Subcontractors Trade Ass'n v. Koch

CourtNew York Court of Appeals
Writing for the CourtJASEN; COOKE
Citation62 N.Y.2d 422,477 N.Y.S.2d 120,465 N.E.2d 840
Decision Date14 June 1984
Parties, 465 N.E.2d 840 SUBCONTRACTORS TRADE ASSOCIATION et al., Respondents, v. Edward I. KOCH, as Mayor of the City of New York, et al., Appellants.

Page 120

477 N.Y.S.2d 120
62 N.Y.2d 422, 465 N.E.2d 840
SUBCONTRACTORS TRADE ASSOCIATION et al., Respondents,
v.
Edward I. KOCH, as Mayor of the City of New York, et al., Appellants.
Court of Appeals of New York.
June 14, 1984.

Page 121

Frederick A.O. Schwarz, Jr., Corp. Counsel (Michael Gage, and Michael S. Adler, New York City, of counsel), for appellants.

Irwin M. Taylor, Riverhead, and Dena Sklarin, Lawrence, for respondents.

Lois Waldman and Marc D. Stern, New York City, for American Jewish Congress, amicus curiae.

OPINION OF THE COURT

JASEN, Judge.

The principal question before us is whether the Mayor of the City of New York, by Executive Order, may lawfully mandate that a 10% share of all construction contracts awarded by the city be given to "locally based enterprises".

Defendants place heavy emphasis on the socioeconomic circumstances which purportedly gave rise to the issuance of the order. However, the issue presented for our determination is not what prompted the Mayor to issue the order or whether the order seeks to accomplish a desirable objective, but whether the Mayor was legally empowered to issue the order at all.

In an effort to promote the development of business and employment opportunities in economically depressed areas of New York City, the Mayor issued Executive Order No. 53 to "ensurthat small enterprises conducting business in such areas, or employing economically disadvantaged persons, receive a greater share of all construction contracts awarded by the City of

Page 122

New York." (Executive Order No. 53, § 1.)

Among other things, the order requires all agency heads to "seek to ensure that not less than ten percent of the total dollar amount of all contracts awarded for construction projects during each fiscal year shall be awarded to locally based enterprises (Executive Order No. 53, § 3.) 1

Pursuant to authorization contained in the order, the Bureau of Labor Services, a mayoral agency, adopted implementing rules and regulations. (See City Record, March 6, 1981, p. 507, cols. 3 and 4.) In large part, the rules are simply definitional and do not alter the thrust of the policy objectives sought to be advanced by the order.

In September, 1981, plaintiffs, 17 trade associations, commenced a declaratory judgment action seeking invalidation of the Executive Order and the promulgated regulations. Defendants, Mayor Koch and the City of New York, responded by moving, before answer, pursuant to CPLR 3211 (subd. par. 7), to dismiss the complaint for failure to state a cause of action. Special Term granted the motion and dismissed the complaint, with leave to replead, holding that plaintiffs failed to demonstrate the existence of a justiciable controversy. A divided Appellate Division reversed and declared the order and regulations to be "unconstitutional, unlawful and unenforceable".

Preliminarily, we note that plaintiffs are subject to and directly affected by Executive Order No. 53 and, therefore, have standing to bring this action. (See Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317; see, also, Matter of Fullilove v. Beame, 48 N.Y.2d 376, 423 N.Y.S.2d 144, 398 N.E.2d 765; Rapp v. Carey, 44 N.Y.2d 157, 404 N.Y.S.2d 565, 375 N.E.2d 745; Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265, 350 N.E.2d 595.) As to defendants' claim that no actual controversy exists which the courts may pass on, we disagree. Plaintiffs, who have a stake in the outcome of this action, challenged the legality of an Executive Order purporting to have the force of law. There being no factual questions to be confronted in deciding whether the Mayor had the authority to issue the Executive Order, an actual controversy is presented which the courts have power to resolve in a declaratory judgment action without the need to conduct a trial. (See Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 150, 464 N.Y.S.2d 392, 451 N.E.2d 150; O'Hara v. Del Bello, 47 N.Y.2d 363, 418 N.Y.S.2d 334, 391 N.E.2d 1311; New York Foreign Trade Zone Operators v. State Lig. Auth., 285 N.Y. 272, 276, 34 N.E.2d 316; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.Y.2d 970.)

We begin our analysis of the substantive issues presented by recognizing that the underlying structure of our representative system of government consists of three branches in which all governmental power is distributed--the executive, legislative and judicial (N.Y. Const., art. III, § 1; art. IV, § 1; art. VI; see, also, N.Y. City Charter, ch. 1, § 3; ch. 2, § 21.) Respect for this structure and the system of checks and balances inherent therein requires that none of these branches be allowed to usurp powers residing entirely in another branch. (Youngstown Co. v. Sawyer, 343...

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34 practice notes
  • Under 21 v. City of New York
    • United States
    • New York Court of Appeals
    • June 28, 1985
    ...as a "vestigial relic," we have very recently unanimously reaffirmed its continuing vitality (see, Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 427, 477 N.Y.S.2d 120, 465 N.E.2d 840). While the doctrine of separation of powers does not require the maintenance of " 'three airtight depa......
  • Citizens for an Orderly Energy Policy, Inc. v. Cuomo, No. 1
    • United States
    • New York Court of Appeals
    • October 22, 1991
    ...Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344, 356, 492 N.Y.S.2d 522, 482 N.E.2d 1; Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 429-430, 477 N.Y.S.2d 120, 465 N.E.2d 840; Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 646-647, 385 N.Y.S.2d 265, 350 N.E.2d 595, supra ......
  • New York State Chapter, Inc. v. New York State Thruway Authority, AFL-CIO
    • United States
    • New York Court of Appeals
    • March 28, 1996
    ...social policymaking, such as remedying racial and gender bias, will not be sustained (see, e.g., Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 477 N.Y.S.2d 120, 465 N.E.2d 840 [set-aside program for locally based enterprises]; Matter of Fullilove v. Beame, 48 N.Y.2d 376, 423 N.Y.S.2d 1......
  • Leadingage N.Y., Inc. v. Shah
    • United States
    • New York Supreme Court Appellate Division
    • June 22, 2017
    ...10 NYCRR part 1002. Moreover, the dissent relies on inapplicable precedent in pursuing this task. Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 428, 477 N.Y.S.2d 120, 465 N.E.2d 840 (1984), relied on by petitioners, and its progeny (see Under 21, Catholic Home Bur. for Dependent Childr......
  • Request a trial to view additional results
34 cases
  • Under 21 v. City of New York
    • United States
    • New York Court of Appeals
    • June 28, 1985
    ...as a "vestigial relic," we have very recently unanimously reaffirmed its continuing vitality (see, Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 427, 477 N.Y.S.2d 120, 465 N.E.2d 840). While the doctrine of separation of powers does not require the maintenance of " 'three airtight depa......
  • Citizens for an Orderly Energy Policy, Inc. v. Cuomo, No. 1
    • United States
    • New York Court of Appeals
    • October 22, 1991
    ...Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344, 356, 492 N.Y.S.2d 522, 482 N.E.2d 1; Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 429-430, 477 N.Y.S.2d 120, 465 N.E.2d 840; Matter of Broidrick v. Lindsay, 39 N.Y.2d 641, 646-647, 385 N.Y.S.2d 265, 350 N.E.2d 595, supra ......
  • New York State Chapter, Inc. v. New York State Thruway Authority, AFL-CIO
    • United States
    • New York Court of Appeals
    • March 28, 1996
    ...social policymaking, such as remedying racial and gender bias, will not be sustained (see, e.g., Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 477 N.Y.S.2d 120, 465 N.E.2d 840 [set-aside program for locally based enterprises]; Matter of Fullilove v. Beame, 48 N.Y.2d 376, 423 N.Y.S.2d 1......
  • Leadingage N.Y., Inc. v. Shah
    • United States
    • New York Supreme Court Appellate Division
    • June 22, 2017
    ...10 NYCRR part 1002. Moreover, the dissent relies on inapplicable precedent in pursuing this task. Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 428, 477 N.Y.S.2d 120, 465 N.E.2d 840 (1984), relied on by petitioners, and its progeny (see Under 21, Catholic Home Bur. for Dependent Childr......
  • Request a trial to view additional results

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