Petition — Leibowitz v. Simins

No. ; Go”

in the [33 Supreme Gaurt, U. Se.

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SUPREME COURT OF THE UNITED STATES

ti FFB 18 i977

term 1977 5 JR, C 2K

MICHAEL R. LEIBOWITZ

Petitioner

-~against-

HERBERT J. SIMINS Commissioner of

Department of Public Works; and

HARRY I. BRONSTEIN City Personnel

Director

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

MICHAEL R. LEIBOWITZ

Pro Se

1620 Ocean Avenue

Brooklyn, N.Y. 11230

INDEX

Opinions Below eeeeeeseeneeneeeeneenee

Jurisdiction Aad ue in wen be 606066668

Questions Presented ...ccccccccccces

Constitutional Provisions Involved

Statement of the Case ...cccccceees

Reasons for Granting the Writ .....

Important Public Interest ..cceccee

Non Constitutional Federal Questions 13

Constitutional Questions .....eee2e- 13

Grounds Below Lack Fair Basis ..... 14

Conclusion ed eh ae nec kene@ ae

App. A Opinion of Court of Appeals .. 17

App. B Opinion of Appellate Division 18

App. © Opinion of Supreme Court ..... 19

App. D Opinion of Supreme Court ..... 20

CASES CITED

NnNAwWWNMN eH

;

Koscherak v. Schmeller, 415 U.S. 943 .. 4

Urie v. Thompson, 337 U.S. 163 weccceee 5

Gottlieb v. Beame, N.Y.L.J. 2/18/64 ... 8

Expert Electric v. Goldin, 51 AD 2d 763 9

Mansfield v. Lindsay, 41 A D 2d 925....10

Dewey v. Des Moines, 173 U.S. 193 .... 14

Uvegas v. Comm. of Penn. 335 U.S. 437 14

Raley v. State of Ohio, 360 U.S. 423 . 14

Ward v. Bd. of Cty. Comm.,253 U.S. 17 14

Suffolk v. Wurlitzer, 24 AD 2d 893 .. 15

Soffair v. Koffler, 29 A D 2d 659 .... 15

Schwab v. McElligott, 282 N.Y. 182 ... 15

Smith v. Stewart, 45 AD 2d 853 ...--- 16

Cornwell v. Safeco, 42 AD 2d 127 .... 16

Ramos v. Dept. Of Mental Hygiene : )

34 A D 2d 925 eeeeveveee 16

Rosenberg v. Wickham, 36 A D 2d 881 .. 16

in the.

SUPREME COURT OF THE UNITED STATES

MICHAEL R. LEIBOWITZ

Petitioner

-against—

Herbert J. SIMINS Commissioner of Dept.

of Public Works; and HARRY I. BRONSTEIN

City Personnel Director

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OR THE COURT OF APPEALS:

OF THE STATE OF NEW YORK

The petitioner, MICHAEL R. LEIBOWITZ,

prays that a writ of certiorari issue to

review the opinion and judgment of ‘the

Court of Appeals of the State of New York

rendered in these proceedings on November

23, 1976 in which it dismissed my appeal,

or to review the opinion and judgment of

the Appellate Division of the Supreme Court

of the State of New York entered on

June 15, 1976. —

OPINIONS BELOW

The opinion of the Court of Appeals,

dismissing our appeal on a motinn to re-

new,is not yet reported, but appears at

Appendix A pp.i7-/g. The opinion of the

Appellate Division affirming the Judg-

ment of the Supreme Court Special Term is

reported in Banow v. Simins 53 App. Div.

2nd 542, and is given in Appendix B pp.

18-/9. The opinion of the Speciai Term

is unreported and appears at a C,;

pp. 19-20

In the original action, the appeals

courts gave no opinions. The Special Term

cpinion was not reported and is given in

Appendix D, p20. —

JURISDICTION

The order of the Court of Appeals of

the State of New York was rendered and

entered on November 23, 1976. This pet-

ition is filed less than ninety days

from that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1257(3).

QUESTIONS PRESENTED

I. If the respondents ‘passed us over

for promotion and took us off the list

because, as we allege. “we would not bend

the rules for contractors, especially for

one contractor for whom the rules are un-

commonly bent,’ would that be invidious

discrimination repugnant to the

Fourteenth Amendment?

2. Acknowledging that we have no right

to promotion, have we the right under the

equal protection provision of the Four-

teenth Amendment to be fairly considered

for promotion?

3. If under local law a trial will be

ordered if the respondents give a reason

for our pass-over, is it inconsistent

with the equal protection provision of

the Fourtheenth Amendment to deny us a

trial when we give the reason?

4. Was it repugnant to the due process

provisions of Amendments V, and XIV thet

we were passed over for promotion and re-

movea from the list without getting any

notice whatsoever about what had been

done to us?

5. Was it proper for the lower court to

grant the respondents’ cross-motion to

dismiss before answer when by making

such motion the respondents were admit-

ing as true all our allegations about

their unlawful conduct?

6. Were the local law decisions of the

courts below without fair and substantial

support so that this court c2n assume

jurisdiction? :

7. Are the points in questions l, 2,

and 3 above relevant to the due process

provision of Amendment XIV as well as to

the equal protection provision?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S.C.A. Constitution, Amendment XIV,

Sect. 1 (pp.3-4) "...nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdict-

ion the equal protection cf the laws."

STATEMENT OF THE CASE

This case arose when on November 5, .

1973, Robert Banow (who passed away on

February 1, 1977) and myself were passed

over and removed from a promotionlist to

Senior Electrical Engineer in the New

York City Dept. of Public Works.

At the outset, realize that this case

is wholly unlike previous civil service

promotion cases where those candidates

passed over claimed loss of rights be-

cause the appointing authority wovld give

them no reason. (e.g. Koscherak v.

Schmeller, 415 U.S. 943)

Here we say that we know what the reas-

on was, that it was illegal, unconstitut-

ional, and invidious; we say we were

passed over because we would not bend the

rules for contractors, especially for one

eéntractor for whom the rules are uncom-

monly bent. (Affidavit in Motion to Renew

Aug. 21, 1975, pp 2, 3-4) We have not yet

asked any court to accept this allegation

per se, but rather to order a trial of the

issues where we might prove it.

The whole thing was done subrosa with

indications that a planned attempt was

made to keep us ignorant of what had

happened. (There is a four month statute

in a matter like this.) The respondents

were guilty of many other acts of bad

faith as can be found in the record. We

found out by chance, and sought a trial of

the issues within a proceeding under Art.

78 of the Civil Practice Law and Rules. (A

sort of local version of the All Writs

Act.) If we could get an adjudication that

the pass-over was arbitrary and capricious

then we might seek relief in various ways

under local law.

In our original action we raised the

constitutional question that our being

passed over and removed from the list sub-

rosa without notice was a violation of

due process.( Petition of Jan. 7, 1974

pp. 2-3) The Supreme Court denied our pet-

ition(Appendix D) and the Appellate Divis-

ion affirmed without opinion, (Matter of

Banow v. Simins 46 App. Div.2a 544).

Before the Appellate Division we had

raised the point orally and in our brief

that a trial of the issues will be ordered

if the respondents give a reason, and so

we should have a trial on our given reason

that we were victimized because of biases

against us unrelated to our abilities,

( brief of Sept. 9, 1974, pp. 5, 19-23)

In our reply brief of the same action

(p. 2) we raised the point that we had

the right to be fairly considered for pro-

motion even if we had no right to promot-

ion.

Our motion for leave to appeal to the

Court of Appeals was denied without

opinion. (Banow v. Simins 36 N.Y.2d 645)

On August 21, 1975 we sought to renew

our petition upon newly discovered evid-

ence, namely that when we were passed

over, our department had a line available

to which one of us might have been pro-

moted, but the line was transferred to

another department to avoid promoting us,

and to remove us from the list. By local

law when someone is passed over three

times this removes him from the list.

When the other department used this line

it gave the respondents the third pass-

over to remove us from the list. The

constitutional questions raised in the

first action were not reasserted in the

second, but this Court has held that

those questions are still before it,

(Urie v. Thompson 337 U.S. 163)

In our motion to renew we alleged that

we were victimized because we would not

bend the rules for contractors, espec~—

ially one contractor for whom the rules

are uncommonly bent, (Affidavit of Aug.

21, 1975, pp. 2, 3-4). The respondents

cross moved to dismiss our motion before

answer and were successful. The Appell-

ate Division affirmed, (Banow v. Simins

53 App. Div.2a 542). Thereafter, we app-

ealed to the Court of Appeals es a matt-

er of right on constitutional questions.

The Court of Appeals granted the respon-

dents’ motion to dismiss our appeal by

equating our motion to renew on new ev-

idence with a motion to reargue,

(Appendix A. pp.j7~/8)

REASONS FOR GRANTING CERTIORARI

I. THIS CASE HAS IMPORTANT PUBLIC

INTEREST BECAUSE IT INVOLVES THE MAL-

FEASANCE OF THE CITY'S CONSTRUCTION PRO-

GRAM WHICH HAS BEEN A MAJOR CAUSE OF THE

CITY'S FINANCIAL PLIGHT WHICH ALL AMER-

ICAN TAXPAYERS MUST NOW UNDERWRITE.

Congress has appropriated money for

New York City for more public construct-—

ion, a construction which is made a

monopoly for favored unions and the con-

tractors associated with them. The fav-

ored unions are those comprising the

Building Construction Trades Council.

The union of this grovp that I deal

mostly with is Local 3 Of the Inter-

national Brotherhood of Electrical work-

ers, AFL-CiO. This union has two scales,

the ‘lit scale which is used generally in

private work, and the ‘A* scale which is

used in all vublic construction. The ‘A’

scale is twice that of the 'M' scale.

It will be shorm that the city's pub-

lic construction is generated for the

sake of this favored group, and that

this construction has not only leeched

New York City but has made a potent con-

tribution to national inflation. Before

the fiscal crisis the city would spend

typically $1.1 billion/year on construc-

tion. Typically: the revenue from the

8% sales tax would yield $525 million;

the city income tax, $440 million; park-

ing violations bureau, $43 million. Thus

the taxpayer has paid a heavy bill for

city construction without even consider-

ing inflation, for the three tax burdens

above pay for about 90% of city construc

tion.

The city, in its recent history; has

gone on a construction binge-that, even

allowing for inflation between the

eighteen seventies and the present, has

outdone the extravagance of Boss Tweed!

In addition to the tearing down and re-

building of firehouses, police stations, .

schools, libraries, hospitals, &c, the

city has been so kind as to do the

building for private organizations. The

city fathers are great lovers of base-

ball for they have rebuilt the Yankee

Stadium; they are great lovers of music,

for they have built a new college for

the Julliard School; ditto Pace College;

ditto the so called "Fashion Institute of

Technology"on 7th Avenue, &c,

The most imaginative application of

the city's program of rebuilding was

probably in the construction of the new

Bellevue and Gouverneur Hospitals. These

hospitals were actually rebuilt a few

times while they were being constructed

in order to gain more federal assistance

The final cost came to perhaps six times

the original estimate.’

Some think that construction is"pump

priming"*for the local. economy. However,

actual “pump priming” occurs only with

federal money, since the federal govern-

ment generates the money supply. When

the lion's share is paid from the city's

capital budget, Peter is just being .

robbed to pay Paul. Paul, too often, is

an out-of-towner. The city is now get-

ting federal money to build new librar-

ies, firehouses, &c before it opens its

closed ones. Now at least it could be

called“pump priming." The bill, however,

is being footed by more responsible

communities paying through federal tax-

ation so that New York City may again

glut its construction cabal.

Recently, The New York Times (Dec. 2,

1976 p. 1) told the story of a builder's

campaign contributions made in the

expectation of city construction contr-

acts. That builder Christopher Boomis

had gotten a $37 million dollar contract,

without competitive bidding, to build a

pier and warehouse in the Bronx.

Before 1964, all city public work was

the blatant monopoly of the favored un-

ions and associated contractors. This

monopoly was enforced by requiring con-

tractors on public work to contribute

funds for supplemental benefits to the

favored unions only. Only those contract-

ors having contracts with the favored

unions could comply. This was finally

stopped with the decision of Gottlieb v.

Beame, N.Y.L.J. Feb. 18, 1964, New York

County Special Term Part I. At that point

the city developed new devices to reserve

its work for the favored.

In every city construction contract the

required wage for every trade is spelled

out. These wages are pegged to the scales

of the favored unions. The claimed we"

ification for this is Sect. 220.5(a) of

the State Labor Law, whichis a local ver-

sion of the federal Davis Bacon Act. To

justify a wage for public work under this

local law, it would be necessary for the

comptroller to show that 40% of the work-

ers doing that type of work locally were

being paid that wage, and workers getting

that wage under this law cannot be fig-

ured in the reckoning. The comptroller

has never been able to do this. However,

the city makes the payment of favored un-

ion rates a condition precedent on all

its public work contracts. Bear in mind

that the ‘A' rate for public work is

double the 'M' rate for private work.

When a non-favored contractor success-

fully bids a city job by agreeing to pay

the union rate, I have seen him get all

manner o. harassment from the comptroll-

ers office e.g. checking minority hiring,

continuous audits of his books &c. In one

case at law Expert Electric v. Goldin

51 App. Div.2d 763; the court noted that

the comptroller's actions could destroy

the contractor. “s

Much as the State Labor Law is tortured

in its applicationagainst the non-favored

it is ignored for the favored. For exam-..

ple Sect. 220.1 says that eight hours

shall be the work day on public work. Yet

until July 1976 local 3 was getting time

and an half after the fifth hour. Now

they are getting time and an half after

the seventh hour.

If a non-union contractor confines his

ambition to $5000- jobs and pays the un-

ion scale, he will be left alone; but if

he gets too big for his britches, he will

be taken care of. Take the case of

Mansfield Contracting Corn. v. Lindsav,

Fi App. Div.cod 925. Wanstfield was att— ~

empting to do city work without the fav-

ored union, had, had difficulties with

the comptroller's office but stuck with

it. Even though he payed the local 3 rate

he was able to underbid the local 3 con-

tractors significantly because his men

would work harder to merit employment at

the higher rate of local 3. He was the

low bidder for a $4.2 million job on

Rikers Island. On January 11, 1973, the

Board of Estimate voted unanimously to

cancel Mansfield's contract on the

grounds that his union was racket con-

nected. Mansfield could not obtain the

relief he sought in the local court, but

was successful in federal court for the

Southern district of New York, as was re-

ported in the N.Y.L.J. May 4, 1973 p. 5

col. 5, and quoted here:

U.S. JUDGE CRDERS CITY TO HALT BIAS

AGAINST COMPANY."

"va or Lindsay, members of the Board

of Sotinate and others were accused

yesterday in Federal Court of dis-

criminating against a Queens elect-

rical contracting concern because of

its alleged underworld connections.

"Judge Whitman Knapp directed that

the city halt its unlawful bias ag-

ainst the Mansfield Contracting Corp.

of Flushing, which complained that

the city's allegations were ‘false

11

and utterly baseless.’

" * * * The evidence submitted to a

hearing, Judge Knapp said in his rul-

ing in the U.S. District Court for

the Southern District of New York,

suggested that the Mayor, the Board

of Estimate, and three employer assoc-

iations ‘have committed and will con-

tinue to commit the acts set forth..'

"In his complaint, company president

Richard M. Muffoleto of Great Neck,

L.I. alleged a ‘conspiracy’ among the

Mayor and other city officials with

the International Brotherhood of

Electrical Workers 'to monopolize

city construction work,'"

(Index. 73 Civ. 1094)

And so Mansfield won the right to oper-

ate outside of Local 3. But Mansfield was

eliminated as a maverick by the city's

paying him $800,000- in claim settlement

contingent upon his joining Local 3; to

this was added a promise from Local 3 of

$6 million of business from bonding com-

panies on defaulted contracts.

The lengths the city went to maintain

the monopoly of Local 3 were impressive.

I checked the officially listed campaign

contributions in our last Mayoralty elec-

tion, and Local 3 had contributed $3000-

to Mr. Beame- a microscopic amount con-

sidering. It might be noted that the res-

pondent Simins was Public Works Comm. of

Nassau County before being named Public

Works Commissioner of New York City by

Lindsay and retained by Beame. In October

of 1975, the respondent Simins had test-

ified before a grand jury of the Eastern

12

District of New York looking into alleged

illegal campaign contributions he mav

have received from contractors when he

was public works cummissioner in Nassau

County. He refused to say whether he had

waived his rights to immunity.

The city's construction program is in-

flationary for the whole country when it

operates as a pork barrel for the favor-

ed. In order to maintain the monopolies

of the favored unions the city must force

those unions! wage scales on all its

public construction. This will have an

effect of making those wages spuriously

high, since the employers won't care how

high those wages are when the city is

guaranteed to underwrite them. Indeed, if

all bidders must pay the same wages, the

higher the wages, the greater the profit

on “time and materials” ("cost plus")

jobs. It is no wonder the ‘A*' rate is

twice the 'M' rate. Knowledge of the ‘A'*

rate on city work has a powerful psycho-

logical force on all workers at bargain-

ing time.

Since the time of Boss Tweed, construc-

tion has been the favorite device for

transferring the taxes of the many to the

coffers of the few. Dollarwise, const-

ruction is the greatest source of mal-

feasance on the local level. So intimate-

ly linked is public construction and

government malfeasance that if one attemp-

ts to file newspaper clippings on the

subjects they cannot be separated into

different files.

Where the city has set up a construct-

ion program that is pro-organized labor,

but anti-work, that is pro-spending, but

. anti-worth, that has burdened its citiz—

13

ens with heavy taxation, that has contrib-

uted to the city's fiscal collapse, and

that has contributed to the national

inflation; the courts should not protect

from scrutiny those city officials whose

actions may have been unlawful.

Accordingly certiorari is asked on

grounds of compelling public interest.

THERE ARE FEDERAL QUESTIONS HERE IN

ADDITION TO THE CONSTITUTIONAL ONES

Here two licensed professional engin-

eers have alleged in affidavit that they

were passed over on promotion and removed

from the list because they wouldn't bend

the rules for contractors, especially for

one contractor for whom the rules are un-

commonly bent. This should raise the

question of whether the city's construct-

ion program is a pork barrel for the . |

privileged, which as we have seen is a

major, though unadvertised, cause of the

city's financial plight. Previously, this

construction was partly funded with feder-

al money. Presently, all new public con-

struction will be funded federally. Some

of the laws involved have been; The

Employment Act of 1946 15 USC 1022; and

the Comprehensive Employment and Train-

ing Act of 1973+ Since city construction

has been and is a product of federal law,

any malfeasance in the program becomes a

federal question. + 4¥2 USE G67O0l

CONSTITUTIONAL QUESTIONS GIVE THIS .

COURT JURISDICTION.

In our original petition we claimed

loss of rights repugnant to due process

of law (pp.4-5 supra) relative to being

passed over and removed from a list with-

out notice.

Additionally, our allegation on the

reason for the pass-over makes a question

of invidious discrimination repugnant to

the equal treatment provision of Amend-

ment XIV without being directly labeled

so. This Court has held that constitut-

ional questions can have been presented

without specific labeling, e,g. Dewev v.

City of Des Moines, 173 U.S. 193, 199-

201; Uvegas v. Commonwealth of Pennsyl-

vania, 355 U.S. 437; and this. is espec-

ially the case in questions of public

importance, e.g. Raley v. State of Ohio,

360 U.S. 423.

The above applies also to the question

we raised below (p. 5 supra) about how

the local courts will order a trial of

the issues if the respondents offer a

reason for the pass-over, but not if we

offer the reason.

THE NONFEDERAL GROUNDS RELIED ON BY THE

COURTS BELOW ARE WITHOUT FAIR AND

SUBSTANTIAL BASIS.

The courts below, in denying us relief,

always used reasons that -avoided our

allegation. This Court has held that its

jurisdiction is not defeated if the non--

federal ground relied on below is without

any fair and substantial basis,(Ward v.

Board of County Commissioners, 253 U.S.

17,22.)

In the Court of Appeals we had appealed

as a matter of right because of constit-

15

utional questions. The court dismissed

our appeal on the city's motion. In doing

so (Appendix A p.17) the court equated a

motion to renew on new evidence with a

motion to reargue. Now a motion to renew

and a motion to reargue are made distinct

by statute (New York State Civil Practice

Law and Rules Section 2221 and 5015(a)

(2))and case law where a motion to renew

has been held to be appealable, (Suffolk

v. Wurlitzer, 24 App. Div.2d 893,394;

Soffair v. Koffler, 29 App. Div.2d 659,

660, app. dis. O3N.Y.2d 897) I feel the

court tortured the law in dismissing our

appeal.

In the Supreme Court our motion to ren-

ew was defeated by the respondents’ cross

motion to dismiss before answer on the

ground of res judicata. It should be ob-

vious that this was error to apply res

judicata to new matter, and the Appellate

Division agreed with us (Appendix B) but

denied us relief on new grounds,

The lower court decision was interest-

ing in another respect By moving to dis-

miss before answer, the respondents eff-

ectively admitted as true all of our

allegations, (McKinney's C.P.L.R. 3211 -

C3211:24) Therefore, in order to move to

dismiss before answer, the respondents

put themselves into the paradoxical pos-

ition of admitting as true,acts that are

blatantly unlawful and unconstitutional.

No court should allow them to succeed

with such a position. See Schwab v.

McElligott, 282 N.Y. 182, 186. But here

ey did.

The Appellate Division in affirming the

Supreme Court allowed that the res ;

16

judicata argument could not hold, but

they accepted new arguments the respond-

ents had not used below which is contrary

to local law (Smith v. Stewert 45 Anp.

Div.2d 853,854) The arguments themselves

“just don't wash" as Justice Holmes used

to say. The court said (Appendix B p.i4 )

that we didn't show that with due dilig-

ence we could not have produced the evi-

dence at the time of the original pet-—

ition. Now leaving aside all questions

about our being faulted for not knowing

secrets that were kept from us, in logic

it is impossible to prove a negative arg-

ument. A man can no more show that he

could not have done the above, than he

can show that the Loch Ness monster does

not exist. It was for the respondents to

demonstrate that we had opportunity to

find out earlier, (Cornwell v. Safeco Ins.

Co., 42 App. Dived le/, 134-135).

It was also said that we did not demon-

strate that the new evidence would have

rendered a different result. But we gave

them cases where petitioners had gotten

trials of the issues with far less sup-

porting evidence of the respondents bad

faith than we had shown. e.g. Ramos v.

Dept. of Mental Hygiene,34 App. Div.2d

535. The Ramos case involved a provis-

ional who was being discharged after his

probationary period; whereas our case

involves a pass-over and removal from a

list; however, our locai courts have

alweys found these two situations to be

identical at law e.g. Rosenberg v.

Wickham, 36 App. Div.2d SB B30

I respectfully submit that the local

courts went against statute, against pre-

cedent, and against logic in stopping us

from getting a trial of the issues.

17

CONCLUSION

For reasons of important public inter-

est,federal questions other than constit-

utional, constitutional questions, and

because the local law decisions are with-

out fair and substantial support, a writ

of certiorari should issue to review the

Court of Appeals decision in dismissing

the appeal, or to review the decision of

the Appellate Division.

Respectfully submitted,

Miehak R. hei

Michael R. Leibowitz

1620 Ocean Avenue

Brooklyn, N.Y. 11230

Pro Se

February 17, 1977

APPENDIX A

Opinion of Court of Appeals

At a session of the Court, held at Court

of Appeals Hall in theCity of Albany on

the twenty third day of November A.D.1976

PRESENT, HON. CHARLES D. BREITEL,

Chief Judge Presiding.

Mo. No. 1077 In the Matter of

Robert Banow*and Michael R. Leibowitz

| Appellants,

-against-

Herbert J. Simins, Commissioner of Dept.

of Public Works, & ano., &c., Respondents,

for a judgment &c.,

A motion having heretofore been made her-

in upon the part of therespondents to dis-~

*¥Robert Banow passed away on Feb. 1, 1977

18

miss the appeal taken by the appellants

in the above cause to this Court and pap-

ers having been submitted thereon and due

deliberation having been thereupon had, it

is ORDERED, that the said motion be and

. the same hereby is granted and the appeal

is dismissed without costs, upon the

ground that the order appealed from does

not finally determine the proceeding with-

in the meaning of the Constitution (see

Marsano v. State Bank of Albany, 39 NY 2d

Joseph W. Bellacosa

Clerk of the Court

APPENDIX B

Opinion of Appellate Division

Stevens, P.J., Markewich, Capozzoli, Nunez

Lynch, JJ. 2581 First Department

In re Robert Banow, et ano.,

Petitioners-—Appellants,

M.R. Leibowitz

-against-

Herbert J. Simins etc. et ano.,

Respondents—Respondents,

D.R. Eisner

For a Judgment under CPLR Article 78.

Order, Supreme Court, Bronx County (Brust

» J.), entered December 18, 1975 granting

respondents' cross motion to dismiss app-

ellants’ motion to renew, unanimously

affirmed without costs and without disbur-

sements. Appellants are employees of the

Bureau of Building Design of the New York

._ City Department of Public Works. They

19

commenced an Article 78 proceeding clain-

ing they were improperly "passed over" for

promotion. A denial of their petition was

affirmed by this Court (Matter of Banow v.

Simins, 46 A D 2d 844), and their motion

for leave to appeal was denied by the

Court of Appeals (36 N Y 2a 645). Appeli-

ants thereafter brought the instant mot-—

ion to renew on the basis of newly discov-

ered evidence, to wit the transfer by

their department to another department of

a budgetary position to which one of them

might have been promoted. While in certain

circumstances, it might be proper for the

court of original jurisdiction to enter.

tain a motion to renew based on newly dis-

covered evidence after the appellate

courts have affirmed the original order

(see Sheridan v. Andrew, 80 N.Y. 648

(1880); Henry v. Allen, 147 N.Y. 346

(1895); Kirkvatrick Nome for Childless

Women v. kenvon, 209 App. Div. 179, lol

(1924)), appellants herein have not demon-

strated that the newly discovered evidence

would have rendered a different result.

Nor have appellants shown that with due

diligence they could not have produced

the evidence at the time of the original

petition. June ss 1976

APPENDIX C

Opinion of Supreme Court

SUPREME COURT BRONX COUNTY

Robert Banow and Michael R. Leibowitz

Petitioners

~against- sj aex No. 6108/74

Herbert J. Simins Commissioner of Dept.

of Public Works, and Harry I Bronstein

City Personnel Director. Respondents.

‘ for a judgment under Art. 78 CPLR

- =

20

This is a motion by the petitioner to

renew petition for judgment under Article

78 of the CPLR..The record indicates that

the court's original decision was unanim=-

ously affirmed in the Appellate Division

on November 14, 1974. Motion for leave to

appeal to the Court of Appeals was denied

on May 7, 1975. Accordingly, petitioner's

motion is denied, and the respondent's

cross motion to dismiss the petition is

granted ,

Dated Dec. 9, 1975 Joseph A. Brust

Jodo o

APPENDIX D

Opinion of Supreme Court in First Action

Same citation as Appendix C

This application by petitioners for re-

lief pursuant to Article 78 CPLR to com-

pel the appointment to a promotional pos-

ition in the Civil Service of this city

-is denied.

The petitioners were qualified for app-

cintments to the soveht positions but were

passed over when appointments were made

of one of first three persons certified

to be elegible on the list of candidates

for the position. Traditionally, the

right to make appointments in this manner

has been proper exercise of the discret—

ionary power to make appointments (people ;

ex. rel. Belcom v. Mosher, 163 N.Y. 32). ;

The responcent has the right to make sel-

ection in this manner and need not fur- p

nish eny reason for passing over petit-

ioners (Matter of Delicati v. Schechter

The petition is dismissed. Settle

judgment. Jos. A. Brust

May 22, 1974 J.S.C.