59 N.Y.2d 314 | NY | 1983
Lead Opinion
OPINION OF THE COURT
The Taylor Law proscription against strikes by public employees neither preempts the right of persons injured by an unlawful strike to sue for damages nor provides a private right to sue for violation of its provisions. The causes of action pleaded by plaintiffs are, however, either not recognized under New York law or as pleaded do not sufficiently state a cause of action. The order of the Appellate Division should, therefore, be affirmed, with costs.
I
This appeal involves separate action by two New York City law firms to recover damages resulting from the
The second action, begun in New York County by Jackson, Lewis, Schnitzler and Krupman (“Jackson, Lewis”), likewise alleges an intentional strike in violation of the statute and preliminary injunction. It was, however, brought only against the TWU and its Local 100, and officers of both, sought but $25,000 in damages, and did not ask class action status. It declared on six causes of action: for violation of the Taylor Law, prima facie tort, intentional interference with plaintiff’s business, willful injury, conspiracy and breach of plaintiff’s rights as third-party beneficiary of the contract between defendant unions and the New York City Transit Authority (NYCTA) and the Manhattan and Bronx Surface Transit Operating Authority (MABSTOA).
By stipulation the New York County action was removed to Queens and joined with the Queens action for trial. Thereafter defendants moved pursuant to CPLR 3211 (subd [a], par 7) to dismiss both actions for failure to state a cause of action. Special Term denied the motions, except as to the Jackson, Lewis contract cause of action (108 Misc 2d 458). On cross appeals to the Appellate Division, that court, in an extensive opinion, modified the order appealed from to dismiss both complaints in their entirety (88 AD2d
II
The effect of the Taylor Law, whether as preemptive of previously permissible private damage actions or as initiating a new form of private action for damages resulting from a strike in violation of its provisions, turns on what the Legislature intended. The general rule is and long has been that “when the common law gives a remedy, and another remedy is provided by statute, the latter is cumulative, unless made exclusive by the statute” (Candee v Hayward, 37 NY 653, 656; accord Hardmann v Bowen, 39 NY 196, 198; Jordan & Skaneateles Plankroad Co. v Morley, 23 NY 552, 554; Wetmore v Tracy, 14 Wend 250, 255). Likewise, as we noted in Amberg v Kinley (214 NY 531, 535-536): “Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense ‘must to a great extent depend on the purview of the legislature in the particular statute and the language which they have there employed.’ (Atkinson v New Castle & Gateshead W.W. Co., L.R. [2 Exch. Div.] 441; Taylor v L.S. & M.S. Ry. Co., 45 Mich. 74.)” (See, also, Abounader v Strohmeyer & Arpe Co., 243 NY 458,463-464; Daggett v Keshner, 284 App Div 733, 738, mod on other grounds 6 AD2d 503, affd 7 NY2d 981.)
Analysis begins, of course, with the statute itself. It contains no explicit statement as to either exclusivity or intent to create a private cause of action. Examination of the history and genesis of the Taylor Law leads us to conclude, however, that it is cumulative, not exclusive, and was not intended to establish a new cause of action.
New York’s first statutory proscription against strikes by public employees was the Condon-Wadlin Act, passed in
On January 15, 1966, prompted by a massive strike of New York City transit workers which began January 1, 1966, Governor Rockefeller appointed a Committee on Public Employee Relations, chaired by Professor George W. Taylor. The committee was charged “to make legislative proposals for protecting the public against the disruption of vital public services by illegal strikes, while at the same time protecting the rights of public employees” and by March 31, 1966 issued its Final Report recommending that: “(1) The Condon-Wadlin Law should be repealed and
A bill introduced in the Senate based on that report, and supported by the Governor, passed that body on June 7, 1966 (Hanslowe, 1966 Survey of NY Law-Labor Relations Law, 18 Syracuse L Rev 247, 253). The Assembly, however, on the same day passed its own bill, in which the only explicit sanction was discipline pursuant to section 75 of the Civil Service Law. The impasse between the two houses continued into the 1967 session, the Speaker of the Assembly originally opposing penalties altogether, but later modifying that position to permit penalties which would deter strikes “ ‘but not to such an extent that they would destroy unions’ ” (Wolk, p 75, citing Maiorana, Travia Proposes Strike Penalties, New York Times, March 3, 1967, p 22, col 6). The Taylor Law (officially the Public Employees’ Fair Employment Act) was finally adopted in April, 1967, effective September 1,1967 (L 1967, ch 392). It declared it to be “the public policy of the state and the purpose of this act to promote harmonious and cooperative
Enactment of the 1967 law did not end the problem, however. In 1968, Governor Rockefeller re-established the Committee on Public Employee Relations and charged it to examine the experience under the Taylor Law. The committee reported its view that the law was “working well” and that the limited experience under it did not “provide an adequate basis for now recommending changes in the Act” (New York Governor’s Committee on Public Employee Relations, Interim Report, June 17,1968 [hereafter “Interim Report”], Transmittal Letter). Nevertheless, a number of changes were made in the act in 1969 (L 1969, ch 24). Striking employees became subject not only to disciplinary action but also to a one-year probationary period
The same act made clear, however, the Legislature’s intent to protect employee organizations from destruction, even though they may have participated in an illegal strike. Thus, although the 18-month limitation on forfeiture of the union’s dues deduction privilege was removed, both that provision (Civil Service Law, § 210, subd 3, par [f]) and section 751 (subd 2, par [a]) of the Judiciary Law (dealing with the fines imposable for criminal contempt) were amended to make the union’s ability to pay a factor in the determination of the penalty to be assessed.
Against that background, for a number of reasons, legislative intent to provide a private remedy cannot be discerned. Although Jackson, Lewis is “one of the class for whose especial benefit the statute was enacted” and a right of action in a member of the class may be implied when clearly in furtherance of the legislative purpose (compare Abounader v Strohmeyer & Arpe Co., 243 NY 458, 465, supra [manufacturer held for fraud with respect to foodstuffs, without regard to privity because otherwise “the statute would be largely emasculated of possible benefits”], with Steitz v City of Beacon, 295 NY 51, 54-55 [private right of action against city for failure to quench a fire started by another will not be implied from a statute requiring the city to maintain a fire department, in view of the crushing burden that would be imposed]), the provisions of the present statute and the history of their enactment strongly suggest that a private action based upon the statute was not intended. True such an action would be a powerful deterrent to public employee strikes, but it would also, as the claim for damages in the Burns Jackson complaint suggests, impose a crushing burden on the unions and each of the employees participating in the strike, who could be held jointly and severally liable with the union for the damages resulting from violation (see as to overdeterrence, ALI Federal Securities Code [Proposed Official Draft], § 1722, subd [a]). It would do so, moreover, notwithstanding that the penalties of the Condon-Wadlin
Implication of a private action is, moreover, inconsistent with the purposes of the Taylor Law. Its primary purposes, as both Taylor Committee reports emphasize, was to defuse the tensions in public employer-employee relations by reducing the penalties and increasing reliance on negotiation and the newly created Public Employment Relations Board as a vehicle toward labor peace (see Securities Investor Protection v Barbour, 421 US 412, 420; National R. R. Passenger Corp. v National Assn. of R. R. Passengers, 414 US 453, 464, reh den 415 US 952). A private action, which would impose per se liability without any of the limitations applicable to the common-law forms of action hereafter considered, would inevitably upset the delicate balance established after 20 years of legislative pondering. As the Washington Supreme Court has noted, “the schemes created by statute for collective bargaining and dispute resolution must be allowed to function as intended, without the added coercive power of the courts being thrown into the balance on one side or the other” (Burke & Thomas v International Organization of Masters, Mates & Pilots, 92 Wn 2d 762, 772; accord Lamphere Schools v Lamphere Federation of Teachers, 400 Mich 104, 131). Having explicitly directed that in assessing penalties PERB and the courts consider the union’s ability to pay and refused to enact a decertification provision, the Legislature must be
That no new per se action was contemplated by the Legislature does not, however, require us to conclude that the traditional, though more limited, forms of action are no longer available to redress injury resulting from violation of the statute. The penalties imposable by PERB and the courts for such a violation provide some solace, but no recompense, for those injured by acts which not only violate the statute but also constitute a breach of duty, independent of the statute, which common-law remedies made compensable. Although it is within the competence of the Legislature to abolish common-law causes of action (Montgomery v Daniels, 38 NY2d 41), there is no express provision to that effect in the statute, notwithstanding numerous amendments of the Taylor Law
Ill
The conclusion that the statute is not exclusive requires that we consider the common-law causes of action asserted in the two complaints, the allegations of which are for purposes of such consideration deemed true (219 Broadway Corp. v Alexander’s, Inc., 46 NY2d 506; see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.29). We conclude, for the reasons spelled out below, that neither complaint sufficiently states a cause of action.
A
The cause of action common to the two complaints is that in prima facie tort. The elements of such a cause of action as stated in prior New York cases are (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, and (4) by an act or series of acts that would otherwise be lawful (ATI, Inc. v Ruder & Finn, 42 NY2d 454, 458; see Wehringer v Helmsley-Spear, Inc., 91 AD2d 585, affd 59 NY2d 688; 2 NY PJI 624). Plaintiff suggests, however, that it is anomalous to deny a cause of action on the ground that the injury-causing act was imlawful and the balancing analysis espoused in Comment e of section 870 of the Restatement of Torts, Second, lends some credence to that argument.
It can be argued that unlawful acts are not covered by prima facie tort because they will normally be compensable in traditional tort forms of action, unless the policy underlying the traditional tort excludes such an act. But it
As it has evolved prima facie tort is neither a “ ‘catch-all’ alternative for every cause of action which cannot stand on its legs” (Belsky v Lowenthal, 62 AD2d 319, 323, affd 47 NY2d 820), nor will the existence of a traditional tort foreclose alternative pleading of prima facie tort, though, of course, double recoveries will not be allowed (Board of Educ. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 406). The “categories” argument, therefore, need not exclude an unlawful act, as, indeed, the Restatement of Torts, Second, has recognized (§ 870, Comment h).
We need not now decide whether an unlawful act can be the predicate for prima facie tort, for there is no recovery in prima facie tort unless malevolence is the sole motive for defendant’s otherwise lawful act or, in Justice Holmes’ characteristically colorful language, unless defendant acts from “disinterested malevolence” (American Bank & Trust Co. v Federal Bank, 256 US 350, 358; see Squire Records v Vanguard Recording Soc., 25 AD2d 190, affd 19 NY2d 797; Morrison v National Broadcasting Co., supra, at p 287; 2 NY PJI 624), by which is meant “that the genesis which will make a lawful act unlawful must be a malicious one unmixed with any other and exclusively directed to injury and damage of another” (Beardsley v Kilmer, 236 NY 80, 90).
Here the prima facie tort causes of action cannot stand because, although they allege intentional and malicious action, they do not allege that defendants’ sole motivation was “disinterested malevolence.”
B
The Burns Jackson complaint alleges in its second cause of action that the strike engaged in by defendants “caused
The damages here alleged are for additional out-of-pocket expenses resulting from defendants’ conduct and for loss of business profits. Such damages, though differing as to the nature of the expense or the particular contract from which greater profit was expected, were, as the Appellate Division noted (88 AD2d, at p 71), suffered by every person, firm and corporation conducting his or its business or profession in the City of New York. Indeed, the class as envisioned by plaintiff’s complaint consists of “professional and business entities conducted for profit * * * that rely on the public transportation system serving the City of New York to enable them to practice their profession and to operate their businesses and that have been damaged as a consequence of the defendants’ disruption of the service provided by that system.”
When the injury claimed to be peculiar is of the same kind suffered by all who are affected, when it “is common
C
The two remaining causes of action may be dealt with more summarily. Jackson, Lewis’ brief devotes but a two-sentence footnote to its third cause of action for intentional interference with business. The complaint alleges that defendants “intentionally and maliciously interfered with the business of the plaintiff” to plaintiff’s special damage in that the productivity of partners and employees was reduced and extra expense incurred. What is apparently sought to be pleaded, therefore, is a claim within section 766A of the Restatement of Torts, Second, for causing plaintiff’s performance of its contracts with its clients to be more expensive or burdensome.
No New York case recognizing such a cause of action has been cited or has been found by us. We need not, however, now decide whether such a cause of action should be recognized by us in other situations. The interference here alleged was but an incidental result of defendants’ conduct and, although that conduct was in violation of the Taylor Law, we conclude that as a matter of policy we should not recognize a common-law cause of action for such incidental interference when the Legislature has, in establishing an otherwise comprehensive labor plan for the governance of public employer-employee relations, failed to do so (De Angelis v Lutheran Med. Center, 58 NY2d 1053; Albala v City of New York, 54 NY2d 269; Donohue v
The Jackson, Lewis contract cause of action alleges that contracts existed between defendant unions and NYCTA and MABSTOA up to and including March 31, 1980, that they continued by operation of law until negotiation of successor agreements ended, that between April 1 and April 11,1980, defendants and their members engaged in a strike against NYCTA and MABSTOA in violation of the contracts, that plaintiff is a third-party beneficiary of the contracts and that plaintiff was damaged by their breach.
A third party may be the beneficiary of a public as well as a private contract (see Kornblut v Chevron Oil Co., 62 AD2d 831, affd 48 NY2d 853; 22 NY Jur 2d, Contracts, § 280). He may recover, however, only by establishing (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediaté, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655; Associated Flour Haulers & Warehousemen v Hoffman, 282 NY 173; Moch Co. v Rensselaer Water Co., 247 NY 160).
Existence of a valid and binding contract is, thus, a sine qua non (see Dunning v Leavitt, 85 NY 30, 35; 2 Williston, Contracts [3d ed], §§ 347, 394; 22 NY Jur 2d, Contracts, § 281). Here, however, the complaint itself states that the contracts expired on March 31,1980, and its suggestion that they continued by operation of law under Matter of Triborough Bridge & Tunnel Auth (District Council 37 & Local 1396) (5 PERB 3064) is inconsistent with the limitation on the so-called “Triborough Doctrine” stated by us in Matter of Board of Coop. Educational Servs. of Rockland County v New York State Public Employment Relations Bd. (41 NY2d 753, 757-758). The contracts having expired before the strike, any rights of plaintiff as a third-party beneficiary of them expired with it (Fulenwider v Firefighters Assn. Local Union 1784, 649 SW2d 268 [Tenn], supra).
For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs.
. Class certification has never been sought or granted, however.
. It is undisputed that the 1980 transit strike was in violation of the antistrike provisions of subdivision 1 of section 210 of the Civil Service Law. In fact, several of the defendants herein were the subject of criminal contempt findings and fines (see New York City Tr. Auth. v Lindner, 83 AD2d 573, mots for lv to app dsmd 55 NY2d 701).
. Because that order brings up for review all aspects of the order appealed from, including so much as affirmed dismissal of Jackson, Lewis’ contract cause of action (Pan Amer. World Airways v Overseas Raleigh Mfg., 49 NY2d 982), the question certified to us by the Appellate Division was unnecessary and is not answered.
. Not argued in Jackson, Lewis’ brief in this court and, therefore, not considered by us are the fourth and fifth causes of action for willful injury and for conspiracy.
. The probationary period provision was, however, repealed by chapter 465 of the Laws of 1978.
. The more particularly does this follow from the failure of either the Taylor Committee’s 1966 Final Report or its 1968 Interim Report, both of which included comprehensive discussion of deterrents, to make any reference to a private cause of action.
. (L 1974, chs 283, 724, 725; L 1975, ch 850; L 1977, chs 216, 677, 678, 817; L 1978, ch 465; L 1981, chs 378, 814.)
Concurrence Opinion
(concurring). I agree that appellants have not stated a cause of action. Inasmuch as the court expressly does not now decide “whether an unlawful act can be the predicate for prima facie tort,” the abstract discussion of the merits of the proposition (pp 332-333) is jurisprudentially unwise and will serve only to confuse litigants and the courts. The inappropriateness of the dicta is magnified by its inconclusiveness. Consequently, I cannot join in that part of the majority opinion.
Judges Jasen, Jones, Wachtler and Simons concur with Judge Meyer; Chief Judge Cooke concurs in result in a concurring memorandum.
Order affirmed, with costs. Question certified not answered as unnecessary.