NEW YORK STATECOURT OF APPEALS

Preliminary Appeal StatementPursuant to section 500.9 ofthe Rules of the Court of Appeals

1. CAPTION OF CASE (as the parties should be denominated in the Court of Appeals):

STATE OF NEW YORK COURT OF APPEALSH. William Van Allen

-against-New York State Board of Elections et al

2. Name of court or tribunal where case originated, including county, if applicable:Albany Civil Supreme

3. Civil index number, criminal indictment number or other number assigned to the matter in thecourt or tribunal of original instance:_1_7_8_7_-2_0_12 _

4. Docket number assigned to the matter at the Appellate Division or other intermediateappellate court: _

5. Jurisdictional basis for this appeal:__ Leave to appeal granted by the Court of Appeals or a Judge of the Court of Appeals__ Leave to appeal granted by the Appellate Division or a Justice of the Appellate

Division__ CPLR 5601(a): dissents on the law at the Appellate Division__ CPLR 5601(b)(l): constitutional ground (Appellate Division order)_.f_CPLR 5601(b)(2): constitutional ground (judgment of court of original instance)__ CPLR 5601(c): Appellate Division order granting a new trial or hearing, upon

stipulation for judgment absolute__ CPLR 5601(d): from a final judgment, order, determination or award, seekingreview of a prior nonfinal Appellate Division order__ Other (specify) _

6. How this appeal was taken to the Court of Appeals (choose one) (see CPLR 5515[1]):

NOTICE OF APPEAL Date filed:---------------------Clerk's office where filed:---------------

ORDER GRANTING LEAVE TO APPEAL (civil case):Court that issued order:-----------Date of order:---------------

CERTIFICATE OR ORDER GRANTING LEAVE TO APPEAL (criminal case):Justice or Judge who issued order: _Court:--------------Date of order:----------------

7. Demonstration of timeliness of appeal in civil case (CPLR 5513,5514):Was appellant served by its adversary with a copy of the order, judgment ordetermination appealed from and notice of its entry? ---'yes .f no

If yes, date on which appellant was served (if known, or discernable from thepapers served):If yes, method by which appellant was served: personal delivery

___ regular mail___ overnight courier___ other (describe )

Did the Appellate Division grant or deny a motion for leave to appeal to thisCourt in this case? yes __.f _noIf yes, fill in the following information:a. date appellant served the motion for leave to appeal made

at the Appellate Division:b. date on which appellant was served with the Appellate

Division order granting or denying such motion with noticeof the order's entry: , and

c. method by which appellant was served with the Appellate Division ordergranting or denying such motion:

_____________ personal service____ regular mail

overnight courier----

____ other (describe )

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8. Party Information:Instructions: Fill in the name of each party to the action or proceeding, one name per line. Indicate the status of the partyin the court of original instance and the party's status in this Court, if any. Examples of a party's original status include:

plaintiff, defendant, petitioner, respondent, claimant, third-party plaintiff, third-party defendant, intervenor, Examples ofa party's Court of Appeals status include: appellant, respondent, appellant-respondent, respondent-appellant, intervenor-appellant.

No. Party Name Original Status Court of Appeals StatusI H. William Van Allen Petitioner Appellant2 New York State Board of Elections Respondent Respondent345678910

9. Attorney information:Instructions: For each party listed above, fill in the name ofthe one law firm and responsible attorney who will act ascounsel of record, if the party is represented. Where a litigant is self-represented, fill in that party's data in section 10below.For Party No. 1.. above:Law Firm Name: New York State Office of the Attornev GeneralResponsible Attorney: Doualas Golia

~-----------------------------------------------------------------------

Street Address: Capitol~==~~-----------.~---------------------------------------------------------

City: Albanv State: NY Zip:-----------------------------------------------

Telephone No: Ext. Fax:----c _If appearing Pro Hac Vice, has attorney satisfied requirements of section 500.4 ofthe Rules ofthe Court ofAppeals? ~es no

For Party No. __ above:Law FirmName: _Responsible Attorney: _Street Address: -r-r- _

City: State: Zip: _Telephone No: Ext. Fax: _If appearing Pro Hac Vice, has attorney satisfied requirements of section 500.4 ofthe Rules ofthe Court ofAppeals? ~es no

For Party No. __ above:Law Firm Name: _Responsible Attorney: _Street Address: _City: State: Zip: _Telephone No: Ext. Fax: _If appearing Pro Hac Vice, has attorney satisfied requirements of section 500.4 of the Rules of the Court ofAppeals? ~es no

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For Party No. _ above:LawFirmName: _ResponsibleAttorney: _StreetAddress: _City: State: Zip: _TelephoneNo: Ext. Fax:_.----:---:cc:-::--:--=-=-----:::---:----::-:----::c-----::-----If appearingProHacVice,has attorneysatisfiedrequirementsof section500.4ofthe Rulesof the CourtofAppeals?-----'yes __ no

For Party No. _ above:LawFirmName: _ResponsibleAttorney: _StreetAddress: _City: State: Zip:~--------------------TelephoneNo: Ext. Fax:--:-_---:---,-c:-::--:--:-:----:---:-_--::-:----::--_--::- _If appearingProHacVice,has attorneysatisfiedrequirementsof section500.4of the Rulesof the CourtofAppeals?-----'yes __ no

(Useadditionalsheetsif necessary)

10. Self-Represented Litigant information:For Party No._1_ above:Party'sName:H. William Van AllenStreetAddress:351 North RoadCity: Hurlev State:=-N..:..Y"--- .Zip:12443TelephoneNo.: (845)389-4366 Ext. Fax: _

For Party No._above:Party's Name:StreetAddress'-:----------------------------------

City:,..,- State: Zip: _TelephoneNo.: Ext. Fax: _

] 1. Related motions and applications:Does any party to the appeal have any motions or applications related to this appealpending in the Court of Appeals? ""-yes .; noIf yes, specify:

a. the party who filed the motion or application: _b. the return date of the motion: --------------------c. the relief sought: _

Does any party to the appeal have any motions or applications in this case currentlypending in the court from which the appeal is taken? ----'yes ~no

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If yes, specify:a. the party who filed the motion or application: _b. the return date of the motion: -------------------c. the relief sought: _

Are there any other pending motions or ongoing proceedings in this case? If yes, pleasedescribe briefly the nature and the status of such motions or proceedings: _

12. Set forth, in point-heading form, issues proposed to be raised on appeal (this is anonbinding designation, for preliminary issue identification purposes only):standing to challenge NYSBOE US Constitutional definition of POTUS/CINCeligibility -- "natural born citizen" v "born a citizen"

(use additional sheet, if necessary)

13. Does appellant request that this appeal be considered for resolution pursuant to section500.11 of the Rules of the Court of Appeals (Alternative Procedure for SelectedAppeals)?____ yes no

If yes, set forth a concise statement why appellant believes that consideration pursuantto section 500.11 is appropriate (see section 500.11 [b]): (Fill in on lines below)

14. Notice to the Attorney General.

Is any party to the appeal asserting that a statute is unconstitutional? yes no

If yes, has appellant met the requirement of notice to the Attorney General in section500.9(b) of the Rules of the Court of Appeals? yes no

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15. ITEMS REQUIRED TO BE ATTACHED TO EACH COPY OF THISSTATEMENT:

A. A copy of the filed notice of appeal to the Court of Appeals (with proof ofservice), a copy of the order granting leave to appeal to the Court of Appeals (civilcase), or a copy of the certificate granting leave to appeal to the Court of Appeals(criminal case), whichever is applicable;

B. A copy of the signed order, judgment or determination appealed from to thisCourt (use document issued by the court, not internet version);

C. A signed copy of any order, judgment or determination which is the subject ofthe order appealed from, or which is otherwise brought up for review (usedocument issued by the court, not internet version);

D. Copies of all decisions or opinions relating to the orders set forth in subsectionsBand C above (use documents issued by the court, not internet versions); and

E. If required, a copy of the notice sent to the Attorney General pursuant to section500.9(b) of the Rules of the Court of Appeals.

F. If req uired, a disclosure statement pursuant to section 500.1(f) of the Rules of theCourt of Appeals.

Date:---------------- Submitted by: _(Name of law firm)

(Signature of responsible attorney)

(Typed name of responsible attorney)

Attorneys for appellant _(Name of party)

Date: 07/13/2012

EFFECTIVE 12(05/10

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OFFICE CITIZENSHIP AGEPresident ofthe United Born a citizen 35States years

RESIDENCY14 years incountry

STATUTEUnited States ConstitutionArt. II § 1

STATE OF NEW YORKSUPREME COURT

ALBANY COUNTY

H. William Van Allen in esse,

Petitioner,

-against-

NEW YORK STATE BOARD OF ELECTIONS,

Respondent.

Decision, Order& Judgment

Index No. 1787-12

APPEARANCES:

H. WILLIAM VAN ALLEN

Self-Represented Petitioner351 North RoadHurley, New York 12443

ERIC T. SCHNEIDERMAN, ATTORNEY GENERALAttorney for Respondent(Douglas J. Goglia, of counsel)The CapitolAlbany, New York 12224

Hon. Richard M. Platkin, A.J.S.c.

This is a special proceeding brought by petitioner H. William Van Allen pursuant to

CPLR article 78 seeking a writ of mandamus, emergency injunctive relief and declaratory relief.

Respondent New York State Board of Elections ("SBOE") moves to dismiss the petition and also

seeks the imposition of monetary and non-monetary sanctions upon petitioner.

The United States Constitution provides that "[n]o person except a natural born Citizen

... shall be eligible to the Office of President" (US Canst, art II, § 1, clause 5 ["Natural Born

Citizen Clause"]). Petitioner alleges that eligibility instructions on the SBOE internet web site

erroneously advise that a candidate for the Office of President need only be "born a citizen" of

the United States, rather than a "natural born Citizen", as required by the text of the Constitution.

In particular, petitioner objects to the "ballot access of [President] Obama as it is wrongfully

facilitated by the [SBOE's] arbitrary use of the instruction 'Born a Citizen"'. Among other

things, petitioner seeks an order: (a) enjoining the SBOE from using the term "Born a Citizen"

with respect to the eligibility of presidential candidates; and (b) requiring each presidential

candidate on the 2012 general election ballot to establish that he or she is a "Natural Born

Citizen" of the United States in order to remain on the ballot.

The standing of a party to institute or maintain a judicial proceeding is a threshold issue

that must be determined by the Court at the outset of litigation (see Matter of Dairylea Coop. v

Walkley, 38 NY2d 6 [1975]). To establish standing to challenge an administrative action in a

proceeding brought pursuant to CPLR article 78, petitioner must show that he would suffer an

injury in fact "that is in some way different from that of the public at large" (Society of Plastics

Indus. v County of Suffolk (77 NY2d 761, 773-774 [1991]). In other words, petitioner must show

that he actually will suffer a concrete and particularized harm as a result of the challenged action

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(id.; New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]; Matter of

Hassig v New York State Dept. of Health, 5 AD3d 846 [3d Dept 2004]).

In opposing respondent's motion to dismiss, petitioner maintains that he brings this

proceeding "to protect[] his personal intangible vote property in this 2012 election cycle"

'(Petitioner's Response in Opposition, ~ 23). However, the allegedly faulty instruction given by

the SBOE regarding the Natural Born Citizen Clause in no way denies petitioner his right to vote

in the 2012 general election. Petitioner, who is not an enrolled member ofthe Democratic party,

remains free to support and vote for a candidate of his choosing (see Berg v Obama, 586 F3d

234, 239-240 [3d Cir 2009]; Hollander v McCain, 566 F Supp2d 63, 69-70 [D NH 2008]; see

also Crist v Comm 'n on Presidential Debates, 262 F3d 193, 195 [2d Cir 2001]). And it is clear

that petitioner's interest in compelling the SBOE to adopt his interpretation of the Natural Born

Citizen Clause and to use his preferred terminology in its publications is in no "way different

from that of the public at large" (Society of Plastics, 77 NY2d at 773-774). As such, petitioner's

interest is far too generalized and unparticularized to support standing under the facts and

circumstances of this case (see Berg at 240 [collecting authorities D.

In view of petitioner's lack of standing to maintain the instant proceeding, there is no

reason to consider respondent's additional contentions that this proceeding is barred by principles

of res judicata and collateral estoppel based upon prior litigation undertaken by Christopher-Earl

Strunk, an alleged privy of petitioner, and that the petition is non-justiciable insofar as the

Electoral College is the sole and exclusive forum in which objections to the selection of a

President may be determined.

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Finally, the branch of respondent's motion seeking the imposition of monetary and non-

monetary sanctions is denied. While respondent's counsel refers to "repetitive" and "numerous

vexatious and harassing lawsuits" commenced by petitioner, nothing in the record confirms this

assertion. And the mere fact that a trial court of coordinate jurisdiction rejected similar claims

advanced by an alleged privy of petitioner does not render the instant petition frivolous within

the meaning of Part 130 of the Rules of the Chief Administrative Judge.

Accordingly, it is

ORDERED that the branch ofrespondent's motion seeking dismissal of the petition is

granted; and it is further

ORDERED and ADJUDGED that the petition is dismissed in all respects; and finally it is

ORDERED that the branch of respondent's motion seeking the imposition of monetary and

non-monetary sanctions is denied.

This Decision, Order & Judgment is being transmitted to the counsel for respondent and all

other papers are being transmitted to the Albany County Clerk for filing. The signing of this

Decision, Order & Judgment shall not constitute entry or filing under CPLR § 2220. Counsel are

not relieved from the applicable provisions of that section respecting filing, entry and notice of

entry.

Dated: Albany, New YorkJuly 9, 2012

~RlCHARD M. PLATKIN

A.J.S.C.

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