HELMSLEY SPEAR INC v. FISHMAN SEIU 32B 32J AFL CIO (2007)

Order, Supreme Court, New York County (Martin Shulman, J.), entered April 13, 2006, which granted plaintiffs' motion for a preliminary injunction against defendants continuing their “banging racket” outside the Empire State Building, unanimously reversed, on the law, without costs, the injunction vacated and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

This action to restrain conduct of loud drumming to publicize defendant union's handbilling activities is preempted by federal labor law (see Machinists & Aerospace Workers v. Wisconsin Empl. Relations Commn., 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 [1976];  Wolf St. Supermarkets v. McPartland, 108 A.D.2d 25, 487 N.Y.S.2d 442 [1985], lv. dismissed 68 N.Y.2d 833, 508 N.Y.S.2d 175, 500 N.E.2d 873 [1986];  Jou-Jou Designs v. International Ladies' Garment Workers' Union, Local 23-25, 94 A.D.2d 395, 465 N.Y.S.2d 163 [1983], affd. 60 N.Y.2d 1011, 471 N.Y.S.2d 568, 459 N.E.2d 861 [1983];  see also Teamsters, Chauffeurs & Helpers Union v. Morton, 377 U.S. 252, 259-260, 84 S.Ct. 1253, 12 L.Ed.2d 280 [1964];  San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 3 L.Ed.2d 775 [1959] ).   Indeed, the complained-of conduct has already been the subject of a ruling by the National Labor Relations Board recognizing defendants' right to engage in such activities.

The complaint sought only injunctive relief.   Inasmuch as such relief is barred, dismissal of the complaint, as demanded in the answer, is appropriate.