ONCE MORE UNTO THE BREACH
into court for lyceum due process - tell us if you get it
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.
- Some rules you can break, some you can't.
- In fact, justices of this court have lectured on this very proposition (Justice Devin Cohen (10/3/2017)) :
- Here, the Defendants, Eric Richmond (“RICHMOND”) and 231 FOURTH AVENUE LYCEUM, LLC (“231”) have been made to repeatedly bleed via continuous due process cuts removing Notice and Opportunity to be Heard, the most substantial of rights that preserve life, liberty and property, at the hands of the Plaintiff (initially LYCEUM BATHHOUSE (“LB”), LLC and now P.B. #7, LLC (“PB7”)) and the court.
- Such violations create void, ab initio (from the start) decisions which have no statute of limitations nor is laches applicable, and, upon revealing this information to the court in this forum, must be vacated.
- There are many rules that seem to be bent wherein, per CPLR2 2101(f)3, no substantial right is impacted. Incorrect dates and even typographical errors are ignored as the statute follows the playground basketball rule of “no harm, no foul.”
- Incorrect as that may sometimes be, what cannot happen is a loosening of legal standards to what is often called “farmer basketball”, that of “no blood, no foul”, dispensing almost entirely with the need to officiate the skirmish.
- These are classically situations when, in a cornucopia of rules (CPLR), knowing what rules you could break that the system would forgive.
- Thus, in “farmer” basketball, the standard rules did not apply so long as blood was not drawn, similar to not violating a “substantial right”, no matter how painful.
- What we have today is a situation, no matter which way you look at it, violates substantial rights sounding in Notice and Opportunity to be Heard, two remaining vestiges of the foundation of the rule of law that defines this country.
“It’s about trying to find out the internal logic to the rules, whether things sort of carry across, and how to remember the big rules that are fatal,” Cohen said. “Blow a statute of limitations…that’s fatal. There is no way you can get around that. But if you turn in discovery a little bit late, you can get around that. You have to know which rules you can break and which you can’t break.”1
- Per CPLR 2101(f), if a right is not substantial (sounding in Notice and Opportunity to be Heard), failure to return papers violating such a right waives that right and the party violating that right shall be given opportunity to correct the papers.
- But, woe betide substantial rights discussed next as they have a much higher standard of waiver.
- It has been consistently held that by appearing and NOT raising a lack of statutory notice defect issue, a substantial right, that defect is waived.
- It has been consistently held that by serving and filing response papers that that do NOT raise a lack of statutory notice defect issue, a substantial right, that defect is waived.
- The New York Sate Constitution, Article VI, guarantees a court of record.
- That has been whittled away somewhat by caselaw.
- It is still inconceivable that there is a trial without a court reporter.
- But, despite some courts pretending that oral argument is not a place where a court reporter is guaranteed (Judge Donald Scott Kurtz, up for re-election November 5, 2019), most judges don't play that game and, when requested, provide a court reporter.
- Some of those judges who hold oral argument with a court reporter, when things don't go the way the court wants them to go, then pretend that they can issue a decision based solely on the papers, even when oral argument actually occurred (Judge Devin Cohen, elected November 2018).
- That is shameful, but the truth.
- To put it most simply, at anything other than a trial, anywhere a judge presides and hears parties speak is a hearing.
- Add to that the caselaw that says, absent a waiver of the right to a court reporter one must be provided.
- This issue has unwound several murder convictions, failure to make a required record and absent the ability of the parties to "settle" between themselves a transcript, the higher courts regularly overturn cases where a judge did not provide a court reporter.
- Under the common law, adversaries could trade affidavits swearing to the truth of various things under penalty of perjury (and threat of jail).
- Each side would determine whether to agree or not agree on each issue.
- Once some semblance of an agreed fact base was settled, the parties would apply to the court to settle only those things not agreed to in the extant affidavits.
- That procedure is still available, but the standard is to now start the action in court first and file all affidavits in the case creating a whirlwind of activity on the court docket.
- None other than Guido Calabrese has opined that the court system would be best served with the common law first, court second process.
- The takeaway from affidavits served on another party is that any fact sworn to under penalty of perjury, and not specifically rebutted in a response affidavit, stands as truth in the case whether it is true or not.
- It should be noted that a general denial does not suffice.
- When a court makes a mistake, there is appellate review, motion to re-argue and motions to renew.
- When a court breaks a law, the court has acted outside the power of its office and that decision, whether it exists on paper in a court file, never comes into legitimate existence and is void ab initio (from the start).
- As such, if a decision never truly existed, and the decision is premised upon a court or party's violation of law by an attorney, an officer of the court, there can be no statute of limitations.
- To illustrate this, take a look at U.S. v. Lee.
- It does not take a great leap in logic to see that the review of something that broke a law is outside the merits of the case, and, as in this case, is usually procedural.
- In addition, the review of a violation of procedural law is essentially ministerial.
- There are a set of rules that the court and parties need to follow and violation of those rules absent either express or implied waiver is simple to ascertain.
- Fail to serve a party ... power of court not invoked.
- Fail to provide statutory notice ... power of the court not invoked.
- Ask for imprecise relief ... power of the court not invoked.
- The list goes on and on. Follow procedural rules or else bad things happen.
- Laches is just another term for you waited too long, you sat on your right and others who have taken action while you sat on your rights would be harmed if you were granted the rights you sat on for so long.
- Well, that only goes, again, just as jurisdictional violations went, if the right you seek to enforce has NOT been violated by the court's or an officer of the court's violation of procedural due process or misrepresentation of facts, as, caselaw is clear, laches is no defense to the restoring of procedural due process rights.
- If the violations occurred prior to the sale, the buyer needed to do due diligence and review the motion paper, the evidence, the decision and the record as his purchase ws subject to the outcome of the Judgment of Foreclosure and Sale.
- If the court never had the power to issue that judgment (say, for lack of notice), the purchaser bought nothing.
- The court has wide latitude. It can even change the past (nun pro tunc), but only on terms that are just, terms that do not impact a substantial right (Notice and Opportunity to be Heard) of either party, especially the party not given the mulligan.
- There is a recent case in the Appellate Division Second Department wherein the court felt that a required proof of service mailed 14 days after service was accomplished that needed to be filed within 20 days of service was entered 27 days after service, 7 days too late.
- The lower court did not catch this, ordered the sale of the property and the sale was held.
- On appeal, the court, under its inherent powers, deemed the clearly tardy filing of the proof of service to be timely filed, some years after the fact.
- But the court, recognizing the mulligan it was giving the plaintiff, did what all science fiction does when it changes the past, it resets all things in the universe, in this example, the case, back to the point of the alteration.
- It is also a common thread among cases in New York State, grant a mulligan that impacts a substantial right, reset the clock.
- This resetting the clock unwound the sale of collateral, a home in Westchester County, New York, as the court found as the tardy filing of the proof of service was not significant enough to end the case, but was significant enough to reset the parties back to their status at the point of correction.
- When the record at the time a motion is submitted clearly has no proof or even allegation of appearance by a defendant and a sworn statement from the Plaintiff that there has been no appearance by any Defendant, in that no Defendant has responded to the complaint in any way, shape, form or manner, it can only be found that that Defendant has not appeared and, if it is more that a certain number of days after being served, depending on type of service, any finding on default must be a default in appearing.
- To find otherwise, such as failure to plead (appeared but dd not answer) or failure to proceed to trial (appeared and answered but failed to participate further) can only mean that the Defendant somehow appeared and then failed to plead or proceed to trial.
- That is the case we have here, a higher court faced with dismissal of a case as abandoned if there was no appearance, makes a finding of "failure to plead" making the inescapable subtle sub-finding of appearance.
- If a party has failed to appear, one can seek a Judgement of Default, along with Order of Reference if it is a foreclosure.
- The statute about default (CPLR 3215) is threefold, default can be sought for failure to appear, failure to plead (implies appearance), or failure to proceed to trial (implies appearance and pleading (answer)).
- If it is the first, a failure to appear, the Plaintiff no longer has any requirement, absent a court order, to notice the defaulting party of the Motion for Default, save for one exception, if it has been more than a year since default.
- If it is the Second, a failure to plead rather than a failure to appear, then all papers, for the duration of the case, must be served on the appearing, but not pleading defendant or its counsel.
- If a party has appeared, then all papers must be served on that party.
- If the party appears by Counsel, all papers must be served on that Counsel.
- Once counsel for defendant is known to the Plaintiff, all communication with the actual Defendant must cease and all further communication must be to the Counsel for the Defendant.
- This is the case even if the Plaintiff, after having communicated with counsel for RICHMOND and 231, serves RICHMOND and 231 but not their counsel as Defendants are not allowed to communicate with Plaintiff once counsel is hired and Plaintiff is not allowed to communicate with Defendants once they become aware to Counsel for the Defendants, save for settlement negotiations.
- Any papers so served can only be considered courtesy copies and are not binding on the recipient.
- Failure to serve the Counsel for Defendants a Notice of Motion never invokes the power of the court on the motion.
- Either a Cross Motion failing to address improper notice, when there has been no proper notice of motion by way of order to show cause, is a waiver of that improper notice or it does not invoke the power of the court.
- In any event any sworn statement submitted to the court and thereby, on the record, by Plaintiff that acknowledges that Defendant has raised a jurisdictional argument (by any means), but does not deny that jurisdictional argument - is admission of jurisdictional argument.