your trilobite overlords, science and taste buds let you nouveau upstart species enjoy life (espresso) more than we did at the bottom of a mucky ocean eating all we bumped into until we developed the first eyes. Yes, the food tasted so bad we developed these multi-lens eyes to avoid things that taste like, well, scum.

Think FEED before FIGHT or FLIGHT.

Born in the aftermath of Hurricane Sandy when power was at a minimum, the SwampSlurry process extracts all it can, far more than the local super-barista can hope to pull in a busy shop with far too many variables to manage the process in any meaningful way.

SwaSlu hones in on Stealth Roasts, processes the roasts into shots and then flash cools them for later use preserving the vital taste characteristics for later use whether that use is at home, in cafes and restaurants, or on the road at markets and fairs.  Think of it as a wine cellar of espresso roasts.

Swaslu  (swaslu.com) is the roadshow.

... is the primary force in elections.

With so much going on in everyone's lives outside the election of judges, very rarely is the public informed enough to make an informed decision when an attorney is first up for election as a judge, resulting in party-line votes without any substantive evaluation of the candidates.

But in the Kings County Supreme Court, they must come up for re-election every 14 years for Supreme Court and 10 years for Civil Court.

After a decade or more of being a judge, one has ought have more than party-backing to go by.

Until recently, reviews of how a judge did during his or her 10/14 year term were hard to come by.

Now we present scorecard of sorts.