SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, THIRD DEPARTMENT Affirmation of Andrew B.

Ayers In Response to Motions for Leave to Appeal to the Court of Appeals Alb. Cty. Index No. 1787-2012

H. William Van Allen in esse., Petitioner-Appellant,

us.

NEW YORK STATE BOARD OF ELECTIONS, Respondent.

ANDREW B. AYERS, an attorney admitted to practice before the courts of this State, affirms the following under penalties of perjury: 1. I am an Assistant Solicitor General in the office of Eric T.

Schneiderman, Attorney General of the State of New York, and attorney for respondent. 2. I submit this affirmation in response to petitioner's motion for "leave

for a direct appeal to the Court of Appeals." 3. In this proceeding under article 78, petitioner seeks a writ of

mandamus, injunctive relief, and declaratory relief, seeking to compel the respondent Board of Elections to remove Barack Obama from New York ballots in November; petitioner claims that President Obama is disqualified because his father was not a United States citizen. (See Petition, Exhibit B to Petitioner's Motion Papers.) Supreme Court, Albany County (Platkin, A.J.S.C.), dismissed the petition because petitioner lacks standing. (Decision and Order of July 9, 2012,

Exhibit A to Petitioner's Motion Papers.) 4. Petitioner now moves for "leave for a direct appeal to the Court of

Appeals with CPLR 5602(b)." (Van Allen Affidavit ~ 1.) This Court may grant permission to appeal under 5602(b) only in two situations, neither of which exists here. The first is when petitioner seeks to appeal "from an order of the appellate division which does not finally determine an action." CPLR 5602(b)(1). Petitioner does not seek leave to appeal an appellate division order. Section 5602(b)(2) applies only in "an action originating in a court other than the supreme court [or other enumerated courts]." Id. 5602(b)(2). This proceeding originated in Supreme Court. Thus, 5602(b) does not allow this Court to authorize an appeal. 5. Petitioner also references CPLR 5602(a)(1)(ii) (Van Allen Aff. ~ 5),

but that section applies only "where the appellate division has made an order on a prior appeal in the action," 5602(a)(1)(ii), which this Court has not done. 6. Finally, petitioner references CPLR 5601(b)(1) (Van Allen Aff. ~ 5),

but that section applies only when a party seeks to appeal "from an order of the appellate division which finally determines an action." 5601(b)(1). And, in any event, 5601 does not provide for discretionary leave grants. 7. Because no statutory provision authorizes petitioner to appeal directly

to the Court of Appeals, the motion should be denied.

Dated:

September 14, 2012 Albany, New York

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