Strunk v New York State Bd. of Elections
Annotate this CaseDecided on December 9, 2013
Supreme Court, Kings County
Christopher Earl Strunk, in esse , Plaintiff,
against
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.
6500/11
Plaintiff:
Christopher Earl Strunk, pro se
Brooklyn NY
Defendants:
ERIC T SCHNEIDERMAN, attorney general
by Joshua Pepper, Esq.
for New York State Bd of Elections
NY NY
Simpson Thacher & Bartlett, LLP
by Paul Gluckow, Esq.
for Peter Peterson
McGuire Woods LLP
by Marshall Biel, Esq.
for Brzezinskis
NY NY
MICHAEL A. CARDOZO
Corp Counsel
by Chlarens Orsland, Esq.
NY NY
Arthur M. Schack, J.
The instant motion by pro se plaintiff CHRISTOPHER EARL STRUNK seeks to renew and reargue, pursuant to CPLR Rule 2221 (f), my decision and order of March 29, 2013 (39 Misc 3d 1203 [A]) and, pursuant to CPLR Rule 3025 (b) and (c), seeks leave to supplement the complaint in this action, despite my dismissal of the complaint with prejudice in my April 11, 2012 decision and order (35 Misc 3d 1208[A]). In my March 29, 2011 decision and order, I held at * 1:
Pro se plaintiff CHRISTOPHER EARL STRUNK brought the
instant action, with plaintiff's complaint described, in my April 11,
2012 decision and order (35 Misc 3d 1208[A]), at * 1, as "a rambling,
forty-five page variation on birther cases.'" I observed, at * 2 - 3, of
my April 11, 2012 decision and order:
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 stateconstitutional 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 [*2]
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 presented to the Court eleven motions
to dismiss, which were all granted. I held, at *3, of my April 11, 2012 decision and order that "[i]t 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." Further, I held in my April 11, 2012 decision and order,
at * 3:
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.
Background
My April 11, 2012 decision and order explains in lengthy detail how plaintiff STRUNK engaged in frivolous conduct. Further, I observed, at * 3 - 4, of the April 11, 2012 decision and order:
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 (US 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 [*3]
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 David 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.
In my April 11, 2012 decision and order, at * 14, I noted that:
"[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 US 319, 325 [1989]). Plaintiff STRUNK, as cited above, alleges numerous fanciful, fantastic, delusional, irrational and baseless claims about defendants.
Further, at * 16, I held that:
the prosecution of the instant action by plaintiff STRUNK, with its
fanciful, fantastic, delusional, irrational and baseless claims about
defendants 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." [*4]
In my March 29, 2013 decision and order, after conducting a sanctions hearing on May 7, 2012, I found, as noted above, that plaintiff STRUNK engaged in "frivolous conduct" and awarded costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorneys' fees, resulting from the frivolous conduct of plaintiff STRUNK, as well as sanctions.
The instant motion is denied in its entirety. Renewal is inappropriate because plaintiff presents no new facts that he could have included previously or that would have changed the prior result. Reargument is denied because plaintiff fails to identify any legal or factual misapprehension by the Court in imposing costs and sanctions. Moreover, plaintiff's arguments are no more persuasive than when first offered. Further, the Court cannot grant leave to amend a complaint that has been dismissed.
Discussion
A party, to obtain an order of renewal, must demonstrate new facts that could not have been ascertained at the time of the original motion. (CPLR Rule 2221 [e]; Schlesinger v Harleysville Worcester Ins. Co., 41 AD3d 692, 693 [2d Dept 2007]). Further, the new facts must be such that would have changed the prior determination. (CPLR Rule 2221 [e]; Cusimano v Strianese Family Ltd. Partnership, 97 AD3d 744, 746 [2d Dept 2012]; Siculan v Koukos, 74 AD3d 946, 947-948 [2d Dept 2010]; Cohen v Wallace and Minchenberg,39 AD3d 690, [2d Dept 2007]). Moreover, the movant must present reasonable justification for the failure to present such facts on the prior motion. (CPLR Rule 2221 [e]; Khan v Nelson, 68 AD3d 1062, 1063 [2d Dept 2009]).
Plaintiff STRUNK presents one allegedly new fact - that on Election Day, November 6, 2012, he could only cast a single combined vote for President and Vice President, rather than separate votes for each [¶ 15 of affidavit in support of motion]. The combined ballot for electors comports with Election Law § 12-100, which has been in place in its present form since 1976. Plaintiff should have reasonably known that New York State would utilize a combined ballot, as it has done in presidential elections for decades. Thus, this is a new fact that could have been ascertained at the time of the original motion. Renewal "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." (Matter of Beiny, 132 AD2d 190, 210 [1d Dept 1987]). Moreover, a combined ballot for Presidential and Vice Presidential electors has nothing to do with the issue of plaintiff's frivolous conduct. The electors vote separately for President and Vice President, pursuant to the Twelfth Amendment and Election Law §§ 12-104, 12-106 , when they meet in December after the Presidential election as the Electoral College.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion." (CPLR Rule 2221 [d] [2]). This motion is "addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts of law or for some reason mistakenly arrived at its earlier decision." (Carrillo v PM Realty Group, 16 AD3d 611 [2d Dept 2005]). (See V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874 [2d Dept 2010]; Ickes v Buist, 68 AD3d 823 [2d Dept 2009]; Barnett v Smith, 64 AD3d 669 [2d Dept 2009]; Singletont v Lenox Hill Hospital, 61 AD3d 956 [2d Dept 2009]; Mazzei v Licciardi, 47 AD3d 774 [2d Dept 2008]; E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d [*5]653 [2d Dept 2007]).Plaintiff STRUNK failed to demonstrate to the Court that it overlooked or misapprehended matters of fact or law. A party moving to reargue cannot present new arguments not presented in the original moving papers. "A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented." (Amato v Lord & Taylor Inc., 10 AD3d 374, 375 [2d Dept 2004]). "A motion for reargument is not an appropriate vehicle for raising new questions, such as those now urged upon us, which were not previously advanced." (Simpson v Loehmann, 21 NY2d 990 [1968]). (See Giovaniello v Carolina Wholesale Office Mach. Co., Inc., 29 AD3d 737 [2d Dept 2006]; Pryor v Commonwealth Land Title Ins. Co., 17 AD3d 434 [2d Dept 2005]). Plaintiff STRUNK in the instant motion fails to address the grounds upon which this Court imposed costs and sanctions, namely his frivolous conduct and use of the complaint and motions to harass defendants.
Primarily, plaintiff STRUNK attempts to revisit this Court's dismissal of his complaint. With respect to plaintiff's argument that this Court misapprehended his argument
that President Obama is not a "natural-born" citizen, plaintiff STRUNK contends that this Court construed plaintiff's definition of that term to require that both of the President's parents be natives of the Untied States, when he was arguing that both parents must have been United States citizens. This is of no moment because this Court dismissed the complaint based upon lack of standing and collateral estoppel. Further, as to the merits of this argument, the Fourteenth Amendment defines citizenship as "[a]ll persons born or naturalized in the Untied States." Moreover, the United States Supreme Court held, in Miller v Albright (452 US 420, 423-424 [1998]), that:
There are "two sources of citizenship and two only: birth and
naturalization." United States v Wong Kim Ark, 169 US 649, 702
(1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person "born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of
the United States, and needs no naturalization." 169 US at 702.
Thus, anyone born in the United States is a natural-born citizen, irrespective of parentage.
The branch of plaintiff's motion for leave to supplement the complaint, pursuant to
CPLR Rule 3025 (b) and (c) is denied as palpably insufficient and devoid of merit. The complaint was dismissed by this Court more than one year prior to plaintiff STRUNK moving to amend the complaint. The Court, in Smith-Hoy v AMC Property Evaluations, Inc. (52 AD3d 809, 811 [2d Dept 2008], instructed:
The Supreme Court properly denied that branch of the plaintiffs'
cross motion which was for leave to amend their complaint. A motion
for leave to amend the complaint pursuant to CPLR 3025 (b) should be
freely granted unless the proposed amendment is "palpably insufficient"
to state a cause of action or is patently devoid of merit (Lucido v
Mancuso, 49 AD3d 220, 229 [2d Dept 2008]).
[*6]
Further, the allegations that plaintiff seeks to add regarding the combined Presidential and Vice Presidential ballot fail on their face to state a cause of action. The combined ballot for President and Vice President conforms to the Twelfth Amendment and the Election Law.
In sum, the plaintiff continues to makes lawsuits and motions with the same baseless allegations. Plaintiff's motion is denied in its entirety.
Conclusion
Accordingly, it is
ORDERED that, the motion of plaintiff CHRISTOPHER EARL STRUNK to renew and reargue, pursuant to CPLR Rule 2221 (f), my decision and order of March 29, 2013 (39 Misc 3d 1203 [A]) and, pursuant to CPLR Rule 3025 (b) and (c), seeking leave to supplement the complaint in this action, despite my dismissal of the complaint with prejudice in my April 11, 2012 decision and order (35 Misc 3d 1208[A]), is denied in its entirety.
This constitutes the Decision and Order of the Court.
ENTER
____________________________ HON. ARTHUR M. SCHACKJ. S. C.
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