Court failed to do what statute says it shall
(dismiss case as abandoned).

Court denies motion to dismiss case as abandoned
(because, get this,
defendant moved to vacate decision court not allowed to make
after entry of decision court not allowed to make)
---that is as stupid as it sounds---

Defendant appealed denial of motion to dismiss case as abandoned.

STEP 4

oral argument YEARs later
(where defendant informed court of ramifications
if court somehow finds case not abandoned)

decision affirmed on different grounds
(without actually stating it was on different grounds)
the primary different ground being
defendant moved too late (really?)
by moving on (October 17, 2012) which came
AFTER entry of different judgment than lower court ruling used (October 26, 2012)

defendant moves to re-argue
whether October 17 really comes after October 26. (which is denied)

waiver of proceudral due process violations

jurisdiction: authority to rule,
lost if procedure relating to due process is violated
and that violation is not waived.

unwaived jurisdiction violations are forever (laches, inapplicability of)

STEP 4

no rights can vest from unwaived procedural due process violations.

requirement to give minimum notice of hearings

requirement to state,
in notice of motion,
statute that allows court to grant what is requested in notice

Never enough time (for the courts) to do it (foreclosure) right,
always enough time (for the courts) to do it (foreclosure) over.

Joseph Heller (author of Catch-22) ... would be proud
of the double edged judicial sword
that cuts through jurisdiction
no matter which side of the legal finding coin the court chooses ...

the Brooklyn Lyceum needs a little help from our friends --the court didn't do what it was required to do (dismiss case as abandoned).
--the appellate court avoided correcting the lower court by finding that:
------October 17 comes AFTER October 26, and,
------because 17 > 26 the Appellant moved too late
------the Appellant had an attorney
who had timely appeared
but then failed to timely answer the complaint.
------the decision the Appellate Court cared about
was not the one appealed from
but the Judgement of Foreclosure and Sale.
--the court of appeals ignored jurisdictional challenges
and rubber-stamped the appellate court decision
freezing the schrodinger's cat of a case
in an immutable position.

HELP US UNWIND THE JUDGEMENT OF FORECLOSURE AND SALE!

as ... attorney never served
a facially, fatally defective notice to appear,
a notice to appear a decade before date of notice! ...
a notice that does not cite the statute that permits court to grant what is requested.
(lets do the TimeWarp Again!)

Appellate Court (Reinaldo Rivera) thrusts failure to serve notice of motion to appear a decade in the past on Brooklyn Lyceum attorney into the forefront of Brooklyn Lyceum case when he, Rivera, found 17 > 26 & Brooklyn Lyceum had attorney (an atty the now suspended from the practice of law Plaintiff atty withheld from the court).

NO. But I can give a fish market analogy. --Hand wrapped fish back to the fish monger because the sell by date is two weeks ago
... he goes into a back room, comes back out
& hands you the same package with a new sell by date on it ...
You have __NOT__ lost the right to see if the previously expired fish is bad!!
--That is, in sum and substance, the current Brooklyn Lyceum problem. Brooklyn Lyceum alleged case abandoned (expired), Appellate Court does some back room surgery on the record & comes back w/a case that is rotten to the core.

Power of the court MUST be invoked

by proper procedure

else decisions the court makes

never attain any authority,
even if perceived to have authority for decades.
see United States v. Lee, 106 U.S. 196 (1882)
USA had to rebuy Arlington National Cemetery
a decade after it became a cemetery for lack of proper service.

Only proper service of the complaint

invokes the power of the court.

As a motion is a mini-case

improper or lack of service of the notice of motion on the parties
or facial insufficiency of the notice of motion fail to invoke the power of the court.

Participation, on the merits, in motion
w/o raising lack of procedural due process

can waive lack of procedural due process.
(did not happen, so unwaived)

Defendant forwarding papers
inappropriately served on Defendant to Defendant atty.

can waive lack of procedural due process.
(did not happen, so unwaived)

Attorney appearing at oral argument
w/out arguing lack of procedural due process

can waive lack of procedural due process.
(did not happen, so unwaived)

Attorney serving opposition papers
w/out arguing lack of procedural due process

can waive lack of procedural due process.
(did not happen, so unwaived)

Passage of time, even decades

cannot waive lack of procedural due process.

Facially, fatally defective notice of motion
absent waiver of fatal facial defects ...

cannot invoke the power of the court.

The Appellate Court and Court of Appeals
both refused to address the case as presented to the court
by the Plaintiff on October 26, 2009, ...

going as far as making up a fact
(October 17, 2012 comes after October 26, 2012)
to avoid one procedural due process trap

That trap was,
if the court limits itself to that record,

the case was abandoned
by the time (Oct 2009) the Plaintiff
filed/served the first action in a case
where the Plaintiff later
repeatedly swore Defendant had not appeared.

The Appellate Court stuck in
(& Court of Appeals rubber-stamped)
a little gem that can only be interpreted as ....

The Appellant had an atty
who appeared
(by way of Plaintiff granting extension of time to answer).

The Appellate Court and Court of Appeals finding of
"within a year of failing to serve an answer"
is a very dodgy way of saying

You timely appeared, but failed to subsequently timely answer.

The Appellate Court and Court of Appeals
artfully failed to do the math
or point to the facts about appearance

Which would show that the only way
to an unabandoned case
by way of getting to appearing and not answering
would be to go outside the record
and use proof of communication with Appellant Attorney
that the Plaintiff withheld from the court.

That artful avoidance of procedural due process (by way of making up a fact and hiding an necessary atty appearance)

just opened a pandora's box of other, later procedural due process issues.

In just the motion that allowed for the sale of the collateral, the Brooklyn Lyceum

--the Plaintiff withheld from the court that there was a Defendant attorney,
--that Defendant attorney was never served
the Notice of Motion for a Judgment of Foreclosure and Sale and
-- the entities that were noticed, were noticed to appear a decade in the past, and
--the unserved notice failed to specify the statute that allowed for a Judgment of Foreclosure and Sale.

The auction terms announced were

the sale was subject to the pending (ongoing) litigation (the foreclosure case that allowed for the auction)

The pending litigation at the time of the sale of the collateral, aka the Brooklyn Lyceum, was

an appeal arguing that the case,
based on the record made available to the court
by the Plaintiff at the time of the 1st motion in the case (October, 2009),
was, pursuant to CPLR 3215c ...
abandoned precluding entry of ANY judgment by the court
& mandating its dismissal as abandoned.

Judge Donald Scott Kurtz broke the law

by ruling on the motion.

Kurtz broke the law again

by going outside the record to support initial breaking of law when challenged on his initial breaking the law.

Kurtz even went further by finding that

since defendant moved () after the decison was entered () ...
the against the law decision became valid.

Thusly an appeal was pending

at the time of the auction (10/23/14) and subsequent sale (1/20/15)

Oral argument occurred, finally, almost 2 years after the appeals were ready to be calendared ...

on September 6, 2018.

At that oral argument

Appellant raised jurisdictional questions that come into play if the case is not deemed abandoned

Specifically noted as jurisdictional to the court:

--failure to serve Lyceum atty any notices of motion and, the kicker,
--the unserved on Lyceum atty Notice of Motion for Judgment of Foreclosure and Sale dated March 2011... instructed all to appear a decade earlier in April 2001 ....

Lyceum was hopeful when,
in response to these issues
(and one more about the ridiculousness of the decision the appealed decision was premised upon),
the lead Appellate judge (Reinaldo Rivera) said

--The 2nd Department has an excellent reputation.
--We will get to the bottom of it.

that the Appellate Court

was either shockingly lazy
or wanted to put a fork in the Lyceum
to benefit a developer

the Appellate Court

made up a fact
(October 17 comes after October 26)

the Appellate Court

went outside the record (again, illegally)
to necessarily retroactively
insert an appearance of counsel into the record
some 11 years earlier
thereby invoking the lack of juridiction
appellant raised at oral argument.

Suffice it to say
we were dumfounded as

the court retroactivly altered the docket
without doing exactly what it did
in a case some two weeks prior to oral argument,
reset another case back
to the point of retroactively altering the docket
to preserve the due process rights of a defendant.

We were
flabbergasted

by the unequal treatment of under the law
and the fabication of a fact
in order to avoid ruling
on the record available to the court
at the time of the first motion in the case (October 26, 2009)

We were
double flabbergasted that

the decision,
clearly based on other grounds than the lower court,
was not labelled with the magic words ...
"affirmed, on different grounds"
which impact many things.