Petition for Writ of Certiorari — Sterngass v. Palisades Interstate Park Commission (No. 07-1381)

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071381 MAY 02 2008

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Supreme Court of the Anited States

No. :

RUBIN STERNGASS,

Petitioner,

-against-

PALISADES INTERSTATE PARK COMMISSION,

THE STATE OF NEW YORK, THE TOWN SUPERVISOR

OF THE TOWN OF ORANGETOWN, et. al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RUBIN STERNGASS

Petitioner, Pro Se

129 Ridge Road

Valley Cottage, New York 10989

(845) 268-2558

DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024

1-800-531-2028

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i

QUESTIONS PRESENTED

1. May the State, by its Agency — the Palisades

Park Commission, as created by the Congressional

Compact of 1900 and as further defined — evade the

mandate and intent of that Federal law AND as so

raised below and judicially ignored?

. 2. Does that Agency have the authority to take

real property without actually paying for it, pursuant

to the “just compensation” constitutional mandate?

3. Is the lack of personal notice to the known

property-owner required by Law, prior to

appropriation, AND did appropriation, without such

required ‘notice, create improper “subject matter”

jurisdiction to the New York Court of Claims?

4. Is “Just Compensation” to be defined as made

by uncollectible judgment, or is it to be made in United

States currency only, AND is it permitted contrary to

the terms ofthe Congressional Compact to unilaterally

release itself from these interstate obligations?

5. Is “Just Compensation” for improved

commercial highway billboard use — prior to Zoning —

to be valued at its “highest available use” by the Court

of Claims of the State of New York?

6. Did the Agency’s coercive action manipulate

the New York Court of Claims evade its constitutional

responsibility under the Fifth (5), Seventh (7th) and

li

Fourteenth (14) Constitutional Amendments AND

exceed its jurisdictional limits?

7. Did the Circuit Court of Appeals Dismissal,

Sua Sponte, on the unraised issue of the Statute of

Limitations violate my Due Process to be heard on my

claim of a void taking of my real property?

8. Did the lower court’s avoidance of the

Doctrine of “Judicial” Notice of the Common Law

Constitutional and public statutes of the United States

deny Due Process and Equal Protection, as mandated?

9. Is the appropriation and taking void by the

fact of non-payment a prima fascia basis for return of

the real property?

10. Is an Interlocutory Judgment, as issued by

the New York Court of Claims, a collectible money

judgment, or does it expire after ten (10) or rinisagd (20)

years and non-payment?

11. New York State Case Law adheres to the

judicial notice principle that must be followed when a

Federal statute is involved. Should not a

Congressional Compact demand the same judicial

respect?

iil

_ LIST OF PARTIES

The parties to the proceeding are shown in the caption.

Petitioners are not a corporation.

Respondent is not a foreign bank, and we have no

knowledge of parent corporations or subsidiaries.

iv

TABLE OF CONTENTS

| Page

REL FIONONOUNE 5k See ee ees 1

Re ION cies ys i eve oy pawn ee il

Table of Authorities ..... Gao eee pie aw wee ke v

Statement cf the Basis for the Jurisdiction ...... 1

Constitumional Provieions .............66s.06 5 3

Biaisuiont EE ee ae kare es ee

Reasons for Granting the Writ of

I 8 8, iors alan Ck wigs oe ive a te eee Sue eS 10

Conclusion ........ SCabie et a eetie ped ee ane a es 11

x ae ee Pe at

MAE DE COT OO AR INE Rete ets EO ee RE RU a Ley AAAS RCI aPT ha Beer REE a eK ME: VORA iy Read

Vv

TABLE OF AUTHORITIES

| Page

CASES:

Aberdeen Restaurant v. Gottfried (1936),

BOG HY O02 66. c.s Be gna ARC Rate 3

Alves v. United States (Federal Circuit 1998), 3

Dee ee PEO hs a ee i ee ee oR 1 a

Arverne Bay v. Thatcher, :

LTH ES oo i So has HOR le T a

Association of Data Processing v. Camp (1970), q

ES Se ee ee ee 5 a

Atkocus v. Terker (1941), 4

ERE AR See seg a Oe 5

Bass Enters Prod. v. United States 4

(Federal Circuit 1998), a

etn en ies cs che eee ee i; 2 a

Berenson v. Town of New Castle, q

38 NY 2106; 341 NE 2236, 378 4

ipo 7

Briarcliff Associates Inc., et al. v. Town of Cortlandt,

708 NYS2 421; 272 AD2 488; denied 96 (NY2)

Me HUE BON 5s oe iwi ow eh ea oes oo 8

vi

Chase Securities v. Donaldson (1945),

325 U 304; 65 S. Sot, es BEA os ek cee was 6 oes 8

~ Connoly v. Pension-Benefit,

475 US 211 @ 225; 106 S. Ct. 1018 @ 1026

(1986) and Briarcliff Associates Inc. ........... 8

Cooper v. Morin (1977),

398 NYS 2d 36; 49 NYS 2d 69, Cert. Denied

1090 S. Ct. 2965; 446 US 984 ...............7. 5

Cuyler v. Adams (1981),

G60. US 29a; 101 S.Ct. 708 o.oo ee. 13,12

DeHart v. Hatch (1875),

I Es ee ec we Sie wks ea wares 8

Donohue v. Cornelius (1966),

Ue ee OP EE obs hs cae cee wd ve Re ee we 3

Dowski v. Merritt-Chapman & Scott Corp. (1946),

65 NYS 2d 890; 271 AD 874; 66 NYS 2d 635..... 9)

Engel v. Just Rite Handkerchief Co. (1943),

Ae ee ee eee og 5

First English Church vu. Los Angeles 1987,

482 US 304; 107 S. Ct. 2378; 96 LED 2 25010, 11, 12

509 Sixth Avenue Corp. v. New York City

Transit Authority,

15 NY 2D 48, 265 NYS 20D 89... 2.0 ee. 8,13

ae ree eee

Vii

Gordon v. Ramapo ( 1972),

30 NY2d 359, 285 NE 2 291, 334 NYS

SES ERNE SEER Ba TEESE <n yg eo Oa a Baa a

Kagen v. Kagen (1968),

Bi IND 2 Doe, Bee NO2 190 2 eee ee

Kinkopf v. Triborough Bridge Tunnel (2004),

792-NYS2-201 292. eee ees

Kirby v. United States,

er iN i dae te eae ee ek

Lingle v. Chevron (1/24/05),

O46 We 1118; 120 8. Ct, 1106... 2. ee ee,

Loretto v. Teleprompter (1982),

ane Wo 419, 107 o. Ct cIG4 .. we ee ee

Malloy’s Estate (1938),

BN oe 5 oe he se KD eee

Marbury Madison (1803); “no middle ground”,

Oe ae eee a ee eee eas

Martin v. Hunter Lessee (1816),

ee ame Oe ne ee a oh Ke be eee .-

Mendez v. Steen Trucking (1998),

254 AD2 715, 716 [Fourth (4"") Department];

G60 NYSZ 194, p. 195-196 2. ei cess

3 ERR Cen EM Ve aT OEE ENC LNEREN Ie PT GR eA OM HT EMER OPE TUNE Rr eI Cy ONE RTT WS

i Ralaes

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Vlil

Metro Media v. Santiego (1981),

453 US 490, [Violates First (1°) Amendment] 6, 7, 12

Miller v. Schoene,

AE Te oe a ee ae a oe bei 10

Monteray v. DelMonte (1999),

Gage Un 667; 319 SG. Ct. 1624... oo ee eek 8, 10

Mora v. Sun Mutual Insurance Co. (1861);

13 Abb. Prac. 304, 22 HP 60 (New York

TIO COUNE) foe Fee nv es ee ek 8

Murdock v. Memphis (1875), 7

87 US (20 Wall) 590, 22 LED 429 ............ 11

Nectow v. Cambridge (1928),

o277 US 82 @ 188; 48 S. Ct. 447@ 448 ......... 10

Paladino v. Time Warner Cable (2005),

16 AD3 646; 793 NYS2 63

[Second (2"*) Department].................... 1

Palazzo v. Rhode Island (2001),

§33 US 606, 631; 121 S. Ct: 2448 .............. 6

Penn Central; 438 US 130-131 ................ 6

Penn Coal v. Mahon (1922),

260 US 393, 4139: 43.S.-Ct. 158 2 ce. ee eo eee 6

People v. Ailey (1946),

Ss. Se else ec edie ae ob wa sie ss

People v. Turza (2002),

i ke inne 6

Rose Farm vu. United States,

uN eae Sr iy 6

Seawall v. City of New York,

EN 6s le 0's ou eg svn 0 'e greece bo sinew 6

Scheinzeit v. Kelly (1948), -

Neen es ee wig ane beso we. @ ecb 5

Shepardson v. Town of Schdock (1994),

Me eee OE CLS N12 G00 ok eee ele 1

Texas v. New Mexico (1983, 1987 and 1988),

462 US 554, 564; 103 S. Ct. 2558, 2565; 482 US

124 127; 107 S. Ct. 2279, 2283; 485 US 338; 108

ee ae lh nolan a htate Me aye.'s 20; 32, 13

Vernon Park Realty v. City of Mount Vernon,

NE TEE MO 5 ik ee ee a wes 7

Village of Euclid v. Amber Realty,

pee ey a. Ek Oa) Se 7

West Virginia Ex Rel Dyer v. Sims (1951),

es Bs arg 2 SES. Sp.” y a re rae 12

=.

-

xX

OTHER AUTHORITIES:

Anderson’s New York Zoning,

Section No. 9.01 (prior uses) ............00000e 6

Judicial Code (USC) Chapter 85,

ET ws is cn we dah Giese va eee cae 1

United States Constitution, Article VI, Section 4

PES eS Fe Lae RES BS Fee as 1 3

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xi

APPENDIX

Court of Appeals Summary Order, dated

I ANEONE SE CASE eet) ASR ra la

Court of Appeals Order filed February 7, 2008 .. 5a

District Court Sua Sponte Dismissal Order,

dated December 19, 2005 ................... Ta

Front page of Verified Complaint with “Jury

Trial Demanded”, dated October 17, 2005 ...... 9a

Initial Page of District Court Docket,

rWEY MPOUROUIGT INORG 6 a cee ee ceca 10a

RES a RPS ACER aL ar te Pie Meteo 12a

el ys a at. gigrale gk big aloes 13a

ae EEN RR le RARE eRe a nc A OS a repo Ch RY 14a

Letter dated December 1, 2005 from Rubin

Sterngass to Ms. Charlotte E. Madigan ....... 15a

Letter dated December 1, 2005 from Rubin

Sterngass to David G. Adams ............... 16a

Notice of Reassignment dated December

RR ae ce a tia ae eb eae 8 17a

Notice of Appeal dated January 10, 2006 ..... 19a

Local Rule 34 Questionnaire: Oral Arguments

ee ee CN ois bs dja MRR Sa werk Wale aE eae 20a

1

STATEMENT OF THE BASIS FOR THE

JURISDICTION

The Circuit Court of Appeals for the Second

Circuit issued their Sua Sponte Summary Order

(dated January 18, 2008) and their Denial of my

Request for Rehearing (dated February 7, 2008)

(Appendix 2a) in violation and contrary to:

1. The Congressional Compact, circa 1900

mandated the New York State Court to comply with

the Compact’s intention and specifications for State

Supreme Court’s exclusive jurisdiction [|Kinkopf vu.

Triborough Bridge Tunnel (2004), 792 NYS2 291, 292;

Mendez v. Steen Trucking (1998), 254 AD2 715, 716

[Fourth (4) Department]; 680 NYS2 134, p. 135-136;

Paladino v. Time Warner Cable (2005), 16 AD3 646;

793 NYS2 63 [Second (2") Department]; and

Shepardson v. Town of Schdock (1994), 83 NY2 894;

613 NYS2 850]] [Bass Enters Prod. v. United States

(Federal Circuit) 1998), 133 F3D 893-895; Kagen v.

Kagen (1968); 21 NY2 532; 289 NYS2 195; and United

States Constitution, Article VI, Section 7(b) (1962)];

2. The Judicial Code (USC), Chapter 85, Section

1343(3) and the Compact Clause — and finally,

3. The Fifth (5), Seventh (7), and Fourteenth

(14) Constitutional Amendments for Due Process,

. Equal Protection, and Just Compensation for

temporary taking [Alves v. United States (Federal

Circuit 1998), 133 F3D 1454-1456]; and the Supremacy

clause and the Federal Estoppe! Theory, based upon

the Interstate Compact, which is the foundation of my

2

claims for relief. Bass Enters Prod v. United States

(Federal Circuit 1998), 133 F3D 893-895] and title to

— appropriated and without prior notice.

3

CONSTITUTIONAL PROVISIONS

1. The United States Constitution, Fifth (5"),

Seventh (7) and Fourteenth (14) Amendments;

Supremacy Clause; Compact Clause; Article VI,

Section 7(b); Article ITI: }

“Vesting takes place when a present

right is conferred” and possession by

valid deed”, and the State of New York’s

taking is void and compensable as an

Ultra Vires destruction of real property

[Aberdeen Restaurant v. Gottfried (1936),

285 NY 832: Donohue v. Cornelius (1966),

271 NYS 2D 231; and People v. Ailey

(1946); 64 NYS 2D 348].

2.. The United States Constitution, Fifth (5)

Amendment question of takings compensability is

directly involved by the facts of this matter and is a

federal question that has been erroneously avoided by

the lower Federal courts.

3. The State of New York, being in complete

control and mandated by the State of New York’s

Constitution (Article 1, Sections 6 and 7), had selected

and caused the initial judicial inquiry to be

commenced within the controlling Statute of

Limitations, to be heard at the New York State Court

of Claims. I contend that this is contrary to the

mandate of the Congressional Compact and New York

State Real Property Law, causing the lack of

jurisdiction and based upon no notice, thereby making

4

that Interlocutory Judgment void and uncollectible

[Martin v. Hunter Lessee (1816), 14 US 304 @ 332; and

Marbury Madison (1803); “no middle ground”, 5 US

137}.

4. The Appropriation, based upon incorrect

procedure, is void abinitio and the Court’s below have

erred in the treatment from the Federal District Court

and of the Appellate level.

Ce GSO BP PT ee ee

® 5

STATEMENT OF THE CASE

The actual taking (circa 1964) by appropriation,

without prior notice, created an act that is Ultra Vires

and void abinitio and contrary to the “Judicial Notice”

Doctrine [Cooper v. Morin (1977), 398 NYS 2D36; 49

NYS 2D 69, Cert. Denied 100 S. Ct. 2965; 446 US 984].

To further exasperate these conditions, I was

forced into the limited jurisdiction of the New York

State Court of Claims [Atkocus v. Terker (1941), 30

NYS 2D 628; Dowski v. Merritt-Chapman & Scott

Corp. (1946), 65 NYS 2D 890; 271 AD 874; 66 NYS 2D

635; Engel v. Just Rite Handkerchief Co. (1943), 48

NYS 2D 688; and Scheinzeit v. Kelly (1948), 80 NYS

2D 509]. The unsuccessful and ignored attempts “to be

heard” by that court ~— which resulted in an

uncollectible Interlocutory Judgment — all of which is

contrary to the edict of the Congressional Compact.

The Constitutional Mandate of Just Compensation

remains in non-compliance today [Association of Daia

Processing v. Camp (1970), 397 US 150].

It is my assertion that the title, as so taken by

the State of New York, is void; and this Honorable

Court can order compensation for the temporary

taking. In addition, this Honorable Court can also

Order a return of title and real property, by direction

to the State of New York. Malloy’s Estate (1938), 28

NY 429.

As for the Town of Orangetown, this court can

direct their compliance to the vested and deeded rights

ra Hr Bh = calle Sie Faw eat. ety = tye A apap Ripa apht on Fara Lares poacher 5-9 phchib perenne na va gain oh ni thrash meg tle bh:

6

of investment expectations from prior property

improvements, for the protection of the Constitutional

edict for freedom of speech, and to permit the legal

prior use of a highway billboard to be rebuilt in

accordance with code requirements for pylon structural

safety {[Metro Media v. Santiego (1981), 453 US 490

[Violates First (1) Amendment] and People v. Turza

(2002), 851 MUS 2D 351])}.

Reasons for granting the Writ Relief, pursuant

to 28 USC 1651, the Common Law, and 28 USC 1257,

are to protect vested entitlements as created by

improvements to commercially used real property

since 1935. These aforementioned reasons also qualify

for protecting the right of Freedom of Speech, as that

is the intent and purpose of a highway billboard.

“The character of the use may determine

not only the validity of the regulation by

the reasonableness of its specific

application.”

{[Anderson’s New York Zoning, Section

No. 9.01] (prior uses).

Ths Town of Orangetown’s Zoning Ordinarice

came into existence in 1948 and shall not divest the

pre-existing vested rights attached to this site “on

constitutional grounds” [Palazzo v. Rhode Island

(2001), 533 US 606, 631; 121 S. Ct. 2448; Penn

Central; 438 US 130-131; Penn Coal v. Mahon (1922),

260 US 3938, 413; 43 S.Ct. 158; Rose Farm v. United

States, 373 F. 3D 1177; and Seawall v. City of New

7

York, 24 NY 92 @ 105]; and Vernon Park Realty v. City

of Mount Vernon, 307 NY 493]. It is non-conforming

use for any residentially zoned use [Arverne Bay v.

Thatcher, 78 NY 522 @ 529].

“Statutes of Limitations go to Matters of

Remedy, NOT to the destruction of fundamental

rights.”

Actual payment for the highest available use

can be so ordered along with the return of title and

land with directions to the Town of Orangetown to

issue a Permit for its rebuilding.

The Common Law of Property permits an owner

of fee simple real property to “use” that does not create

an injury to his neighbors. [Berenson v. Town of New

Castle, 38 NY 2106; 341 NE 2236, 378 NYS 2672

(1975) and Gordon v. Ramapo (1972), 30 NY2d 359,

285 NE 2 291, 334 NYS 2138, and the seminal zoning

case Village of Euclid v. Amber Reality, 272 US 365, 47

S. Ct. 114], which mandate compliance where there is

to be a substantial relation to the public health, safety,

morals, or general welfare. That edict does not include

exclusionary purpose, as that is an _ inherent

Constitutional principle that shall not be violated and

the Common Law of vested property is sacred and

fundamental. The Petitioner's deed, in 1957, acquired

the grantor’s right, title, and interest to continue the

pre-existing highway billboard use; and that was

conveyed by deed to me [[Metro Media v. Santiego

(1981), 453 US 490 [Violates First (1°) Amendment]]].

Pe el RR Oe Gh Pe ae Oe De Pe geet, OT em, idee ne pe RS SEES De he Ree ia Seer 5 ee ee Le ES SP gg ©) en ee ee ae

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8

The use and billboard was on the site (until

circa 1964) and destroyed, prior to the actual date of

appropriation. The Town of Orangetown’s Zoning

Ordinance, as applied to this site by Municipal

activity, is and was an invasion of property and should

be viewed, by this Honorable Court, as a taking

without just compensation and violative Due Process.

[Loretto v. Teleprompter, 458 US 419, 102 S. Ct. 3164

(1982) and Connoly v. Pension-Benefit, 475 US 211 @

225; 106 S. Ct. 1018 @ 1026 (1986); Briarcliff

Associates Inc., et al. v. Town of Cortlandt; 708 NYS2

421; 272 AD2 488; denied 96 (NY2) 704; 23 NYS2 130;

and Monteray v. DelMonte (1999), 526 US 687; 119 S.

Ct. 1624].

The Circuit Court has erred, by its Sua Sponte

view and dismissal, as the Statute of Limitations has

been erroneously determined [Chase Securities v.

Donaldson (1945), 325 U 304; 65 S. Ct. 1137, 1141;

DeHart v. Hatch (1875), 3 HUN 375; and 509 Sixth

Avenue Corp. V. New York City Transit Authority, 15

NY 2D 48, 255 NYS 2D 89 “continuing torts accrue

daily, no Statute of Limitations’]. Statutes of

Limitations go to Matters of Remedy, NOT to the

destruction of fundamental rights.

There exists an Interlocutory Judgment that

remains unpaid and void, as a matter of Law for lack

of subject matter jurisdiction [Mora v. Sun Mutual

Insurance Co. (1861); 13 Abb. Prac. 304, 22 HP 60

(New York Superior Court)].

Sy beh ek ee

Since their appropriation, the Palisades

_. Interstate Park Commission continues the same and

unaltered water course drainage through this site.

10

REASONS FOR GRANTING THE WRIT OF

CERTIORARI

As most ably stated in Lingle v. Chevron, 543

US 1118, 125 S. Ct. 1105 (1/24/05), and Nectow uv.

. Cambridge (1928), 277 US 82 @ 188; 48 S. Ct. 447 @

448, the facts in this matter are as stated herein:

1. This site (0.42 acre) was used for a highway

billboard since 1935.

2. It is part of the drainage for this area and

has a forty-eight inch (48") diameter drainpipe to

traverse U.S. Route 9W in Sparkill, New York.

3. The Palisades Interstate Park Commission

wanted to remove this “blighted, pre-existing use”, and

they did so by subterfuge rather than by adherence to

Constitutional and Congressional Mandates [First

English Church v. Los Angeles (1987 and 1989), 482

US 304; 107 S. Ct. 2378; 96 LED 2 250; Miller v.

Schoene, 276 US 272; and Texas v. New Mexico (1983,

1987, and 1988), 462 US 554, 564; 103 S. Ct.2558,

2565; 482 US 124, 127; 107 S. Ct. 2279, 2283, 485 US

338; 108 S. Ct. 1201]

4. An illegal act cannot be made legal by

subsequent compliance; and Just Compensation for

temporary taking, plus return of real property to

continue its vested entitlement, can be resolved by this

Honorable Court now [Monteray v. DelMonte (1999),

526 US 687; 119 S. Ct. 1624].

11

CONCLUSION

I listen to and hear the current voices of

present-day patriots, who — in their own ways —

espouse the conflicts that exist, nationally.

“Lest we forget” ... I am mindful of and

respectful to the past patriotic pleas of Benjamin

Franklin and Chief Justice John Marshall and the

many jurists that- have followed their precepts,

relating to our United States Constitution.

I am thankful for the opportunity to be heard by

the final voice of this Judiciary, while I seek the relief

contained within our ever-fragile United States

Constitution.

The facts establish ~— and, at a minimum,

raise — issues of Equal Protection, Due Process, and

Abuse of Process. The Congressional Compact is the

next step which (in my view) requires the same strict

scrutiny to honor the Peoples’ right to protection of

their real property /Cuyler v. Adams (1981), 449, US

433; 101.S. Ct. 703; First English Church v. Los

Angeles (1987 and 1989) 482 US 304; 107 S. Ct. 2378;

96 LED 2 250; Murdock v. Memphis (1875), 87 US (20

Wall) 590, 22 LED 429; Texas v. New Mexico (1983,

1987, and 1988), 462 US.554, 564; 103 S. Ct. 2558,

2565; 482 US 124, 127; 107 S. Ct. 2279, 2283; 485 US

338; 108 S. Ct. 1201].

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12

The loss of my freedom of speech drives me as

my way of repayment for the benefits I did receive

under the G.I. Bill of 1946 [[Metro Media v. Santiego

(1981), 453 US 490 [Violates First (1) Amendment]]].

The Regulatory Municipal Abuse capability is

an ever-going and ever-growing “immortality” of the

despotism of present-day zoning and Eminent Domain

by State and Local Municipal kingdomery, whose

purpose seems to be to quell the Peoples’ voice of

dissent by shenanigans; and inevitably, death permits

tyranny to continue. As constitutionally spoken, “Just

Compensation” shall be paid. The problem exists, as

to how to define that term of constitutional import and

to Municipal satisfaction.

Since 1950, my wife andI have devoted our lives

to the belief that “Justice will prevail”. Only I now

remain to continue this battle, and thereafter, possibly

any of our three (3) children will continue it for us.

By United States Supreme Court edict,

(clarification is necessary) — as lower Courts seek

novel — moves to evade their duty [West Virginia Ex

Rel Dyer v. Sims (1951), 341 US 22; 71 S. Ct. 557].

Enforcement of the Supreme Law of the Land is clear

within the Supremacy clause, but Municipal Immunity

is a false “rattle of the saber’. Municipal abuse to this

clause should automatically invoke the Common Law

Doctrine, “Trespass on the Case”,and the daily

sanction shall be paid until compliance [Cuyler v.

Adams (1981), 449, US 433; 101 S. Ct. 703, First

English Church v. Los Angelos (1987 and 1989), 482

13

US 304; 107 S. Ct. 2378; 96 LED 2 250; and Texas v.

New Mexico (1983, 1987, and 1988), 462 US 554, 564;

103 S. Ct. 2558, 2565; 482 US 124, 127; 107 S. Ct.

2279, 2283; 485 US 338; 108 S. Ct. 1201].

Damages — based upon a continuous tort plus

liability that has been constitutionally established

— and interest, are to accrue from the date of

Appropriation [Kirby v. United States, 635 FS 705];

and “continuing torts, accrue daily, no Statute of

Limitations” [509 Sixth Avenue Corp. v. New York City

Transit Authority, 15 NY 2D 48, 255 NYS 2D 89]. In

finality, the District Court did not allow the required

Seventh (7") Amendment right to a Jury Trial, as

demanded in my Verified Complaint appended herein

(Appendix Page Ya).

Respectfully submitted,

Rubin Sterngass

Pro Se Petitioner

129 Ridge Road

Valley Cottage, NY 10989

Home: (845) 268-2558

Cell: (845) 721-0421

Fax: (845) 268-2176

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UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Y¥Y ORDER

Rulings by Summary Order do not have

precedential Effect. Citation to Summary Orders filed

after January 1, 2007, is permitted and is governed by

this Court’s local Rule 32.1 and Federal Rule of

appellate procedure 32.1. In a Brief or other paper in

which a litigant cites a Summary Order, in each

paragraph in which a citation appears, at least one

citation must either be to the federal appendix or be

accompanied by the notation: (“Summary Order).” A

party citing a Summary Order must serve a copy of

that Summary Order together with the paper in which

the Summary Order is cited on any party not

represented by counsel unless the summary order is

available in an electronic database which is publicly

accessible without payment of fee (such as the

database available at http://www.ca2.uscourts.gov/). If

no copy is served by reason of the availability of the

order on such a database, the citation must include

reference to that database and the docket number of

the case in which the order was entered.

At a stated term of the United States Court of

Appeals for the Second Circuit, held a the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York on the 18" day of

January, two thousand and eight.

2a

Present:

HON. SONIA SOTOMAYOR,

HON. DEBRA ANN LIVINGSTON,

Circuit Judges,

HON. GREGORY W. CARMAN

Judge, U.S. Court of International Trade

Rubin Sterngass,

Plaintiff-Appellant,

v. iy

Palisades Interstate Park Commission, The

State of New York, The Town Supervisor of the

Town of Orangetown,

Defendants-Appellees.

For Plaintiff-Appellant: Rubin Sterngass, pro se,

Valley Cottage, New York.

For Defendants-Appellees: David Lawrence III,

Assistant Solicitor General

(Michael S. Belohlavek,

Senior Counsel, Division of

Appeals and Opinions, on

the brief), for Eliot Spitzer,

Attorney General of the

State of New York.

UPON DUE CONSIDERATION, it is hereby

ORDERED, ADJUDGED AND DECREED that the

Judgment of the district clerk is AFFIRMED.

3a

Plaintiff-appellant Rubin Sterngass, pro se,

appeals from the December 20, 2005 judgment of the

United States District Court for the Southern District

of New York (McMahon, J.) dismissing his civil action,

sua sponte. We presume the parties’ familiarity with

the underlying facts and procedural history of this

case.

We review de novo a district court’s sua sponte

dismissal of a complaint. See McEachin v. McGuinnis,

357 F.3d 197, 200(2d Cir. 2004).

Appellant’s complaint is properly construed as

a 42 U.S.C. § 1983 claim for deprivation of property

without due process of law. See Mitchum uv. Foster, 407

U.S. 225, 242 (1972). Any such claim accrued when

appellant knew or had “reason to know of the injury

that is the basis of the action,” M.D. v. Southington |

Bd. Of Educ.,334 F.3d 217, 221 (2d Cir. 2003), that is,

either when his land was seized in 1964, or, at the

latest, in 1972 when the appeal from the judgment of

the state court proceedings awarding Appellant

compensation for the seizure of his land was

dismissed. For § 1983 actions arising in New York, the

statute of limitations is three years. See Eagleston v.

Guido, 41 F.3d 865, 871 (2d Cir. 1994). Thus, the

latest that Appellant’s cause of action accrued was

1972, approximately 30 years before he filed his

complaint in the instant case. The statute of

limitations has therefore expired in respect of

Appellant’s claims.

4a

We have considered Appellant's remaining

arguments and find them to be without merit. For the

reasons discussed, the eo of the district court is

FOR THE COURT: |

Catherine O’Hagan Wolfe, Clerk

By: _s/

FILED

Jan. 18 2008

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UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Thurgood Marshall U.S. Court House

_ 40 Foley Square,

New York, NY 10007

Catherine O’Hagan Wolfe, CLERK OF COURT

ORDER

Docket # 06-1073-CV

At a stated Term of the United States

Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United Staves Courthouse,

500 Pearl Street, in the City of New York, on the 7™

day of February two thousand eight.

Before: Hon. Sonia Sotomayor,

Hon. Debra Ann Livingston,

Circuit Judges.

Hon. Gregory W. Carman,

Judge, U.S. Court of International Trade.

Rubin Sterngass,

Plaintiff-Appellant,

Vv.

Palisades Interstate Park Commission,

the State of New York, the Town Supervisor

of the Town of Orangetown,

Defendants-Appellees.

6a

Appellant Rubin Sterngass having filed a

petition for pane] rehearing and the panel that

determined the appeal having considered the request,

ITIS HEREBY ORDERED that the petitionisdenied. =

For the Court:

Catherine O’Hagan Wolfe, Clerk

By: s/ Judy Pinamont

Motion Staff Attorney

Filed February 07, 2008

7a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

RUBIN STERNGASS,

Plaintiff,

-against- ,

PALISADES INTERSTATE PARK COMMISSION,

the STATE OF NEW YORK, and the TOWN

SUPERVISOR of the TOWN OF ORANGETOWN,

: Defendants.

05 Civ. 8784 (CM)

MEMORANDUM ORDER DISMISSING

COMPLAINT SUA SPONTE

McMahon, J::

This matter was transferred to this Court by the

Hon. Stephen C. Robinson, U.S.D.J.

The complaint is virtually unintelligible. It

appears, however, that plaintiff once owned land in

Rockland County (Town f Orangetown) that was

taken by the State of New York and/or the Palisades

Interstate Park Commission. The present complaint

seeks to void that taking as being beyond the State’s

power and a violation of the Fifth and Fourteenth

Amendments.

Putting aside any jurisdictional defects (for

example, New York State’s sovereign immunity, or the

LP Se Sage ES sia be sp Age

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8a

fact that the State of New York has an Eminent

Domain law that has been held to satisfy Due Process

considerations in connection with takings of property),

the complaint is dismissible sua sponte as time barred,

because the fact of the pleading demonstrates that

plaintiffs property was appropriated on July 13, 1964

(see Affidavit of Title, attached to complaint as an

exhibit and sworn to by plaintiff himself, which recites

that as the date of appropriation). The affidavit led tot

he entry of a judgment on consent in favor of the

plaintiff in the New York Court of Claims (where the

State of New York can be sued for money damages).

We know this from another exhibit to the complaint, a

letter from the Attorney General of the State of New

York to the Court of Claims asking that judgment

enter against the State and the Commission. The

letter is dated May 15, 1968. So Plaintiff had to have

known about the purportedly illegal taking at some

point prior to May 15, 1968. Any federal claim in

connection therewith that is brought in 2005 is of

necessity time barred.

The complaint is dismissed sua sponte, with

prejudice and without costs.

Copies mailed to counsel 12/19/05

Dated: December 19, 2005

s/

U.S.D.J.

BY FIRST CLASS MAIL TO THE ATTORNEY

GENERAL, STATE OF NEW YORK, BY FIRST

CLASS MAIL TO PLAINTIFF.

9a

____- UNITED STATES DISTRICT COURT

_ SOUTHERN DISTRICT OF NEW YORK

; RUBIN STERNGASS,

= Plaintiff, Pro Se,

-against-

Palisades Interstate Park Commission,

The State of New York, The Town Supervisor

of the Town of Orangetown,

Defendants. &

05 Civ. 8784

Filed Oct 17, 2005

VERIFIED COMPLAINT

“Jury Trial Demanded”

October 6, 2005

United States Courthouse

300 Quarropas Street

White Plains, NY 10601-4150

Attention: Mr. J. Michael McMahon

Clerk of Court

av PSN mS rt a Pes Ape ECS A eS bs ae Laan a ie OL PSE th gS ge ee aS A

naiae ES a ee MT aay ta eG Eee ORES MERE bac tee Ser SL yt

Pi Saha Sth ON aS eS et TiN Sin Sel emia” Mier eau ease eeu ee Baron

Se Ee kee RMI NEE Ee MG BPS es

SARTO Coe Ne ES :

Dear Mr. McMahon:

Iam RUBIN STERNGASS, the Pro Se Plaintiff

in this Action, residing in the County of Rockland,

State of New York; and I state the following:

Ais in eA aS id, set ie 2 a le Nene es OS Col etna ae des en ie ee ie eee lS es ER ee ee le lL at ales Sh Bee a al ie oy rk 2

EES iy - 4. : r i ae te Pe Rey, SE PS

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10a

APPEAL, CLOSED

U.S. District Court

Southern District of New York (White Plains)

CIVIL DOCKET FOR CASE #: 7:05-cv-08784-CM

Internal Use Only

Sterngass v. Palisades Interstate Park Commission

et al

Assigned to: Judge Colleen McMahon

Cause: 28:1331 (a) Fed. Question: Real Property

Date Filed: 10/17/2005

Jury Demand: None

Nature of Suit: 290 Real Property:

Other

Jurisdiction: Federal Question

Plaintifi

Rubin Sterngass represented by: Rubin Sterngass

129 Ridge Road

Valley Cottage,

NY 10989

(845) 268-0180

Vv. PRO SE

Defendant

Palisades Interstate Fark

Commission

Defendant

The State of New York

lla

The Town Supervisor of the Town of Orangetown

Date Filed: 1/17/2005 - #1

COMPLAINT _ against Palisades

Interstate Park Commission, The State

of New York, The Town Supervisor of the

Town of Orangetown. (Filing Fee

$250.00. Receipt Number 554824)

Document filed by Rubin Sterngass.(tb)

(Entered: 10/17/2005)

: Date Filed: 10/17/2005

: SUMMONS ISSUED as to Palisades

a Interstate Park Commission, The State

of New York, The Town Supervisor of the

Town of Orangetown. (tb) (Entered:

10/17/2005)

MREA*O.42*AC.

PROPERTY OF

‘RUBIN STERNGASS

TOWN OF € ?4NGETOVIN

ROCK LAND CO., NEW YORE

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R-9421 LIBER 650 Page 208

THIS INDENTURE,

Made the 18" day of June, nineteen hundred

and fifty-seven between ELEANOR ISEMAN, residing

at 35 Lexington Avenue, in the Borough of Westwood,

County of Bergen and the State of New Jersey, party

of the first part, and RUBIN STERNGASS, residing at

Ridge Road, (no number) Valley Cottage, Rockland

County, New York, party of the second part.

‘WITNESSTH, that the party of the first part, in

consideration of Ten ($10.00) -------- Dollars, lawful

money of the United States, and other good and

valuable consideration do so hereby grant and release

unto the party of the sécond part, his heirs, and

all that certain lot, piece or parcel of land and

premises, situate, lying and being in Sparkill,

Rockland County, New York, bound and described as

follows:

BEGINNING at a stake at the Northeasterly

side of Route No. 9W and from thence running South

85 degrees 27 minutes East 166.30 feet to a point;

thence running South 88 degrees 43 minutes East

14.10 feet to a spike in the Westerly side of Rockland

Road South 18 degrees 14 minutes East 71.95 feet to

a spike; thence still along the Westerly side of

Rock!and road South 18 degrees 12 minutes West

68.90 feet to a spike; thence running South 79 degrees

28 minutes West 56.10 feet to a monument; on the

Northeasterly side of Route 9W North 38 degrees 54

minutes 30 seconds West 205.70 feet to the point or

place of beginning.

14a

Article 7

NON-CONFORMING USE AND

NON-CONFORMING BULK REGULATIONS

2.1. Applicability.

This Article applies only to buildings and non-

building uses in existence on the effective date of this

ordinance. Except as otherwise expressly provided in

Sec. 7.3, the lawful use of any premises existing on the

effective date of this ordinance may be continued

although neither such use nor the bulk of the same

conforms to the regulations.

Town Board Notice for regular meeting to adopt

amendment to zoning ordinance, for Town of

Orangetown, Rockland County, State of N.Y. Signed

and dated 2/25/1957.

1Sa

RUBIN STERNGASS

129 Ridge Road

Valley Cottage, New York 10989

HOME: (845) 268-2558; CELL: (845) 721-0421

FAX: (845) 268-2176

December 1, 2005

Town of Orangetown

26 Orangeburg Road

Orangeburg, NY 10962

Attention: Ms. Charlotte E. Madigan

Town Clerk ©

Reference: Sterngass v. PIP, et al.

United States District Court

/ Docket No. 05 CIV 8784

Dear Ms. Madigan:

The attached Summons and Complaint is being

served upon your office for distribution to the offices of

the Town Supervisor and the Town Attorney; and I

hereby demand compliance with the procedure, as

indicated within that Summons.

Your cooperation will be greatly appreciated.

Thank you.

Respectfully yours,

s/

Rubin Sterngass

RS:bsr

Enclosures

ene ac

l6a

RUBIN STERNGASS

129 Ridge Road

Valley Cottage, New York 10989

HOME: (845) 268-2558; CELL: (845) 721-0421

FAX: (845) 268-2176

December 1, 2005

Affiliated Planning Services, Inc.

Real Estate Appraisals

and Planning Services

Three Old Brick Road

New City, New York 10956

Attention: Mr. David G. Adams

Reference: Appraisal for Property in Sparkill, NY

Dear Mr. Adams: —

Kindly advise of your cost and availability to

perform an appraisal of the site situation in Sparkill,

Town of Orangetown. (A copy of a map and deed of the

site is enclosed for your reference.) The appraisal I

require is for the “highest and best use” — specifically,

for a Pylon-type sign.

The site contained a highway billboard from

1930 to 1964. In 1964, the State of New York removed

that billboard and appropriated the land as “vacant”.

Your prompt reply will be greatly appreciated.

Thank you.

Very truly yours,

s/

Rubin Sterngass |

RS:bsr :

Enclosures (Map and Deed)

17a

United States District Court:

Southern District of New York

Office of the Clerk

U.S. Courthouse

300 Quarropas Street, White Plains, N.Y. 10601

x

Sterngass

V.

Palisades

x

NOTICE OF REASSIGNMENT

05 civ. 8784 (cm)

Pursuant to the memorandum of the Case

Processing Assistant the above entitled action is

reassigned to the calendar of

JUDGE_s/ Colleen M. Mahon

All future documents submitted in this action

shall bear the assigned judge’s initials after the case

number. If this case is assigned to the Electronic Case

Filing (ECF) system, documents must be submitted

electronically, and shall also bear the notation “ECF

CASE” under the docket.

The attorney(s) for the plaintiff(s) are requested

to serve a copy of the Notice of Reassignment on all

defendants.

Fone dae SAE aE NS CPT Be FREE De OR RIE Me

EP AREY COPANO ay PUES ME aie A Ie

aes Seg

18a

Dated: 12/14/05 J. Michael McMahon, CLERK

by: _s/ Fiona Kryan

Deputy Clerk

REDESIGNATED TO

MAGISTRATE JUDGE

cc: Attorneys of Record

19a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

RUBIN STERNGASS,

Plaintiff, Pro Se,

-against-

Palisades Interstate Park Commission, the

State of New York, and the Town Supervisor

of the Town of Orangetown,

Defendants.

NOTICF OF APPEAL

Locket No.: 05 CIV 8784 (CM)

Notice is hereby given that RUBIN

STERNGASS hereby appeals to the United States

Court of Appeals for the Second Circuit from the

Judgment, as issued by Decision dated December 19,

2005 in the above-captioned matter, Sua Sponte

dismissed Mr. Sterngass’ original Complaint and was

entered in this action on the 20“ day of December,

2005.

Signed:

Rubin Sterngass

Plaintiff, Pro Se

129 Ridge Road

Valley Collage, NY 10989

Home: (845) 268-2558

Cell: (845) 721-0421

Dated: January 10, 2006

20a

THURGOOD MARSHALL U.S. COURT HOUSE

40 FOLEY SQUARE

NEW YORK, NY 10007

Catherine O’Hagan

CLERK OF COURT

LOCAL RULE 34 QUESTIONNAIRE:

ORAL ARGUMENTS IN PRO SE CASES

Case Name: Sterngass

Vv.

Palisades Interstate Park Commission

Docket No: 06-1073-cv Date: 9/19/07

we ce FF FOF OED OBER SEB EO RA RO DOD AARRES SADA DDD ED DDD OD

NOTICE: THIS FORM MUST BE FILLED OUT

AND FILED WITH THE CLERK OF COURT

WITHIN 14 DAYS OF THE DATE ABOVE

READ THIS WHOLE FORM

Now that the filing of briefs in this appeal is

done, this appeal is ready to go to three judges for

decision. The appeal can be decided on the briefs that

have already been filed, without live argument in the

courtroom (called “oral argument”), or it can be decided

after oral argument. At oral argument, the judges are

not required to coisider any argument unless it is

made in the briefs, and they will not accept additional

papers or evidence.

2la

If all parties agree, this case can go directly to

decision on the basis of the written briefs. Nothing

more is then required from the parties; but note that

judges can always request oral argument at any time.

If oral argument is desired, you must say so a

below on this form. Please read carefully all three 4

statement set out below, check the one appropriate’ -

line, and sign: 4

_____I would like to have this case decided on the a

basis of the written briefs, without oral _

argument, if all parties also agree not to argue a

orally. :

I do not want to argue orally even if other

parties do.

x I want to argue orally even if no one else does.

Signature: _ Date: 4

Print Name: s/ RUBIN STERNGASS

Party: _ Plaintiff, Pro Se

if you seek oral argument, you must appear on the 4

argument date set by the Court.

Failure to return this completed form within 14 days

of this date will mean that you do not seek oral

argument. Any other request for oral argument in

briefs, letters or motions will be disregarded.