thegrowler - Factual Op-Ed

thegrowler / brooklynlyceum / gowanagus / jafomaru

ABOUTthegrowler
- THE GROWLER
  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
LOWDOWN
- as the procedural due process legal swamp settles:
  HELP US pre-program the return of a
  PROCEDURAL DUE PROCESS DEPRIVED Brooklyn theater.
  
  Schrodinger indeed! This is what you get when court is determined to use existence of Defendant's attorney as sword for Plaintiff without using it as shield for Defendant!
  
  Appellate court DODGED addressing Plaintiff's statutory abandonment of case, that abandonment being derived solely on the docket available to court at time of 1st motion, a Docket created entirely by the Plaintiff who failed to inform court of opposing counsel.
  
  In defiance of 5th grader math and basic logic and w/o preserving rights of Defendants
  (Procedural Due Process: NOTICE and OPPORTUNITY TO BE HEARD), Appellate Court
  illogically gave lower court a pass on violating jurisdiction, ruling w/o authority to rule.
  
  It did so by finding 19 > 26 (not possible, let alone with record on appeal or full record)
  & by finding Plaintiff whose appeal brief admits interaction with opposing counsel early and often starting 16 months before initial motion while failing to serve that attorney 1st motion.
  
  Appellate court, 4 judges w/140 years legal experience, clearly did such mishegoss to avoid dealing with lower court's illegal re-animation of statutorily abandoned case.
  
  That re-animation was by lower court's validation of its own initial decision, judgment of default, premised on no Defendants' attorney, in subsequent decision by same judge, case not abandoned at time of judgment of default, premised on Defendants having an attorney.
  
  If you think, like us, this is utterly ridiculous,
  Help us as we take action to undo this situation.
  
  NEXT: KNOWDOWN to prepare for Procedural Due Process THROWDOWN/SHOWDOWN!
KNOWDOWN
- THE GOOD FIGHT : PROCEDURAL DUE PROCESS
  TYPICAL WAY CASE GETS ASSIGNED TO A JUDGE👇
  
  Case is filed, along with fee ... with county clerk.
  Case is not yet in court system.
  
  Plaintiff serves all Defendants.
  
  Parties do some things without court involvement,
  such as rejection of pleadings or extensions of time.
  
  Eventually, a party wants to get things rolling and files:
  RJI, a Request for Judicial Intervention.
  --That RJI has a spot on it to place contact info for opposing counsel, if any.
  --That RJI gets a judge assigned and case placed within the court system.
  
  Along with the RJI, the thing that made the RJI necessary,
  usually a motion, is filed simultaneously.
  
  The court, before accepting the RJI and motion, checks to see if all parties,
  or if they have counsel, their attorneys, have been served the RJI and motion.
  --Implicit is the requirement that both the RJI and the motion must be served
  on any attorney for a party known to the filer of the RJI and motion.
  
  3 WAYS WAYS OF JURISDICTION FAILS.👇
  
  TOP DOWN --- APPELLATE COURT COVERUP
  
  HIGH LEVEL
  
  4 judges with a combined 140 years legal experience,
  but not, apparently, 5th grade math expertise:
  FOUND #1: Lyceum(Defendant) moved too late because ...
  One of 17 or 19 or 22 are greater than 26.
  --It's almost as if the judges didn't fact check the staff attorney work before they told the clerk to enter the judgment premised on a math dog that don't hunt.
  
  FOUND #2: Plaintiff moved on time because ... well, nothing, not a word on how.
  A simple analysis shows that, absent communications with Lyceum attorney,
  case abandoned 173 days prior to not served on Lyceum attorney 1st motion.
  
  IGNORED: jurisdictional argument raised at oral argument!
  ARGUMENT: Court had no authority to rule on motion not served on attorney.
  
  DEEPER
  --LIED (OR CAN'T DO 5TH GRADER MATH),
  --WENT OUTSIDE RECORD ON APPEAL TO SAVE PLAINTIFF,
  --NEW PRECEDENT - UNSUBSTANTIATED ATTORNEY AFFIRMATIONS NOW FACT.
  --FAILED TO ADDRESS JURISDICTIONAL ARGUMENT
  CLEAR FROM RECORD ON APPEAL AND RAISED AT ORAL ARGUMENT.
  
  Defendant moved too late
  Appellate court found Defendant moved too late to have case dismissed as abandoned.
  This is odd (bullshit) #1 - because it implies a case abandoned by Plaintiff inaction can become unabandoned by Plaintiff action --- AND --- Court that is forbidden from entering judgment because case abandoned by Plaintiff inaction gets power to rule back if Plaintiff subsequently takes action in abandoned case. Our heads hurt!
  This is odd (bullshit) #2 - because that math dog don't hunt.
  The motion served October 17, 2012, entered October 19, 2012 and argued on October 22, 2012 can't possibly come, as the court found, AFTER the October 26, 2012 entry of judgment of foreclosure and sale the court references, especially as that entry date is nowhere to be found in the record on appeal.
  
  Plaintiff timely moved
  For the Plaintiff to have timely moved, Plaintiff needed to move within a year
  of any Defendant default, default either in appearing, or, if appearing,
  in answering, or if appearing and answering, proceeding to trial.
  The lower court and the appellate court failed to do any math.
  Odd, but the math is unnecessary due to an overriding issue.
  It all boils down to did Defendants have an attorney?
  If not, case clearly abandoned as it was 173 days late.
  That math is exceedingly simple. Date of service on LLC
  via Secretary of State+30 days to answer +365 (one year).
  If they had an attorney, did Plaintiff serve the
  purportedly "timely" motion on that attorney? (Short answer:NOOOOO!)
  Appellee brief cites communications with Defendants' attorney, extensions of time to answer, service of an answer and rejection of that answer between Plaintiff attorney and that attorney, an attorney not listed in affirmation of service of 1st motion!
  No service ... no power/authority to rule! Q.E.D.!!!!
  
  BOTTOM UP --- FAILURE TO SERVE KNOWN OPPOSING COUNSEL.👇
  
  HIGH LEVEL
  FAILURE TO INFORM COURT OF, OR TO SERVE PAPERS ON, OPPOSING COUNSEL: STRIPPED COURT OF AUTHORITY TO RULE ON 1ST MOTION!!!
  
  DEEPER
  Same as Top Down issue ...
  Jurisdiction raised at oral argument.
  Plaintiff knew there was an opposing counsel ....
  and failed to serve the RJI and initial motion ....
  OR ANYTHING ELSE
  (notices of motions or decisions/orders)
  upon that known to Plaintiff opposing counsel
  (as in the affidavits of service do not swear to having served opposing counsel)
  
  IN THE MIDST --- PROCEDURAL PROBLEMS EVERYWHERE?👇
  
  HIGH LEVEL
  The best place to start is at the beginning ...
  There appears to be a cornucopia of procedural due process issues
  that each stop the case dead in its tracks at many, many points.
  
  DEEPER
  DOCKET-ISMS
  (building list for evaluation. Just one thing so far.)
  
  RJI/ Initial Motion
  
  Failed to inform court of opposing counsel in RJI
  
  Failed to serve RJI on opposing counsel
  
  Failed to serve Notice of Motion #1 on opposing counsel.
  
  Notice of Motion, unserved on attorney, asks for something,
  "Judgment of Foreclosure", under a statute that does not allow that.
  
  Notice of motion, unserved on attorney,
  premised on non-existant attorney affirmation.
  
  Decision, also unserved on attorney,
  premised on, not one, but, two non-existant attorney affirmations.
  Rest of meandering thoughts.
  Ignore unless you realy want to see some snippets of past thoughts/logic..
  
  Some things to keep in mind ...
  Dr. Egon Spengler knows-do not to cross the streams ...
  
  Mathematicians know-do not to divide by zero ...
  
  Science fiction fans know-do not alter the timeline ...
  
  Schrodinger knew it can't be both heads and tails ...
  
  SCOTUS knows-do not to violate Procedural Due Process ...
  
  Any fool knows not to think 19 > 26 ...
  
  because ...
  if so ...
  it
  always
  ends
  BADLY.
  
  EZ Pieces
  
  Plaintiff failed to inform court of existence of attorney for multiple defendants, and,
  simultaneously, Plaintiff also failed to serve motions papers on that attorney.
  
  when case, subsequent to decision, is challenged under mandatory dismissal statute,
  Plaintiff submits information it had withheld in filing unserved motion in case 36 months earlier,
  communications w/Defendant's attorneys 18 months prior to that unserved motion.
  
  Court uses newly submitted proof of communications with unserved attorney
  to validate prior decision premised on no communications with unserved attorney.
  
  Appellate court finds both:
  --Defendant move too late, Oct 19 being after Oct 26, to avoid mandatory dismissal statute.
  --Plaintiff timely moved, IMPOSSIBLE unless court ignores failure to serve motion on attorney
  and the court also ignores abundant caselaw that unsubstantiated attorney affirmations are shit.
  
  ---when you raise failure to serve your attorney at oral argument ---
  & presiding judge in a 4 judge appellate panel says:
  "???"
  BUT then .... that 4 judge Appellate Court:
  
  finds 19 is a larger number than 26
  as way to say you moved too late ... to avoid one jurisdictional statute. ---Case is abandoned---
  
  doesn't substantiate finding your opposition moved on time ... to avoid another jurisdictional statute. ---power of court not invoked as ...
  Plaintiff failed to serve motion papers on attorney for Defendant---
  
  TIME TO LOOK UNDER THE HOOD
  
  SO LATE IT'S ABANDONED
  When the court entered judgment,
  on a motion made 173 days too late,
  based on the record before the court at the time -
  a motion which did not even bother
  with a purported "sufficient cause"
  for this tardy filing:
  statute bound the court by the words
  "shall not enter judgment,
  but shall dismiss the case as abandoned."
  
  NO LEGAL OPTION
  EXCEPT FOR CASE DISMISSAL
  ---But thats what the court did,
  break the law by doing
  something other than dismissal,
  as, if more than 365 days
  from default to motion,
  the case was statutorily abandoned.
  
  simple facts ... math ... law ... caselaw ...
  you can help put some sunlight on the issue, publicly
  and earn curatorial votes for a NYC based theater
  when that sunlight takes effect.
  
  FACTS
  
  April 7, 2008 (the date of the service of the summons and complaint on defendant Lyceum )
  
  October 26, 2009, date of purported service of first motion in case.
  
  No other communications between Plaintiff and defendant Lyceum presented to court on or before January 18, 2011, the date of decision/order on motion.
  
  MATH
  Time Calculations
  --Time for defendant Lyceum to answer : 30 days=April 7,2008 + 30= May 7, 2008.
  --Time for Plaintiff to act : 365 days, 1 year=May 7, 2008+ 365=May 7, 2009.
  --Days late : October 26, 2009- May 7, 2009-365=538-365= 173 days late!
  
  LAW
  
  When an LLC is served processs at secretary of state.
  SERVICE ON LLC VALID UPON SECRETARY OF STATE -
  NY LLC LAW § 303. Service of process on limited liability companies. (a) Service of process on the secretary of state as agent of a domestic limited liability company or authorized foreign limited liability company shall be made in the manner provided by paragraph one or two of this subdivision. Either option of service authorized pursuant to this subdivision shall be available at no extra cost to the consumer. (1) Personally delivering to and leaving with the secretary of state or his or her deputy, or with any person authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such limited liability company shall be complete when the secretary of state is so served.
  TIME TO ANSWER
  CPLR 3012(c) Additional time to serve answer where summons and complaint not personally delivered to person to be served within the state. If the complaint is served with the summons and the service is made on the defendant by delivering the summons and complaint to an official of the state authorized to receive service in his behalf or if service of the summons and complaint is made pursuant to section 303, paragraphs two, three, four or five of section 308, or sections 313, 314 or 315, service of an answer shall be made within thirty days after service is complete.
  
  Time for Plaintiff to act
  
  Case abandoned 365 days after time to answer expires (default) unless Plaintiff acts towards Judgment
  CPLR 3215(c) : If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.
  
  What is "the record before the court?"
  In its loosest sense, anything filed with the court by any party (or the court itself)and served on the other side up to and including the date of a decision/order.
  It is stricter than that but that strictness irrelevant in this case, so it is not addressedd here.
  
  SHORT SUMMARY
  
  ---Defendant had until May 8, 2008 to answer the summons/complaint served on April 8, 2008.
  ----Plaintiff had one year from then to seek judgment of default, until May 8, 2009.
  ----Plaintiff did not take that action until October 26, 2009, 173 days too late.
  ----With only a proof of service and a motion submitted 173 days late, statute mandated dismissal as abandoned absent the Plaintiff submission of any alleged "sufficient cause".
  ----Absent even a "dog ate my homework" alleged sufficient cause, the case no longer existed, it was a nullity requiring dismissal as abandoned.
  ----Instead, the court enterred judgment in violation of a jurisdictional statute.
  ----When challenged on that judicial violation, court allowed Plaintiff to submit an alleged "sufficient cause" that was not before the court when the court ruled in initial motion.
  NEXT: MOVE ON TO THROW DOWN ...
THROWDOWN
- Club JAFO: Send in affirmation along lines as decribed below. Get a curatorial vote.
  Club MARU: We use any affirmation in court filing. First use of any affirmation gets you another curatorial vote.
  Club JafoMaru: Appear at a JafoMaru Function. More votes based on what the action is.
  prior thoughts on THROWDOWN
  --A) READ STATUTE--requiring service of all papers on attorneys.
  --B) READ SHORT TREATISES--
  -- common law v. statute,
  --common law (informal) appearance v. statutory appearance
  --C) READ CASELAW--
  --showing failure to serve attorney never invokes power of the court, vests no rights and has no deadline (statute of limitations) to vacate the decision
  
  --showing informal appearance valid as appearance.
  
  --showing extension of time to answer and service of answer are informal appearances
  
  --D) READ DOCKET--
  --Note that a Plaintiff attorney affirmation swearing no appearance by any Defendant dated ... is attached to a notice of motion dated ... and entered ....
  
  --Note motion decision premised on that affirmation.
  
  --Note date of same attorney affirmation three years later swearing otherwise ... that Plaintiff attorney granted Defendant attorney two extensions of time, multiple oral extensions of time and that Plaintiff rejected Defendant answer back to Defendant Lyceum's attorney.
  
  --Note dates of extensions and service and rejection of answer are prior to date of previous sworn statement of no appearance in support of earlier motion.
  
  --Note same judge premising decision on extensions of time to Defendant Lyceum's attorney.
  
  --Note proofs of service of 1st motion are not on Defendant Lyceum's attorney
  
  --E) ACT--
  --Send Affirmation or notarized Affidavit or notarized Jurat
  
  --Submit caselaw from any jurisdiction (for or against our position)
  
  --Appear live or zoomlike at a hearing
  
  --Appear at event
  
  --F) VOTE ON--
  --Events Lyceum or proxy Lyceum .
  
  --Assisting Other procedural due process cases.
  
  GOWANAGUS.COM
SHOWDOWN
- BASICS: We need to attack some decisions with some pretty specific arguments that the court exceeded its authority in acting, or had no authority whatsoever, largely due to lack of notice.
  
  ON THE HORIZON:
  With the help of some amount of the populace chiming in with brainstem sunlight, sunlight being the best disinfectant, these are a list of the options we think may be viable:
  1. Motion to reargue appellate panel of 4 judges with 140 years experience finding 17 or 19 or 22 > 26
  2. Motion to reargue appellate panel of 4 judges with 140 years experience failing to address what was raised at oral argumentand clear from the record on appeal, that Plaintiff failed to serve notice of motion on known to Plaintiff attorney for multiple defendants, rendering failure to respond to m otion or appear at oral argument irrelevant.
  3. Motion to appellate court as is allowed when lower court signs an order on no notice,
    failure to serve attorney being no notice.
  4. Motion to appellate court for clarification of exactly how it got Lyceum moved too late.
CONTACTFB, Twitter, E-mail
- Add my email please! Contact thegrowler.org Foll ow @brooklynlyceum

Add yourself to thegrowler.org email list.

First Name

Last Name

Email

^

^

Add my email please!