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UPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - SECOND DEPARTMENT
_______________________________________________X
Sam Sloan,
RESPONDENTS'
MEMORANDUM OF
LAW
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
Preliminary Statement
The respondents United States of America Chess Federation
("USCF") et al submit this brief in opposition to petitioner-appellant
Sloan's order to show cause requesting a preliminary injunction.
The United States of America Chess Federation is a
not-for-profit corporation duly organized and licensed under the laws
of the State of Illinois. USCF's certification in Illinois is
"conclusive evidence .... that the corporation has been incorporated
under this Act." 805 ILSC 150 102.15.
USCF's principal office has been in Crossville, Tennessee
since February 2005. It maintains a skeletal staff for the publication
of Chess Life Magazine in New Windsor, New York. It is duly authorized
as a foreign corporation to conduct business in New York and in
Tennessee.
Appellant Sloan, a USCF member, claimed in the court below
that USCF has violated New York State's Not-For-Profit Law by selling
its real property in New Windsor in September 2004 without the
permission of the New York State courts or Attorney General, and by
deciding to relocate its principal office to Crossville, Tennessee
without having held any "public hearing". He also alleges that USCF
Executive Board president Beatriz Marinello has conspired with other
Executive Board members to destroy the USCF. He asks the Court to
prohibit the Board president, and other members and officers, from
writing any checks or indeed, performing any of their duties at all,
and to direct USCF to not relocate outside of New York. He also asks
the Court to remove Beatriz Marinello, Elizabeth Shaughnessy, Tim
Hanke, Randy Bauer, and Stephen Schutt from the USCF Executive Board
and bar them from running for office again, among other things.
As set forth in the opposing affidavits, none of the
respondents, including USCF and its former Executive Director Bill
Goichberg, had been served with a copy of Appellant's affidavit,
petition and memorandum in compliance with the Court's order with
respect to personal service. Judge Horowitz had directed Mr. Sloan to
make personal service of "this Order to Show Cause, together with a
copy of the papers upon which it is granted ...on or before November
22, 2004" upon each of the respondents. Mr. Sloan simply mailed a copy
of the Order alone to USCF on November 17, 2004 and, presumably, to
the other respondents. The only attempt at personal service was
performed at 4:45 p.m. on November 23, 2004 by delivering to Mr.
Goichberg, a day late, one copy of the Order without including "a copy
of the papers upon which it is granted." Accordingly, the lower court
lacked personal jurisdiction over the respondents due to improper
service. See CPLR 308 and 311.
In November 2004 none of the individual respondents other than
Mr. Goichberg worked or resided in New York State. Appellant failed to
allege any facts to support a claim that any of them breached any
contract or committed any tortious act in New York State, and
therefore long-arm jurisdiction is lacking. See CPLR 302. For that
matter, Mr. Sloan failed to allege any facts stating a claim for which
relief can be granted, and failed to demonstrate irreparable injury or
a likelihood of ultimate success on the merits.
Argument
POINT I
THE COURT LACKS JURISDICTION OVER RESPONDENTS BY REASON OF APPELLANT'S
FAILURE TO SERVE PROCESS IN ACCORDANCE WITH THE LOWER COURT'S ORDER
CPLR 403(b) requires the notice of petition or equivalent, and
the petition and supporting affidavits, to be served "at least eight
days before the time at which the petition is noticed to be heard."
Service is to be made "in the same manner as a summons in an action."
Personal service upon a corporation is to be performed
generally as set forth in CPLR 311(a)(1), either by hand delivery to
an officer or other authorized agent, or by service upon the New York
Secretary of State under GBL 306. Personal service upon a natural
person requires hand delivery to the person, or by substituted service
in the manner prescribed by CPLR 308.
In the Order to Show Cause dated November 16, 2004, the lower
court directed appellant Sloan to serve a copy of the Order, the
petition and affidavit upon the respondents by personal service, no
later than November 22, 2004. It cannot be disputed that Mr. Sloan
failed to comply with the Court's order, and with CPLR 308, 311 and
403. Mr. Sloan admits as much in his reply affidavit in the court
below and at the hearing, a transcript of which he appends to his
current affidavit. This Court therefore lacks jurisdiction over the
respondents. Accordingly, Mr. Sloan's application for a preliminary
injunction was properly denied and the petition dismissed. See, e.g.,
Bell v. State University of New York at Stony Brook, 185 A.D.2d 925,
587 N.Y.S.2d 388 (2d Dept. 1992); Long Island Citizens Campaign, Inc.
v. County of Nassau, 165 A.D.2d 52, 565 N.Y.S.2d 852 (2d Dept. 1991);
Zaretski v. Tutunjian, 133 A.D.2d 928, 521 N.Y.S.2d 116 (3d Dept. 1987
).
POINT II
THIS COURT LACKS LONG-ARM JURISDICTION
It is settled that the courts of New York may not, consistent with the
United States Constitution, exercise personal jurisdiction over
non-domiciliaries absent any of the grounds, specified in CPLR 302.
See International Shoe Co. v. Washington, 326 U.S. 310 (1945). Section
302(a) provides:
(a) Acts which are the basis of jurisdiction. As to a cause of
action arising from any of the acts enumerated in this section, a
court may exercise personal jurisdiction over any non-domiciliary, or
his executor or administrator, who in person or through an agent:
1. Transacts business within the state or contracts anywhere
to supply goods or services in the state; or
2. Commits a tortious act within the state, except as to a
cause of action for defamation of character arising from the act; or
3. Commits a tortious act without the state causing injury to
person or property within the state, except as to a cause of action
for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have
consequences in the state and derives substantial revenue from
interstate or international commerce; or
4. Owns, uses or possesses any real property situated within
the state.
As of November 2004 only Mr. Goichberg, USCFfs Executive
Director, resided in Orange County, New York. All the other individual
respondents resided in other states and none transacted business or
supplied any goods or services in New York State. The appellant bears
the burden of pleading and proving long-arm jurisdic
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Respondents' arguments for want of jurisdiction seem compelling.
Is it strictly true that USCF "has no significant ... debt"? Does USCF
owe money to the Life Membership account?
David Ames
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David Ames wrote:
Respondents' arguments for want of jurisdiction seem compelling.
Is it strictly true that USCF "has no significant ... debt"? Does
USCF
owe money to the Life Membership account?
David Ames
I think their jurisdictional argument is silly with no chance of
success. I believe that it was put in there to impress the clients, not
to impress the courts.
The claim that the USCF is solvent and has no significant debt is, of
course, untrue, as every regular poster to this group knows. The latest
certified financial statement shows that the USCF has a deficit net
worth of $876,124.
See http://www.uschess.org/org/govern/auditedyearsended5-31-2004and2003
page 5
Sam Sloan
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Respondents' arguments for want of jurisdiction seem compelling.
Is it strictly true that USCF "has no significant ... debt"? Does USCF
owe money to the Life Membership account?
and to the US Olympiad squad?
Phil Innes
David Ames
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David Ames wrote:
Is it strictly true that USCF "has no significant ... debt"? Does
USCF
owe money to the Life Membership account?
David:
Because of the imbecilic way that the LMA was set up, it is legally
indistinguishable from USCF. Because the LMA is, in reality, just an
accounting gimmick, rather than a separate legal entity, it isn't a
creditor.
Wick Deer
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I think their jurisdictional argument is silly with no chance of
success. I believe that it was put in there to impress the clients,
not
to impress the courts.
I suspect you are in for a rude surprise.
The claim that the USCF is solvent and has no significant debt is, of
course, untrue, as every regular poster to this group knows. The
latest
certified financial statement shows that the USCF has a deficit net
worth of $876,124.
See
http://www.uschess.org/org/govern/auditedyearsended5-31-2004and2003
page 5 >
Sam is confusing debt with liability. If you check the link, you will
see that the deficit is due to the recognition of future services owed
life and multi-year member, not by any any debt currently owed.
Wick
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The claim that the USCF is solvent and has no significant debt is, of
course, untrue, as every regular poster to this group knows. The latest
certified financial statement shows that the USCF has a deficit net
worth of $876,124.
Which is about the same as it was in 2002 and @300,000 less than it was in
2003.
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