SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY
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STEVE LEVY, as COUNTY EXECUTIVE
of the COUNTY OF SUFFOLK,
Petitioner-Plaintiff, Index No.:

- against-
VERIFIED
PETITION

NEW YORK STATE SENATE; SENATOR ERIC ADAMS; SENATOR JOSEPH P.

ADDABBO, JR.; SENATOR JAMES S. ALESI; SENATOR DARREL J. AUBERTINE;
SENATOR JOHN J. BONACIC; SENATOR NEIL D. BRESLIN; SENATOR JOHN A.
DeFRANCISCO; SENATOR RUBEN DIAZ, SR.; SENATOR MARTIN MALAVÉ
DILAN; SENATOR THOMAS DUANE; SENATOR PEDRO ESPADA, JR.; SENATOR
HUGH T. FARLEY; SENATOR JOHN J. FLANAGAN; SENATOR BRIAN X. FOLEY;
SENATOR CHARLES J. FUSCHILLO, JR.; SENATOR MARTIN J. GOLDEN;
SENATOR JOSEPH A. GRIFFO; SENATOR KEMP HANNON; SENATOR RUTH
HASSELL-THOMPSON; SENATOR SHIRLEY L. HUNTLEY; SENATOR CRAIG M.
JOHNSON; SENATOR OWEN H. JOHNSON; SENATOR JEFFERY D. KLEIN;
SENATOR LIZ KRUEGER; SENATOR CARL KRUGER; SENATOR ANDREW J.
LANZA; SENATOR WILLIAM J. LARKIN, JR.; SENATOR KENNETH P. LaVALLE;
SENATOR VINCENT L. LEIBELL; SENATOR THOMAS LIBOUS; SENATOR
ELIZABETH LITTLE; SENATOR CARL L. MARCELLINO; SENATOR GEORGE D.
MAZIARZ; SENATOR ROY J. McDONALD; SENATOR HIRAM MONSERRATE;
SENATOR VELMANETTE MONTGOMERY; SENATOR THOMAS P. MORAHAN;
SENATOR MICHAEL F. NOZZOLIO; SENATOR GEORGE ONORATO; SENATOR
SUZI OPPENHEIMER; SENATOR FRANK PADAVAN; SENATOR KEVIN S.
PARKER; SENATOR BILL PERKINS; SENATOR MICHAEL H. RANZENHOFER;
SENATOR JOSEPH E. ROBACH; SENATOR STEPHEN M. SALAND; SENATOR
JOHN L. SAMPSON; SENATOR DIANE J. SAVINO; SENATOR ERIC T.
SCHNEIDERMAN; SENATOR JOSE M. SERRANO; SENATOR JAMES L. SEWARD;
SENATOR DEAN G. SKELOS; SENATOR MALCOLM A. SMITH; SENATOR
DANIEL L. SQUADRON; SENATOR WILLIAM T. STACHOWSKI; SENATOR TOBY
ANN STAVISKY; SENATOR ANDREA STEWART-COUSINS; SENATOR ANTOINE
M. THOMPSON; SENATOR DAVID J. VALESKY; SENATOR DALE M. VOLKER;
SENATOR GEORGE H. WINNER, JR.; and SENATOR CATHARINE YOUNG,
Respondents-Defendants.

FOR A JUDGMENT OF MANDAMUS PURSUANT TO CPLR ARTICLE 78 AND

FOR A DECLARATORY JUDGMENT PURSUANT TO CPLR § 3001.

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Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY

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OF SUFFOLK by his attorney, CHRISTINE MALAFI, Suffolk County Attorney, upon

information and belief, complaining of Respondents-Defendants, respectfully alleges as

follows:

1. Petitioner-Plaintiff is the duly elected COUNTY EXECUTIVE of the

COUNTY OF SUFFOLK, a municipal corporation formed under the laws of New York

State, and has principal offices at 100 Veterans Memorial Highway, Hauppauge, New

York.

2. Respondent-Defendant NEW YORK STATE SENATE was and still is a

constitutionally created legislative body of the State of New York, and is responsible for,

among other things, taking official action on behalf of the citizens of the State to propose,

review, consider and enact acts of legislation in accordance with the Constitution and

laws of the State of New York.

3. Each of the named Respondent-Defendant Senators is a duly elected

member of the NEW YORK STATE SENATE and is charged with the duties and

responsibilities of the Office of New York State Senator, in accordance with the

Constitution and laws of the State of New York.

AS AND FOR A FIRST CAUSE OF ACTION

4. The New York State Constitution, Article III, Section 9, provides that the

Senate shall choose a Temporary President.

5. On or about January 7, 2009 thirty two (32) senators elected SENATOR

MALCOLM SMITH the Temporary President and Majority Leader of the NEW YORK

STATE SENATE.

6. On or about June 8, 2009 thirty two (32) Senators voted to install

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SENATOR PEDRO ESPADA as Temporary President and SENATOR DEAN SKELOS

as Majority Leader of the NEW YORK STATE SENATE.

7. The validity of the action of the thirty two (32) Senators described in

paragraph No. 6, above is in dispute within and among the members of the NEW YORK

STATE SENATE.

8. The dispute over the validity of the action of the thirty two (32) Senators

described in paragraph No. 6, above has left the leadership of the NEW YORK STATE

SENATE in doubt and this uncertainty has caused the NEW YORK STATE SENATE to

cease to function and the individual members to cease fulfilling their duties and

responsibilities.

9. On June 30, 2009 the NEW YORK STATE SENATE passed some one

hundred twenty five (125) bills which David A. Paterson, Governor of the State of New

York, refuses to sign because of anticipated or potential objections to the validity of the

session.

10. Among the bills passed by the NEW YORK STATE SENATE on June 30,

2009 were non-controversial bills, including bills renewing taxing authority for local

governments.

11. Among the bills passed by the NEW YORK STATE SENATE on June 30,

2009 were two bills, whose delay directly injures and damages Petitioner-Plaintiff

STEVE LEVY, as COUNTY EXECUTIVE of the COUNTY OF SUFFOLK and the

taxpayers of the COUNTY OF SUFFOLK, to wit, S 5476, authorizing an increase in the

hotel-motel tax and extending the authorization to impose such taxes, and S 5488,

authorizing a surcharge on wireless communications service to fund the 911 emergency

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services.

12. The failure of the NEW YORK STATE SENATE to properly deliver the

aforesaid bills will cause a loss of revenue to the COUNTY OF SUFFOLK of

approximately eight million dollars ($8,000,000) per year.

13. It is axiomatic that there can not be two (2) elected Temporary Presidents

of the NEW YORK STATE SENATE and the Court must, therefore, determine which of

the elections described in paragraphs numbered 5 and 6, above, selected the lawful and

proper Temporary President of the NEW YORK STATE SENATE.

14. Time is of the essence, as Counties and local governments are currently

engaged in the process of crafting budgets and their ability to do so is being severely

impaired, to the point where municipalities are being forced to resort to employee layoffs

and program cuts as a result of the inaction of the NEW YORK STATE SENATE.

15. Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the

COUNTY OF SUFFOLK is entitled to a declaration identifying the lawful and proper

Temporary President and Majority Leader of the NEW YORK STATE SENATE in order

that the NEW YORK STATE SENATE may resume the work it is duty-bound to perform.

AS AND FOR A SECOND CAUSE OF ACTION

16. Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of the

COUNTY OF SUFFOLK repeats, reiterates and realleges each and every allegation

contained in paragraphs numbered 1 through 15 as though fully set forth herein.

17. It is the duty of the NEW YORK STATE SENATE to, inter alia, present to

the Governor such bills as shall have originated in the Senate and shall have been passed

by both houses, in accordance with Rule IV § 3 of the Rules of the NEW YORK STATE

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SENATE.

18. On or about May 26, 2009 the NEW YORK STATE SENATE passed Bill

No. S 4024 , which authorizes the COUNTY OF SUFFOLK to impose and collect a tax

in the amount of one per centum (1%) on sales of certain goods and services in the

COUNTY OF SUFFOLK.

19. The aforesaid Bill No. S 4024 (A 7335) was duly passed by the Assembly

on June 15, 2009.

20. The NEW YORK STATE SENATE has yet to present the aforesaid Bill

No. S 4024 to the Governor, as required by the Rules of the NEW YORK STATE

SENATE.

21. The duty of the NEW YORK STATE SENATE to present the aforesaid

Bill No. S 4024 to the Governor is a ministerial duty which does not involve the exercise

of any discretion.

22. The failure of the NEW YORK STATE SENATE to perform the duty

enjoined upon it by law has caused Petitioner-Plaintiff STEVE LEVY, as COUNTY

EXECUTIVE of the COUNTY OF SUFFOLK, to be aggrieved.

23. The failure of the NEW YORK STATE SENATE to perform the duty

enjoined upon it by law will cause Petitioner-Plaintiff STEVE LEVY, as COUNTY

EXECUTIVE of the COUNTY OF SUFFOLK to be damaged as a result of being

deprived of substantial revenue, of approximately three hundred million dollars

($300,000,000) per year, to the detriment of the taxpayers of the COUNTY OF

SUFFOLK.

24. That by virtue of the foregoing, Petitioner-Plaintiff STEVE LEVY, as

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COUNTY EXECUTIVE of the COUNTY OF SUFFOLK is entitled to a judgment

directing Respondent-Defendant NEW YORK STATE SENATE, to perform the duty

enjoined upon it by law, to wit, to present Bill No. S 4024 to the Governor in accordance

with the Rules of the NEW YORK STATE SENATE.

WHEREFORE, Petitioner-Plaintiff STEVE LEVY, as COUNTY EXECUTIVE of

the COUNTY OF SUFFOLK prays for a judgment:

1. Declaring, pursuant to CPLR § 3001, the rights and other legal relations of

the parties to the justiciable controversy presented, to wit, identifying the lawful and

proper Temporary President and Majority Leader of the NEW YORK STATE SENATE as

per the votes of January 7, 2009 and June 8, 2009, in order that the NEW YORK STATE

SENATE may resume the work it is duty-bound to perform.

2. Directing, pursuant to CPLR § 7803, Respondent-Defendant NEW YORK

STATE SENATE to perform the duty enjoined upon it by law, to wit, present Bill No. S

4024 to the Governor in accordance with the Rules of the NEW YORK STATE SENATE.

3. Awarding the costs and disbursements of this action.

Dated: Hauppauge, New York

July 6, 2009
Respectfully submitted,

CHRISTINE MALAFI
Suffolk County Attorney
Attorney for Petitioner-Plaintiff
Office & P.O. Address
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788-0099

By:
_____________________________
CHRISTINE MALAFI
County Attorney

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TO: NEW YORK STATE SENATE

SENATORS, above-named

ANGELO APONTE, as Secretary of the

NEW YORK STATE SENATE
THE CAPITOL
Albany, New York 12247