SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - SECOND DEPARTMENT
_______________________________________________X
Sam Sloan,
AFFIRMATION IN
OPPOSITION TO
ORDER TO SHOW
CAUSE
Petitioner-Appellant,
Index No.
2004-7739
against-
Appellate
Case: 2005-3754
Bea Marinello, Tim Hanke, Stephen Shutt, Elizabeth
Shaughnessy, Randy Bauer, Bill Goichberg, Kenneth
M. Chadwell and United States Chess Federation,
Respondents.
________________________________________________X
Michael J. Matsler, an attorney duly admitted to practice in
the courts of the State of New York, affirms under penalty of perjury:
1. I am a member of Rider, Weiner & Frankel, P.C.,
attorneys for the respondents. I am personally familiar with the facts
to which I attest in this affirmation. The Court is also respectfully
referred to the annexed affidavits of Grant Perks, CPA; Beatriz
Marinello; Timothy Hanke; Randall Bauer; and Elizabeth Shaughnessy.
2. The respondents oppose appellant Sloan's order to show
cause dated April 21, 2004 as set forth below.
3. Appellant Sloan has file an appeal from the decision
and order of the Hon. Lawrence I. Horowitz dated January 10, 2005
denying his request for a temporary restraining order, and granting
respondents' motion to dismiss his petition. Mr. Sloan filed his
appeal on or about April 18, 2005. The record on appeal has not been
filed and the appeal has not been perfected. (A copy of Judge
Horowitz's Decision and Order with Notice of Entry is annexed hereto
as Ex. "A"). The only papers before the Appellate Court, therefore,
are those attached to Mr. Sloan's affidavit of April 20, 2005, and the
annexed exhibits, upon information and belief; as well as the exhibits
appended hereto.
4_ Appellant Sloan has not included with his affidavit
the respondentsf notice of motion to dismiss and accompanying
affidavits filed in the court below. For the convenience of the Court,
as copy is annexed hereto under Ex. "B". Also annexed as exhibits are
inter alia the August 2003 president's report and minutes of the USCF
2003 Annual Delegate's Meeting at which the sound business reasons for
the move to Crossville, Tennessee were explained, discussed, and
approved; and a copy of the USCF's By-Laws.
5. As set forth in respondents' opposing affidavits, and
not disputed by appellant Sloan, the United States of America Chess
Federation ("USCF") is a not-for-profit corporation organized under
the laws of the State of Illinois, and is authorized to conduct
business as a foreign not-for profit corporation in the State of New
York. (A copy of USCF's certificate of incorporation in Illinois is
annexed as exhibit "b" to respondents' affidavits from the court
below). USCF's only office in New York State is in New Windsor, Orange
County, New York. In February 2005 USCF completed the relocation of
its principal offices to Crossville, Tennessee, leaving only its
ChessLife Magazine offices in New Windsor. (A copy of USCF's
certificate as a foreign corporation in Tennessee is annexed as Ex.
"C" hereto).
6. Appellant Sloan's allegations of wrongdoing are
baseless. He has failed to sustain his heavy burden of proving
entitlement to injunctive relief. He also never served properly any of
the respondents in the court below.
7. The only individual respondent who resided in New York
at the time Mr. Sloan filed his papers in the court below was former
Executive Director Bill Goichberg. The remaining respondents, other
than Beatriz Marinello, do not and have not lived or worked in New
York and are all residents of other states. Only respondent Beatriz
Marinello, currently president of the USCF Executive Board, has spent
any significant time in New York since January 2, 2005, when she
became the volunteer Chief Operating Officer. Ms. Marinello supervised
the move to Tennessee. Respondent Tim Hanke is an Executive Board
member and works in Massachusetts. Respondent Stephen Shutt is an
Executive Board member who lives and works in Pennsylvania. Elizabeth
Shaughnessy was elected to a one-year term on the Executive Board in
August 2004, as Mr. Sloan alleges, and she resides and works in
California. Respondent Randy Bauer, like Ms. Shaughnessy, was elected
in August 2004 to the Executive Board to fill a vacancy, and lives and
works in Iowa. Respondent Kenneth M. Chadwell is an attorney for the
City of Crossville, Tennessee and resides and works in Tennessee.
8. Respondents' motion to dismissed was based inter alia
on petitioner's failure to effectuate service of process of the order
to show cause and the papers on which it was based by personal service
on or before November 22, 2004 as ordered by Judge Horowitz; by reason
of the lack of personal jurisdiction over the respondents other than
USCF and Bill Goichberg; and due to the inapplicability of ~~510 and
511 of the Not-for-Profit Corporation Law upon which Mr. Sloan based
the bulk of his claims.
9. Mr. Sloan, in his reply affidavit dated December 9,
2004, admitted that the only respondent he had personally served was
the USCF. (Ex. "G" hereto). He stated that "it would have been
impossible" to serve the individuals personally. He admits in his
current affidavit before the Appellate Court that he did not serve,
whether personally or otherwise, a copy of his affidavit and petition
together with the order to show cause signed by Judge Horowitz on
November 16, 2004. He admitted in open court, and in his reply
affidavit, that Beatriz Marinello and Elizabeth Shaughnessy were in
Spain between mid-October and mid-November 2004, and he also stated
that Bill Goichberg was at a tournament in Ohio. It is undisputed that
personal service was not made in compliance with Judge Horowitzfs
order. Mr. Sloanfs claim that he posted all the papers on his website
, www.samsloan.com is insufficient to confer personal jurisdiction
over the respondents.
10. As set forth in respondents accompanying brief,
injunctive relief is an extraordinary\ remedy and cannot be granted
unless the applicant demonstrates compelling facts establishing
irreparable harm if the relief is not granted and a clear entitlement
to the relief. Although the appellate court in extraordinary cases can
assume original jurisdiction to entertain a request for a TRO
directly, the appellant has the burden of proving the relief is
warranted by a "reasonable probability". See, e.g., Michael Schwartz
v. Nelson A. Rockefeller, 38 A.D.2d 995 (3d Dept. 1972), appeal
dismissed 30 N.Y.2d 484; 664 (1972).
11. Mr. Sloan has not presented in admissible evidentiary
form the factual basis necessary to support his conclusiory
allegations of conspiracy or wrongdoing. Even if any of his factual
assertions were, arguendo, correct, his grievance is primarily an
internal matter which should be a