Schulz v. Cuomo

• Decision Date: 05 November 2015
• Citation: 22 N.Y.S.3d 602,133 A.D.3d 945
• Parties: Robert L. SCHULZ, Appellant, et al., Plaintiffs, v. Andrew M. CUOMO et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 945
22 N.Y.S.3d 602

Robert L. SCHULZ, Appellant, et al., Plaintiffs,
v.
Andrew M. CUOMO et al., Respondents, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 5, 2015.

22 N.Y.S.3d 603

Robert L. Schulz, Queensbury, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for Andrew M. Cuomo, and others, respondents.

Steven A. Crain and Daren J. Rylewicz, Civil Service Employees Association, Albany (Paul S. Bamberger of counsel), for Danny Donohue, respondent.

Zachary W. Carter, Corporation Counsel, New York City (Elizabeth I. Freedman of counsel), for Michael R. Bloomberg, respondent.

Before: EGAN JR., J.P., ROSE, DEVINE and CLARK, JJ.

EGAN JR., J.P.

133 A.D.3d 945

Appeal from an order of the Supreme Court (O'Connor, J.), entered February 6, 2014 in Albany County, which, among other things, granted certain defendants' motions

22 N.Y.S.3d 604

to dismiss the complaint against them.

N.Y. Constitution, article XIX, § 2 provides—in relevant part—that, beginning in 1957 and every 20th year thereafter (in addition to such times as the Legislature may provide by

133 A.D.3d 946

law), "the question ‘Shall there be a convention to revise the constitution and amend the same?’ shall be submitted to and decided by the electors of the state." In the event that a majority of the electorate votes in favor of such a convention, "the electors of every senate district of the state, as then organized, shall elect three delegates at the next ensuing general election, and the electors of the state voting at the same election shall elect [15] delegates at large" (N.Y. Const., art. XIX, § 2 ). The delegates duly elected then convene the following April and "continue their session until the business of such convention shall have been completed" (N.Y. Const., art. XIX, § 2 ).

Plaintiff Robert L. Schulz and numerous other pro se litigants¹ commenced this action seeking a declaration that it would be a conflict of interest for defendants and all those similarly situated to serve as delegates to a future New York State Constitutional Convention and, further, to permanently enjoin them from becoming delegates at such convention.² Specifically, the complaint alleges that, consistent with the provisions of N.Y. Constitution, article XIX, § 2, the following question shall appear on the ballot for the November 2017 general election: "Shall there be a convention to revise the Constitution and amend the same?" The complaint further alleges that, if such a convention was approved by the electorate, it would be contrary to "the essential principles of popular sovereignty, self-government and [the] separation of powers" for defendants and those similarly situated to be elected as delegates to such convention and, in turn, to vote upon issues related to the restriction of their own powers.

Defendants Andrew M. Cuomo, Dean G. Skelos, Jonathan Lippman, Michael R. Bloomberg, Danny Donohue and Ed Cox (hereinafter collectively referred to as defendants)³ moved, by four separate motions, to dismiss the complaint against them contending, among other things, that plaintiffs' claims are not

133 A.D.3d 947

justiciable and, further, that the complaint fails to state a cause of action (see CPLR 3211[a][2], [7] ). Supreme Court granted defendants' respective motions, finding that such claims were not ripe for adjudication, and dismissed as moot plaintiffs' order to show cause seeking to certify each class of defendants.⁴ This appeal ensued.

22 N.Y.S.3d 605

We affirm. "[I]n order to warrant a determination of the merits of a cause of action, [the] party requesting relief must state a justiciable claim—one that is capable of review and redress by the courts at the time it is brought for review" (Hussein v. State of New York, 81 A.D.3d 132, 135, 914 N.Y.S.2d 464 [2011], affd. 19 N.Y.3d 899, 950 N.Y.S.2d 342, 973 N.E.2d 752 [2012] ). A claim is justiciable, in turn, when two requirements are met: first, that the plaintiff has "an interest sufficient to constitute standing to maintain the action" and, second, that the underlying controversy "involve[s] present, rather than hypothetical, contingent or remote, prejudice to [the] plaintiff[ ]" (American Ins. Assn. v. Chu, 64 N.Y.2d 379, 383, 487 N.Y.S.2d 311, 476 N.E.2d 637 [1985], appeal dismissed and cert. denied 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 [1985] ; accord Police Benevolent Assn. of N.Y. State Troopers, Inc. v. New York State Div. of State Police, 40 A.D.3d 1350, 1352, 838 N.Y.S.2d 199 [2007], appeal dismissed and lv. denied 9 N.Y.3d 942, 844 N.Y.S.2d 783, 876 N.E.2d 511 [2007] ). As plaintiffs did not satisfy either of those requirements, Supreme Court...