SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION - SECOND DEPARTMENT X Appellate Division Docket nos. PB. #7, LLC, 2015-10713 Plaintiff-Respondent, -against- Kings County Index No. 10035/2008 Eric Richmond, Defendant-Appellant 231 FOURTH AVENUE LYCEUM, LLC, THE CITY OF NEW YORK, THE STATE OF NEW YORK, and the NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, Defendants. AFFIDAVIT IN OPPOSITION TO MOTION TO STRIKE Eric Richmond, being duly sworn deposes and says under penalty of perjury: 1. That [am an individual defendant in this action and I am president and sole member of 231 FOURTH AVENUE LYCEUM, LLC (231). 2. That this affidavit is made in opposition to witness, but not party, and former advocate as counsel for plaintiff-respondent Glenn P. Warmuth’s January 20, 2017 motion to a) strike paragraphs from the Appellant’s Brief; b) strike public record deed exhibits from the Appellant's Brief, and; c) strike affidavit of Eric Richmond, the sole proof that Appellant demanded an Article VI of the New York State Constitution mandated reporter. ya 2-922 Page #1WAIVER OF CERTIFICATION 3. Non-party and non-counsel Glenn P. Warmuth has an opinion about whether Appellant is am competent to Certify the Record. 4. The issue is not competency, although Appellant may not be competent. It is permission. The Court clerks have regularly denied appellant and others the right to certify their own records' and stated that a pro se (non-attorney) cannot certify a record on appeal. 5. CPLR 105, however, defines attorney to include pro se. CPLR 105 : (c) Attorney. The word “attorney” includes a party prosecuting or defending an action in person. 6. Should the court decide that the clerks have erred, Appellant would be happy to attempt to Certify the Record. DEFAULT ISSUE 7. Despite Glenn P. Warmuth’s repeated filings to the contrary, the Second Department has found that a party in default is not precluded from raising fraud. MOVANT STATES APPELLANT DID NOT OPPOSE MOTION 8. This is bootstrapping and a lie. 10n January 30, 2017 a party taking over his appeal pro-se from his attorney was told by one of the clerks on Monroe Place that he could not certify the record on appeal himself. He had said to the clerk, “under NY law a pro sh is accorded the same rights and privileges as a bar admitted attorney.” That is CPLR 105 - (c) Attorney. The word “attorney” includes a party prosecuting or defending an action in person. Page #29. Appellant did oppose in oral argument to which a court reporter was denied. Appellant, when queried by the Court, said, in addition to other oral argument, that Appellant’s views on the matter were the same as another Defendant (231 Fourth Avenue Lyceum, LLC), that the Referee’s Report of Sale should not be approved. 10. And, again, fraud vitiates everything it touches, even the most solemn of judgments. One can always bring to the court’s attention, even for the first time on appeal, fraud. ATTEMPT TO REMOVE PUBLIC RECORDS FROM APPENDIX 11. The documents objected to, deeds filed with the county clerk, are indisputable public records. BRANDES MEAT CORP. v. CROMER 146 A.D.2d 666 (1989) says such records are allowable. BRANDES MEAT CORP, v. CROMER 146 A.D.24 666 (1989) The Court of Appeals has also recognized a narrow exception, which allows the consideration, on appeal, of reliable documents, the existence and accuracy of which are not disputed, even for the purposes of modifying or reversing the order under review (see, Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298-299; see also, Zouppas v Yannikidou, 16 A.D.2d 52, 54; Felice v St. Agnes Hosp., 65.A.D.2d 388, 401-402 [Suozzi, J., concurring in part and dissenting in part]). Also, this court may, in general, take judicial notice of matters of public record (see, e.g., Rex Paving Corp. v White, 139 A,D.2d 176, 183, n 2; People ex rel. Glidden v Nemier, 133 A.D.2d 487, 489;Matter of Hartman v Joy, 47 A.D.2d 624; Matter of Sunhill Water Corp. v Water Resources Commn., 32. A.D.2d 1006, 1008; Sease v Central Greyhound Lines, 281 App Div 192, revd on other grounds 306 N.Y. 284). Page #38 Clearly, public records are allowable. ARGUMENTS ABOUT THINGS DEHORS THE RECORD 13. Since the public records are allowable so are arguments relating to them. 14. Glen P, Warmuth says the conspiracy allegation is not relevant to the case. 15. Asa public official (attorney, referee, notary), the presumption in all courts is that they acted within the law and it is my burden to rebut that presumption. 16. Proof of multiple similar illegal acts by the same parties (Attorney/Referee, Notary) over decades goes to the credibility of the Referee, the Notary and of the documents being reviewed (the Referee’s Report of Sale) and clearly makes a strong case for the rebuttal of any presumptions about the Referee or Notary. 17. As such, they are critical to this court’s understanding of the case. THE APPELLANT AFFIDAVIT 18. _Non-Party witness Glenn P. Warmuth would like this court to forget that in addition to the explicit exception to the general rule disallowing things dehors the record delineated by the Court of Appeals, logic dictates that if there is an allegation that the court failed to provide a demanded and un-waived constitutionally protected right that would have made a record of a hearing, an affidavit as to the events of the hearing must be considered by the court. 19. Specifically, the demand for a court reporter described in the affidavit is sworn under penalty of perjury. The Appellant is risking jail if it is untrue. Page #420. As a sworn statement under penalty of perjury, the only offering that can rebut it is a sworn statement under penalty of perjury by another party at the hearing to Confirm the Referee’s Report of Sale. 21. Quite simply, Mr. Warmuth can get a sworn statement under penalty of perjury from prior counsel, Christina Bost Seaton, or the Judge, Donald Scott Kurtz, or the Law Clerk present, Gina Levy Abadi. 22. Then the court can debate who is telling the truth. 23. Again, quite simply, proof the the court denied a court reporter is the affidavit. Unless challenged it must stand, just as in a Notice to Admit or its Common Law precursor, the Affidavit of Truth. And, if challenged, the court must make a determination. GLENN P WARMUTH’S REQUEST FOR MORE TIME 24. Appellant does not believe that an extension is warranted in light of the cases listed regarding things dehors the record and the pretty much rock solid proof of crimes by the Referee Gregory Cerchione and Notary Theresa Caruso. 25. Despite that, Appellant acknowledges that Appellant would not be harmed by an extension and does not oppose the request for more time. It won’t change the underlying facts and the underlying facts are dispositive in the matter before Page #5this court, did the lower court err in approving a Referee’s Report of Sale that is incorrect, facially insufficient and prima facia proof of one of a series of crimes. SOVEREIGN CITIZEN 26. Witness Glen P. Warmuth has sworn under oath casting about terms whose historical use he does not fathom. 27. Sovereign=Supreme Ruler. Citizen=Average Joe. “Sovereign Citizen” says the Averages Joes are the rulers. This was pretty much settled in the late 1700’s. Maybe they don’t teach any underpinnings of the United States at witness Glenn P. Warmuth’s alma mater. Maybe they didn’t teach him that the Judicial branch holds power not by right but revocable privilege that is automatically revoked if the Court does not follow the Constitution and the Amendments and the Statutes and the Regulations and the Local Rules as such a failure strips the court of jurisdiction. 28. Thus, all the term Sovereign Citizen means is a Average Joe standing up for himself, as is his and everyone’s right, such that the Judicial branch acts in accordance with the privilege accorded to it. 29. But let’s see what Glenn P. Warmuth is casting aspersions about. ‘© Appellant argues that the motion for default in the case was done after the case was statutorily abandoned and void (CPLR 3215c/ CPLR 5015a4). Page #6© Appellant argues that absent an assignment of claim, the appearance of non-party Sharon Stern as the only entity purporting to seek a default judgement at a hearing on a motion was without standing and any decision premised on its void (CPLR 5015a3). Appellant argues that the sworn statement by William Sandler to cover up the appearance without standing was perjury and void (CPLR 5015a3). Appellant argues that that a deed dated some 5 days after it is notarized is impossible and illegal under a host of statutes. 30. All of these are under appeal in this court. 31. Not one of these is a challenge to any court, any system or the government which is what Glenn P. Warmuth is trying to convince this court is happening. 32. Shame on Glenn P. Warmuth for attempting to paint these appeals under the nouveau Sovereign Citizen banner instead of its traditional uses. OTHER COURTS 33. Other courts are irrelevant to this Court. 34. That being said, Appellant has documentary evidence that the Second Circuit and the District Court have violated Federal Rule of Evidence 201, Supreme Court rulings that mandate that they explain themselves and have both altered the Docket and removed items from the docket in violation of 18 U.S. Code § 2071 - Concealment, removal, or mutilation generally that has penalties of up to three years in jail. Page #735. It should be noted that in the decision by the Bankruptcy Court that Glenn P. Warmuth provided as an exhibit the Motion to Strike, the judge therein cites, but does not follow, COPPEDGE v. UNITED STATES (1962). Coppedge says an objective analysis must be done for the court to dismiss an in forma pauperis appeal. That is because to fail to do so would remove due process from poor people without providing redress. 36. All fees have been paid in all appeals in state court to date. 37. The Bankruptcy court failed to provide any analysis of the due process violation alleged in the papers. 38. The District Court sanctioned Appellant absent the two things the Second Circuit mandates before any sanctioning, a statement of the authority under which sanctions are to be brought as well as an actual hearing. 39. The Second Circuit made a finding they cannot make without ignoring Sandra Day O’Connor’s opinion in Denton v, Hernandez, 504 U.S. 25 wherein Justice O’Connor made it very clear that to dismiss something as frivolous requires the same thing as in Coppedge, that the court actually state what is the fanciful fact or inarguable legal theory. That was so crystal clear for Justice O’Connor that she did not even cite a law or a case. She cited Lord Byron from Don Juan. Denton v. Hernandez, 504 U.S. 25: As we stated in Neitzke, a court may dismiss a claim as factually frivolous only if the facts alleged are "clearly Page #840. baseless," 490 U. S., at 327, a category encompassing allegations that are "fanciful," id. |., at 325, "fantastic," id., at 328, and "delusional," ibid. As those words suggest, a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age old insight that many allegations might be "strange, but true; for truth is always strange, Stranger than fiction." Lord Byron, Don Juan, canto XIV, stanza 101 (T. Steffan, E. Steffan & W. Pratt eds. 1977). Given these circumstances of which witness Glenn P. Warmuth is well aware as opposing counsel in the federal cases he cites, he, yet again, is in violation of Judicial Law 487. How can he in good faith even pretend to argue to this court that the Federal Court findings have any merit whatsoever? 41. Glenn P. Warmuth should rest assured that before the one great scorer comes to mark against his name, those courts whose ridiculous decisions he cited will rue the day that he brought the issue to a boil in state court. ATTORNEY GREGORY CERCHIONE AND NOTARY THERESA. CARUSO HAVE IRREFUTABLY VIOLATED THEIR OATHS AND COMMITTED MISDEMEANORS Page #942. Gregory Cerchione is an attorney admitted to the New York State Bar in 1986. 43. Gregory Cerchione is bound by his Attorney’s Oath of Office as found in § 1 of Article XIII of the New York State Constitution, as follows: Ido solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of [attorney and counselor-at-law], according to the best of my ability. 44. Gregory Cerchione was appointed referee in NYS Kings County 10035/2008. 45. _ By virtue of his oath and appointment as referee Gregory Cerchione had a contract with all parties to the litigation to directly follow his oaths. 46. Ina deed notarized on 15 January 2015, Gregory Cerchione claimed he had already delivered a deed on 20 January 2015. 47. 20 January 2015 is five days in the future from the 15 January, 2015 dated deed. 48. Time travel is not yet an accepted legal practice, or even possible, as this court should take Judicial Notice of pursuant to CPLR 4511. 49. As time travel is not yet possible or an accepted legal practice, a deed dated five (5) days in the future from its notarization is both impossible and a lie. 50. It should go without saying that attorneys who act as appointed officials of the state are not given sanction to lie, lieing can never be the standard of the best of someone’s ability and lieing to the court cannot be within the bounds of the New York State or United States Constitution. Page #1051. Despite this, Mr. Cerchione has filed an affidavit in the state court wherein he states that he is given sanction do exactly that, lie (EXHIBIT A): “My execution and delivery of a Referee’s Deed in Foreclosure, Dated January 20, 2015 was done in accordance with the powers conferred upon me as a result of such appointment and pursuant to applicable law.” 52. What his affidavit, filed on January 12, 2017 leaves out is the part that the notary, Theresa Caruso, put in another affidavit filed in the state court wherein she admits exactly what Appellant has alleged, that a deed dated the 20th of January was notarized, impossibly, on the 15th of January (EXHIBIT B). “On January 15, 2015, Gregory T. Cerchione, Esq. who I know personally, appeared before me and signed, in my presence, a Referee’s Deed in Foreclosure, dated January 20, 2015. He acknowledged to me that he signed the deed in his capacity as Referee and the signature on the deed is his signature.” 53. There you have it, the notary, his employee at Subin and Associates, knowingly and willingly notarized a deed signed in her presence dated in the future. Game, set and match as notarizing such a deed swearing that something has already occurred in the future is not within the oath of a Notary or the physics of time and space as we know it. 54. The New York Notary Oath of Office is as follows: I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State New York, and that I will faithfully discharge the duties of the office of Notary Public for the State of New York according to the best of my ability. 55. A notary is more than just a signature rubber stamp. It is a solemn responsibility subject to, among a host of other laws, Executive Law 135 and Real Property Law 330. Page #11New York Real Property Law § 330. Officers guilty of malfeasance liable for damages ‘An officer authorized to take the acknowledgment or proof of a conveyance or other instrument, or to certify such proof or acknowledgment, or to record the same, who is guilty of malfeasance or fraudulent practice in the execution of any duty prescribed by law in relation thereto, is liable in damages to the person injured. Executive Law 135-A - Notary public or commissioner of deeds; acting without appointment; fraud in office. 2. A notary public or commissioner of deeds, who in the exercise of the powers, or in the performance of the duties of such office shall practice any fraud or deceit, the punishment for which is not otherwise provided for by this act, shall be guilty of a misdemeanor. 56. A future-dated and notarized deed is not in accordance with the New York Attorney’s Oath of Office sworn to by Gregory Cerchione. 57. _ A future-dated and notarized deed is a misrepresentation to the court subjecting the signer to Judicial Law 487. 58. A future-dated and notarized document is not in accordance with the New York Notary’s Oath of Office sworn to by Theresa Caruso. 59. A future-dated and notarized deed is a fraud in violation of Executive Law 135-A, a misdemeanor, and makes the Notary liable for damages under Real Property Law 330. Page #12AFFIRMATION BY ATTORNEY ABSENT AFFIDAVIT FROM CLIENT 60. This affirmation is in opposition to motion to strike arguments and exhibits from the Appellant Brief and Appendix by witness, non party, and now former counsel and advocate, attorney Glenn P. Warmuth. 61. It seems to be a long ignored unless raised doctrine that any motion supported by only an affirmation of counsel absent an affidavit from a client is either not allowable or precludes that attorney from further advocating for that client as that attorney has now willingly become a witness. 62. Appellant raises the doctrine and asks this court to deny the motion as it is not brought by a party to the case and it is not supported by an affidavit from any party in the case. SUMMARY 63. The deeds sought to be struck are public records and the Court of Appeals has ruled that public records are indisputable and allowable for the first time on appeal. 64. The arguments sought to be struck attack the presumption that court officers Gregory Cerchione and Notary Theresa Caruso follow their oath. 65. The affidavit sought to be struck is the only record of a hearing wherein it is alleged that the court removed Appellant’s Constitutional right to a court reporter, a record upon which to base an appeal. It is ridiculous to even consider striking Page #13sworn dispositive evidence regarding the lack of a hearing without an actual oral argument. 66. Being a Sovereign Citizen is same as saying one is an American Citizen. 67. Federal cases have nothing to do with this case save for the Bankruptcy Court has said that, to my emphatic disagreement, that my recourse lay solely with this state court. 68. Glenn P. Warmuth is not a party to the litigation and Glenn P. Warmuth can not make a motion absent an affidavit from his client, P.B. #7, LLC. 69. Glenn P. Warmuth is now a witness and ANY filings in the future related to 10035/2008 MUST be by other counsel and that counsel must not be his Mother, the only other attorney at Stim and Warmuth, Paula J. Warmuth. 70. The motion to dismiss is not by a party to the case. 71. Appellant does not oppose the request for more time. CONCLUSION For the foregoing reasons Appellant requests that the court deny the parts of instant motion to strike any parts of the Appellant Appendix or of the Appellant Brief. Appellant also does not oppose an extension of time WA Movant to file a brief. Sworn to before me this 5 y PIF 2nd day of February, 2017 ERIC RICHMOND — 2107 Regent Place ‘Va Brooklyn, NY 11226 gowanusx@gmail.com Page #14