RENSSELAER CITY COURT

COUNTY OF RENSSELAER
NORTH GREENBUSH DEMOCRATIC COMMITTEE
ANSWER
MOTION TO DISMISS
AFFIRMATIVE DEFENSES
INDEX No. SC-9043
Plaintiff,
-against-

JEFFREY SPAIN.
Defendant,

The Defendant, Jeffrey Spain by and through his attorney, A. Joshua Ehrlich, Esq., as

and for a Motion to Dismiss, Answer and Affmnative Defenses herein respectfully alleges:

I.

AS AND FOR A FIRST MOTION TO DISMISS

THE COURT LACKS SUBJECT MA TIER JURISDICTION

1. The Plaintiff fails to state a cause of action upon which relief can be granted.

2. The Plaintiff North Greenbush Democratic Committee, in its fund raising and

expenditure component, is a "constituted committee" as defined under §14-100.3 and

§ 14-100.4 of the Election Law. The committee's receipts and expenditures are

generally governed under Article 14 of the Election Law of New York State. Since this

is an Election Law action, it must be brought pursuant to Article 16, specifically § 16-

100, § 16-102 and § 16-114, of the Election Law or Article 78 of the CPLR. In either

event, this Court lacks jurisdiction over this action.

3. Therefore this action should be dismissed.

II.
 AS AND FOR A SECOND MOTION TO DISMISS

4. The Defendant repeats and realleges each and every allegation contained in

paragraphs numbered I through33 inclusive, as if fully set forth herein.

5. There are no parties to this action residing in the City of Rensselaer. In fact all reside in

the Town of North Greenbush.

6. Therefore, venue is improper and the case should be dismissed.

ill.

AS AND FOR A TIllRD MOTION TO DISMISS

7. Defendant repeats and realleges each and every allegation contained in paragraphs

numbered 1 through 6 inclusive, as if fully set forth herein.

8. This is a political vendetta between factions of the North Greenbush Democratic

Committe. The Defendant was the Chair from October Of2007 to October of2009.

This action was brought to invole and use the Court in a political dispute s well as an

attempt to punish the defendant for ousting the current leadership two years ago.

9. It has long been held that courts should not intervene or interfere with the internal

workings ofa party (Bloom v. Notaro, 67 N.Y.2d 1048, 1986; Bachmann v. Coyne 99

A.D. 2d 742, 2nd Dept., Iv. den. 61 N.Y.2d 607, 1984; Essenberg v. Kresky, supra).

This is a case for such abstention by the Court.

IV.

AS AND FOR A FOURTH MOTION TO DISMISS

10.The Defendant repeats and realleges each and every allegation contained in

paragraphs numbered 1 through 9 inclusive, as iffully set forth herein.

11. This case is couched with an underlying equitable claims "breech 01 fiduciary duty,

conversion, negigence." These are equitable notions that essentially demand

accounting. Under the relevant case law, Hellamnv. Ploss, 46A.D 658,(2nd Dept.

1974); Menkis v. Whitestone Savings & LoanAssociation, 74 Misc. 2d 329, (Nassau

County District Court 1974); Kaminsky v. Kahn,20 NY2d 753 (1967); Raabv.Bowrey

Savings Bank, 77 Misc.2d 1054 (NYC Civ. CT.1974); There is no grounds for small

claims court jurisdiction in an equitable action that essentially demands an

accounting.

12 .. Therefore the case must be dismissed.

v.
AS AND FOR A FIFfH MOTION TO DISMISS

13. The Defendant repeats and realleges each and every allegation contained in

paragraphs numbered 1 through 12 inclusive, as if fully set forth herein.

14.In this instance where the North Greenbush Democratic Committee account as turned

over to the Treasurer in 2008, it watf; discovered that several checks were written and (fL-
cashed by the committee principals. A demand ~for documentation was ignored. ~.

15. Essentially, the plaintiffs come into this Court with unclean hands, accusing the

Defendant of doing just ~t they did be~ they turned over control of the acco~
16. Therefore the case should be dismissed.

VI

AS AND FOR A SIXm MOTION TO DISMISS

17. The Defendant repeats and realleges each and every allegation contained in

paragraphs numbered 1 through 6 inclusive, as iffully set forth herein.

18. The responrnsible party for control of a political or constituted committee under the

election law is the treasurer (see Article 14, §14-102, §14-104, 4-106, et.seq . New

York State Election Law).

19. In this case the Treasurer has not been named nor is he a party or witness to anything

in this action. Without his testimony, evidence of the transactions cannot even be

introduced. He is a necessary party not present.

20.Therefore, the action must be dismissed.

VII.

AS AND FOR A SEVENTH MOTION TO DISMISS

21. The Defendant repeats and realleges each and every allegation contained III

paragraphs numbered 1 through 20 inclusive, as if fully set forth herein.

22.If the funds in question were improperly disbursed, which the defendant maintains

were legal expenditures of the Committee under law, why have the recipients not

been joined in this action to recover the funds?

23 .Upon information and belief, no demand has been made on the recipients to recover

the funds by the current treasurer.

24.The recipients here would seem to be necessary parties as well and therefore should

have been joined in this action.

25. Therefore the action must be dismissed.

vm.
 AS AND FOR A EIGHTH MOTION TO DISMISS

AND AN AFIIRMATIVE DEFENSE

26. The Defendant repeats and realleges each and every allegation contained in

paragraphs numbered 1 through 25 inclusive, as if fully set forth herein.

27. Expenditures by constiututed committees are goverened under the aforementioned

Election Law of the State of New York.

28.Specifically § 14-130 of the law states: "Contributions received by a political

committee may be expended for any lawful purpose. Such funds shall not be

converted by any person to a personal use which is unrelated to a campaign or the

holding of a public office or party position." Election Law, McKinneys 2009.

29. In the instant case, Mr Spain paid Committee bills and donated money to charity in

accordance with the law and the opinions of the State Board of Elections.

30.Not one cent of the money went for his personal use nor did he profit in any way by

these transactions.

31.At all times his actions were legal and proper.

32.Therefore the action should be dismissed.

Dated: September 8 , 2009

Yours, etc.

Attorney for the Defendant

71 Grove Avenue
Albany, NY 12208
 Mailing address
P.D. Box 7273
Capitol Station
Albany, NY 12224
518-334-1502

VERIFICATION
STATE OF NEW YORK)
ss.:
COUNTY OF RENSSELAER)

Jeffrey Spain, being duly sworn, deposes and says: that he is the Defendant in the within
proceeding; that he has read the foregoing Amswer, Motion to Dismiss and Affirmative
Defenses and knows the contents thereof; that the same is true to his own knowledge, except as
to matters therein stated on information and belief, and that as to those matters, he believes it to
be true.

~«~
Sworn before me this 8th day of JltIll!My, 2009

A. Joshua Ehrlich
NOTARY PUBLIC STATE OF NEW YORK
02EH5045357
Qualified in Albany County
My Commission Expires July 8, 2011
RENSSELAER CITY COURT
COUNTY OF RENSSELAER
NORTH GREENBUSH DEMOCRATIC COMMITTEE
SUPPLEMENTAL ANSWER
MOTION TO DISMISS
AFFIRMATIVE DEFENSES
INDEX No. SC-9043
Plaintiff,
-against-

JEFFREY SP AlN.
Defendant,

The Defendant, Jeffrey Spain by and through his attorney, A. Joshua Ehrlich, Esq., as

and for a Supplemental Motion to Dismiss, Answer and Affirmative Defenses herein respectfully

alleges:

IX .

AS AND FOR A NINTH MOTION TO DISMISS

THE TOWN COMMITTEE LACKS STANDIDNG TO INSTITUTE AN ACTION IN

SMALL CLAIMS

1. The Defendant repeats and realleges each and every allegation contained in

paragraphs contained in the original Answer, Motions to Dismiss and Mfirmative

Defenses, as if fully set forth herein.

2. The Plaintiff North Greenbush Democratic Committee, is an association governed

under Article 14 of the Election Law and the General Associations Law (Book 18A,

McKinney's, 2009, see e.g. Carter v. O 'Hare, 69 Misc.2d 917, 1972).

 3. The Unifonn City Court Act gives this Court Jurisdiction for Small Claims under

Article 18 of Judiciary Law (Book 29A, Part 3 McKinney's 2009).

4. Section 1809, subdivision 1 specifically states: "1. No Corporation, except a municipal

corporation, public benefit corporation, school district or school district public library

wholly or partially within the municipal corporate limit, no partnership or association

and no assignee of any small claim shall institute an action or proceeding under this

article, nor shall this article apply to any claim or cause of action brought by an insurer

in its own name or in the name of its insured whether before or after payment to the

insured on the policy." (Book 29A, Part 3 McKinney's 2009, emphasis added)

5. Furthennore, the CPLR and the Unconsolidated Laws indicate that an action of this

nature must be brought in Supreme Court, with all of the necessary index, filing and

service fees and requirements met. In any event, the plaintiffs lack standing to sue in

this Court.

6. Therefore this action must be dismissed.

Dated: September 15 , 2009

Yours, etc.

a 'hua hr lCh, Esq.

rney for the Defendant
71 Grove Avenue
Albany, NY 12208

Mailing address
p.o. Box 7273
--------------------:A8 Capitol Station
Albany, NY 12224
518-334-1502