Strunk v Board of Elections City of N.Y.
Annotate this CaseDecided on April 3, 2013
Supreme Court, Kings County
Christopher-Earl Strunk, Petitioner,
against
Board of Elections City of New York, Hakeem Jeffries, Felix Ortiz, Keith L.T. Wright, Mario Cilento et al., Respondents.
21948/12
Plaintiff - Self-Represented , Christopher Strunk, 593 Vanderbilt Avenue, #281, Brooklyn, NY 11238
Defendant Attorney: Colleran, O'Hara & Mills, LLP, 1225 franklin Avenue, Suite 450, Garden City, NY 11530.
David I. Schmidt, J.
Upon the foregoing papers in this Article 78 proceeding, respondents Felix Ortiz and Keith L.T. Wright moves to dismiss the petition against them. In a separate motion, respondent Mario Cilento moves to dismiss the petition against him.
On November 14, 2012, petitioner Christopher-Earl Stunk commenced this proceeding by filing a petition with the County Clerk. Among other things, the petition sought an injunction staying the December 15, 2012 vote of the New York Electoral College as well as a judgment declaring that Presidential Electors who comprise the Electoral College are precluded by their fiduciary and legal duties from voting for President Obama. In this regard, it is petitioner's contention that President Obama is not qualified to serve as President of the United States inasmuch as he is not a natural-born citizen of the United States as [*2]required under relevant provisions of the United States Constitution.[FN1]
Respondents Ortiz, Wright, and Cilento, all of whom are Presidential Electors and members of New York State's Electoral College, now move to dismiss the petition as against them. In support of his motion, Cilento argues that: petitioner lacks standing; the petition fails to state a claim upon which relief can be granted; the petitioner's claims are barred by collateral estoppel, and that petitioner failed to properly serve the petition. Respondent Celento further argues that petitioner should be sanctioned under 22 NYCRR 130-1.1(a) for engaging in frivolous conduct. In support of their subject, respondents Wright and Ortiz raise these same arguments. In addition, Wright and Ortiz argue that the petition must be dismissed as moot inasmuch as the Electoral College vote has already taken place.
In opposition to the motion, petitioner contends that the subject respondents are "de facto state officers," and as such, were properly served pursuant to CPLR 307. Petitioner also argues that collateral estoppel does not bar his claims inasmuch there has never been a trial of facts regarding his underlying claim - namely the President Obama's Hawaiian birth certificate is a forgery. Petitioner further contends that he does have standing in this matter in his capacity as a private citizen under the 14th Amendment. In addition, petitioner argues that his claims are justiciable inasmuch as the members of the New York State Electoral College are subject to the jurisdiction of state court. Finally, petitioner argues that his claims are not moot inasmuch as the likelihood of repetition and a continued injury requires a decision by the court.
Initially, it is clear that respondent failed to properly serve the moving respondents with the petition. In particular, it is undisputed that petitioner merely mailed a copy of the notice of petition and petition to the movants, which does not satisfy the requirements for service upon an individual set forth in CPLR 308 (Matter of Charters III v Vegiante, 2 AD3d 730, 731 [2003]). Moreover, even if the court were to deem the moving respondents to be state officers, petitioner failed to properly serve said respondents in accordance with CPLR 307. Consequently, the petition must be dismissed as against the moving respondents based upon lack of personal jurisdiction.
Further, even if petitioner had properly served the petition, the matter would have to be dismissed based upon additional fatal defects. Specifically, petitioner lack standing. In this regard, in an Article 78 proceeding, "a private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all tax-payers and citizens, has no standing to sue" (Matter of Meehan v County of Westchester, 3 AD3d 533, 534 [2004]). Here, petitioner has not demonstrated any such special rights or interest other than those common to all citizens. In addition, the petition fails to state any cognizable claim against the moving respondents under either New York State Election Law, Federal Law, or the common-law. Moreover, inasmuch as the New York State Electoral College has already voted, petitioner's claims against the moving respondents are moot (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 810 [2003]). [*3]
As a final matter, under the circumstances presented, the court declines to impose sanctions against petitioner.
Accordingly, the respondents' motions are granted to the extent that the petition is dismissed as against respondents Ortiz, Wright, and Cilento.
This constitutes the decision and order of the court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: The petition also seeks to void the election of New York Senator Kirsten Gillibrand.
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