Jones v. Koch , 498 N.Y.S.2d 166 ( 1986 )

—In an action, inter alia, to enjoin defendants from enforcing a resolution of the New York City Board of Education appointing Robert Wagner, Jr. as Chancellor, the defendants appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated July 5, 1984, which granted the plaintiffs’ application for counsel fees, and directed them to pay the sum of $15,296.87 as and for the counsel fees and expenses of the plaintiffs.

Order reversed, on the law and the facts, with costs, and application denied.

In April 1983, the plaintiffs instituted suit seeking a declaratory judgment and injunctive relief against the defendants. In their complaint, the plaintiffs essentially maintained four bases for relief: (1) the selection of Robert Wagner, Jr. was illegal and unenforceable, (2) the selection process was conducted in clear violation of the Open Meetings Law (Public Officers Law art 7), (3) the participation of New York City Board of Education member Miguel Martinez in the selection process was a conflict of interest, and (4) the actions of defendant Mayor Edward I. Koch in supporting, advocating and encouraging the appointment of Wagner constituted an abuse of executive powers. While the matter was sub judice, New York State Commissioner of Education Ambach declined to grant Wagner the equivalency certificate necessary for Wagner to assume the position of Chancellor and the New York City Board of Education decided not to challenge that determination. On May 3, 1983 Special Term issued a decision declaring that Wagner’s selection was in violation of the Open Meetings Law. In an order dated July 5, 1984, the court granted the plaintiffs’ application for counsel fees. The defendants appeal the award of counsel fees and contest the plaintiffs’ status as the successful parties.

It bears noting that the plaintiffs’ two applications for temporary restraining orders as well as their application to this court with regard to a temporary restraining order were unsuccessful. Despite the fact that Wagner was no longer a viable choice for the position of Chancellor, the Commissioner having already denied him the equivalency certificate necessary to assume that position, the plaintiffs’ motion for a preliminary injunction was denied. Although the Wagner appointment had already been withdrawn, Special Term gratuitously issued a declaratory ruling that Wagner’s selection violated the Open Meetings Law. Under the circumstances, the plaintiffs can hardly be deemed to constitute "successful” parties within the meaning of Public Officers Law § 107 (2) (see, Matter of Dombroske v Board of Educ., 118 Misc 2d 800, 805).

Accordingly, Special Term erred in granting plaintiffs’ application for counsel fees. Brown, Weinstein and Eiber, JJ., concur.