Davis Const. Corp. v. Suffolk County

• Decision Date: 08 January 1982
• Citation: 447 N.Y.S.2d 355,112 Misc.2d 652
• Parties: DAVIS CONSTRUCTION CORPORATION and Albert Davis, Plaintiffs, v. COUNTY OF SUFFOLK, the Suffolk County Legislature and Patrick Henry, Defendants.
• Court: New York Supreme Court

Page 355

447 N.Y.S.2d 355

112 Misc.2d 652

DAVIS CONSTRUCTION CORPORATION and Albert Davis, Plaintiffs, v. COUNTY OF SUFFOLK, the Suffolk County Legislature and Patrick Henry, Defendants.

Supreme Court, Special Term Suffolk County, Part I.

Jan. 8, 1982.

Buckley, Treacy, Schaffel, Mackey & Abbate, Hempstead (Thomas B. Treacy and Norman D. Alvy, New York City, of counsel), for plaintiffs.

Denis R. Hurley, Riverhead, for defendants.

MEMORANDUM

ELI WAGER, Justice.

May the Suffolk County Legislature by local law delegate to the District Attorney jurisdiction and duties in excess of those prescribed in the County Law? These are the ultimate issues raised in this declaratory judgment action which the defendants (collectively the "County") seek to dismiss or stay (by motion denominated a "cross motion") on the ground that another action is pending between the parties, or, in the alternative, to dismiss for failure to state a cause of action or for failure to join necessary parties. In the alternative, the County seeks a pre-answer summary judgment pursuant to CPLR 3211(c) (which is also the relief apparently sought by the plaintiffs whose order to show cause demands precisely the same relief sought in the complaint).

The matter is before the Court a second time pursuant to plaintiffs' motion to reargue or renew the County's motion which was granted by order dated June 30, 1981 to the extent of staying the action pending determination of a motion to disqualify the District Attorney as attorney for the County in a civil action brought against the instant plaintiffs and others in the federal District Court. The Court reasoned that the District Court's disposition of the motion could render moot the issues raised in this action. However, since it now appears that the federal District Court has adjourned that action (and the motion) pending the conclusion of criminal actions against some of the defendants in that action (other than the instant plaintiffs), a reconsideration seems appropriate. Thus, the motion to reargue is granted and upon reargument, the motion and cross-motion are determined as follows:

The Local Law

The corporate plaintiff, a contractor which has been awarded various contracts by the County of Suffolk in connection with the construction of a County project known as the Southwest Sewer District, No. 3, and the individual plaintiff who is the corporation president, seek a judgment declaring the invalidity of Local Law No. 8-1981 which, as enacted by the Suffolk County Legislature on January 27, 1981, reads as follows:

"A LOCAL LAW TO EMPOWER THE DISTRICT ATTORNEY TO PROSECUTE AND DEFEND CERTAIN CIVIL ACTIONS BROUGHT BY OR AGAINST THE COUNTY PURSUANT TO 18 U.S.C. 1961, et seq. OF THE ORGANIZED CRIME CONTROL ACT OF 1970, ALSO KNOWN AS THE RACKETEER INFLUENCED CORRUPT ORGANIZATIONS ACT, AND UNDER THE STATE, FEDERAL, COMMON AND STATUTORY LAW

BE IT ENACTED BY THE COUNTY LEGISLATURE OF THE COUNTY OF SUFFOLK, as follows:

Section 1. Legislative Findings. This Legislature finds that the District Attorney of Suffolk County has engaged in complex criminal prosecutions and investigations of the planning, financing and construction of the public works project known as the Suffolk County Southwest Sewer District No. 3.

Section 2. Powers and Duties. In consequence of the foregoing, the District Attorney shall have the power, authority and duty to act as attorney and counselor for the County and its agencies, districts and offices in all civil proceedings and matters relating, directly or indirectly, to the institution of civil actions to compensate or remedy any injuries committed against the County and its agencies, districts and offices in connection with the planning, financing and construction of the Suffolk County public works project known as the Southwest Sewer District No. 3. He shall have sole power and authority to bring, defend, settle and compromise any and all civil complaints, causes of action, counterclaims and cross-claims in any jurisdiction, court or forum he shall deem appropriate, pursuant to Title 18 U.S.C., Section 1961, et seq., state and federal, common and statutory law, under principles of pendant and ancillary jurisdiction, against any individual, entity or corporation in the name of the County of Suffolk and its agencies, districts and offices. He shall also be authorized to retain and pay as a charge on the County such experts and consultants as he may deem advisable in connection with this matter.

Section 3. This local law shall take effect immediately."

It appears that two grand juries were impanelled to investigate the sewer project, one in 1979 and a second in 1980, and that no criminal indictments were issued except for three perjury indictments against individuals other than the instant plaintiff, who was subpoened to appear before the 1980 grand jury but was excused when he refused to waive his right to immunity. Immediately following the enactment of Local Law No. 8-1981 the County, represented by the District Attorney, commenced a civil action against the plaintiffs and others in the federal District Court and obtained an ex parte order in the County Court of Suffolk County authorizing him to utilize the minutes of the grand jury investigations. The ex parte order was subsequently stayed pending completion of the criminal proceedings.

Pendency of Another Action as a Ground for Dismissal or a Stay

The County's complaint in the federal District Court alleges three causes of action: (1) a civil action seeking treble damages pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. section 1964(c); (2) a common law tort action for fraud; and (3) an action for damages for breach of a fiduciary duty. The defendants in that action (including the instant plaintiffs) moved to disqualify the District Attorney upon the ground that the District Attorney's "role as a grand jury advisor and prosecutor in pending criminal matters precludes him from assuming the dual role of civil litigator in this matter," that the complaint in the RICO action "reveals purported factual details that came into his possession solely by virtue of his participation in the several grand jury investigations," that grand jury testimony and material are entitled to secrecy under New York law, and that as a result of the District Attorney's improper conduct the defendants (in the RICO action) are "confronted with plaintiffs' counsel who are armed with materials and information to which a normal civil litigant would not be entitled."

In the instant action, the gravamen of the complaint is that Local Law No. 8-1981 is invalid because "it is in excess of any delegated power reposed in the County of Suffolk under County Law and the Suffolk County Charter and results in the illegal transfer of civil litigation duties from the County Attorney's office to the office of the District Attorney."

As a general rule, a court should not entertain an action for declaratory judgment where there is no necessity for doing so (Elmsford Properties Corp. v. Daitch Crystal Dairies, Inc., 13 A.D.2d 1026, 217 N.Y.S.2d 434; Bartley v. Walentas, 78 A.D.2d 310, 434 N.Y.S.2d 379; Todd v. Board of Ed. of City of Syracuse, 272 App.Div. 618, 74 N.Y.S.2d 468, affd. 297 N.Y. 873, 79 N.E.2d 274). Specifically, it is an abuse of discretion to entertain jurisdiction when another action is pending in which all factual and legal issues can be determined (Woollard v. Schaffer Stores Co., 272 N.Y. 304, 5 N.E.2d 829; Colson v. Pelgram, 259 N.Y. 370, 182 N.E. 19; Canadian Imperial Bank of Commerce v. Canada Life Assur. Co., 43 A.D.2d 920, 352 N.Y.S.2d 203, app. dism. 34 N.Y.2d 959, 359 N.Y.S.2d 569, 316 N.E.2d 881; Reynolds Metals Co. v. Speciner, 6 A.D.2d 863, 175 N.Y.S.2d 605, rearg. den. 6 A.D.2d 1006, 178 N.Y.S.2d 211; Storer v. Ripley, 282 App.Div. 973, 131 N.Y.S.2d 93; Gilbert v. Village of Larchmont, 280 App.Div. 1000, 116 N.Y.S.2d 890) or where other full and adequate remedies exist (Newburger v. Lubell, 257 N.Y. 383, 178 N.E. 669; James v. Alderton Dock Yards, 256 N.Y. 298, 176 N.E. 401). However, the mere pendency of another action or the existence of another remedy without more is no basis for refusal. A declaratory judgment may not be refused because of the pendency of another suit if the controversy will not necessarily be determined in such suit (26 C.J.S. Declaratory Judgments § 22 at 91) or if all legal and factual issues cannot be determined there (cf. Canadian Imperial Bank of Commerce v. Canada Life Assur. Co., supra) and a declaratory judgment action may be maintained notwithstanding the availability of another remedy where such remedy is not as adequate or effective (see e.g., Rockland Light and Power Co. v. City of New York, 289 N.Y. 45, 43 N.E.2d 803; New York Operators v. State Liquor Authority, 285 N.Y. 272, 34 N.E.2d 316; Kalman v. Shubert, 270 N.Y. 375, 1 N.E.2d 470; Equitable Life Assur. Soc. of United States v. Mait, 279 App.Div. 194, 109 N.Y.S.2d 82; Kirn v. Noyes, 262 App.Div. 581, 31 N.Y.S.2d 90, app. den. 263 App.Div. 905, 32 N.Y.S.2d 374).

As a comparison of the complaint in this action with the complaint in the RICO action and the grounds stated as the basis for the motion to disqualify indicates, the issues are dissimilar: the validity of Local Law 8-1981 is simply not at issue in the federal court. Although an order disqualifying the District Attorney in the federal court would indeed moot the issue raised here as far as that action is concerned, it might well not be given res judicata effect in other civil actions instituted by the County, actions which could in any event be commenced prior in time to a disposition of the disqualification motion which, as noted, has been adjourned sine die. Furthermore, if the motion to disqualify were denied, the issues raised here would not be moot. Thus, it appears that all legal and factual issues will not be determined in the pending...