Skelos v. Paterson -- Memorandum of Law

8/14/2019 Skelos v. Paterson -- Memorandum of Law

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SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION SECOND DEPARTMENTDE AN G . SKELOS and PED RO E SPAD A, JR., as duly electedmembers of the New York State Senate, Plaintiffs-Respondents,

DAVID A. PATERSON, as Governor of the State of New York,RICHARD RAVITCH, as Lieutenant Governor of the State ofNew York, and LORRAINE CORTES-VAZQUEZ, as Secretary ofState of the State of New York, Defendants-Appellants.

Nassau Co. Sup. Ct.Index No.: 13426-2009Hon. William R. Lamarca

DEFENDANTS-APPELLANTS' MEMO RANDUM OF LAWIN SUPPORT OF MOTION FOR INTERIM STAY AND

EXPEDITED APPEAL

QUINN, EMANUEL, URQUHA RT, OLIVER& HED GES, LLPKATHLEEN M. SULLIVANFAITH E. GAYROBERT JUMAN51 Madison Avenue22d FloorNew York, NY 10022(212) 849-7000Counsel for Defendant-AppellantsDate: July 22, 2009


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PRELIMINARY STATEMENTLate yesterday, the trial court granted Respond ents a preliminary injunction which stated

that Lieutenant Governor Ravitch "is preliminarily enjoined from exercising any of the powers ofthe office of Lieutenant-Governor of the State of New York." (Order at 18.). CPLR 6311 statesthat a "preliminary injunction to restrain a public officer. . . of the state from performing astatutory duty may be granted only by the supreme court at a term in the department in wh ich theofficer . . . is located or in which the d uty is required to be performed ." By this order to showcause, appellants seek an emergency stay of the above referenced preliminary injunction, whichwas granted without authority contrary to the plain text of CPLR 6311, and will cause irreparableharm to the Governor and the State of New Y ork.

STATEMENT OF FACTSAppellants respectfully refer the Court to the facts set forth in the Affirmation of Faith E.

Gay da ted July 22, 2009 (Gay Affirmation), including their mem oranda of law in support of theirmoving papers in opposition to the motion for preliminary injunction and in support of theirmotion to dismiss Respondents' complaint, which are attached as Exhibits D and E to the GayAffirmation.

ARGUMENTI.HIS COURT SHOULD STAY THE PRELIMINARY INJUNCTION ORDEREDBY THE TRIAL COURTThe court below granted an injunction that CPLR 6311 expressly forbids. The injunctionrestrains the second highest officer in the state from performing his statutory duties. UnderCPLR 5518, the Appellate Division has the power to grant, modify, limit, and vacate either apreliminary injunction or a temporary restraining order while the ease is on appeal (i.e., after anotice of appeal has been filedand served). In effect, it g ives the appellate division during the


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appeal stage the sam e pow ers that the supreme court has during the action's pretrial and trialstage. See, e.g., Humane Soc. of U .S. v. County of M onroe, 192 A.D.2d 1139 (4th Dep't 1993)(vacating preliminary injunction pursua nt to CPLR 55 18 because plaintiff failed to showlikelihood of success on the merits); B roadv vall A m erica, Inc. v. Bram W ill-El LLC , 821N.Y.S.2d 190, 191 (1st Dep 't 2006) (interim relief granted under C PLR 5518 p ending ap plicationfor stay pending appeal). Moreover, under CPL R 5519(a)(1), a stay of all proceedings to enforcea judgmen t is automatic when the app ellant is an officer of the state, and under CPL R 5519(c),the court to which an appeal is taken may stay all proceedings to enforce the order ap pealedfrom.

An ap plication to the App ellate D ivision for relief pending resolution of an appeal underCPLR 5518 will be reviewed de novo, using the same standards as applied by the Supreme Courtin respect of the original order. See R om ano v. Sullivan County Harness Racing A ssn, Inc., 106A.D.2d 819 (3d Dep't 1984); see also Humane Soc. of US. v. County of Monroe, 192 A.D.2d1139 (4th Dep't 1993) (vacating preliminary injunction pursuant to CPLR 5518 because plaintifffailed to show likelihood of success on the merits). On an application for an order pendingappeal in respect of a preliminary injunction, this Court asks whether there is a reasonableprobability of success on appeal and whether plaintiff has demonstrated irreparable injury.Romano, 106 A.D.2d at 820.

Courts will order a stay of a trial court's order under 5519(c) pending resolution of anappeal to preserve the status quo or where to do so would be in the public interest". Town ofOrangetownv. Magee, 218 A.D.2d 733 (2d Dep't 1995) (ordering a stay of enforcement of trialcourt and appellate court orders pursuant to CPLR 5519(c) pending determination of the appealto the COurt of A ppeals); Russell v. New Y ork City Housing Authority, 608 N.Y.S2d 592 (N.Y.

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Sup. Ct. 1992) (granting stay of order pu rsuant to CPLR 5519(c) pending appe al as "in the publicinterest").

A.here Is A Reasonable Probability Of Success On Appeal Because, Inter A lia,The Trial Court Was Without Power To issue The Preliminary InjunctionThe trial court erred in granting the Responde nts' request for preliminary relief because

such relief could not be issued out of Nassau C ounty.' Preliminary injunctions are governe d byarticle 63 of the CPL R, and CPL R 6311 requires that a request for an injunction against a publicofficial be ma de in the Judicial Departmen t in which the restraint is to be made applicable. Morethan a venue p rovision, CPLR 6311 literally limits the power of cou rts to issue preliminaryinjunctions:

A p reliminary injunction to restrain a public officer, board or m unicipalcorporation of the state from performing a statutory duty may be granted only bythe supreme cou rt at a term in the dep artment in which the officer or board islocated or in which the duty is required to be performed.CPLR 6311(1). The preliminary injunction states that Lieutenant Governor Ravitch "ispreliminarily enjoined from exercising any of the powe rs of the office of Lieutenant-Governor ofthe State of New York." (Order at 18). It therefore directly purports to stop a state officer fromperforming his statutory duties. It is hard to imagine an injunction that is closer to the kind ofinjunction contemplated by CPLR 6311(1).

In Bull v. Stichman, the Court held that the plaintiff's application for a preliminaryinjunction restraining defendants, who were state officials, from making certain disbursements of

1 Appellants submit that there are numerous additional grounds for reversal of the TrialCourt's Order, many of which are discussed in the memoranda of law in support of their movingpapers in opposition to the motion for preliminary injunction and in support of their motion todismiss Respondents complaint, which are attached as Exhibits D and E to the Gay Affirmation.Appellants will address those arguments in more detail at the appropriate time or as requested bythe Court, and this submission is without waiver of any additional appellate arguments.

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state funds pend ing the final determination of plaintiffs action could not be issued in ErieCounty (whe re the action was comme nced), because any such application was required to bemade in the Third Judicial Department, where the officials were located and where the relevantduty was performed. 72 N.Y.S.2d 202, 206 (Sup. Ct. 1947), aff'd 273 A.D. 311, affd 298 N.Y.516 (N.Y. 1948) (referring to section 879 of the CPL R, predecessor to CPL R 6311(1)) (citedwith approval in N ew Y ork Central Railway Co. v. L efkow itz, 12 N.Y.2d 305 (N .Y. 1963). TheCourt stated:

In this case, the defenda nts, public officers and public board, are located at the se at ofgovernment in the C ity of A lbany, New York, which is in the Third Judicial Department,and according an order for a tempo rary injunction is properly m ade at a Special Term inthe Third Judicial District, which is in the Third Judicial Department. Indeed, it cannotbe made elsewhere.

Bull, 72 N.Y.S.2d at 206 (emphasis added).So here. The trial court, which was located in the Second Judicial Departm ent, erred in

granting Respondents' request for a preliminary injunction. A preliminary injunction cannot begranted within the Second Judicial Department, but may be granted only at a Suprem e Court inthe Third Department, where all relevant defendant public officials in this action are "located."

The trial court 's conclusion that Respon dents were not seeking to enjoin exercise of astatutory duty under CPLR 6311(1) because the Governor had no statutory duty to appoint aLieutenant Governor (Order at 10) is circular and erroneous. It amounts to a conclusion that anyattempt to restrain a public officer from performing his or her duty should not be governed byCPLR 6311 because the challenged conduct is purportedly invalid. This reasoning puts the cartbefore the horse, and if accepted, would enable every plaintiff seeking injunctive relief in respectof state action to avoid the requirements of CPLR 6311. Moreover, the preliminary injunctiondoes not enjoin the Governor from appointing a Lieutenant Governor. and Lieutenant GovernorRavitch has, in fact, been appointed to and sworn into office. Instead, the preliminary injunction

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restrains Lieutenant Governor Ravitch, and seeks to prevent him from "exercising any of thepowers of the o ffice of Lieutenant-Governor" a restraint which necessarily includes any and allstatutory duties that Lieutenant Gov ernor Ravitch ha s. Pursuant to CPI,R 6311, this relief canonly be sought in the Third D epartment. The trial court, which was located in the SecondDepartment, therefore erred in granting the preliminary injunction.

The trial court also erred by finding CPLR 6311 inap plicable on the theory that therequested injunction w as merely "incidental" to the declaratory relief sought in this matter.(Order at 9). First, the court erred in characterizing plaintiff's request for a preliminaryinjunction as "incidental" to other relief sought. To the contrary, Respondent's request for apreliminary injunction was the only remedy properly before the trial court. Indeed, it was theonly relief granted by the trial court in the July 21 Order. As the sole remedy, the preliminaryinjunction could not be said to be "incidental" to any other relief.

Second, the trial judge's reliance on Lefkowitz the sole au thority cited in its order --(Order at 9) is misplaced. In Lefkowitz, plaintiffs brough t an action for a dec laration that certainsections of the Railway Laws were unconstitutional and for a permanent injunction restrainingthe further enforcement of those statutes. 12 N.Y.2d at 309. They did not seek any preliminaryinjunctive relief. The Court of Appeals relied on this important distinction and held that becauseplaintiffs sought only declaration and a permane nt injunction, the restriction in section 879 o f theCivil Practice Act (the predecessor to 6311), which applied only preliminary relief, did not applyto the plantiffs' action. Here, by contrast, Respondent's request for a preliminary injunction wasthe sole remedy properly before the trial court and was the sole remedy granted by the court. ItN. as not "incidental" to the major relief demanded; it was the only relief demanded.


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B. There Is Irreparable Harm Absent A Stay Pending AppealThis injunction directly interferes with the Go vernor's agenda and proh ibits the

Lieutenant Governor's performance of the public's business. In direct contravention of CPLR6311, the injunction nullifies the decision of Governo r Paterson, who w as elected on a statewidebasis with former Go vernor Spitzer in favor of two state senators who h ave no stand ing to bringthis lawsuit. This injunction should not stand.

"In the absence of extraordinary circumstances, an officer should not be enjoined fromthe performance of the business of the public pending the o utcome of an ouster proceeding."Cowan v. W ilkinson, 828 S.W.2d 610, 616 (Ky. 1992). See also In re Incorporation of Village ofPurchase, 363 N.Y.S.2d 183, 184-185 (N.Y. Sup 1974) ("The C ourt will restrain a public officerfrom the p erformance of duties . . . only in the most extraordinary circumstances"); Peterson v .Corbin, 275 A.D.2d 35, 38 (2d D ep't 2000) (courts may no t enjoin a public officer from acting"absent extraordinary circumstances"). An injunction that directly interferes with the LieutenantGovernor's performanc e of the p ublic's business should not be impo sed lightly, let alone on e thatdirectly interferes with the Governor's own performance of the public's business.

Contrary to the Trial Court's conclusion, the harm that will arise from delaying theappointment and functioning of Lieutenant Governor Ravitch is manifest and irreparable.Article IV, Section 1 of the New York Constitution makes clear that the Governor andLieutenant Governor are intended to be a political unit. Indeed, the Governor and the LieutenantGovernor are currently working hand-in-hand to address the grave financial circumstances inwhich the state finds itself. The preliminary injunction issued below completely disrupts thatConstitutional design. Because the Constitution vests all executive power in a single officer asopposed to a multi-member body such as the Legislature it is especially important that thecourts not impede the Governor in his executive functions. Disrupting the Governor's choice of

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successor is a direct interference w ith the Governor's exercise of h is constitutional rights andresponsibilities. Every d ay the preliminary injunction stands, it continues to interfere w ith thatfunction. That alone is reason to stay the preliminary injunction until such time as the Appe llateDivision can hear this matter.

Moreover, although the stalema te has passed m omen tarily, the Senate is subject to dailyinstability. There are currently threatened defections and power-shifts between the parties,which co uld at any minu te result in a shift in the identity of the Tempo rary President of theSenate. The preliminary injunction issued by the trial court therefore creates unce rtainty that"prevent[s] public business from being effectively carried on." V alentin v. Simon, 98 Misc.2d 5,10 (Sup. Ct. N.Y. Co . 1979); see Chatham T ow ers, Inc. v. B loomberg, 6 Mise.3d 814 (Sup. Ct.N.Y. Co. 2004) ("Whene ver a request for a preliminary injunction implicates public interests, acourt should give some c onsideration to the balance of such interests in deciding whether aplaintiff 's threatened irreparable injury and probability of success on the merits warrantsinjunctive relief."). This concern is especially acute Oven the current dire economic situationfacing the State. As the Governor himself made clear in his address to the People of New Yorkon July 8, 2009, New York is in the w orst fiscal and eco nom ic crisis since the Great D epression.It is a time when government action is essential to stabilizing the State's economy and avoidingdire consequences. At this crucial time, the preliminary injunction issued by the trial courtcreates grave uncertainty about succession. If the Governor were to die or suffer an illness or

accident that incapacitated him, while such an injunction were in effect, the well-being of theState would be imperiled because it would not be immediately clear who is le gally authorized toperform his duties or who would be next in the line of succession. Moreover, the stability gained

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by Lieutenant Governor Raviteh's appointment w ill be underm ined. The state cannot afford anymore instability.

In addition, because of past uncertainty as to who ho lds the office of Temp oraryPresident, the Governor ha s not traveled outside the State's borders since the stalem ate arose onJune 8, 2009. Such travel is often essential for the G overnor to ca rry out his du ties. Theissuance of a preliminary injunction that casts doubt on the succession process similarly compelsthe Governor not to travel outside the State. This is not an equitable resolution for the p eople ofNew York.

The equities in this case thus we igh heavily in favor of a stay pending app eal of thepreliminary injunction.H. THE COURT SHOULD ORDER AN EXPEDITED APPEAL

Expedited appeal is appropriate where, as here, the issues are of public importance. SeeAmalgamated Transit Union, Local 1202 v. Greyhound Lines, Inc., 157 A.D.2d 167 at 167 (1stDepreplacing striking employees and granting motion to expedite appeal, referring to "the publicimportance of the issue"); Matter of Troy Police Benev. and Protective Assn, Inc (City of Troy293 A.D.2d 995, 995 (3d Dep't 1996) (granting request for expedited appeal).

Regardless of whether a stay is granted, this Court should order an expedited briefingschedule and assign the appeal to the Active Case Management Program. The issues at stake inthis ease the occup ancy of the second highest rankin g executive office in the state c ould notbe more important to the people of New York. Consistent with these stakes, both sides to thiscase have sought expedited process in this case, and have briefed the merits extensively in theTrial Court. Accordingly, expedited appeal is appropriate.

't 1990) (staying temporary restraining order issued by trial court enjoining employer from

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QUINN, EMANUEL, UR HART, OLIVER& HEDGES P

Kathieul anFaityRob rt Jum51 Madison Avenue22d FloorNew York, NY 10022(212) 849-7000CONCLUSIONFor the foregoing reason s, Appellants respectfully request this Court enter an Orderstaying the order appealed below pursua nt to CPLR 5518 and C PLR 5519(c); or in thealternative, that this court deny the instant motion as acad emic on the grounds that Ap pellants areentitled to a statutory stay pursua nt to CPLR 5519 (a), and that pending the hearing an ddetermination of the within appeal that the order appealed below is hereby stayed, and further onthe appea l from the order below, and that the app eal in this matter be heard in an exp edited basisand that the appeal be assigned to the Active Case M anagement Program and that a SchedulingOrder be issued, together w ith such other and further relief as the Court deem s just andappropriate. Respectfully submitted,Counsel for A ppellantsDate: July 22, 2009

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Skelos v. Paterson -- Memorandum of Law

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