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WEISS v. FEIGENBAUM

December 7, 1982

AARON WEISS et al., Plaintiffs,
v.
MICHAEL K. FEIGENBAUM et al., Defendants



The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

 SIFTON, District Judge.

 Plaintiffs, a candidate for NYC Councilmember-at-large from Queens County and his three principal campaign workers, commenced this action against eleven defendants in August 1981, charging them with "bringing and/or financing and/or judging or refereeing a New York State Supreme Court lawsuit, namely Wiseberg v Weiss, Queens County Index No. 11189/81, a spurious effort to reverse the decision of the New York City Board of Elections in placing the name of Aaron Weiss upon the ballot in the September 10, 1981 Democratic primary for Councilman-at-large." Complaint para. 2. The activities of the defendant were alleged to constitute "gross violations of 18 [sic] U.S.C. 1983 and 1985 in that they have totally prevented plaintiff Aaron Weiss from conducting a political campaign in the best American tradition." Complaint para. 11.

 In November 1981, plaintiffs filed an amended complaint naming twelve new defendants and asserting a class action on behalf of all supporters of the candidacy of plaintiff Weiss. The amended complaint alleges that "all Defendants . . . participat[ed] in, as State or City government officials and/or in conspiracy with State or City government officials, a New York State Supreme Court lawsuit, Wiseberg v. Weiss, Queens County Index #11189/81, in order to remove Plaintiff WEISS's name from the Democratic primary ballot for the New York City Councilmember-at-large from Queens County, all in violation of 42 U.S.C. §§ 1983 and 1985(1) and in violation of the equal protection and due process clause of the 14th Amendment to the U.S. Constitution, and in violation of the laws of the State of New York, Election Law § 17-152 and State Finance Law § 123-b." Amended Class Action Complaint, para. 34.

 Defendants are specifically charged in the amended complaint with "violating Plaintiff WEISS's rights to be a candidate and with violating the voting rights of Plaintiffs SCHWALB, BLANK, BERSTEIN and others similarly situated," para. 35; with "subject[ing] [plaintiffs] to the deprivation of all of rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and their privileges to run and campaign for public office," para. 44; with "conspir[ing] among themselves to prevent, by intimidation and threat, Plaintiff AARON WEISS from accepting, holding and seeking the office of New York City Councilmember-at-large from Queens County," para. 45; with "conspir[ing] among themselves to prevent the election of Plaintiff AARON WEISS to the public office of New York City Councilmember-at-large by unlawful means, and [acting on] this conspiracy," para. 46; and with, in acting "as officers and/or employees of New York City and/or New York State, in the course of their duties, caus[ing] the wrongful expenditure and misapplication of State and/or City funds and property, all to the damage of Plaintiffs and all other citizens and taxpayers in New York State." para. 47.

 The case is now before the Court on dispositive motions by three groups of defendants. Defendants Calabretta and Gavrin have moved pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, to dismiss the amended complaint as against them. Defendants Feigenbaum, Rubin, Goldstein, Brick, Wiseberg, Memmen, Orlow, and Manes have moved pursuant to Rule 12(b) (1) and (6) to dismiss the amended complaint as against them. Finally, defendant Fink, who has answered, has made an application pursuant to Rule 12(c) for judgment in his favor on the pleadings.

 Taking as true all of the complaint's well pleaded material facts, *fn1" see, e.g., Eye Encounter, Inc. v. Contour Art, Ltd., 81 F.R.D. 683 (E.D.N.Y. 1979), a description of the parties, together with the activities in which they are alleged to have engaged, to the extent relevant to these motions, is set forth below.

 Plaintiffs include Aaron Weiss, "a candidate for the position of New York City Councilmember-at-large from Queens County in the Democratic primary election originally scheduled for September 10, 1981, and now postponed indefinitely," para. 5, and three of Weiss' campaign workers, who are alleged to be "members of a class of at least 12,088 citizen-taxpayers of the City and State of New York who indicated their desire to have Plaintiff WEISS be the Democratic Party nominee for the office of New York City Councilmember-at-large for Queens County for the term commencing January 1, 1982." para. 6.

 The defendants are described in the pleadings as follows: Feigenbaum is alleged to be the Law Chairman of the Queens County Democratic Organization ("QCDO") and Counsel to the Public Administrator of Queens County; Memmen is the Public Administrator of Queens County; Rubin, Goldstein, and Brick are said to be patronage employees of defendant Stanley Fink, New York State Assembly Speaker; Fink is also alleged to be responsible for the hiring, retention, and payment of all employees of the Assembly; Calabretta is a Justice of the Supreme Court of the State of New York, Queens County, who from August 10 through 17, 1981, presided over the trial of Wiseberg v. Weiss ; Gavrin is Justice Calabretta's law secretary who from August 10 through 19, 1981, served as a referee in connection with the trial of Wiseberg v. Weiss ; Wiseberg is alleged to be the daughter of an employee of Feigenbaum, the lawyer who instituted the Wiseberg v. Weiss suit; Orlow is the incumbent Democratic New York City Councilmember-at-large from Queens County who was seeking renomination at the September 10, 1981 Democratic primary in opposition to plaintiff Weiss; Manes is the Chairman of the Executive Committee of the ACDO and is Borough President of Queens County; Bass, Richards, Black, Diaz, Gargiulo, Lumetta, Previte, Sachs, Sadowski, and Sclafani are Commissioners of the New York City Board of Elections; D'Amico is an official of the Board who is assigned to its Queens office and is the Treasurer of the QCDO; and Posner is an official of the Board who is assigned to its Queens office.

 According to the complaint, in July 1981 plaintiff Weiss, in order to obtain a place on the Democratic Party ballot for the September 10, 1981 primary election for the position of New York City Councilmember-at-large from Queens County, filed nominating petitions with the Board. The petitions contained 12,088 signatures. In order to secure a place on the ballot, Weiss, like all other candidates, was required to submit 5,000 valid signatures. On August 5, the defendant Commissioners of the Board ruled that 5,487 signatures were invalid and that the remaining 6,578 *fn2" signatures were valid, thus placing Weiss on the ballot.

 Shortly after the Board issued its ruling, Orlow, through his nominee, Wiseberg, and by his attorneys, Feigenbaum, Rubin, Goldstein, and Brick, commenced an action against Weiss in New York State Supreme Court, Queens County, namely Wiseberg v. Weiss, Index #11189/81, seeking to reverse the Board's decision. Also in August, Weiss instituted two other actions, Weiss v. Wiseberg, Index #11140/81, seeking to restore the 5,487 signatures that had been invalidated, and Weiss v. Orlow, Index #11141/81, seeking to reverse the decision of the Board designating incumbent Orlow as a candidate for the same public office, in the same primary, for which Weiss was running. The three actions were joined for trial before Justice Calabretta on August 10, 1981. Justice Calabretta ruled that, although Weiss' two actions were filed first, the Wiseberg v. Weiss case would be tried first.

 The trial commenced on August 10, 1981. Feigenbaum, Rubin, Goldstein, and Brick subpoenaed 233 of Weiss' supporters as trial witnesses and are alleged to have refused to set a schedule for testimony of these witnesses. Justice Calabretta ruled that no such schedule was necessary. On August 14, after plaintiffs discovered that Justice Calabretta had signed Orlow's nominating petition, they commenced the instant action by order to show cause seeking to have the state proceedings in the case of Wiseberg v. Weiss, along with the related and joined cases, stayed on the ground that Justice Calabretta and Gavrin, his law secretary, were not impartial judicial officers.

 On August 17, 1982, this application to stay the proceedings in the state courts was denied by Judge Nickerson of this Court on the ground that the remedy lay in the state court system. On the same date Justice Calabretta recused himself from the three state cases, and Justice Hyman took over the trial of the three actions. Gavrin, who had been appointed Special Referee in the cases by Justice Calabretta, is alleged to have continued in that capacity until August 19. Gavrin is additionally alleged to be the wife of George Heymann, the elected Secretary of the Eastern Queens Regular Democratic Club, an organization that is said to have voted and pledged itself to support Orlow. On August 25 Justice Hyman ruled plaintiff Weiss off the ballot and ruled that his case against Orlow would be dismissed without any evidence being heard because Weiss no longer had standing as an "aggrieved candidate," in order to maintain the action. On August 26, the last day for an appeal of the three state cases, plaintiff Weiss appealed to the Supreme Court, Appellate Division, Second Department. The Appellate Division refused to consider the appeal because Weiss had not provided a complete transcript of the proceedings below. To have done so, Weiss alleges, would have cost in excess of $10,000, payable in advance. On September 1, the New York State Court of Appeals denied Weiss' application for leave to appeal the ruling below.

 In addition to the involvement of the defendants recited above, plaintiffs have alleged certain other facts relevant to the pending motions. Memmen is alleged to have provided money, office space, telephone, and other services, paid for by the City or State of New York or by the estates of various Queens County citizens, for the purpose of enabling Feigenbaum to commence the state lawsuit. Fink is alleged to have continued Rubin, Goldstein, and Brick on the New York State Assembly payroll during the months of July and August, when the Assembly was out of session, for the purpose of financing the Wiseberg v. Weiss suit. Justice Calabretta and Gavrin, while sitting as judge and referee, respectively, in the state cases, are alleged to have deliberately failed to disclose their support for Orlow. Posner, who is alleged to have secured Justice Calabretta's signature on Orlow's nominating petition, is also alleged to have failed to disclose her support for Orlow, although she allegedly participated in preparing the Board's ruling on Weiss' nominating petitions and in refereeing Wiseberg v. Weiss. The defendant Commissioners, as well as Posner's supervisor, D'Amico, are alleged to have allowed Posner to participate in partisan political activity while employed as referee and judge of the ...


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