Summary
holding that the plaintiffs could not bring an Article 78 proceeding to challenge the City of New York's plans for federal child development grant funds because the relevant federal statute — the Child Care and Development Block Grant Act, 42 USC § 9858 et seq. — did not provide for an express or implied private right of action
Summary of this case from Jurist v. Long Island Power Auth.Opinion
2548.
Decided December 18, 2003.
Order, Supreme Court, New York County (Lottie Wilkins, J.), entered May 16, 2003, which, in an article 78 proceeding brought by labor unions representing employees of day care centers funded by respondent City of New York, seeking to enjoin the City from supplanting, rather than supplementing, its tax levy and other monies earmarked for child care services with Federal Child Care and Development Block Grant (CCDBG) monies, in violation of various federal and state statutes and regulations pertaining to CCDBG monies, including 18 NYCRR 415.11(d)(5), granted the City's motion to dismiss the proceeding for lack of capacity to sue, unanimously affirmed, without costs.
Thomas M. Murray, for Petitioners-Appellants.
Ellen Ravitch, for Respondent-Respondent.
Before: Nardelli, J.P., Tom, Andrias, Rosenberger, Friedman, JJ.
The IAS court dismissed the petition on the ground that the CCDBG Act ( 42 U.S.C. § 9858 et seq.) cannot be enforced through a private right of action. On appeal, petitioners argue that for purposes of the mandamus relief they seek, it is not necessary for them to show an express or implied private right of action under the Act, only that they were harmed by the alleged diversion of earmarked monies in violation of the Act and are in the zone of interests to be protected (citing Hernandez-Avalos v. Immigration Naturalization Serv., 50 F.3d 842, 846 [10th Cir] and Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6). We reject that argument. Hernandez-Avalos is in conflict with Gonzaga Univ. v. Doe ( 536 U.S. 273), which "reject[s] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under [42 U.S.C.] § 1983" to enforce a federal funding statute, and in Dairylea there was no clear legislative intent to negate a private right of action ( 38 N.Y.2d at 11). Here, Congress clearly manifested its intent to negate a private right of action by creating an enforcement scheme that involves only federal administrative action ( 42 U.S.C. § 9858g[b][2]). We are not persuaded otherwise by Social Services Law § 410-bb manifesting legislative concern for the low salaries of day care workers ( see Mark G. v. Sabol, 93 N.Y.2d 710, 720-721). We have considered and rejected petitioners' remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.