supreme court of the state of new york - court of appeals

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



Attachment B. - Resolution of Assignment, 10/28/97

16

Attachment C. - Resolution of Assignment, 6/5/98



Attachment C. - Resolution of Assignment, 6/5/98

17

Attachment D. - Resolution of Assignment, 10/26/99



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


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24

Att. B. - Cross Motion in Opposition, 10/12/99



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Att. C. - Order requiring attorney by 11/29/99, 10/27/99


Att. C. - Order requiring attorney by 11/29/99, 10/27/99

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Att. D. - Motion for reargument, 11/8/99



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Att. E - Affidavit of Service perfecting Appeal, 11/8/1999


Att. E - Affidavit of Service perfecting Appeal, 11/8/1999

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Att. F - CPLR 2105 certification (per 22 NYCRR 670.10(g))


Att. F - CPLR 2105 certification (per 22 NYCRR 670.10(g))

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Att. G - Record on Appeal stamped “Fee Paid” & “Received 99 NOV 15”


Att. G - Record on Appeal stamped “Fee Paid” & “Received 99 NOV 15”

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Att. H - Papers Rejection Notice, “See Order, 10/27/99”


Att. H - Papers Rejection Notice, “See Order, 10/27/99”

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Att. I - Affidavit in Opposition to Motion for Reargument, 11/16/99



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Att. J - Reply to Opposition to Motion for Reargument,



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Att. K - Appellate Division order denying reargument, 2/15/2000


Att. K - Appellate Division order denying reargument, 2/15/2000

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Att. L - Dismissal for failure to timely perfect, 2/15/2000



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57


Att. M - Notice of Entry, 3/2/2000

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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

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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



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Att. A - Resolution of Assignment, 10/26/1999


Att. A - Resolution of Assignment, 10/26/1999

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Att. B - Sept. 6. 1851 Order of Nathan B. Morse, J.S.C.



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Opposition to Motion for Allotment and Facilities, 11/11/1999



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Order denying motion for Allotment and ejectment, 2/17/2000



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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.

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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

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Notice, 12/30/98

Appendix

Notice, 12/30/98

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Affidavit of Service, 12/30/98

Appendix


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Appendix


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NY Law Journal, Decisions, MFOP v BHS, 11/3/1999

Appendix

NY Law Journal, Decisions, MFOP v BHS, 11/3/1999

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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

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supreme court of the state of new york - court of appeals

Documents