New York State Court of Claims

New York State Court of Claims

VAN ALLEN v. THE STATE OF NEW YORK, #2004-032-051, Claim No. 108242, Motion No. M-67650


Claim challenging in some fashion the State Board of Elections' listing of registered voters is dismissed because the claim fails to set forth a cause of action. Although the existence of a related Federal action would not require dismissal of the action, if claimant is attempting to make a similar claim in this Court, the Court would lack jurisdiction because the alleged wrong would be violation of claimant's rights under the United States Constitution.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
H. William Van Allen, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Resnick, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The substantive allegations in this claim, which claimant states arose on July 29, 2003, are as follows:
This claim arises from the acts or omissions of the defendant New York State Board of Election . . . The staff of the New York State Board of Elections has without authority or definition of law, created and published statistics of a new class of voters the "unenrolled". Upon information and belief, this was a deliberate, cynical, malicious, and partisan administrative act meant to confuse and harm the collective understanding and associative right of similarly situated registered voters not enrolled in any party.
In the ad damnum clause, claimant states that he was damaged along with an estimated 2.3 million "similarly situated registered voters not enrolled in any party," damages which he fixes as $1 per day per person.[1] In lieu of answering, counsel for defendant has moved for an order dismissing the claim on the grounds that the claim fails to state a cause of action over which this Court has jurisdiction and because there is another action pending in Federal court.

Defense counsel explains what the claim does not: that this action apparently arises from the Board of Elections' (Board's) publication of voter enrollment lists, pursuant to Election Law §5-604. Claimant's objections to the publication of these lists is currently being litigated in the United States District Court for the Eastern District of New York (Green Party of New York State, et al. v New York State Board of Elections, 02-CV-6465, Gleeson, J.; see Exhibit B ["Memorandum and Order Modifying Preliminary Injunction"]). The Federal action is being maintained by a number of smaller political parties – Green Party, Liberal Party, Right to Life Party, Libertarian Party, and Marijuana Reform Party – and based on allegations that the manner in which New York State maintains its enrollment lists violated their First Amendment right of association and unreasonably discriminates against them. July 29, 2003, the date that claimant alleges as the date of accrual of this claim, is one of the dates on which the Board of Elections published its 2003 voter enrollment list. It appears, therefore, that there is a related action that is currently pending in a Federal court.

The fact that a claim based on the same transactions and occurrences has been brought in Federal court does not require dismissal of a Court of Claims action. Typically, some arrangement will be found to allow the claimant to proceed in one before litigating the other (see e.g. Muller v State of New York, 179 Misc 2d 980 [Ct Cl 1999]; Komlosi v State of New York, UID #2000-001-018, Claim No. 73476, Motion No. M-60761, June 22, 2000, Read, P.J.). If the Federal action is completed first, its outcome may govern the results of the Court of Claims action by way of res judicata and/or collateral estoppel (see e.g. Amalfi v State of New York, UID #2001-005-517, Claim No. 91180, Motion No. M-60731, May 29, 2001, Corbett, J.). The existence of such an action does not require dismissal of a claim in this Court.

Defendant also bases the motion to dismiss on the asserted deficiency of the claim itself.
CPLR 3013 requires that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. The principal purpose of a pleading, particularly a claim or complaint, is to provide notice, to advise the opposing party of the claim (Foley v D'Agostino, 21 AD2d 60 [1st Dept 1964]). "[T]he primary function of pleadings," it is said is "adequately advising the adverse party of the pleader's claim or defense" (id., citing to David D. Siegel, A Biannual Survey of New York Practice, 38 St. John's L. Rev., pp. 190, 199-200.) "Where a pleading is attacked for alleged inadequacy in its statements, our inquiry should be limited to ‘whether it states in some recognizable form any cause of action known to our law'" (id., citing to Dulberg v Mock, 1 NY2d 54, 56 [1956]) or, as stated elsewhere, whether the factual allegations contained within the pleading "indicate the existence of a cause of action" (Guggenheimer v Ginzburg, 43 NY2d 268 [1977]). Conclusory allegations alone are insufficient to meet the pleading requirements of either CPLR 3013 (Matter of Johnson v Goord, 290 AD2d 844 [3d Dept 2002]) or the requirements of Court of Claims Act § 11 (b) (Heisler v State of New York, 78 AD2d 767, 767-768 [4th Dept 1980]; Patterson v State of New York, 54 AD2d 147 [4th Dept 1976]["claimant has alleged injury due to defendant's negligence [but h]e has not alleged in what manner he was injured nor how the State was negligent"]). As the Court of Appeals recently noted, the guiding principle of section 11(b) of the Act, which sets forth the required content of claims and notices of intention, is to enable the State to promptly investigate claims and to ascertain the possibility that it may be liable under the circumstances (Lepkowski v State of New York, 1 NY3d 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767 [4th Dept 1980, supra]).
The instant claim contains nothing other than conclusory, and quite vague, allegations. It is impossible to tell from the substantive content of the claim what wrongful acts on the part of State officials or employees form the basis of the claim or how claimant, and perhaps others, were injured. This defect is so marked that the claim is jurisdictionally defective and, therefore, it cannot be amended to cure the defect. A jurisdictional defect may not be remedied by amendment of the original claim (Grande v State of New York, 160 Misc 2d 383 [Ct Cl 1994).
Furthermore, if in fact claimant is seeking to raise the same argument that is being raised in the Federal action, this Court would not have jurisdiction to hear the claim:
It is well established that no cause of action lies against the State of New York for alleged violations of an individual's rights secured by the United States Constitution (Matter of Thomas v New York Temporary State Commn. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656). Further, because the State is not a "person" amenable to suit under 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58) "the law is unequivocal that this section does not give rise to a cognizable claim against the State or a department thereof" (Davis v State of New York, 124 AD2d 420, 423).
(Ferrer v State of New York, 172 Misc 2d 1, 5 [Ct Cl 1996].) Consequently, in the event that claimant is seeking to challenge the State's action publishing lists of enrolled voters on the same ground that is being asserted in the Federal action, this Court would not have jurisdiction to hear the claim.

Defendant's motion is granted, and Claim No. 108242 is dismissed.

June 21, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Kathleen M. Resnick, Esq., AAG, with annexed Exhibits

2. Affidavit in Opposition of H. William Van Allen, pro se

3. Reply Affirmation of Kathleen M. Resnick, Esq. AAG

Filed papers: Claim

[1] Although he uses the language associated with class actions, claimant has not taken the steps necessary to institute a class action (see CPLR, Article 9).