Table of Contents Notice of Intervention and CPLR 5704 Motion.................. 2 Att. A - Original notice of Motion......................... 8 Order to Show Cause............................... 13 Exhibit A. - Decision of the New York Court of Appeals People v. Vorpahl, Town of Montauk, Inc., May 6, 2004 (2 N.Y.3d 781; 812 N.E.2d 1255; 780 N.Y.S.2d 306) 16 Exhibit B. - Restraining order, Hedges, et al. v. Trustees, Hon. N. B. Morse, J.S.C., June 26th, 1851............................... 18 Exhibit C. - CERTIFIED DEED ATTACHED - Suffolk Liber 63 of deeds pp. 171-177, recorded March 15th, 1852: Trustees of the Freeholders and Commonalty of the Town of Easthampton to Henry P. Hedges, et. al. [proprietors of Montauk] made pursuant to the September 6th, 1851 judgment and order of Hon. Nathan B. Morse, J.S.C. (p. 175; judgment is supra).................. 23 Exhibit D - Incorporation of Montauk, Chapter 139 of the laws of 1852. April 2nd, 1852..................................... 24 Exhibit E. - Dongan Patent of the Town of Easthampton, December 9th, 1686 27 Exhibit F. -Chapter 2 of the Laws of 1691 (First Assembly).......... 38 Exhibit G. - New York State Constitution, Article I Section 14, Bill of Rights. 40 Att. C - MFOP/Montauk Trustee Corp. October 11th, 2004 resolutions..... 41 Att. D - Court of Appeals May 6th, 2004, Decision................. 45 Att. E - January 5th Email, Ficalora to Barr, Esq.................. 48 Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004....... 50 Barr Affirmation of Nov. 22nd, 2004..................... 52 Barr Affirmation, Nov. 29th, 2004...................... 56 Att. G - Affidavits of Service........................... 70 CPLR 5704 Motion - Page 1
Supreme Court of the State of New York Appellate Division - Second Judicial Department Town of Montauk, Inc. Robert A. Ficalora -against- Petitioner Intervenor Index no. 04-27553 Notice of Intervention and CPLR 5704 Motion (CPLR 1012(a) 2, 3) Hon. George E. Pataki, Esq., Governor of the State of New York and, The People of the State of New York Met in Assembly, and The Town Board gov t of the Town of East Hampton, and The Trustees of the Freeholders and Commonalty of the Town of Easthampton, and The Suffolk County Water Authority, Inc., and The County of Suffolk, and The Brooklyn Historical Society, Inc., and 511 Equities, Inc., and The Nature Conservancy, Inc. To be heard either on submission or with counsel, Friday, January 7th, 2005 Respondents State of Washington } } ss: Thurston County } 1.) Robert A. Ficalora, am not an attorney but am fully warned of the penalties for purjury and the practice of law without a license, but under conditions of necessity due to loss of retained and authorized counsel, and by right pursuant to CPLR 1012 (a)(3), do move this court pursuant to CPLR 5704 for entry of the attached ex parte Order to Show Cause (OSC) which was twice rejected by the court below. 2.) This motion was previously served and filed with this court pursuant to 670.5 of the court rules with an answer date of tomorrow, Friday, January 7, 2005 (Att. A). The file was returned to Mr. Gene Barr, Esq., with confused instructions upon how to proceed, but he refused. CPLR 5704 Motion - Page 2
3.) This notice is served by Efax service today, January 6th, 2005 to the revised address list for service below. It is acknowledged that there have been difficulties accomplishing service. 4.) The October 11th, 2004, resolutions of the Montauk Friends of Olmsted Parks / Montauk Trustee Corporation ("Trustee Corporation", Att. B) on behalf of the Petitioner herein, and the actions taken, funds produced and interests established by me pursuant thereto, establish a real and contractual interest in the disposition or distribution, or the title or a claim of damages to property, as petitioned for herein. My personal contingent reward for funding and enabling this litigation of 3% (three percent) of the damages sought herein could be in the millions of dollars. 5.) I fully understand that the New York State Court of Appeals has repeatedly held that I am an not an attorney authorized to represent the MFOP/Montauk Trustee Corporation, most recently on May 6th of 2004 (2 N.Y.3d 781; 812 N.E.2d 1255; 780 N.Y.S.2d 306, Att. C), and that purporting to do so would be contempt of court. 6.) I have no intent or desire to handle this matter without proper legal representation. The current status of the litigation is, however, enough to frighten even the most stalwart of attorneys and must be moved to a more stable and acceptable footing before there is any possibility of retaining counsel. 7.) CPLR 5704 Motion - Notice of Intervention and CPLR 5704 Motion Page 3
Compelling process through orders to show cause and ordering defendants/respondents to answer the petition papers for my reply will put this matter fully at the disposition of the court. 8.) Mr. Gene D. Barr, Esq. is seeking to be released from his retainer agreement for which I personally paid him $7,500 on behalf of the Trustee Corporation pursuant to the board's October 11th resolutions (Att. D). 9.) The obligations established in the "stipulated" retainer agreement dated 10/16/2004, are further clarified by Mr. Barr's 11/22/2004 "Attorney's Affirmation" and his "Supplemental Affimation" of 11/29/2004. All documents reflect the resolve of our board that I was to only authorize an attorney that would operate under my strict control and direction (Att. E). 10.) This requirement was made very clear to Mr. Barr up front, and he was only retained after he agreed to the above conditions. The relationship did not work, however, and Mr. Barr wanted out of his contract and off of the case after the two rejectons of the OSC and fear of approaching this court. 11.) He insists on keeping the $7,500 retainer, and I tentatively agreed knowing that I could intervene, but my conditions were not met and he is still bound by the October 16th retainer agreement and subsequent affirmations (see email of January 5th, 2005, Att. D). 12.) In any event, with the exception of cover letters and his revised and divided Petitioner-Attorney version of the Petition verification, all documents submitted are CPLR 5704 Motion - Notice of Intervention and CPLR 5704 Motion Page 4
entirely my product. My 2004 Affidavit and the Petition and causes of action did not receive the hoped for peer review and remain in my first draft form. 13.) The court will notice that the OSC is intended to recover Montauk's taxes to the Incorporated Township of Montauk as quickly as possible. This will be a central focus because East Hampton has no right to Montauk's taxes, and we need them to hire in-house counsel and staff to bring this matter most fully and properly before this court. 14.) If the court enters the OSC and sends the matter down to the Commercial Part of Hon. Elizabeth Hazlitt Emerson, J.S.C., I will be successful in bringing on a new attorney. 15.) This affidavits of service of all documents in this matter are attached. The Town of East Hampton was personally served in my presence on November 23rd prior to bringing the OSC to Riverhead with a restraining order. All other respondents were served on or about December 3rd or 8th, 2004, excepting TNC corp. for which I have yet to receive the affidavit of service from the GOTCHA! process server company. 16.) Once let in, the intervenor becomes a party for all purposes. (Siegel, NY Prac 178, at 295 [3d ed]; see Incorporated Vil. of Is. Park v Island Park-Long Beach, 81 NYS2d 407 [1948], affd 274 App Div 930 [2d Dept 1948].) A party who intervenes, either of right or by motion, obtains the rights of a party, including the right to counterclaim, cross-claim, implead, appeal, etc. (Siegel, NY Prac 183, at CPLR 5704 Motion - Notice of Intervention and CPLR 5704 Motion Page 5
300 [3d ed]; see Brown v Waryas, 45 Misc 2d 77, 78 [Sup Ct, Duchess County 1965].) 17.) I intervene as a temporary expedient, however, to move process past the entry of the OSC and the respondents' answering of the OSC and the Petition. The answer date upon the Notice of Petition was January 3rd, 2005, and the CPLR 5704 motion January 7th, 2005. 18.) Absent this court's granting of this motion, representation by Petitioner may be inadequate for me to obtain financial recovery and compensation pursuant to the October 11th, 2004, Resolutions of Board of Directors of the Montauk Friends of Olmsted Parks / Montauk Trustee Corporation. 19.) This Notice and Motion is delivered to all parties below by FAX today, January 6th, 2005. Gene D. Barr, Esq. - (631) 207-0023 Attorney Mr. Greg Allen, Esq - (518) 474-8099 Counsel for Governor Pataki Mr. John Courtney, Esq. - (631) 267-6177 East Hampton Trustees Ms. Laura Molinari, Esq., (631) 329-5371 Town of East Hampton Christine Malafi - (631) 853-5169 The County of Suffolk Mr. Timothy Dewhurst - (718) 222-3994 The Brooklyn Historical Society Jonathan Kaledin, Esq. (518) 273-5178 The Nature Conservancy, Inc. Tim Hopkins - (631) 563-0370 Suffolk County Water Authority Caitlin Halligan - (212) 416-6350 Solicitor General Page 6
Att. A - Original notice of Motion CPLR 5704 Motion - Att. A - Original notice of Motion Page 8
CPLR 5704 Motion - Att. A - Original notice of Motion Page 9
CPLR 5704 Motion - Att. A - Original notice of Motion Page 10
CPLR 5704 Motion - Att. A - Original notice of Motion Page 11
CPLR 5704 Motion - Att. A - Original notice of Motion Page 12
Supreme Court of the State of New York Appellate Division - Second Judicial Department Town of Montauk, Inc. Robert A. Ficalora -against- Petitioner Intervenor Order to Show Cause (CPLR 7803(2)) Index no. 04-27553 Hon. George E. Pataki, Esq., Governor of the State of New York and, The People of the State of New York Met in Assembly, and The Town Board gov t of the Town of East Hampton, and The Trustees of the Freeholders and Commonalty of the Town of Easthampton, and The Suffolk County Water Authority, Inc., and The County of Suffolk, and The Brooklyn Historical Society, Inc., and 511 Equities, Inc., and The Nature Conservancy, Inc. Respondents Upon the annexed affidavit of Robert A. Ficalora duly sworn on the 17th day of November, 2004, and the affirmation of Gene Barr, an attorney duly admitted to practice law before the Courts of the State of New York, dated the 22nd day of November, 2004, together with the attachments and annexed exhibits, and in support of the Petition and the causes of this action herein, it is hereby ORDERED that defendants show cause before this court at the Commercial Division to be held at the Courthouse at 235 Griffing Avenue, Riverhead, New York at 9:30 a.m. on,, 2004 why orders should not be made and entered in this proceeding: * I... recognizing the Incorporated Township of Montauk upon the same record as the May 6th, 2004 Decision of the New York Court of Appeals (attached); * II...compelling delivery into court of all current revenues raised in Montauk by respondent town board of East Hampton, including all taxes, pursuant to CPLR 2701; * III...holding all jurisdiction claimed in Montauk pursuant to Acts of distant legislatures to be in violation of the 1686 Dongan Patent and, therefore, Chapter 2 of the laws of 1691 and Article 1 Section 14 of the Constitution of the State of New York (attached). ORDERED that the attached Order of Hon. Nathan B. Morse, J.S.C., dated June 27th, 1851, is updated, modified and re-entered enjoining and restraining the Town of Easthampton from all planning, permitting or use of lands at Montauk while maintaining essential services (police, etc.)
LET SERVICE of a copy of this order, together with the Petition and supporting affidavits and attachments thereto, by personal delivery to all defendants on or before, 2005 be deemed sufficient service thereof. This order has been signed by me this day of January, 2005, and shall upon presentation be entered into the office of the clerk. Index to Exhibits follows. Enter: CPLR 5704 Motion - Order to Show Cause Page 14
Index of Exhibits Exhibit A. - Decision of the New York Court of Appeals People of the State of New York v. Vorpahl, Appellant, Town of Montauk, Inc., Intervenor, May 6, 2004, (2 N.Y.3d 781; 812 N.E.2d 1255; 780 N.Y.S.2d 306) Exhibit B. - Restraining order, Henry P. Hedges, et al. v. The Trustees of the Freeholders and Commonalty of the town of Easthampton, N. B. Morse, J., June 26th, 1851 AND final judgement and order, September 6th, 1851. Exhibit C. - CERTIFIED DEED, Suffolk liber 63 of deeds, pp. 171 to 177, recorded March 15th, 1852. The Trustees of the Freeholders and Commonalty of the town of Easthampton to Henry P. Hedges, et. al. [proprietors of Montauk], made pursuant to the September 6th, 1851 order of Hon. Nathan B. Morse, J.S.C. (see: page 175). Released all claim to Montauk by the town of East Hampton. Exhibit D. - "An ACT to incorporate the proprietors of Montauk lands", Chapter 139 of the laws of 1852. April 2nd, 1852. Incorporates Montauk freeholders and affirms their power to govern Montauk. Exhibit E. - Dongan Patent of the Town of Easthampton, December 9th, 1686 Exhibit F. - Chapter 2 of the Laws of 1691 (First Assembly) Exhibit G. - New York State Constitution, Article I Section 14, Common law and acts of the colonial and state legislatures to continue. See footer for Exhibit name. CPLR 5704 Motion - Order to Show Cause Page 15
Exhibit A. - Decision of the New York Court of Appeals People v. Vorpahl, Town of Montauk, Inc., May 6, 2004 (2 N.Y.3d 781; 812 N.E.2d 1255; 780 N.Y.S.2d 306) Town of Montauk, Inc. v. Pataki, et. al. - Order to Show Cause
CPLR 5704 Motion - Order to Show Cause Page 17
Exhibit B. - Restraining order, Hedges, et al. v. Trustees, Hon. N. B. Morse, J.S.C., June 26th, 1851 Town of Montauk, Inc. v. Pataki, et. al. - Order to Show Cause
Town of Montauk, Inc. v. Pataki, et. al. - Order to Show Cause
Town of Montauk, Inc. v. Pataki, et. al. - Order to Show Cause
Town of Montauk, Inc. v. Pataki, et. al. - Order to Show Cause
Town of Montauk, Inc. v. Pataki, et. al. - Order to Show Cause
Exhibit C. - CERTIFIED DEED ATTACHED - Suffolk Liber 63 of deeds pp. 171-177, recorded March 15th, 1852: Trustees of the Freeholders and Commonalty of the Town of Easthampton to Henry P. Hedges, et. al. [proprietors of Montauk] made pursuant to the September 6th, 1851 judgment and order of Hon. Nathan B. Morse, J.S.C. (p. 175; judgment is supra) CPLR 5704 Motion - Order to Show Cause Page 23
Exhibit D - Incorporation of Montauk, Chapter 139 of the laws of 1852. April 2nd, 1852 CPLR 5704 Motion - Order to Show Cause Page 24
CPLR 5704 Motion - Order to Show Cause Page 25
CPLR 5704 Motion - Order to Show Cause Page 26
Exhibit E. - Dongan Patent of the Town of Easthampton, December 9th, 1686 CPLR 5704 Motion - Order to Show Cause Page 27
CPLR 5704 Motion - Order to Show Cause Page 28
CPLR 5704 Motion - Order to Show Cause Page 29
CPLR 5704 Motion - Order to Show Cause Page 30
CPLR 5704 Motion - Order to Show Cause Page 31
CPLR 5704 Motion - Order to Show Cause Page 32
CPLR 5704 Motion - Order to Show Cause Page 33
CPLR 5704 Motion - Order to Show Cause Page 34
CPLR 5704 Motion - Order to Show Cause Page 35
CPLR 5704 Motion - Order to Show Cause Page 36
CPLR 5704 Motion - Order to Show Cause Page 37
Exhibit F. -Chapter 2 of the Laws of 1691 (First Assembly) CPLR 5704 Motion - Order to Show Cause Page 38
CPLR 5704 Motion - Order to Show Cause Page 39
Exhibit G. - New York State Constitution, Article I Section 14, Bill of Rights 14. Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated. (Formerly 16. Renumbered and amended by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.) CPLR 5704 Motion - Order to Show Cause Page 40
Att. C - MFOP/Montauk Trustee Corp. October 11th, 2004 resolutions CPLR 5704 Motion - Att. C - MFOP/Montauk Trustee Corp. October 11th, 2004 resolutions Page 41
CPLR 5704 Motion - Att. C - MFOP/Montauk Trustee Corp. October 11th, 2004 resolutions Page 42
CPLR 5704 Motion - Att. C - MFOP/Montauk Trustee Corp. October 11th, 2004 resolutions Page 43
CPLR 5704 Motion - Att. C - MFOP/Montauk Trustee Corp. October 11th, 2004 resolutions Page 44
Att. D - Court of Appeals May 6th, 2004, Decision. CPLR 5704 Motion - Att. D - Court of Appeals May 6th, 2004, Decision. Page 45
CPLR 5704 Motion - Att. D - Court of Appeals May 6th, 2004, Decision. Page 46
Att. E - January 5th Email, Ficalora to Barr, Esq. CPLR 5704 Motion - Att. E - January 5th Email, Ficalora to Barr, Esq. Page 48
Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 50
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 51
Barr Affirmation of Nov. 22nd, 2004 CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 52
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 53
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 54
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 55
Barr Affirmation, Nov. 29th, 2004 CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 56
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 57
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 58
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 59
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 60
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 61
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 62
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 63
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 64
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 65
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 66
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 67
CPLR 5704 Motion - Att. F - Gene D. Barr, Esq., retainer agreement, October 16th, 2004 Page 68
Att. G - Affidavits of Service CPLR 5704 Motion - Att. G - Affidavits of Service Page 70
CPLR 5704 Motion - Att. G - Affidavits of Service Page 71
CPLR 5704 Motion - Att. G - Affidavits of Service Page 72
CPLR 5704 Motion - Att. G - Affidavits of Service Page 73
CPLR 5704 Motion - Att. G - Affidavits of Service Page 74
CPLR 5704 Motion - Att. G - Affidavits of Service Page 75
CPLR 5704 Motion - Att. G - Affidavits of Service Page 76
CPLR 5704 Motion - Att. G - Affidavits of Service Page 77
CPLR 5704 Motion - Att. G - Affidavits of Service Page 78