Caso v. Gotbaum
| Decision Date | 05 August 1971 |
| Docket Number | AFL-CIO |
| Citation | 67 Misc.2d 205,323 N.Y.S.2d 742 |
| Parties | , 78 L.R.R.M. (BNA) 2174, 3 ERC 1061, 1972 A.M.C. 1374, 66 Lab.Cas. P 52,638 Ralph G. CASCO, individually and as County Executive of the County of Nassau et al., Plaintiffs, v. Victor GOTBAUM, individually and as Executive Director of District Council 37, American Federation of State, County and Municipal Employees,, andBarry Feinstein, individually and as President of Local 237, InternationalBrotherhood ofTeamsters, Defendants. |
| Court | New York Supreme Court |
Joseph Jaspan, County Atty., Nassau County, Mineola, for plaintiffs.
Julius Topol, New York City, for defendant Gotbaum.
Grossman, Waleck & Cartafalsa, Forest Hills, for defendant Feinstein.
Surrounded by walls of precedent, and moated by centuries of channelized thinking, the law can easily suppress newness and find itself critically apart from the social amalgam which is its very reason for existence. And, the risk of analyzing fine points in isolation is the loss of total fairness and justice in the sense it is understood by the society to be served. Such are the dangers in the case at hand.
The dispute here arises as a result of work stoppages affecting sewage treatment and garbage disposal in New York City instigated during June 1971. Nassau County, as well as the County Executive of Nassau County, and the Supervisors of the Towns of North Hempstead and Oyster Bay, in their individual and official capacities, sued the Executive Director of District Council 37, American Federation of State, County and Municipal Employees and the President of Local 237, International Brotherhood of Teamsters in their individual and representative capacities. The public officials (including Nassau County) charged the union leaders with conspiring and causing unlawful acts of work stoppage and coercion at City pollution control plants, pumping stations and yards, which resulted in contaminating the waters of Long Island Sound off the North Shore of the two involved towns. In their main complaint, the public officials ask for a permanent injunction against the union officials repeating their conduct, compensatory damages of $1,000,000 and punitive damages of $5,000,000. While this main action is pending, the public officials, by motion, have asked this Court for a preliminary injunction against the union officials, and also permitted to examine these officials right away in preparation for an injunction hearing.
The union leaders have so far responded by moving to dismiss the complaint, essentially on the grounds that the complained of conduct is over, that the public officials have no right to be suing them, and that no damage has been demonstrated.
In sum, the main action for permanent injunction and damages is not yet ready for trial and its trial is not before this Court. All that is before this Court at this time are these four motions:
(a) The public officials' motion for a preliminary injunction;
(b) The public officials' motion to examine the union leaders now;
(c) The District Council 37 leader's motion to dismiss the public officials' complaint; and
(d) The Teamster leader's motion to dismiss the public officials' complaint.
For purposes of clarity, these problems will be treated in topical sequence. I. Denial of Public Officials' Motion for Preliminary Injunction
Even if the public officials' complaint states a good cause of action for permanent injunctive relief, it does not necessarily entitle them to a preliminary injunction.
A preliminary injunction is a serious thing to ask, particularly here, where it asks substantially the grant of the relief sought before the trial on the merits. Accordingly, such injunctions are granted sparingly.
The primary purpose of preliminary injunctive relief is to retain the Status quo until the merits of the action may be decided. Walker Memorial Baptist Church v. Saunders, 285 N.Y. 462, 474, 35 N.E.2d 42, 47. There is presently in effect a preliminary injunction, similar in effect to the one requested here, issued by the Supreme Court in New York County at the instance of the City of New York in a separate proceeding. Until there is some tangible indication that this injunction is not sufficiently protective, the public officials' request here is redundant and moot. Moreover, no adequate showing has been made that the acts which the public officials complain about are likely to occur before the trial. See, CPLR 6301.
With prompt prosecution the trial of the main action should be shortly reached.
II. Motion for Examination Before Trial
The Court will also deny the County's motion to conduct an early examination before trial.
The public officials attempt to advance their normal opportunity to examine by arguing for special need to prepare for a preliminary injunction hearing. However, since the preliminary injunction is denied, there remains no showing of any reason why the examination is necessary prior to the usual course of such discovery proceedings.
The interests of the plaintiffs will be fully protected by the examination available to them following service of defendants' answers to the complaint, which should shortly follow in view of the subsequent text.
III. Denial of the Union Leaders' Motions to Dismiss the Public Officials' Complaint
The essence of the matter is in the motions to dismiss the complaint. They test, point by point, the legal basis for the public officials' action. It is here that the legal parts may be less than the social whole.
When a party moves to dismiss a complaint, he concedes (for purposes of his motion) every fact pleaded in that complaint and every inference of fact which may be drawn from it. He seeks to win on the inevitable legal result of those facts most favorable to his opponent. Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 407, 236 N.E.2d 634, 636; Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818. In short, he says 'Assuming what you say is true, what of it?'.
This is important to recognize, since a party can lose a motion to dismiss a complaint, but win handily upon actual trial of the matters raised in that complaint. It all depends on the proof and the facts actually established at trial.
For purpose of those motions then, the union leaders seek to win on the following necessary assumptions:
1. They conspired with others, used intimidation, and with malice, caused raw sewage to be poured into tidal waters;
2. They did this to pressure the New York State legislature, and to injure those using the waters or living in proximity to them;
3. The waters were polluted and the ecological balances harmed as a result of their deliberate acts;
4. At least the expense of testing and patrolling the waters was occasioned to the County and Towns.
While these may not be the ultimate facts proven at the trial, the union officials claim on their motions to dismiss that they should win as a matter of law even if those are the facts. The Court disagrees.
The union leaders, in a well-reasoned attack, would pick their way through to success on a series of ripostes to arguments thrust forth by the public officials. They essentially argue four legal grounds:
1. The Taylor Law, dealing with strikes by municipal employees;
3. Navigation Law, § 33; and
4. The Common Law.
Each of these will be dealt with separately.
The complaint alleges that the public officials have instituted this action 'as taxpayers pursuant to Civil Service Law, § 210, subd. 4 and pursuant to the other applicable statutes pertaining hereto'. Despite the claim of legal grounds under the Taylor Law (Civil Service Law, § 200 Et seq.), which is reiterated by the public officials in an affidavit submitted in support of this motion, the public officials concede, at page 17 of their reply memorandum, that:
'they have no standing to sue under the Taylor Act for the simple reason that Nassau County, not being the employer of the striking unions' New York City employees, is not a proper party'.
This admission is in accord with the provisions of the Taylor Law which provide a remedy against unlawful strikes of public employees only to the 'government involved'. Civil Service Law, § 211. Moreover, New York City, the involved employer, did sue.
Public Health Law, § 1150(1) says:
'No person, corporation or municipality, shall place or cause to be placed, or discharged or cause to be discharged into any of the waters of the State, in quantities injurious to the public health, any sewage, garbage, offal, or any decomposable or putrescible matter of any kind or the effluent from any sewage disposal plant * * * or any refuse or waste matter * * * from any sewer or drainage system * * *'.
The statute is enforceable by the Board of Health and the State Commissioner of Health. The public officials assert that those bodies are not intended to be the sole enforcers, but even that argument must fail, for the right to maintain civil actions for violations is expressly limited to cities and villages. Public Health Law, § 1157.
In Navigation Law, § 33, the State had decreed that:
.
The statute vests enforcement rights in the District Attorney of the county where the offense was committed or exists. Clearly, this statute is penal in nature. The public officials argue, however, that it also confers a civil right of action.
The...
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