Schwartz v. Lubin

• Decision Date: 01 July 1958
• Citation: 6 A.D.2d 108,175 N.Y.S.2d 652
• Parties: Lillie SCHWARTZ, Plaintiff-Respondent, v. Isador LUBIN, as Industrial Commissioner of the State of New York, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 652

175 N.Y.S.2d 652

6 A.D.2d 108

Lillie SCHWARTZ, Plaintiff-Respondent, v. Isador LUBIN, as Industrial Commissioner of the State of New York, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 1, 1958.

Samuel A. Hirshowitz, New York City, of counsel (Paxton Blair, Sol. Gen., Albany, and Hyman Amsel, New York City, with him on the brief; Louis J. Lefkowitz, Atty. Gen.) for defendant-appellant.

Joseph M. Schwartz, New York City, for plaintiff-respondent.

Before BREITEL, J. P., and FRANK, VALENTE, STEVENS and BERGAN, JJ.

M. M. FRANK, Justice.

This cause for injunctive relief requires us to determine whether the Supreme Court of this State has the inherent equitable power to enjoin the State Industrial Commissioner from destroying certain records now in the possession of his department.

The plaintiff, a civil service employee in the New York State Department of Labor, is now on departmental trial upon charges, which, if established, can result in her dismissal from the service. It is her claim that certain official records in the department's possession will enable her to defend herself successfully against those charges.

The plaintiff asserts that it is departmental practice to destroy such records at each year's end and if that is done to the documents which she requires, she will suffer irreparable harm. Of course, the question as to whether these records will or will not establish the plaintiff's contention is not before us in this action, nor are we here concerned with their probative value in the administrative hearing.

The complaint alleges that a request made to the hearing officer for the issuance of a subpoena for the records required by the plaintiff was denied. The plaintiff thereupon initiated an Article 78 proceeding (Schwartz v. Naftalison, 11 Misc.2d 439, 173 N.Y.S.2d 157) to test that refusal as arbitrary, and to direct the issuance of a subpoena. Special Term dismissed the petition upon the ground that the review sought was from an intermediate determination. It was then that the plaintiff commenced this action for an injunction.

Significantly, the defendant neither denies the existence of the records, nor the plaintiff's assertion that they will be destroyed, barring restraint. In meeting the issue, the department argues that in the event that the plaintiff is adjudged guilty at the hearing, she may, in an Article 78 proceeding to review the Commissioner's determination, urge the failure of the department to supply her with the records as prejudicial error. We believe that argument to be specious.

The suggestion by the defendant that the court, in reviewing the determination made by a public agency, may decide whether that determination was or was not arbitrary and capricious by considering matters dehors the record, by evaluating nonexistent documents and by testing the probative value of papers not marked as exhibits, is novel, to say the least, and scarcely fits our conception of the proper contents of a record on appeal.

It should be noted that the plaintiff is not, by this action for an injunction, seeking to restrain the departmental trial as was the situation in McGillicuddy v. Monaghan, 280 App.Div. 144, 112 N.Y.S.2d 792, nor as it did in that case, would an Article 78 proceeding provide this plaintiff with a complete and adequate remedy at law.

A public employee on trial, whose position is at stake, is entitled to fair treatment, an unbiased hearing and a reasonable opportunity to defend against the charges made. If records in a public office will tend to establish the innocence of one charged with misfeasance, they should be made available. Even though they will not, the request for production of the records, if reasonable and based upon the honest belief that exculpatory documentary proof exists, should not be peremptorily ignored. The essence of fair treatment and due process requires that exculpatory proof in esse be made available. It should be unnecessary to resort to judicial power to compel a public agency to provide a fair trial to an employee.

The defendant strenuously urges that we are without power to grant the relief sought. As early as the reign of Edward III, long antedating our Federal and State judicial systems, it was a firmly established principle that the Chancellor could restrain action which would result in irreparable injury. Our Supreme Court inherited the principle. See Walker v. Walker, 82 N.Y. 260, 262. The power to enforce it is inherent in the Court as well as constitutionally provided (Const. Art. 6, Sec. 1; Civil Practice Act, § 64; Matter of Steinway, 159 N.Y. 250, 255, 53 N.E. 1103, 1104, 45 L.R.A. 461; Metropolitan Trust Co. of City of New York v. Stallo No. 1., 166 App.Div. 639, 641, 152 N.Y.S. 183, 185; Morris v. Morris, 138 Misc. 682, 686, 247 N.Y.S. 28, 33, affirmed 234 App.Div. 187, 254 N.Y.S. 429, affirmed 260 N.Y. 650, 184 N.E. 131; Bose v. Wehrli, 186 Misc. 325, 60 N.Y.S.2d 213; Aberdeen Restaurant Corporation v....