State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 5, 2015 520145
________________________________
ROBERT L. SCHULZ,
Appellant,
et al.,
Plaintiffs,
v MEMORANDUM AND ORDER
ANDREW M. CUOMO et al.,
Respondents,
et al.,
Defendants.
________________________________
Calendar Date: September 14, 2015
Before: Egan Jr., J.P., Rose, Devine and Clark, JJ.
__________
Robert L. Schulz, Queensbury, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor
Paladino of counsel), for Andrew M. Cuomo, respondent.
Steven A. Crain and Daren J. Rylewicz, Civil Service
Employees Association, Albany (Paul S. Bamberger of counsel), for
Michael R. Bloomberg, respondent.
__________
Egan Jr., J.P.
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 to dismiss the
complaint against them.
NY Constitution, article XIX, § 2 provides – in relevant
part – that, beginning in 1957 and every 20th year thereafter (in
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addition to such times as the Legislature may provide by 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" (NY 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" (NY 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 NY 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
1
Although many of these pro se litigants signed the
underlying notice of appeal, only Schulz filed a brief in this
matter and, as a pro se litigant himself, he cannot be said to
represent the remaining named plaintiffs. Hence, we deem Schulz
to be the only plaintiff appearing on this appeal (see Judiciary
Law § 478; Matter of Schulz v New York State Dept. of Envtl.
Conservation, 186 AD2d 941, 942 n [1992], lv denied 81 NY2d 707
[1993]; see also Gapihan v Hemmings, 121 AD3d 1397, 1398 n 2
[2014]).
2
Plaintiffs seek to exclude from the field of potential
convention delegates all those employed – directly or indirectly
– by the executive and legislative branches of state government,
the Unified Court System, certain public corporations, registered
lobbyists and major political parties, as well as all recipients
of a state pension.
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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
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.
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 AD3d 132, 135 [2011], affd 19
NY3d 899 [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 NY2d 379, 383
[1985], appeal dismissed and cert denied 474 US 803 [1985];
3
Defendants John L. Stipo and Stephanie Miner apparently
did not move to dismiss or otherwise respond nor do they take
part in this appeal.
4
Plaintiffs' resulting motion to vacate Supreme Court's
order, which Supreme Court characterized as a motion to reargue,
also was denied.
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accord Police Benevolent Assn. of N.Y. State Troopers, Inc. v New
York State Div. of State Police, 40 AD3d 1350, 1352 [2007],
appeal dismissed and lv denied 9 NY3d 942 [2007]). As plaintiffs
did not satisfy either of those requirements, Supreme Court
properly granted defendants' respective motions to dismiss.
Briefly, as to the issue of standing, the crux of Schulz's
argument upon appeal is that, if the electorate votes in favor of
a Constitutional Convention in the November 2017 general election
and defendants (and all those similarly situated) are elected to
serve as delegates thereto, any proposed revisions to the NY
Constitution will favor government and the "political class,"
thereby prejudicing plaintiff. This argument, however, is flawed
in two respects. First, for the reasons that follow, the harm
allegedly suffered by plaintiffs in this regard is speculative,
as it is predicated upon a series of events that may not come to
pass. Further, plaintiffs failed to articulate, among other
things, the manner in which the alleged harm that they
purportedly would suffer due to any prospective and pro-
government revisions to the NY Constitution would be different or
distinct from that of the public at large (see generally Suffolk
County Water Auth. v Dow Chem. Co., 121 AD3d 50, 55 [2014];
Lancaster Dev., Inc. v McDonald, 112 AD3d 1260, 1261 [2013], lv
denied 22 NY3d 866 [2014]). Accordingly, plaintiffs lack
standing to maintain this action.
More to the point, the instant action is "premature and as
a matter of law may not be maintained [as] the issue presented
for adjudication involves . . . future event[s] beyond the
control of the parties which may never occur" (American Ins.
Assn. v Chu, 64 NY2d at 385; accord Matter of New York Blue Line
Council, Inc. v Adirondack Park Agency, 86 AD3d 756, 760 [2011],
appeal dismissed 17 NY3d 947 [2011], lv denied 18 NY3d 806
[2012]; see New York Pub. Interest Research Group v Carey, 42
NY2d 527, 531 [1977]). While it is true that the next referendum
on whether to convene a Constitutional Convention will be placed
before the voters at the November 2017 general election, the fact
remains that a majority of the electorate may well vote against
convening such a convention. Further, even assuming that the
electorate votes in favor of the referendum, defendants (and all
others similarly situated) may decline to seek to serve as
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delegates thereto; alternatively, should defendants and those
similarly situated opt to run for this position in the November
2018 general election, they may not actually be elected as
delegates to the convention, which would convene in April 2019
(see NY Const, art XIX, § 2). In short, because "the harm sought
to be enjoined is contingent upon events which may not come to
pass, the claim to enjoin the purported hazard is nonjusticiable
as wholly speculative and abstract" (Matter of New York State
Inspection, Sec. & Law Enforcement Empls., Dist. Council 82,
AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]; accord Saratoga
County Chamber of Commerce v Pataki, 275 AD2d 145, 158 [2000]);
hence, defendants' motions to dismiss the complaint were properly
granted. In light of this conclusion, we need not address
defendants' alternate ground for dismissal – namely, that the
underlying complaint fails to state a cause of action.
Finally, although Schulz asserts that Supreme Court erred
in failing to consider the affidavit tendered by the Assembly
Minority Leader, the subject affidavit does nothing more than
offer bare legal conclusions regarding the propriety of
defendants potentially serving as delegates at a future
Constitutional Convention. Inasmuch as "[e]xpert opinion as to a
legal conclusion is impermissible" (Russo v Feder, Kaszovitz,
Isaacson, Weber, Skala & Bass, 301 AD2d 63, 69 [2002] [internal
quotation marks and citation omitted]), Schulz's argument on this
point must fail. To the extent that Schulz also takes issue with
the dismissal of his order to show cause seeking to certify each
class of defendants, this issue – raised for the first time in
his reply brief – is not properly before us (see e.g. Matter of
Garcia v Prack, 128 AD3d 1244, 1245 [2015]) and, in any event, is
lacking in merit. Schulz's remaining arguments, to the extent
not specifically addressed, have been reviewed and found to be
unpersuasive.
Rose, Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court