Opinion
No. 6500/11.
2012-04-11
Christopher EARL–STRUNK, in esse, Plaintiff, v. NEW YORK STATE BOARD OF ELECTIONS; James A. Walsh/Co–Chair, Douglas A. Kellner/Co–Chair, Evelyn J. Aquila/Commissioner, Gregory P. Peterson/Commissioner, Deputy Director Todd D. Valentine, Deputy Director Stanly Zalen; Andrew Cuomo, Eric Schneiderman, Thomas P. Dinapoli, Ruth Noemi Colon, In their Official and Individual Capacity, Fr. Joseph A. O'Hare, S.J.; Fr. Joseph P. Parkes, S.J.; Frederick A.O. Schwarz, Jr.; Peter G. Petersen; Zbigniew Kaimierz Brzezinski; Mark Brzezinski; Joseph R. Biden, Jr.; Soebarkah (a.k.a barry Soetoro, a.k.a. Barack Hussein Obama, a.k.a Steve Dunham); Nancy Pelosi; Democratic State Committee of the State of New York; State Committee Of The Working Families Party of New York State; Roger Calero; The Socialist Workers Party; Ian J. Brzezinski; John Sidney McCain III; John A. Boehner; The New York State Republican State Committee; The New York State Committee of the Independence Party; State Committee of the Conservative Party of New York State; Penny S. Pritzker; George Soros; Obama for America; Obama Victory Fund; McCain Victory 2008; McCain–Palin Victory 2008; John and Jane Does; and XYZ Entities., Defendants.
Christopher Earl–Strunk, Brooklyn, plaintiff pro se. Joel Graber, Esq., State of NY, Office of Attorney General, New York City, for all NYS Government Defendants.
Christopher Earl–Strunk, Brooklyn, plaintiff pro se. Joel Graber, Esq., State of NY, Office of Attorney General, New York City, for all NYS Government Defendants.
Chlarens Orsland, Esq. NYC Law Department New York City, for Defendants FAO Schwarz and O'Hare.
Sarah Dunn, Esq., Simpson Thacher & Bartlett, LLP, New York City, for Peter Peterson.
Marshall Beil, Esq., McGuire Woods, LLP, New York City, for the Brzezinskis.
Thomas J. Garry, Esq., Harris Beach, PLLC, Uniondale, for President Obama, VP Biden Obama for America Obama Victory Fund, Nancy Pelosi and Penny Pritzker.
Daniel S. Reich, Esq., Rabinowitz, Boudin, Standard, Krinsky & Lieberman, PC, New York City, for the Socialist Workers and Roger Calero.
Rita C. Tobin, Esq., Caplin and Drysdale, New York City, for John McCain III.
Thomas W. Kirby, Esq., Wiley Rein, LLP, Washington DC, Atty for John A. Bohner.
John R. Oller, Esq., Wilkie Farr & Gallagher, LLP, New York City, Atty for George Soros.
ARTHUR M. SCHACK, J.
The following papers numbered 1 to 25 read on this motion:Papers Numbered:
Notice of Motion and Notice of Cross–Motion and and Affidavits (Affirmations) 1–13
Opposing Affidavits (Affirmations) 14–21
Reply Affidavits (Affirmations) 22–25
_________________________
If the complaint in this action was a movie script, it would be entitled The Manchurian Candidate Meets The Da Vinci Code. Pro se plaintiff CHRISTOPHEREARL STRUNK brings this action against numerous defendants, including President BARACK OBAMA, Vice President JOSEPH BIDEN, Senator JOHN McCAIN, Speaker of the House of Representatives JOHN BOEHNER, former House of Representatives Speaker NANCY PELOSI, Governor ANDREW CUOMO, Attorney General ERIC SCHNEIDERMAN, Comptroller THOMAS DI NAPOLI, the NEW YORK STATE BOARD OF ELECTIONS, billionaires PETER PETERSEN, PENNY PRITZKER, GEORGE SOROS and six New York State political parties. Thirteen motions are pending before the Court.
Plaintiff STRUNK's complaint is a rambling, forty-five page variation on “birther” cases, containing 150 prolix paragraphs, in at times a stream of consciousness. Plaintiff's central allegation is that defendants President OBAMA and Senator McCAIN, despite not being “natural born” citizens of the United States according to plaintiff's interpretation of Article II, Section 1, Clause 5 of the U.S. Constitution, engaged with the assistance of other defendants in an extensive conspiracy, on behalf of the Roman Catholic Church to defraud the American people and usurp control of the Presidency in 2008. Most of plaintiff STRUNK's complaint is a lengthy, vitriolic, baseless diatribe against defendants, but most especially against the Vatican, the Roman Catholic Church, and particularly the Society of Jesus (the Jesuit Order).
Plaintiff STRUNK alleges seven causes of action: breach of state constitutional fiduciary duty by the NEW YORK STATE BOARD OF ELECTIONS and public officer defendants; denial of equal protection for voter expectation of a correct ballot; denial of substantive due process for voter expectation of a correct ballot; interference with the right to a republican form of government by the two Jesuit defendants and defendant F.A.O. SCHWARZ, JR., who were all members of the New York City Campaign Finance Board; interference with plaintiff's election franchise; a scheme to defraud plaintiff of a reasonable expectation of successful participation in the suffrage process; and, a scheme by all defendants for unjust enrichment.
Plaintiff requests a declaratory judgment and a preliminary injunction against defendants, including: enjoining the NEW YORK STATE BOARD OF ELECTIONS from putting Presidential candidates on the ballot for 2012 unless they provide proof of eligibility, pursuant to Article II, Section 1, Clause 5 of the U.S. Constitution; ordering that this eligibility certification be submitted to the Court for proof of compliance; enjoining the Jesuits from interfering with the 2012 elections; ordering expedited discovery to determine the scope of damages, alleged to be more than $12 billion; and, ordering a jury trial for punitive treble damages.
Various defendants or groups of defendants, all represented by counsel, present eleven motions to dismiss and one motion to admit an attorney pro hace vice for this action. The eleven individual defendants or groups of defendants are, in chronological order of filing their motions to dismiss: defendants President BARACK OBAMA, Vice President JOSEPH BIDEN, OBAMA FOR AMERICA and the OBAMA VICTORY FUND; defendants McCAIN VICTORY 2008, McCAIN–PALIN VICTORY 2008 and Senator JOHN McCAIN; defendants MARK BRZEZINSKI and IAN BRZEZINSKI; defendant Representative NANCY PELOSI; defendant GEORGE SOROS; defendants THE SOCIALIST WORKERS PARTY and ROGER CALERO; defendant Speaker JOHN BOEHNER; defendant ZBIGNIEW BRZEZINSKI; defendants Father JOSEPH A. O'HARE, S.J., Father JOSEPH P. PARKES, S.J. and FREDERICK A.O. SCHWARZ, JR.; defendant PENNY PRITZKER; and defendant PETER G. PETERSEN. The eleven motions to dismiss assert: plaintiff STRUNK lacks standing; plaintiff STRUNK fails to state a claim upon which relief can be granted; plaintiff STRUNK fails to plead fraud with particularity; the action is frivolous; plaintiff STRUNK is barred by collateral estoppel from pursuing this action; and, the Court lacks both personal and subject matter jurisdiction in this action.
The motion to admit counsel pro hace vice for the instant action, by counsel for defendants McCAIN VICTORY 2008, McCAIN–PALIN VICTORY 2008 and Senator JOHN McCAIN, for Todd E. Phillips, Esq., a member in good standing of both the California and District of Columbia bars, is granted.
Further, plaintiff STRUNK cross-moves to consolidate the instant action with a similar “birther” action filed by him, Strunk v. Paterson, et al, Index No. 29642/08, in the Kings County Special Election Part, before Justice David Schmidt. Many of the defendants oppose consolidation because Strunk v. Paterson, et al, Index No. 29642/08, is a disposed case.
The cross-motion to consolidate this action with Strunk v. Paterson, et al, Index No. 29642/08, is denied. Defendants who oppose plaintiff's cross-motion are correct. Justice Schmidt disposed of Strunk v. Paterson, et al, Index No. 29642/08, on the grounds of collateral estoppel, failure to join necessary parties and laches.
The eleven motions to dismiss are all granted and plaintiff STRUNK's instant complaint is dismissed with prejudice. It is clear that plaintiff STRUNK: lacks standing; fails to state a claim upon which relief can be granted; fails to plead fraud with particularity; and, is barred by collateral estoppel. Also, this Court lacks subject matter jurisdiction and personal jurisdiction over most, if not all, defendants.
Furthermore, plaintiff STRUNK's instant action is frivolous. As will be explained, plaintiff STRUNK alleges baseless claims about defendants which are fanciful, fantastic, delusional and irrational. It is a waste of judicial resources for the Court to spend time on the instant action. Moreover, the Court will conduct a hearing to give plaintiff STRUNK a reasonable opportunity to be heard, pursuant to 22 NYCRR § 130–1.1, as to whether or not the Court should award costs and/or impose sanctions upon plaintiff STRUNK for his frivolous conduct. At the hearing, an opportunity will be given to counsel for defendants to present detailed records of costs incurred by their clients in the instant action.
Therefore, plaintiff STRUNK, who is not a stranger in the courthouses of New York, is enjoined from commencing future litigation in the New York State Unified Court System against: the NEW YORK STATE BOARD OF ELECTIONS, JAMES A. WALSH/ Co–Chair, DOUGLAS A. KELLNER/Co–Chair, EVELYN J. AQUILA/
Commissioner, GREGORY P. PETERSON/Commissioner, Deputy Director TODD D. VALENTINE, and Deputy Director STANLY ZALEN; ANDREW CUOMO, ERIC
SCHNEIDERMAN, THOMAS P. DINAPOLI and RUTH NOEMI COLON, in their Official and individual capacity; Father JOSEPH A. O'HARE, S.J.; Father JOSEPH P. PARKES, S.J.; FREDERICK A.O. SCHWARZ, JR.; PETER G. PETERSEN; ZBIGNIEW KAIMIERZ BRZEZINSKI; MARK BRZEZINSKI; JOSEPH R. BIDEN, JR.; BARACK H. OBAMA, NANCY PELOSI; the DEOMCRATIC STATE COMMITTEE OF THE STATE OF NEW YORK; the STATE COMMITTEE OF THE WORKING FAMILIES PARTY OF NEW YORK STATE; ROGER CALERO; the SOCIALIST WORKERS PARTY; IAN J. BRZEZINSKI; JOHN SIDNEY McCAIN III; JOHN A. BOEHNER; the NEW YORK STATE REPUBLICAN STATE COMMITTEE; the NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY; the STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE; PENNY S. PRITZKER; GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; McCAIN VICTORY 2008; and McCAIN–PALIN VICTORY 2008; without prior approval of the appropriate Administrative Justice or Judge.
Background
Plaintiff STRUNK previously commenced similar actions in the United States District Court for the Eastern District of New York and this Court, the Supreme Court of the State of New York, Kings County. In Strunk v. New York State Board of Elections, et al., Index No. 08–CV4289 (U.S. Dist Ct, EDNY, Oct. 28, 2008, Ross, J.), the Court dismissed the action because of plaintiff's lack of standing, failure to state a claim and frivolousness. In that action, plaintiff STRUNK accused the NEW YORK STATE BOARD OF ELECTIONS of “misapplication and misadministration of state law in preparation for the November 4, 2008 Presidential General Election” by, among other things, in ¶ 51 of the complaint, of “failure to obtain and ascertain that Barrack Hussein Obama is a natural citizen, otherwise contrary to United States Constitution Article 2 Second 1 Clause 5[sic]” and demanded “Defendants are to provide proof that Barrack Hussein Obama is a natural born citizen and if not his electors are to be stricken from the ballot [sic].” Judge Ross, at page 6 of her decision, held “the court finds that portions of plaintiff's affidavit rise to the level of the irrational” and, in footnote 6, Judge Ross cited two prior 2008 Eastern District cases filed by plaintiff STRUNK in which “the court has determined that portions of plaintiff's complaints have contained allegations that have risen to the irrational.”
My Kings County Supreme Court colleague, Justice Schmidt, in Strunk v. Paterson, et al, Index No. 29642/08, as cited above, disposed of that matter, on March 14, 2011, by denying all of plaintiff's motions and noting that the statute of limitations expired to join necessary parties President OBAMA and Senator McCAIN. Further, Justice Schmidt denied plaintiff an opportunity to file affidavits of service nunc pro tunc and to amend the complaint.
Then, plaintiff STRUNK, eight days later, on March 22, 2011, commenced the instant action by filing the instant verified complaint. Plaintiff STRUNK's complaint recites numerous baseless allegations about President OBAMA. These allegations are familiar to anyone who follows the “birther” movement: President OBAMA is not a “natural-born” citizen of the United States; the President is a radical Muslim; the President's Hawaiian Certificate of Live Birth does not prove that he was born in Hawaii; and, President OBAMA is actually a citizen of Indonesia, the United Kingdom, Kenya, or all of the above. For example, Plaintiff STRUNK alleges, in ¶ 24 of the complaint, that President OBAMA:
is a Madrasah trained radical Sunni Muslim by birth right ... practices Shariah law ... with the full knowledge and blessing of Defendants: Peter G. Peterson; Zbigniew Brzezinski; his sons Mark and Ian; Penny S. Pritzker; George Soros; Jesuits Fathers: Joseph P. O'Hare, Joseph P. Parkes; Brennan Center Executive Frederick A.O. Schwarz, Jr.; Nancy Pelosi, John Sidney McCain III; John A. Boehner; Hillary Clinton; Richard Durbin and others. [sic]
Then, in ¶ 28 of the complaint, plaintiff STRUNK alleges that President OBAMA “or his agent(s) as part of the scheme to defraud placed an image of Hawaiian Certification of Live Birth (COLB) on the Interest ... and as a prima facie fact means the Hawaii issued COLB does not prove natural born' citizenship or birth in Hawaii, only a long form document would [sic.]”
Plaintiff's alleged vast conspiracy implicates dozens of political and religious figures, as well as the 2008 presidential candidates from both major parties, with numerous absurd allegations. They range from claiming that an associate at the large law firm of Kirkland and Ellis, LLP masterminded the conspiracy because she wrote a law review article about the U.S. Constitution's natural born citizen requirement for the office of President to the assertion that Islam is a seventh century A.D. invention of the Vatican. Further, plaintiff STRUNK alleges, in ¶ 129 of the complaint, that he:
is the only person in the USA to have duly fired fired fired BHO [President OBAMA] on January 23, 2009 by registered mail (rendering BHO the USURPER as Plaintiff is entitled to characterize BHO as) on the grounds that he had not proven himself eligible ... and all acts by the usurper are void ab initio—a serious problem! [sic]
Plaintiff's allegations are strongly anti-Catholic, anti-Muslim and xenophobic. The complaint weaves the occasional true but irrelevant fact into plaintiff's rambling stream of consciousness.
Moreover, plaintiff STRUNK alleges, in ¶ 22 of the complaint, that defendant Vice President BIDEN knew that President OBAMA was “not eligible to run for president because he is not a Natural–Born Citizen with a British Subject Father with a student visa, however in furtherance of CFR [Council on Foreign Relations] foreign policy initiatives in the mid-east supported Soebarkah [President OBAMA] as a Muslim [sic].”
Also, Plaintiff STRUNK discusses, in the complaint, then-Senator OBAMA's April 2008 co-sponsorship of Senate Resolution 511. This resolved unanimously that Senator McCAIN, born in 1936 in Panama, while his father was on active duty in the United States Navy at Coco Sola Naval Air Station, is a natural born citizen of the United States. This resolution put to rest questions about Senator McCAIN'S eligibility to run for President. However, plaintiff STRUNK alleges, in ¶ 43 of the complaint, that Senate Resolution 511 “is part of the scheme to defraud” and “a fraud upon Congress and the People of the several states and territories contrary to the facts.” Then, plaintiff STRUNK, in ¶ 44 of the complaint, cites Senate Resolution 511's text as evidence that President OBAMA concedes that the definition of natural born citizenship for President requires both parents of a candidate be U.S. citizens at birth. Further, the complaint alleges that JOHN McCAIN and ROGER CALERO, presidential candidate of the SOCIALIST WORKERS PARTY, were also ineligible, like then-Senator OBAMA, for President because of their failure to qualify under the natural born citizen requirement.
Plaintiff's alleged injury, in ¶ 47 of the complaint, is “[t]hat on November 4, 2008, Plaintiff, as a victim of the scheme to defraud, voted for the electors representing ... McCain ... not a natural-born U.S. citizen.” Further, in ¶ 49 of the complaint, “as part of the scheme to defraud, Plaintiff voted for Candidate McCain despite the fact that his wife is a most devoted Roman Catholic whose two sons were educated by Jesuit priests.” Plaintiff alleges, in ¶ 51 of the complaint, that Senator McCAIN, was born in Colon Hospital, Colon, Panama, which was not in the Panama Canal Zone. Further, plaintiff alleges, in ¶ 52 of the complaint, that according to the November 18, 1903 Hay–Bunau Varilla Treaty, by which the United States obtained the Canal Zone, Senator McCAIN is not a natural-born citizen.
Plaintiff STRUNK, in his final twenty pages of the complaint, alleges that the massive conspiracy to defraud American voters was perpetrated by hundreds of individuals, at the behest of the Roman Catholic Church and especially the Jesuits, with the aim of bringing about the Apocalypse through the destruction of the Al Aqsa Mosque in Jerusalem and the re-building a new Jewish Temple on that site. Among the entities that Plaintiff STRUNK implicates in his alleged conspiracy are: the Muslim Brotherhood; the Carlyle Group; the CFR; Halliburton; Kirkland and Ellis, LLP; and, the Brennan Center for Justice at NYU. For example, in ¶ 91 of the complaint, plaintiff STRUNK states:
That members of the Council on Foreign Relations including Peter G. Petersen as then Chairman that act with the Jesuit Order by the oath of allegiance superior to the United States Constitution, Treaties, and various States' Constitutions that starting no later than January 2006 sought to usurp the executive branch of government using Barack Hussein Obama II and John S. McCain III, as a matched set of contenders then under joint command and control, to preclude any other contender in preparation for a banking and sub-prime mortgage collapse that requires subsuming the sovereignty of the people of the united States of America and New York to International Monetary Fund conditionality with loss of the dollar reserve currency status, and collapse of the living standards of the vast majority of the Americans to that of a third world status. [sic] Plaintiff STRUNK, in ¶ 139 of the complaint, alleges that defendant GEORGE SOROS “proves his allegiance to Rome by promoting Muslim Brotherhood overt control of Egypt ... We cannot forget that the Jesuits in Cairo created the Muslim Brotherhood in 1928, the same year the Order created Opus Dei in Spain [sic].” Further, plaintiff STRUNK, in ¶ 145 of the complaint alleges that “Defendants Pritzker and Soros have managed a crucial role for the Vatican State as a member of the CFR and high level Freemasonry and in conjunction with King Juan Carlos (the King of Jerusalem) to create global regionalism that subsumes national sovereignty of the USA and the People of New York state to the detriment of plaintiff and those similarly situated [sic].”
Eleven defendants or groups of defendants filed motions to dismiss, arguing that plaintiff STRUNK: lacks standing; failed to state a claim upon which relief can be granted; failed to plead fraud with particularity; and, is barred by collateral estoppel. Further, defendants argue that the Court lacks both personal and subject matter jurisdiction and the instant complaint is frivolous. Plaintiff, in response, filed an affidavit in opposition to the motions to dismiss and moved to consolidate the instant action with Strunk v. Paterson, et al, Index No. 29642/08.
On August 22, 2011, I held oral arguments on the record with respect to the thirteen instant motions. At the hearing, plaintiff STRUNK agreed with the Court that President OBAMA, with the release of his long-form Hawaiian birth certificate, was born in Honolulu, Hawaii [tr., p. 23]. However, plaintiff STRUNK, at tr., pp. 30–31, argued that a “natural born citizen,” eligible to run for President of the United States, pursuant to Article II, Section 1, Clause 5 of the U.S. Constitution, means that not only the candidate is natural born, but both of the candidate's parents are natural born.
The following exchange at the oral arguments took place, at tr., p. 34, line 25–p. 35, line 16:
MR. STRUNK: My injury, I voted for McCain.
THE COURT: Is that an injury?
MR. STRUNK: My injury is he did not challenge Mr. Obama after he went through the whole exercise.
THE COURT: You're saying he should have challenged Mr. Obama's presidency?
MR. STRUNK: Absolutely, and the ballot. The onus is on me because he violated his agreement with me. You can't challenge the eligibility until he's up to be sworn. McCain, since everybody in Congress, since they didn't want to know about anything, so it was my responsibility. I fired him by registered mail within 72 hours.
THE COURT: I saw your letter that you fired the President. I guess he didn't agree with you because he's still there.
A discussion ensued as to how plaintiff STRUNK alleges that President OBAMA is a Muslim [tr., pp. 36–38]. The following colloquy took place at tr., p. 37, lines 4–8:
THE COURT: How could you come to the conclusion that he's a radical Sunni Muslim?
MR. STRUNK: Because that's what his records show and that's what the testimony of individuals who were in class with him show.
The following portions of the exchange, at tr., p. 39, line 9–p. 43, line 8 demonstrates the irrational anti-Catholic bias of plaintiff STRUNK:
THE COURT: What I find fascinating, first of all you said there was a connection there where you say Cindy McCain says she's a Catholic. I don't know if she is. I think you said she's Catholic faith, Cindy McCain.
MR. STRUNK: She is the largest distributor of Budweiser.
THE COURT: I know that. That doesn't make her a Catholic necessarily.
MR. STRUNK: It's the connection that counts. Your don't get those connections.
THE COURT: ... I don't know if the Busch family is Catholic.
I don't care.
MR. STRUNK: That's big business.
THE COURT: That's big business selling beer ... Let's put Anheuser–Busch to the side. You said she's a Catholic and you get into this whole riff or rant, whatever you want to call it, about the Catholic Church and Father O'Hare, the Vatican. You go on and on about the Vatican ... but it seems to me you have this theory that everything is a conspiracy and it always falls back to Rome.
MR. STRUNK: That's a matter of public record.
THE COURT: Oh, okay.
MR. STRUNK: What the key is here, Ms. McCain is on the Board of Directors for a Jesuit run school where her children are going to school.
THE COURT: Could very well be. I don't know.
MR. STRUNK: ... In fact, it turns out in the discovery of the connection to the Jesuits it was so compelling that when I started really digging into the background of this scheme of defraud, putting up two Manchurian candidates at once, which would take advantage of New York State's weakness in our law which required honesty. We require to have honesty and didn't get it.
THE COURT: Your case is more The Da Vinci Code.
MR. STRUNK: The Da Vinci Code is a phoney book.
THE COURT: With all due respect to John Frankenheimer, The Manchurian Candidate according to you and the school of the Vatican, by that way it describes the gist of your argument.
MR. STRUNK: Frankenheimer?
THE COURT: He directed the original Manchurian Candidate movie.
MR. STRUNK: The old?
THE COURT: With Frank, not Denzel.
MR. STRUNK: Frankenheimer?
THE COURT: 1962 movie.
MR. STRUNK: I was aware of the movie at that point, but
THE COURT: Okay, forget it.
MR. STRUNK: This is the one with Frank Sinatra?
THE COURT: And Laurence Harvey.
MR. STRUNK: The Queen of Diamonds/ Now you've brought
THE COURT: You mentioned The Manchurian Candidate. They have it in the movie.
MR. STRUNK:I've used it as a pejorative.
THE COURT:I understand that, and I think that The Da Vinci Code, to make some interesting argument, that's a work of fiction. At least I think it's a work of fiction.
MR. STRUNK: The Manchurian Candidate was not a work of fiction. The work—I didn't want to get into this area.
THE COURT: Let's not get into analogies. I understand you have various arguments but it seems to all come back to Rome.
MR. STRUNK: No, it comes back to New York State and whether I have standing in the Supreme Court of the State of New York on the question of who's going to take responsibility to enforce the law which has not been done.
THE COURT: Okay, that's your argument.
Standard for a motion to dismiss
“When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ' ( see Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Milstein, Felder & Steiner, 96 N.Y.2d 300, 303 [2001];Leon v. Martinez, 84 N.Y.2d 83, 87–88 [1994] ) [ Emphasis added ] .” (Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 570–571 [2005] ). Further, the Court, in Morris v. Morris (306 A.D.2d 449, 451 [2d Dept 2003] ), instructed that:
In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v. Ginsburg, 43 N.Y.2d 268, 275 [1977].The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory ( see Dye v. Catholic Med. Ctr. of Brooklyn & Queens, 273 A.D.2d 193 [2000] ).However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference ( see Doria v. Masucci, 230 A.D.2d 764 [2000] ). [ Emphasis added ]
For a plaintiff to survive a motion to dismiss for failure to state a cause of action, the factual allegations in the claim cannot be “merely conclusory and speculative in nature and not supported by any specific facts.” ( Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 153 AD3d 727, 729 [2d Dept 1989] ). “The allegations in the complaint cannot be vague and conclusory.” (Stoianoff v. Gahona, 248 A.D.2d 525 [2d Dept 1998], app dismissed92 N.Y.2d 844 [1998],cert denied by Stoianoff v. New York Times, 525 U.S. 953 [1998] ). ( See LoPresti v. Massachusetts Mut. Life Ins. Co., 30 AD3d 474 [2d Dept 2006]; Levin v. Isayeu, 27 AD3d 425 [2d Dept 2006]; Hart v. Scott, 8 AD3d 532 [2d Dept 2004] ).
Plaintiff STRUNK's complaint must be dismissed because the “Court need not, and should not, accept legal conclusions, unwarranted inferences, unwarranted deductions, baseless conclusions of law, or sweeping legal conclusions cast in the form of factual allegations. (Ulmann v. Norma Kamali, Inc., 207 A.D.2d 691 [1d Dept 1994]; Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220 [1d Dept 1991] ).” ( Goode v. Charter Oak Fire Ins. Co., 8 Misc.3d 1023[A], at 2 [Sup Ct, Nassau County 2005] ). It is clear that the facts alleged by plaintiff STRUNK do not fit into any cognizable legal theory.
Plaintiff STRUNK'S complaint is more of a political manifesto than a verified pleading. Similar lawsuits challenging the eligibility of President OBAMA and Senator McCAIN for the presidency based upon plaintiff's incorrect interpretation of the term “natural born Citizen” in Article II, Section 1, Clause 5 of the U .S. Constitution have been dismissed as a matter of law. ( See Drake v. Obama, 664 F 3d 774 [9th Cir2011]; Barnett v. Obama, 2009 WL 3861788 [US Dist Ct, CD CA 2009]; Berg v. Obama, 574 F Supp 2d 509 [ED Pa 2008], affd586 F3d 234 [3d Cir2009]; Robinson v. Bowen, 567 F Supp 2d 1144 [ND Ca 2008]; Hollander v. McCain, 566 F Supp 2d 63 [D NH 2008] ).
Plaintiff STRUNK lacks standing
Plaintiff STRUNK lacks standing to sue in state court, having suffered no injury. “Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress.” (Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801 812 [2003],cert denied540 U.S. 1017 [2003] ). Professor David Siegel, in N.Y. Prac, § 136, at 232 [4d ed] instructs that:
[i]t is the law's policy to allow only an aggrieved person to bring a lawsuit ... A want of “standing to sue,” in other words, is just another way of saying that this particular plaintiff is not involved in a genuine controversy, and a simple syllogism takes us from there to a “jurisdictional” dismissal: (1) the courts have jurisdiction only over controversies; (2) a plaintiff found to lack “standing” is not involved in a controversy; and (3) the courts therefore have no jurisdiction of the case when such a plaintiff purports to bring it.
“Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request.” (Caprer v. Nussbaum, 36 AD3d 176, 181 [2d Dept 2006] ). “An analysis of standing begins with a determination of whether the party seeking relief has sustained an injury ( see Society of Plastic Indus. v. County of Suffolk, 77 N.Y.2d 761, 762–773 [1991] ).” (Mahoney v. Pataki, 98 N.Y.2d 45, 52 [2002] ). “The Court of Appeals has defined the standard by which standing is measured, explaining that a plaintiff, in order to have standing in a particular dispute, must demonstrate an injury in fact that falls within the relevant zone of interests sought to be protected by law.” ( Caprer v. Nussbaum at 183).
A plaintiff, to have standing, “must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” (Allen v. Wright, 468 U.S. 737, 751 [1984] ). If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v. Goldberg, 297 A.D.2d 203 [1st Dept 2002] ).
Plaintiff STRUNK clearly lacks standing to sue because he cannot establish an injury in fact. Plaintiff's claim that his November 2008 vote for Senator McCAIN for President was his injury is the type of generalized grievance that is foreclosed by the U.S. Constitution's particularized injury requirement. “We have consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy.” (Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 [1992] ). “Thus, a private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all taxpayers and citizens, has no standing to sue.” (Matter of Meehan v. County of Westchester, 3 AD3d 533, 534 [2d Dept 2004] ). ( See Diederich v. Rockland County Police Chiefs' Ass'n, 33 AD3d 653, 654 [2d Dept 2006]; Concerned Taxpayers of Stony Point v. Town of Stony Point, 28 AD3d 657, 658 [2d Dept 2006] ). Plaintiff STRUNK's complaint alleges nothing more than non-justiciable abstract and theoretical claims. Therefore, the instant complaint, failing to state any allegation of a particularized injury, is dismissed with prejudice. ( Silver v. Pataki at 539; Mahoney v. Pataki at 52).
Plaintiff Strunk's failure to state a cause of action
Alternatively, plaintiff STRUNK's complaint must be dismissed for his failure to state a cause of action. The Court is under no obligation to accept as true plaintiff's complaint, full of legal conclusions and bald assertions cloaked as facts. (Ruffino v. New York City Tr. Auth., 55 AD3d 817, 818 [2d Dept 2008] ). As noted above, in Morris v. Morris at 451, “bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference.” Moreover, plaintiff has failed to plead any facts that fit within any cognizable legal theory. ( Goldman v. Metropolitan Life Ins. Co., at 570–571).
Further, plaintiff STRUNK's often rambling and almost incomprehensible complaint fails to satisfy the pleading requirements of CPLR § 3013 and CPLR Rule 3014. CPLR § 3013 requires statements in a pleading to be “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR Rule 3014 imposes additional pleading requirements that “[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain, as far as practicable, a single allegation ... Separate causes of action or defenses shall be separately stated and numbered and may be stated regardless of consistency.”
In Sibersky v. New York City (270 A.D.2d 209 [1d Dept 2000], the Court dismissed an amended petition for its “complete failure to follow the dictates of CPLR 3013 or 3014.” The Sibersky complaint consisted of “seven pages of single-spaced, unnumbered paragraphs, the import of which is unascertainable,” and the Court held that “[p]leadings that are not particular enough to provide the court and the parties with notice of the transaction or occurrences to be proved must be dismissed.” Complaints that do not meet the pleading requirements of CPLR § 3013 and CPLR Rule 3014 will be dismissed if “devoid of specific factual allegations” and do not “indicate the material elements of a claim and how they would apply to the case.” (Megna v. Becton Dickinson & Co., 215 A.D.2d 542 [2d Dept 1995] ). In Peri v. State (66 A.D.2d 949 [3d Dept 1979] ), affd48 N.Y.2d 734 [1979] ), a pro se plaintiff's complaint was dismissed for failure to comply with CPLR § 3013. The Court instructed that “[a]t a minimum, a valid complaint must include all material elements of the cause of action.”
Plaintiff STRUNK's rambling, forty-five page prolix complaint, with its irrelevant, scatter-shot morass of alleged historical references, virulent anti-Catholic rhetoric and extensive political rant fails to plead his alleged causes of action in a manner that is “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action [CPLR § 3013]” and organized in “plain and concise statements in consecutively numbered paragraphs [CPLR Rule 3014].” “While a refined and attenuated analysis might arguably spell out a shadow of a cause of action, neither the defendants nor the trial court should be subject to the difficulties.” (Kent v. Truman, 9 A.D.2d 649 [1d Dept 1959] ). ( See Geist v. Rolls Royce Limited, 18 A.D.2d 631 [1d Dept 1962]; Safer Beef Co., Inc. v. Northern Boneless Beef, Inc., 15 A.D.2d 479 [1d Dept 1961] ). In a case, such as this one, in which “the amended complaint is prolix, confusing, and difficult to answer” and the complaint contains “a confusing succession of discrete facts, conclusions, comments ... and considerable other subsidiary evidentiary matter whose relevance to a particular cause of action is frequently obscure ... Defendants should not be required to answer such a jumble.” (Rapaport v. Diamond Dealers, Club, Inc., 95 A.D.2d 743, 744 [1d Dept 1983] ). ( See Etu v. Cumberland Farms, Inc., 148 A.D.2d 821, 824 [3d Dept 1989] ).
Plaintiff STRUNK fails to plead fraud with particularity
“The elements of fraud are narrowly defined, requiring proof by clear and convincing evidence ( cf., Vermeer Owners v. Guterman, 78 N.Y.2d 1114, 1116 [1991] ).” (Gaidon v. Guardian Life Ins. Co. of America, 94 N.Y.2d 330, 349–350 [1999] ). Mere conclusory statements alleging the wrong in the pleadings are insufficient. (McGovern v. Nassau County Dept. of Social Services, 60 AD3d 1016 [2d Dept 2009]; Sargiss v. Magarelli, 50 AD3d 1117 [2d Dept 2008]; Dumas v. Firoito, 13 AD3d 332 [2d Dept 2004]; Sforza v. Health Ins. Plan of Greater New York, 210 A.D.2d 214, 215 [2d Dept 1994] ).
The Appellate Division, Second Department, in Giurdanella v. Giurdanella (226 A.D.2d 342, 343 [1996], held that:
to establish a prima facie case of fraud, the plaintiff must establish
(1) that the defendant made material representations that were false,
(2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff justifiably relied on the defendant's representations, and (4) that the plaintiff was injured as a result of the defendant's representation.
( See Kerusa Co., LLC v. W10Z/515 Real Estate Ltd. Partnership, 12 NY3d 236 [2009];Small v. Lorillard Tobacco Co., Inc. 94 N.Y.2d 43 [1999];Channel Master Corp. v. Aluminum Limited Sales, Inc., 4 N.Y.2d 403 [1958];Smith v. Ameriquest Mortg. Corp., 60 AD3d 1037 [2d Dept 2009]; Cash v. Titan Financial Services, Inc. 58 AD3d 785 [2d Dept 2009] ).
Plaintiff STRUNK presents in his complaint fraud accusations that can be, at best, described as bare assertions. He does not allege that he relied upon any statements of defendants and fails to allege that he suffered any pecuniary loss as a result of the statements of any defendant. Actual pecuniary loss must be alleged in a fraud action. (Dress Shirt Sales, Inc. v. Hotel Martinique Assoc., 12 N.Y.2d 339, 343 [1963];Rivera v. Wyckoff Heights Hosp., 184 A.D.2d 558, 561 [2d Dept 1992] ). The mere use of the word “fraud” in a complaint is not sufficient to comply with the specific requirements of CPLR § 3016(b) that fraud be plead with particularity. Therefore, plaintiff STRUNK fails to allege the necessary elements for a fraud cause of action.
This Court lacks jurisdiction
Plaintiff's complaint essentially challenges the qualifications of both President OBAMA and Senator McCAIN to hold the office of President. This is a non-justiciable political question. Thus, it requires the dismissal of the instant complaint. “The “nonjusticiability of a political question is primarily a function of the separation of powers.” (Baker v. Carr, 369 U.S. 186, 210 [1962] ). Under separation of powers, “[t]he constitutional power of Congress to regulate federal elections is well established.” (Buckley v. Valeo, 424 U.S. 1, 13 [1976] ). ( See Oregon v. Mitchell, 400 U.S. 112 [1970];Burroughs v. United States, 290 U.S. 534 [1934] ). Under New York law, “[t]his judicial deference to a coordinate, coequal branch of government includes one issue of justiciability generally denominated as the political question' doctrine.” (Matter of New York State Inspection, Security & Law Enforcement Employees, District Council 82, AFSCME, AFL–CIO v. Cuomo, 64 N.Y.2d 233, 239 [1984] ).
The framework for the Electoral College and its voting procedures for President and Vice President is found in Article II, Section 1 of the U.S. Constitution. This is fleshed out in 3 USC § 1 et seq ., which details the procedures for Presidential elections. More specifically, the counting of electoral votes and the process for objecting for the 2009 Presidential election is found in 3 USC § 15, as modified by Pub L 110–430, § 2, 122 U.S. Stat 4846. This required the meeting of the joint session of Congress to count the 2008 electoral votes to be held on January 8, 2009. On that day, after the counting of the Electoral College votes, then-Vice President Dick Cheney made the requisite declaration of the election of President OBAMA and Vice President BIDEN. (155 Cong Rec H76 [Jan. 8, 2009] ). No objections were made by members of the Senate and House of Representatives, which would have resolved these objections if made. This is the exclusive means to resolve objections to the electors' selection of a President or a Vice President, including objections raised by plaintiff STRUNK. Federal courts have no role in this process. Plainly, state courts have no role.
Thus, this Court lacks subject matter jurisdiction to determine the eligibility and qualifications of President OBAMA to be President, as well as the same for Senator McCAIN or ROGER CALERO. If a state court were to involve itself in the eligibility of a candidate to hold the office of President, a determination reserved for the Electoral College and Congress, it may involve itself in national political matters for which it is institutionally ill-suited and interfere with the constitutional authority of the Electoral College and Congress. Accordingly, the political question doctrine instructs this Court and other courts to refrain from superseding the judgments of the nation's voters and those federal government entities the Constitution designates as the proper forums to determine the eligibility of presidential candidates.
Justice Robert Jackson, concurring in Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579, 635 1952], in discussing separation of powers stated that “the Constitution diffuses power the better to secure liberty.” Justice Thurgood Marshall, in his majority opinion in U.S. v. Munoz–Flores (495 U.S. 385, 394 [1990] ), on the subject of separation of powers, quoted from Justice Antonin Scalia's dissent in Morrison v. Olson, 487 U.S. 654, 697 [1988], in which Justice Scalia observed that “[t]he Framers of the Federal Constitution ... viewed the principle of separation of powers as the absolutely central guarantee of a just Government.” This Court will not disrupt the separation of powers as enunciated in the U.S. Constitution and articulated by Justices Jackson, Marshall and Scalia.
Further, plaintiff STRUNK has failed to properly serve defendants, including President OBAMA and Senator McCAIN, pursuant to the CPLR. With numerous other grounds present for dismissing the instant action, the Court will not elaborate upon how plaintiff STRUNK failed to obtain personal jurisdiction over defendants.
Plaintiff STRUNK is precluded by collateral estoppel
Collateral estoppel or “issue preclusion,” as observed by Prof. Siegel, in N.Y. Prac § 443, at 748–749, [4th ed], “scans the first action and takes note of each issue decided in it. Then if the second action, although based on a different cause of action, attempts to reintroduce the same issue, collateral estoppel intervenes to preclude its relitigation and to bind the party, against whom the doctrine is being invoked, to the way the issue was decided in the first action.” In Ryan v. New York Telephone Company (62 N.Y.2d 494, 500 [1984] ), the Court of Appeals, held that “[t]he doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same [ Emphasis added ].” Two prerequisites must be met before collateral estoppel can be raised. The Court of Appeals, in Buechel v. Bain (97 N.Y.2d 295 [2001],cert denied535 U.S. 1096 [2002] ), instructed at 303–304, that:
There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling ( see, Gilberg v. Barnieri, 53 N.Y.2d 285, 291 [1981] ). The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party (see, id.). The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination. [ Emphasis added ]
( See D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664 [1990];Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485 supra; Westchester County Correction Officers Benevolent Ass'n, Inc. v. County of Westchester, 65 AD3d 1226, 1227 [2d Dept 2009]; Franklin Dev. Co. Inc. v. Atlantic Mut. Ins. Co., 60 AD3d 897, 899 [2d Dept 2009]; Luscher ex. rel Luscher v. Arrua, 21 AD3d 1005 [2d Dept 2005] ).
Plaintiff STRUNK litigated many of the issues in the instant action in U.S. District Court, but also in the previously cited Strunk v. Paterson, et al, Index No. 29642/08, before Justice Schmidt. He acknowledged this, in ¶ 2 of the instant complaint, by stating:
That this complaint is fairly traceable to the events and actions leading up to the Party primaries during the 2008 election cycle for the ballot access of the Presidential slates at the November 4, 2008 General Election as complained of in the related election law case, Strunk v. Paterson, et al. NYS Supreme Court in the County of Kings with Index No. 29642–08 before the Honorable David I Schmidt of Part 1 as an election law matter. [sic]
As mentioned above, Justice Schmidt disposed of Strunk v. Paterson, et al, Index No. 29642/08, on March 14, 2011, by denying all of plaintiff's motions and noting that the statute of limitations expired to join necessary parties President OBAMA and Senator McCAIN. Therefore, collateral estoppel precludes plaintiff STRUNK from pursuing the instant action.
Denial of plaintiff's cross-motion to consolidate
Plantiff's cross-motion to consolidate this action with Strunk v. Paterson, et al, Index No. 29642/08, and transfer the instant action to Justice Schmidt is denied. Justice Schmidt, on November 19, 2008, in Strunk v. Paterson, et al, declined to sign plaintiff STRUNK's order to show cause to enjoin Governor Paterson from convening New York's December 2008 meeting of the Electoral College, because “plaintiff is collaterally estopped.” This refers to the Eastern District action dismissed by Judge Ross, in which she found the complaint frivolous.
After a hiatus of several years, plaintiff STRUNK, by order to show cause, attempted to amend his complaint. Justice Schmidt, in his January 11, 2011 short-form order, denied this motion in its entirety.
Then, plaintiff STRUNK moved to reargue. On March 14, 2011, Justice Schmidt, in a short-form order, denied reargument because plaintiff “failed to join a necessary party President OBAMA and Senator McCAIN and the statute of limitations to do so expired.” Finally, on November 9, 2011, H. William Van Allen, an ally of plaintiff STRUNK, moved to intervene as a plaintiff to challenge President OBAMA's placement on the upcoming 2012 ballot. In his November 22, 2011 short-form order, Justice Schmidt denied Mr. Van Allen's intervention “in all respects.” Further, Justice Schmidt held “[t]his is an action that was commenced in 2008 and has remained inactive for several years and it would be improper to allow plaintiff to raise new matters before the Court after the extended period of inactivity.”
Plaintiff's frivolous conduct
“A complaint containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis” and “embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” (Neitzke v. Williams, 490 U.S. 319, 325 [1989] ). Plaintiff STRUNK, as cited above, alleges numerous fanciful, fantastic, delusional, irrational and baseless claims about defendants. The U.S. Supreme Court, citing Neitzke, held in Denton v. Hernandez (504 U.S. 25, 32–33 [1992] ), that:
A court may dismiss a claim as factually frivolous only if the facts alleged are “clearly baseless,” 490 U.S. at 127, 109 S Ct at 1833, a category encompassing allegations that are “fanciful,” id., at 325, 109 S Ct at 1831, “fantastic,” id., at 328, 109 S Ct at 1833, 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.
In Denton, the plaintiff alleged that he had been repeatedly raped by a number of inmates at several different prisons, all using the same modus operandi. The Court concluded that these allegations were “wholly fanciful” and dismissed the claim as frivolous as a result. In Shoemaker v. U.S. Department of Justice (164 F 3d 619, 619 [2d Cir1998] ), plaintiff alleged that the government and television stations conspired to: “(1) broadcast information about his feces on national television; and (2) file and publicized false charges of child abuse against him.” The Court, citing Neitzke and Denton, dismissed the action as frivolous because plaintiff's “factual claims are irrational and incredible.” Another case applying the frivolous standards of Neitzke and Denton is Perri v. Bloomberg (2008 WL 2944642 [US Dist Ct, ED N.Y.2008] ), in which plaintiff alleged that a secret unit of the NYPD was attempting to kill him and his cats. The Court dismissed the case, finding that plaintiff's complaint has “a litany of sensational allegations pertaining not only to the NYPD, but also to various arms of government, both state and federal. Accordingly, Perri has not established that he is entitled to a preliminary injunction, because his allegations of irreparable harm are unsupported and bizarre.”
Plaintiff STRUNK'S complaint, as well as his opposition to defendants' motions to dismiss, alleges that the correct interpretation of the natural born citizen clause of the U.S. Constitution requires a natural born citizen to have been born on United States soil and have two United States born parents. Despite plaintiff's assertions, Article II, Section 1, Clause 5 does not state this. No legal authority has ever stated that the natural born citizen clause means what plaintiff STRUNK claims it states. “The phrase natural born Citizen' is not defined in the Constitution, see Minor v. Happersett, 88 U.S. 162, 167 [1875] ), nor does it appear anywhere else in the document, see Charles Gordon, Who Can Be President of the United States: An Unresolved Enigma, 28 Md. L.Rev. 1, 5 (1968).” ( Hollander v. McCain at 65). Plaintiff STRUNK cannot wish into existence an interpretation that he chooses for the natural born citizen clause. There is no arguable legal basis for the proposition that both parents of the President must have been born on U.S. soil. This assertion is as frivolous as the multitude of alleged allegations outlined above.
Moreover, President OBAMA is the sixth U.S. President to have had one or both of his parents not born on U.S. soil. Plaintiff STRUNK and his fellow “birthers” might not realize that: both parents of President Andrew Jackson were born in what is now Northern Ireland; President James Buchanan's father was born in County Donegal, Ireland; President Chester A. Arthur's father was born in what is now Northern Ireland; President Woodrow Wilson's mother was born in Carlisle, England; and, President Herbert Hoover's mother was born in Norwich, Ontario, Canada.
Therefore, the prosecution of the instant action by plaintiff STRUNK, with its fanciful, fantastic, delusional, irrational and baseless claims about defendants appears is frivolous. 22 NYCRR § 130–1.1(a) states that “the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130–1.3 of this Subpart.” 22 NYCRR § 130–1.1(c) states:
conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Conduct is frivolous and can be sanctioned, pursuant to 22 NYCRR § 130–1.1(c), if “it is completely without merit ... and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.” (Gordon v. Marrone, 202 A.D.2d 104, 110 [2d Dept 1994] lv denied84 N.Y.2d 813 [1995] ). ( See RKO Properties, Inc. v. Boymelgreen, 77 AD3d 721 [2d Dept 2010]; Finkelman v. SBRE, LLC, 71 AD3d 1081 [2d Dept 2010]; Glenn v. Annunziata, 53 AD3d 565, [2d Dept 2008]; Miller v. Dugan, 27 AD3d 429 [2d Dept 2006]; Greene v. Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Ofman v. Campos, 12 AD3d 581 [2d Dept 2004] ). It is clear that plaintiff STRUNK's complaint: “is completely without merit in law;” “is undertaken primarily ... to harass” defendants; and, “asserts material factual statements that are false.”
Several years before the drafting and implementation of the Part 130 Rules for costs and sanctions, the Court of Appeals (A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 6 [1986] ) observed that “frivolous litigation is so serious a problem affecting the proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary ( seeN.Y. Const, art VI, § 30, Judiciary Law § 211[1][b] ).”
Part 130 Rules were subsequently created, effective January 1, 1989, to give the courts an additional remedy to deal with frivolous conduct. In Levy v. Carol Management Corporation (260 A.D.2d 27, 33 [1st Dept 1999] ) the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, “22 NYCRR 130–1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party.” ( Levy at 33). Moreover, “[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large.” ( Levy at 34).
The Court, in Kernisan, M.D. v. Taylor (171 A.D.2d 869 [2d Dept 1991] ), noted that the intent of the Part 130 Rules “is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics ( cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v. 198 Broadway, 76 N.Y.2d 411;see Steiner v. Bonhamer, 146 Misc.2d 10) [ Emphasis added ].” To adjudicate the instant action, with the complaint replete with fanciful, fantastic, delusional, irrational and baseless allegations about defendants, combined with plaintiff STRUNK's lack of standing, the barring of this action by collateral estoppel and the Court lacking personal jurisdiction and subject matter jurisdiction over many of the defendants, is “a waste of judicial resources.” This conduct, as noted in Levy, must be deterred. In Weinstock v. Weinstock (253 A.D.2d 873 [2d Dept 1998] ) the Court ordered the maximum sanction of $10,000.00 for an attorney who pursued an appeal “completely without merit,” and holding, at 874, that “[w]e therefore award the maximum authorized amount as a sanction for this conduct ( see, 22 NYCRR 130–1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [ Emphasis added ].” Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v. De Santis (36 AD3d 734 [2d Dept 2007] ) affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as “appropriate in view of the plaintiff's waste of judicial resources [ Emphasis added ].”
In Navin v. Mosquera (30 AD3d 883, 883 [3d Dept 2006] ) the Court instructed that when considering if specific conduct is sanctionable as frivolous, “courts are required to examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent' (22 NYCRR 130–1.1[c] ).”
Therefore, the Court will examine the conduct of plaintiff STRUNK in a hearing, pursuant to 22 NYCRR § 130–1.1, to determine if plaintiff STRUNK engaged in frivolous conduct, and to allow plaintiff STRUNK a reasonable opportunity to be heard. Further, at the hearing, an opportunity will be given to counsel for defendants to present detailed records of costs incurred by their clients in the instant action.
Plaintiff precluded from relitigation of the same claims
The Court is concerned that plaintiff STRUNK continues to use the scarce resources of the New York State Unified Court System to fruitlessly pursue the same claims. He is no stranger to litigation in Supreme Court, Kings County, Civil Term. Further, plaintiff STRUNK has had several bites of the same apple in U.S. District Court, which resulted in findings of his engagement in frivolous conduct with, as stated by Judge Ross, complaints that “have contained allegations that have risen to the irrational.” The Court should not have to expend resources on the next action by Mr. STRUNK that will be a new variation on the same theme of defendants' alleged misdeeds and misconduct. The continued use of the New York State Unified Court System for the personal pursuit by plaintiff STRUNK of irrational complaints against defendants must cease.
Our courts have an interest in preventing the waste of judicial resources by a party who knows that his or lawsuit has no legitimate basis in law or fact and continues to attempt to relitigate resolved claims and issues. (Martin–Trigona v. Capital Cities/ABC, Inc., 145 Misc.2d 405 [Sup Ct, New York County 1989] ). The Court, in Sassower v. Signorelli (99 A.D.2d 358, 359 [2d Dept 1984] ), noted that “public policy mandates free access to the courts ... and, ordinarily, the doctrine of former adjudication will serve as an adequate remedy against repetitious suits.” Then, the Sassower Court observed, in the next paragraph, that: “[n]onetheless, a litigious plaintiff pressing a frivolous claim can be extremely costly to the defendant and can waste an inordinate amount of court time, time that this court and the trial courts can ill afford to lose (see Harrelson v. United States, 613 F.2d 114).”
Pro se litigants whom abuse judicial process have had their access to the courts limited. In Spremo v. Babchik (155 Misc.2d 796 (Sup Ct, Queens County 1996] ), the Court, in enjoining a pro se litigant from instituting any further actions and proceedings in any court in the New York State Unified Court System, citing Sassower and Kane v. City of New York, 468 F Supp 586 [SD N.Y.1979], affd614 F.2d 1288 [2d Cir1979] ). The Kane Court, at 592, held:
The fact that one appears pro se is not a license to abuse the process of the Court and to use it without restraint as a weapon of harassment and libelous bombardment. The injunction herein ordered is fully warranted to put an end to such activity ... Commencement of action upon action based on the same facts dressed in different garb, after thrice being rejected on the merits and having been repeatedly warned that the claims were barred by res judicata, can only be explained as malicious conduct.
In Muka v. New York State Bar Association (120 Misc.2d 897 [Sup Ct, Tompkins County 1983] ), a pro se plaintiff commenced a fourth unsuccessful lawsuit against the State Bar Association upon various conspiracy theories. The Court in dismissing the action, based upon res judicata, observed, at 903, that “all litigants have a right to impartial and considered justice. Insofar as any litigant unnecessarily consumes inordinate amounts of judicial time and energy, he or she deprives other litigants of their proper share of these resources. A balance must be kept.” Therefore, plaintiff STRUNK, with his history of abusing the civil justice system, by bringing pro se actions devoid of merit against the same defendants, is precluded from relitigating the same claims and issues which waste court resources and is enjoined from bringing any future actions in the New York State Unified Court System against: the NEW YORK STATE BOARD OF ELECTIONS, JAMES A. WALSH/ Co–Chair, DOUGLAS A. KELLNER/Co–Chair, EVELYN J. AQUILA/Commissioner, GREGORY P. PETERSON/Commissioner, Deputy Director TODD D. VALENTINE, and Deputy Director STANLY ZALEN; ANDREW CUOMO, ERIC SCHNEIDERMAN, THOMAS P. DINAPOLI and RUTH NOEMI COLON, in their Official and individual capacity; Father JOSEPH A. O'HARE, S.J.; Father JOSEPH P. PARKES, S.J.; FREDERICK A.O. SCHWARZ, JR.; PETER G. PETERSEN; ZBIGNIEW KAIMIERZ BRZEZINSKI; MARK BRZEZINSKI; JOSEPH R. BIDEN, JR.; BARACK H. OBAMA, NANCY PELOSI; the DEOMCRATIC STATE COMMITTEE OF THE STATE OF NEW YORK; the STATE COMMITTEE OF THE WORKING FAMILIES PARTY OF NEW YORK STATE; ROGER CALERO; the SOCIALIST WORKERS PARTY; IAN J. BRZEZINSKI; JOHN SIDNEY McCAIN III; JOHN A. BOEHNER; the NEW YORK STATE REPUBLICAN STATE COMMITTEE; the NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY; the STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE; PENNY S. PRITZKER; GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; McCAIN VICTORY 2008; and McCAIN–PALIN VICTORY 2008; without the prior approval of the appropriate Administrative Justice or Judge. The Court instructed, in Vogelgesang v. Vogelgesang (71 AD3d 1132, 1134 [2d Dept 2010] ), that:
The Supreme Court providently exercised its discretion in enjoining the appellant from filing any further actions or motions in the ... action without prior written approval. Public policy generally mandates free access to the courts ( see Sassower v. Signorelli, 99 A.D.2d 358, 359 [1984] ). However, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will ( see Duffy v. Holt–Harris, 260 A.D.2d 595 [2d Dept 1999]; Shreve v. Shreve, 229 A.D.2d 1005 [2d Dept 1996] ). There is ample basis in this record to support the Supreme Court's determination to prevent the appellant from engaging in further vexatious litigation. ( See Scholar v. Timinsky, 87 AD3d 577 [2d Dept 2011]; Dimeryv Ulster Sav. Bank, 82 AD3d 1034 [2d Dept 2011]; Capogrosso v. Kansas, 60 AD3d 522 [1d Dept 2009]; Simpson v. Ptaszynska, 41 AD3d 607 [2d Dept 2007]; Pignataro v. Davis, 8 AD3d 487 [2d Dept 2004]; Cangro v. Cangro, 288 A.D.2d 417 [2d Dept 2001]; Mancini v. Mancini, 269 A.D.2d 366 [2d Dept 2000]; Braten v. Finkelstein, 235 A.D.2d 513 [2d Dept 1997] ).
Conclusion
Accordingly, it is
ORDERED, that the motion by counsel for defendants McCAIN VICTORY 2008, McCAIN–PALIN VICTORY 2008 and Senator JOHN McCAIN, to admit Todd E. Phillips, Esq., a member in good standing of both the California and District of Columbia bars, for the instant action pro hace vice is granted; and it is further
ORDERED, that the motions to dismiss plaintiff CHRISTOPHER–EARL STRUNK's instant complaint by: defendants President BARACK OBAMA, Vice President JOSEPH BIDEN, OBAMA FOR AMERICA and the OBAMA VICTORY FUND; defendants McCAIN VICTORY 2008, McCAIN–PALIN VICTORY 2008 and
Senator JOHN McCAIN; defendants MARK BRZEZINSKI and IAN BRZEZINSKI; defendant Representative NANCY PELOSI; defendant GEORGE SOROS; defendants
THE SOCIALIST WORKERS PARTY and ROGER CALERO; defendant Speaker JOHN BOEHNER; defendant ZBIGNIEW BRZEZINSKI; defendants Father JOSEPH A. O'HARE, S.J., Father JOSEPH P. PARKES, S.J. and FREDERICK A.O. SCHWARZ, JR.; defendant PENNY PRITZKER; and defendant PETER G. PETERSEN; are all granted, with the instant complaint dismissed with prejudice; and it is further
ORDERED, that the cross-motion of plaintiff CHRISTOPHER EARL–STRUNK to consolidate the instant action with Strunk v. Paterson, et al, Index No. 29642/08, before Justice David Schmidt, is denied; and it is further
ORDERED, that plaintiff CHRISTOPHER EARL–STRUNK is hereby enjoined from commencing any future actions in the New York State Unified Court System against: the NEW YORK STATE BOARD OF ELECTIONS, JAMES A. WALSH/ Co–Chair, DOUGLAS A. KELLNER/Co–Chair, EVELYN J. AQUILA/Commissioner, GREGORY P. PETERSON/Commissioner, Deputy Director TODD D. VALENTINE, and Deputy Director STANLY ZALEN; ANDREW CUOMO, ERIC SCHNEIDERMAN, THOMAS P. DINAPOLI and RUTH NOEMI COLON, in their Official and individual capacity; Father JOSEPH A. O'HARE, S.J.; Father JOSEPH P. PARKES, S.J.; FREDERICK A.O. SCHWARZ, JR.; PETER G. PETERSEN; ZBIGNIEW KAIMIERZ BRZEZINSKI; MARK BRZEZINSKI; JOSEPH R. BIDEN, JR.; BARACK H. OBAMA, NANCY PELOSI; the DEOMCRATIC STATE COMMITTEE OF THE STATE OF NEW YORK; the STATE COMMITTEE OF THE WORKING FAMILIES PARTY OF NEW YORK STATE; ROGER CALERO; the SOCIALIST WORKERS PARTY; IAN J. BRZEZINSKI; JOHN SIDNEY McCAIN III; JOHN A. BOEHNER; the NEW YORK STATE REPUBLICAN STATE COMMITTEE; the NEW YORK STATE COMMITTEE OF THE INDEPENDENCE PARTY; the STATE COMMITTEE OF THE CONSERVATIVE PARTY OF NEW YORK STATE; PENNY S. PRITZKER; GEORGE SOROS; OBAMA FOR AMERICA; OBAMA VICTORY FUND; McCAIN VICTORY 2008; and McCAIN–PALIN VICTORY 2008; without prior approval of the appropriate Administrative Justice or Judge; and it is further
ORDERED, that any violation of the above injunction by CHRISTOPHER–EARL STRUNK may subject CHRISTOPHER–EARL STRUNK to costs, sanctions and contempt proceedings; and it is further
ORDERED, that it appearing that plaintiff CHRISTOPHER EARL–STRUNK, engaged in “frivolous conduct,” as defined in the Rules of the Chief Administrator, 22 NYCRR § 130–1.1(c), and that pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130.1.1(d), “[a]n award of costs or the imposition of sanctions may be made ... upon the court's own initiative, after a reasonable opportunity to be heard,” this Court will conduct a hearing affording plaintiff CHRISTOPHER EARL–STRUNK “a reasonable opportunity to be heard” and counsel for all defendants may present to the Court detailed records of costs incurred by their clients in the instant action, before me in Part 27, on Monday, May 7, 2012, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn, N.Y. 11201; and it is further
ORDERED, that Ronald D. Bratt, Esq., my Principal Law Clerk, is directed to serve this order by first-class mail, upon CHRISTOPHER EARL–STRUNK, 593 Vanderbilt Avenue, No. 281, Brooklyn, New York, 11238 and upon counsel for all defendants in this action.
This constitutes the Decision and Order of the Court.