Cullen v. Margiotta

• Decision Date: 18 February 1975
• Parties: Lorraine C. CULLEN et al., Plaintiffs, v. Joseph F. MARGIOTTA, Individually, and as County Leader Nassau County Republican Committee, et al., Defendants.
• Court: New York Supreme Court

Page 638

367 N.Y.S.2d 638

81 Misc.2d 809

Lorraine C. CULLEN et al., Plaintiffs, v. Joseph F. MARGIOTTA, Individually, and as County Leader

Nassau County Republican Committee, et al., Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Feb. 18, 1975.

Murray Rudman, New York City, for plaintiffs.

Carlino, Pearsall & Soviero, Mineola, for defendant Caso.

Pratt, Caemmerer & Cleary, Williston Park, for defendant Margiotta.

John F. O'Shaughnessy, County Atty. of Nassau County, Mineola, for defendant Ralph G. Caso as County Executive, defendant County of Nassau, and defendant Civil Service Comm. of County of Nassau.

Louis J. Lefkowitz, Atty. Gen., New York City, for defendant New York State Civil Service Comm.

MEMORANDUM

DANIEL G. ALBERT, Justice.

In this action for a declaratory judgment, plaintiffs seek a declaration that defendants are in violation of certain provisions of the law of this State which forbid political influence and prohibit assessments in connection with civil service employment or promotion. It is brought by four civil service employees for themselves and 'on behalf of all persons similarly situated,' Norman Blankman as a resident and taxpayer of Nassau County Action Where Action Requires Electorate, Inc. (A.W.A.R.E., Inc.) and the Civil Service Merit Council. Named as defendants are Joseph F. Margiotta, individually and as County Leader of the Nassau County Republican Committee (sic); Ralph G. Caso, individually and as County Executive of the County of Nassau; the County of Nassau; the Civil Service Commission of the County of Nassau and the New York State Civil Service Commission.

Plaintiffs seek a judgment declaring that the defendants have violated sections 61 and 107 of the Civil Service Law and Article 5, Section 6 of the New York State Constitution. Essentially, these provisions of State law require that appointments and promotions in the civil service be made on the basis of merit and fitness and that civil service employees be immune from political assessments. Appointment or promoti on the basis of political affiliations is likewise prohibited. Plaintiffs further seek a permanent injunction enjoining alleged violations of law as well as a preliminary injunction for said relief. Money damages are also sought.

Pursuant to CPLR 3211(a), subds. 3, 7, all of the above named defendants have cross-moved, Inter alia, to dismiss the complaint entirely for failure to state a cause of action or, alternatively, to dismiss the complaint with respect to certain plaintiffs who allegedly lack standing to sue herein.

The motion for a preliminary injunction and the cross-motions to dismiss are disposed of as follows: the application for a preliminary injunction is denied and the cross-motions to dismiss the complaint for failure to state a cause of action are granted. In view of the dismissal of the complaint, the Court does not reach the question of standing although there is a serious question as to whether any of the plaintiffs, other than the four civil service employees, have standing to bring this action.

With respect to the class action aspect of the instant case, the Court determines that a class action does not lie herein. Plaintiffs seek money damages for themselves and for all others similarly situated who allegedly were coerced into contributing funds to the Republican Party in Nassau County. This class action is purportedly brought pursuant to CPLR 1005 (subd. (a)) which allows a class action 'where the question is one of a common or general interest of many persons or where the persons who might be made parties are very numerous.' Though there have been recent indications by the Court of Appeals that the restrictive interpretation accorded to CPLR 1005 may no longer be viable (Moore v. Metropolitan Life Ins. Co., 33 N.Y.2d 304, 313, 352 N.Y.S.2d 433, 438, 307 N.E.2d 554, 558), the plaintiffs have failed to demonstrate to this court that a more liberal interpretation of CPLR 1005 is warranted in this action.

The alleged class herein is composed of civil service employees similarly situated as the four civil service employee plaintiffs. Plaintiffs offer no definition of the class of others 'similarly situated.' As a matter of law, separate wrongs to separate persons, even if pursuant to a common plan do not alone create a common or general interest (Society Milion Athena v. National Bank, 281 N.Y. 282, 292, 22 N.E.2d 374, 376; Dennis v. Long Island Lighting Company, 78 Misc.2d 400, 402, 357 N.Y.S.2d 633, 635; Fisher v. Health Insurance Plan of Greater New York, 67 Misc.2d 674, 677, 324 N.Y.S.2d 732, 736; Young v. Shuart, 67 Misc.2d 689, 691, 325 N.Y.S.2d 113, 115). Each aggrieved person is entitled to determine for himself the appropriate remedy that he will seek if he so desires and, as Judge Fuld noted in Gaynor v. Rockefeller, 15 N.Y.2d 120, 129--30, 256 N.Y.S.2d 584, 589--590, 204 N.E.2d 627, 630--631; in an alleged class action against the State charging discriminatory practices, 'each individual claim might be subject to defenses not available against others; and, in general, determination of the merits of each claim would turn on the particular facts and circumstances involved.' Such a situation prevails in the case at bar, as the wrongs asserted are individual to the different persons involved, different remedies are available to each member of the alleged class and varied defenses are available to the defendants on any individual claim asserted. The class action, therefore, is improperly brought.

Plaintiffs' application in which they seek a preliminary injunction restraining defendants from allegedly violating section 107 of the Civil Service Law is denied. In essence, plaintiffs seek to declare that defendants have committed crimes (certain violations of section 107 are a crime) and pending said declaration, to enjoin alleged violations of the law and reprisals.

The application fails for a number of reasons. The papers submitted in support of the application fail to establish that the plaintiffs are entitled to the drastic relief of a preliminary injunction (Town of Southeast v. Gonnella, 26 A.D.2d 550, 270 N.Y.S.2d 863; Park Terrace Caterers v. McDonough, 9 A.D.2d 113, 194 N.Y.S.2d 911). Not only do the papers fail to establish a right to the relief sought, but also they fail to demonstrate irreparable damage from the nonissuance thereof (Graves v. Lombardi, 42 A.D.2d 700, 345 N.Y.S.2d 146; Allied-Crossroads Nuclear Corp. v. Atcor, Inc., 25 A.D.2d 643, 644, 268 N.Y.S.2d 400, 401).

It is also well established that a court of equity will not enjoin the commission of a crime unless the public health, morals, safety and welfare of the community require protection, or where a property right is being violated (People ex rel. Bennett v. Laman, 277 N.Y. 368, 376, 14 N.E.2d 439, 442). In the case at bar, the health and welfare of the community is not...