Abrams v. New York City Transit Authority

• Decision Date: 08 July 1976
• Parties: , 355 N.E.2d 289 In the Matter of Robert ABRAMS, Individually and as Borough President of the Bronx and Member of the Board of Estimate, et al., Appellants, v. NEW YORK CITY TRANSIT AUTHORITY et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 235

387 N.Y.S.2d 235

39 N.Y.2d 990, 355 N.E.2d 289

In the Matter of Robert ABRAMS, Individually and as Borough

President of the Bronx and Member of the Board of

Estimate, et al., Appellants, v. NEW YORK CITY TRANSIT AUTHORITY et al., Respondents.

Court of Appeals of New York.

July 8, 1976.

David Schoenbrod and Marcia J. Cleveland, New York City, for appellants.

James P. McMahon, Stuart Riedel, Terrance J. Nolan, Brooklyn, and Nancy A. Serventi, New York City, for respondents.

MEMORANDUM.

Order of the Appellate Division, 48 A.D.2d 69, 368 N.Y.S.2d 165, affirmed, with costs.

Under the constantly broadening view in this State of standing to sue in order to redress illegality of official action, it may no longer be necessary to establish that plaintiffs suffer special harm as distinguished from that suffered by the public at large (see Boryszewski v. Brydges, 37 N.Y.2d 361, 363--364, 372 N.Y.S.2d 623, 334 N.E.2d 579; but cf. the more representative type of standing to sue in Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317, and National Organization for Women v. State Div. of Human Rights, 34 N.Y.2d 416, 358 N.Y.S.2d 124, 314 N.E.2d 867).

Yet it is one thing to have standing to correct clear illegality of official action and quite another to have standing in order to interpose litigating plaintiffs and the courts into the management and operation of public enterprises. Here questions of judgment, discretion, allocation of resources and priorities inappropriate for resolution in the judicial arena are lodged in a network of executive officials, administrative agencies and local legislative bodies. To allow such actions would in effect attempt displacement, or at least overview by the courts and the plaintiffs in litigations, of the lawful acts of appointive and elective officials charged with the management of the public enterprises.

True, the petition alleges certain violations of the applicable noise code. But the noise code provides for its application to rapid transit systems only after the adoption of standards (Administrative Code of City of New York, § 1403.3--5.07). The petition does not allege the adoption of such standards and respondents' uncontradicted submission states that none have been adopted. Hence, there are no specific illegal acts or omissions for which judicial correction may be sought.

More concretely, standing has been properly extended to permit an appropriate judicial proceeding to prevent an illegal disbursement or to compel a legally required disbursement of public funds. This extension has been made to prevent the erection of an impenetrable barrier to judicial review of unlawful official action. (See Boryszewski v. Brydges, 37 N.Y.2d 361, 364, 372 N.Y.S.2d 623, 334 N.E.2d 579, Supra.) Standing, however, has not and should not be extended to substitute judicial oversight for the discretionary management of public business by public officials. It is not sufficient that plaintiffs assert, and perhaps could prove, that they could do better than the appointive or elective officials charged with the responsibility of running the subways. The point is that neither the plaintiffs nor the courts have been lawfully charged with that responsibility.

The absurdity in this case is highlighted by the large number of public agencies directly concerned and involved in the management of New York City's subway system and the control of noise in its operation. It is with those agencies directly, not the judiciary, that members of the public must lodge their complaints. Of course, the ultimate public remedy against poor government management is at the voting machine. Neglect, inefficiency, and erroneous but reasonably made exercise of judgment fall short of illegality, correctible by the judicial branch of government.

COOKE, Judge (dissenting).

Petitioners include the Borough President of The Bronx, a State Senator, a New York City Councilman, the copresidents of a parents association of a public school and an environmental group. Except for the last mentioned, they bring this article 78 proceeding individually and under their respective official titles. Respondents are the New York City Transit Authority (hereinafter 'NYCTA') and the members thereof.

The petition asserts seven 'causes of action', the last of which relates to the Metropolitan Transportation Authority. Originally also named as respondents were the Metropolitan Transportation Authority and its members, but the notice of appeal to this court indicates that an appeal is not taken from that part of the Appellate Division order which affirmed dismissal of the proceeding against said authority.

In the first 'cause', it is alleged that the public rapid transit rail facility in the counties of the Bronx, Queens, New York and Kings within the City of New York, commonly known as the subway, is operated by NYCTA in violation of section 3.01 of the New York City Noise Control Code (Administrative Code, § 1403.3--3.01). Said section reads: 'No person shall make, continue or cause or permit to be made or continued any unnecessary noise.' 'Unnecessary noise', as defined in subdivision 22 of section 1.05 of the New York City Noise Control Code (Administrative Code, § 1403.3--1.05, subd. (zz)), means 'any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace, or safety of a person, or which causes injury to plant or animal life, or damage to property or business.' It is also asserted in substance and among other things: that said subway emits excessive and unusually loud noise; that the intensity of said noise exceeds that of comparable systems by more than 10 times; that although a 1931 report found the 'tremendous intensity' of said noise to be unhealthy, the subway now emits higher levels of noise than in 1931; that the noise inside a train cruising in a tunnel and on station platforms ranges from 95 to 105 dBA and often reaches levels over 115 dBA; that the subway exposes its riders and employees to noise levels in excess of those established y Federal and State authorities for the protection of workers; that the subway has about 240 route miles, above and below grade, served by about 720 miles of tracks, 480 stations and 7,000 cars; that it carries 3.9 million paying passengers each business day; that each rider is exposed to subway noise upon entering and leaving the station, waiting on station platforms and riding trains; that such noise induces temporary hearing loss in a substantial portion of riders and can induce permanent hearing loss after years of subway commuting; that such noise exposure also causes other physiological risks through activation of pituitary-adrenocortical stress response; that such exposure causes psychological stress, the symptoms of which include headaches, fatigue, nervousness, anxiety and social conflicts; that such exposure disturbs the comfort of the average person and interferes with speech; that there are adverse effects on the hearing and health of about 30,000 operating employees of the subway; that the eastern face of P.S. 98 looks onto an elevated subway track and that passing trains cause such loud and excessive noise within the classrooms near the eastern side of the building that instruction must cease, such interruptions taking place every four and a half minutes and occupying 11% Of the school day; that numerous residences, places of work and public areas near above-grade and above below-grade sections are exposed to subway noise and vibration which interfere with sleep and speech, deteriorate buildings, crack plaster and result in use of automobiles in contravention of the New York State Air Implementation Plan--Transportation Controls; and that various economical methods exist to lessen subway noise, same being employed widely elsewhere by other mass transit systems.

The second 'cause' alleges that NYCTA is subject to Part 49 of the Industrial Code (12 NYCRR Part 42) and that said subway is operated in a manner which causes exposure above the permissible limits of section 49.6 of the Industrial Code. Subdivision (d) of said section (12 NYCRR 49.6(d)) provides that '(e) xposure of the ear to continuous noise shall not exceed 115 dBA'. It also sets forth a table of permissible exposures to continuous noise, one item of which is a duration of 1/4 hour or less per day for a sound level of 115 dBA.

The third 'cause' charges an operation and maintenance of the subway in a manner causing noise and vibration so as to fail to provide reasonable and adequate protection to persons employed in or frequenting the subway in violation of subdivision 1 of section 200 of the Labor Law. Said subdivision provides: 'All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.'

The fourth 'cause' alleges the maintenance of a public nuisance based on the unreasonable level of subway noise and the substantial interference with rights more specifically alleged. The fifth asserts that the maintenance of the nuisance is due to the negligence of respondents and their failure to take...