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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 864

## Text

Supreme Court, U
\}) fRiLED
aye 22 1996

No. 96-57

In The

Supreme Court of the United States
October Term, 1995

¢

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

-——
—

i
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.

il
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.

t
'
:
i
:

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

Vili

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.

|
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1127%3A2. Public record. Not legal advice.