Professional Documents
Culture Documents
KATHLEEN M. SULLIVAN
FAITH E. GAY
ROBERT JUMAN
51 Madison Avenue
22d Floor
New York, NY 10022
(212) 849-7000
Late yesterday, the trial court granted Respondents a preliminary injunction which stated
that Lieutenant Governor Ravitch "is preliminarily enjoined from exercising any of the powers of
the office of Lieutenant-Governor of the State of New York." (Order at 18.). CPLR 6311 states
that a "preliminary injunction to restrain a public officer. . . of the state from performing a
statutory duty may be granted only by the supreme court at a term in the department in which the
officer . . . is located or in which the duty is required to be performed." By this order to show
cause, appellants seek an emergency stay of the above referenced preliminary injunction, which
was granted without authority contrary to the plain text of CPLR 6311, and will cause irreparable
STATEMENT OF FACTS
Appellants respectfully refer the Court to the facts set forth in the Affirmation of Faith E.
Gay dated July 22, 2009 (Gay Affirmation), including their memoranda of law in support of their
moving papers in opposition to the motion for preliminary injunction and in support of their
motion to dismiss Respondents' complaint, which are attached as Exhibits D and E to the Gay
Affirmation.
ARGUMENT
The court below granted an injunction that CPLR 6311 expressly forbids. The injunction
restrains the second highest officer in the state from performing his statutory duties. Under
CPLR 5518, the Appellate Division has the power to grant, modify, limit, and vacate either a
preliminary injunction or a temporary restraining order while the ease is on appeal (i.e., after a
notice of appeal has been filed•and served). In effect, it gives the appellate division during the
appeal stage the same powers that the supreme court has during the action's pretrial and trial
stage. See, e.g., Humane Soc. of U.S. v. County of Monroe, 192 A.D.2d 1139 (4th Dep't 1993)
(vacating preliminary injunction pursuant to CPLR 5518 because plaintiff failed to show
likelihood of success on the merits); Broadvvall America, Inc. v. Bram Will-El LLC, 821
N.Y.S.2d 190, 191 (1st Dep't 2006) (interim relief granted under CPLR 5518 pending application
for stay pending appeal). Moreover, under CPLR 5519(a)(1), a stay of all proceedings to enforce
a judgment is automatic when the appellant is an officer of the state, and under CPLR 5519(c),
the court to which an appeal is taken may stay all proceedings to enforce the order appealed
from.
An application to the Appellate Division for relief pending resolution of an appeal under
CPLR 5518 will be reviewed de novo, using the same standards as applied by the Supreme Court
in respect of the original order. See Romano v. Sullivan County Harness Racing Assn, Inc., 106
A.D.2d 819 (3d Dep't 1984); see also Humane Soc. of US. v. County of Monroe, 192 A.D.2d
1139 (4th Dep't 1993) (vacating preliminary injunction pursuant to CPLR 5518 because plaintiff
failed to show likelihood of success on the merits). On an application for an order pending
appeal in respect of a preliminary injunction, this Court asks whether there is a reasonable
probability of success on appeal and whether plaintiff has demonstrated irreparable injury.
Courts will order a stay of a trial court's order under 5519(c) pending resolution of an
appeal to preserve the status quo or where to do so would be in the public interest". Town of
Orangetown v. Magee, 218 A.D.2d 733 (2d Dep't 1995) (ordering a stay of enforcement of trial
court and appellate court orders pursuant to CPLR 5519(c) pending determination of the appeal
to the COurt of Appeals); Russell v. New York City Housing Authority, 608 N.Y.S2d 592 (N.Y.
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Sup. Ct. 1992) (granting stay of order pursuant to CPLR 5519(c) pending appeal as "in the public
interest").
The trial court erred in granting the Respondents' request for preliminary relief because
such relief could not be issued out of Nassau County.' Preliminary injunctions are governed by
article 63 of the CPLR, and CPLR 6311 requires that a request for an injunction against a public
official be made in the Judicial Department in which the restraint is to be made applicable. More
than a venue provision, CPLR 6311 literally limits the power of courts to issue preliminary
injunctions:
CPLR 6311(1). The preliminary injunction states that Lieutenant Governor Ravitch "is
preliminarily enjoined from exercising any of the powers of the office of Lieutenant-Governor of
the State of New York." (Order at 18). It therefore directly purports to stop a state officer from
performing his statutory duties. It is hard to imagine an injunction that is closer to the kind of
In Bull v. Stichman, the Court held that the plaintiff's application for a preliminary
injunction restraining defendants, who were state officials, from making certain disbursements of
1 Appellants submit that there are numerous additional grounds for reversal of the Trial
Court's Order, many of which are discussed in the memoranda of law in support of their moving
papers in opposition to the motion for preliminary injunction and in support of their motion to
dismiss 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 by
the Court, and this submission is without waiver of any additional appellate arguments.
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state funds pending the final determination of plaintiffs action could not be issued in Erie
County (where the action was commenced), because any such application was required to be
made in the Third Judicial Department, where the officials were located and where the relevant
duty 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 CPLR, predecessor to CPLR 6311(1)) (cited
with approval in New York Central Railway Co. v. Lefkowitz, 12 N.Y.2d 305 (N.Y. 1963). The
Court stated:
In this case, the defendants, public officers and public board, are located at the seat of
government in the City of Albany, New York, which is in the Third Judicial Department,
and according an order for a temporary injunction is properly made at a Special Term in
the Third Judicial District, which is in the Third Judicial Department. Indeed, it cannot
be made elsewhere.
So here. The trial court, which was located in the Second Judicial Department, erred in
granted within the Second Judicial Department, but may be granted only at a Supreme Court in
the Third Department, where all relevant defendant public officials in this action are "located."
The trial court's conclusion that Respondents were not seeking to enjoin exercise of a
statutory duty under CPLR 6311(1) because the Governor had no statutory duty to appoint a
Lieutenant Governor (Order at 10) is circular and erroneous. It amounts to a conclusion that any
attempt to restrain a public officer from performing his or her duty should not be governed by
CPLR 6311 because the challenged conduct is purportedly invalid. This reasoning puts the cart
before the horse, and if accepted, would enable every plaintiff seeking injunctive relief in respect
of state action to avoid the requirements of CPLR 6311. Moreover, the preliminary injunction
does not enjoin the Governor from appointing a Lieutenant Governor. and Lieutenant Governor
Ravitch 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 the
powers of the office of Lieutenant-Governor" — a restraint which necessarily includes any and all
statutory duties that Lieutenant Governor Ravitch has. Pursuant to CPI,R 6311, this relief can
only be sought in the Third Department. The trial court, which was located in the Second
The trial court also erred by finding CPLR 6311 inapplicable on the theory that the
requested injunction was merely "incidental" to the declaratory relief sought in this matter.
(Order at 9). First, the court erred in characterizing plaintiff's request for a preliminary
injunction as "incidental" to other relief sought. To the contrary, Respondent's request for a
preliminary injunction was the only remedy properly before the trial court. Indeed, it was the
only relief granted by the trial court in the July 21 Order. As the sole remedy, the preliminary
Second, the trial judge's reliance on Lefkowitz — the sole authority cited in its order --
(Order at 9) is misplaced. In Lefkowitz, plaintiffs brought an action for a declaration that certain
sections of the Railway Laws were unconstitutional and for a permanent injunction restraining
the further enforcement of those statutes. 12 N.Y.2d at 309. They did not seek any preliminary
injunctive relief. The Court of Appeals relied on this important distinction and held that because
plaintiffs sought only declaration and a permanent injunction, the restriction in section 879 of the
Civil Practice Act (the predecessor to 6311), which applied only preliminary relief, did not apply
to the plantiffs' action. Here, by contrast, Respondent's request for a preliminary injunction was
the sole remedy properly before the trial court and was the sole remedy granted by the court. It
N. as not "incidental" to the major relief demanded; it was the only relief demanded.
B. There Is Irreparable Harm Absent A Stay Pending Appeal
This injunction directly interferes with the Governor's agenda and prohibits the
6311, the injunction nullifies the decision of Governor Paterson, who was elected on a statewide
basis with former Governor Spitzer in favor of two state senators who have no standing to bring
"In the absence of extraordinary circumstances, an officer should not be enjoined from
the performance of the business of the public pending the outcome of an ouster proceeding."
Cowan v. Wilkinson, 828 S.W.2d 610, 616 (Ky. 1992). See also In re Incorporation of Village of
Purchase, 363 N.Y.S.2d 183, 184-185 (N.Y. Sup 1974) ("The Court will restrain a public officer
from the performance of duties . . . only in the most extraordinary circumstances"); Peterson v.
Corbin, 275 A.D.2d 35, 38 (2d Dep't 2000) (courts may not enjoin a public officer from acting
"absent extraordinary circumstances"). An injunction that directly interferes with the Lieutenant
Governor's performance of the public's business should not be imposed lightly, let alone one that
directly 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 the
Article IV, Section 1 of the New York Constitution makes clear that the Governor and
Lieutenant Governor are intended to be a political unit. Indeed, the Governor and the Lieutenant
Governor are currently working hand-in-hand to address the grave financial circumstances in
which the state finds itself. The preliminary injunction issued below completely disrupts that
Constitutional design. Because the Constitution vests all executive power in a single officer — as
opposed to a multi-member body such as the Legislature — it is especially important that the
courts not impede the Governor in his executive functions. Disrupting the Governor's choice of
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successor is a direct interference with the Governor's exercise of his constitutional rights and
responsibilities. Every day the preliminary injunction stands, it continues to interfere with that
function. That alone is reason to stay the preliminary injunction until such time as the Appellate
Moreover, although the stalemate has passed momentarily, the Senate is subject to daily
instability. There are currently threatened defections and power-shifts between the parties,
which could at any minute result in a shift in the identity of the Temporary President of the
Senate. The preliminary injunction issued by the trial court therefore creates uncertainty that
"prevent[s] public business from being effectively carried on." Valentin v. Simon, 98 Misc.2d 5,
10 (Sup. Ct. N.Y. Co. 1979); see Chatham Towers, Inc. v. Bloomberg, 6 Mise.3d 814 (Sup. Ct.
N.Y. Co. 2004) ("Whenever a request for a preliminary injunction implicates public interests, a
court should give some consideration to the balance of such interests in deciding whether a
plaintiff's threatened irreparable injury and probability of success on the merits warrants
injunctive relief."). This concern is especially acute Oven the current dire economic situation
facing the State. As the Governor himself made clear in his address to the People of New York
on July 8, 2009, New York is in the worst fiscal and economic crisis since the Great Depression.
It is a time when government action is essential to stabilizing the State's economy and avoiding
dire consequences. At this crucial time, the preliminary injunction issued by the trial court
creates 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 the
State would be imperiled because it would not be immediately clear who is legally authorized to
perform 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 will be undermined. The state cannot afford any
more instability.
President, the Governor has not traveled outside the State's borders since the stalemate arose on
June 8, 2009. Such travel is often essential for the Governor to carry out his duties. The
issuance of a preliminary injunction that casts doubt on the succession process similarly compels
the Governor not to travel outside the State. This is not an equitable resolution for the people of
New York.
The equities in this case thus weigh heavily in favor of a stay pending appeal of the
preliminar y injunction.
Expedited appeal is appropriate where, as here, the issues are of public importance. See
Amalgamated Transit Union, Local 1202 v. Greyhound Lines, Inc., 157 A.D.2d 167 at 167 (1st
Dep 't 1990) (staying temporary restraining order issued by trial court enjoining employer from
replacing striking employees and granting motion to expedite appeal, referrin g to "the public
importance of the issue"); Matter of Troy Police Benev. and Protective Assn, Inc (City of Troy
293 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 briefing
schedule and assign the appeal to the Active Case Management Program. The issues at stake in
this ease — the occupancy of the second highest rankin g executive office in the state — could not
be more important to the people of New York. Consistent with these stakes, both sides to this
case have sought expedited process in this case, and have briefed the merits extensively in the
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CONCLUSION
For the foregoing reasons, Appellants respectfully request this Court enter an Order
staying the order appealed below pursuant to CPLR 5518 and CPLR 5519(c); or in the
alternative, that this court deny the instant motion as academic on the grounds that Appellants are
entitled to a statutory stay pursuant to CPLR 5519(a), and that pending the hearing and
determination of the within appeal that the order appealed below is hereby stayed, and further on
the appeal from the order below, and that the appeal in this matter be heard in an expedited basis
and that the appeal be assigned to the Active Case Management Program and that a Scheduling
Order be issued, together with such other and further relief as the Court deems just and
appropriate.
Respectfully submitted,
Kathie Sul an
Fait ay
Rob rt Jum
51 Madison Avenue
22d Floor
New York, NY 10022
(212) 849-7000