King v. McCaffrey, 70 Civ. 1894.

• Decision Date: 05 June 1970
• Docket Number: No. 70 Civ. 1894.,70 Civ. 1894.
• Citation: 321 F. Supp. 344
• Parties: Emily KING, Constant Stashio, Mario Stashio and Owen Hollander, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. Honorable Edward T. McCAFFREY, Justice of the New York Supreme Court, Louis J. Lefkowitz, Attorney General of the State of New York, Louis Evangelista Canz Enterprises, Inc., and 245 East 39th Street, Inc., Individually and on behalf of all other persons similarly situated, Defendants.
• Court: U.S. District Court — Southern District of New York

321 F. Supp. 344

Emily KING, Constant Stashio, Mario Stashio and Owen Hollander, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. Honorable Edward T. McCAFFREY, Justice of the New York Supreme Court, Louis J. Lefkowitz, Attorney General of the State of New York, Louis Evangelista Canz Enterprises, Inc., and 245 East 39th Street, Inc., Individually and on behalf of all other persons similarly situated, Defendants.

No. 70 Civ. 1894.

United States District Court, S. D. New York.

June 5, 1970.

Mobilization for Youth Legal Services, Jeffrey G. Stark, New York City, of counsel, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen. State of New York, by Mortimer Sattler, Asst. Atty. Gen., New York City, for defendants, Lefkowitz and McCaffrey.

MEMORANDUM OPINION AND ORDER

MOTLEY, District Judge.

Plaintiffs Emily King, Constant Stashio, and Maria Stashio¹ seek: 1) an order convening a three-judge court pursuant to 28 U.S.C. §§ 2281, 2284 to declare unconstitutional New York Civil Practice Law and Rules § 6312(b); 2) leave to maintain this action as a class action pursuant to Rule 23, Fed.R.Civ. P.

Section 6312(b) requires the posting of an undertaking "prior to the granting of a preliminary injunction." Plaintiffs' grievance, in brief, is that they have been denied this important equitable relief solely because they are too poor to be able to afford the required undertaking, and have, therefore, been denied equal access to the courts of New York with those who are wealthier. This discrimination on the basis of financial status is claimed to violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. The class plaintiffs hope to represent "consists of all members of the public who would be entitled to preliminary injunctive relief in the courts of the State of New York but for their inability to post the undertaking mandated by CPLR § 6312(b)." Pl. Brief at 1.

The court finds that plaintiffs lack the necessary standing to raise the question of the unconstitutionality of § 6312(b), and therefore dismisses the petition for a three-judge court for want of jurisdiction. See American Commuters Association, Inc. v. Levitt, 405 F.2d 1148 (2d Cir. 1969); Flast v. Gardner, 267 F.Supp. 351 (S.D.N.Y. 1967). Upon the record before the court at this time, it is far from clear that any of these plaintiffs has "a personal stake in the outcome of the controversy." Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), quoting from Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). To the contrary, the record discloses that plaintiffs' attack on the statute in question is of "a hypothetical or abstract character," and that, consequently, this case represents one of those "ill-defined controversies over constitutional issues" which federal courts ought not to be asked to decide. Flast v. Cohen, supra, 392 U.S. at 100, 88 S.Ct. 1952, citing respectively, Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937); United Public Workers v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 91 L.Ed. 754 (1947).

Plaintiffs are tenants of two of the three remaining occupied apartments in 131 West 80th Street, New York City, a building being subjected to great structural and interior changes around them. The complaint alleges that the building is "presently undergoing substantial demolition." A motion for a temporary injunction to halt such activity on the part of the building owner was denied on February 19, 1970 by Justice Nadel, Stashio v. Evangelista, No. 1752/70, (New York Supreme Court, Special Term Part I), with leave to renew in the event defendants did not consent to an immediate trial. At that time Justice Nadel found that "the papers presented by the opposing parties were sharply in conflict thus precluding a determination in the absence of a plenary hearing."

Defendants in the state action did not consent to immediate trial, and a motion for a preliminary injunction was made before Justice McCaffrey, a defendant here. He denied that motion on April 2, 1970 in an opinion which forms the basis of the present controversy. That opinion reads in pertinent part as follows:

* * * Work is being done under a Building Department permit. Undoubtedly, inconvenience must ensue. * * * It does not clearly appear that defendants are harassing or whether there is harassment on both sides.

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