CAN STANDS THE
GROWLER 8 EASY
PIECES Due Process
Also, unwinnable situation won by resetting the rules by Captain James T. Kirk - Star Trek: TOS (Kobayashi Maru).
-- help collect procedural tricks of the judicial trade in a place where the self represented can research before they get screwed.
-- help observe at key junctures to make self represented more manageable.
-- let the courts know you a have a functional brainstem.
... System Observers because : A watched court more likely to do its job.
--unwatched systems tend towards abuse, watched towards accountability-- JafoMaru.com
Journalism ain't what it used to be
--A years late followup to some heated discussions about the future of journalism.
-- Which led to a process diagram sketched on the back of an envelope that was promptly ignored for years.
-- Then a media echo chamber of silliness effectively cauterized a Democratic leaning populace into a zombie-like apathy at the polls.
-- Not only must objective critical analysis occur (whether or not we call it journalism), that work needs to be given a fertile and sustainable soil from which to spring. The Growler is that soil. -- thegrowler.org
- Lender (Plaintiff) initiated a foreclosure against Lyceum.
- Based on the papers submitted by the Plaintiff, the first action in the case was fatally and facially tardy and jurisdictionally ineffective.
The judge, Donald Scott Kurtz, did, or failed to do the following:
--Failed to dismiss the case as abandoned as was required.
--Granted relief not requested in the moving papers.
--Granted relief not listed under the statute noticed.
--Premised decision on two non-existent documents.
- Defendant Richmond moved to dismiss the case as abandoned.
--Counsel for defendant admitted to the court on October 24, 2012, that Plaintiff had moved 6 months later than the abandonment statute allowed.
--After this admission, the Court gave Plaintiff extra time to come up with another answer.
--Plaintiff Counsel produced a sworn statement from former Plaintiff counsel admitting Plaintiff had regular and repeated interaction with counsel for Richmond and Lyceum PRIOR to October 26, 2009 motion.
--Plaintiff Counsel produced a sworn statement that Plaintiff counsel had admitted, in a hearing on October 24, 2012, that the initial motion was 6 months late.
--The Decision referenced documents that did not exist at the time of the October 26, 2009 Notice of Motion.
--The Decision does not address Plaintiff admission to moving 6 months after statutory abandonment.
- The judge then followed it up by granting a motion on no notice.
- Defendant Richmond appealed the refusal to dismiss the case as abandoned (APPEAL #1).
- The Lyceum moved to vacate the Order of Reference never served on the attorney for Richmond and the Lyceum, and the Judgment of Foreclosure with the facially statutorily insufficient notice, either of which would unwind the sale of the Brooklyn Lyceum.
- The Plaintiff, in opposition papers, admitted ...:
--Plaintiff failed to serve the October 26, 2009 Notice of Motion on the sworn to counsel for Richmond / Lyceum, David Blum, Esq.
--Plaintiff's March 17, 2011 Notice of Motion instructed those noticed to apear on April 18, 2001.
--Plantiff's ?? Notice of Entry of the Judgment of Foreclosure failed to accurately describe the Decision attached to the Notice of Entry.
- The court is required to address jursdictional arguments before it takes any action after they are raised.
- Judge Kurtz, rather than addressing the jurisdictional challenges, as required, refused to provide a required court reporter at the hearing on the motion and failed to acknowledge the hearing occurred (and that Richmond raised all three jurisdictional arguments orally) in a decision that said:
"If I were to address the motion, I would deny it"
- The Lyceum appealed the decision on whether the first action in the case was statutorily abandoned.
- Once the appeal was fully briefed, it took 2.5 years to get calendered for oral argument.
- At oral argumment on appeal, the Lyceum raised three jurisdictional challenges that, being jurisdictional, can be raised as late as oral argument on appeal:
--The Lower court had granted a Judgment of Foreclosure and Sale on no notice.
--The required notice of entry of the Judgment of Foreclosure and Sale was invalid as it did not truly descibe the document entered.
--The Plaintiff, having now sworn that the Lyceum had actually appeared, contrary to prior sworn statement, failed to serve the attorney for the Lyceum with whom they had repeated communicatuion, including extensions of time to answer.
- The Appellate Court ignored the jurisdictional arguments, and, in order to avoid ruling a case abandoned based on the record presented to the lower court:
--Made up a fact (finding October 19 comes after October 26)
--Found that the Plaintiff had timely moved in the first motion in the case.
---- an impossible finding from the record in the lower court at the time of the motion in question,
---- a finding that could only be possible if the court altered the lower docket to incorporate proof of Lyceum appearance, and appearance that triggered the three jurisdictional issues raised at oral argument.
- The Appellate Court denied a motion to reconsider whether 19 > 26 or whether the Appellate court went outside the record and altered the docket.
- The Appellate Court denied a motion to for leave to appeal whether 19 > 26 or whether the Appellate court went outside the record and altered the docket.
The COURT OF APPEALS:
--dismissed stating the court did not have jurisdiction over 19 > 26
--(but did not deny)
--a motion to for leave to appeal
--whether 19 > 26 or
--whether the Appellate court went outside the record and altered the docket.
We are sure that making mathmatically impossible findings is directly akin to jurisdictional issues
(the court has no authority to get 5th grade math wrong).
In the event that Court of Appeals fails to do its job, we will be back with writs to compel the courts to address the jurisdictional arguments and 5th grader math failure.
Judge Donald Scott Kurtz
“Some judges would have just read the papers and signed them,”
Judge Reinaldo Rivera
“we will get to the bottom of this”
“the 2nd department has an excellent reputation”
When the system give you a lemon, return it!
Remove judges who ... are not smarter than a 5th grader MORE
... 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.
a bloodguard for politics?
come to pillage, stay to serve MORE
Early in the millenium, educated young people migrated to (cheap) places where they could congregate.
They sought adventure there, in the coastal cities, places where many of there parents had fled in the decades long exodus to the suburbs (Levittown, Naperville, ...)
Then the recession struck, a by product of specious financial regulation and billions and billions on questionable wars to protect, mostly, oil interests.
This may have just been a blip in history, but those young-ish needed to eat, and put a roof over their heads.
Once congregated, they became a market unto themselves with critical mass enough to support almost anything as long as they were willing to live in the abandoned carcass of the cities.
Being a recession and all, they created their own economies by reinventing artisanal craftsmanship everywhere there had been just bland commodities for decades.
Beer, Pizza, chocolate, coffee, COFFEE, soda, mustard, mayonnaise, peppers, cupcakes, barbeque, whiskey, theater, music, ...
It was if a great cry arose and said, YUCK!
Nowhere was this most evident than in Brooklyn, close enough to the wellspring of all media, Manhattan, but far away enough for cheap rents in nearly abandoned neighborhoods (Bushwick?).
They worked this for awhile and even elected the first black president, in part, by using nascent social media and sending droves of people to toss-up states door to door.
Then they went about their non-political business as the economy slowly recovered.
Until 2016, the vote heard round the world.
All the media championed a candidate that had a several million vote advantage OVERALL, but failed to address the chess game afoot, the ELECTORAL COLLEGE, the only game that mattered (whether you agreed with the rules or not, they are the rules in play).
It is often said that votes are yards and states are touchdowns.
Who hasn't seen a team garner massive yardage but fail in the red zone.
The losers complained that they didn't know it was about touchdowns, but that yards should be the only metric.
They then complained that social media was used to influence voters, as if that hadn't been the case in 2008, whether foreign backed or not. Disingenuous at best.
But then came the 2018 mid-terms and a shift in the firmament occurred. Longstanding politicians saw the handwriting on the wall and did not run for re-election. Other long time elected officials played the same old game and got beat by any other perspective than holding on to power for the boomer generation.
altering the timeline has unexpected effects
or, you only get the rights you fight for ... MORE
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.
into court for lyceum due process
tell us if you get it MORE
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.
- 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.
sunlight is the best disinfectant MORE
is both dangerous and useful ...
TL/DR:James Bryce : 1888 : The American Commonwealth
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.
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".
jurisdiction ain't what is used to be ...
AD2 ignores jurisdiction, makes up facts and treats pro se litigants differently? MORE
The Brooklyn Lyceum was seeking to overturn lower court rulings regarding abandonment of a claim, perjury by an attorney, and contempt of an order that never was in effect.
After having watched about 30 hours or so of 2018 oral arguments the Lyceum was confident that, given the commentary by judges in those hours, and, after waiting more than 2.5 years to be calendared, justice would be done.
That justice would be the clear application of basic legal concepts, simple statutes, iron clad case law and the common law to simple fact patterns, especially the unequivocal lack of jurisdiction:
- that, on the record before the court, doing simple addition and subtraction ((service date + proof of service date+10 days +365) < date of motion), the case was statutorily abandoned stripping the court of any power it had in the case whatsoever, and,
- failure to serve any motion or papers on attorney for two defendants, and,
- no matter whom was served, noticing all parties to appear ten years in the past, and
- an attorney committed perjury swearing in an affidavit that a document proving acquired standing existed when his client first appeared some 9 months prior, when, in fact, that document requisite for standing we mere days prior, some 9 months after appearing without standing.
- an order served, not within 21 days, as per the order, but at 45 days, was not in effect, ever.
Nothing could be further from the truth than the court doing justice as the law required.
Presiding Judge Reinaldo Rivera's statements that the Second Department had "an excellent reputation" and "we will get to the bottom" of this proved to be red herrings, if not flat out lies.
NOTHING NEW UNDER THE SUN
- the court found that 19 was greater than 26.
- the court went outside the record, contrary to all precedent on the issue, precedent that says if you can't be bothered to put it a necessary reason in the moving papers, you can't add it later.
- the court, after having gone outside the record, failed to follow the judicial equivalent of the hippocratic oath to first, do no harm, when it, by accepting papers outside the record as being dispositive, failed to do what it had done as recently as two weeks prior to the oral argument, change the record nun pro tunc, but resetting both sides back to the nun pro tunc date.
- the court, rather than addressing how and when the non-initiating plaintiff acquired standing, altered the appeal brief from alleging Ex-trinsic fraud(with no time limit to vacate) to In-trinsic fraud which has, historically, but no court dares cite the source, had a two year deadline to vacate.
- the court, rather than address the requirement that contempt can only be found if the order was still in effect, ignored that part of the case cited that required the order still be in effect, setting precedent allowing contempt to exist of orders no longer in effect.
DOUBLE NOTHING NEW UNDER THE SUN
- When asked to reconsider 19 is greater than 26 ... Denied.
- When asked to reconsider affirming contempt without addressing whether the order was in effect ... Denied.
- When asked to reconsider stealth nun pro tunc of evidence submission .. Denied.
- When asked to reconsider failure to address jurisdictional arguments raised, and not rebutted, at oral argument ... Denied.
- When asked to reconsider perjury allegation of non-initiating plaintiff acquiring standing from initiating plaintiff ... Denied.
PURPOSEFULLY UN-WINNABLE SITUATION
- This situation is so kafka-esque, that something needs to be done.
- If not now, then when?
- If not the Brooklyn Lyceum, then who.
Captain Kirk reprogrammed an un-winnable test at Star Fleet Academy, the KOBAYASHI MARU.
We seek to make the slam dunk cases winnable by collecting enough information to fight the power.