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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY

ERIC J. SNYDER, taxpayer and registered voter,

Petitioner-Plaintiff,

- against-

JAMES A. WALSH and DOUGLAS A. KELLNER,

Chairmen of the BOARD OF ELECTIONS OF THE STATE

OF NEW YORK and their successors in Office,

Co-

Respondents-Defendants.

SIRS:

Index No. 5549-13

Notice of Motion

PLEASE TAKE NOTICE that upon the annexed Affirmation of Paul M. Collins, Esq., made the 9 th day of October,20 13 , the Memorandum of Law in Support of Motion to Dismiss and all of the proceedings heretofore had herein, in accordance with the Order to Show Cause of Hon. Michael Lynch, J.S.C., the undersigned will move this Court at 9:30 o'clock in the forenoon of October 11,2013 at the Albany County Court Courthouse, Eagle Street, Albany, New York for an Order dismissing this proceeding pursuant to CPLR §3211 (a)(2),(5)(7) and (10) and §7804(f).

PLEASE TAKE FURTHER NOTICE that answering papers, ifany are due to be served on or before October 10, 2013.

October 9, 2013

To: Eric 1. Snyder, Esq. 598 Fifth Street Brooklyn, New York 11215

(service via email)

@/#-

Paul M. Collins, Esq. Deputy Special Counsel New York State Board of Elections 40 North Pearl St. STE 5 Albany, New York 12207-2729 (518) 473-5088

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY

ERIC J. SNYDER, taxpayer and registered voter,

Petitioner-Plaintiff,

- against-

JAMES A. WALSH and DOUGLAS A. KELLNER,

Chairmen of the BOARD OF LECTIONS OF THE STATE OF NEW YORK and their successors in Office,

Co-

Respondents-Defendants.

Index No. 5549-13

Affirmation in Support of Motion to Dismiss

PAUL M. COLLINS, Esq., and attorney duly licensed to practice law in the State of New York,

affirms under penalty of perjury as follows:

1. That he is the Deputy Special Counsel for the New York State Board of Elections and

appears for the Respondents-Defendants James A. Walsh and Douglas A. Kellner, Co-Chairmen

of the State Board of Elections (hereinafter "Respondents").

2. That he does not appear for the New York State Board of Elections as that entity is not a

party to this proceeding nor does he appear for the remaining Commissioners of the State Board,

Evelyn. 1. Aquila and Gregory P. Peterson as neither ofthose Commissioners have been made a

party to this proceeding.

3. That he is fully familiar with the facts set forth herein and makes this Affirmation in

support of the instant motion to dismiss this proceeding pursuant to CPLR §3211(a)(5), (7) and

(10) and §7804(f) for the reasons set forth hereinafter and in the attached Memorandum of Law

in Support of Motion.

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Relief Sought in the Petition/Compliant:

4. Any reading of the Petition/Compliant reveals that the Petitioner seeks to challenge the

certification of the Casino Gaming ballot proposal as made by the New York State Board of

Elections at a meeting held on July 29,2013. Petitioner concedes that the language challenged in

this proceeding was approved by the State Board of Elections on July 29,2013

(Petition/Complaint ~"16").

5. By way of relief, Petitioner seeks an injunction barring the language certified by the State

Board from being used on the November ballot, or alternatively, barring the appearance on the

ballot of the Casino Gaming question.

6. As Petitioner seeks both a review of the administrative action of the State Board, an order

enjoining the implementation of that certification (First Claim for Relief, Petition ~,-r"36"

through "41", WHEREFOR CLAUSE (b)). and an Order that the State Board has acted "outside

of its jurisdiction by including Advocating Language" (WHEREFOR CLAUSE (c) he has

correctly styled his proceeding an Article 78 proceeding. To the extent that he also seeks a

judicial declaration that the Board acted, "in excess of its authority and outside of its jurisdiction

(Second Claim for Relief, Petition ~,-r"42" through "48" (WHEREFOR CLAUSE (c) and (d)

this is a classic Article 78 proceeding in the nature of prohibition.

7. By way of ancillary relief, Petitioners seeks a declaration that the expenditure of public

funds in creating a ballot which contains the language as certified by the State Board of Elections

constitutes an expenditure of public funds upon a private purpose purportedly in violation of

Article VIII, §8(l) of the New York State Constitution and a writ of prohibition with respect to

such expenditures (WHEREFOR CLAUSE (a)).

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Petitioner has Chosen to Ignore a Legislatively Created Remedy

8. The Legislature, perhaps foreseeing that there might be disputes over wording of ballot

proposals seeking to amend the State Constitution, created a mechanism for a registered voter to

challenge the language certified by the State Board of Elections with respect to such proposals at

the time that it required same be set forth in "a clear and coherent manner using words with

common and every-day meanings" (Elections Law §4-108(2)) in Chapter 136 of the Laws of

1978 (See Legislative Bill Jacket for this Chapter annexed to Memorandum of Law in Support of

Motion to Dismiss as Appendix "C").

9. The 1978 Chapter Amendment also created a remedy for those seeking to challenge the

language of the State Board's certification when it amended Election Law §16-104 by adding

two new subdivisions to that statute:

2. The wording of the abstract or form of submission of any proposed

amendment, proposition or question may be contested in a proceeding instituted by any person eligible to vote on such amendment, proposition or question.

3. A proceeding pursuant to subdivision two of this section must be instituted

within fourteen days after the last day to certify the wording of any such abstract

or form of submission.

10. The Legislature was obviously aware that pursuant to Election Law§4-108(1) the State

Board of Elections was required to certify and transmit to the county boards the abstract and

form of submission, "at least three months prior to the general election at which such

amendment, proposition or question is to be submitted

".

11. It is for that reason that it required that a proceeding to challenge such language be

instituted within fourteen days of such certification. Here with the November elections

scheduled for November 5 th , the certification was due on August 5 th and any proceeding to

challenge same must have instituted by August 19 th This the Petitioner failed to do.

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Petitioner Has Failed to Comply with the Applicable Statute of Limitations

12. CLPR §217, which provides the Statute of Limitations for "proceedings against body or

officer" (Article 78 proceedings) is clear:

1. Unless a shorter time is provided in the law authorizing the proceeding

(CLPR §217(l»

.

13. As Election Law §4-108(3) does contain a shorter Statute of Limitations, Petitioner was

obligated to comply with that period of limitations, which clearly he has failed to do and for that

reason, this proceeding is time barred.

14. The law is long settled that in an Election Law case, no matter how entitled by the

Petition, the Court is without jurisdiction to extend the Statute of Limitations. (See Memorandum

of Law in Support of Motion to Dismiss).

15. The fact that Petitioner has styled this proceeding as "hybrid" Article 78 proceeding and

Declaratory Judgment action does not operate to create a different Statute of Limitations as the

"borrowing" case law makes it clear that a Declaratory Judgment action borrows the most

analogous Statute of Limitations, here either CPLR §217(l) deference to Election Law §4-108(3)

or that statute itself. (See Memorandum of Law in Support of Motion to Dismiss).

16. The Court may take notice that the Petitioner's claim that the statutory authority for the

relief sought is Article 78 or CPLR §103(d) as alleged in 'iI"5" of the Petition/Complaint is

erroneous as a matter oflaw and the authority for this proceeding is Election Law §4-108(2) and

that such proceeding is subject to the Statute of Limitations set forth in Election Law §4-108(3).

Petitioner is Guilty of Laches

17. By failing to timely commence this proceeding and making it returnable on a date after

the county boards of elections have sent out their military ballots, have commenced the process

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of sending out absentee ballots and have commenced the process of creating and testing the

election day ballot, Petitioner has severely prejudiced the various county boards of elections

throughout the state as is more fully set forth in the Declaration of Bonnie Garone, Chief Clerk

of the Nassau County Board of Elections annexed to the Memorandum of Law in Support of

Motion to Dismiss as Appendix "A" at ~~"1"through -"5".

The Petition/Complaint Fails to State a Cause of Action

18. As is more fully set forth in the Memorandum of Law in Support of Motion to Dismiss,

Petitioner predicates his case upon a misreading of the controlling statute, Election Law §4-

108(3) and the controlling Statute of Limitations, Election Law §16-104(3).

19. As the Court's jurisdiction in an Election Law case is dependent upon the petitioner

having brought he challenge in a timely manner, here the Court lacks jurisdiction as the

proceeding is untimely and the Court is without authority to extend the time within which to

bring the proceeding.

Failure to Join Necessary Party

20. At the outset of any consideration ofthis case, it is critical to discern who the Petitioner

has brought before the court and who he had not.

21. A reading ofthe caption and of the Petition/Compliant makes it clear that only James A.

Walsh and Douglas A. Kellner, Co-Chairman have been brought before the Court. The State

Board of Elections is not before the Court, nor are all of its Commissioners.

22. Petitioner could have properly sued either the State Board as an entity or all of its

Commissioners to provide the Court with jurisdiction over all the necessary parties.

23. The Court may take judicial notice of the Legislature's fiat that in order for the State

Board of Elections to take an action, the affirmative vote of three (3) Commissioners is required

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(Election Law §3-100(4):

The affirmative vote of three commissioners shall be required for any official action of the state board of elections.

24. In the face of this statutory requirement, the Respondents before the Court at this time

would be powerless to alter the action taken by the State Board of Elections on July 29,2013,

even if this Court were to enter an Order in favor of Petitioner.

25. Petitioner's choice not to name either the Board as an entity or all of its commissioners in

their official capacities has created this impediment to the Court's ability to fashion meaningful

relief.

26.

Clearly then, the "court should not proceed in the absence of a person who should be a

party" (CPLR 3211 (a)(l 0). That person would of course be, either the remaining two

Commissioners or the Board as an entity.

27. The Petition/Compliant offers no justification for the failure to name those parties and

there simply is no justification for the failure to do so.

28. In another case the appropriate remedy might be an Order mandating that Petition join

either the Board or the remaining commissioners but, for the reasons set forth hereinafter, in this

case that would not be an appropriate solution to Petitioner's self-created impediment to the court

proceeding herein.

Petitioner's Amended Petition/Compliant is a Nullity

31,

As is more fully set out in the Memorandum of Law in Support of Motion to Dismiss,

Petitioner has unilaterally served upon the Respondents Walsh and Kellner an "Amended

petition/Complaint which attempts to add new claims and new parties.

32. Such activity is statutorily prohibited in an Article 16 proceeding, and must be seen as a

nullity for the reason set forth in the Memorandum of Law in Support of Motion to Dismiss,

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33. Affiant brings this to the Court's attention by way of explanation as to why those new

parties have not, and in the absence of the service upon them of a judicial order commanding

them to respond, will not respond to the Amended Petition/Compliant.

34. Commissioners Aquila and Peterson are not submitting themselves to the jurisdiction of

the Court in this proceeding not is the State Board of Elections by advising the Court of

Petitioner's activity in this regard.

35. Similarly Respondents Walsh and Kellner have been commanded by Judge Lynch's

Order to Show Cause to answer the original Petition/Compliant and Petitioner's failure to seek

judicial authorization for his new pleading in violation of Election Law §16-116 absolves them

from the obligation to answer or otherwise move against such claims at this time.

WHEREFORE Affiant prays for an Order dismissing this proceeding its entirety for the

Reasons set forth hereinabove and in the Memorandum of Law in Support of Motion together

with such other and further relief as to the Court may seem just.

October 9,2013

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