69 Misc. 2d 337 | N.Y. Sup. Ct. | 1972
The defendant moves to dismiss the complaint in this action for a declaratory judgment on the grounds that (a) the court lacks jurisdiction of the defendant; (b) the plaintiff lacks legal capacity to maintain the action; (c) the action is premature; (d) the complaint raises no justiciable controversy; (e) plaintiff is estopped by his prior actions and those of his agents from bringing the action; (f) the complaint fails to state a cause of action. The plaintiff seeks a declaration of the rights and other legal relationships of the parties, contending that certain budget bills set forth in paragraph Sixth of the complaint, submitted to the New York State Legislature for enactment by defendant as Governor of the State of New York, contravene the intent of sections 3 and 4 of article VII and section 1 of article III of the Constitution of the State of New York.
Plaintiff alleges for a first cause of action that certain appropriation bills submitted to the Legislature by the defendant with the 1972-1973 executive budget lack sufficient itemization to permit the Legislature to perform its function of striking out, reducing or adding items; that the Legislature cannot take meaningful and effective action on the proposed appropriations in the manner intended by the Constitution of the State of New York; that if these bills are enacted into law in the form submitted by the defendant, plaintiff will be placed in jeopardy in the performance of his constitutional and statutory duties. The specific bills under attack are identified as Senate 7567 and Assembly 8580, entitled ‘ ‘ An act making appropriations for the support of government (State Purposes Budget) ”, and Senate 7571, Assembly 8584, entitled ‘ ‘ An act making appropriations for the support of government (Capital Construction Budget) ”, The complaint also alleges that plaintiff is required under the Constitution and laws of the State of New York to be the head of the Department of Audit and Control, to audit all vouchers before payment, to draw warrants on the treasury for payment of moneys directed by law to be paid out of the treasury, and to superintend the fiscal concerns of the State. (N. Y. Const., art. V, § 1; State Finance Law, § 8.) In addition, it is alleged that the interest and concern of the plaintiff is that the prospective performance of his duties under the appropriation acts in question to be adopted by the Legislature for the fiscal year beginning April 1, 1972 may be challenged for legality and constitutionality, and may be subject to demands for restraining orders, as evidenced by recent litigation concerning issues raised here. Under his statutory duty to superintend the fiscal con
The defendant’s immunity, as the chief executive officer of the State, from process or suit and from judicial interference in his ministerial and discretionary acts, cannot be questioned. This is not to say, however, that the courts lack jurisdiction to review and determine whether or not such public official may have acted contrary to law, or contrary to the provisions of the Constitution of the State of New York which governs the actions of all three branches of government. Only in the absence of a clear violation of the Constitution or statutory mandate does the defendant enjoy immunity as the Governor of the State. (Vanilla v. Moran, 188 Misc. 325, affd. 272 App. Div. 859; Gaynor v. Rockefeller, 15 N Y 2d 120; Matter of Gournet v. Lefkowitz, 27 A D 2d 809.) The allegations of the complaint raise the question of whether the appropriation bills submitted by the defendant to the Legislature are in compliance with constitutional requirements, and thus, it is properly before the court.
On the question of whether the plaintiff, as Comptroller of the State, lacks legal capacity to bring this action, the defendant cites Matter of Posner v. Levitt (67 Misc 2d 565) in support of
Defendant maintains that plaintiff is merely seeking an advisory opinion of this court by way of this action, and that no justiciable controversy exists between the parties. OPLB 3001 is a remedial provision the primary purpose of which is to stabilize legal relations and eliminate uncertainty as to the scope and content of present or prospective obligations. Among the purposes served by a declaratory judgment action are the availability of a mechanism to interpret rights and obligations so that a party need not act at his peril and risk irreparable harm in the process, and the determination of the validity and construction of public acts and the establishment of public duties
The defendant contends that the prior actions of the plaintiff and his agents in the development of the present form of appropriation should be held to work an estoppel barring him from bringing an action to challenge that form. This ground for dismissal is based on the fact that the plaintiff through his representative and the defendant through his representative on the Joint Statewide Accounting Improvement Committee affirmatively participated in the development of the form and theory of appropriation presently before the Legislature, and, therefore, plaintiff’s prior actions in the development of the budgetary form and practice of which he now complains must be held to bar him from bringing this action. An equitable estoppel can arise only when a person, either by his declarations or conduct, has induced another to act in a particular manner. The doctrine prohibits a person, upon principles of honesty and fair and open dealing, from asserting rights the enforcement of which would, through his actions, work fraud and injustice. (21 N. Y. Jur., Estoppel, § 15.) There is no showing, nor does defendant contend that such is the case here.
The final ground urged for dismissal of the complaint is that it fails to state a cause of action. This ground incorporates the several grounds already considered, and, in addition, defendant argues that plaintiff is not entitled to the relief sought as a matter of law. On a motion brought pursuant to CPLB 3211 (subd. [a], par. [7]), the pleading will be liberally construed and deemed to allege whatever can be reasonably implied or
Accordingly, defendant’s motion is in all respects denied. Answer is to be served by the defendant in accordance with the provisions of CPLR 3211 (subd. [f]).