Lower Court (Judge Donald Scott Kurtz):
-A-rendered decision premised on Plaintiff atty sworn statement that no Defendant had appeared in the case.
-B-ruled Lyceum (Defendant) later moved too late to allege Kurtz made decision Kurtz was prohibited by law from making
by moving after very same decision Kurtz was prohibited by law from making.
-C-ruled Plaintiff timely moved by incorporating documents (atty communications) not on docket
that Plaintiff attorney withheld from court for some 36 months,
until they were helpful in showing what they previously swore did not exist (Lyceum appearance by atty) ... existed.
(after stating at oral argument that "the 2nd Department has an excellent reputation" and "we will get to the bottom of it")
Appellate Court (Judges Reinaldo E. Rivera, John M. Leventhal, Sylvia O. Hinds-Radix and Valerie Brathwaite Nelson):
-1-Couldn't stomach B, so they ruled, counter to decades of caselaw,
that Lyceum moved too late by moving after entry of subsequent "final" judgment notwithstanding that the motion (Oct 17, 2012) acually came before entry of the judgment (Oct. 26, 2012.)
We still haven't figured out why court made up, and refused to correct, that fact, that Oct 17 comes AFTER Oct 26.
-2-Rubber stamped C by making ruling that Plaintiff timely moved, without doing the datemath,
a ruling only possible if the Appellate Court necessarily incorporated same withheld from the court attorney communications (Lyceum appearance by atty).
TL/DR: after Plaintiff swearing no Defendant appearance to obtain decision later swore otherwise to defend decision ...
with lower/appellate court necessarily finding Defendant appearance by atty to validate that decision.
If court finds appearance by atty, was notice of motion served on that atty (as required by statute)?
--court never empowered to rule on motion, and,
--no rights vest from such a decision, and,
--no deadline, aka Statute of Limitations, to vacate such a decision.
Where we are:
Decision on 1st motion in case
on no notice to atty who lower/appellate courts found had appeared by way of
--two written extensions of time to answer,
--multiple undocumented oral extensions of time to answer and
--service of answer on Plaintiff atty.
--rejection of same answer by Plaintif atty.