OPINION OF THE COURT
These consolidated actions against the Transport Workers Union of America, AFL-CIO (TWU) and the Amalgamated Transit Union, AFL-CIO (ATU) their affiliated locals and their respective officials were brought in the aftermath of the 1980 transit strike.
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A. Action No. 1
The complaint in Action No. 1, brought by the law firm of Burns Jackson Miller Summit and Spitzer on behalf of themselves and all other professional and business entities similarly situated,
The second cause of action sounds in public nuisance, and alleges that the defendants instigated and engaged in the underlying strike intending to cause and causing widespread economic dislocation and damage to and substantial interference with, the public health, safety, comfort and convenience of persons within the New York City metropolitan area, thereby creating a nuisance. In addition to the general economic dislocation and damage to the public health, safety, comfort and convenience, plaintiff and other class members also allegedly suffered additional damages resulting from the necessity of incurring large out-of-pocket expenses merely to remain able to continue to practice their professions and operate their businesses during the pendency of the strike, as well as loss of substantial profits during its duration. Damages under the second cause of action were also alleged to have exceeded $50,000,000 a day.
B. Action No. 2
Action No. 2 was commenced in New York County by a second law firm, Jackson, Lewis, Schnitzler and Krupman,
The second cause of action sounds in prima facie tort, and alleges that the defendants willfully, intentionally, maliciously and without justification engaged in the illegal strike and, as a foreseeable result thereof, inflicted economic and financial damage upon the plaintiff during its pendency. No particular dollar amount of damages was alleged in this cause of action.
The third cause of action sounds in tortious interference with the plaintiff’s business, and alleges that the “Defendants, by their illegal strike, have intentionally and maliciously interfered with the business of the plaintiff, for which plaintiff is entitled to general and punitive damages as well as special and compensatory damages.”
The fourth cause of action sounds in malice or intentional tort and alleges that the “Defendants, by their illegal strike, have willfully, maliciously and tortiously injured plaintiff thereby entitling plaintiff to general and punitive damages, as well as special compensatory damages.”
The fifth cause of action is somewhat similar to the first and alleges a tortious conspiracy to violate the Taylor Law. In it, the plaintiff requests general and special damages in the amount of $25,000, as well as general and punitive damages in an unspecified amount.
The sixth and final cause of action sounds in breach of contract, and is predicated on the underlying collective bargaining agreements of which the plaintiff maintains it is a third-party beneficiary. The amended complaint alleges special damages in the amount of $25,000 as a result of this breach.
By notice of motion dated July 3, 1980 several of the codefendants in Action No. 1 moved to dismiss the complaint in that action due to the plaintiff’s alleged failure to state a cause of action. During the pendency of that motion, all of the parties to both actions entered into a written stipulation to consolidate the two actions in the Supreme Court, Queens County, upon certain terms and conditions, and by order dated August 6, 1980, the Supreme Court, Queens County (Rodell, J.), approved the consolidation: Pursuant to the stipulation, the July 3 motion to dismiss was deemed to be directed against the complaints in both actions, and not long thereafter, the remaining (i.e., non-moving) defendants, the Amalgamated Transit Union and George Link, also moved to dismiss. Unfortunately, none of the papers in support of either of these motions has been included in the record on appeal, which does, however, contain the opposition papers of Thomas C. Greble, Esq. of Jackson, Lewis, Schnitzler & Krupman.
In his affidavit, Greble recounts the history of the actions, and then goes on to assert that the two complaints state different, although concededly related, causes of action. The amended complaint in Action No. 2, however, names as defendants only the TWU and its officers, as the plaintiff therein decided to focus upon this union because of its “historical militancy and strike orientation, * * * unusual provisions in its collectively negotiated agreement, and its unique position to cause financial harm and loss to third parties by shutting down New York City’s public transit system”. Greble then outlined the TWU’s participation in other illegal strikes (notably, the 1966 transit strike), its subsequent threats to strike, its recent participation in the underlying (1980) strike, its open defiance of a court-ordered injunction, its apparent intransigence in the face of a $750,000 fine and its well-known, publicly announced policy of “no contract, no work”. In addition, Greble noted that the TWU’s collective bargaining agreement contains a specific “no-strike” provision, as well as more general language in its declaration of purpose which recognizes its obligation to provide uninterrupted service:
“The Authorities and the Union, in signing this agreement, are governed by their desires and obligations:
“A. To assure to the people of the City of New York efficient, economical, safe and dependable transportation service.
“B. To provide hourly paid employees of the Authorities and covered Clerical employees of the Operating Authority with wages, hours, working conditions and grievance procedures.
“C. To protect the interest of the public through a definite understanding of the respective rights, duties, privileges, responsibilities, and obligations of the Authorities, the employees, and the Union.” (Emphasis supplied.)
The affidavit concludes as follows:
“Considering the strategic ability of the TWU to shut down New York City’s transit system, coupled with the union’s militant history of illegal strikes and strike threats, and the failure of existing statutory and judicial remedies to achieve the Legislature’s stated objective of assuring uninterrupted public services, the Court is urged to hold that the amended complaint states one or more causes of action against the TWU. Experience has shown that an additional, supplementary remedy of a private damage action is needed to deter the TWU from striking and to vindicate this state’s strong policy against public sector strikes.
“wherefore, for all of the foregoing, as well as the arguments and authorities set forth in the accompanying Memorandum of Law, the motion to dismiss Jackson, Lewis’s amended complaint should be denied”.
D. The Decision at Special Term
In his decision (reported at
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It is important to note at the outset that in Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO (
The Caso action, however, was predicated on the theory of public nuisance, which is only one of the claims asserted in the actions presently before us. Moreover, the Caso court specifically declined to rule on the question of whether the complaint in that action was sufficient to state a cause of action in public nuisance or under any other theory, and was not presented with the question of whether to recognize an implied private right of action for an alleged violation of the Taylor Law. We must reach these questions on the present appeals.
In our view, the complaints must be dismissed in their entirety.
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The first cause of action of the amended complaint in Action No. 2 asserts a claim which is not predicated upon the alleged violation of any common-law concept of duty,
The first criterion listed in Cort v Ash (supra, p 78) is whether the plaintiff is “ ‘one of the class for whose especial benefit the statute was enacted’ ” (see DiCaprio v New York Cent. R.R. Co.,
This much established, it remains to be determined whether a statute intended to benefit the entire public may be held to imply a private right of action for its alleged violation. The New York cases on this question appear to go both ways. In Steitz v City of Beacon (
The second of the criteria set forth in Cort v Ash (
Against this second criterion, and leaning ever so slightly toward the denial of a private right of action, must be balanced the third of the Cort v Ash criteria, i.e., whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy. It should be self-evident that the practice of allowing private rights of action would serve to further the “no-strike” policies of the act, but while the prevention of public employee strikes was an important objective of the Taylor Law, it was not its sole purpose. As articulated in section 200 of the Civil Service Law, another of its purposes was to “promote harmonious and cooperative relationships between government and its employees * * * by (a) granting to public employees the right of organization and representation”. It should also be self-evident that permitting private damage suits will jeopardize the very existence of the public employee organizations encouraged by the Taylor Law just as effectively as it will deter the calling of strikes. Thus, the question boils down to which of these statutory objectives is the more important: the prevention of strikes or the preservation of the public employee bargaining apparatus. The Harvard case note (supra) discusses the pros and cons of allowing a private right of action from this perspective, and states (Note, Private Damage Actions Against Public
“Many of the more common insufficiencies of governmental enforcement are not present in the case of anti-strike laws. Courts have often implied a private damage action on the basis of a statute because violations might otherwise go undetected by an understaffed government agency. But. the number of public sector strikes in each governmental unit is relatively small, and it is unlikely that such strikes will go undetected, since their very purpose is to cause widespread disruption. Thus, a private damage action will not aid enforcement of the law by facilitating the discovery of violations. Finally, government officials are likely to be the most knowledgeable about the causes and effects of these strikes.
“There are, however, special problems with government enforcement of antistrike legislation. First, injunctions are usually imposed just prior to or during the strike, when they may not only fail to overcome heightened union militancy, but in fact exacerbate it. Second, the magnitude of the usual sanctions may be insufficient to offset the benefits of striking which accrue to the union. Moreover, those public officials responsible for the imposition of sanctions are likely to waive the penalties provided for by the statute in order to achieve a quick settlement of a strike. The union therefore does not have to include the costs of the statutory sanctions in evaluating whether a strike should be called. In effect, the sanctions are the weapon of one of the parties of the contract, and therefore become the subject of bargaining. The governmental officials would be less likely to ‘waive’ privately recoverable damages by means of an indemnification agreement, since such indemnification would impose positive costs on the governmental unit.
“Permitting a private damage action against a public sector union therefore imposes a cost on the union in addition to the specified sanctions, and thus would appear to be in furtherance of the goal of deterring public employee strikes. Once a strike in fact occurs, however, the existence of a private damage action could prolong the length of the strike, since the union is likely to include a demand forindemnification among its conditions for settlement with the public employer. As noted above, the public employer is unlikely to accede to such a demand, and it may be the very flexibility to overlook statutory sanctions that enables the government to achieve a speedy resolution of the strike. Thus, it should be recognized that the cost of preventing some strikes by the implication of a private damage action may be the prolongation of those strikes that do occur. [Emphasis Supplied.]
“If a certain balance of prestrike bargaining power was a consideration underlying the specified sanction, even if not the primary goal, the implication of a private damage action may have undesired consequences. It has been suggested that the implication of a damage action in favor of the public employer would upset the delicate balance of bargaining power struck by the legislature. This consideration would seem to apply equally well to private damage actions. But this view implies that the legislature intended that the possibility of public employee strikes play a role in the bargaining relationship, which seems unlikely in light of the explicit prohibition of such strikes.
“Courts have also expressed concern that the implication of a private damage action may place an unmanageable burden on the judiciary, creating ‘a labor law logjam in [the] courts.’ The implication doctrine provides no inherent means of limiting the cases. All intended beneficiaries of a service who suffer injury as a result of the disruption of the service by a public employee strike would be able to bring suit against the union under the implication doctrine. The requirement of special injury found in public nuisance law could be adopted as a limiting principle, and the general requirements of foreseeability and causation may provide further limitations, as in ordinary tort cases.”
In our recent decisions, this court appears to háve regarded the strike prevention purpose of the Taylor Law as the more important. In New York City Tr. Auth. v Lindner (
The enforcement scheme prescribed by the Taylor Law is quite comprehensive, and includes, inter alia, the power to enjoin an illegal strike, to punish a union and its members for their willful violation of any such injunction, to deprive a striking union of its “dues check-off” privileges for an indefinite period of time, and to deduct from the compensation of every public employee who has been found to have violated its provisions “an amount equal to twice his daily rate of pay for each day or part thereof” that he has been found to have participated in an illegal strike (Civil Service Law, §§ 210, 211; see Judiciary Law, §§ 750, 751). It is this very complexity which militates against a determination that an additional remedy, i.e., a private cause of action, should be deemed to exist. So, too, does the failure of the Legislature to enact a provision specifically authorizing such an action following the decision in Jamur Prods. Corp. v Quill (
Notwithstanding the foregoing, our holding here today that there is no private right of action for violations of the Taylor Law does not end our inquiry, for, as this court held in Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO (
A. Public Nuisance
The term “public nuisance” as employed in the law is not amenable to a precise definition, but has been variously described as follows:
“A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency (Restatement, Torts, notes preceding § 822, p 217; see Penal Law, § 240.45). It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all (New York Trap Rock Corp. v Town of Clarkston,299 NY 77 , 80), in a manner such as to offend public morals, interfere with use * * * or injure the property, health, safety or comfort of a considerable number of persons (Melker v City of New York,190 NY 481 , 488; Restatement, Torts, notes preceding § 822, p 217).” (Copart Inds. v Consolidated Edison Co. of N. Y.,41 NY2d 564 , 568, mot for rearg den42 NY2d 1102 );
“(1) A public nuisance is an unreasonable interference with a right common to the general public.
“(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
“(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
“(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
“(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.” (Restatement, Torts 2d, § 821B, p 87); and
“No better definition of a public nuisance has been suggested than that of an act or omission ‘which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.’ The term comprehends a miscellaneous and diversified group of minor criminal offenses, based on some interference with the interests of the community, or the comfort or convenience of the general public.” (Prosser, Torts [4th ed], § 88, p 583; see Prosser, Private Action for Public Nuisance, 52 Va L Rev 997, 999.) Fortunately, however, the sometimes difficult question of determining whether the existence of a public nuisance has been adequately pleaded is not an issue on these appeals for two reasons: first, because the various defendants have not challenged the sufficiency of the complaint in Action No. 1 on this ground, and second, because a public employee strike has already been held to fall within the ambit of the broad definition of a “public nuisance” (see State of New York v Local 1115 Joint Bd., Nursing Home & Hosp. Employees Div.,56 AD2d 310 , 318; Caso v District Council 37, Amer. Federation of State, County & Municipal Employees, AFL-CIO,43 AD2d 159 ,163, supra; cf. Steelworkers v United States,361 US 39 , 60-62 [Frankfurter and Harlan, JJ., concurring]; Note, Private Damage Actions Against Public Sector Unions for Illegal Strikes, 91 Harv L Rev 1309, 1327-1332).
What the defendants do controvert, however, is the plaintiffs’ right to recover damages in connection with a strike-related public nuisance, as the standard rule adopted by the courts of this State is that “In the absence of special damage to another, such public nuisance is subject only to correction at the hands of public authority. It is equally clear, however, that one who suffers damage or injury, beyond that of the general inconvenience to the
To begin with, we believe that the New York cases support the plaintiffs’ contention that an allegation of pecuniary damage can be sufficient to satisfy the “peculiar injury” test. In Wakeman v Wilbur (supra, p 664) for example, the injury was caused when the defendant obstructed a public road which it was necessary for the plaintiff to traverse. Accordingly, the plaintiff in Wake-man, like those in the case at bar was forced, inter alia, to employ other, more costly routes, all to his economic detriment. This species of pecuniary injury was adjudged sufficient by the court. In addition, Prosser cites other authorities who urge a similarly liberal view: “Jeremiah Smith, who was the pioneer in this area, as he was in so much else in the law of torts, contended in 1915 that any plaintiff who suffered substantial harm should have his action, since this in itself must set him apart from the general run of the public, to whom no actual harm, or at least no substantial harm, will result from the invasion of the public right. With this Professor Fleming has agreed. Both learned writers, however, have added the qualification that the substantial harm must be harm of a pecuniary nature.” (Prosser, Private Action for Public Nuisance, 52 Va L Rev 997, 1008.) Prosser has further remarked, however (pp 1013-1016):
“The earliest recognition that pecuniary loss to the plaintiff might be particular damage, setting him apart from the general public, was in Hart v. Bassett in 1681.Since then the principle has been undisputed, although its application has not always been unattended by difficulty.
“When the plaintiff is prevented from performing a specific contract, or is put to additional expense, or expensive delay in performing it, there is no doubt that he can always maintain his action, since the contract is clearly an individual matter, not common to the public. But even in the absence of such a definite obligation, pecuniary interests have received special protection.
“One group of cases has arisen where an established business made commercial use of the public right with which the defendant interfered. Thus when a river is blocked, a steamboat line operating boats upon it, or a company engaged in rafting logs or collecting tolls for passage, has been permitted almost without question to maintain the action. There are several cases in which commercial fisheries making a localized use of public waters have been allowed to recover where the ordinary citizen deprived of his occasional Sunday piscatorial pleasure could not do so. But even where the business is not itself founded upon the exercise of the public right, interference with a public right which causes harm to the business, as by blocking access to a shop which deprives it of customers, or interference with transportation which prevents a business establishment from obtaining materials or labor, or from shipping its goods to market, has been held to cause such particular damage that the action can be maintained.
“It must be repeated again that the business interference, and the type of pecuniary loss resulting from it, must be particular to the plaintiff, or to a limited group in which he is included. When it becomes so general and widespread as to affect a whole community, or a very wide area within it, the line is drawn. This has apparently been the explanation of occasional cases in which the remote obstruction of a distant highway, which caused the plaintiff expense in reaching a market, was held not to amount to particular damage. It might be noted in passing that the competition of an unlicensed business is not sufficient particular harm, not so much because it is common to the community asbecause there is no individual right to be free from competition.” (Emphasis supplied.)
However, the line between “general” and “peculiar” injury is not always clear. Thus, other courts have refused to recognize pecuniary loss as sufficient (see Smedberg v Moxie Dam Co., 148 Me 302 [holding that a fishing camp owner could not recover for a dam owner’s tampering with the lake’s water level to the detriment of the fish population]), while one court, in a case involving an oil spill, has gone so far as to sustain the complaints of commercial fishermen and clam diggers, while dismissing those brought by businessmen dependent upon the tourist trade, on the ground that the former had a special interest in taking fish and clams from the water which was separate and distinct from that of the latter, whose injury was said to be no different in kind from that suffered by the general public (see Burgess v M/V Tamano,
Despite the dearth of authority on this point, at least one recent commentator has speculated: “In the case of public employee strikes, however, economic losses will be widespread, and it will be difficult to distinguish one economic loss from another as a difference in kind rather than in degree. Thus it would seem that economic losses which result from such situations as a transit strike do not constitute particular injury and are therefore not recoverable under the public nuisance doctrine.” (Note, Private Damage Actions Against Public Sector Unions for Illegal Strikes, 91 Harv L Rev 1309,1331.) Accordingly, although the cases do not preclude an allegation of pecuniary loss from satisfying the requirement of peculiar injury, we must still consider the defendants’ alternate contention that the plaintiffs have failed to allege a peculiar injury because the type of losses which they allege were widely spread throughout the community. Here again, the reported cases provide no clear answer, for on the one side stands the principle that “the punishment of [a] wrong doer [in] a criminal prosecution will not compensate [the victim] for [his] individual injury; and [that] a party who has done a criminal act can not defend himself against a private suit
B. Prima Facie Tort
Turning our attention to the causes of action for prima facie tort, we note that the Court of Appeals has recently set forth the key elements of that cause of action as follows: (1) the infliction of intentional harm, (2) resulting in damage, (3) without excuse or justification, (4) by an act or a series of acts which would otherwise be lawful (ATI, Inc. v Ruder & Finn,
C. Interference with Business
Historically, the doctrine of interference with a business relationship was at one time limited to breaches of contract induced by tortious or unlawful activity (see A. S. Rampell, Inc. v Hyster Co.,
D. Conspiracy
Focusing our attention on the fifth cause of action in Action No. 2, we agree with the TWU that there is no such independent tort as conspiracy recognized in this State. All that an allegation of conspiracy can accomplish is to connect nonactors, who might otherwise escape liability, with the acts of their coconspirators (see Cuker Inds. v Crow Constr. Co.,
Plaintiff’s cross appeal concerns the sixth cause of action in Action No. 2 (i.e., the cause of action for breach of contract) which was brought on the theory that the plaintiff therein, Jackson, Lewis, Schnitzler & Krupman, was a third-party beneficiary of the collective bargaining agreement between the TWU and its public employer. Plaintiff concedes that the collective bargaining agreement expired before the commencement of the strike, but argues nonetheless that the no-strike clause in the agreement continued in effect until a successor agreement could be entered into. In so doing, the plaintiff relies on the doctrine espoused in Matter of Triborough Bridge & Tunnel Auth. (5 PERB 3064); but in our view this reliance is misplaced. We construe the Triborough decision as precluding an employer from unilaterally changing the terms and conditions of employment during negotiations following the expiration of a collective bargaining agreement, but in no way do we view the decision therein or in Matter of Board of Co-op. Educ. Servs. of Rockland County v New York State Public Employment Relations Bd. (
In addition, the parties appear to agree that whether the plaintiff at bar should be regarded as an intended beneficiary of the collective bargaining agreement in the first instance (and therefore entitled to sue for its breach) is controlled by the decision of this court in Kornblut v Chevron Oil Co. (
This court (following the Restatement of Contracts) held, inter alia, that in order to recover on a third-party beneficiary theory for the breach of an agreement between the State and its contractor, it is necessary to establish either (1) an intention, manifested in the contract, as interpreted in light of the facts and circumstances surrounding its
“It is, however, another matter when a consequence, such as wrongful death, personal injury or property damage, not directly referred to in the contract, is the subject of the suit based on a breach of the contract * * *
“By choosing the theory of recovery based on contract, it became incumbent on the plaintiff to show that the injury was one which the defendants had reason to foresee as a probable result of the breach, under the ancient doctrine of Hadley v Baxendale (9 Exch R 341), and the cases following it (Mortimer v Otto,206 NY 89 ; Chapman v Fargo,223 NY 32 ), in distinction to the requirement of proximate cause in tort actions (Palsgraf v Long Is. R.R. Co.,248 NY 339 , 346; cf. Pagan v Goldberger,51 AD2d 508 ).”
At bar, as in Kornblut, there does not appear to be any intention expressed in the contract to pay consequential damages of the nature alleged in the respective complaints. Thus, while increased travel costs and certain lost profits could probably have been foreseen by the draftsmen as the result of an illegal strike, there is no indication from
Accordingly, the order appealed from should be modified, on the law, to the extent of granting the respective motions to dismiss the complaints in their entirety and, as so modified, affirmed, without costs or disbursements.
Mollen, P. J., Weinstein and Thompson, JJ., concur.
Order of the Supreme Court, Queens County, dated April 17, 1981, modified, on the law, by deleting from the first decretal paragraph the word “denied” and substituting therefor the word “granted” and deleting from the second decretal paragraph everything after the word “granted”. As so modified, order affirmed, without costs or disbursements.
Notes
. Class action certification has not been sought nor granted at this time.
. On this analysis, we need not address the last of the Cort v Ash (