C:\Documents and Settings\newuser\Local Settings\Temp\XPgrpwise\skelos-paterson(plaintiffespada-affirmation).wpdab initio
THE MOTION TO DISMISS SHOULD BE DENIED IN ALL RESPECTS
PLAINTIFFS ARE ENTITLED TO A DECLARATORY JUDGMENT
CPLR 3211 (C)
THE MOTION TO DISMISS SHOULD BE DENIED IN ALL RESPECTS
PLAINTIFFS ARE ENTITLED TO A DECLARATORY JUDGMENT
CPLR 3211 (C)
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------------------------------x
DEAN G. SKELOS and PEDRO ESPADA, JR., as Index No. 13426/2009 duly elected members of the New York State Senate,
Plaintiffs,
-against
DAVID PATERSON, as Governor of the State of New York and RICHARD RAVITCH , as putative nominee for Lieutenant Governor of the State of New York and LORRAINE CORTES-VASQUEZ, as Secretary of State of the State of New York,
Defendants. ----------------------------------------x
MEMORADUM OF LAW IN OPPOSITION TO CROSS MOTION TO DISMISS AND MOTION SEEKING CHANGE OF VENUE
DAVID L. LEWIS, ESQUIRE Attorney for Plaintiff Skelos 225 Broadway, Suite 3300 New York, New York 10007 (212) 285-2290
JOHN CIAMPOLI, ESQUIRE Attorney for Plaintiff Espada 677 Broadway, Suite 202 Albany, New York 12210
PRELIMINARY STATEMENT
POINT I
THE GOVERNOR HAS ACTED CONTARY TO THE STATE CONSTITUTION AND CONTRARY TO THE BASIC ORGANIC STRUCTURE OF GOVERNMENT IN THE STATE BY “APPOINTING” A LIEUTENANT GOVERNOR AND THUS VIOLATING
THE ELECTIVE PRINICPLE EMBODIED THEREIN
A. The Constitution Mandates That The Office Of Lieutenant Governor Is To Remain Empty Upon Death, Resignation, Or Removal Of The Occupant.
B. The Fact That Prior Governors Did Not Assert This Power Of Appointment Points Up That The Novel Interpretation Has Been Considered And Rejected.
OTHER STATES
C. Read In Context, Ward v. Curran Provides No Legitimate Basis For The Actions Of The Governor And Is Wholly Misplaced As Authority When Properly Read And Understood.
sub silentio
D. Public Officers Law 43 Does Not Apply Because The Office Of The Lieutenant Governor Is Not An Elective Office.
POINT II
POINT III
THE MOTON TO CHANGE VENUE SHOULD BE REJECTED BECAUSE VENUE IS PROPER IN NASSAU COUNTY
A. Venue Is Based On The Residence Of The Plaintiff Dean G. Skelos
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B. Plaintiffs Do Not Seek To Restrain The Governor In Exercise Of Statutory Duty But To Enjoin an Unconstitutional And Illegal Act, Thus Venue Rule Of CPLR 6311 (1) Is Inapplicable.
from performing a statutory duty
C. CPLR 506 (b) Provides No Basis For Change Of Venue.
D. Venue Is Not Jurisdictional and Thus The Remedy Is Transfer, Not Dismissal.
POINT IV
THE MOOTNESS DOCTRINE IS NOT APPLICABLE TO THE DECLARATORY JUDGMENT ACTION
POINT V
QUO WARRANTO IS NOT THE EXCLUSDIVE REMEDYWHEN THE MATTER IS SOLELY ONE OF LAW
Quo Warranto
Quo Warranto
Quo Warranto
quo warranto
see also,
lv denied
quo warranto
quo warranto
quo warranto
quo warranto
POINT VI
THE MOTION TO DISMISS SHOULD BE DENIED IN ALL RESPECTS
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CONCLUSION