Doe v. Axelrod

• Citation: 73 N.Y.2d 748,532 N.E.2d 1272,536 N.Y.S.2d 44
• Parties: , 532 N.E.2d 1272 Jane DOE et al., Respondents, v. David AXELROD, as Commissioner of Health of the State of New York, Appellant.
• Decision Date: 22 November 1988
• Court: New York Court of Appeals

Page 44

536 N.Y.S.2d 44

73 N.Y.2d 748, 532 N.E.2d 1272

Jane DOE et al., Respondents, v. David AXELROD, as Commissioner of Health of the State of New York, Appellant.

Court of Appeals of New York.

Nov. 22, 1988.

Robert Abrams, Atty. Gen. (Darren O'Connor, O. Peter Sherwood and Andrea Green, New York City, of counsel), for appellant.

Sheldon D. Camhy and George G. Nelson, New York City, for respondents.

Leslie Salzman, Brooklyn, Marilyn A. Kneeland and Herbert Semmel, New York City, for Public Health Ass'n of New York City and another, amici curiae.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 136 A.D.2d 410, 527 N.Y.S.2d 385, should be modified, with costs, by reversing so much of that order as affirmed the Supreme Court order granting plaintiffs a preliminary injunction; the certified question should be answered in the negative.

The decision to grant or deny provisional relief, which requires the court to weigh a variety of factors, is a matter ordinarily committed to the sound discretion of the lower courts. Our power to review such decisions is thus limited to determining whether the lower courts' discretionary powers were exceeded or, as a matter of law, abused (James v. Board of Educ., 42 N.Y.2d 357, 363-364, 397 N.Y.S.2d 934, 366 N.E.2d 1291). In this case, there was an abuse of discretion, and, as a consequence, reversal is required.

A preliminary injunction may be granted under CPLR article 63 when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor (Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953). Here, plaintiffs can succeed on the merits of their claim only if they show either that in promulgating the challenged regulations (10 NYCRR 80.67) respondent Commissioner acted outside of the authority constitutionally delegated to him under the Public Health Law (compare, Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S.2d 464, 517 N.E.2d 1350, with Matter of Levine v. Whalen, 39 N.Y.2d 510, 384 N.Y.S.2d 721, 349 N.E.2d 820; and Chiropractic Assn. v. Hilleboe, 12 N.Y.2d 109, 237 N.Y.S.2d 289, 187 N.E.2d 756) or that the regulation was " 'so lacking in reason for its promulgation that it is essentially arbitrary' " (Ostrer v. Schenck, 41 N.Y.2d 782, 786, 396 N.Y.S.2d 335, 364 N.E.2d 1107). On this record, plain...