Citation Numbers: 10 Misc. 2d 819
Judges: Saypol
Filed Date: 3/31/1958
Status: Precedential
Modified Date: 2/5/2022
Plaintiff moves for a temporary injunction and defendant cross-moves for dismissal of the complaint for legal insufficiency. Plaintiff is on trial in an administrative disciplinary proceeding charged with misconduct, pursuant to section 22 of the Civil Service Law. Heretofore, she instituted an article 78 proceeding to secure an order compelling the issuance of a subpoena and the production of certain records. The application was denied and the petition dismissed (Matter of Schwartz [Naftalison], N. Y. L. J., March 17, 1958, p. 6, col. 7). This action is brought for similar relief and for an injunction restraining the destruction of records.
The cross motion must be denied if upon any theory the complaint is sustainable. The question is therefore raised whether by this action plaintiff is actually seeking a review of the intermediate steps and rulings in the course of hearing or, rather, relief in equity to prevent the destruction of records which it is claimed are vital to the preservation and protection of plaintiff’s rights. “ The mere apprehension of some damage from a wrongful act, which might be injurious, may not be a sufficient basis for the preventive remedy of injunction. Such a remedy becomes a necessity and a right when it is clear upon the facts asserted and not controverted, that, unless granted, the plaintiffs may be irreparably damaged and that they have no remedy at law for the damage sustained. ’ ’ (Leader-Observer v. State Alcoholic Beverage Control Bd., 148 Misc 757, 759.) The question is whether a violation of plaintiff’s rights may occur or an injury threatened in such a sense as justifies a preventive remedy (Hurst v. New York Produce Exch., 100 N. Y. 605, 606). “ Equity, therefore, interferes in the transactions of men by preventive measures only when irreparable injury is threatened, and the law does not afford an adequate remedy for the contemplated wrong.” (Thomas v. Musical Mut. Protective Union, 121 N. Y. 45, 52; see Tricarico, v. Society of Saint Joseph Palo Del Colle, Italy, 252 App. Div. 786.) Thus, in McGillicuddy v. Monaghan (280 App. Div. 144), the Special Term denied a motion for temporary injunction restraining the prosecution of a trial of police officers on charges upon grounds constituting a defense. On affirmance, the Appellate Division stated: ‘ ‘ An injunction pendente lite may be granted only upon a showing that plaintiffs will suffer irreparable injury unless such an injunction is granted.” It will be withheld where a proceeding pursuant to article 78 of the Civil Practice Act is a complete and adequate remedy to review any determination.
Here, the plaintiff, in her complaint, alleges concerning the records in dispute that from time to time and in the regular
The difference between this action and the article 78 proceeding heretofore instituted is clearly indicated in the court’s decision dismissing the petition. It stated: “ If the petitioner is acquitted of the charges the matter is at an end and if found guilty of the charges such final determination is subject to review and petitioner at that time could raise the question of the refusal to issue the subpoena and a determination made whether such refusal was proper. It appears that every legal right of the petitioner would be preserved on such review.” While the refusal to issue subpoena or to produce records is - retdewable after determination, the additional grievance of refusal to preserve records is quite another matter. The inadequacy of review may lie in the inability to establish prejudicial error or misconduct in, refusal to subpoena or produce or to establish on judicial
The prejudice and injury which plaintiff seeks to avoid are proper subjects of equity. Taking jurisdiction thereof in nowise interferes with the conduct and continuance of the hearings. This leaves the defendant unhampered and completely free to proceed in any manner as he deems lawful and proper, which, however, does not embrace the right and power to destroy what plaintiff believes to be evidence. Not only will restraint here offer no interference, but it suggests no unfair or unreasonable burden, while the absence of restraint may produce grievous injury. Clearly, the balance of convenience and equity is with the plaintiff. The cross motion is denied. Plaintiff’s motion is granted to the extent of requiring the defendant to keep and to preserve the identification hooks or the inserts thereof of applicants which may be in his possession or those identification books or the inserts thereof which may come into the defendant’s possession by delivery to him for any cause by any applicant, if such identification books or inserts thereof are withdrawn and are obsolete. Plaintiff’s motion is otherwise denied.
Settle order.