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WESTCHESTER LEGAL SERVS. v. COUNTY OF WESTCHESTER

May 3, 1985

WESTCHESTER LEGAL SERVICES, INC. AND GERALD A. NORLANDER, Plaintiffs, against COUNTY OF WESTCHESTER, ANDREW P. O'ROURKE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COUNTY EXECUTIVE OF THE COUNTY OF WESTCHESTER, NEW YORK AND THE BOARD OF ACQUISITION AND CONTRACT OF WESTCHESTER. COUNTY, Defendants


The opinion of the court was delivered by: KRAM

SHIRLEY WOHL KRAM, U.S.D.J.

The instant case is before the Court on plaintiffs' motion for a preliminary injunction. The plaintiffs in this action are Westchester Legal Services, Inc. ("Welserv") and Gerald A. Norlander ("Norlander"). Welserv is a non-profit legal services corporation which provides free legal services in civil matters to indigent persons. Welserv is authorized to practice law pursuant to Section 495(7) of the New York State Judiciary Law. Norlander is the Executive Director of Welserv. The defendants are the County of Westchester ("the County"), Andrew P. O'Rourke ("O'Rourke"), and the Westchester County Board of Acquisition and Contract ("the Board"). The county is a New York State municipal corporation. O'Rourke is the County Executive for the County. He is sued in his individual and official capacities. The Board is the entity which must approve all contracts to which must approve all contracts to which the County is a party. Subject-matter jurisdiction exists pursuant to 28 U.S.C. §§ 1331 and 1343(a), and 42 U.S.C. § 1983. There is also a pendent, breach of contract, state law claim.

The complaint alleges that the defendants, in violation of 42 U.S.C. § 1983, have deprived plaintiffs of their rights secured by the First and Fourteenth Amendments to the United States Constitution. The complaint also alleges that the defendants breached a valid contract with the plaintiffs. The instant action arises from the defendants' decision to terminate some of the funding for Welserv as a result of the latter's representation of persons suing the County and its various agencies.

 In 1984 Welserv had a budget of approximately one million dollars ($1,000,000) and handled approximately 1,600 cases. Approximately 15% of Welserv's 1984 budget came from funds provided by the County. These funds appear to have been provided pursuant to two separate grants or contracts; one for $105,000 and the other for $50,000. Only the latter is the subject of the current dispute.

 The county receives Community Development Block Grants ("CDBG") from the Department of Housing and Urban Development. These grants are made pursuant to a three-year funding plan. The most recent three-year plan began in 1982. The CDBG three-year plan for funds to the County for the fiscal years 1982, 1983 and 1984 included annual allocations for Welserv. Welserv's annual allocations were provided for Welserv to represent eligible clients in housing and shelter-related disputes. Welserv was to receive $60,000 in the first two years, and $50,000 in the current fiscal year, which began in October of 1984. See Exhibit A annexed to Plaintiffs' Complaint. Welserv received its allocated funds during the 1982 and 1983 fiscal years. The instant dispute revolves around the $50,000 contract for the current fiscal year and the three-year funding plan which is being drafted to cover the 1985, 1986 and 1987 fiscal years.

 On April 1, 1985, Lawrence C. Salley, a Deputy Commissioner for the County, mailed a letter to Norlander which stated:

 
Dear Mr. Norlander:
 
The above mentioned contract which expired on March 21, 1985 between the Westchester Legal Services Inc. and the County of Westchester will not be renewed for the fiscal year 1984 Community Development Program Year.

 See Exhibit D annexed to Plaintiffs' Complaint.

 This was a rather curious development, to say the least, since Norlander had received from the County on March 15, 1985 three copies of a contract granting Welserv $50,000, for the period from October 19, 1984 through October 18, 1985 (the 1984 fiscal year), to represent eligible persons. See Exhibit B to Plaintiffs' Complaint. Moreover, on April 29, 1985 Norlander received a document which contains the preliminary allocation of funds for the CDBG three-year funding plan for 1985 through 1987. This document indicates that Welserv will receive no funds during this three-year period.

 The record before this Court indicates that Welserv has represented several clients in lawsuits against the instant defendants, apparently with a fair degree of success. It is this conduct by Welserv which the plaintiffs contend led to the termination of funding for Welserv. The parties have submitted various affidavits and memoranda of law to the Court. Oral argument was held and the parties agreed that there was no need to hold an evidentiary hearing; they were content to rely upon their submissions.

 The record before the Court is replete with uncontradicted statements by O'Rourke that Welserv's funding was terminated because it had sued the County and its agencies. O'Rourke contends that groups which receive funds from the County should not be permitted to sue the County. The defendants have produced no evidence to cast doubt upon this contention.

 In view of the imminent threat to Welserv from defendants' action, and because attempts to resolve the dispute were unsuccessful, plaintiffs filed the instant action and then moved for a preliminary injunction pursuant to Fed. R. Civ. P. 65. The Court finds that plaintiffs have proceeded expeditiously in seeking the instant relief.

 Discussion

 In order to obtain a preliminary injunction in this Circuit a plaintiff must meet the following standard:

 
Preliminary injunctive relief in this Circuit calls for a showing of "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships ...

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