bad faith that would key the Younger exception. According to the defendants, the motion should be denied pursuant to the federal abstention doctrine.
Further, the defendants allege that the plaintiffs' constitutional claims are mooted by the uncontested fact that the plaintiff voluntarily signed a consent judgment on March 27, 1996, which was so order by Justice Dunne of the Nassau County Supreme Court. The judgment states that the plaintiffs expressly consented to be permanently enjoined from conducting cabaret use at the premise without a special permit for the Board of Zoning Appeals. Therefore, the defendants contend that the plaintiffs' ability to obtain a preliminary injunction is completely impaired because the consent judgment acts as a legal or equitable bar which prevents the plaintiffs from asserting the constitutional claims. The defendants also claim that the plaintiffs have not offered competent evidence to suggest that they signed the consent judgment under duress or coercive circumstances.
C. The Court's decision
1. With Regard to the Younger Abstention Doctrine
As for the first element in the Younger analysis, the Court finds that there is a state proceeding currently pending before Justice Dunne of the Nassau County Supreme Court where the defendants moved on January 9, 1997 for permission to close the premises to the public until 12:00 p.m. the following day if cabaret use of the premises is witnessed. In fact, on February 17, 1997, the plaintiffs served a cross-motion before Justice Dunne, to enjoin the enforcement of the consent judgment and ordinance, claiming the ordinance to be unconstitutional. As stated earlier, a hearing was held on February 19, 1997 before Justice Dunne with regard to the this issue. All motion paper and cross-motion have been submitted to Justice Dunne and the parties are awaiting a decision. Based on the above mentioned facts, the Court finds there is a "ongoing state proceeding" with regard to this matter which satisfies the first element of the Younger test.
As for the second requirement, the Court finds that the state proceeding implicates important state interests. In New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 105 L. Ed. 2d 298, 109 S. Ct. 2506 (1989) the Supreme Court noted that in determining the substantiality of the state's interest in its proceeding, a court must "not look narrowly to [the state's] interest in the outcome of the particular case," but rather, to the "importance of the generic proceedings to the state." Thus, this Court must analyze the state's interest in criminal and civil proceeding to enforce the Town's zoning ordinance. See Sendlewski v. Town of Southampton, 734 F. Supp. 586, 591 (E.D.N.Y. 1990). In this Court's view, the current supreme court action implicates important state interests. See e.g., Sendlewski, 734 F. Supp. at 591; World Famous Drinking Emporium, Inc. v. City of Tempe, 820 F.2d 1079, 1082-83 (9th Cir. 1987).
In World Famous Drinking Emporium, the Ninth Circuit held that the civil action commenced by the city of Tempe to enforce adherence to its ordinances implicates important state interests. World Famous Drinking Emporium, Inc., 820 F.2d at 1082-83. The Court continued by stating that the city of Tempe had the option to proceed to either by civil or criminal enforcement of its municipal ordinance, and that "the option of criminal enforcement demonstrates the importance of the underlying state interest." Id. at 1083. The Court concluded that "such an action, in aid of and closely related to Tempe's zoning ordinance and akin to a criminal prosecution, clearly involves an important state interest. Thus, the Court finds that in this case, the second requirement for invoking Younger abstention is satisfied.
As for the third and final requirement, the Court finds that the plaintiffs do have an adequate opportunity to raise the constitutional challenges in the state proceeding. However, the plaintiffs have apparently made no attempt to raise their constitutional claims in the supreme court proceedings. Accordingly, the Court finds that the third requirement for the Younger abstention doctrine is satisfied.
However, the plaintiffs' main argument is not that Younger is inapplicable but they are entitled to relief under an exception to the doctrine. As mentioned earlier, in Younger, the Supreme Court stated that federal relief is obtainable in a case to which Younger otherwise applies, where the there is a showing of bad faith or harassment in bringing the or conducting the state proceeding. See Younger, 401 U.S. at 50; see also Middlesex, 457 U.S. at 435 (abstention would be inappropriate upon showing of "bad faith. harassment, or some other extraordinary circumstance" Id.).
In this matter, the current state proceeding in Nassau County Supreme Court was initiated based upon the alleged violation by the plaintiffs of the consent judgment signed by all relevant parties on March 27, 1996, and "so ordered" by Justice Dunne. During a hearing on February 17, 1997 before Justice Dunne, the defendants offered evidence, namely, eyewitness testimony, that the plaintiffs' violated the consent judgment by providing dancing and live and/or amplified music on the premises. Further, the consent judgment which was voluntarily entered into by the plaintiffs, expressly stated that the plaintiffs are permanently enjoined from using the premises as a cabaret. The plaintiff claims that the plaintiffs signed the consent judgment, which denied the right to have music and dancing on the premises, under threat of financial ruin and under extreme financial coercion. However, the plaintiff have not proffered facts to support their bald allegations.
This Court finds that the plaintiffs have not demonstrated that the defendants brought the state proceedings in bad faith, namely, without a reasonable expectation of prevailing in the supreme court action. Accordingly, the bad faith exception to Younger abstention does not apply in this matter.
Thus, the plaintiffs' motion for a preliminary injunction is denied.
In addition, with respect to Justice Dunne's decision referring the constitutional issues to the federal court for a decision, this Court, respectfully requests that Justice Dunne revisit his decision with regard to the federal questions that are involved in this matter. This Court is of the opinion that these issues should be entertained in one forum, namely, the state court. This case essentially involves a "garden variety" zoning dispute with constitutional overtones, which should be decided by the state courts.
1. The plaintiffs cannot meet the preliminary injunction standard
In addition, even if the Younger abstention did not apply in this case, which it does, the Court finds that the plaintiffs cannot meet the applicable standard for obtaining preliminary injunction as enunciated in Jackson Dairy Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).
In the seminal case of Jackson Dairy Inc., the Second Circuit set forth the applicable standard in this Circuit for obtaining preliminary injunctive relief. According to Jackson Dairy, the movant must clearly establish the following:
"(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 tipping decidedly toward the party requesting the preliminary relief" ( Jackson Dairy, supra, 596 F.2d at p. 72); see also Alan Skop, Inc. v. Benjamin Moore, Inc., 909 F.2d 59, 60 [2d Cir. 1990]; Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 [2d Cir. 1989]).
This standard was recently reiterated by the Second Circuit in Chemical Bank v. Haseotes, 13 F.3d 569, 573 (2d Cir. 1994) and ICN Pharmaceuticals, Inc. v. Khan, 2 F.3d 484, 490 (2d Cir. 1993).
A preliminary injunction is considered an "extraordinary remedy that should not be granted as a routine matter" ( JSG Trading Corp. v. Tray-Wrap, Inc., supra, 917 F.2d at p. 80; see also Patton v. Dole, 806 F.2d 24, 28 [2d Cir. 1986]; Medical Soc'y v. Toia, 560 F.2d 535, 538 [2d Cir. 1977]).
Fed. R. Civ. P. 52(a) requires that the district court sufficiently set forth its findings to permit appellate review (See Society for Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1088 [2d Cir. 1990]; Weitzman v. Stein, 897 F.2d 653 [2d Cir. 1990]).
However, where the injunction stays "'government action taken in the interest pursuant to a statutory . . . scheme' [the Second Circuit] has determined that the movant must satisfy the more rigorous 'likelihood of success prong.'" International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 70, (2d Cir. 1996), citing, Able v. United States, 44 F.3d 128, 131-32 (2d Cir. 1995); see also Plaza Health Laboratories, Inc,. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989).
The Court finds that because the plaintiffs expressly signed the consent judgment dated March 27, 1996 in which they agreed that "there shall be no live music nor dancing on the subject premises" and "there shall be no sound, noise or music emanation disturbing to the adjoining residents," they have no likelihood of success on the merits. Thus, even if the Younger abstention doctrine is not applicable, nevertheless, the Court will deny the motion for a preliminary injunction.
After reviewing the papers submitted by both parties, hearing oral argument, and for the reason set forth above, it is hereby,
ORDERED, that the plaintiffs' motion pursuant to Fed.R.Civ.P. 65 for a preliminary injunction is denied.
Dated: Uniondale, New York
April 4, 1997
ARTHUR D. SPATT
United States District Court
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