defendants motions

8/14/2019 Defendants Motions

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RENSSELAER CITY COURTCOUNTY OF RENSSELAERNORTH GREENBUSH DEMOCRATIC COMMITTEE

Plaintiff,-against-

JEFFREY SPAIN. Defendant,

ANSWERMOTION TO DISMISSAFFIRMATIVE DEFENSESINDEX No. SC-9043

The Defendant, Jeffrey Spain by and through his attorney, A. Joshua Ehrlich, Esq., asand for a Motion to Dismiss, Answer and Affmnative Defenses herein respectfully alleges:

I .

AS AND FOR A FIRST MOTION TO DISMISSTHE COURT LACKS SUBJECT MATIER JURISDICTION

1. The Plaintiff fails to state a cause of action upon which relief can be granted.2. The Plaintiff North Greenbush Democratic Committee, in its fund raising and

expenditure component, is a "constituted committee" as defined under 14-100.3 and 14-100.4 of the Election Law. The committee's receipts and expenditures aregenerally governed under Article 14 of the Election Law ofNew York State. Since thisis an Election Law action, it must be brought pursuant to Article 16, specifically 16-100, 16-102 and 16-114, of the Election Law or Article 78 of the CPLR. In eitherevent, this Court lacks jurisdiction over this action.

3. Therefore this action should be dismissed.II.


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AS AND FOR A SECOND MOTION TO DISMISS

4. The Defendant repeats and realleges each and every allegation contained inparagraphs numbered I through33 inclusive, as if fully set forth herein.

5. There are no parties to this action residing in the City ofRensselaer. In fact all reside inthe Town ofNorth Greenbush.

6. Therefore, venue is improper and the case should be dismissed.ill.

AS AND FOR A TIllRD MOTION TO DISMISS

7. Defendant repeats and realleges each and every allegation contained in paragraphsnumbered 1 through 6 inclusive, as if fully set forth herein.

8. This is a political vendetta between factions of the North Greenbush DemocraticCommitte. The Defendant was the Chair from October Of2007 to October of2009.This action was brought to invole and use the Court in a political dispute s well as anattempt to punish the defendant for ousting the current leadership two years ago.

9. It has long been held that courts should not intervene or interfere with the internalworkings ofa party (Bloom v. Notaro, 67 N.Y.2d 1048, 1986; Bachmann v. Coyne 99A.D. 2d 742, 2nd Dept., Iv . den. 61 N.Y.2d 607, 1984; Essenberg v. Kresky, supra).This is a case for such abstention by the Court.

IV.AS AND FOR A FOURTH MOTION TO DISMISS

10.The Defendant repeats and realleges each and every allegation contained inparagraphs numbered 1 through 9 inclusive, as iffully set forth herein.


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11.This case is couched with an underlying equitable claims "breech 01 fiduciary duty,conversion, negigence." These are equitable notions that essentially demandaccounting. Under the relevant case law, Hellamnv. Ploss, 46A.D 658,(2nd Dept.

1974); Menkis v. Whitestone Savings & LoanAssociation, 74 Misc. 2d 329, (NassauCounty District Court 1974); Kaminsky v. Kahn,20 NY2d 753 (1967); Raabv.BowreySavings Bank, 77 Misc.2d 1054 (NYC Civ. CT.1974); There is no grounds for smallclaims court jurisdiction in an equitable action that essentially demands anaccounting.

12 ..Therefore the case must be dismissed.v.

AS AND FOR A FIFfH MOTION TO DISMISS13. The Defendant repeats and realleges each and every allegation contained in

paragraphs numbered 1 through 12 inclusive, as if fully set forth herein.14.In this instance where the North Greenbush Democratic Committee account as turned

over to the Treasurer in 2008, it watf; discovered that several checks were written and (cashed by the committee principals. A demand ~ f o r documentation was ignored.

15. Essentially, the plaintiffs come into this Court with unclean hands, accusing theDefendant of doing just they did b e ~ they turned over control of the a c c o

16. Therefore the case should be dismissed.VI

AS AND FOR A SIXm MOTION TO DISMISS


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17.The Defendant repeats and realleges each and every allegation contained inparagraphs numbered 1 through 6 inclusive, as iffully set forth herein.

18. The responrnsible party for control of a political or constituted committee under the

election law is the treasurer (see Article 14 , 14-102, 14-104, 4-106, et.seq . NewYork State Election Law).

19. In this case the Treasurer has not been named nor is he a party or witness to anythingin this action. Without his testimony, evidence of the transactions cannot even beintroduced. He is a necessary party not present.

20.Therefore, the action must be dismissed.VII.

AS AND FOR A SEVENTH MOTION TO DISMISS

21.The Defendant repeats and realleges each and every allegation contained I IIparagraphs numbered 1 through 20 inclusive, as if fully set forth herein.

22.If the funds in question were improperly disbursed, which the defendant maintainswere legal expenditures of the Committee under law, why have the recipients notbeen joined in this action to recover the funds?

23 .Upon information and belief, no demand has been made on the recipients to recoverthe funds by the current treasurer.

24.The recipients here would seem to be necessary parties as well and therefore shouldhave been joined in this action.

25. Therefore the action must be dismissed.vm.


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AS AND FOR A EIGHTH MOTION TO DISMISS

AND AN AFIIRMATIVE DEFENSE

26.The Defendant repeats and realleges each and every allegation contained in

paragraphs numbered 1 through 25 inclusive, as if fully set forth herein.27. Expenditures by constiututed committees are goverened under the aforementioned

Election Law of the State ofNew York.28.Specifically 14-130 of the law states: "Contributions received by a political

committee may be expended for any lawful purpose. Such funds shall not beconverted by any person to a personal use which is unrelated to a campaign or theholding of a public office or party position." Election Law, McKinneys 2009.

29. In the instant case, Mr Spain paid Committee bills and donated money to charity inaccordance with the law and the opinions of the State Board ofElections.

30.Not one cent of the money went for his personal use nor did he profit in any way bythese transactions.

31.At all times his actions were legal and proper.32.Therefore the action should be dismissed.

Dated: September 8 , 2009Yours, etc.

Attorney for the Defendant71 Grove AvenueAlbany, NY 12208


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STATE OF NEW YORK)ss.:COUNTY OF RENSSELAER)

VERIFICATION

Mailing addressP.D. Box 7273Capitol StationAlbany, NY 12224518-334-1502

Jeffrey Spain, being duly sworn, deposes and says: that he is the Defendant in the withinproceeding; that he has read the foregoing Amswer, Motion to Dismiss and AffirmativeDefenses and knows the contents thereof; that the same is true to his own knowledge, except asto matters therein stated on information and belief, and that as to those matters, he believes it tobe true.

~ ~ Sworn before me this 8th day of JltIll!My, 2009

A. Joshua EhrlichNOTARY PUBLIC STATE OF NEW YORK02EH5045357Qualified in Albany CountyMy Commission Expires July 8, 2011


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RENSSELAER CITY COURTCOUNTY OF RENSSELAERNORTH GREENBUSH DEMOCRATIC COMMITTEE

Plaintiff,-against-JEFFREY SP AlN.

Defendant,

SUPPLEMENTAL ANSWERMOTION TO DISMISSAFFIRMATIVE DEFENSESINDEX No. SC-9043

The Defendant, Jeffrey Spain by and through his attorney, A. Joshua Ehrlich, Esq., asand for a Supplemental Motion to Dismiss, Answer and Affirmative Defenses herein respectfullyalleges:

IX .AS AND FOR A NINTH MOTION TO DISMISS

THE TOWN COMMITTEE LACKS STANDIDNG TO INSTITUTE AN ACTION INSMALL CLAIMS

1. The Defendant repeats and realleges each and every allegation contained inparagraphs contained in the original Answer, Motions to Dismiss and MfirmativeDefenses, as if fully set forth herein.

2. The Plaintiff North Greenbush Democratic Committee, is an association governedunder Article 14 of the Election Law and the General Associations Law (Book 18A,McKinney's, 2009, see e.g. Carter v. O'Hare, 69 Misc.2d 917, 1972).


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3. The Unifonn City Court Act gives this Court Jurisdiction for Small Claims underArticle 18 of Judiciary Law (Book 29A, Part 3 McKinney's 2009).

4. Section 1809, subdivision 1 specifically states: "1. No Corporation, except a municipalcorporation, public benefit corporation, school district or school district public librarywholly or partially within the municipal corporate limit, no partnership or associationand no assignee of any small claim shall institute an action or proceeding under thisarticle, nor shall this article apply to any claim or cause of action brought by an insurerin its own name or in the name of its insured whether before or after payment to theinsured on the policy." (Book 29A, Part 3 McKinney's 2009, emphasis added)

5. Furthennore, the CPLR and the Unconsolidated Laws indicate that an action of thisnature must be brought in Supreme Court, with all of the necessary index, filing andservice fees and requirements met. In any event, the plaintiffs lack standing to sue inthis Court.

6. Therefore this action must be dismissed.Dated: September 15 , 2009

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Yours, etc.

a 'hua hr lCh, Esq.rney for the Defendant

71 Grove AvenueAlbany, NY 12208Mailing addressp.o. Box 7273Capitol StationAlbany, NY 12224518-334-1502

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