ROBERT A. FICALORA, both pro se and as actingpresident of the Montauk Friends of OlmstedParks, inc., a not-for-profit corporation establishedunder the Laws of the State of New York.
Petitioner-Appellant- against -
The PLANNING BOARD AND BUILDINGDEPARTMENT of the town board government ofthe Town of East Hampton.
RespondentsSuffolk Index No. 97-23205
ROBERT A. FICALORA, both pro se and as actingpresident of the Montauk Friends of OlmstedParks, inc., a not-for-profit corporation establishedunder the Laws of the State of New York.
Plaintiff-Appellant- against -
JOSEPH & JOANNE GUARNERI, owners in fee ofSuffolk County tax lot number 47-1-6.1 situate atthe interchange of Route 27 and the old Montaukhighway (Cliff Drive),
- and -THE TOWN BOARD GOVERNMENT OF THE
TOWN OF EAST HAMPTON, 159 Pantigo Road,East Hampton, 11937.
RespondentsSuffolk Index No. 97-17016
Supreme Court of the State of New York - Court of Appeals
Return date:
April 10th, 2000
Robert A. Ficalora
pro se and assignee
Montauk Friends of Olmsted Parks, inc.
Box 2612 Montauk, NY 11954
(516) 668-2525 (Summer)
Cahn, Wishod & Knauer, LLP
Attorneys for Town of East Hampton
Twomey, Latham, Shea &Kelley
Attorneys for defendants Guaneri
Theilen, Reed & Priest, LLP
Attorneys for Brooklyn Historical Society
cc: Edward P. Romain
Clerk, Suffolk County
cc: Alexander Treadwell
Secty of State, State of New York
Omnibus of Motions and Petition
MONTAUK FRIENDS OF OLMSTED PARKS, INC.,a not-for-profit corporation established under thelaws of the State of New York
Plaintiff- against -
THE BROOKLYN HISTORICAL SOCIETY, INC., anot-for-profit corporation established under thelaws of the State of New York (formerly the LongIsland Historical Society) and MS. IRENETICHENOR, as director thereof
DefendantsSuffolk County Index No. 97-14067
Robert A. Ficalora as assignee of MONTAUKFRIENDS OF OLMSTED PARKS, INC., anot-for-profit corporation established under thelaws of the State of New York
Plaintiff- against -
The town board government of East Hampton- and -
Sunbeach Montauk II, inc., as claimant fee titleholder to the Hither Plain Reservation and BathingReservation properties in Montauk.
Defendants.Suffolk County Index No. 98-14806
Table of ContentsOpening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement pursuant court rule 500.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Historical Background
Montauk and the origins of New York Sovereignty . . . . . . . . . . . . . . . . . . . . . . 6
Motions & Petition
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Motion for Re-argument - Ficalora/MFOP v. Planning Board & Building Department of
the Town of East Hampton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
• Attachment A - Decision, N.Y. Court of Appeals, Ficalora v. Planning Board, et. al.,
2/24/2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
• Attachment B. - Resolution of Assignment, 10/28/97 . . . . . . . . . . . . . . . . . . 16
• Attachment C. - Resolution of Assignment, 6/5/98. . . . . . . . . . . . . . . . . . . . 17
• Attachment D. - Resolution of Assignment, 10/26/99 . . . . . . . . . . . . . . . . . . 18
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461 . . . . . . . . 19
• Att. A - Motion to Certify the Record as a non-attorney, 10/1/99 . . . . . . . . . . . . 22
• Att. B. - Cross Motion in Opposition, 10/12/99 . . . . . . . . . . . . . . . . . . . . . 25
• Att. C. - Order requiring attorney by 11/29/99, 10/27/99 . . . . . . . . . . . . . . . . 33
• Att. D. - Motion for reargument, 11/8/99 . . . . . . . . . . . . . . . . . . . . . . . . . 34
• Att. E - Affidavit of Service perfecting Appeal, 11/8/1999 . . . . . . . . . . . . . . . 42
i
• Att. F - CPLR 2105 certification (per 22 NYCRR 670.10(g)) . . . . . . . . . . . . . . 43
• Att. G - Record on Appeal stamped “Fee Paid” & “Received 99 NOV 15” . . . . . . . 44
• Att. H - Papers Rejection Notice, “See Order, 10/27/99” . . . . . . . . . . . . . . . . 45
• Att. I - Affidavit in Opposition to Motion for Reargument, 11/16/99 . . . . . . . . . . 46
• Att. J - Reply to Opposition to Motion for Reargument, . . . . . . . . . . . . . . . . . 50
• Att. K - Appellate Division order denying reargument, 2/15/2000. . . . . . . . . . . . 55
• Att. L - Dismissal for failure to timely perfect, 2/15/2000 . . . . . . . . . . . . . . . . 56
• Att. M - Notice of Entry, 3/2/2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Petition for Removal and Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
• Motion for Allotment and Facilities, 11/8/1999 . . . . . . . . . . . . . . . . . . . . . 63
• Att. A - Resolution of Assignment, 10/26/1999 . . . . . . . . . . . . . . . . . . . . . 70
• Att. B - Sept. 6. 1851 Order of Nathan B. Morse, J.S.C. . . . . . . . . . . . . . . . . . 71
• Opposition to Motion for Allotment and Facilities, 11/11/1999 . . . . . . . . . . . . . 74
• Order denying motion for Allotment and ejectment, 2/17/2000 . . . . . . . . . . . . . 78
Closing Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
• The Journal of the Assembly, January 4th, 1961 vote upon Constitutional Repeals . . . 81
• Summons, 12/30/98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
• Notice, 12/30/98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
• Affidavit of Service, 12/30/98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
• NY Law Journal, Decisions, MFOP v BHS, 11/3/1999 . . . . . . . . . . . . . . . . . 88
• Listing of attachments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ii
Opening Statement
This Omnibus of Motions and Petition is made by Robert A. Ficalora, pro se, both
individually and as acting president and assignee of the Montauk Friends of Olmsted
Parks corporation (MFOP), claimant successor of the Montauk Trustee corporation
established at chapter 139 of the laws of 1852. Movant/petitioner comes before this
court with clean hands and honorable purposes and does pray that the court finds him
at their service.
This court’s February 24th order in the matter of Ficalora, &c v. Planning Board, et.
al. & Ficalora &c v. Guarneri, et al. proclaiming that “Robert A. Ficalora is not the legal
representative of the Montauk Friends of Olmsted Parks corporation” impacts not only that
proceeding and action but all of the other actions brought with this Omnibus of
Motions & Petition. Movant/petitioner asserts that the order is in conflict with the laws
of the State of New York and, therefore, seeks reargument of that order.
This Omnibus also brings a motion for leave to appeal the decision and order the
Appellate Division dismissing the matter of the MFOP, inc., v. the Brooklyn Historical
Society for abandonment when the matter was perfected but refused by the clerk on the
ground of non-representation by attorney. Further, a petition is made for removal of
the case of Robert A. Ficalora as assignee of the Montauk Friends of Olmsted Parks, Inc.,
v. the town board government of East Hampton on the grounds of collateral estoppel,
possible bias and judicial efficiency.
Movant apologizes for the significant disruption caused by these actions. The
Town of East Hampton has no legal or constitutional claim of jurisdiction over
Montauk. Under the Constitution and the law, Montauk is a Township.
1
Statement pursuant court rule 500.11
A consolidated statement pursuant to court rule 500.11 is presented herein with
applicability to each case noted.
(a) The return date of this motion served the 24th day of March, is Monday April 10th, 2000.
(b) There are no parent companies, subsidiaries or affiliates of the Montauk Friends of
Olmsted Parks corporation. The corporation has, however, claimed to assume the
rights, privileges and powers of the corporation of the proprietors of Montauk
established in law at Chapter 139 of the Laws of 1852, with underlying rights and
privileges as successors in interest to the East Hampton Patent (and corporate charter)
of 1686.
(d)(1)(i) The return date of this motion is Monday April 10th, 2000.
The relief requested (Planning Board/Guarneri case) is a reversal of this court’s
February 24th, 2000, declaration which effectively holds that the Montauk Friends
of Olmsted Parks corporation, a not-for-profit corporation established and existing
under the laws of the State of New York, may not be represented by a natural
person upon an assignment by its Board of Directors. Upon reversal, with the clear
standing of the MFOP to sue in this matter as claimant owner in equity (as Trustee)
of the adjoining parcel sub judice, we again seek judgment declaring the permits
issued for the Guarneri structure illegal for having been issued without or in excess
of the jurisdiction of both the Planning Board and Building Department and an
order requiring a bond to ensure its removal.
2
The relief sought in the matter of MFOP v. town board government of East Hampton,
et. al. is an allotment of funding and facilities from the tax base and property
possessions of the Town of East Hampton at least equivalent to that of the Trustees
of the Freeholders and Commonalty of the Town of East Hampton and a
preliminary injunction and restraining order upon further claim of jurisdiction by
the Town of East Hampton over Montauk.
The relief requested in the matter of MFOP, inc., v. the Brooklyn Historical Society, inc.
is an order declaring that the return of the papers submitted perfecting the appeal
was unlawful and reversing the order dismissing the appeal for failure to perfect.
(d)(1)(ii) The principle questions presented for review are:
(a) The legal validity of corporate actions at law or in equity brought by a natural
person upon assignment by a corporation’s board of directors. (All actions)
(b) The right of a property owner to judgment upon the legality of permits issued by a
municipal body for construction upon an adjoining property when it is asserted
that they were issued without or in excess of jurisdiction for purposes in violation
of the law. (Planning Board)
(c) The clear equitable right of the Montauk Trustee corporation to certain real property
assets and income from the tax base, at least equivalent to the East Hampton
Trustee corporation, sufficient to bring the necessary actions before this court for
disposition. (Town/Sunbeach)
3
(d) The legality and constitutionality of the town board government of the Town of
East Hampton’s claim of jurisdiction over Montauk adverse to the incorporated
rights and privileges of the owners and inhabitants thereof. (Town/Sunbeach)
(e) Whether this court should issue an immediate preliminary injunction estopping all
claim of jurisdiction by the Town of East Hampton over Montauk.
(Town/Sunbeach)
(f) Whether a clerk’s office may refuse a properly certified and delivered appeal made
as matter of right without a specific order of the court precluding same, and the
court may then dismiss the case for failure to perfect. (Brooklyn Historical Society)
(d)(1)(iii) Procedural History -
4
• The Court of Appeals Order was dated February 24th, 2000
• The Notice of Entry was mailed to movant on February 29th, 2000.
Ficalora/MFOP v. Planning Board and Guarneri: Motion for Reargument (3/24/2000)
• The date movant mailed the Appellate Division motion upon the opposing side was:
11/29/1999.
• The date the appellate division denied my motion and dismissed the action was February
15th, 2000 and a notice of entry was mailed to movant on March 2nd, 2000.
MFOP v. Brooklyn Historical Society: Motion for leave to appeal (3/24/2000)
(d)(1)(iii) Procedural History (continued) -
(d)(1)(iv) The Court of Appeals has jurisdiction over this action/proceeding because final
judgments have been entered in these matters by subordinate courts or collaterally
estopped by this court’s February 24th proclamation and opposing parties have been
timely noticed throughout these matters and of this motion.
(d)(1)(v) The court should accept this case for review because:
- a. Significant legal, equitable and Constitutional issues are presented by East Hampton’s
claim of jurisdiction over Montauk.
- b. There are significant legal and equitable claims by Montauk’s proprietors over real
property assets that are immediately threatened with development and depletion.
- c. The importance of the history presented herein to the people of the State of New York
compels it.
5
• Case is fully submitted and awaiting oral argument in Second Department but has been
collaterally estopped by Court of Appeals order dated February 24th, 2000 (if sustained).
• The Notice of Entry of 2/24/2000 order was mailed to movant on February 29th, 2000.
Ficalora as Assignee of MFOP v. Town of East Hampton et. ano.: Petition for Removal
and hearing (3/24/2000)
Historical Background
Montauk and the origins of New York Sovereignty
Suffolk County was first settled by the Puritan colonies of Connecticut and New
Haven in the 1640’s. At that time England was engaged in a civil war and settlement
proceeded unknown to royal authority. In 1648 the Colonies of Connecticut and New
Haven purchased East Hampton up to the Montauk line (the western boundary of
Hither Hills State Park) from the Montauk tribe of Indians. Settlement began the
following year. At that same time, January of 1649, the Puritan men of England,
victorious in their civil war, executed King Charles I for high treason. In 1650 the first
international boundary in America was established upon Long Island between
Connecticut and the Dutch. Known as the “Stuyvessant Line” it remains to this day as
the boundary between Suffolk and Nassau counties.
The Puritans, under Parliament and Lord Protector Oliver Cromwell, established
the commonwealth of England and governed without a king until the restoration of
King Charles II in 1660. Without a divine king the principle of IN GOD WE TRUST
served as their guide and the basis of their political legitimacy. Much of our system of
civil government and law, including and especially the judiciary, derives from this
epochal period in history.
It was during the eleven year Commonwealth period that East Hampton
established it’s civil government. In 1654 it studied the democratic constitution of the
Colony of Connecticut (the Fundamental Orders) and self-incorporated itself as a
Township. In 1657 it was admitted with equal privileges to the colonial assembly. East
Hampton then remained a township within the democratic confederation of townships
which made up the colony of Connecticut until 1664 when the Duke of York received
6
his charter from his brother King Charles II and claimed Long Island as part of his
charter.
The Duke of York was an ardent opponent of democratic liberties, however, and for
the next twenty years there was great discontentment upon Long Island. After much
unrest, the Duke’s 1672 conversion to Roman Catholicism, and two wars with the
Dutch, repeated calls by the settlers of Long Island for an assembly were ignored.
Finally, in June of 1682 upon the raising of their militia and their resolve upon
assembly in Town Meeting, the Puritan settlers of East Hampton approved the delivery
of a grievance and petition for democratic liberty to the Duke of York. That beautifully
written document, authored by their minister Thomas James, notified the Duke that if
he denied their petition that it would be brought to his brother, King Charles II (a right
which was reserved to them in the Duke’s charter). The Duke then made Thomas
Dongan governor and issued him orders to come to New York and call an Assembly.
The first democratic Assembly of New York was convened on October 17th, 1683,
an assembly which proceeded to enact, on October 30th, the original Constitution of
New York (the Charter of Liberties and Privileges). The Charter carried forward with
only a brief interruption to Independence and the founding of the State of New York.
Its articles have been repeatedly considered by the State Assembly and are largely
retained in the Constitution of the State of New York today.
In February of 1685 the Duke of York ascended the throne as King James II and
immediately determined to disallow the Assembly and the Charter of Liberties and to
place New York under autocratic corporate rule.
7
The mounted Puritan men of East Hampton, apparently trained by some of Oliver
Cromwell’s finest commanders (including William Goff) and carried by the steeds of
Montauk, placed their Town in a state of military readiness and, on December 9th, 1686,
were present at the first convening the new autocratic government of New York with
Governor Thomas Dongan presiding. That many of the East Hampton men showed
military rank is reflected in the Patent.
The contract which they received from Gov. Dongan on that historic day
incorporated the Town of East Hampton and released legislative sovereignty to it to be
administered by a democratically organized body of elected Trustees. The restriction
upon the liberty to make local laws was “so always as the said acts and orders be in
nowayes repugnant to the laws of England or of this province...” and that “they shall and may
forever have, hold, use and enjoy all the libertyes, authorities, customs, orders, ordinances,
ffranchises, acquittances, lands, tenements, hereditaments, goods and Chattells aforesaid
according to the tenure and effect of these presents without the let or hindrance of any person or
persons whatsoever.”
The Town of East Hampton remained organized under the 1686 pattent at least
until the enactment of the Town Law in 1909. In 1776, the Declaration of Independence
grieved the King’s interference with this form of right. The 1777 Constitution of the
State of New York contained the Declaration of Independence within it and also
contained an article explicitly protecting colonial charters. This form of right is
protected by the Constitution of the United States from legislative interference by the
State Assembly (contract clause, Trustees of Dartmouth v. Woodward ( 4 Wheaton 518)
and from federal interference by the 10th amendment.
8
In 1851 this court found the 1686 corporation in breach of trust in its administering
of Montauk and ordered it to release all claim thereunto. Because the Constitutional
power to govern was established by the patent and the patent lands were now split,
Montauk was left without government. The release was effected by deed dated March
9th, 1852, (recorded at Suffolk liber 63 of deeds p. 171) and, on April 2nd, 1852, the state
assembly at Albany then did incorporate Montauk and affirm the proprietors’ power to
govern ( chapter 139 of the laws of 1852).
The town board government, to the extent that it may attempt to do so, claims its
jurisdiction under the 1909 Town Law of the State of New York. That law was enacted
by Tammany Hall while Montauk’s rights under the 1686 charter and its incorporation
by the assembly at chapter 139 of the laws of 1852 were under close scrutiny as part of
the matter of Pharoah v. Benson (69 Misc Rep 241 Supreme Suffolk, 1910, affd. 164 App.
Div. 51,Affd 222 N.Y. 665) a matter joined upon an enabling act found at chapter 199 of
the Laws of 1906. It can be argued that at that time of social ferment and upheaval, with
President McKinley having been recently assassinated by an anarchist in Buffalo, the
power of these liberties was apparently considered too great.
In 1911 the library of the State Assembly burned to the ground destroying the
historical record of the relations between East Hampton and the Assembly. East
Hampton then appears to have then quietly begun to reorganize itself under the 1909
Town Law. This was a Faustian bargain necessary to make a claim for the recovery of
Montauk barred to the Trustees under the 1851 court order in the matter of Henry P.
Hedges, et. al. (Proprietors of Montauk) v. the Trustees of the Freeholders and
Commonalty of the Town of East Hampton (citation unknown).
9
The Town record shows, however, that Montauk’s proprietors - principally the
Hoyt family - made efforts to protect their rights from 1910 until 1925 when the Town of
East Hampton moved into Montauk behind a Florida real-estate developer who
purchased the proprietors’ lands out of the Trust of Mary Benson. The first recorded
Town Board meeting which appellant has discovered in the Town records is January 7,
1928, found opening Volume VII of the Town Records.
When these chartered and constitutionally protected rights and the legal status of
the town board government were arguably considered by at least some members of the
assembly in 1957-1962 (a prominent member was of land at Montauk) its response was
to remove the appertaining parts of the Constitution. The Brooklyn Historical Society
(then the Long Island Historical Society) was involved in the events and has said, in its
certified answer to the complaint, that the Town, State and County governments must
be joined as defendants with them in that action.
What the Puritan men of East Hampton obtained with the 1686 patent and charter
for us, their posterity, was democratic sovereignty in the making of the laws governing
our community. It reserved sovereign protections against the imposition of laws by
other governmental entities and in that way is analogous to the Bill of Rights amending
the Federal constitution. It established birthright liberties for the proprietors and
inhabitants of East Hampton, a constitutionally protected privilege which no American
can rightfully oppose, and which will become the pride of this court when upheld and
the benefits of their practice are demonstrated.
10
Motions & Petition
Introduction
Motions and a Petition upon the four cases will proceed as follows:
A motion for Reargument in the two (2) zoning matters of Robert A. Ficalora individually
and as acting President of the MFOP inc., against the Planning Board and Building
Department of the Town of East Hampton and Robert A. Ficalora individually and as
acting President of MFOP, inc., against the Planning Board and Building Department of
the Town of East Hampton is made on the ground that this court made an error of law
with its February 24th, 2000 order. The law in the State of New York maintained by
both the First and Second departments is that Mr. Ficalora is the attorney in fact of the
Montauk Friends of Olmsted Parks corporation by repeated assignment of its Board of
Directors.
A motion for leave to appeal is made in the case of the Montauk Friends of Olmsted Parks,
inc., v. the Brooklyn Historical Society, inc., on the ground that the filing perfecting the
appeal - made according to the court rules with the record certified by an attorney - was
rejected without legal authority by the clerk’s office and that, therefore, the dismissal of
the matter for failure to perfect the appeal is unjust.
A Petition for Removal in the matter of Robert A. Ficalora as Assignee of the Montauk
Friends of Olmsted Parks corporation against the town board government of the Town
of East Hampton and Sunbeach Montauk II, inc., is brought forward on multiple
grounds including collateral estoppel, apparent bias and a demand for a preliminary
injunction estopping East Hampton’s claim of jurisdiction over Montauk.
11
Motion for Re-argument - Ficalora/MFOP v. Planning Board &Building Department of the Town of East Hampton
Movant seeks to re-argue this court’s decision and order dated February 24th, 2000,
(attachment A) wherein it is ordered that “insofar as Robert A. Ficalora seeks to appeal
purportedly on behalf of the Montauk Friends of Olmsted Parks, Inc., be and the same is
dismissed on the ground that Robert A. Ficalora is not the authorized legal representative of said
movant.”
The court will find that the attached resolution of October 26th, 1999, affirms and
continues multiple previous resolutions of assignment of its causes to Mr. Ficalora by
the board of directors of the MFOP corporation. The case against the town board
government of East Hampton, included upon petition in this omnibus, was brought
upon assignment. The matter of MFOP v. the Brooklyn Historical Society was brought
by resolution of the board to recover or protect its corporate documents and continued
(after the law was known) upon assignment. In this matter against the Planning Board,
et. al., the cause was continued upon assignment by the board.
A corporation may be represented by a non-lawyer by assignment of its board of
directors. Such an assignment provides relief from the requirements of CPLR 321(a).
The keystone case is Kamp as assignee of AAA Stretch, Inc., Appellant v. In Sportswear,
Inc., Respondent 39 A.D. 2nd. 89 reversing on dissenting opinion of Mr. Justice Lupiano, 70
Misc. 2d 898:
“The objection to a corporation appearing in person is that it is not a natural
person and must act through its agents; therefore, in legal matters it must act
through licensed attorneys. But when it assigns its cause to a natural person,
for whatever reason, the statute authorizes the latter to prosecute the action
in person.” emphasis added, Kamp, supra, 899
12
Both the First and Second Departments maintain that CPLR 321(a) does not extend
to a corporation appearing pro se upon a valid assignment by its board of directors
Traktman v. City of New York, 182 A.D2d 814, 582 N.Y.S.2d 808 (A.D. 2 Dept, 1992)
and Medical Facilities, inc. v. Pryke 172 A.D.2d 338, 568 N.Y.S.2d 406 (A.D. 1 Dept.
1991). Both cases are reliant upon the decision rendered in the Kamp case, supra.
Under the circumstances presented, to sustain this court’s order dismissing on the
grounds of failure of a corporation to appear by attorney (CPLR 321(a)) would be a
reversal of existing law. Nothing in this matter distinguishes it from either Traktman,
Medical Facilities or Kamp, supra, such that would justify a reversal.
The Appellate Division made an error of law in applying an arbitrary and
capricious standard of review and a 30 day statute of limitations to a special proceeding
brought in the nature of prohibition (Arcuri v. Wagner 30 Misc2d 735, Reed v. Board of
Standards and Appeals 255 N.Y. 136, CPLR Article 7803(2)). Only the issue of the
power of the Planning Board to issue the special permit sub judice may be considered.
The Planning Board does not have the power to issue a permit allowing the
construction of a single family residence upon a substandard quarter acre
nonconforming over-density resort zoned lot without the necessary variances from the
zoning ordinance. The minimum lot size for construction of a single family residence in
the Town of East Hampton is one-half acre. The maximum unit density in a resort
zoned district is six (6) units per acre and the subject quarter acre lot with three existing
dwelling units upon it was already nonconforming at twice the legally allowable
density. Furthermore, a special permit for a conversion from resort use to residential
use was required.
13
No variances from the above requirements was issued by the Zoning Board of
Appeals nor was the requisite special permit for a conversion issued. The Planning
Board does not have the power to issue permits for land use at variance with - or even
ambiguous under - the zoning ordinance (Ronning v. Thompson 126 Mics2d 764, Town
Law § 274, local enabling acts). The special permit should be annulled and a bond
ordered to ensure the removal of the structure erected.
The MFOP corporation as claimant owner in equity (as trustee) of the adjoining
Benson Reservation has clear standing to sue without even a need to show special
damage (Sunbright Car Wash v. Z.B.A. of Town of North Hempsted, 515 N.Y.S.2d 418).
Resolutions of assignment by its board of directors are shown to this court assigning
your movant/petitioner, Robert A. Ficalora, the power to represent the corporation
before this court in accordance with the law (atts. B, C, & D).
Deponent does pray that the court will find that Mr. Robert A. Ficalora is, in fact
and in law, the authorized legal representative of the Montauk Friends of Olmsted
Parks corporation and, therefore, prays that the order of this court dated February 24th,
2000, be reversed on the law and for such other and further relief as this court deems
equitable and just.
14
Attachment A - Decision, N.Y. Court of Appeals, Ficalora v. Planning Board, et. al., 2/24/2000
Motion for Re-argument - Ficalora/MFOP v. Planning Board & Building Department of the
Town of East Hampton
Attachment A - Decision, N.Y. Court of Appeals, Ficalora v. Planning Board, et. al., 2/24/2000
15
Attachment B. - Resolution of Assignment, 10/28/97
Motion for Re-argument - Ficalora/MFOP v. Planning Board & Building Department of the
Town of East Hampton
Attachment B. - Resolution of Assignment, 10/28/97
16
Attachment C. - Resolution of Assignment, 6/5/98
Motion for Re-argument - Ficalora/MFOP v. Planning Board & Building Department of the
Town of East Hampton
Attachment C. - Resolution of Assignment, 6/5/98
17
Attachment D. - Resolution of Assignment, 10/26/99
Motion for Re-argument - Ficalora/MFOP v. Planning Board & Building Department of the
Town of East Hampton
Attachment D. - Resolution of Assignment, 10/26/99
18
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460,99-04461
Facts
The summons and complaint were first served on June 10th, 1997, and joined by
defendant on July 9th, 1997 subsequent to its denying access to significant Montauk
records discovered in its possession. The request for judicial intervention was not made
until June 30th, 1998. A preliminary conference was had and contested. A motion for
summary judgment utilized to prevent disclosure was later granted. The notice of
Appeal was filed and served on June 14th, 1999.
Prior to perfecting the appeal a motion was made with the Appellate Division for
permission to certify the record as a non-attorney (att. A.) with a complete draft of the
Record on Appeal included. Defendant cross-moved that Robert A. Ficalora, a
non-attorney, could not represent the a corporation (att. B.).
On October 27th, 1999, the court issued an order that the MFOP corporation must
be represented by an attorney by November 29th or the case would be dismissed (att.
C.). On November 8th, 1999, Mr. Ficalora did serve a motion for reargument showing
that it is the law held by both the First and Second departments that a corporation may
be represented by a non-attorney upon valid assignment of its board of directors, and
that such assignments had been made (att. D).
On November 8th, 1999, concurrent with the motion for reargument, movant did
file and serve his appeal with the record certified by an attorney (att. E, F). That appeal,
his fourth made with the court, was stamped received on November 15th, 1999, but
then the papers were returned citing the October 27th order and stating that “appellant
not represented by attorney - see order 10/27/99‘” (att. G, H).
19
Defendants opposition (att. I) was answered with a reply which contained a motion
for permission to appeal to this court in the event of denial on the ground that such a
denial would reverse existing law and create a conflict with the First Department (att. J).
On February 15th, 2000, the Appellate Division then did deny the motion for
reargument and dismissed the appeal on the ground of failure to perfect the appeal (att.
K).
The orders of February 15th, 2000, were served upon Movant by mail on March
2nd, 2000 (att. L). This motion for leave to appeal, therefore, is timely made.
Argument
The order relied upon by the clerk’s office for the rejection of the appeal submitted
was:
ORDERED that the cross motion is granted to the extent that the appeals are
dismissed unless on or before November 29, 1999, the appellant appears in
this action by an attorney (see, CPLR321[A])
It is respectfully submitted that there is nothing in that order, on its face, which is
sufficient to authorize the clerk’s office to reject the submission of an appeal which
otherwise satisfies all legal requirements and court rules. The documents, however,
were all stamped received, held for a short period, and then returned.
The motion for reargument showed that because the corporation had assigned its
cause to Mr. Ficalora, had the Appellate Division sustained its 10/27/99 order and
dismissed this action on the grounds contained therein that it would have reversed
existing law and created a conflict with the First Department. Movant has shown that
there is nothing in this matter that distinguishes it as a matter of law sufficient to
support such a reversal. The court did not sustain its order by dismissing the action
20
upon the grounds presented within the order of 10/27/99, it instead dismissed on the
grounds of failure to perfect thereby avoiding the issues of law presented.
The papers perfecting this appeal were wrongfully and unjustly refused. The
MFOP corporation made its appeal as a matter of right, the papers were properly
served and filed, the fee tendered, and the corporation was represented pro se upon a
valid assignment. No judgment has been made nor order issued upon the laws of the
State of New York which renders such an assignment ineffectual.
The Montauk Trustee corporation has a legal and equitable right to its corporate
documents and artifacts. The Brooklyn Historical Society has no right to possession of
them adverse to the agreement signed by Arthur W. Benson, Esq., for a time the sole
proprietor of Montauk, upon his receipt of them from the Montauk Trustee corporation.
The papers are resubmitted herewith in full (10 copies) and movant appeals to this
court for an order compelling the defendant Brooklyn Historical Society to answer,
waiving a reply.
21
Att. A - Motion to Certify the Record as a non-attorney, 10/1/99
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. A - Motion to Certify the Record as a non-attorney, 10/1/99
22
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. A - Motion to Certify the Record as a non-attorney, 10/1/99
23
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. A - Motion to Certify the Record as a non-attorney, 10/1/99
24
Att. B. - Cross Motion in Opposition, 10/12/99
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
25
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
26
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
27
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
28
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
29
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
30
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
31
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. B. - Cross Motion in Opposition, 10/12/99
32
Att. C. - Order requiring attorney by 11/29/99, 10/27/99
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. C. - Order requiring attorney by 11/29/99, 10/27/99
33
Att. D. - Motion for reargument, 11/8/99
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
34
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
35
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
36
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
37
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
38
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
39
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
40
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. D. - Motion for reargument, 11/8/99
41
Att. E - Affidavit of Service perfecting Appeal, 11/8/1999
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. E - Affidavit of Service perfecting Appeal, 11/8/1999
42
Att. F - CPLR 2105 certification (per 22 NYCRR 670.10(g))
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. F - CPLR 2105 certification (per 22 NYCRR 670.10(g))
43
Att. G - Record on Appeal stamped “Fee Paid” & “Received 99 NOV 15”
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. G - Record on Appeal stamped “Fee Paid” & “Received 99 NOV 15”
44
Att. H - Papers Rejection Notice, “See Order, 10/27/99”
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. H - Papers Rejection Notice, “See Order, 10/27/99”
45
Att. I - Affidavit in Opposition to Motion for Reargument, 11/16/99
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. I - Affidavit in Opposition to Motion for Reargument, 11/16/99
46
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. I - Affidavit in Opposition to Motion for Reargument, 11/16/99
47
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. I - Affidavit in Opposition to Motion for Reargument, 11/16/99
48
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. I - Affidavit in Opposition to Motion for Reargument, 11/16/99
49
Att. J - Reply to Opposition to Motion for Reargument,
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. J - Reply to Opposition to Motion for Reargument,
50
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. J - Reply to Opposition to Motion for Reargument,
51
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. J - Reply to Opposition to Motion for Reargument,
52
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. J - Reply to Opposition to Motion for Reargument,
53
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. J - Reply to Opposition to Motion for Reargument,
54
Att. K - Appellate Division order denying reargument, 2/15/2000
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. K - Appellate Division order denying reargument, 2/15/2000
55
Att. L - Dismissal for failure to timely perfect, 2/15/2000
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. L - Dismissal for failure to timely perfect, 2/15/2000
56
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. L - Dismissal for failure to timely perfect, 2/15/2000
57
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. M - Notice of Entry, 3/2/2000
58
Att. M - Notice of Entry, 3/2/2000
MFOP, inc. v. Brooklyn Historical Society, inc., A.D.#s 99-04460, 99-04461
Att. M - Notice of Entry, 3/2/2000
59
Petition for Removal and Judgment
Robert A. Ficalora, acting president and Assignee of the Montauk Friends of
Olmsted Parks, inc., claimant successor to the 1852 corporation of the proprietors of
Montauk with all the rights, privileges and powers either in law or in equity through
the East Hampton pattent of 1686, deeded agreements with the Montauk tribe of
Indians and the Benson covenants, does submit that:
whereas
An action at law entitled Robert A. Ficalora as Assignee of the MFOP corp. etc. v.
the town board government of East Hampton and Sunbeach Montauk II, inc., (”Trustee
Case”) is currently perfected and pending oral argument in the Appellate Division,
Second Department, which will be subject to collateral estoppel and denied a hearing or
judgment absent a reversal of this courts order dated February 24th, 2000,and
Significant argument is had in the Trustee Case upon the applicabilty CPLR 321[a]
as grounds for dismissal and would assist this court to find that its February 24th order
is not supportable in the law and if sustained would be a reversal of existing law, and
A preliminary injunction was issued on June 27th, 1851 in an action brought by
Montauk’s proprietors against the Town of East Hampton which resulted in a final
order dated September 6th, 1851, that the Town of East Hampton release all corporate
claim to Montauk (att. B). The legality and constitutionality of the “town board
government” of East Hampton’s claim of jurisdiction over Montauk is raised in the
Trustee Case, and
60
There is significant injury accruing to the rights and interest of the proprietors and
residents of Montauk, time is of the essence, and
The Trustee Case is directly related to the matter joined against the Brooklyn
Historical Society, including and especially the 1961-2 Constitutional repeals of sections
of the Constitution of the State of New York made at a time when Montauk’s rights
were under significant review by the Town of East Hampton (see appendix hereto and
the Record on Appeal, MFOP v. Brooklyn Historical Society) , and
It is, therefore, in the interest of substantial justice and judicial efficiency that the
Trustee Case be removed to this court so the facts may be considered before it is
collaterally estopped without judgment on the ground of this courts February 24th,
2000 order, therefore
It is herewith petitioned
That the record and briefs in the matter of the Montauk Friends of Olmsted Parks
corporation against the town board government of East Hampton and Sunbeach
Montauk II, inc., herewith submitted, be accepted by this court and that it order
removal of jurisdiction to its offices for hearing and determination, and
That the motion for allotment of funds and facilities made therein and attached
hereto, denied in the Appellate Division on February 17th, 2000, be considered as the
proper legal and equitable starting point to ensure that these matters will be fully and
finally determined by this court, and
That a preliminary injunction be ordered suspending all claim of jurisdiction by the
Town of East Hampton in matters of zoning and land use in Montauk and that a
61
separate account be established for the accounting of all income and expenditures
derived from Montauk pending further determination of this court.
62
Motion for Allotment and Facilities, 11/8/1999
Petition for Removal and Judgment
Motion for Allotment and Facilities, 11/8/1999
63
Petition for Removal and Judgment
Motion for Allotment and Facilities, 11/8/1999
64
Petition for Removal and Judgment
Motion for Allotment and Facilities, 11/8/1999
65
Petition for Removal and Judgment
Motion for Allotment and Facilities, 11/8/1999
66
Petition for Removal and Judgment
Motion for Allotment and Facilities, 11/8/1999
67
Petition for Removal and Judgment
Motion for Allotment and Facilities, 11/8/1999
68
Petition for Removal and Judgment
Motion for Allotment and Facilities, 11/8/1999
69
Att. A - Resolution of Assignment, 10/26/1999
Petition for Removal and Judgment
Att. A - Resolution of Assignment, 10/26/1999
70
Att. B - Sept. 6. 1851 Order of Nathan B. Morse, J.S.C.
Petition for Removal and Judgment
Att. B - Sept. 6. 1851 Order of Nathan B. Morse, J.S.C.
71
Petition for Removal and Judgment
Att. B - Sept. 6. 1851 Order of Nathan B. Morse, J.S.C.
72
Petition for Removal and Judgment
Att. B - Sept. 6. 1851 Order of Nathan B. Morse, J.S.C.
73
Opposition to Motion for Allotment and Facilities, 11/11/1999
Petition for Removal and Judgment
Opposition to Motion for Allotment and Facilities, 11/11/1999
74
Petition for Removal and Judgment
Opposition to Motion for Allotment and Facilities, 11/11/1999
75
Petition for Removal and Judgment
Opposition to Motion for Allotment and Facilities, 11/11/1999
76
Petition for Removal and Judgment
Opposition to Motion for Allotment and Facilities, 11/11/1999
77
Order denying motion for Allotment and ejectment, 2/17/2000
Petition for Removal and Judgment
Order denying motion for Allotment and ejectment, 2/17/2000
78
Petition for Removal and Judgment
Order denying motion for Allotment and ejectment, 2/17/2000
79
Closing Statement
The issues now before this court touch a fundamental birthright liberty to local
legislative sovereignty under its jurisdiction. Although it is unfortunate that certain
acts of the Assembly of the State of New York adverse to these Constitutionally
protected rights are now in evidence, movant does pray that this court will use its
power to correct their historical oversight and come to cherish the opportunity
presented.
There are no issues of law or of equity which cannot be settled by this court on the
facts and law presented. That the “town board government” is not a legal entity and
exists in historic violation of both the State and Federal Constitutions is, after years of
litigation, uncontested. The remedy is a municipal corporate reorganization.
Montauk is a township with large recoverable real property assets. Injury is
accruing from the continued development upon or crowding of its lands and the
depletion of its fragile fresh water resource.
The rights presented are corporate rights of private property, jurisdiction and
commonwealth. There is no hint of Communism or its variants here. There is little
difference between the common lands of Montauk and lands held by any other
democratic entity. They are at this time, quite simply, Town property, the private
property and commonwealth of the taxpayers.
Appellant asks that this court excuse this extraordinary appeal on the ground that
movant believes it is his universal duty to bring these matters before it, and does pray
that it will determine to grant the petition presented herein and a hearing of these
historic cases.
80
AppendixThe Journal of the Assembly, January 4th, 1961 vote upon Constitutional Repeals
Appendix
81
Appendix
The Journal of the Assembly, January 4th, 1961 vote upon Constitutional Repeals
82
Appendix
The Journal of the Assembly, January 4th, 1961 vote upon Constitutional Repeals
83
Summons, 12/30/98
Appendix
Summons, 12/30/98
84
Notice, 12/30/98
Appendix
Notice, 12/30/98
85
Affidavit of Service, 12/30/98
Appendix
Affidavit of Service, 12/30/98
86
Appendix
Affidavit of Service, 12/30/98
87
NY Law Journal, Decisions, MFOP v BHS, 11/3/1999
Appendix
NY Law Journal, Decisions, MFOP v BHS, 11/3/1999
88
Listing of attachments
In support hereof and attached hereto are:
• Ten copies of the Record on Appeal and opening brief, MFOP v. Brooklyn
Historical Society, stamped “RECEIVED 99 Nov 15 APPELLATE DIVISION -
SECOND DEPARTMENT”
• Ten copies of the Record on Appeal together with all Briefs, MFOP v. town board
government of East Hampton and Sunbeach Montauk II, inc.
• One complete copy of appellant’s motion for enlargement of time and to
supplement the record- MFOP v. town board government of East Hampton and
Sunbeach Montauk II, inc. (covered by resulting order dated10/6/1999).
Please see also: CHAPTER 139 OF THE LAWS OF 1852
Listing of attachments
89
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