The Real Deal New York

Ex-Brooklyn Lyceum owner claims judge duped him into forfeiting property

The arts center was sold at auction in October and will be converted to condos

February 25, 2015 05:30PM

Brooklyn Lyceum at 227 Fourth Avenue in Park Slope

Brooklyn Lyceum at 227 Fourth Avenue in Park Slope

The former owner of the Brooklyn Lyceum, a landmarked one-time bathhouse in Park Slope that he converted to an arts center and performance space, claims in a new lawsuit that a judge illegally auctioned off the property before his deadline to appeal had passed.

Eric Richmond, the building’s owner from 1994 until the auction last fall, says that the judge gave him seven days to file an appeal of her order allowing the auction, but then claimed that his appeal came a day late. Greystone won the building at auction on Oct. 23 for $7.6 million, and plans to convert it into condos in conjunction with a new 75-unit rental development next door at 225 Fourth Avenue, Brooklyn Paper reported.

“Due process matters,” Richmond said. “If you’re given seven days, you’re supposed to get seven days — and you can’t just change that after the fact.”

He said that his main goal is to preserve the building as a cultural space. “But if I have to fall on the sword of due process, I will fall on that sword,” he said. Richmond has been battling foreclosure proceedings since 2008. [Brooklyn Paper] — Tess Hofmann

  • cobblehillite

    as much as i love the quirky things that have been going on in this building, it seems to be quite dangerous

  • Brooklyn Lyceum

    There is so much malfeasance involved in this that it is hard to keep track of it all. Thank you The Real Deal for acknowledging the ongoing battle.

    Due process is a judicial third rail that judges should not be able to avoid by “piling on”. A sample of the due process issues:

    –Federal Judge says you get 7 days to respond from date of entry of an order and then calculates from the date of signing the order leaving you only 6 days? Yup.

    –Federal Judge invokes a procedure that requires you get 21 days notice AND a hearing should you object but overrules your objection due to the lack of that statutory notice? Yup.

    –Federal Judge, contrary to all prior motions in the case, doesn’t give you any time to reply to a response? Yup.

    –Federal Judge rules that perjury by a lawyer TO THE COURT is not extrinsic to the case. Yup.

    –Federal Judge tries to keep things on the record prior to a decision off the record on appeal? Yup.

    –Federal Judge moots a decision on a motion? Yup. (as far as we can tell, you can moot a motion but not an existing decision)

    –Federal Judge attempts to dismiss an appeal of a decision dismissing a case because you aren’t appealing the decision dismissing the case? Yup. (you read that right, Escher would be proud)

    –Federal Judge attempts to dismiss another case with the basis being a blog article never put on the record? Yup.

    –Federal Judge ignores 5 cases you submit that rebut a crucial finding. Then, on reconsideration, acknowledges, but does not address the 5 cases? Yup.

    –Federal Judge repeatedly fails to acknowledge papers filed when rendering a decision? Yup.

    –Federal judge holds that a particular precedent means one thing in prior cases with other parties but then means the opposite in your case? Yup.

    –Federal Judge invokes the specter of Rooker Feldman as a catch all for when a lower court has put pen to paper even if that act is a violation of the law? Yup.

    These issues are not the hand of “busy” judges. As far as we can tell, it is a pattern that needs to be addressed, not just for my sake.

  • minderbender

    For those who are interested, the district court has dismissed Richmond’s appeals, so whatever the merits of his legal arguments, they will have no further effect on the building formerly known as the Brooklyn Lyceum.

  • Brooklyn Lyceum

    Hey minderbender. Fancy meeting you here. You seem to troll along with inaccuracies and grand, overarching and inaccurate statements everywhere media begins to shine a light under the Troutman Sanders/Greystone rock. I wonder what relationship you have to Greystone/Troutman Sanders/David Topping /Arthur Cornfeld, etc.

    Want to quote something from that decisions online here and go at it again? I am happy to do it in person if you wish. With an audience worthy of both our statures.

    We expected Judge Cogan to rule (based on his own repeated violations of due process) in a biased manner. But not so quickly. Hard to say you reviewed the papers when you issue a judgment on the same day as you receive the papers. Especially when your decision ignores each and every argument posited and each and every case cited except one and that case actually proves our point.

    Try this on for size, if you dare… Judge Cogan says that despite the fact that the US Attorney chose one method of action with one set of rules, the US attorney chose the wrong mechanism and SHOULD have chosen another mechanism. But, despite the US attorney choosing the wrong mechanism, we are accountable to the one the US attorney should have chosen.

    Bootstrapping in a decision. NICE.

    It ain’t over till the courts have the guts to address issues head on.

    • minderbender

      Your reply was due the 20th and Judge Cogan issued his decision on the 24th. 24 – 20 does not equal 0!

      • Brooklyn Lyceum

        Um, try again minderbender.
        It was deposited in the overnight depository at the federal building on the 20th. But it was not scanned in by the clerk until the 24th.

        So unless the court is looking at papers that haven’t been filed yet, the 24th is the earliest Cogan could have seen it.

        Brooklyn Lyceum 1. Minderbeder 0.

        • minderbender

          I’m pretty sure the judge can read documents that haven’t yet been posted to the docket.

          • Brooklyn Lyceum

            Pretty sure judge shouldn’t read anything before it is scanned in. Fox and henhouse issue.

            They go from locked box to clerk who scans them in. a judge looking at them beforehand is a big no-no.

            But is that the basis of your attack? That the judge might have told the clerk to let him see things in my case before they were scanned in? Ugh. Even I had not thought of anything that treacherous.

          • minderbender

            I guess I fail to see the problem that arises when a judge reads pleadings submitted by a litigant before they are “scanned in.” I assume you view this as some kind of due process violation?

            But in any case, what is your evidence that it wasn’t “scanned in” until the 24th?

          • Brooklyn Lyceum

            The same place you probably got the Feb 20th that was nowhere in the decision. PACER.GOV.

            It clearly states the “Response to Order to Show Cause” was filed on Feb 20 and entered into the system on feb 24.

          • minderbender

            Sure, the response was uploaded to PACER on the 24th. I guess in your mind, federal judges sit at their computers waiting for documents to be uploaded to PACER before reading them. Otherwise, of course, there would be a “fox and henhouse issue.” Where do you get this stuff?!?

          • Brooklyn Lyceum

            Um. It is automatic. PACER.GOV is the GOVERNMENT filing system. Papers dropped off, either in person during working hours or after hours, are opened and dumped in a pile and scanned in and available on the spot. They don’t go to a judge before scanning. No one should be sifting through the clerks pile to see if a particular case filed something today. It was unavailable to the court until the 24th and a decision came down, absent addressing cited cases on the very same day.

            Curiouser and curiouser.

          • minderbender

            Public Access to Court Electronic Records. The point is to have a public docket that everyone can see. I assure you that judges can and do read documents before they are uploaded to PACER (except, of course, when documents are filed electronically, in which case they go straight to PACER).

            But I mean, who cares. The decision speaks for itself. You had no business appealing the dismissal of the Lyceum case, given that you never uttered one word in opposition to its dismissal and didn’t bother to attend the hearing. Judge Cogan explains in excruciating detail why you are confused about which local rule applied. It’s the most careful, thoughtful, detailed explanation you can possibly ask for. When people ask, “So why did you lose the building, anyway?” you should consider directing them to that opinion instead of ranting about foxes and henhouses and 69% facial software matches and garbage like that.

          • Brooklyn Lyceum

            I think I will take your assurances as I would a 12 year associate at a law firm. Nothing but blanks.

            Cogan obfuscated in excruciating detail but didn’t actually address anything. And his circular logic on that local rule is clearly not the work of facts, law and precedent. Feel free to take a piece of that one to slice and dice in this forum. Even call on the Greenberg Traurig deathstar to back you up if you want to. They left the Left Shark guy in shambles, didn’t they?

          • minderbender

            I mean, sure. The gist is that when Judge Craig asked the U.S. Trustee to settle an order formalizing her dismissal of the case, the U.S. Trustee proceeded under Local Bankruptcy Rule 9072-1(a) (“Settlement Or Submission Of Order, Judgment Or Decree”). Your view was that he should have proceeded under Local Bankruptcy Rule 2002-1 (“Notices of Presentment”). The background is that Judge Craig had decided to dismiss Lyceum’s chapter 11 case after you made no argument against dismissal.

            Rule 9072-1(a) provides in part: “If, following a trial, hearing, or decision in an adversary proceeding or contested matter, the Court directs a part to settle an order, judgment, or decree, the party shall… file its proposed order, judgment, or decree upon at least 7 days’ notice to all parties…”

            Here is what Judge Craig said at the end of the hearing (a hearing, I hasten to add, that you did not bother to attend):

            THE COURT: And so I’m going to grant the United States Trustee’s dismissal motion and you can settle an order.

            Now, it certainly seems on its face that Rule 9072-1(a) is applicable. The court has just instructed the U.S. Trustee to “settle an order.” Rule 9072-1(a) applies if, “following a… contested matter, the Court directs a party to settle an order…” So I don’t see how you can conceivably argue that Rule 9072-1(a) doesn’t apply.

            Rule 2002-1, on the other hand, applies to situations in which notice and a hearing are specified by the Bankruptcy Code or the Bankruptcy Rules. Neither the Bankruptcy Code nor the Bankruptcy Rules specify that there should be notice and a hearing for the settlement of an order. So the rule plainly doesn’t apply.

            You disagree. You believe that Rule 9072-1(a) was the wrong rule and Rule 2002-1 was the right rule. You think Judge Cogan’s logic (which is not very different from what I’ve spelled out above) is “circular” and “clearly not the work of facts, law and precedent.” So explain! It would be astounding if you had a textual argument in support of your position, but equally important, what is your argument that you should have been given 21 days to object to the wording of an order, when the CONTENTS of that order (the dismissal of the case) were no longer up for debate? Bear in mind, this was a motion that the U.S. Trustee had filed months before, a motion that you hadn’t opposed, and the judge made her decision at a hearing that you hadn’t attended. So you had effectively conceded that the case should be dismissed. Did you really need 21 days to mull over the precise wording of the order dismissing the case?

          • Brooklyn Lyceum

            Um, minderbender, you purposefully missed the same thing Cogan purposefully missed. Nice head fake misstating a convenient fact.

            The US attorney did not, as you allege, “Settle an Order.”
            The US attorney did, as I allege, issue a “Notice of Presentment.”
            We did respond to a Notice of Presentment.
            We did follow the the rules of Notice of Presentment.
            The US Attorney did not follow the rules of Notice of presentment.

            Therefore the Courts did not follow statute on notice and opportunity to be heard via the mechanism the Courts chose.

            DUE PROCESS BABY. Q.E.D.

            Lyceum 2. Minderbender 0.

          • minderbender

            Okay, but what is the basis for your argument? I’ve laid out why Rule 9072-1(a) clearly governed while Rule 2002-1 clearly did not. You haven’t responded to that argument.

            What I THINK you are basing your argument on is the fact that the U.S. Trustee mistakenly put “Notice of Presentment of Order Dismissing Case” on the top of the document he filed. So implicitly, you are arguing that the U.S. Trustee’s labeling mistake entitles you to additional notice time. It’s an interesting argument, although one that is very unlikely to impress a judge. The law isn’t hung up on how documents are labeled, it just tries to ensure that people have adequate notice and a chance to be heard. You clearly got all the notice you were entitled to under Rule 9072-1(a), which (as I’ve pointed out, and as you’ve failed to refute, was clearly the applicable rule).

            But the other interesting thing here is that this argument I’ve just put into your mouth HAS NEVER BEEN MADE TO A COURT. If you wanted Judge Cogan to rule in your favor, why didn’t you make the argument to him? Don’t get me wrong, it’s an incredibly weak argument, but at least you could have forced him to address it. Instead you spent your time researching the etymology of “beyond the pale.”

            I also notice that you haven’t responded to the question of why you think you were entitled to 21 days when, as I have explained, the judge had already decided to dismiss the case and the only issue up for discussion was the precise wording of the order. Let’s say Judge Cogan granted you 21 days to suggest a revised dismissal order to Judge Craig. How would those 21 days help you? How would you modify the dismissal order in a way that would make any difference to the course of events? Remember: Judge Craig had already decided to dismiss the case. The only subject left for discussion was exactly what the dismissal order would look like. So what is this magical thing that you would have accomplished IF ONLY you had 21 days (instead of 14 days) to do it?

          • minderbender

            I should also add, the U.S. Attorney never appeared in any of your bankruptcy cases (to my knowledge). It’s beyond bizarre that you keep implying he did.

          • Brooklyn Lyceum

            Methinks your knowledge is not absolute.
            I wonder who questioned me under oath in December 2013?

          • minderbender

            Heh, well, I guess I should say I’m not surprised if the U.S. Attorney is looking into your actions.

          • Brooklyn Lyceum

            Wow minderbender. Character assassination now?
            FYI. I forced my way onto the stand when Judge Craig appeared to have not read the papers submitted for approval regarding things her husband is a foremost expert on in real estate in this city, or so his web page says. Hindsight being 20-20 it is clear she was avoiding that issue, among many others.

          • Brooklyn Lyceum

            So many questions. Lets start with this one. From the “Notice of Presentment.”

            >>>
            PRESENTMENT DATE: September 4, 2014
            NOTICE OF PRESENTMENT OF ORDER DISMISSING CASE

            PLEASE TAKE FURTHER NOTICE that objections, if any, to the Order must be made in writing, filed with the Clerk of the Court, with a copy delivered to Bankruptcy Judge Craig’s
            Chambers, and served upon and received by the Office of the United States Trustee, … in accordance with the
            applicable Federal Rules of Bankruptcy Procedure and the Local Rules of this Court.

            Unless objections are timely filed and served, the Order may be signed.

            >>>

            Sure seems like the US Attorney chose a Notice of Presentment, especially since the document doesn’t reference what rule it it was brought under.

          • minderbender

            So you’ve restated the argument I made for you, but you haven’t addressed any of my other points. Again, it would have been interesting if you ever made the argument in front of a judge. You would have lost, I suspect, but it would have been a novel tactic for you to spell out a (quasi-) logical reason that a court might rule in your favor instead of ranting about irrelevant aspects of the case.

            Just to be clear: it’s a very weak argument. The U.S. Trustee doesn’t get to choose which local rule of procedure applies. The rules themselves specify which rule applies. The U.S. Trustee mistakenly labeled his settlement proposal as a “notice of proposed order” or whatever, but that hardly transforms the nature of his filing.

            But anyway, what would you have done with the extra 7 days to comment on the exact phrasing of the order of dismissal? Remember, of course, that since the motion to dismiss was unopposed, and you didn’t attend the hearing, you had already effectively conceded that the case should be dismissed.

    • minderbender

      I will note, though, that if Judge Cogan violated your due process, he continues an amazing string of bad luck that you’ve had, in which literally every judge you’ve ever appeared before has ruled against you every single time. What are the odds?

  • Christine Moore

    I’m quite depressed that this beautiful building and arts center will be converted to condos. Developers have no imaginstoon. Brooklyn is losing its cultural soul, just like Manhattan. Money rules. Disgusting. I’ve lived 5 blocks from this building for 20 years and really appreciated the fact that it was there. Could get a coffee every morning and see a wide variety of shows any given month. Too bad.

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