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CES REVISED Reply Letter For Jurisdiction of US Constitutional Issues For Review by The NYS Court of Appeals
CES REVISED Reply Letter For Jurisdiction of US Constitutional Issues For Review by The NYS Court of Appeals
ws Richard Dearing, Deputy Solicitor General Office of the State of New York Attorney General 120 Broadway 25th Floor New York, New York 10271 Reference: ~ t k n v. ~aterkon al. k Et Strunk v. N S Board of Elections Et al. Y Strunk v. The State of New York (claim pending) Subject: Confirmation of the Two (2)day extension to file the CPLR $5601(b) Jurisdictional Statement for review (2) Dear Deputy Dearing,
A s had been5suggestedas recourse for late filing, Ms. Susan Dautel of the State of New York Court of Appeals, 5 18-455-7701, suggested this method of time extension; and as follow-up to our phone conversation today wherein having requested two additional days for which to file the subject reply and it having been granted - thank you. I am the Respondent, Christopher-Earl: Strunk in esse, self-represented without an attorney, hereby reply to the February 16,2012 response letter of Petitioner H. William Van Allen to the Clerk dated February 10,2012 in the application on Strunk v. Paterson et al. (Kings Cty. Index no: 2008-29642, 2 d Dept A.D. 2012-00766) requesting n submission of a justifying jurisdictional statement for the Court's CPLR 8560 1(b)(2) review of the U.S. Constitutional matter in letter format by February 21, 2012.
LiiZkd9-
The State of New York Court of Appeals Andrew W. Klein, Clerk of the Court Clerk's Office 20 Eagle Street Albany, New York 12207-1095 and Courtesy notice to 20 11-6500 Counsels: [email protected] .gov, [email protected], "Thomas Kirby" <TKirb~eyrein.com>, [email protected], [email protected], [email protected], [email protected],
Christopher-Earl Strunk in esse 593 Vanderbilt Avenue - 281 Brooklyn, New York 11238 Phone- 845-901-6767 Email: [email protected] The State of New York Court of Appeals Andrew W. Klein, Clerk of the Court Clerks Office 20 Eagle Street Albany, New York 12207-1095 Reference: Strunk v. Paterson Et al. Strunk v. NYS Board of Elections Et al. Strunk v. The State of New York (claim pending) Subject: CPLR 5601(b)(2) Jurisdictional Statement for review The Clerk of the Court, I am the Respondent, Christopher-Earl: Strunk in esse, self-represented without an attorney, hereby revise my reply to the February 16, 2012 response letter of Petitioner H. William Van Allen to the Clerk dated February 10, 2012 in the application on Strunk v. Paterson et al. (Kings Cty. Index no: 2008-29642, 2nd Dept A.D. 2012-00766) requesting submission of a justifying jurisdictional statement for the Courts CPLR 5601(b)(2) review of the U.S. Constitutional matter in letter format by February 21, 2012. That Respondent also seeks review of the U.S. Constitution Article 2 Section 1 paragraph 5 ( 1 ) eligibility natural-born Citizen clause as applies to the subject challenged ongoing assertions by the New York State Board of Elections (NYS BOE) in its instructions to person(s) Running for Office at its website as to Citizenship having chosen to use its own phrase Born a Citizen instead of the term of art natural-born Citizen (NBC) through application made herein separately and with an active Notice of Motion for Leave to Appeal as of Right to the Court of Appeals from the New York State Supreme Court for the County of Kings I.A.S Part 27 Index no: 2011-6500 with a return date of February 24, 2012 now as of February 17, 2012 outrageously adjourned sua sponte until April 23, 2012 by Justice Arthur M. Schack in a move to force the primary elections challenge into mootness as done with the transfer/ consolidation and other motions. That were this court to clarify the NBC holdings from the State of New York holding alone the case below would be resolved. That I agree that the NBC idiom as selected by the Framers of the U.S. Constitution is done to conform with the concerns of the People of New York who are intent to safeguard sovereignty to reflect history and practice of the Law of Nations ( 2 ) since the 26 July 1778 ratification of the U.S. Constitution by the representatives assembled for the People of the State of New York ( 3 ); and that as defined by the Legislature by statute example in the Real
1
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
2 3
Emer de Vattel, The Law of Nations, (London 1797) (1st ed. Neuchatel 1758)
http://avalon.law.yale.edu/18th_century/ratny.asp "That no Persons except natural born Citizens, or such as were Citizens on or before the fourth day of July one thousand seven hundred and seventy six, or such as held Commissions under the United States during the War, and have at any time since the fourth day of July
Property Law Article 2 Section 18 ( 4 ),and as relates to matters of inheritance that have since been upheld by the venerable State of New York Court of Appeals in its own most stringent precedents that also conform with precedents of the Supreme Court of the United States (SCOTUS) before and after the addition of the 14th amendment that did not amend the NBC idiom or warrant any other assertion by the NYS BOE than natural-born Citizen. Respondent has ascertained that there is no New York state statutory provision warranting NYS BOE to use Born a Citizen per se rather than NBC, and that there is no public record of deliberations for such invention; and therefore, is strictly a U.S. Constitutional Article 2 Section 1 Paragraph 5 NBC eligibility issue the NYS BOE must conform to in compliance with the body of common law of this Court ( 5 ), and in accordance with SCOTUS precedents ( 6 ) are contrary to Born a Citizen idiom use.
one thousand seven hundred and seventy six become Citizens of one or other of the United States, and who shall be Freeholders, shall be eligible to the Places of President, Vice President, or Members of either House of the Congress of the United States. " (emphasis added)
4
NYS RPL 18. Mines in Saint Lawrence county. The proprietors of any mines or veins of lead or copper in the county of Saint Lawrence, may demise, lease, or rent the same for a period not to exceed twenty-one years from the date of any such lease, to any foreign individual or company, and such lessee may take, hold, work, use or convey the same during the said term, in the same manner and subject to the same liabilities as if such lessee were a natural born citizen.
New York Miscellaneous Reports PEOPLE v. QUIROGA-PUMA, 18 Misc.3d 731 (2007) No. LX6701631. MATTER OF BROWN, 132 Misc.2d 811 (1986) July 7, 1986 . AGOSTINI v. DE ANTUENO, 199 Misc. 191 (1950) February 20, 1950. PEOPLE EX REL. CHOOLOKIAN v. MISSION OF IMMAC. VIRGIN, 192 Misc. 454 (1947) December 30, 1947.
5
New York Appellate Division Reports WILLIAMS v. VILLAGE OF PORT CHESTER, 97 App. Div. 84 (1904) July, 1904 New York Court of Appeals Reports MUNRO v. MERCHANT, 28 N.Y. 9 (1863) September Term, 1863 LUDLAM v. LUDLAM, 26 N.Y. 356 (1863) March Term, 1863. WADSWORTH v. WADSWORTH, 12 N.Y. 376 (1855) March Term, 1855 McCARTHY v. MARSH, 5 N.Y. 263 (1851) September Term, 1851 HOYT v. THOMPSON, 5 N.Y. 320 (1851) September Term, 1851 Lynch v. Clarke, 1 Sand.Ch. 583, 659-663 (N.Y. 1844)
6
Minor. v. Happersett: 88 U.S. 162 (1875), 21 Wall. 162, and 22 L. Ed. 627
Cases citing Minor: Boyd. v. Nebraska, 143 U.S. 135 (1892); Rogers v. Bellei, 401 U.S. 815 (1971); City of Mobile v. Bolden, 446 U.S 55 (1980); Baldwin v. Fish & Game Commm of Montana, 436 U.S 371 (1978) ; Breedlove v. Suttles, 302 U.S. 277 (1937); US v. CLASSIC, 313 U.S. 299 (1941); Colgate v. Harvey, 296 U.S. 404 (1935); Coyle v. Smith, 221 U.S. 559 (1911); Hague v. Committee For Industrial Organization, 307 U.S. 496 (1939); Hamilton v. Regents, 293 U.S. 245 (1934); Harris v. Mcrae, 448 U.S. 297 (1980); Kansas v. Colorado, 206 U.S 47 (1907); Kepner v. U.S., 195 U.S. 100 (1904); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969); Lynch v. Overholser, 369 U.S. 705 (1962); N.Y. Ex Rel. Bryant v. Zimmerman, 278 U.S. 63 (1928); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982); Rogers v. Bellei, 401 U.S. 816 (1971); Schick v. U.S., 195 U.S. 65 (1904); Snowden v. Hughes, 321 U.S. 1 (1944); South Carolina v. US, 199 U.S. 437 (1905); In Re Summers, 325 U.S. 561 (1945); U.S. v. Wong Kim Ark,169 U.S. 649 (1898); Williams v. Rhodes, 393 U.S. 23 (1968) Ex Parte Lockwood, 154 U.S. 116 (1894), that is essentially the holy grail of support for Minor v. Happersett, as it states:In Minor v. Happersett, 21 Wall. 162, this court held that the word citizen is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since and also the City of Mobile v. Bolden, 446 U.S. 55 (1980) Elk v. Wilkins, 112 U.S. 94 (1884)
That Respondent contends that the actions of both N S BOE Commissioners and Y Chairmen are contrary to the law of the land notwithstanding whether or not Petitioner is an Independence Party minor state party member, or that Plaintiff / Respondent is a Republican. The entire party structure in this state is rotten to the core beyond the control of the Major State Party members by design of law that is an asset of a special interest racketeering enterprise to be dealt with elsewhere, and that the cabal's arbitrary and capricious actions to control the election process goes way beyond the pale of any bipartisan aggrandizement in my direct experience since 1968; and that Respondent as well as Petitioner suffer a particularized individual injury with ongoing irreparable harm as a person singled out for treatment separate and apart from major party members whose allegiance benefits a sizeable enterprise outside of New York. That Respondent also seeks a finding by the State of New York Court of Appeals strictly on the U.S.Constitutional NBC eligibility Issue that has no state statutory provision ' guidance, but is a matter of ultra vires .arbitrary and capricious discretion facilitated in a wide ranging conspiracy to use 'Born a Citizen" versus "natural born Citizen". Respondent as with Petitioner wishes a schedule for submission of briefs at the Court's earliest convenience as the ongoing injury with irreparable harm is of the utmost importance as time is of the essence with the 2012 election cycle and with Respondent's own intent to file with the Court of Claims pending on a time deadline.
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Dated: Brooklyn New York February 19,2012 Christopher-Earl: Strunk in esse self-represented w/o an attorney Attached - Index No: 20 11-6500 motion calendar Cc: H. ~ i l l i &Van Allen in esse, State of New York Solicitor General, and Courtesy notice to 201 1-6500 Counsels: [email protected], [email protected], "Thomas Kirby" [email protected]&>, walbe~arrisbeach.com, [email protected], [email protected], [email protected], iwehne~apdale.com, kco~bet~&risbeach.com, cklate~bskl.com, dreich~ii)~.bskl.com, tbromberg@deyrein. com, jbaran&vileyrein.com, [email protected],t~hilli~~.cavdale.com
I w l i s v. Suitots' Snua Hr &, 28 U.S.9 9 , 3 Pet. 99,7 L.Ed. 617 (1830)therein C.J. John Marshal on how New York law and British common law apply before and after 1776 Independence affects the right to take land in controversy by decent in New York:
M a r b u m v. Madfmn, 5 U.8. (1Cranchl 137'(1803) Therein Justice Marshal stated "Noprovision o the f Constitution may render any other provision meariingless."
The V e n u ~ U.S.(8 Cranch) 253,289 (1814) 12 Stowr Et aL v. Brown. s e c m t a w Of &ate af C a E l f o m k Et At. 415 U.8.724 (1974)
L
U S Term Limits. Inc. v. Thornton, 514 U S 779 (1995)(states have no authority to change, add, or .. .. diminish the eligibility requirements for members of Congress)
February 10,2012
Mr. H. William Van Allen 35 1 North Road Hurley, New York 12443
Re: Strunk v Paterson Dear Mr. Van Allen: The Court has received your preliminary appeal statement and will examine its subject matter jurisdiction with respect to whether you have siinultaneously appealed to the Appellate Division and the Court of Appeals from the Supreme Court order (see Parker v Rogerson, 35 NY2d 75 1, 753-754), the order appealed from finally determines the action within the meaning of the Constitution, and any basis exists for a direct appeal pursuant to CPLR 5601(b)(2). This examination of jurisdiction shall not preclude the Court from addressing any jurisdictional concerns in the future. You should file within ten days after this letter's date your comments in letter format justifying the retention of subject matter jurisdiction, By copy of this letter, your adversary is likewise afforded the opportunity to comment in letter format on the Court's subiect matter jurisdiction within the same ten-day period after this letter's date. All letters shall be filed with proof of service of one copy of the letter on each party. The times within which briefs on the merits must be filed are held in abeyance during the pendency of this jurisdictional inquiry. If this inquiry is terminated by the Court, the Clerk will notify counsel in writing and set a schedule for the perfecting of the appeal. This communication is without prejudice to any motion any party may wish to make.
If you have any questions regarding this letter, you may contact either Susan Dautel (5 18-455-7701) or James Costello (5 18-455-7702).
The State of New York Court of Appeals Andrew W. Klein, Clerk of the Court Clerk's Office 20 Eagle Street Albany, New York 12207- 1095 Reference: Strunk v. Paterson Subject: CPLR 5 560 1(b) Jurisdictional Statement for review (2)
example in the Real Property Law Article 2 Section 18 (41,andas relates to matters of inheritance that have since been upheld by the venerable State of New York Court of Appeals in its own most stringent precedents that also conform with precedents of the Supreme Court of the United States (SCOTUS)before and after the addition of the 1 4 t h amendment that did not amend the NBC idiom or warrant any other assertion by the NYS BOE than "natural-born Citizen". There is no state statutory provision warranting NYS BOE to .use "Born a Citizen" per se rather than NBC; and therefore, is strictly a U.S. Constitutional Article 2 Section 1 Paragraph 5 NBC eligibility issue that the NYS BOE must conform to, in compliance with the body of common law of this Court ( 5 ) , and in accordance with SCOTUS precedents (6)that are contrary to "Born a Citizen" idiom use.
4 N S RPL 5 18. Mines in Saint Lawrence county. The proprietors of any mines or veins of Y lead or copper in the county of Saint Lawrence, may demise, lease, or rent the same for a period not to exceed twenty-one years from the date of any such lease, to any foreign individual or company, and such lessee may take, hold, work, use or convey the same during the said term, in the same manner and subject to the same liabilities a s if such lessee were a natural born citizen. 5
PEOPLE v. OUIROGA-PUMA, 18 Misc.3d 73 1 (2007) No. LX670 1631. MATTER OF BROWN, 132 Misc.2d 8 11 (19861July 7, 1986 . AGOSTINI v. DE ANTUENO, 199 Misc. 191 ( 1950) February 20, 1950. PEOPLE EX REL. CHOOLOKIAN v. MISSION OF IMMAC. VIRGIN, 192 Misc. 454 (19471 December 30, 1947. New York Appellate Division Reports WILLIAMS v. VILLAGE OF PORT CHESTER, 97 App. Div. 84 (l904_1 July, 1904 New York Court of Appeals Reports MUNRO v. MERICHANT,28 N.Y. 9 (18631September Term, 1863 LUDLAM v. LUDLAM, 26 N.Y. 356 (1863) March Term, 1863........................................... WADSWORTH v. WADSWORTH, 12 N.Y. 376 (1855) March Term, 1855 McCARTHY v. MARSH, 5 N.Y. 263 (1851) September Term, 1851 HOYT v. THOMPSON, 5 N.Y. 320 11851) September Term, 1851 Lynch v. Clarke, 1 Sand.Ch. 583, 659-663 (N.Y. 1844)
6
Cases citing Minor: Boyd. v. Nebraska, 143 U.S. 135 (1892);Rogers v. Bellei, 40 1 U.S. 815 (1971); City of Mobile v. Bolden, 446 U.S 55 (1980);Baldwin v. Fish & Game Comm7mof Montana, 436 U.S 371 (1978) ; Breedlove v. Suttles, 302 U.S. 277 (1937); US v. CLASSIC, 313 U.S. 299 (1941); Colgate v. Harvey, 296 U.S. 404 (1935); Coyle v. Smith, 221 U.S. 559 (1911); Hague v. Committee For Industrial Organization, 307 U.S. 496 (1939);Hamilton v. Regents, 293 U.S. 245 (1934);Harris v. Mcrae, 448 U.S. 297 (1980); Kansas v. Colorado, 206 U.S 47 (1907);Kepner v. U.S., 195 U.S. 100 (1904);Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969); Lynch v. Overholser, 369 U.S. 705 (1962); N.Y. Ex Rel. Bryant v. Zimmerman, 278 U.S. 63 (1928);Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982);Rogers v. Bellei, 40 1 U.S. 816 (1971);Schick v. U.S., 195 U.S. 65 (1904);Snowdenv. Hughes, 321 U.S. 1 (1944);South Petitioner Letter of Jurisdiction Justification Page 2 of 3
That Petitioner a s an Independence Party minor state party member, unlike Plaintiff / Respondent a Republican, is not a member of the Major State Parties that have arbitrarily and capriciously controlled the election process for bi-partisan aggrandizement for a s long a s I have memory, and as such Petitioner suffers a particularized injury with ongoing irreparable harm a s a person singled out for treatment separate and apart from major party members who by their membership would benefit from the bi-partisan aggrandizement. That Petitioner merely seeks a finding by the State of New York Court of Appeals strictly on the U.S. Constitutional NBC eligibility Issue that has no state statutory provision guidance, but is a matter of ultra vires arbitrary and capricious discretion facilitated for bi-partisan aggrandizement with use of "Born a Citizen" versus "natural born Citizen". Petitioner wishes a schedule for submission of briefs at the Court's earliest convenience as the ongoing injury with irreparable harrn is of the utmost importance a s time is of the essence with the 2012 election cycle and with Petitioner's own intent to file with the Court of Claims pending on a time deadline. Respectfully submitted by,
Dated: Hurley Ne F e b r u a r y ~2 ~ ~ l
/fl.
William Van Allen in esse Self-represented w/o an attorney 35 1 North Road Hurley, New York 12443 Phone: 845-894-4366 [email protected]
Cc: Christopher Earl Strunk in esse, State of New York Solicitor General
Carolina v. US, 199 U.S. 437 (1905);In Re Summers, 325 U.S. 561 (1945);U.S. v. Wong Kim Ark,169 U.S. 649 (1898);Williams v. Rhodes, 393 U.S. 23 (1968)
Ex Parte Lockwood, 154 U S 116 (1894), .. that is essentially the holy grail of support for Minor v. Happersett, a s it states: "InMinor v. Happersett, 21 Wall. 162, this court held that the word 'citizen' is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since.. ." (Emphasis added) and also the City of Mobile v. Bolden, 446 U.S. 55 (1980)
Elk v. WiZkins, 1 1 2 U.S. 94 (1884)
I n g l i s v. Sailors' S n u g Harbor, 28 U . S . 99, 3 Pet. 99, 7 L.Ed. 617 (1830) therein C.J. John
Marshal on how New York law and British common law apply before and after 1776 Independence affects the right to take land in controversy by decent in New York:
http://us.mg5.mail.yahoo.com/neo/launch?.rand=7ftpjv6f8qgsg
Case Name: STRUNK CHRISTOPHER-EARL vs. NYS BOARD OF ELECTIONS Index Number: 006500/2011 04/23/2012 Motion Bill Van Allen ([email protected]) [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Friday, February 17, 2012 7:54 PM
Cc:
Date:
Attorney/Firm For Plaintiff: CHRISTOPHER-EARL - Prose Attorney/Firm For Defendant: CAPLIN & DRYSDALE,CHARTERED ONE THOMAS CIRCLE, NW WASHINGTON, DC 20005 202-862-5000 Attorney Type: Attorney Of Record Atty. Status: Active Attorney Type: Pro se Atty. Status: Active
Appearance Information:
Appearance Time On For Appearance Justice / Comments Motion
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http://us.mg5.mail.yahoo.com/neo/launch?.rand=7ftpjv6f8qgsg
Date
04/23/2012 M otion
Outcome
Part
ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) INTAKE PART
Seq
015
04/11/2012
Supreme Trial
02/24/2012
M otion
Adjourned
ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) INTAKE PART ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) INTAKE PART ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) INTAKE PART ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) M OTION TRIAL TERM 27 ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) INTAKE PART ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART PT. 27 JUDGE DECLINED TO SIGN OSC
015
01/11/2012
Supreme Trial
Adjourned
10/26/2011
M otion
014
10/24/2011
Supreme Trial
Adjourned
08/22/2011
M otion
Decision Reserved
001
08/22/2011
M otion
Decision Reserved
002
08/22/2011
M otion
Decision Reserved
007
08/22/2011
M otion
Decision Reserved
006
08/22/2011
M otion
Decision Reserved
005
08/22/2011
M otion
Decision Reserved
004
08/22/2011
M otion
Decision Reserved
003
08/22/2011
M otion
Decision Reserved
011
08/22/2011
M otion
Decision Reserved
010
08/22/2011
M otion
Decision Reserved
008
08/22/2011
M otion
Decision Reserved
012
08/22/2011
M otion
Decision Reserved
009
08/22/2011
M otion
Decision Reserved
013
08/15/2011
Supreme Trial
Adjourned
08/15/2011
M otion
Adjourned
005
08/15/2011
M otion
Adjourned
012
08/01/2011
M otion
Adjourned
003
08/01/2011
M otion
Adjourned
004
08/01/2011
M otion
Adjourned
001
08/01/2011
M otion
Adjourned
007
08/01/2011
M otion
Adjourned
006
08/01/2011
M otion
Adjourned
002
08/01/2011
M otion
Adjourned
008
08/01/2011
M otion
Adjourned
009
08/01/2011
M otion
Adjourned
010
08/01/2011
M otion
Adjourned
011
06/17/2011
Adjourned
06/17/2011
M otion
Adjourned
005
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2/17/2012 9:32 PM
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06/06/2011
M otion
Adjourned
ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) M OTION PART ARTHUR M . SCHACK (PT. 27) M OTION PART ARTHUR M . SCHACK (PT. 27) SUBSEQUENT M OTION PART ARTHUR M . SCHACK (PT. 27) M OTION PART
007
06/03/2011
M otion
Adjourned
004
06/03/2011
M otion
Adjourned
003
06/02/2011
M otion
Adjourned
001
06/02/2011
M otion
Adjourned
006
06/02/2011
M otion
Adjourned
Date Filed
02/09/2012
Filed By
PLAINT
Relief Sought
Stay Proceedings
Submit Date
Answer Demanded
No
Status
Open: Before Justice: SCHACK
Decision
014
10/26/2011
PLAINT
Preliminary Injunction
No
Decided: 26-OCT-11 DECLINED TO SIGN APPLICATION Before Justice: SCHACK Open: Before Justice: SCHACK
M emo
013
08/17/2011
DEF
Dismissal
Yes
012
07/25/2011
DEF
Dismissal
Yes
011
07/12/2011
DEF
Dismissal
No
010
07/12/2011
DEF
Dismissal
Yes
009
06/30/2011
DEF
Dismissal
Yes
008
06/30/2011
DEF
Dismissal
No
007
05/24/2011
DEF
Dismissal
Yes
006
05/23/2011
PLAINT
Consolidation
No
005
05/19/2011
DEF
Dismissal
Yes
004
05/17/2011
DEF
Dismissal
No
003
05/10/2011
DEF
Dismissal
No
002
05/05/2011
DEF
Other Reliefs
No
001
05/04/2011
DEF
Dismissal
No
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2/17/2012 9:32 PM
February 16,2012 The Honorable Andrew W. Klein Clerk of the Court New York Court of Appeals 20 Eagle Street Albany, NY 12207-1095
Re:
I write in response to your letter of February 10, 2012, inviting the parties to address the question of the Court's subject-matter jurisdiction. As I will explain, the Court lacks jurisdiction over this improperly taken appeal.
As your letter suggested, Mr. Van Allen is simultaneously pursuing appeals i n this Court and the Appellate Division, Second Department, which deprives this Court of jurisdiction. See Parker v. Rogerson, 35 N.Y.2d 751,753-54 (1974). Mr. Van Allen noticed a n appeal to the Appellate Division on December 3, 2011. On January 26, 2012, the Appellate Division notified the parties that it had opened a file and assigned a docket number to the appeal. Just two ways later, however, on January 28, Mr. Van Allen noticed a n appeal to this Court, without withdrawing his appeal to the Appellate Division. He served an amended notice of appeal to this Court on February 14, 2012, that did not correct this defect. Further, there would be no basis for a n appeal as of right. Under C.P.L.R 5601@)(2), such an appeal is available only from an order of the trial court that "finally determines a n action" presenting the constitutionality of a statute. The order a t issue here, however, denied Mr. Van Allen's motion to intervene in a n ongoing litigation, and therefore did not finally determine the action, which remains pending in the trial court.
PHONE (212)416-8020
llttp://ag.ny.go.o\-
Page 2
For these reasons, the motion for leave to appeal should be denied and the appeal dismissed for lack of jurisdiction.
Respectfully yours,