New York State Court of Claims

New York State Court of Claims

VAN ALLEN v. STATE OF NEW YORK, #2004-032-054, Claim No. 108344, Motion No. M-67645


Claim attempting to force the Governor to appoint a fourth member to the New York State Board of Elections is dismissed on the grounds that claimant lacks standing to sue and that the claim fails to state a cause of action on which this Court can grant relief.

Case Information

Claimant short name:
Footnote (claimant name) :

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:
William H. 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 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant alleges, "on information and belief as well as my personal direct observations," Governor George Pataki has refused for more than three months to fill an opening on the New York State Board of Elections (the Board). This, he contends is in violation of Article II § 8 of the New York State Constitution, which requires that such Board shall have "equal representation of the two political parties" that received the highest number of votes in the last general election. Claimant contends that he and at least 2.3 million "similarly situated registered voters not enrolled in either major political party" are being harmed daily. This harm, he contends, arises from the fact that petitions, related litigation, and general election administration policy are being determined by an "unconstitutionally unbalance[d] and partisan" Board, which has a 2-1 Republican majority.

In lieu of answering, counsel for defendant has moved for an order dismissing the claim on the grounds that claimant lacks standing to sue and that he fails to state a cause of action over which this Court has jurisdiction. Both grounds require dismissal of the claim.

"For standing to sue, petitioners must show that they have suffered an injury in fact, distinct from that of the general public * * * [and] that the injury claimed falls within the zone of interests to be protected by the [administrative action] challenged" (Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 NY2d 579, 587 [1998][citations omitted]; quoted in New York State Ass'n of Criminal Defense Lawyers v Kaye, 269 AD2d 14, 16 [3d Dept 2000]). Claimant does not attempt to assert that he, as an individual, is suffering any harm that is unique from that of the many other registered voters who are not enrolled in any political party, yet he failed to take the steps necessary to try to commence this action as a class action (CPLR Art. 9). In any event, he is not successful in explaining how, if there is harm from having a three member Board, it falls more heavily and differently on that group than on any other classification of registered voters.

As to the nature of the cause of action, although claimant contends that he is being injured in a way that gives rise to money damages ($1.00 per day for each of the 2.3 million "similarly situated" persons), what claimant is actually seeking is to compel a public official to carry out one of the duties of his office. Thus, the claim is in the nature of a mandamus to compel and such direction is available only by way of an Article 78 proceeding, commenced in Supreme Court (Gerdts v Cuomo, 202 AD2d 943 [3d Dept 1994] lv denied 83 NY2d 760). In Gerdts, the Third Department held that even assuming the petitioner, a private individual, had standing to commence such a proceeding, he had no clear legal right to compel the Governor to fill vacant positions on the Adirondack Park Agency.

Defendant's motion is granted, and Claim No. 108344 is dismissed.

June 22, 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 Exhibit

2. Affidavit in Opposition of H. William Van Allen

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

Filed papers: Claim; Answer