Glen v. Rockefeller

• Decision Date: 12 January 1970
• Parties: Kristin Booth GLEN, Dorothy A. Harrison, Catherine Rosenberg, Eric Werthman, and Straphangers United Petitioners, v. Nelson A. ROCKEFELLER, Arthur Levitt, William J. Ronan, the MetropolitanTransportation Authority, and the State of New York, Respondents.
• Court: New York Supreme Court

Page 46

307 N.Y.S.2d 46

61 Misc.2d 942

Kristin Booth GLEN, Dorothy A. Harrison, Catherine Rosenberg, Eric Werthman, and Straphangers United Petitioners, v. Nelson A. ROCKEFELLER, Arthur Levitt, William J. Ronan, the MetropolitanTransportation Authority, and the State of New York, Respondents.

Supreme Court, Special Term, New York County, Part I.

Jan. 12, 1970.

Haywood Burns, (Nat'l Conf. of Black Lawyers), Jeffrey E. Glen, New York City (NYC Chapter, Nat'l Lawyers Guild), Paul O'Dwyer, Bernard Richland, Floyd McKissick, New York City, Toby Golick, Jamaica, Cornelia McDougal, Fred Weisberg, Brooklyn, Napoleon B. Williams, New York City, of counsel, for petitioners.

Louis J. Lefkowitz, Atty. Gen. (Philip Weinberg, New York City, of counsel), for respondents Rockefeller, Levitt and State of New York.

Sidney Brandes, Brooklyn (Sidney Brandes, Helen R. Cassidy, Brooklyn, James P. McMahon, Brooklyn, of counsel), for respondents Ronan, MTA & NYCTA.

SAUL S. STREIT, Justice.

Petitioners seek to enjoin and restrain respondents from collecting and enforcing a transit fare on the facilities of the New York City Transit Authority in excess of twenty cents, pending the holding of a public hearing on the subject of any proposed increase in such fare.

At the hearing before this Court, on the motion for an injunction Pendente lite, petitioners, upon consent of counsel, added the New York City Transit Authority as a party-respondent to this proceeding. Initially, it must be observed there can be little doubt that the State of New York, its Governor and its Comptroller are not proper parties herein. It is fundamental that the State is immune from suit unless, as in the case of matters authorized to be brought before the Court of Claims, such inherent immunity has been waived by the Legislature (Kagen v. Kagen, 21 N.Y.2d 532, 538, 289 N.Y.S.2d 195, 200, 236 N.E.2d 475, 478--479; Niagara Fulls Power Co. v. White, 292 N.Y. 472, 479, 55 N.E.2d 742, 745; see also, Mathewson v. New York State Thruway Authority, 11 A.D.2d 782, 204 N.Y.S.2d 904, affd. 9 N.Y.2d 788, 215 N.Y.S.2d 86, 174 N.E.2d 754). Similarly, the Governor has been held to be free from judicial control in the performance of executive powers and his acts in his official capacity have long been deemed to be without the scope of judicial review (see Gaynor v. Rockefeller, 21 A.D.2d 92, 98, 248 N.Y.S.2d 792, 801, affd. 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627; see also, Matter of Donnelly v. Roosevelt, 144 Misc. 525, 532, 259 N.Y.S. 356, 364; Nickerson v. Rockefeller, (N.Y.L.J. Sept. 24, 1969, p. 15, col. 5 Sup.Ct., Nassau Co., September 17, 1969, Velsor, J.)).

Furthermore, beyond this immunity, inasmuch as it does not appear that the State, or either the Governor or Comptroller of the State of New York had any jurisdiction over the fare increase adopted by the New York City Transit Authority, there can be no legal basis for the claim by petitioners against these 'State' respondents.

The facts surrounding the instant application are public knowledge and require little repetition here. Suffice it to note that on January 2, 1970, without any prior public hearing, respondent New York City Transit Authority (hereinafter referred to as 'Transit Authority'), by appropriate resolution, raised transit fares from twenty to thirty cents. This action purportedly was necessitated by the fact that the Transit Authority, in its judgment, had concluded it did not have sufficient funds to continue its operations on a self-sustaining basis, as mandated by law (see Sec. 1205, subd. 1, Public Authorities Law).

Petitioners argue, however, that while the cited section of the law grants The power and basis upon which City transit fares may be fixed, nevertheless, Section 1266, subdivision 3, Public Authorities Law, sets forth The manner and method by which such fares may be increased and expressly mandates a public hearing prior to such change by the Transit Authority as a 'subsidiary' of the Metropolitan Transportation Authority (hereinafter referred to as 'MTA'). They further assert that, even absent a specific statutory requirement for a public hearing, federal and state constitutional guarantees of 'due process of law' and 'equal protection of the laws: require notice and an opportunity for the persons affected thereby to be heard by a governmental body before it may act in an area of vital concern to the rights, property and welfare of the citizens of the community.

While it is unnecessary here to explore petitioners' charge of discrimination, there can be no doubt that the subject fare increase is of greater import and of far more concern to the poor and economically disadvantaged persons than to the more affluent or 'comfortable' members of our city. Nevertheless, the change in the daily cost of public transportation within the City of New York does, directly or indirectly, affect All of our citizens. Unfortunately, therefore, I am constrained to hold that despite their laudable and legitimate efforts to reverse what they deem to be an illegally imposed and oppressive burden on less fortunate citizens, petitioners do not have the legal standing or capacity to assume the role of champions of the community. It has long been the established law of this State that, where, as here, the wrong complained of is, in fact, a 'public injury', and the right violated is a 'public right', no private person (or number of persons) can maintain an action for an injunction, or for any other relief, unless he suffers A special injury different from that suffered by the public at large (see Doolittle v. Supervisors of Broome County, 18 N.Y. 155, 163 (1858); see also, Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675; McGovern Trucking Co. v. Moses, 16 Misc.2d 72, 74, 92 N.Y.S.2d 550, 552, affd. 277 App.Div. 758; New York League for Separation of Church & State v. Graves, 170 Misc. 196, 198, 10 N.Y.S.2d 142, 144; Wallace v. New York City Transit Authority, N.Y.L.J., July 7, 1966, p. 11, col. 7 Supreme Court, Kings County (Williams, J.))

In this respect, it is noteworthy that the recently proposed new State Constitution had embodied provisions which, if enacted, would have served, in large measure, to cure the present legal disability and would have given each citizen of this State a voice and the right to seek relief similar to the instant proceeding instituted by petitioners. For example, the following provision was set forth in the recommended 'Bill of Rights':

'ARTICLE I, § 2. Any citizen of this state shall have the right to maintain a judicial action or proceeding against any officer, employee, or instrumentality of the state or a political subdivision thereof, to restrain a violation of the provisions of this constitution or the constitution of the United States, including unconstitutional expenditures. The legislature may provide for such action or proceeding.' (Emphasis added.)

With the ultimate rejection by the electorate of he proposed Constitution, it is apparent petitioners remain completely without standing to enjoin the fare increase, as sought here (supra; see also, Klein v. O'Dwyer, 192 Misc. 421, 80 N.Y.S.2d 343; Applic. of Love, Sup., 155 N.Y.S.2d 266).

Without such legislative sanction, it necessarily follows that petitioners are also not in a position to complain of the allocation of funds by the State for the maintenance and improvement of transit facilities (St. Clair v. Yonkers Raceway, Inc., 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15, cert. den. 375 U.S. 970, 84 S.Ct. 488, 11 L.Ed.2d 147; Matter of Donohue v. Cornelius, 17 N.Y.2d 390, 397, 271 N.Y.S.2d 231, 234, 218 N.E.2d 285, 287; Matter of Blaikie, 11 A.D.2d 196, 202 N.Y.S.2d 659; see also, Matter of Natapow v. Epstein, 35 Misc.2d 813, 231 N.Y.S.2d 989, affd.19 A.D.2d 591, 240 N.Y.S.2d 959; Matter of Hattem v. Silver, 19 Misc.2d 1091, 1092, 190 N.Y.S.2d 752). Moreover, while its aims may be purposeful and worthy of approbation, petitioner Straphangers United, as an unincorporated association, is clearly devoid of legal capacity herein (NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603.)

Respondents note that the decision to increase the transit fare was, in effect, a legislative act. They argue, therefore, that the Supreme Court of this State 'may not assume supervisory power over officers chosen directly or indirectly by the People to run their municipal affairs' (citing Wallace v. New York City Transit Authority, supra; Walsh v. LaGuardia, 269 N.Y. 437, 199 N.E. 652). Nevertheless, this, by itself, does not detract, in any manner, from the serious issues raised by petitioners in this proceeding which be discussed hereinafter.

It is noteworthy that, like the fare increase itself, many of the related problems indicated by the moving papers are the direct result of prior legislative acts. For example, with the creation of MTA, the Legislature, in its wisdom, in effect, dictated that control of both metropolitan commuter transportation And the City's transit system be vested in the same individuals, albeit they operate under two distinct nomenclatures, namely the 'Metropolitan Transportation Authority' (MTA) and the 'New York City Transit Authority' (see Secs. 1201, 1263 and 1264, Public Authorities Law). Significantly, as set forth in Sec. 1201(1), Public Authorities Law, the board of the Transit Authority is wholly comprised of 'those members * * * who * * * hold the offices of chairman (respondent Ronan) and members of the metropolitan transportation authority'. Thus, adopting, Arguendo, respondents' contention here regarding the absence of a need for a public hearing prior to the subject fare increase, the constitutional questions raised by petitioners (by which they seek standing herein) immediately become apparent. On the one hand, the Transit Authority has legislative sanction to adjust rates...