Burns Jackson Miller Summit & Spitzer v. Lindner
| Decision Date | 06 July 1982 |
| Docket Number | No. 1,No. 2,1,2 |
| Citation | 452 N.Y.S.2d 80,88 A.D.2d 50 |
| Court | New York Supreme Court — Appellate Division |
| Parties | , 115 L.R.R.M. (BNA) 3393 BURNS JACKSON MILLER SUMMIT & SPITZER etc., Respondent, v. William LINDNER et al., Appellants. (Action) JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Respondent-Appellant, v. LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA et al., Appellants-Respondents. (Action) |
Reilly, Fleming & Reilly, New York City (Joseph T. Gatti and Paul G. Reilly, Jr., New York City, of counsel), for appellants Amalgamated Transit Union, AFL-CIO and George Link.
Stephen D. Hans, Flushing (Allan Wollin, Flushing, and Leonard B. Isaacs, Springfield
Garden, of counsel), for appellants Amalgamated Transit Union Locals 726 & 1056.
O'Donnell & Schwartz, New York City (Asher W. Schwartz and Malcolm A. Goldstein, New York City, of counsel), and Bredhoff & Kaiser, Washington, D. C. (Julia Penny Clark, Michael H. Gottesman and David M. Silberman, Washington, D. C., of counsel), for TWU appellants-respondents (one brief filed).
Burns Jackson Summit Rovin Spitzer & Feldesman, New York City (Stuart A. Summit, Guy R. Fairstein and Richard A. Zansitis, New York City, of counsel), respondent pro se.
Jackson, Lewis, Schnitzler & Krupman, New York City (Anthony H. Atlas and Andrew A. Peterson, New York City, of counsel), respondent-appellant pro se.
Mid-Atlantic Legal Foundation, Inc. Consumer Alert, John P. McGloine and David Bustamonte, New York City (John G. Collins, New York City, of counsel), amici curiae.
Boyle, Vogeler & Tierman, New York City (Roger Boyle, New York City, of counsel), Susan E. Waite, and David Crump, Houston, Tex., for The Legal Foundation of America, amicus curiae (one brief filed).
Colleran, O'Hara, Kennedy & Mills, P. C., Garden City (Richard L. O'Hara, Robert A. Kennedy, Victoria Quesada and Vincent F. O'Hara, Garden City, of counsel), for New York State, AFL-CIO, amicus curiae.
Beverly Gross, New York City (Harold L. Fisher, Murray Gordon, William H. Frappollo, Ann Hoffman, Nancy Hoffman, James R. Sandner and David Stein, New York City, of counsel), for Municipal Labor Committee, amicus curiae.
Before MOLLEN, P. J., and WEINSTEIN, GULOTTA and THOMPSON, JJ.
These consolidated actions against the Transport Workers Union of America, AFL-CIO (TWU) and the Amalgamated Transit Union, AFL-CIO (ATU) their affiliated locals and their respective officials were brought in the aftermath of the 1980 transit strike.
The complaint in action number one, brought by the law firm of Burns, Jackson, Miller, Summit and Spitzer on behalf of themselves and all other professional and business entities similarly situated, 1 sets forth two causes of action, the first of which sounds in prima facie tort, and the second of which is predicated on public nuisance. The first cause of action alleges that at or about 12:01 A.M. on April 1, 1980, the local unions and their members willfully and maliciously engaged in an illegal strike against their respective public employers, and that the other named defendants, also acting willfully and maliciously, caused, instigated, encouraged and condoned the said strike. The strike was alleged to be in violation of both section 210 of the Civil Service Law and a preliminary injunction issued on March 31, 1980 by the Supreme Court, Kings County, of which the defendants had knowledge, and was undertaken for the purpose of causing economic damage to the plaintiff (and other class members) of so great a magnitude that the authorities and other governmental officials "would act to terminate it". It was further alleged that the strike did, in fact, cause the plaintiff (and other class members) economic damage by causing them to "expend substantial sums of money merely to remain able to practice their professions and to operate their businesses in the face of the disruption intentionally inflicted upon them by the defendants as a foreseeable consequence of their illegal actions". The strike also allegedly caused the plaintiff (and other class members) to suffer economic injury in the form of lost profits which they would otherwise have realized. Damages to class members including the plaintiff, allegedly exceeded $50,000,000 a day for each day of the strike.
The second cause of action sounds in public nuisance, and alleges that the defendants instigated and engaged in the underlying strike intending to cause and causing widespread economic dislocation and damage to and substantial interference with, the public health, safety, comfort and convenience of persons within the New York City metropolitan area, thereby creating a nuisance. In addition to the general economic dislocation and damage to the public health, safety, comfort and convenience, plaintiff and other class members also allegedly suffered additional damages resulting from the necessity of incurring large out-of-pocket expenses merely to remain able to continue to practice their professions and operate their businesses during the pendency of the strike, as well as loss of substantial profits during its duration. Damages under the second cause of action were also alleged to have exceeded $50,000,000 a day.
Action No. 2 was commenced in New York County by a second law firm, Jackson, Lewis, Schnitzler and Krupman, and alleges six causes of action, the first of which asserts a "private" right of action arising out of the defendants' violation of the Taylor Law and Justice MONTELEONE's injunction. Thus, the amended complaint alleges that the purpose of these prohibitions included the protection of the public, including the plaintiff, from losses and damages resulting from public employee strikes, and claims individual damages (on a beneficiary-type theory) of $25,000 for strike-related losses.
The second cause of action sounds in prima facie tort, and alleges that the defendants willfully, intentionally, maliciously and without justification engaged in the illegal strike and, as a foreseeable result thereof, inflicted economic and financial damage upon the plaintiff during its pendency. No particular dollar amount of damages was alleged in this cause of action.
The fifth cause of action is somewhat similar to the first and alleges a tortious conspiracy to violate the Taylor Law. In it, the plaintiff requests general and special damages in the amount of $25,000, as well as general and punitive damages in an unspecified amount.
The sixth and final cause of action sounds in breach of contract, and is predicated on the underlying collective bargaining agreements of which the plaintiff maintains it is a third-party beneficiary. The amended complaint alleges special damages in the amount of $25,000 as a result of this breach.
By notice of motion dated July 3, 1980 several of the codefendants in action number one moved to dismiss the complaint in that action due to the plaintiff's alleged failure to state a cause of action. During the pendency of that motion, all of the parties to both actions entered into a written stipulation to consolidate the two actions in the Supreme Court, Queens County, upon certain terms and conditions, and by order dated August 6, 1980, the Supreme Court, Queens County (RODELL, J.), approved the consolidation. Pursuant to the stipulation, the July 3 motion to dismiss was deemed to be directed against the complaints in both actions, and not long thereafter, the remaining (i.e., nonmoving) defendants, the Amalgamated Transit Union and George Link, also moved to dismiss. Unfortunately, none of the papers in support of either of these motions has been included in the record on appeal, which does, however, contain the opposition papers of Thomas C. Greble, Esq. of Jackson, Lewis, Schnitzler & Krupman.
In his affidavit, Greble recounts the history of the actions, and then goes on to assert that the two complaints state different, although concededly related, causes of action. The amended complaint in action number two, however, names as defendants only the TWU and its officers, as the plaintiff therein decided to focus upon this union because of its "historical militancy and strike orientation, * * * unusual provisions in its collectively negotiated agreement, and its unique position to cause financial harm and loss to third parties by shutting down New York City's public transit system". Greble then outlined the TWU's participation in other illegal strikes (notably, the 1966 transit strike), its subsequent threats to strike, its recent participation in the underlying (1980) strike, its open defiance of a court-ordered injunction, its apparent intransigence in the face of a $750,000 fine and its well-known, publicly-announced policy of "no contract, no work". In addition, Greble noted that the TWU's collective bargaining agreement contains a specific "no-strike" provision, as well as more general language in its declaration of purpose which recognizes its obligation to provide uninterrupted service:
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