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FRANCIS X. MURPHY ET AL. v. ERIE COUNTY ET AL. (10/06/69)

SUPREME COURT OF NEW YORK, ERIE COUNTY 1969.NY.42982 <http://www.versuslaw.com>; 304 N.Y.S.2d 242; 60 Misc. 2d 954 October 6, 1969 FRANCIS X. MURPHY ET AL., PLAINTIFFS,v.ERIE COUNTY ET AL., DEFENDANTS Francis X. Murphy and Peter B. Carr, plaintiffs in person. George M. Nelson, County Attorney, for Erie County et al., defendants. Hodgson, Russ, Andrews, Woods & Goodyear (Victor T. Fuzak of counsel), for Kenford Company, Inc., and another, defendants. Michael Catalano, J. Author: Catalano


Michael Catalano, J.

Author: Catalano

 Plaintiffs move to serve an amended complaint.

Defendants move to dismiss the amended complaint, upon the grounds of insufficiency and res judicata.

This is the third complaint seeking the same relief from the Supreme Court in Erie County.

The first complaint (includes "petition"; CPLR 105, subd. [b]) dated August 6, 1969, named Jerome T. Murphy (herein called "Jerome"), a taxpayer as petitioner for judgment under CPLR article 78 in the nature of "prohibition" against the County Legislature of the County of Erie (herein called "County Legislature") and B. John Tutuska, as County Executive of the County of Erie (herein called "Tutuska"), as respondents, later adding Kenford Company, Inc. (herein called "Kenford") and The Dome Stadium, Inc., (herein called "Dome"), as intervenors-respondents, alleged in effect that on June 17, 1969, the County Legislature entered into a secret contract to enter into a certain management contract of a proposed domed stadium; that on June 18, 1969, the County Legislature adopted a resolution providing that Kenford would guarantee a lease whereby it would pay $63,750,000 over 40 years to the County of Erie (herein called "County"), but if the terms of this lease could not be agreed to within three months, then a 20-year management contract would be awarded to Kenford which would receive "up to 15% of said management;" (so in original) that on August 4, 1969, a contract was submitted for adoption by the County Legislature; that on August 5, 1969, the County Legislature adopted this management contract and submitted it to Tutuska for his signature in behalf of the County; that such action was without legal authority, being arbitrary and capricious and fraudulent; wherefore, an order was sought nullifying this management contract and resolution, and permanently staying the execution of said management contract.

The first complaint was dismissed as insufficient by a decision of Mr. Justice Walter J. Mahoney of this court on August 21, 1969, and "without prejudice" by a final judgment dated October 1, 1969.

The second complaint dated August 12, 1969, named Bradley J. Hurd, (herein called "Hurd") plaintiff "as a taxpayer of the County of Erie," and the County, the County Legislature, Tutuska, Kenford and Dome defendants, alleging, in effect, that on June 18, 1969 and August 5, 1969, the County Legislature adopted certain resolutions, pursuant to which on August 8, 1969, Tutuska accepted in form an agreement with Kenford and Dome to be executed after three months' failure to agree upon a lease for the domed stadium; that the management of the stadium is public work that must be contracted only with the lowest bidder; wherefore, a judgment was demanded annulling said resolutions of June 18, 1969 and August 5, 1969 and said management contract, and restraining the execution of said management contract.

The second complaint (Hurd's) was dismissed as insufficient by a decision of Mr. Justice James O. Moore of this court on September 15, 1969, stating in part; that the courts do not pass upon legislative policy or administrative discretion; that by chapter 252 of the Laws of 1968, effective May 14, 1968, the New York State Legislature (herein called "State Legislature") passed an act specifically authorizing the County to enter into this type of management contract; that the court must assume that legislative discretion has been properly exercised without resorting to competitive bidding. This Hurd complaint was "dismissed on the merits for failure to state a cause of action" by final judgment dated October 1, 1969.

The third complaint now before this court adds nothing substantially different from the other two dismissed by Justices Mahoney and Moore. It merely adds more details, complaining of specific terms of the management contract, then demands judgment enjoining the County, the County Legislature and Tutuska from spending public money upon this domed stadium, or from allowing any person other than an employee of the County to manage it or from allowing defendants to execute this management contract; and demands judgment nullifying the County Legislature's said resolutions of June 18, 1969 and August 5, 1969.

The plaintiffs, Francis X. Murphy (herein called "Francis," not related in any way to Jerome T. Murphy, petitioner in the first complaint or petition) and Peter B. Carr (herein called "Carr") bring these actions against the same five defendants named in the second complaint, namely, the County, the County Legislature, Tutuska, Kenford and Dome, all of which, excluding the County, were respondents in the first complaint. The plaintiffs herein are lawyers duly practicing as such in this State, appearing pro se, as taxpayers. Thus, all three complaints contain so-called "taxpayers' actions", seeking basically the same relief from the State Supreme Court.

The third complaint, being an "amended complaint", alleges for a first cause of action (called "Count One") in effect, that on June 18, 1969, the County Legislature adopted a resolution approved by Tutuska for the construction of a domed staduim, to be leased for 40 years to Kenford, or if not agreed upon, to agree to retain Kenford to manage it; that on August 8, 1969, Tutuska and Kenford entered into such a management agreement, being unconstitutional and a public waste and not for a proper County purpose; for a second cause of action ("Count II") in effect, that this management contract is an unlawful delegation to a private person of management of public property; that such is a waste of County money; for a third cause of action ("Count III") alleges, in effect, that such a surrender of power of taxation is a waste of public property; that for a fourth cause of action ("Count IV"); that such is a joint venture between the County and a private corporation and it is not a proper County purpose; that for a fifth cause of action ("Count V"); that since the contract provides Kenford with office, storage and parking space to be used in fulfilling Kenford's obligations therein, such is a gift or loan and so a waste of County property; that for a sixth cause of action ("Count VI"); that since this contract may be assigned by Kenford to Dome it is not in accordance with the June 18, 1969 resolution, constituting a waste of public money and property; that for a seventh cause of action ("Count VII"); that since the contract binds the County to provide services and materials to Kenford for one month, then be paid for a later time, such is an illegal loan of money or property; that for an eighth cause of action ("Count VIII"); that since the contract appoints Dome to be sole agent to negotiate major contracts for 11% of the gross revenue and to negotiate purely private contracts for 89% to 96% of certain revenues, such is a waste of public property; that for a ninth cause of action ("Count IX"); that the contract with Kenford and Dome being contrary to the June 18, 1969 resolution was a negligent or willful wrong by the parties thereto; that for a tenth cause of action ("Count X"); that the dome stadium will not be self-supporting pursuant to the June 18, 1969 resolution and the management contract, thus, will be a waste of taxpayers' money; that for an eleventh cause of action, ("Count XI"); that the changes in the management contract as provided for in the June 18, 1969 resolution are completely detrimental to the interests of the County of Erie, grossly negligent and in bad faith resulting in waste of property of the County of Erie.

These 11 alleged causes of action are not separate and distinct but so interrelated as to be truly one cause of action, divided into 11 parts, all seeking to enjoin the County, the County Legislature and Tutuska from acting pursuant to the June 18, 1969 resolution and to have said resolution and a resolution of August 5, 1969 declared null and void.

August 18, 1969, this action was commenced by the service of summons and complaint. September 8, 1969, defendants served notices of motion on plaintiffs for dismissal of the complaint because of insufficiency. September 16, 1969, the return date, plaintiffs requested an adjournment to September 19, 1969, after September 15, 1969 when Mr. Justice Moore filed his memorandum decision in the Hurd taxpayers' action. September 26, 1969 plaintiffs' motion to serve an amended complaint and defendants' motion to dismiss it for insufficiency and res judicata were argued and submitted to the court for decision.

CPLR 3014 provides, in part: "Separate causes of action or defenses shall be separately stated and numbered and may be stated regardless of consistency. Causes of action or defenses may be stated alternately or hypothetically." In granting amendments, "Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." (CPLR 3025, subd. [b].)

"At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted." (CPLR 3211, subd. [e].) These grounds include res judicata (Ibid., subd. [a], par. 5) and insufficiency. (Ibid., subd. [a], par. 7) "Service of * * * an answer * * * shall be made within twenty days after service of the amended * * * pleading to which it responds." (CPLR 3025, subd. [d].)

On September 26, 1969, the return day of both motions herein, plaintiffs' motion to serve the amended complaint was granted, then argument was heard to dismiss it for insufficiency and res judicata. Certainly defendants' motion against this amended complaint was timely.

In America the sovereign powers reside in the people who have delegated certain of these powers to the Federal Government and have prohibited some to the States reserving all others to the States respectively, or to themselves. (See U. S. Const., 9th and 10th Amdts.; N. Y. Const., art. I, § 14.)

In New York State, the legislative power is vested in the Senate and Assembly (N. Y. Const., art. III, § 1), the executive power is vested in the Governor (Ibid., art. IV, § 1), but the judicial power is not expressly vested in any one court. (Ibid., art. VI, § 1.)

The New York Supreme Court has general original jurisdiction in law and equity (Ibid., art. VI, § 7, subd. a) including new classes of actions and proceedings ...


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