defendant Town of Clarkstown did was action under color of
state law, there is a factual dispute as to whether Local Law
No. 9 deprives plaintiffs of their rights under the Commerce
Clause and, if so, what damages plaintiffs sustained.
Defendant's motion is denied to the extent it relates to this
Plaintiffs also seek to recover documents seized pursuant to
the March 13, 1991 search warrant said to have been
unreasonably retained in violation of the Fourth Amendment and
Section 1983. Of course the town is entitled to retain the
fruits of its duly authorized search but only so long as the
exigencies of criminal prosecution require retention of the
property as evidence. In re Documents Seized Pursuant to Search
Warrant, 124 Misc.2d 897, 478 N.Y.S.2d 490, 496 (1984). It is
impossible, however, to resolve this issue of fact on a motion
for summary judgment, so that portion of the defendant's motion
is also denied.
Alternatively, the Town requests that this Court abstain
under Colorado River Water Conservation District v. United
States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) or
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669
As a matter of discretion this Court declines to abstain.
Abstention is "the exception, not the rule," Colorado River
Water Conservation District, 424 U.S. at 813-16, 96 S.Ct. at
1244-1246, and "there is substantial authority for the
proposition that abstention is not favored in [a] . . . civil
rights case brought as was this one under 42 U.S.C. § 1983 and
28 U.S.C. § 1343." Mayor of Philadelphia v. Educational
Equality League, 415 U.S. 605, 94 S.Ct. 1323, 39 L.Ed.2d 630
(1974) (footnote omitted). In finding abstention inappropriate,
this Court gives considerable weight to the fact that Section
1983 provides a unique federal remedy based on the Constitution
and was enacted to redress inadequate state law remedies. See
Mitchum v. Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151,
2159-2162, 32 L.Ed.2d 705 (1972).
This Court also concludes that abstention would not be
justified under the doctrine of Younger v. Harris, supra.
Contrary to defendants suggestion, "Younger abstention is [not]
always appropriate whenever a civil proceeding is pending in a
state court." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 n.
12, 107 S.Ct. 1519, 1527 n. 12, 95 L.Ed.2d 1 (1987). Younger
abstention is appropriate only if (1) there are pending state
judicial proceedings, (2) the state proceedings implicate
important state interests, and (3) the state proceedings
provide an adequate opportunity to raise federal questions.
Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457
U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982).
Arguably, the first and third requirement are satisfied in
this case. The second is not, however, because this case does
not implicate the kind of state interest that commands
Younger abstention. Although the New York State Supreme Court
necessarily has some interest in this proceeding, this Court is
not convinced that an interest that is vital to the operation
of state government is involved. As the Supreme Court cautioned
in Pennzoil, supra, abstention under Younger is appropriate
only "if the State's interests in the proceeding are so
important that exercise of the federal judicial power would
disregard the comity between the States and the National
Government." Pennzoil, 481 U.S. at 11, 107 S.Ct. at 1526.
Preliminary Injunctive Relief
To obtain a preliminary injunction, the movant must
demonstrate: "(a) irreparable harm [if the preliminary
injunction does not issue] 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 tipping decidedly toward the party
requesting the preliminary relief." Jackson Dairy Inc. v. H.P.
Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). See Stormy
Clime Ltd. v. Pro-group,
Inc., 809 F.2d 971, 973 (2d Cir. 1987). Therefore, to prevail
on this motion, plaintiffs must show both that irreparable harm
to it will result if enforcement of the Town's ordinance is not
enjoined and that they are likely to prevail on the merits of
the claims asserted.
Insofar as Local Law No. 9 limits or otherwise prohibits the
disposal without the Town of solid waste generated without the
Town,*fn2 but processed at plaintiff's facility in Clarkstown,
the Court finds that plaintiffs have demonstrated a likelihood
of success on the merits of their claim. Although ostensibly
Local Law No. 9 was promulgated to protect the health and
environment of the residents of Clarkstown from the hazards
associated with dumping solid wastes in landfills, the Town
cannot legislatively slow down or prohibit the flow of
commerce, in this case, interstate solid waste products, by
artificially inflating the price of processing solid waste
generated without the Town from $70/ton to $81/ton and thereby
augment the economic security of the Town.
It does not seem likely that the Town's interest in meeting
its tonnage requirements to defendant Clarkstown Recycling
Center, Inc., and in so doing avoid a penalty for each ton
under the requisite annual minimum of 120,000 tons
(see, Doc. No. 11, Ex. E, ¶ 4), can constitutionally justify
the requirement that solid waste processors and carters expend
the sum of $81/ton, rather than the $70/ton they paid prior to
the enactment of Local Law No. 9, to process and cart the same
without of Town solid waste to the same without of Town
facilities. See Pike v. Bruce Church, Inc., 397 U.S. 137, 90
S.Ct. 844, 25 L.Ed.2d 174 (1970) (a state's interest in
enhancing the reputation of local products did not justify the
requirement that a company build a packing plant in that
state). Nor can the Town shift or defray the cost of disposing
of local solid waste for the benefit of local residents to
out-of-state persons or interests by improperly restricting
competition and overtly blocking the interstate transportation
of solid waste generated out of Town.
Thus, this Court concludes that it is likely that plaintiffs
can demonstrate that the Local Law constitutes an
unreasonable, discriminatory and impermissible burden on
interstate commerce in violation of the United States
Since plaintiffs have established the requisite likelihood
of success on the merits of the commerce clause claim, the
Court turns its attention to the issue of irreparable injury.
The essential element of irreparable harm has been defined to
mean injury for which monetary award cannot be adequate
compensation. Therefore, "it has always been true . . . that
where money damages is adequate compensation a preliminary
injunction will not issue." Jackson Dairy Inc., 596 F.2d at 72.
The importance to the movant of demonstrating clearly and
convincingly exactly why money damages are inadequate cannot be
overstated. See, e.g., Rondeau v. Mosinee Paper Corp., 422 U.S.
49, 57-65, 95 S.Ct. 2069, 2075-2079, 45 L.Ed.2d 12 (1975).
Inasmuch as plaintiffs have demonstrated that Local Law No.
9 threatens to or actually deprives plaintiffs of their
constitutional rights, privileges or immunities under the
Commerce Clause, this deprivation unquestionably constitutes
irreparable injury. Elrod v. Burns, 427 U.S. 347, 373-374, 96
S.Ct. 2673, 2689-2690, 49 L.Ed.2d 547 (1976) (deprivation of
constitutional right held to constitute irreparable injury).
Moreover, absent the grant of a preliminary injunction,
plaintiffs will be precluded from continuing the operation of
their interstate disposal of solid waste generated without the
territorial limits of the Town of Clarkstown. Because
realistically it would not be possible to measure plaintiffs
actual loss of customers and good will that will necessarily
occur, the injury to plaintiffs would likely be irreparable.
In determining whether or not to grant a preliminary
injunction, this Court has also given considerable weight to
the public interest in the efficient, economical and
environmental safe disposal of solid wastes. While Rule 65
does not expressly mention the public interest, our Court of
Appeals has recognized that a district court "may go much
further both to give or to withhold [injunctive] relief in
furtherance of the public interest than where only private
interests are involved." Standard & Poor's Corporation, Inc. v.
Commodity Exchange, Inc., 683 F.2d 704, 711 (2d Cir. 1982)
Thus, in deciding to grant a preliminary injunction in the
instant case, this Court recognizes, as did Chief Justice
Rehnquist, in his dissenting opinion in Philadelphia v. New
Jersey, 437 U.S. 617, 629-630, 98 S.Ct. 2531, 2538-2539, 57
L.Ed.2d 475 (1978), the national importance of the sanitary
treatment and disposal of solid waste. If Local Law No. 9, in
effect, increases the cost of shipping solid wastes through the
Town of Clarkstown, and thereby limits the flow of interstate
commerce, Clarkstown's health and environmental concerns may be
served but the interest of the public will be compromised.
Thus, this Court concludes that the need to protect the public
from the extremely serious health and safety problems
associated with solid waste disposal and the attendant costs of
doing so provides a strong ground for the maintenance of a
A preliminary injunction is granted prohibiting the
enforcement of Section 5(a) of Local Law No. 9 against
plaintiffs except insofar as it concerns locally generated
solid waste originating within the boundaries of the Town of
The Court grants defendant's motion for summary judgment but
only insofar as it relates to plaintiffs' antitrust claims.
The motion is denied in all other respects. The Court at
present declines to make the finding contemplated by Rule
54(b) of the Federal Rules of Civil Procedure.
Nothing in this opinion shall be construed to relate to the
issue presently pending before the Appellate Division of the
Supreme Court, on appeal from the Hon. Alfred Weiner, Acting
Supreme Court Justice.
All counsel appearing in this action are directed to appear
at Courtroom 31, United States Courthouse, 101 East Post Road,
White Plains, New York on September 16, 1991 at 9:00 AM, for
the purpose of a status report conference and to set a trial
Settle judgment, providing specific direction as to the bond
posted pursuant to Rule 65(c), on waiver of notice of
settlement or five (5) days notice of settlement.