Gottlieb v. Duryea
| Decision Date | 15 December 1971 |
| Citation | 326 N.Y.S.2d 889,38 A.D.2d 634 |
| Parties | In the Matter of Stephen S. GOTTLIEB et al., Respondents, v. Perry B. DURYEA, Jr., as Speaker of the Assembly of the State of New York, etal., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Burt Neuborne and Bruce J. Ennis, New York City, for respondents.
Louis J. Lefkowitz, Atty. Gen. (Douglas S. Dales, Jr., Albany, of counsel), for appellants.
Before REYNOLDS, J.P., and STALEY, GREENBLOTT, COOKE and SIMONS, JJ.
Appeal from a judgment of the Supreme Court at Special Term, entered July 19, 1971 in Albany County, in favor of respondent Gottlieb in an article 78 proceeding.
The petition sets forth four causes of action. The first contains averments as to Exhibit 'A', a letter from respondent Gottlieb, a Member of the Assembly, addressed to approximately 450 of his constituents, the refusal to mail same by or on authority of appellants on the ground that same was 'too political' and the lack of standards for determining whether items of mail are covered by section 16 of the Legislative Law; the second, the unequal maximum mailings permitted to minority and majority party Members of the Assembly; the third, the unequal use of printing and reproduction services allowed to said Members; and the fourth, the disparity regarding the use of television studio, film and taping services. Upon return thereof, appellants moved to dismiss the petition upon the grounds that it failed to state a cause of action and that the court had no jurisdiction of the subject matter. Special Term rendered a decision stating:
The sole decretal paragraph in the judgment, which referred to the decision of Special Term, reads: 'ORDERED, ADJUDGED AND DECREED, that judgment be entered in favor of the petitioner Stephen S. Gottlieb, and against the respondents, directing respondents immediately to seal, stamp and mail Exhibit 'A' to the complainant herein, and further directing respondents to seal, stamp and mail all mail deposited in the post office of the assembly, and to cease and desist from subjecting such mail to any prior restraint or censorship'. The record reveals no other judgment or order entered upon said decision nor any cross appeal from the judgment entered by respondents. The disposition regarding the first...
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