Opposition Brief — Schiffer v. Tarrytown Boat Club, Inc.

Supreme Court, U

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aye 22 1996

No. 96-57

In The

Supreme Court of the United States

October Term, 1995

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ANDREW C. SCHIFFER,

Petitioner,

Vs.

TARRYTOWN BOAT CLUB, INC., and its BOARD

OF DIRECTORS individually, JOHN MILLAR,

KEVIN McDERMOTT, ROBERT ROSSI, EDWA.RD

THOMAS, DONALD BRAINARD, THOMAS KENEALY,

ANTHONY ISMAILOFF, and JOHN PUFF,

Respondents.

¢

On Petition For A Writ Of Certiorari

To New York State Court Of Appeals

+

BRIEF IN OPPOSITION

¢

Bruce A. TorINo

Counsel of Record

MicHaAEL A. AMODIO

Torino & SINGER

Attorneys for Respondents

250 Old Country Road

Suite 501

Mineola, New York 11501

(516) 747-4301

-——

—

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QUESTIONS PRESENTED FOR REVIEW

Respondent respectfully submits that there are no federal

questions for this honorable court to review in this matter.

Petitioner’s "questions presented" make no sense and, certainly,

present no question of federal law.

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LIST OF ALL PARTIES TO THE PROCEEDING

The caption of the case in this Court contains the names of

all the parties. In his brief the Petitioner adds a restaurant,

“Dockside of Tarrytown, Inc." which was never a party to this

action. Respondent objects to the addition of this non-party as a

party to the proceeding.

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........... i

co el A AR I ii

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND REGULATIONS

EVOIVEDINTHECASE.................... 3

CONCISE STATEMENT OF THECASE ........___ 4

SUMMARY OF ARGUMENT ................__. g

er te ae 9

I So 9

I. PETITIONER’S CASE WAS DISMISSED BY THE

NEW YORK STATE COURTS BECAUSE HE

SUBSTANTIVELY AND PROCEDURALLY FAILED

TO ASSERT A VALID AND TIMELY CAUSE OF

ACTION AGAINST RESPONDENTS ........ 10

iV

II. WITHOUT DEPRIVATION OF A FEDERAL RIGHT

CAUSED BY THE EXERCISE OF SOME RIGHT OR

PRIVILEGE CREATED BY THE STATE OR BY A

RULE OF CONDUCT IMPOSED BY THE STATE OR

BY A PERSON FOR WHOM THE STATE IS

RESPONSIBLE THERE IS NO CONSTITUTIONAL

VRS cd Keo RK ASS TR 14

CARE ng eNOS Sek ee thee ts ee ee 21

Vv

TABLE OF CITED AUTHORITIES

FEDERAL COURT CASES

POINT II WITHOUT DEPRIVATION OF A FEDERAL

RIGHT CAUSED BY THE EXERCISE OF SOME

RIGHT OR PRIVILEGE CREATED BY THE

STATE OR BY A RULE OF CONDUCT IMPOSED

BY THE STATE OR BY A PERSON FOR WHOM

THE STATE IS RESPONSIBLE THERE IS NO

CONSTITUTIONAL VIOLATION ........ 14

N.C.A.A. v. Tarkanian, 488 U.S. 179, 191, 109 S. Ct. 454, 461,

102 L.Ed.2d 469 (1988) [citing Shelley v. Kraemer, 334 U.S. 1,

13, 68 S. Ct. 836, 842, 92 L.Ed. 1161 (1948)] ........ 14

Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 487,

108 S. Ct. 1340, 1345, 99 L.Ed.2d 565 (1988) ........ 14

Lugar v. Edmondson Oil Company, Inc., 457 U.S. 922, 924, 102

S. Ct. 2744, 2747, 73 L.Ed.2d 482 (1982) ...... 14, 15, 16

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S. Ct.

449, 453, 42 L.Ed.2d 477 (1974) [quoting Shelley v. Kraemer,

334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L.Ed. 1161

NE is 5553s oe a ee 14

Bloom v. Illinois, 391 U.S. 194, 195, 88 S. Ct. 1477, 1478, 20

Rcpeee MEO sk ees ber ee ee a eae 15

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 72, 75

hed. Oy ke ea eT I oe 15

In re McLouth Steel Corp., 23 B.R. 167, 169 (E.D. Mich., 1982)

{quoting Henry v. First National Bank of Clarksdale, 595 F.2d

291, 296, rehearing denied, 601 F.2d 586 (Sth Cir. 1979)} . 17

vi

Louisville Area Interfaith Committee v. Nottingham Liquors, 542

ees: ee a OU og ns oa aie Woe eae a 17

Lopez v. Department of Health Services, 939 F.2d 881 (9th Cir.

CESSES PRET Fe LEO eg te a ye 17

German v. Killeen, 495 F.Supp 822 (D.C. Michigan 1980) . 17

Wyatt v. Cole, 504 U.S. 158, 161, 112 S. Ct. 1827, 1830, 118

L.Ed.2d 504 (1992) [citing Carey v. Piphus, 435 U.S. 247, 254-

57, 98 S. Ct. 1042, 1047-49, 55 L.Ed.2d 252 (1978) .... 17

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) .... 17

Rendall-Baker_v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73

Se Ei at +) a er rer ere eee 18

Lawline v. American Bar Ass’n., 738 F. Supp. 288, 294 (N.D. Ill.

1990), affirmed, 956 F.2d 1378 (7th Cir. 1992), cert. denied, __

U.S. __, 114 S. Ct. 551, 126 L.Ed.2d 452 (1993) ..... 18

N.C.A.A. v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 461, 102

L.Ed.2d 469 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172,

SiS. C2. 75,476, 5 1.2 Se CR ois oe re SN 18

Ouzts v. Maryland National Insurance Co., 505 F.2d 547 (9th Cir.

1972), cert. den., 421 U.S. 949, 95 S. Ct. 1681, 44 L.Ed.2d 103

CRE: 9.668 6 a Be % et hee) be bb D ESS A 18

Spampinato v. M. Breger & Co., 270 F.2d 46 (2d Cir. 1959),

cert. den., 361 U.S. 944, 80 S. Ct. 409, 4 L.Ed.2d 363 (1960),

rehearing den., 361 U.S. 973, 80 S. Ct. 597, 4 L.Ed.2d 553

ts, Se a na a nO ete WE MOREA RCo hf 18

Brownley v. Gettysburg College, 338 F. Supp. 725 (D.C. Pa

| See eee ee ee ee ee ere ano ee 18

Vii

Sato v. Plunkett, 154 F.R.D. 189, 192 (N.D. Ill. 1994) ... 18

Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598,

1605, 26 L.Ed.2d 142 (1970) [quoting U.S. v. Price, 383 U.S.

787, 794, 86 S. Ct. 1152, 1157, 16 L.Ed.2d 267 (1966)] .. 18

Tulsa Professional Collection Svcs. v. Pope, 485 U.S. 478, 486,

108 S.Ct. 1340, 1345, 99 L.Ed.2d 565 (1988) .......... 19

Hoai v. Vo, 935 F.2d 308 (U.S.App.DC 1991) ........ 19

Earnest v. Lowentritt, 690 F.2d 1198, 1200 (Sth Cir. 1982) 19

Hollis v. Itawamba County Loans, 657 F.2d 746, 749 (Sth Cir.

SE SAT gale ee eas nee a ee ee a eee 19

Starnes v. Capital Cities Media, Inc., 39 F.3d 1394, 1396 (7th Cir.

1994) [citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90

S.Ct. 1598, 1615, 26 L.Bd.2d 142 (i978)) ... 1... 19

McCartney v. First City Bank, 970 F.2d 45, 47 (Sth Cir.

ROE esi ke te ee eo A Sse S 19

STATE COURT CASES

Kiwanis Club of Great Neck, Inc. v. Board of Trustees of Kiwanis

Int’l., 52 A.D. 906, 383 N.Y.S.2d 383 (2d Dept 1976), aff’d, 41

N.Y.2d 1034, 395 N.Y.S.2d 633, 363 N.E.2d 1378 (1977) 20

FEDERAL STATUTES

ie Ris TE Pee eae Se see 17

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CITATIONS OF LOWER COURT OPINIONS AND ORDERS

1)

2)

3)

4)

5)

March 28, 1996 New York State Court of Appeals Order

Denying Reargument: Schiffer v. Tarrytown Boat Club,

__ NY2d ___, _. NYS2d __ (March, 1996).

January 16, 1996 New York State Court of Appeals Order

Dismissing Appeal as of Right: Schiffer v. Tarrytown Boat

Club, 87 NY2d 916, 641 NYS2d 594 (January, 1996).

December 15, 1995 New York State Supreme Court,

Appellate Division, Second Department Decision and

Order Denying Reargument: Schiffer v. Tarrytown Boat

Club, _ AD2d __, _. NYS2d __ (2d Dept., 1995).

September 25, 1995 New York State Supreme Court,

Appellate Division, Second Department Decision and

Order Affirming Supreme Court, Westchester County:

Schiffer v. Tarrytown Boat Club, 1995 NYSlipOp 08437.

November 23, 1993 New York State Supreme Court,

Westchester County Decision and Order granting

Defendant/Respondent Summary Judgment: Not Published.

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BASIS FOR SURIGDICTION

This court does not have jurisdiction over this matter and

for this reason alone the Petition for Writ of Certiorari must be

denied. Petitioner states at Page 2 of his brief in the second

paragraph under the heading “Statement of Jurisdiction":

New York State Court of Appeals’ order

denying reargument was entered on March 28,

1996 (App. A, la). This petition is timely filed on

or before June 26, 1996: within 90 days after

March 28, 1996. Rule 13.1.

Petitioner improperly appeals from an order denying

reargument, not from the judgment entered by the New York State

Court of Appeals, the state court of last resort. The judgment was

entered on January 16, 1996 and is reproduced in Petitioner’s Brief

at App. B, 2a. The memorandum is published at the following

citation: Schiffer v. Tarrytown Boat Club, 87 NY2d 916, 641

NYS2d 594 (January, 1996). Clearly, the Petition for Writ of

Certiorari was filed more than 90 days after the judgment or order

was entered.

Further, even if the Petition were timely filed, Petitioner

has not raised a federal question. Difficult as it is to decipher,

Petitioner’s argument seems to be that because he lost on the

procedural and substantive law of New York State, this court

Should review and declare the relevant law is unlawful, thus

enabling him to succeed in this matter.

When we were children there always seemed to be a

playmate who, upon losing, would claim the sun was in his eyes,

or the ball hit the telephone wire, or there was a slippery spot on

the floor, or her shoe came untied, and would demand a "do-over."

We are no longer children and in life there is no "do-over" when

a panel of judges properly applies the law and rules against us.

2

Certainly, this court has more pressing issues to consider.

Reading the decision of the Appellate Division, Second Department

reproduced in Petitioner’s brief at App. D, 4a, it is clear no

constitutional question was raised at that initial level of appeal. In

fact, Petitioner first raised a Constitutional question on motion to

the Appellate Division for reargument of the appeal. At that time

he claimed he was deprived of property by the Defendant-

respondents’ violation of the Fourteenth Amendment and

42 U.S.C. § 1983.

Respondent herein opposed Petitioner’s constitutional claim

at that time and argued to the Appellate Division that the

Fourteenth Amendment due process clause applies to the state and

not to private actors. The Appellate Division denied the motion to

reargue with costs. See Petitioner’s brief at App. C, 3a. It is not

the usual procedure for the Appellate Division to order costs.

Petitioner then sought review by the New York State Court

of Appeals, claiming the same constitutional question. The

procedure in the Court of Appeals is for the Respondent to file a

Jurisdictional Letter with the court upon a party filing a notice of

appeal as a matter of right (as Petitioner did below, Claiming a

constitutional question). A Jurisdictional Letter opposing

jurisdiction was filed by Respondent herein and the Court of

Appeals dismissed the appeal sua sponte at that early stage because

there was no "substantial constitutional question" giving rise to

jurisdiction. See Petitioner’s brief, App. B, 2a; Schiffer v.

Tarrytown Boat Club, 87 NY2d 916 at 916, 641 NYS2d 594

(January, 1996).

Now, in his Petition for Writ of Certiorari, Petitioner

appears to be raising a new argument claiming it advances a federal

question. This is the first time, in this Petition for Writ of

Certiorari, that Petitioner raises this new argument and that reason

alone is enough to disallow it. However, even if the court

considers this new argument, it must agree that it utterly fails to

raise a federal question.

3

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND REGULATIONS

The Fourteenth Amendment to the U.S. Constitution

provides in relevant part:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protection

of the laws.

U.S. Const., Amend XIV.

Title 42 U.S.C. section 1983 reads in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the juris-

diction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. section 1983

4

CONCISE STATEMENT OF THE CASE

In early 1991 the petitioner was Commodore of the

Tarrytown Boat Club (hereinafter "TBC"). As such he was a

member of the TBC’s Board of Governors. The various

respondents herein were also members of the TBC’s Board of

Governors. Respondent KENEALY, in addition to being a

member of the Board of Governors was the House Chairman and

a former Commodore of the Club.

A major project undertaken in 1991 was renovation of the

TBC’s restaurant and bar which came under the purview and

responsibility of respondent KENEALY as House Chairman. The

Commodore of the TBC, being an architect by profession, took it

upon himself to personally oversee the renovations.

At the regular members’ meeting on April 22, 1991,

respondent KENEALY made a motion, seconded by seven other

board members, relating to the issuance of shares in TBC to its

members. This motion was unrelated to the renovations being

undertaken at the time, although this was an existing irritation

between the petitioner and respondent KENEALY. This motion

resulted in a lengthy discussion and, rather than put the motion to

a vote, petitioner, then Commodore, tabled the motion.

Respondent KENEALY felt the motion was improperly tabled by

Petitioner and called the Petitioner a "shit commodore." This

comment was made more than a year prior to the institution of the

instant action.

On April 26, 1991, at what is believed to be the instigation

of petitioner, twelve members of the TBC served written notice to

petitioner asking for a special meeting to consider expelling

respondent KENEALY from the TBC for use of profanity and

slanderous statements. Presumably in response thereto, on April

27, 1991, petitioner, without notice to or concurrence of the Board

of Directors, sent a letter to respondent KENEALY suspending him

from the TBC for abuse of the Commodore, profanity, and slander

5

against the Commodore and on the same date the petitioner called

a special meeting for May 9, 1991 to consider the possible

expulsion of respondent KENEALY.

Petitioner undertook this ultra vires action knowing full

well that he did not have the support of, nor the authority of, the

Board of Governors to take such action. Upon learning of

Petitioner’s intentions, the Board of Governors called a special

meeting on May 2, 1991 to review the issue of the suspension of

respondent KENEALY by the petitioner. After much discussion,

it was voted that the suspension be rescinded, respondent

KENEALY be asked to apologize to Petitioner, and a letter of

reprimand be sent to respondent KENEALY. Consistent therewith,

on May 3, 1991 an apology was delivered by respondent

KENEALY.

The renovations to the clubhouse apparently resulted in

tension developing between the TBC and the entity renting the

restaurant from the TBC, to wit, DOCKSIDE AT TARRYTOWN.

INC. (hereinafter referred to as "DOCKSIDE"). Sometime in the

end of September, 1991 DOCKSIDE initiated litigation against the

TBC in the Supreme Court, Westchester County.

On October 9, 1991 a special meeting of the Board of

Governors was called to discuss the litigation with DOCKSIDE.

Several members of the Board were concerned that a member or

members of the Board of Governors might be aiding DOCKSIDE

in its litigation against the TBC. To ensure that each member of

the Board was aware of where their loyalties should lie and to

ensure that a united front was maintained for this litigation, each

attested to the following:

1) no member of the Board will participate in any

discussions with the Dockside and/or its attorneys

pertaining to the litigat. on;

6

2) no member of the Board will conspire with the

Dockside to aid and abet the litigation; and

3) no member of the Board has provided any information

to the Dockside and/or its attorneys regarding the

September 23, 1991 meeting of the Club.

Present at this meeting was the petitioner herein, ANDREW

SCHIFFER, who subscribed his name to this resolution, dated 9

October 1992.

Despite his position of trust as Commodore, and without

notification to any of the members of the Board of Governors, on

October 30, 1991 the petitioner signed an affidavit knowing that

same would be submitted on behalf of DOCKSIDE in its litigation

with the TBC. A cursory review of the affidavit illustrates that the

allegations made therein are no more than personal attacks on

respondent KENEALY.

Upon learning of the existence of this affidavit a special

meeting of the Board of Governors was held on November 3, 1991

and the petitioner was suspended for violating his fiduciary

responsibility to the TBC and its members; by effectively entering

into litigation against the club in violation of its by-laws and

endangering the welfare of the TBC by his actions.

A product of that meeting of the Board of Governors was

that on November 4, 1991 a letter was sent to the General

Membership informing it of petitioner’s suspension and a meeting

was scheduled for November 11, 1991 to consider petitioner’s

expulsion from the TBC. On the same date a letter was sent to the

petitioner informing him of his suspension and the November 11

meeting. A notice of the meeting was also posted in the private

meeting room of the Club.

On November 11, 1991, at a special meeting of the regular

members of the TBC the issue of petitioner’s conduct was

7

undertaken and, upon a vote of 43 to 13 with 2 abstentions, the

charges against petitioner were sustained and petitioner was

forthwith expelled from the TBC.

Of significant note is that on November 13, 1991 a letter

was sent to the petitioner informing him of his expulsion. No

action, within the 4 month period provided for in New York Civil

Practice Law and Rules Article 78 was ever taken by petitioner,

nor did he ever request that the membership, in any capacity

review the determination to expel him.

Petitioner’s full treachery and deceit was not known at the

time and has only now come to full light. As a result of a conflict

between counsel for DOCKSIDE and its client a motion to be

relieved as counsel was made. A copy of that motion, which

included the timeslips of work performed by that firm is included

in the record.

It is only upon review of those timeslips that the full

measure of Petitioner’s betrayal of his position of trust and

authority can be appreciated. Petitioner’s conduct was not an

isolated incident, but an intentional and continuous course of

conduct, without notice to the Board of Directors of the TBC.

8

SUMMARY OF ARGUMENT

At the appellate level below Petitioner alleged he was

deprived of property by the Respondents’ violation of the

Fourteenth Amendment and 42 U.S.C. sec. 1983.' Defendant-

respondents contend that this argument is untenable and that it

demonstrates a serious misunderstanding of both Constitutional and

Federal Civil Rights Law. Petitioner seemingly abandons this

argument before this Court; however, should the Court decide to

consider this argument, Respondents’ opposition is briefed at

Point II below.

In his Petition for a Writ of Certiorari Petitioner advances

a new argument. He seems to be claiming that the New York State

courts were somehow deceived into misunderstanding New York

State law. This deception caused the state courts to dismiss

Petitioner’s case. This is an incredible argument and it certainly

takes quite a bit of nerve to advance it before the United States

Supreme Court. Of course, Respondents disavow any deception

and in Point I below will show that Petitioner is actually trying to

have this Court review the proper application of well-settled New

York State law by our state’s extremely competent judiciary.

The property of which he was allegedly deprived is his

membership and office of “Commodore” in the Tarrytown Boat Club, inc.

9

ARGUMENT

Introduction

Before we make our substantive argument to the Court, we

are compelled to point out certain departures by Petitioner from

this Court’s rules. Petitioner has included items in his appendices

which were never before the courts below. These items are de

hors the record and cannot be considered by this court.

Petitioner’s Appendix A through E are prior decisions and

orders from the state courts in this matter and are properly before

this Court. Appendix F is confusing at best. Appendix G and

Appendix H are excerpts from briefs filed in the state courts in this

matter and are also properly before this court. Appendix I is a

letter to Petitioner’s attorney which is dated three days before the

date of Petitioner’s brief; was never including in any record before

any court below; and has never been seen before by Respondents.

It is improperly included in the Petition for the above reasons and

because it is not “essential to understand the petition. "?

Petitioner’s Appendix J has no place in these proceedings

for the same reasons Appendix I is improperly included.

Petitioner’s Appendix K is an excerpt from a deposition which

Petitioner admits in the caption to the appendix was not taken until

after the decision in the state trial court which resulted in the

appeals. Appendix L are portions of Respondent TARRYTOWN

BOAT CLUB’s (hereinafter "TBC") Constitution which Petitioner

claims were violated by Respondents. Neither K nor L add

anything to aid this Court’s understanding of the Petition and both

should be excluded.

2 _-U.S.Sup.Ct. Rule 14 (i) (vi).

10

POINT I

PETITIONER’S CASE WAS DISMISSED BY

THE NEW YORK STATE COURTS BECAUSE HE

SUBSTANTIVELY AND PROCEDURALLY FAILED

TO ASSERT A VALID AND TIMELY CAUSE OF

ACTION AGAINST RESPONDENTS

Petitioner’s Appendix L is one in a continuing series of

examples directly from the Petition illustrating that there is no

federal question involved here and Petitioner is frivolously causing

Respondent’s to incur additional legal fees in his attempt to satisfy

himself that he took this matter “all the way to the Supreme

Court!". Whether or not the TBC’s constitution was violated is a

question for the New York State courts, not the United States

Supreme Court.

It is understandable that Petitioner himself refuses to accept

that he has lost after being given his day in court; but for an

attorney to encourage that and, worse, to cast aspersions against

another attorney before the highest court in the land is most

disturbing. The law was once known as a "gentleman’s

profession." No longer is that so; and not merely because the

word “gentleman” in this context is not considered politically

correct. Too often it happens that one attorney cannot rely on the

word of another attorney. Or some attorney will take on a matter

even though it is clearly frivolous while other attorneys will refuse.

Here now we have an attorney accusing a brother attorney

of things which amount to libel, all in the course of assuaging his

client’s ego. Perhaps it is because Petitioner’s counsel was trained

in India; which, from reading Appendix J of Petitioner’s brief,

seems to be a country with a corrupt legal system. Whatever the

reason, there is no excuse for ad hominem attacks. A review of

the Petition before this Court on its merits leads to only one

conclusion, it must be denied.

11

Pages 20 through 29 of the Petition purport to set forth the

reasons for granting a Writ of Certiorari. Reading them shows

they contain arguments properly before the state courts and do not

contain any hint of a discussion of a federal question.

Another example epitomizing Respondents’ claim that this

is a request to review substantive and procedural state law and not

constitutional law is found in the following quotation from page 19

of the Petition:

this petition is premised on a plethora of extraor-

dinary and compelling Federal questions . . . that

involves judicial decisions based on what appeared

to be settled law ("Appearance") when, per se, the

reality of that settled law was (and still is) just the

reverse ("Reality"). [emphasis in original]

Petitioner is saying here for all to see that the New York State

courts decided his case on what appeared to them to be the law,

but was not. The seven judges of the New York State Court of

Appeals, the four judges empaneled at the Appellate Division, and

the trial court judge all misunderstood the law . . . if we are to

believe Petitioner. And he comes here to this Court to straighten

things out. Is this a Federal Question? No.

At page 12 of his brief Petitioner states:

Appearance of settled law on Statute of Limitations

("Appearance") that CV created caused the State

Courts to repeatedly throw out petitioner’s first

three causes of action as time-barred. (App. D, 4a-

6a at Sa).

Quite to the contrary, reality of settled law thereon

is that petitioner had the choice between an Article

78 proceeding (within four months which he did

not choose) and plenary action which he timely

commenced ("Reality"). [emphasis in original]

SE

12

Petitioner expands on this at pages 21 through 24 of his Petition,

citing New York State court cases. To understand the gist of

Petitioner’s argument, it must be understood that Article 78 is part

of New York’s Civil Practice Law and Rules and pertains to

judicial review of a decision by a body or officer. The Statute of

Limitations under Article 78 is four months and Petitioner had not

sought such review within that time.

Respondents argued below that Petitioner was limited to

Article 78 review and Petitioner argued below that the case law of

New York State permitted him to initiate a plenary action. The

state trial court held that Petitioner was limited to an Article 78

proceeding and because of the Statute of Limitations dismissed his

claim. On appeal, the Appellate Division affirmed the trial court

on this issue. Petitioner now seeks to reargue this state question

before this court.

In his final paragraph on page 25 of his Petition, Petitioner

claims Respondents “inveigl{ed] our State Courts into not taking

judicial notice (thus escaping notice) of settled law on choice of

plenary action in case of a corporation and its individual

fiduciaries" [emphasis in original]. This is a red herring. The law

certainly is settled on this issue and the state court’s properly

applied it in Respondent’s favor.

Petitioner gives Respondents’ attorneys too much credit.

His attorneys prepared and submitted a brief to the Appellate

Division; Respondents’ brief was rejected by the Appellate Division

because it was offered for filing late. Further, Respondents’

attorneys were not permitted oral argument because they failed to

file a brief. All copies of the brief were returned to Respondents’

attorneys and were not before the appellate court.

How could Respondents’ attorneys mis-lead or deceive the

appellate court without a brief or oral argument. The Court is

respectfully referred to Petitioner’s Appendix D at page 4a of the

Petition for the decision of the Appellate Division. Beneath the

13

caption is listed Petitioner’s attorney only - Michael H. Sussman.

Respondents’ attorneys are not listed because they failed to timely

file a brief.

Petitioner also seems to conveniently forget that he was

represented throughout these proceedings. His attorney filed

papers in opposition to the original motion for summary judgment

and, in fact, convinced the court that certain of Petitioner’s causes

of action should not be dismissed at that time for lack of discovery.

(See decision at Petitioner’s Appendix E, page 7a). As set forth

above, his attorney filed the only brief before the Appellate

Division on Petitioner’s appeal of the trial court’s decision.

Following affirmance of the trial court by the Appellate

Division, Petitioner retained another attorney who sought

reargument of the appeal. Petitioner’s new attorney then sought

review by the New York State Court of Appeals and reargument

of its decision to dismiss his appeal. Certainly, Petitioner has had

adequate representation and has taken every opportunity to be

heard. He must now accept that he has exhausted his appeals and

is not properly before this Court.

14

POINT II

WITHOUT DEPRIVATION OF A FEDERAL RIGHT

CAUSED BY THE EXERCISE OF SOME RIGHT OR

PRIVILEGE CREATED BY THE STATE OR BY A RULE

OF CONDUCT IMPOSED BY THE STATE OR BY A

PERSON FOR WHOM THE STATE IS RESPONSIBLE

THERE IS NO CONSTITUTIONAL VIOLATION

The teachings of the this Court are particularly enlightening

on the applicability of the Fourteenth Amendment and its Due

Process Clause. This Court consistently has held that "state

action" is required for a Fourteenth Amendment violation, and it

has said so in a variety of ways. "Embedded in our Fourteenth

Amendment jurisprudence is a dichotomy between state action,

which is subject to scrutiny under the Amendment’s Due Process

Clause, and private conduct, against which the Amendment affords

no shield, no matter how unfair that conduct may be.” N.C.A.A.

v. Tarkanian, 488 U.S. 179, 191, 109 S. Ct. 454, 461, 102

L.Ed.2d 469 (1988) [citing Shelley v. Kraemer, 334 U.S. 1, 13,

68 S. Ct. 836, 842, 92 L.Ed. 1161 (1948)]. "The Fourteenth

Amendment protects [property] interest[s], however, only from a

deprivation by state action." Tulsa Professional Collection Services

v. Pope, 485 U.S. 478, 487, 108 S. Ct. 1340, 1345, 99 L.Ed.2d

565 (1988). "Since the [Fourteenth] Amendment is directed at the

States, it can be violated only by conduct that may be fairly

characterized as ‘state action’." Lugar v. Edmondson Oil

Company, Inc., 457 U.S. 922, 924, 102 S. Ct. 2744, 2747, 73

L.Ed.2d 482 (1982).

The Fourteenth Amendment Due Process Clause offers no

shield against private conduct, “however discriminatory or

wrongful.” Jackson v. Metropolitan Edison Co., 419 U.S. 345,

349, 95S. Ct. 449, 453, 42 L.Ed.2d 477 (1974) [quoting Shelley

v. Kraemer, 334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L.Ed. 1161

(1948)]. "The Fifth and Fourteenth Amendments forbid both the

Federal Government and the States from depriving any person of

15

life, liberty or property without due process of law.” Bloom v.

[linois, 391 U.S. 194, 195, 88 S. Ct. 1477, 1478, 20 L.Ed.2d 522

(1968). "Only if a State deprives any person or denies him

enforcement of a right guaranteed by the Fourteenth Amendment

can its protection be invoked.” Rice v. Sioux City Memorial Park

Cemetery, 349 U.S. 70, 72, 75 S. Ct. 614, 615, 99 L.Ed. 897

(1955).

In Lugar v. Edmondson Oil Company, Inc., supra, this

Court discussed its two-prong approach for determining whether

conduct allegedly causing the deprivation of a federal right can be

fairly attributable to the State:

First, the deprivation must be caused by the

exercise of some right or privilege created by the

State or by a rule of conduct imposed by the state

or by a person for whom the State is responsible.

In Sniadach’, Fuentes‘, W.T. Grant®, and North

Georgia®, for example, a state statute provided the

right to garnish or to obtain prejudgment attach-

ment, as well as the procedure by which the rights

could be exercised. Second, the party charged with

the deprivation must be a person who may fairly

be said to be a state actor. This may be because

he is a state official, because he has acted together

3 Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct.

1820, 23 L.Ed.2d 349 (1969).

° Fuentes v. Shevin, 407 U.S. 67, 92S. Ct. 1983, 32 L.Ed.2d

556 (1972).

* Mitchell v. W.T. Grant Co., 416 U.S. 600, 94S. Ct. 1895, 40

L.Ed.2d 406 (1974).

® — Nerth Georgia Finishing, Inc. v. Di-Chem, Inc., 419U.S. 601 ,95

S. Ct. 719, 42 L.Ed.2d 751 (1975).

16

with or has obtained significant aid from state

Officials, or because his conduct is otherwise

chargeable to the State.

Lugar, at 922, 937, 102 S. Ct. at 2753-54.

Considering the case at hand, Petitioner can point to no

evidence showing that he was deprived of property by reason of

State action. The record is conspicuously devoid of evidence

revealing that the Respondents, either individually or collectively,

acted on behalf of the State or pursuant to State authority.

Specifically, Petitioner has not shown that his alleged deprivation

of property resulted from "the exercise of a right or privilege

created by the State or by a rule of conduct imposed by the state

or by a person for whom the State is responsible. See Lugar, at

922, 937, 102 S. Ct. at 2753-54. There is no evidence showing

that the Respondents resorted to State assistance in dismissing

Petitioner from the boat club. Nor has Petitioner demonstrated that

even a single Respondent is someone who may "fairly be said to

be a state actor." See id. For these reasons, it is impossible for the

Respondents to have violated the Fourteenth Amendment.

Moreover, the fact that Petitioner sought redress in the

courts of New York State will not transform this controversy into

one involving state action. "The mere availability of a forum for

the resolution of private conflicts does not clothe private litigants

with the authority of the state. In re McLouth Steel Corp., 23 B.R.

167, 169 (E.D. Mich., 1982) [quoting Henry v. First National

Bank of Clarksdale, 595 F.2d 291, 296, rehearing denied, 601

F.2d 586 (Sth Cir. 1979)]; see also Louisville Area Interfaith

Committee v. Nottingham Liquors, 542 F.2d 652, 655 (6th Cir.

1976). Use of the state judicial system by Petitioner will not give

rise to state action to sustain a due process violation.

17

Title 42 U.S.C. section 1983 provides a remedy for

deprivations of rights secured by the Constitution and laws of the

United States when that deprivation occurs under color of law. The

statute reads in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the juris-

diction thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. section 1983 (emphasis added). In effect, a plaintiff

relying upon section 1983 must show that: (i) he was deprived of

a right secured by the Constitution or federal law, and (ii) the

defendant deprived him of this right while acting under color of

state law. See Lopez v. Department of Health Services, 939 F.2d

881 (9th Cir. 1991); German v. Killeen, 495 F. Supp 822 (D.C.

Michigan 1980).

Section 1983 was designed "to deter state actors from using

the badge of their authority to deprive individuals of their federally

guaranteed rights and to provide relief to victims if such deterrence

fails." Wyatt v. Cole, 504 U.S. 158, 161, 112 S. Ct. 1827, 1830,

118 L.Ed.2d 504 (1992) [citing Carey v. Piphus, 435 U.S. 247,

254-57, 98 S. Ct. 1042, 1047-49, 55 L.Ed.2d 252 (1978). The

Statute protects “individuals against a misuse of power made

possible only because the wrongdoer is clothed with the authority

of state law." Duchesne v. Sugarman, 566 F.2d 817 (2d Cir.

1977).

In view of the purpose of section 1983 and its color of law

requirement, the class of defendants to which it applies is easily

18

identified. As in cases arising under the Fourteenth Amendment,

the pivotal question in determining whether someone is subject to

suit under section 1983 is whether the claimed infringement of

federal rights is fairly attributable to the state. Rendall-Baker v.

Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L.Ed.2d 418 (1982);

Lawline v. American Bar Ass’n., 738 F. Supp. 288, 294 (N.D. Ill.

1990), affirmed, 956 F.2d 1378 (7th Cir. 1992), cert. denied, _

U.S. __, 114 S. Ct. 551, 126 L.Ed.2d 452 (1993). "When

Congress enacted section 1983 as the statutory remedy from

violations of the Constitution, it specified that the conduct at issue

must have occurred ‘under color of’ state law; thus, liability

attaches only to those wrongdoers ‘who carry a badge of authority

of a State and represent it in some capacity, whether they act in

accordance with their authority or misuse it. N.C.A.A. v.

Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 461, 102 L.Ed.2d 469

(1988) (quoting Monroe v. Pape, 365 U.S. 167, 172, 81 S. Ct.

473, 476, 5 L.Ed.2d 492 (1961)].

Purely private conduct, no matter how wrongful, is not

within the ambit of section 1983. Quzts v. Maryland National

Insurance Co., 505 F.2d 547 (9th Cir. 1972), cert. den., 421 U.S.

949, 95 S. Ct. 1681, 44 L.Ed.2d 103 (1975). The statute protects

federal rights from infringement by persons acting under state

authority, but not from infringement by private actors who commit

wrongful acts. Spampinato v. M. Breger & Co., 270 F.2d 46 (2d

Cir. 1959), cert. den., 361 U.S. 944, 80 S. Ct. 409, 4 L.Ed.2d

363 (1960), rehearing den., 361 U.S. 973, 80 S. Ct. 597, 4

L.Ed.2d 553 (1960); Brownley v. Gettysburg College, 338 F.

Supp. 725 (D.C. Pa 1972). Stated succinctly, private actors cannot

be sued under section 1983. Sato v. Plunkett, 154 F.R.D. 189,

192 (N.D. Ill. 1994).

Based on the foregoing authorities, a private actor must

have some connection with the State in order to violate section

1983. Private actors, for example, may incur liability under

section 1983 if the actor is a “willful participant in a joint action

with the State or its agents." Adickes v. S.H. Kress & Co., 398

19

U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L.Ed.2d 142 (1970)

[quoting U.S. v. Price, 383 U.S. 787, 794, 86 S. Ct. 1152, 1157,

16 L.Ed.2d 267 (1966)]. Joint activity requires some overt and

significant state participation in the challenged action. Tulsa

Professional Collection Svcs. v. Pope, 485 U.S. 478, 486, 108

S.Ct. 1340, 1345, 99 L.Ed.2d 565 (1988); Hoai v. Vo, 935 F.2d

308 (U.S.App.DC 1991). Such joint activity requires more than

the mere use of a state’s judicial system by private litigants in the

course of a lawsuit. Earnest v. Lowentritt, 690 F.2d 1198, 1200

(Sth Cir. 1982); Hollis v. Itawamba County Loans, 657 F.2d 746,

749 (Sth Cir. 1981).

Besides joint activity, the wrongful act of a private party

may be attributed to the state if the state has so involved itself in

the defendant’s action that the state has compelled the action.

Starnes v. Capital Cities Media, Inc., 39 F.3d 1394, 1396 (7th Cir.

1994) [citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90

S. Ct. 1598, 1615, 26 L.Ed.2d 142 (1970)}. The requisite state

action for a section 1983 claim will not be found if a state merely

allows private litigants to use its courts, unless there is corruption

of judicial power by the private litigants. McCartney v. First City

Bank, 970 F.2d 45, 47 (Sth Cir. 1992).

Turning once again to the case at bar, there is absolutely

no evidence showing the Respondents herein deprived Petitioner of

a federally protected right under color of state law. Assuming that

Petitioner’s membership in the boat club was a constitutionally

protected property interest, nothing in the record even suggests that

the deprivation of this interest could be fairly attributable to the

State. The boat club is a private club. Petitioner engaged in

conduct inimical to the interests of the club. As a result, he was

expelled from the club by a 43 to 13 vote of the club’s regular

members. The members, including the Respondents, did not oust

Petitioner under color of any "statute, ordinance, regulation,

custom, or usage, of any State". The vote was a purely private

matter undertaken by a private club. By no stretch of imagination

can the occurrence be deemed anything but a private matter.

20

A New York State court opinion also is instructive on the

applicability of Federal Civil Rights Law and the Fourteenth

Amendment to a dispute between a private club and its members.

In Kiwanis Club of Great Neck, Inc. v. Board of Trustees of

Kiwanis Int’l., 52 A.D. 906, 383 N.Y.S.2d 383 (2d Dept 1976),

aff'd, 41 N.Y.2d 1034, 395 N.Y.S.2d 633, 363 N.E.2d 1378

(1977), a local chapter of the Kiwanis permitted women to become

members of the club in violation of the constitution and by-laws of

the parent organization. When Kiwanis International revoked the

chapter’s charter, the chapter members sought a declaratory

judgment to nullify those provisions of the organization’s

constitution and by-laws and to reinstate the chapter. The New

York State Court of Appeals determined that Kiwanis International

is a private club which is not subject to the constitutional standards

of the Fourteenth Amendment or the provisions of the Federal

Civil Rights Act of 1964. As such, the organization’s practice of

restricting membership to men only was a valid restriction.

21

CONCLUSION

In conclusion, it is clear the Petitioner not shown a

constitutional question is directly involved to support an appeal as

of right and is simply wasting this court’s valuable time.

Petitioner is obviously not satisfied with the decision of the

courts of New York State even though he had his opportunity to be

heard and was represented by one of the best attorney’s in

Westchester County. As stated previously in this brief, Petitioner

apparently cannot accept his loss and still believes he is right.

Taking his case to this, the highest court in the land, is his way of

licking his wounds . . . he can now at least tell everyone who will

listen that he did not rest until he took his case all the way to the

United States Supreme Court.

Unfortunately for other Petitioners with genuine issues for

review before this court, Petitions like this clog the system and

make it difficult for this Court to get its job done.

Respondents respectfully pray this court deny the Petition

for Writ of Certiorari.

Dated: Mineola, New York

August 9, 1996

TORINO & SINGER, P.C.

Attorneys for Respondents

250 Old Country Road

Suite 501

Mineola, New York 11501

(516) 747-4301

On The Brief:

Bruce A. Torino

Michael A. Amodio