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 Const, 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 [*2]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 (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 of the 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]).

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.

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 of respondent'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. [*3]

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 underCPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

Dated: Albany, New York

July 9, 2012

RICHARD M. PLATKIN

A.J.S.C.