NY – Strunk v Paterson – Memorandum in opposition to motions for renewal

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS

CHRISTOPHER EARL STRUNK, Petitioner,

– against – DAVID PATERSON, et al.,

Respondents.

Index No. 29642108
Justice David I. Schmidt

MEMORANDUM OF LAW IN OPPOSITION TO MOTIONS FOR RENEWAL OR REARGUMENT

ERIC T. SCHNEIDERMAN
Attorney General of the State of New York

120 Broadway, 24th Floor New York, New York 10271 (212) 416-8567

JOSHUA PEPPER Assistant Attorney General of Counsel

INTRODUCTION

The Attorney General of the State of New York submits this Memorandum of Law in Opposition to Motions for Renewal or Reargument. This Court dismissed this case on the merits on December 4, 2008. See Exhibit A. Plaintiff now seeks to reopen this case but offers no reason for this Court to do so. Proposed Intervenor William Van Allen also seeks to reopen this case and to intervene as co-plaintiff, but this Court has already denied his motion to intervene, and Van Allen offers no reason to revisit this Court’s denial.

Plaintiff and Van Allen seek three forms of relief with their motions: renewal, reargument, and leave to amend the Complaint. Renewal is inappropriate because Plaintiff and Van Allen present no new facts that would have changed the prior result. This Court cannot grant reargument because Plaintiff and Van Allen identify no legal or factual misapprehension by this Court in denying their motions previously, and their arguments are no more persuasive now than when firs tmade. And this Court should not grant leave to amend because any proposed amendment would be meritless and palpably insuflicient as a matter of law. These motions should be denied.

FACTS AND PROCEDURAL HISTORY

On or about October 30, 2008, Plaintiff filed a petition (bearing Index Number 29641108) and a complaint (bearing Index Number 29642108). Ex. A at 2. Plaintiff alleged that President Barak (sic) Obama is not a “natural born citizen” and is thus ineligible to hold the office of President of the United States. Plaintiffs Affidavit in Support of Notice of Motion To Renew and Reargue Completion of Service Nunc Pro Tunc with New Transactions To Supplement the Complaint (“Pl. Aff.”) 7 34. Plaintiff further alleged that Defendants, all of whom are public officials, were ineligible to serve as presidential electors. Ex. A at 2-3. This Court dismissed both actions on the merits on or about December4, 2008. SeeEx.A. Plaintiff subsequently moved to renew or reargue, and this Court denied Plaintiffs motion on or about March 14,2011. See Exhibit B.

On or about March 22, 2011, Plaintiff filed another complaint making the same allegations. Strunk v. N.Y.S. Bd. of Elections, 2012 WL 1205117, at *4 (N.Y.Sup. Ct. Kings Co. Apr. 11, 2012). Justice Arthur M. Schack dismissed this case on or about April 11, 2012. Id. at *2. In his decision, Justice Schack also imposed sanctions on. plaintiff: Justice Schack enjoined plaintiff from filing any more actions in this Court against any of the defendants in that action, including the Attorney General, the Governor, the Comptroller, and the State Board of Elections. Id. at *19.

On or about November 4, 201 1, Proposed Intervenor William Van Allen moved to intervene in this case. This Court denied Van Allen’s motion on or about November 22,201 1. See Exhibit C.

On or about November 14,2012, Plaintiff filed another case in this Court making the same allegations with respect to the presidential electors for the 2012 election. See Strunk v. Jeffries, Case No. 21948 2012 (Ex. D). This Court dismissed this case on May 9, 2013. Id.

On or about January 24, 2014, this Court issued an order directing all parties to appear on March 28, 2014. As noted, this Court had already dismissed this case five years earlier, but the caption on the Order dismissing both Index Number 29641/08 and Index Number 29642/08 apparently contained the index number for the first case alone.

See Ex. A. This clerical error apparently prevented the clerk of the court from closing this case.

On March 17, 2014, the undersigned counsel received the instant motions from plaintiff and Van Allen. Plaintiff moves to “renew and reargue completion of service nunc pro tunc.” P1. Aff. 7 I. Van Allen moves to renew or reargue his motion to intervene. Petitioner’s Affidavit in Support of Motion To Renew and Reargue Intervention (“Van Allen Aff.”).

ARGUMENT

I. NEITHER PLAINTIFF NOR V AN ALLEN HAS IDENTIFIED ANY BASIS ON WHICH THIS COURT CAN GRANT RENEWAL.

To obtain an order of renewal, a party must demonstrate new facts that could not have been ascertained at the time of the original motion. Schlesinger v. Harleysville Worcester Ins. Co., 41 A.D.3d 692, 693 (2d Dep’t 2007). The new facts must be such that would have changed the prior determination. Cusimano v. Strianese Family Limited P’ship, 97 A.D. 3d 744, 746 (2d Dep’t 2012); Cohen v. Wallace & Miwhenberg, 39 A.D.3d 690 (2d Dep’t 2007). Plaintiff offers no new facts at all. He simply repeats his allegations that President Obarna was not born in the United States.

Plaintiff also argues that the Court may allow completion of service nunc pro tunc. PI. Aff. 7 49. But this Court dismissed Plaintiffs case on the merits, not for lack of proper service. See Ex. A. Thus, the question of service is moot.

Van Allen argues that because of the filing injunction against Plaintiff, Van Allen remains “the only Proposed Intervener [sic] capable of having standing herein.” Van Allen Aff. 78. As this Court recognized in Strunk v.Jeffries, Plaintiff lacks standing to bring this case. See Ex. D. The same applies to Van Allen. Thus, Van Allen’s new fact would not have changed the prior determination, as required for renewal. See Cohen,39 A.D.3d at 690. No basis for renewal exists.

II. PLAINTIFF AND VAN ALLEN OFFER NO BASIS ON WHICH THIS COURT CAN GRANT REARGUMENT.

A motion for reargument is not an appropriate vehicle for raising new questions not previously advanced. Simpson v. Loehmann, 21 N.Y.2d 990 (1968). Rather, the movant must demonstrate that the Court misapprehended the law or the facts in granting the prior motion. Pryor v. Commonwealth Land Title Ins. Co., 17 A.D.3d 434, 435-36 (2d Dep’t 2005); Amato v. Lord & Taylor, Inc., 10 A.D.3d 374, 375 (2d Dep’t 2004).

Neither Plaintiff nor Van Allen has identified any facts or law that this Court misapprehended in its previous orders. Nor does either of them attempt to do so. Thus, they are not entitled to reargument.

III. PLAINTIFF’S REQUEST TO AMEND HIS COMPLAINT SHOULD BE DENIED AS PALPABLY INSUFFICIENT AND MERITLESS.

A court may deny leave to amend a pleading when the proposed amendment is palpably insufficient or patently devoid of merit. Smith-Hoy v. AMC Prop. Evaluations, 52 A.D.3d 809, 811 (2d Dep’t 2008); Probst v. Cacoulidis, 295 A.D.2d 331, 332 (2d Dep’t 2002); Leszczynski v. Kelly & McGlynn, 281 A.D.2d 519, 520 (2d Dep’t 2001).

Although Plaintiff has not actually moved to amend his complaint, Plaintiff argues that his complaint “is insufficient to protect Plaintiffs liberty and rights causing personal injury; and therefore, requires a supplement.” PI. Aff. 7 25. Plaintiffs proposed supplement alleges that ‘”Martial Process’ was implemented by operation of law associated with the March 4, 1933 Franklin Delano Roosevelt assumption to the Office of President.” PI.Aff.,Ex.6,74. Plaintiff further alleges that all courts are now imposing martial law. Id at 77 5, 6. These allegations, besides being completely implausible, do 4 not allege any action by defendants in this case and thus do not state a cause of action against any of them even if true. Thus, Plaintiffs proposed supplement is palpablyinsufficient as a matter of law. Plaintiff may not supplement his complaint.

CONCLUSION

This Court has repeatedly dismissed Plaintiffs continual lawsuits and motions, and Plaintiff just keeps filing additional motions making the same allegations. Plaintiff offers this Court nothing new, and neither does Van Allen. Defendants respectfully request that this Court deny both motions, direct the clerk of the court to close this case, and grant such further relief as the Court may deem just and proper.

Dated: New York, New York March 25,2014

By:

Respectfully submitted,

ERIC T. SCHNEIDERMAN
Attorney General of the State of New York

Assistant Attorney General ‘ 120 Broadway, 24″ floor

New York, NY 10271
tel: 1-212-416-8567
fax: 1-212-416-6075 Joshua.pepper@ag.ny.gov