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DEARY v. GUARDIAN LOAN CO.

May 16, 1983

DOLORES K. DEARY, et al., Plaintiffs,
v.
GUARDIAN LOAN COMPANY, INC., et al., Defendants.



The opinion of the court was delivered by: LASKER

LASKER, D.J.

Chief Judge Cooke, Judge Evans and the New York State Superintendent of Banks (the "state defendants") move to reargue the decision of June 9, 1981, in which their motion to dismiss was denied. Familiarity with the June 9, 1981 decision is assumed.

The state defendants contend: (1) that the relief that plaintiffs are seeking, an order that the state defendants engage in certain rulemaking, is barred by Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980); (2) that the state defendants are not involved in applying the challenged statutes, and accordingly cannot be enjoined from doing so; and (3) that the action is barred by the holding of Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976), that an action is not stated against state officials merely because they employ other state officials who have deprived a plaintiff of his constitutional rights.

 Plaintiffs respond: (1) that they are not seeking an order that the state defendants conduct rulemaking; (2) that the state defendants are involved in applying the challenged statutes; and (3) that it is with respect to the state defendants own conduct, not the conduct of their subordinates, that they are being sued, and, accordingly, Rizzo v. Goode in inapposite.

 (1) Rulemaking

 In support of their claim that plaintiffs are seeking "rulemaking" relief, the state defendants contend that previous orders submitted by plaintiffs have contained provisions which the state defendants construe as requiring rulemaking. For example, the plaintiff's proposed partial judgment of August 25, 1982 contained a provision requiring Judges Cooke and Evans to instruct court clerks to develop appropriate forms and procedures regarding hearings with respect to restraints and levies. Plaintiffs answer that they have endeavored to request only such relief as is appropriate, but that, if they have erred by requesting inappropriate relief, that is not a basis for dismissal unless there is no form of relief which would be constitutionally permissible as to these defendants.

 Plaintiffs' argument is persuasive. The state defendants do not contend that the Court has entered any order as to them which is inappropriate; rather, they argue only that plaintiffs have proposed inappropriate relief. The Court is aware of the limitations of its jurisdiction and the requirements of comity; the state defendants have no reason to be concerned that an improper order will be entered against them, even if improper proposals were to be made by plaintiffs.

 Accordingly, the proper question is whether plaintiffs may seek any relief from the state defendants which would be appropriate.

 (2) The Role of the State Defendants

 The state defendants argue that they do not enforce the challenged statutes, and that accordingly they take no actions which can be enjoined. In particular, they contend:

 "Banks serve and accept restraining notices and executions; the defendant Superintendent of Banks does not. Likewise, neither the Chief Judge of the Court of Appeals nor the Chief Administrative Judge, in his official capacity, serves or accepts restraining notices or executions."

 (Brief of State Defendants at 14).

 Plaintiffs do not assert that the state defendants are the individuals who actually process and serve the challenged restraining notices. However, the plaintiffs do allege, and defendants do not dispute, that the court clerks, and defendants do not dispute, that the court clerks, attorneys and banks who do process the challenged notices do so under the authority, supervision and regulation of the state defendants.

 A plaintiff challenging the constitutionality of a state statute need not name as defendants only the state officials responsible for the ministerial acts in ...


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