Chain Locations of America, Inc. v. East Hudson Parkway A.

• Decision Date: 26 May 1967
• Docket Number: No. 66 Civ. 3790.,66 Civ. 3790.
• Citation: 280 F. Supp. 396
• Parties: CHAIN LOCATIONS OF AMERICA, INC., Plaintiff, v. EAST HUDSON PARKWAY AUTHORITY and J. Burch Mc Morran, Superintendent of Public Works, State of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

280 F. Supp. 396

CHAIN LOCATIONS OF AMERICA, INC., Plaintiff, v. EAST HUDSON PARKWAY AUTHORITY and J. Burch Mc Morran, Superintendent of Public Works, State of New York, Defendants.

No. 66 Civ. 3790.

United States District Court S. D. New York.

May 26, 1967.

Norman S. Isko, Yonkers, N. Y., for plaintiff.

Louis J. Lefkowitz, Atty. Gen. of State of New York, by Julius L. Sackman, Albany, N. Y., Barry Mahoney, New York City, for defendants.

MOTLEY, District Judge.

Memorandum Opinion On Motion for Preliminary Injunction

Plaintiff has moved for an order pursuant to Rule 65, Fed.R.Civ.P. restraining defendants, during the pendency of this action from the following:

a) Changing the status quo now existing between the parties with respect to any and all of plaintiff's property or property rights, by interfering with or depriving plaintiff of the same by appropriation or otherwise; and

b) Interfering with plaintiff's lawful conduct of its business and use of its property, including but not limited to its property located along the westerly side of the Saw Mill River Parkway near the village of Dobbs Ferry and the village of Hastings on Hudson in the County of Westchester, State of New York, and use of its rights of egress and ingress over Ogden Avenue between said property and the Saw Mill River Parkway.

Plaintiff alleges that if such relief is not granted and if defendants commit these acts during the pendency of this action, it will suffer immediate and irreparable injury. Plaintiff's cause of action by its amended complaint seeks the following relief:

a) A permanent injunction seeking to enjoin defendants, their agents, servants, and employees from:

1. Appropriating plaintiff's easement rights at its Dobbs Ferry location;

2. Interfering with plaintiff's quiet enjoyment and exploitation of its property rights at its Dobbs Ferry location;

3. Interfering with plaintiff's improvement of its access way to and from the Parkway pursuant to plans and specifications already approved by the East Hudson Parkway Authority; and

b) If the appropriation of plaintiff's easement rights has become final, a judgment requiring defendants to convey back to plaintiff the said easement rights;

c) Money damages against the East Hudson Parkway Authority in an amount in excess of $500,000; and

d) Other and further relief as may seem proper.

Defendants filed a motion on December 6, 1966, seeking an order pursuant to Rule 12, Fed.R.Civ.P., dismissing the complaint on the grounds that it failed to state a claim against the defendants upon which relief could be granted and that this court lacked jurisdiction over the subject matter because the judgment dated and entered December 13, 1965 in the matter of Chain Locations of America, Inc. v. East Hudson Parkway Authority, and J. Burch Mc Morran, Superintendent of Public Works, State of New York, on the decision of the Supreme Court, Westchester County (Dillon, J.), dated December 1, 1965 (unreported), aff'd 26 A.D.2d 772, 272 N.Y.S.2d 998 (1966), appeal dismissed, 18 N.Y.S.2d 751 (1966), was res judicata as to this action.

Plaintiff, after the filing of the motion, on December 19, 1966, filed its amended complaint. Defendants' motion to dismiss the original complaint was on the Calendar on December 20, 1966. It was stipulated in open court that the amended complaint be deemed substituted for the original complaint and that the motion to dismiss be deemed addressed to the amended complaint. Argument of the motion was adjourned to January 24, 1967. On that date, Judge Edelstein of this court, following argument, denied the motion.

On January 19, by Order to Show Cause, plaintiff sought to have heard on January 24, its motion for preliminary injunction. The order was, however, withdrawn. On January 26, plaintiff filed its application for a preliminary injunction. Argument was heard by this court on February 14, 1967.

On January 11, 1967, plaintiff had filed a demand for answers to interrogatories served on defendants by mail two days earlier. On January 13, defendants filed a motion seeking an order pursuant to Rule 33, Fed.R.Civ.P., enlarging the time of the defendants to object to or answer plaintiff's interrogatories for a reasonable period after the final denial of defendants' motion to dismiss. Additionally, defendants moved for such other, further and different relief as to the court may seem just and proper. Argument on defendants' motions was also heard on February 14, 1967. On January 31, 1967, defendants requested that a three-judge court be convened pursuant to 28 U.S.C. § 2281 to hear and determine this matter.

On March 8, 1967, defendants filed an answer to the amended complaint. Plaintiff moved to strike from that answer certain affirmative defenses on the ground that Judge Edelstein's denial of defendants' motion to dismiss determined those defenses raised by motion and said decision is the law of this case. Among these affirmative defenses is the plea in bar of res judicata.

Jurisdiction is here predicated solely upon 28 U.S.C. § 1331, plaintiff alleging violation of rights secured to it by the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution and alleging that the value of his property involved in this dispute exceeds $150,000.00.

In deciding whether plaintiff is entitled to an injunction, pendente lite, the court must review the entire record before it to determine whether an injunction is justified. This court is not at liberty to ignore that which a thorough examination of the record discloses is a legal bar to the relief requested. Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1947); Consolidated Freightways, Inc. v. Railroad Commission of Cal., 36 F.Supp. 269 (N.D.Cal. 1941). Here, the record reveals that the identical claim, unlawful taking of plaintiff's property and unlawful interference with plaintiff's property rights, already has been presented by this plaintiff against these same defendants in the state court and that that court has entered a final judgment on the plaintiff's claim. A reading of the original complaint makes this clear. The amended complaint failed in its effort to state a new claim.

The first question with which this court must deal is whether Judge Edelstein's denial of the motion to dismiss has become "the law of the case," and must be accepted thereafter without re-examination. "The law of the case" doctrine is a formerly strictly adhered to rule of practice of the courts. Commercial Union of America, Inc. v. Anglo-South American Bank, Ltd., 10 F.2d 937 (2d Cir. 1925). The doctrine provides that "Judges of co-ordinate jurisdiction, sitting in the same court and in the same case, should not overrule the decisions of each other," Id. at 941. It is "a rule of practice based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter." United States v. United States Smelting, Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 94 L.Ed. 750 (1950).

In the case of Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131 (2d Cir. 1956), appeal dismissed, 352 U.S. 883, 77 S.Ct. 104, 1 L.Ed.2d 82 (1956), the Second Circuit specifically overruled so much of its holding in Commercial Union of America, Inc. v. Anglo-South American Bank, Ltd., supra, as made the rule of "the law of the case" mandatory on the judges of this court. In Dictograph Products Co. v. Sonotone Corp., supra, 230 F.2d at 136, the court said, "So far therefore as our original opinion must be read as meaning that the question is not one of discretion, and that on no occasion may the second judge reconsider a ruling of the first judge, we now overrule it." It was made clear that "there is no imperative duty to follow the earlier ruling — only the desirability that suitors shall, so far as possible, have reliable guidance how to conduct their affairs." Id. at 135.

In Bertha Building Corp. v. National Theatres Corp., 269 F.2d 785, 787 (2d Cir. 1959), cert. denied 361 U.S. 960, 80 S.Ct. 585, 4 L.Ed.2d 542 (1960), the Second Circuit further confirmed the position it had taken in the Dictograph Products Company case stating that "even when an issue has been decided by a district judge, another judge of the same court may nevertheless come to a different conclusion." Accord, Goldstein v. Doft, 236 F.Supp. 730 (S.D.N.Y.1964), aff'd, 353 F.2d 484 (2d Cir. 1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1226, 16 L.Ed.2d 302 (1966).¹

This court concludes, therefor, that Judge Edelstein's adverse ruling on defendants' motion to dismiss does not bar redetermination of the issue by this court on the plaintiff's motion for preliminary injunction. Reconsideration of defendants' motion is desirable since if the defense is valid it would obviate a long and expensive trial. Goldstein v. Doft, supra, 236 F.Supp. at 731. This court will exercise its discretion and reconsider defendants' motion to dismiss on the ground that plaintiff's cause of action is barred by the doctrine of res judicata.

The history of plaintiff's present cause of action is as follows:

On or about July 15, 1954, the plaintiff purchased a parcel of property situated along the westerly side of the Saw Mill River Parkway near the villages of Dobbs Ferry and Hastings on Hudson in the County of Westchester, State of New York. As part of the purchase there was conveyed to plaintiff by the seller (The Children's Village) two easements running with the land which afforded any owner of the property direct access to and from the Parkway from the property. Running across the northerly side of the property and into the Parkway was a street named Ogden Avenue which had been used by the property owners as the route of access between the property and the Parkway. Following plaintiff's purchase of the property it attempted to construct certain improvements. In order to facilitate obtaining permission to and...