# Petition — Leibowitz v. Simins

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1314%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 968

## Text

No. ; Go”

in the [33 Supreme Gaurt, U. Se.
a a2 ?s a © wm #
; “—_"5 on i ~A
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1314%3A1. Public record. Not legal advice.