Burns Jackson Miller Summit & Spitzer v. Lindner

Decision Date16 June 1983
Docket NumberNo. 2,No. 1,1,2
Citation59 N.Y.2d 314,464 N.Y.S.2d 712
CourtNew York Court of Appeals Court of Appeals
Parties, 451 N.E.2d 459, 115 L.R.R.M. (BNA) 3454 BURNS JACKSON MILLER SUMMIT & SPITZER, Individually and on Behalf of All Others Similarly Situated, Appellant, v. William LINDNER et al., Respondents. (Action) JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Appellant, v. LOCAL 100, TRANSPORT WORKERS UNION OF AMERICA, et al., Respondents. (Action)

MEYER, Judge.

The Taylor Law proscription against strikes by public employees neither preempts the right of persons injured by an unlawful strike to sue for damages nor provides a private right to sue for violation of its provisions. The causes of action pleaded by plaintiffs are, however, either not recognized under New York law or as pleaded do not sufficiently state a cause of action. The order of the Appellate Division, 88 A.D.2d 50, 452 N.Y.S.2d 80, should, therefore, be affirmed, with costs.


This appeal involves separate action by two New York City law firms to recover damages resulting from the April, 1980 transit strike. The first, begun in Queens County by Burns Jackson Miller Summit & Spitzer ("Burns Jackson"), is a class action 1 against the Transport Workers Union of America, AFL-CIO (TWU), the Amalgamated Transit Union, AFL-CIO (ATU) Local 100 of TWU, Locals 726 and 1056 of ATU and their respective officers. It alleges that the strike was intentional and in violation of both section 210 of the Civil Service Law 2 and of a preliminary injunction issued March 31, 1980 by the Supreme Court and seeks damages of $50,000,000 per day for each day of the strike. The complaint sets forth two causes of action: prima facie tort and public nuisance.

The second action, begun in New York County by Jackson, Lewis, Schnitzler and Krupman ("Jackson, Lewis"), likewise alleges an intentional strike in violation of the statute and preliminary injunction. It was, however, brought only against the TWU and its Local 100, and officers of both, sought but $25,000 in damages, and did not ask class action status. It declared on six causes of action: for violation of the Taylor Law, prima facie tort, intentional interference with plaintiff's business, willful injury, conspiracy and breach of plaintiff's rights as third-party beneficiary of the contract between defendant unions and the New York City Transit Authority (NYCTA) and the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA).

By stipulation the New York County action was removed to Queens and joined with the Queens action for trial. Thereafter defendants moved pursuant to CPLR 3211 (subd. par. 7) to dismiss both actions for failure to state a cause of action. Special Term denied the motions, except as to the Jackson, Lewis contract cause of action (108 Misc.2d 458, 437 N.Y.S.2d 895). On cross appeals to the Appellate Division, that court, in an extensive opinion, modified the order appealed from to dismiss both complaints in their entirety (88 A.D.2d 50, 452 N.Y.S.2d 80). Both plaintiffs appeal to us as of right (CPLR 5601, subd. ). 3 We conclude (1) that the Taylor Law was neither intended to proscribe private damage actions by persons caused injury by a strike by public employees nor to establish a new private right of action for such damages, and (2) that the complaints fail to state a cause of action for (a) prima facie tort, (b) public nuisance, (c) intentional interference with business, or (d) breach of plaintiffs' rights as third-party beneficiary of defendants' contracts with NYCTA or MABSTOA. 4 We, therefore, affirm.


The effect of the Taylor Law, whether as preemptive of previously permissible private damage actions or as initiating a new form of private action for damages resulting from a strike in violation of its provisions, turns on what the Legislature intended. The general rule is and long has been that "when the common law gives a remedy, and another remedy is provided by statute, the latter is cumulative, unless made exclusive by the statute" (Candee v. Hayward, 37 N.Y. 653, 656; accord Hardmann v. Bowen, 39 N.Y. 196, 198; Jordan & Skaneateles Plankroad Co. v. Morley, 23 N.Y. 552, 554; Wetmore v. Tracy, 14 Wend. 250, 255). Likewise, as we noted in Amberg v. Kinley, 214 N.Y. 531, 535-536, 108 N.E. 830: "Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense 'must to a great extent depend on the purview of the legislature in the particular statute and the language which they have there employed.' (Atkinson v. New Castle & Gateshead W.W. Co., L.R. 441; Taylor v. L.S. & M.S. Ry. Co., 45 Mich. 74 (See, also, Abounader v. Strohmeyer & Arpe Co., 243 N.Y. 458, 463-464, 154 N.E. 309; Daggett v. Keshner, 284 App.Div. 733, 738, 134 N.Y.S.2d 524, mod. on other grounds 6 A.D.2d 503, 179 N.Y.S.2d 428, affd. 7 N.Y.2d 981, 199 N.Y.S.2d 41, 166 N.E.2d 324.)

The far better course is for the Legislature to specify in the statute itself whether its provisions are exclusive and, if not, whether private litigants are intended to have a cause of action for violation of those provisions. Absent explicit legislative direction, however, it is for the courts to determine, in light of those provisions, particularly those relating to sanctions and enforcement, and their legislative history, and of existing common-law and statutory remedies, with which legislative familiarity is presumed, what the Legislature intended (see Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 374-383, 102 S.Ct. 1825, 1837-41, 72 L.Ed.2d 182; Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435). Whether a private cause of action was intended will turn in the first instance on whether the plaintiff is "one of the class for whose especial benefit the statute was enacted" (Motyka v. City of Amsterdam, 15 N.Y.2d 134, 139, 256 N.Y.S.2d 595, 204 N.E.2d 635; Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26; Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874). But the inquiry does not, as plaintiffs suggest, end there, for to do so would consider but one of the factors involved in the Legislature's determination. Important also are what indications there are in the statute or its legislative history of an intent to create (or conversely to deny) such a remedy and, most importantly, the consistency of doing so with the purposes underlying the legislative scheme (Cort v. Ash, supra, 422 U.S. at p. 78, 95 S.Ct. at p. 2087; accord Middlesex County Sewerage Auth. v. National Sea Clammers Assn., supra, 453 U.S. at p. 17, 101 S.Ct. at p. 2624; Piper v. Chris-Craft Inds., 430 U.S. 1, 37-40, 97 S.Ct. 926, 947-49, 51 L.Ed.2d 124; see Restatement, Torts 2d, § 847A, Comment i; Note, Private Damage Actions Against Public Sector Unions For Illegal Strikes, 91 Harv.L.Rev. 1309, 1318 McMahon & Rodos, Judicial Implication of Private Causes of Action: Reappraisal and Retrenchment, 80 Dickinson L.Rev. 167).

Analysis begins, of course, with the statute itself. It contains no explicit statement as to either exclusivity or intent to create a private cause of action. Examination of the history and genesis of the Taylor Law leads us to conclude, however, that it is cumulative, not exclusive, and was not intended to establish a new cause of action.

New York's first statutory proscription against strikes by public employees was the Condon-Wadlin Act, passed in 1947 as a result of a strike by public school teachers in Buffalo (L.1947, ch. 391; Civil Service Law, former § 108). It punished violation by automatic termination, and imposed severe restrictions on re-employment, precluding salary increases for a re-employed striker for three years and requiring that the re-employed person be treated as probationary for five years (Wolk, Public Employee Strikes--A Survey of the Condon-Wadlin Acts, 13 N.Y.L. Forum 69, 70-71 ). Although held constitutional (Matter of Di Maggio v. Brown, 19 N.Y.2d 283, 279 N.Y.S.2d 161, 225 N.E.2d 871), the harshness of its penalties resulted in their being enforced but twice over a period of 20 years (id., at p. 289, 279 N.Y.S.2d 161, 225 N.E.2d 871), and in widespread criticism and agitation for revision (Wolk, op. cit., p. 72; Hanslowe, 1965 Survey of N.Y. Law-Labor Relations Law, 17 Syracuse L.Rev. 183, 186 ). The Joint Legislative Committee on Industrial and Labor Conditions in its 1962 report proposed to replace the act, but that proposal failed of adoption and the 1963 Legislature simply adopted ameliorative amendments (Hanslowe 1965, pp. 186-187)...

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