Affirmation Of Faith E. Gay

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND DEPARTMENT

DEAN G. SKELOS and PEDRO ESPADA, JR., as duly elected members of the New York State Senate,

AFFIRMATION OF FAITH E. GAY

Plaintiffs-Respondents, Nassau Co. Sup. Ct. Index No. 13426/09 DAVID PATERSON, as Governor of the State of New York, and RICHARD RAVITCH, as Lieutenant Governor of the State of New York, and LORRAINE CORTES-VAZQUEZ, as Secretary of the State of New York,

Hon. William R. Lamarca

Defendants-Appellants.

FAITH E. GAY, an attorney duly admitted to the practice of law in the State of New York affirms as follows under the penalty of perjury: 1. Your affiant is a member of the law firm of Quinn, Emanuel, Urquhart, Oliver & Hedges, LLP, attorney for the Defendants-Appellants (hereinafter "Appellants") and as such is fully familiar with the facts and circumstances stated herein. I make this affirmation in support of Appellants' application for a stay pursuant to CPLR 5518 and CPLR 5519(c) of the Order of the Court below, which order granted a Preliminary Injunction in the instant action, or, in the further alternative, denying the instant motion as academic on the ground that the Order is automatically automatic stayed pursuant to CPLR 5519(a); and that Appellants' application for an expedited appeal be granted and that this Appeal be heard on an expedited basis and that the appeal be assigned to the Active Case Management Program

and that a Scheduling Order be issued, and together with such other and further relief as the Court deems just and appropriate. 2.

Attached as Exhibit A is a copy of Respondents' Verified Complaint in the

instant action. No Answer has been served in the within action, and the time do so has not expired, although the Respondents have filed papers opposing the requested Preliminary Injunction and moving to dismiss the verified complaint in the Court below. 3.

In the evening of July 8, 2009, Governor Paterson appointed Richard Ravitch

as Lieutenant Governor of the State of New York. Mr. Ravitch is a citizen of the United States over 30 years of age, who has been a resident of the State of New York for more than five (5) years. Accordingly, Mr. Ravitch is qualified to serve as Lieutenant Governor under Article 4, Section 2 of the Constitution. 4.

Mr. Ravitch signed an oath of office as Lieutenant Governor on the evening of

July 8, 2009. 5.

A copy of the order appealed from is attached as Exhibit B.

6.

A copy of the notice of appeal served on Plaintiffs-Respondents is attached as

Exhibit C. 7.

A copy of Defendant-Appellants memorandum of law in support of their cross-

motion to dismiss the Verified Complaint is attached as Exhibit D. 8.

A copy of Defendant-Appellants' r eply brief in support of their motion to

dismiss the Verified Complaint is attached as Exhibit E. 9.

The Order granted a preliminary injunction enjoining Lieutenant Governor

Ravitch "from exercising any of the powers of the office of Lieutenant-Governor of the State

of New York." This Order was entered without authority in contravention of the plain language of CPLR 6311 that "[a] preliminary injunction to restrain a public officer, board or municipal corporation of the state from performing a statutory duty may be granted only by the supreme court at a term in the department in which the officer or board is located or in which the duty is required to be performed." 10.

The Order was also granted to plaintiffs who lacked standing to pursue the

relief; was moot; was sought in an improper venue; and was granted without a proper showing that Plaintiffs-Respondents were likely to succeed on the merits, would suffer any immediate and irreparable harm absent an injunction, or that the balance of the equities lay in favor of an injunction; 11.

It is respectfully submitted that the Order below is erroneous as a clear matter

of law, and should be stayed pending appeal in light of the public need to settle the authority of the Lieutenant Governor to act. 12.

No prior application for the relief requested herein has been made.

13.

WHEREFORE, Appellants respectfully request this Court enter an Order

staying the order appealed below pursuant to CPLR 5518 and CPLR 5519(c); or in the alternative, that this court deny the instant motion as academic on the grounds that Appellants are entitled to a statutory stay pursuant to CPLR 5519(a), and that pending the hearing and determination of the within appeal that the order appealed below is hereby stayed, and further on the appeal from the order below, and that the appeal in this matter be heard in an expedited basis and that the appeal be assigned to the Active Case Management

Program and that a Scheduling Order be issued, and together with such other and further relief as the Court deems just and appropriate.

Dated:

, New York July 22, 2009