Boung Jae Jang v. Brown

• Decision Date: 17 September 1990
• Citation: 161 A.D.2d 49,560 N.Y.S.2d 307
• Parties: , 59 USLW 2214 In the Matter of BOUNG JAE JANG, etc., et al., Respondents, v. Lee BROWN, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 307

560 N.Y.S.2d 307

161 A.D.2d 49, 59 USLW 2214

In the Matter of BOUNG JAE JANG, etc., et al., Respondents, v. Lee BROWN, etc., et al., Appellants.

Supreme Court, Appellate Division Second Department.

Sept. 17, 1990.

Victor A. Kovner, Corp. Counsel, New York City (Doron Gopstein, Pamela Seider Dolgow, Grace Goodman, Bruce Rosenbaum and John Hogrogian of counsel), for appellants.

James G. Fennessey, Brooklyn (Richard A. Izzo, of counsel), for respondents.

Before BROWN, J.P., and KOOPER, HARWOOD and BALLETTA, JJ.

KOOPER, Justice.

The issue before us is whether the Supreme Court, within the context of a civil action, may direct the New York City Police Department to undertake measures intended to protect the interests of a party to the action. We conclude that the Supreme Court is empowered to issue such a directive and further determine that the Police Department must enforce the lawful order of the court. Accordingly, the judgment appealed from is affirmed.

I.

In January 1990 an altercation occurred in the Family Red Apple Co. grocery, owned by the petitioner Boung Jae Jang. A black woman claimed that she had been assaulted as she shopped. Shortly after the alleged altercation occurred, demonstrators from the surrounding neighborhood, the majority of whom were black, organized a vocal protest and boycott outside both the Family Red Apple Co. grocery and another Korean-owned fruit store, the Park Fruit and Vegetable Market. In the months that followed, the boycott often became volatile and racially charged in tone, resulting in several instances of violence, as the demonstrators, using bull horns and positioning themselves in close proximity to the store entrances, exhorted, and in certain instances, verbally abused shoppers, in order to dissuade them from patronizing the petitioners' establishments. Since the inception of the boycott, detachments of New York City police officers have been stationed at the site, although, according to the petitioners, their presence has failed to satisfactorily mitigate the intensity and racially-strident character of the protests or to prevent the protesters from effectively intimidating their clientele and damaging their businesses. Significantly, the identities of most of the demonstrators, who are purportedly affiliated with two loosely-knit, ad hoc, community organizations, remain largely unknown.

II.

In April 1990, the petitioners commenced an action in the Supreme Court, Kings County, to enjoin the demonstrators from continuing to congregate in the immediate vicinity of their businesses. By order dated May 10, 1990, the Supreme Court granted the petitioners' application for injunctive relief. In its decision, the court sought to balance "the constitutional rights of the [protestors] to congregate, rally and express their position and the constitutional rights of the [petitioners] to pursue their opportunity to engage in commerce and make a living for themselves and their families" and concluded that the demonstrators could permissibly continue their protest, but only from a distance of not less than 50 feet from the entrances of the two targeted grocery stores. The court's order also contained a provision directing the petitioners to serve a copy thereof upon the New York City Police Department and further directed the Police Department to enforce its provisions.

According to an affidavit submitted by Joseph P. Calzerano, the Commanding Officer of Patrol of Borough Brooklyn South of the New York City Police Department, upon receipt of the court's order dated May 10, 1990, the Police Department "immediately took steps [to] compl[y] with it". Specifically, Commander Calzerano advised the demonstration leaders that a location had been prepared in which the protest could continue in conformity with the May 10 order. The demonstrators, however, refused to comply with Commander Calzerano's request. In response, the Police Department apparently discontinued its efforts to enforce the order, opting instead to negotiate with the demonstrators in an attempt to convince them to moderate their activities.

Although Commander Calzerano's affidavit represents that the demonstrators largely acceded to his requests, the affidavits submitted by the petitioners contend otherwise. According to the petitioners, the intrusive nature of the demonstrators' activities continued unabated subsequent to the efforts expended by the police in attempting to negotiate with the protestors. The petitioners' attorney, who offered to submit videotapes in order to substantiate his assertions, described in his affirmation a series of events which allegedly transpired during June 1990. These activities included, according to the petitioners: (1) the constant presence of large numbers of boisterous protestors intimidating customers, (2) police in riot gear acting as a buffer between the protesters and the stores, (3) individuals utilizing bull horns, uttering obscenities and racial epithets directed at customers and the Korean proprietors of the stores, and (4) attempts by various demonstrators to harass the petitioners' employees.

III.

By order to show cause and petition dated June 4, 1990, the petitioners brought the present mandamus proceeding pursuant to CPLR article 78 to compel the Police Department to enforce the terms of the May 10, 1990, order. After oral argument, the Supreme Court granted the petitioners' application, and, by judgment dated June 26, 1990, directed the Police Department to implement its May 10 order.

On appeal, the appellants contend that the Supreme Court lacked jurisdiction to bind the Police Department, which was not a party to the underlying civil action between the petitioners and the demonstrators. They also claim that mandamus is unavailable because the Police Department has no ministerial duty to enforce court orders in civil actions between private parties in the absence of specific statutory authority, and because law enforcement is a matter exclusively committed to the discretion of the Police Department. The appellants further argue that: (1) an evidentiary hearing should have been conducted because disputed factual questions exist, (2) contempt proceedings should have been pursued before judgment in the mandamus proceeding was issued, (3) public safety and community relations concerns strongly militate against enforcing the May 10, 1990, order, and (4) tactical decisions regarding law enforcement are entrusted to the executive branch of City government, and are thus "non-justiciable" in character. We find the appellants' contentions unpersuasive.

IV.

As a threshold matter, we reject the appellants' assertion that, because the present controversy involves the exercise of authority generally reposed in the executive branch of city government, the matter must necessarily be regarded as "non-justiciable," thereby foreclosing the courts from taking action. It has been stated that " '[j]usticiability,' which ensures that the judiciary does not intrude upon or usurp the powers constitutionally allocated to the executive or the Legislature, holds that Judges should decide only 'judicially manageable questions' " (People v. Ohrenstein, 153 A.D.2d 342, 411, 549 N.Y.S.2d 962, quoting from Jones v. Beame, 45 N.Y.2d 402, 408, 408 N.Y.S.2d 449, 380 N.E.2d 277; see, Jiggetts v. Grinker, 75 N.Y.2d 411, 415, 554 N.Y.S.2d 92, 553 N.E.2d 570; McCain v. Koch, 70 N.Y.2d 109, 119, 517 N.Y.S.2d 918, 511 N.E.2d 62; Matter of New York State Inspector, Security & Law Enforcement Employees Dist. Counsel 82, AFSCME, AFL-CIO v. Cuomo, 64 N.Y.2d 233, 240, 485 N.Y.S.2d 719, 475 N.E.2d 90). It has also been observed that "merely because a case may have political overtones, involve public policy or implicate some seemingly internal affairs of the executive or legislative branches does not, however, render the matter non-justiciable" (see, People v. Ohrenstein, supra, 153 A.D.2d at 411, 549 N.Y.S.2d 962). Indeed, to avoid resolving questions of law merely because a case touches upon a political issue or involves acts of the executive would ultimately "undermine the function of the judiciary as a coequal branch of government" (Matter of Anderson v. Krupsak, 40 N.Y.2d 397, 404, 386 N.Y.S.2d 859, 353 N.E.2d 822). Here, unlike other cases in which broad policy concerns or political issues were at stake (see, e.g., Jones v. Beame, supra ), the controversy is both immediate and compelling, implicating the basic rights of a narrow class of affected individuals with respect to a specific factual incident. We find that, under these circumstances, the concept of justiciability does not constitute an obstacle to the court's exercise of jurisdiction.

V.

The Supreme Court possesses, in the first instance, the basic authority to grant the injunction which it issued in the case at bar. Significantly, "[t]here is no question that in a proper case [the] Supreme Court has power as a court of equity to grant a temporary injunction which mandates specific conduct by municipal agencies" ( McCain v. Koch, supra, 70 N.Y.2d at 116, 517 N.Y.S.2d 918, 511 N.E.2d 62). Here, the source of the Supreme Court's power to compel the police to act derives from its inherent authority to interpret the Constitution, which the Police Department is sworn to uphold, as well as from New York City Charter § 435(a), which specifically states that it "shall be [the] duty" of the Police Department "to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages and assemblages which obstruct the free passage of public streets, sidewalks * * * and places; protect the rights of persons and property [and] enforce and prevent the violation of all laws and ordinances in force in the city" (emphasis supplied). Indeed, the police play a "multifaceted" role in our democratic society, being "charged with the protection of...