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December 26, 1985

DOLORES K. DEARY and HARVEY LONDON, individually and on behalf of all others similarly situated, Plaintiffs, against GUARDIAN LOAN COMPANY, INC., CHASE MANHATTAN BANK, N.A., MULLOOLY JEFFREY, ROONEY & FLYNN, CITIBANK N.A., EUROPEAN-AMERICAN BANK, CHEMICAL BANK, SENNET & KRUMOLTZ, SOL WACHTLER, Chief Judge and the NEW YORK COURT OF APPEALS, the ADMINISTRATIVE BOARD OF THE NEW YORK COURTS and ROBERT J. SISE, Chief Administrative Judge of the United Court System of New York, VINCENT TESE, Superintendent of Banks, Defendants

The opinion of the court was delivered by: LASKER


Plaintiffs in this § 1983 action obtained a declaratory judgment that various New York State statutes pertaining to the enforcement of judgments were unconstitutional and an injunction against enforcement of these statutes. They now seek attorneys' fees as "prevailing parties" under 42 U.S.C. § 1988 from Chief Judge Sol Wachtler *fn1" Chief Administrative Judge Robert J. Sise and Superintendent of Banks Vincent Tese ("the state defendants"). For the reasons set forth below the plaintiffs' motion is denied.

Dolores K. Deary and Harvey London brought this suit for declaratory, injunctive and compensatory relief on behalf of themselves and all other judgment debtors in the State of New York who had property exempt from restraint and execution under various state and federal laws. *fn2" Plaintiffs alleged that N.Y. CIV. PRAC. LAW §§ 5222, 5230 and 5232 (McKinney 1978), containing procedures for restraint and execution on judgments, violated the due process and supremacy clauses of the United States Constitution because they did not provide the judgment debtor with notice of, or an opportunity to challenge, the restraint or execution authorized by New York law. The state defendants, the banks which had served or accepted restraining notices concerning the named plaintiffs, the law firms which had served such notices, the New York Court of Appeals and the Administrative Board of the Courts *fn3" were named as defendants in the complaint.

 On December 8, 1980 the state defendants moved pursuant to Rules 12(b)(6) and 12(c), FED. R. CIV. P., for judgment on the pleadings dismissing the complaint against them for failure to state a claim. The motion was denied on the grounds that, inter alia, under Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980), a court and its members are not immune from suit when the relief that is sought from them is that they "exercise their supervisory powers to prevent enforcement of the existing procedures which plaintiffs challenge[d]," Deary v. Guardian Loan Company, Inc., No. 80-1976, slip op. at 2 (S.D.N.Y. June 9, 1981), and that the state defendants are Rule 19(a)(1) (FED. R. CIV. P.) "necessary parties" since in their absence "complete relief cannot be accorded among those already parties." Id. at 1. The state defendants were instructed that their involvement in the case "need not require active defense . . . unless they choose to assert it." Id. at 1-2.

 By Memorandum Opinion, on March 2, 1982 plaintiffs' motion for summary judgment declaring unconstitutional the challenged sections of the N.Y. CIV. P. LAW was granted. Deary v. Guardian Loan Company, Inc., 534 F. Supp. 1178 (S.D.N.Y. 1982). Subsequently, the plaintiffs and the defendants other than the state defendants submitted proposed. orders to the Court. By letter dated January 3, 1983 counsel was advised that an order for "partial summary judgment" had been entered except that, as the letter stated,

 "the ordering paragraphs that refer to Chief Judge Cooke and the Superintendent of Banks of the State of New York (had been stricken) because the applicability of the judgment to those persons is sub judice."

 At the Court's invitation, the state defendants subsequently moved to reargue the June 9, 1981 decision denying them judgment on the pleadings. The motion for reargument was denied on May 16, 1983. The decision stated that:

The question, therefore, is not whether the state defendant has placed his signature or stamp on the challenged form, but whether he has "some connection with the enforcement of the act by virtue of [his] office."

 Deary v. Guardian Loan Company, 563 F. Supp. 264, 266 (S.D.N.Y. 1983) (quoting Socialist Workers Party v. Rockefeller, 314 F. Supp. 984, 988 n.7, aff'd, 400 U.S. 806, 27 L. Ed. 2d 38, 91 S. Ct. 65 (1970). It concluded that "it cannot be said that plaintiffs 'can prove no set of facts in support of [their] claim which would entitle [them] to relief.' Conley v. Gibson, 355 U.S. 41, 45-6, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)." Id.

 Subsequent to the May 1983 decision, plaintiffs sought no further relief from the state defendants until they filed the motion for attorneys' fees which is the subject of this Memorandum.

 * * *

 The state defendants assert that the plaintiffs are not entitled to an award of attorneys' fees from them. They argue that the plaintiffs have not "prevailed" against them because the claims against the state defendants were never adjudicated. They assert further that they were not needed for, and played no part in, the determination of the statutes' unconstitutionality. They add that the challenged statutes were enforced by attorneys or court clerks and that the state defendants did not apply or enforce the statutes which the plaintiffs attacked.

 The plaintiffs respond that the judgment declaring the New York statutes unconstitutional and the injunction against enforcement of the statutes is binding on all the defendants in this action. They assert further that the injury suffered by the plaintiffs was not only the past restraint and execution on their property but the threat of repetition, and that the state defendants were the parties with the power to allow or prevent future injury.

 Plaintiffs may properly sue enforcement officials in an action challenging the constitutionality of a statute in which plaintiffs seek declaratory and injunctive relief. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 736, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980). Such "enforcement officials" may include courts ...

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