FILED: NEW YORK COUNTY CLERK 01/15/2015 05:25 PM

NYSCEF DOC. NO. 34

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INDEX
INDEXNO.
NO.152723/2014
UNASSIGNED
RECEIVED NYSCEF: 01/15/2015
03/25/2014

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-------------------------------------------------------------------x
NYC C.L.A.S.H., INC. and RUSSELL WISHTART,
Individually,

Index #:

Plaintiffs,
-against-

COMPLAINT FOR
DECLARATORY JUDGMENT

CITY OF NEW YORK, THE NEW YORK

CITY COUNCIL and MELISSA MARK-VIVERITO,
in her official capacity as Speaker of THE NEW YORK
CITY COUNCIL,
Defendants.
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Plaintiffs, NYC C.LA.S.H., INC. (CLASH) and RUSSELL WISHTART (Wishtart),
by way of Complaint for Declaratory Judgment against Defendants, CITY OF NEW YORK (the
City), THE NEW YORK CITY COUNCIL (the Council), and MELISSA MARKVIVERITO, in her official capacity as Speaker of the Council (Speaker Mark-Viverito), allege
as follows:
INTRODUCTION
1. This is an action for declaratory judgment pursuant to New York Civil Practice Law
and Rules (CPLR) 3001 to obtain a judicial declaration:
(a) That Local Law 152, Titled: A Local Law to amend the administrative code of the
City of New York, in relation to the regulation of electronic cigarettes (Local Law 152), which
amends New York City Administrative Code (cited as N.Y.C. Admin. Code) Title 17, Chapter
5 17-501 to 17-514 (Chapter 5), is unconstitutional, ultra vires, and null and void, in that
Local Law 152 adds a second subject (electronic cigarettes) to Chapter 5 and therefore violates
the One Subject Rule contained in the New York State Constitution, Article III, 15, the New

York Municipal Home Rule Law, Article 3, 20(3), and the New York City Charter, ch. 2, 32;
(b) That Local Law 152 may not be implemented and is unenforceable on the basis that
Local Law 152 is unconstitutional, ultra vires, and null and void, in that Local Law 152 violates
the One Subject Rule;
(c) Permanently enjoining and restraining Defendants from implementing and enforcing
Local Law 152.
2. As set forth herein, Defendants, in adopting Local Law 152, have exceeded their
legislative powers, thereby misleading the public and causing ongoing harm to New York State
residents who use electronic cigarettes (hereinafter referred to singularly as E-Cig and plurally
as E-Cigs) in public places in New York City, including Plaintiff CLASH and its members,
and Plaintiff Wishtart and others similarly situated.
JURISDICTION, FORM OF ACTION & VENUE
3. CPLR 3001 provides: The supreme court may render a declaratory judgment
having the effect of a final judgment as to the rights and other legal relations of the parties to a
justiciable controversy whether or not further relief is or could be claimed. This Court has
jurisdiction pursuant to CPLR 3001 to render a declaratory judgment regarding the unlawful
enactment, implementation and enforcement of an unconstitutional local law, to wit: Local Law
152.
4. A declaratory judgment action is an appropriate avenue of relief where a Plaintiff
seeks a determination as to the constitutionality and legality of legislative enactments, including
local laws. See, Dun & Bradstreet, Inc. v. New York, 276 N.Y. 198, 206 [1937]. In this
case, Plaintiffs seek a determination as to the constitutionality and legality of legislation enacted
by the Council, to wit: Local Law 152.

5. Venue is proper in New York County pursuant to CPLR 504 because this action is
against the City and the Council, Plaintiff Wishtart resides in New York County, and the events
giving rise to this case (the enactment of Local Law 152) occurred in New York County.
PARTIES
6. Plaintiff CLASH (NYC C.L.A.S.H. is an acronym for New York City Citizens
Lobbying Against Smoker Harassment) is a domestic business corporation headquartered in
Kings County, State of New York, and operating as a non-profit smokers rights organization
dedicated to advancing and promoting the interests of smokers and protecting the legal rights of
smokers since 2002. Recently, CLASH has also dedicated itself to advancing and promoting
the interests of E-Cig users and protecting their legal rights, as reflected on CLASHs website
at: http://www.nycclash.com/, and as demonstrated by CLASHs efforts in opposition to Local
Law 152. A copy of the testimony of Audrey Silk, founder of CLASH, at a Hearing before the
Councils Committee on Health (the Committee) on December 4, 2013 is attached hereto as
Exhibit A.
7. CLASH has nine hundred fourteen (914) members, many of whom are E-Cig users,
over 90% of whom are smokers, and over 60% of who reside in New York State.
8. Some of CLASHs members are E-Cig users (known as vapers) and will be unable
to engage in vaping (use of E-Cigs) in public locations in New York City due to the enactment
of Local Law 152. Some of CLASHs members also use E-Cigs to help them quit smoking.
9. Plaintiff Wishtart is a natural person and a resident of New York County, is a
vaper and vaping advocate who has fought bans on use and sale of E-Cigs throughout the United
States, has written a number of articles on the subjects of vaping and E-Cigs, is the host of a
weekly Internet-based radio program on Click, Bang! Radio dedicated to vaping and E-Cigs,

and organizes a monthly meeting for a New York-area vapers group.

10. Defendant City is a municipality existing pursuant to the laws of the State of New
York and the New York City Charter.
11. Defendant Council is the legislative body for the City and is subject to the New
York State Constitution, the New York Municipal Home Rule Law and the New York City
Charter. Defendant, Speaker Mark-Viverito, is the Speaker of the Council.
APPLICABLE LAW
New Yorks One Subject Rule
12. The New York State Constitution, Article III, 15 provides:
15. No private or local bill, which may be enacted by the legislature, shall embrace
more than one subject, and that shall be expressed in the title. (The One Subject Rule).
A copy of Article III, 15 excerpted from the State Constitution and obtained from the
New York Department of State website is attached hereto as Exhibit B.
13. The New York Municipal Home Rule Law (the MHR), Article 3, 20(3), codifies
the One Subject Rule:
3. Every such local law shall embrace only one subject. The title shall briefly refer to
the subject matter. A copy of MHR Article 3, 20(3), highlighted in yellow and
obtained from the New York State Legislature website, is attached hereto as Exhibit C.
14. The New York City Charter, ch. 2, 32, also contains the One Subject Rule vis--vis
the Council:
32. Local laws. Except as otherwise provided by law, all legislative action by
the Council shall be by local law. The style of local law shall be Be it enacted by
the Council as follows. Every local law shall embrace only one subject. The title
shall briefly refer to the subject-matter. A copy of New York City Charter, ch.
2, 32, highlighted in yellow on pp. 3-4 of the Exhibit excerpt (marked as pp. 2223 in original) and accompanied by the Charter cover page and the Chapter 2
introductory page, is attached hereto as Exhibit D.
15. All three iterations of the One Subject Rule impose the same procedural limitation on
local legislatures: local laws are limited to one subject, and the subject must be in the title of the
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law.
16. In Economic Power & Constr. Co. v. City of Buffalo, 195 N.Y. 292 [1909], the New
York Court of Appeals examined the purpose and history of the One Subject Rule:
The provision of the Constitution was adopted to check and prevent certain evils of
legislation, and should be enforced by courts whenever it has been substantially violated.
Its object was twofold. First, to prevent a combination of measures in local bills and
secure their enactage by a union of interests commonly known as log-rolling. Second,
to require an announcement of the subject of every such bill to prevent the fraudulent
insertion of provisions upon subjects foreign to that indicated in the title. Economic
Power & Const. Co., 195 N.Y. at 296. (Italics in Original).
The Court of Appeals continued its examination of the One Subject Rule, observing:
It was intended that every local subject should stand upon its own merits, and that the
title of each bill should indicate the subject of its provisions, so that neither the legislature
nor the public would be deceived. The title must be such at least as fairly to suggest or
give a clue to the subject dealt with in the act, and unless it comes up to that standard it
falls below the constitutional requirement. Id. A copy of Economic Power & Const. Co.
is attached hereto as Exhibit E.
FACTUAL BACKGROUND
I. The Council Enacts the Clean Indoor Air Act of 1988
17. In 1988, the Council enacted the Local Law 2 the Clean Indoor Air Act (the
CIAA), which created a new Chapter 5 of Title 17 of the N.Y.C. Admin. Code (Title 17
contains various chapters related to Health). Chapter 5, the CIAA, contained the newly
created 17-501 to 17-514 (hereinafter collectively referred to as Chapter 5, most of which
were effective April 6, 1988. Together, the fourteen sections of Chapter 5, the CIAA, constituted
a single local law, subject to the requirements of the One Subject Rule. Save for 17-501, the
title section, the thirteen other sections of Chapter 5 were preceded by a bold-faced Historical
Note stating Section added L.L. 2/1988 2, confirming that the fourteen sections of the
CIAA, taken as a whole, in fact comprised but a single local law. See generally, the CIAA. A
copy of the CIAA is attached hereto as Exhibit F.
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18. The title of the CIAA read as follows:

17-501 Short title. This chapter shall be known and may be cited as the Clean
Indoor Act. Exhibit F at p. 1.
19. In the Legislative findings section (contained in a footnote in small print beneath
the title), the Council made clear the purpose of the CIAA:
The City Council hereby finds that the regulation and control of smoking in enclosed
public places is a matter of vital concern, affecting the public health, safety and welfare
all New Yorkers. There is increasing evidence that passive exposure to cigarette smoke
(second-hand smoke) is linked to a variety of negative health consequences in humans . .
. . Exhibit F at p. 1 (footnote).
The Council continued:
Given the current state of scientific evidence on the adverse health effects of second-hand
smoke, the Council, in enacting this chapter, seeks to accomplish two goals: (1) to protect
the public health and welfare by prohibiting smoking in certain public places except in
designated smoking areas and by regulating smoking in the workplace; and (2) to strike a
reasonable balance between persons who smoke and nonsmokers to breath smoke-free
air. Exhibit F at p.1 (footnote).
20. 17-503 stated the extent of the CIAAs smoking prohibitions:
17-503 Prohibition of smoking in public places. a. Smoking is prohibited in all
enclosed areas within public places during the times in which the public is invited or
permitted . . . . Exhibit F at p. 4.
21. The list of places subject to the smoking prohibition included transportation facilities
and mass transportation; restrooms; retail stores; certain restaurants under specified
circumstances; business establishments employing more than 15 people (subject to certain
exceptions); libraries, museums and galleries; schools, sports arenas, theaters and convention
halls excluding certain designated smoking areas; meeting places; health care facilities; and
elevators. Exhibit F at pp. 4-8. Smoking in places of employment was further regulated
by 17-504. See generally, Exhibit F at pp. 8-10.
22. As plainly evidenced by the CIAAs title, legislative findings and the specific
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prohibitions contained in 17-503, the one and only subject of the CIAA was protection of the
public from the harmful effects of second-hand smoke exposure [second-hand smoke is also
commonly referred to as environmental tobacco smoke or ETS].
II. The Council Amends the CIAA: Enactment of the Smoke-Free Air Act of 1995
23. On January 10, 1995, then-City Mayor Rudolph Giuliani signed into law the SmokeFree Air Act of 1995 (the SFAA), Local Law 5, which amended the fourteen sections of
Chapter 5 and thus superseded the CIAA. The SFAA (Local Law 5), which became effective on
April 10, 1995, was, like its predecessor the CIAA, a single local law comprised of fourteen
(amended) sections. Thus, Chapter 5, although styled as the SFAA rather than as the CIAA
following the enactment of Local Law 5, remained but a single local law. A copy of Local Law 5
obtained from web.archive.org (with page numbering added for ease of reference) is attached
hereto as Exhibit G.
24. Whereas the CIAA ostensibly sought to strike a balance between smokers and nonsmokers, the SFAA tightened still further the smoking prohibitions contained in the CIAA,
subject to certain exceptions.
25. The title of the SFAA, the amended Chapter 5, read as follows, with Smoke-Free Air
Act replacing Clean Indoor Air Act:
17-501 Short title. This chapter shall be known and may be cited as the [Clean Indoor
Air Act] Smoke-Free Air Act. See, Exhibit G at p. 2.
26. 17-503 remained unchanged:
17-503 Prohibition of smoking. a. Smoking is prohibited in all enclosed areas within
public places except as otherwise restricted in accordance with the provisions below.
Exhibit G at p. 4.
27. In Local Law 5s declaration of legislative findings and intent, the Council

declared, inter alia:

According to the United States Environmental Protection Agency (EPA), the health
risks attributable to environmental tobacco smoke (ETS)(also known as second-hand
smoke, passive smoke or involuntary smoke) are well established . . . . It is the Councils
intention that these additional restrictions will help protect children and nonsmoking
adults from the health hazards presented by exposure to ETS. Exhibit G at pp. 1-2.
28. As plainly evidenced by the SFAAs amended title, unchanged statement of
prohibition contained in 17-503, and the declaration of legislative findings and intent, the one
and only subject of Chapter 5 following the SFAA Local Law 5 amendments remained
protection of the public from the harmful effects of second-hand smoke exposure.
II. The Council Amends Chapter 5 Twice More: Enactment of the Smoke-Free Air
Act of 2002 (Local Law 47) and Enactment of 2011 Local Law 11
29. In or about August, 2002, immediately following an August 12, 2002
announcement by then-City Mayor Michael Bloomberg (Mayor Bloomberg) of his intent to
expand the SFAA, the New York City Department of Health and Mental Hygiene (the Health
Department) released a public bulletin entitled Answers to Common Objections to Smoke-Free
Workplace Laws. The bulletin, which remains posted on the Health Departments website,
stated:
Why does New York City need a new smoke-free workplace law? . . . New York
Citys current smoke-free air workplace law assures that some, but not all, employees are
safe from the harmful chemicals that cause cancer and heart disease in second-hand
smoke. A new law is needed to extend this protection to all workers. [Emphasis in
original] Bulletin at p.1. A copy of the bulletin is attached hereto as Exhibit H and is
also available at http://www.nyc.gov/html/doh//downloads/pdf/smoke/shsmoke5.pdf.
30. On October 10, 2002, the Councils Committee on Health (the Health Committee)
held a hearing (the October 2002 Hearing) on a proposed bill, Intro 256, to amend the SFAA.
(Copies of quoted excerpts of testimony from the October 2002 Hearing are collectively attached
hereto as Exhibit I with quoted portions highlighted in yellow).

31. At the October 2002 Hearing, Mayor Bloomberg testified in support of Intro 256.
Mayor Bloomberg, articulating that the purpose, indeed the subject of the bill, was protection of
the public from the harmful effects of second-hand smoke exposure, testified:
Enacting this bill, Intro 256, will not outlaw the right of an individual to smoke and put
his or her own life in jeopardy. If someone wants to inhale smoke, directly or indirectly,
that's their right. But Intro 256 will protect thousands and thousands of New Yorkers
from involuntary exposure to the arsenic, formaldehyde and other deadly chemicals
present in smoke-filled rooms. Intro 256 will ensure that no worker in our City will ever
have to risk contracting cancer, or heart disease, or lung disease, from exposure to others
smoke, just to hold a job. [Emphasis added]. (Exhibit I at p. 15, lines 3 - 14).
Mayor Bloomberg continued:
Intro. 256 is our opportunity to free thousands of workers in our City from such
hazardous conditions. It should be seen as the just and logical extension of protections
against secondhand smoke that already are in place in most public settings. [Emphasis
added]. (Exhibit I at p. 20, lines 16-22).
When one person smoking causes another significant risk of disease and death,
government must act. [Emphasis added]. (Exhibit I at p. 25, lines 23-25).
I believe you will make New York City a national leader in ending the workplace
hazards of secondplace smoke. [Emphasis added]. (Exhibit I at p. 26, lines 20-22).
This bill, however, is not designed to stop you from smoking. If you want to smoke,
that's your right, and I will defend that. I don't think its an intelligent, if that's the one
you would make. The statistics are clear, you're hurting yourself very badly. But you
dont have the right to hurt others. [Emphasis added]. (Exhibit I at p. 47, lines 13-19).
32. Then-City Health Commissioner Dr. Thomas Frieden (Commissioner Frieden) also
testified in support of Intro 256 as a bill designed to protect the public from ETS exposure:
You have an opportunity to enact legislation that can similarly serve as a national model
for worker protection, protection from deadly secondhand smoke . . . . [Emphasis
added]. (Exhibit I at p. 29, lines 7-10).
33. On December 13, 2002, the Health Committee held another hearing (the December
2002 Hearing) on Intro 256. (Copies of quoted excerpts of testimony from the December 2002
Hearing are collectively attached hereto as Exhibit J with quoted portions highlighted in
yellow).
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34. Frieden again offered testimony that made clear the purpose and subject of the bill:
The current legislation is somewhat complex, but the concept is simple no New York
City worker will have to risk cancer, heart disease or lung disease from secondhand
smoke just to hold a job. [Emphasis added]. (Exhibit J at p. 22, lines 7-11).
35. Health Committee Chair and Councilwoman Christine Quinn echoed Frieden and
Mayor Bloomberg:
Since this bill is sought to protect employees from secondhand smoke, we did research
on private clubs. (Exhibit J at p. 12, lines 2-4).
36. Then-deputy mayor for economic development Daniel L. Doctoroff testified in
accordance with Mayor Bloomberg, Commissioner Frieden and Councilwoman Quinn:
Remember, the prime objective of this legislation is to protect workers and their safety
by creating a healthy smoke-free environment. [Emphasis added]. (Exhibit J at p. 16,
lines 16-18).
37. On December 18, 2002, the Council enacted the Intro 256 as Local Law 47, the
Smoke Free Air Act of 2002 (File # Int 0256-2002, Enactment #: 2002/047, Title: A Local
Law to amend the administrative code of the City of New York, in relation to the prohibition of
smoking in public places and places of employment). A copy of the Local Law 47 Legislation
Details (With Text) obtained from the Councils website is attached hereto as Exhibit K. A
copy of Chapter 5 (the SFAA) as amended by Local Law 47, is attached hereto as Exhibit L.
38. The title of the SFAA, Chapter 5 as amended by Local Law 47, remained:
17-501 Short title. This chapter shall be known and may be cited as the Smoke-Free
Air Act. See, Exhibit L at p. 1.
39. Additionally, 17-503 remained unchanged following the Local Law 47 amendment:
17-503 Prohibition of smoking. a. Smoking is prohibited in all enclosed areas within
public places except as otherwise restricted in accordance with the provisions below.
Exhibit L at p. 9.
40. Local Law 47 added additional smoking prohibitions to those already contained in
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the 1995 SFAA, but as evidenced by the unchanged 17-501 and 17-503, and by Mayor
Bloombergs comments, Local Law 47 did not change the subject of Chapter 5, that being
protection of the public from the harmful effects of second-hand smoke exposure, and Chapter 5
remained as a single local law.
41. The SFAA was amended again in 2011 with the enactment of Local Law 11 (File #
Int 0332-2010, Enactment #: 2011/011, Title: A Local Law to amend the administrative code of
the City of New York, in relation to prohibiting smoking in pedestrian plazas and public parks
and to repeal subdivision b of section 17-513 of the administrative code of the city of New York,
in relation to requiring a study regarding the prevention of second-hand smoke circulation in
restaurants). Local Law 11 did not amend Chapter 5 other than as suggested by the title. A
copy of the Local Law 11 Legislation Details (With Text) obtained from the Councils website is
attached hereto as Exhibit M.
III. CLASHs Challenge to the Smoke-Free Air Act
42. In 2003, CLASH challenged the SFAA and the then-recently enacted New York
State Clean Indoor Act on various constitutional grounds (none of which are raised in this
lawsuit to challenging Local Law 152) in a lawsuit in the Southern District of New York.
Although CLASHs challenge was dismissed on summary judgment, Hon. Victor Marrero,
U.S.D.J. clearly found that the SFAA was protection of the public from the harmful effects of
second-hand smoke exposure (CLASH v. City of New York, et al., 03 Civ. 5463 [quoted excerpts
from Decision & Order dated April 7, 2004], a copy of which is attached hereto as Exhibit N
with quoted portions highlighted in yellow).
To the contrary, as discussed in greater detail below, the Smoking Bans serve to protect
an important governmental interest -- the health and welfare of persons exposed to ETS in
New York State. [Emphasis added]. 03 Civ. 5463 at 43. Exhibit N.
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With regard to Local Law 47, the record illustrates that the New York City Council also
considered the mounting evidence against ETS as a basis for its enactment. [Emphasis
added]. 03 Civ. 5463 at 62. Exhibit N.
As this passage discusses, Local Law 47 was enacted as a measure to further protect
New Yorkers in response to the evidence that ETS exposure poses serious health effects.
[Emphasis added]. 03 Civ. 5463 at 63. Exhibit N. [referring to testimony of
Commissioner Frieden, see page 62].
New York States and New York Citys stated basis for enacting the Smoking Bans -protecting its citizenry from the well-documented harmful effects of ETS -- provides a
sufficient rational basis to withstand CLASHs constitutional challenges. [Emphasis
added]. 03 Civ. 5463 at 65. Exhibit N.
IV. The Council Enacts Local Law 152, the E-Cig Prohibition
43. On December 4, 2013 the Health Committee held a hearing (the December 2013
Hearing) on the Pre-Considered Introduction version of a Local Law (the E-Cig Bill - later
enacted as Local Law 152) to amend Chapter 5 to regulate and prohibit E-Cig use in public areas
where smoking was already prohibited pursuant to the SFAA.
44. At the December 2013 Hearing, Audrey Silk (Silk), founder and chairperson of
CLASH, testified on behalf of CLASH in opposition to the E-Cig Bill. See, Exhibit A.
45. Earlier in the December 2013 Hearing, Councilman Vincent J. Gentile (Gentile)
adroitly identified that E-Cigs and second-hand smoke exposure are two entirely different
subjects during a quasi-cross-examination of then-City Health Commissioner Thomas A.
Farley (Commissioner Farley), who conceded that E-Cigs would be defined separately and
further conceded that he actually didnt know what is in E-Cig vapor:
GENTILE: Im just wondering if were here today based on . . . your testimony trying to
fit a square peg into a round hole. Based on the definition that we have for the SmokeFree Air Act. And the fact that the Smoke-Free Air Act addressed the issue of
secondhand smoke. And as you said in your testimony who [sic] has been pointed out in
. . . the presentation is there is no traditional secondhand smoke with . . . e-cigarettes. So
are you suggesting that we redefine the . . . Smoke-Free Air Act because the . . . basic
definition was to protect secondhand smoke.
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FARLEY: No, its the . . . way that the bill is written as you noticed that electronic
cigarettes are listed separately. And the reason for us supporting this is as I put in my
testimony that while we dont really know whats . . . in the vapor there . . .
A copy of the Gentile/Farley testimony excerpted from the Transcript of the Minutes of
the Committee on Health dated December 4, 2013 is attached hereto as Exhibit O
with quoted portions highlighted in yellow. See, Exhibit O pp. 24-25
The exchange continued with Commissioner Farley unable (or unwilling) to provide a
direct or responsive answer to Gentiles piercing question:
GENTILE: So it [the Bill] really has nothing to do with keeping the air smoke free?
FARLEY: I.didnt say that. I would say we dont know what is in these [E-Cigs]
because they change all the time and theres no reporting whats in there . . . . I dont
think thats the primary reason but I cannot guarantee that its safe. Exhibit O p. 26.
Commissioner Farley later stated, in another evasive response to another inquiry by
Gentile: . . . the primary reason why we are supportive of this bill is not the exposure to
the peoples secondhand [ETS]. Exhibit O p. 27.
46. This was not the first time that Commissioner Farley offered testimony that belies
Defendants violation of the One Subject Rule. On May 2, 2013, Commissioner Farley testified
before the Health Committee. In response to a question about proposed legislation relating to
permits for hookah establishments, Commissioner Farley stated:
There are hookah bars. Those are places where people smoke through a water pipe a
product that is presented as not having tobacco in it, and the way that the current law is
written if you are smoking something that doesn't have tobacco in it, then the smoke free
air act doesn't apply. [Emphasis added]. (Testimony of Commissioner Farley, May 2,
2013 at pp. 65-66. Quoted excerpt from Commissioner Farleys May 2, 2013 testimony is
attached hereto as Exhibit P with quoted portions highlighted in yellow).
47. At around the time of the December 2013 Hearing, the Bills sponsors made
statements to the media that captured the Councils intent to regulate personal behavior through
an E-Cig prohibition, even though E-Cigs have nothing to do with ETS. For example,

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Councilman Daniel Dromm, a sponsor of the Bill, stated:

As a co-sponsor of the bill, I am pleased the legislation banning indoor use of ecigarettes passed, . . . It doesnt matter that e-cigarettes only produce vapors. Its
pretend smoking and its ridiculous. I want to end smoking, period. Allowing e-cigarettes
to remain unregulated would have only sent the wrong message. City council levies
wide-ranging e-cigarette ban, Queens Chronicle, December 26, 2013 (attached hereto as
Exhibit Q and available at: http://www.qchron.com/editions/queenswide/city-councillevies-wide-ranging-e-cigarette-ban/article_1f66c92f-778c-5923-81ea906f24a9000f.html.
48. Following the Health Committees approval of the Bill on December 19, 2013,
Councilman James Gennaro, also a sponsor of the Bill, stated:
Electronic cigarettes are an unregulated product that threaten to turn back the important
gains we as a city have made in the last decade to de-normalize the act of smoking and to
maintain a clean air environment to live, work, and play . . . E-Cigs Banned in NYC
Public Spaces, The Gothamist, December 19, 2013 (attached hereto as Exhibit R and
available at: gothamist.com/2013/12/19/e-cigs_likely_to_be_banned_in_publi.php).
49. The Health Committee released reports on December 4, 2013 and December 18,
2013 which contained an overview of the arguments for and against the Bill and recited the
Committees analysis of the Bill. (A copy of the December 4, 2013 Health Committee Report is
attached hereto as Exhibit S. A copy of the December 18, 2013 Committee Report is attached
hereto as Exhibit T). Both reports stated that:
The bills intent is to prohibit use of electronic cigarettes in public places and places of
employment in order to facilitate the enforcement of the Citys Smoke-Free Air Act and
to protect youth from observing behaviors that could encourage smoking. (Exhibit S
at p. 11; Exhibit T at p. 11).
50. On December 18, 2013 the Health Committee voted in favor of the Bill. Prior to that
date, the Committee had made only technical amendments to the Bill as proposed.
51. The E-Cig Bill was approved by the Council on December 19, 2013 and signed into
law by Mayor Bloomberg on December 30, 2013 as Local Law 152. A copy of the Local Law
152 Legislation Details (With Text) obtained from the Councils website is attached hereto as

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Exhibit U.
52. The effective date of Local Law 152 is April 29, 2014, 120 days after the enactment
date. See, Local Law 152 15, Exhibit U at p. 17.

LOCAL LAW 152 IS UNCONSTITUTIONAL IN VIOLATION OF

THE ONE SUBJECT RULE
53. Following the Local Law 152 amendment, 17-501, the title section of Chapter 5,
the SFAA, which is not mentioned in Local Law 152, remains unchanged:
17-501 Short title. This chapter shall be known and may be cited as the Smoke-Free
Air Act. N.Y.C. Admin. Code 17-501.
54. As Chapter 5 now has two subjects in violation of the One Subject Rule, the first
being protection of the public from the harmful effects of second-hand smoke exposure, and the
second subject being regulation of E-Cigs, the title section is now inaccurate and misleading in
that it still unequivocally declares that the subject of the SFAA is the regulation and prohibition
of smoke exposure, and that only tobacco products which generate smoke exposure are subject to
the provisions of Chapter 5.
55. Following the Local Law 152 amendment, N.Y.C. Admin. Code 17-503 now
reads:
17-503 Prohibition of smoking and use of electronic cigarettes. a. Smoking [is], and
using electronic cigarettes, are prohibited in all enclosed areas within public places.
[Underlining in the original text of Local Law 152. Underlining represents changes to the
SFAA by the Local Law 152 amendment]. Local Law 152 3, Exhibit U at p. 3
56. As evidenced by amended 17-503, Chapter 5, the SFAA, now regulates (i)
smoking resulting in ETS exposure on the one hand, and (ii) E-Cig use on the other - two
distinct subjects in violation of the One Subject Rule. The distinct definitions assigned to
smoking and vaping clearly delineate smoking and vaping as two wholly different activities that

15

utilize different delivery mechanisms and create different by-products. As Charles D. Connor,
former president of the American Lung Association, wrote in a recent opinion piece:
As a former president of the American Lung Association, I have seen how e-cigarettes
have become the subject of much confusion and misinformation. Too often people think
they are identical to conventional cigarettes that burn tobacco. Consequently they think
that e-cigs should fall under the same rules and restrictions. But they are not the same. Ecigarettes do not involve the exhalation of harmful smoke. They do not involve
combustion, which has been recognized by the public health community for years as the
real danger of a tobacco cigarette. To me the lesson is clear: Different products require
different regulations. [Emphasis added]. Opinion: E-Cig debate going off the rails,
Chicago Tribune, January 15, 2014 (available at http://articles.chicagotribune.com/201401-15/opinion/ct-ecigs-restrictions-chicago-tobacco-smokers-pers20140115_1_conventional-cigarettes-e-cigarettes-electronic-cigarettes; also attached
hereto as Exhibit V.
57. Moreover, every reference to smoking throughout Chapter 5 is now followed by
or using an electronic cigarette or and using an electronic cigarette. See generally, Local
Law 152, Exhibit U. The use of the words and and or before the phrase using electronic
cigarettes suggests that even the Council recognized that it was adding a new subject to
Chapter 5, since the words and and or are commonly and ordinarily used to link two distinct
subjects.
58. In the Legislative findings section of Local Law 152, the Council provided six
justifications for the addition of E-Cigs to Chapter 5:
(i) E-Cigs have not been approved by the FDA for smoking cessation and are currently
unregulated by the FDA;
(ii) E-Cigs, which utilize nicotine, may interfere with smokers attempts to quit;
(iii) E-Cigs may cause children who experiment with them to become addicted to
nicotine and switch to cigarettes;
(iv) E-Cig use may interfere with enforcement of the Smoke-Free Air Act;
(v) E-Cig use may increase the social acceptability of smoking; and
(vi) An E-Cig ban will protect youth from observing behaviors that could encourage them
to smoke.
Local Law 152 1, Exhibit U at p. 2.
59. These legislative findings, which are statements of purpose, show that E-Cig
16

regulation is, even in the Councils words, at best, tangentially related to the subject of smoking,
in much the same way that toy water guns are at best tangentially related to authentic firearms.
Furthermore, E-Cig regulation is completely unrelated to the subject of ETS exposure, the core
of the SFAA. Local Law 152 is really about targeting personal behavior through regulation of a
product rather than about protecting citizens from involuntary ETS exposure.
60. Until the Local Law 152 amendment, Chapter 5 was silent on vaping, the
use of E-Cigs. However, both before and after the Local Law 152 amendment, Chapter 5, the
SFAA, which properly regulates ETS exposure but not E-Cigs, defines smoking as inhaling,
exhaling, burning or carrying any lighted cigar, cigarette, pipe, or any form of lighted object or
device which contains tobacco. N.Y.C. Admin. Code 17-502(y).
61. Local Law 152 added to 17-502 a definition of electronic cigarettes. Local Law
152 defines an E-Cig as an electronic device that delivers vapor for inhalation. New 17502(qq) - Local Law 152 3 (Exhibit U at p. 2). This definition distinguishes the substance ECigs deliver from the substance emitted from smoking. E-Cigs deliver vapor, whereas
cigarettes emit tobacco smoke.
62. The findings of the Health Committee likewise distinguish between smoking and
vaping and between cigarette use and electronic cigarette use. The Committees Reports
of December 4, 2013 and December 18, 2013 state that electronic cigarettes are electronic
devices that deliver nicotine, flavor, and other chemicals through vaporization or aerosolization.
(Exhibit S at p. 2; Exhibit T at p. 2). Thus, in the Councils own words, E-cig use, or
vaping, unlike traditional cigarette smoking, delivers and emits vapor without using tobacco,
whereas traditional smoking involves the use of tobacco to emit tobacco smoke.
63. These vapor/smoke and vaping/smoking distinctions are supported by the
17

Health Committees recognition that vaping and smoking involve wholly distinct mechanisms
and substances. The Committee further acknowledged that E-Cig use may be seen as an
alternative to smoking. (Exhibit S at p. 3; Exhibit T at p. 3). Indeed, in the Reports, the
Committee found that the use of electronic cigarettes in the U.S., [is] commonly referred to as
vaping,. Manufacturers and proponents of electronic cigarettes claim the devices offer users
a safer alternative to smoking cigarettes, as electronic cigarettes can deliver nicotine without
combusting tobacco and producing smoke. Id.
64. The Councils six justifications for its improper use of Chapter 5 to prohibit E-Cig
use also supports the notion that exposure to second-hand smoke, or ETS, is one subject, and
E-Cigs are a separate subject. See, Local Law 152 3, Exhibit U at p. 3, summarized in para.
47 herein. Not a single one of these six justifications has anything to do with the subject of
smoking around others, or protecting citizens or workers from exposure to ETS.
65. Rather, the Council justified including E-Cigs in Chapter 5 to regulate the behavior
of E-Cig users for speculative prophylactic reasons, and, upon information and belief, because
the Council was unable or unwilling to enact a freestanding E-Cig ban without the cover
afforded by tying E-Cig use to the convenient but utterly tangential bogeyman of smoking
partnered with ETS. Thus, the Council has not only run afoul of the One Subject Rule, but has
also done so in an intellectually dishonest manner. At least one Council member, Gentile,
demonstrated a keen awareness of this intellectual dishonesty when he opined to Commissioner
Farley that he and other supporters of Local Law 152 were trying to fit a square peg into a
round hole. See, Exhibit O pp. 2-3
66. Even assuming, arguendo, that E-Cigs interfere with smoker attempts to quit and

18

E-Cig use may increase social acceptability and of appeal of smoking,1 vaping is not
smoking and does not generate second-hand smoke, or ETS, nor has the Council made any
finding to the contrary. Second-hand smoke exposure is the one and only subject of Chapter 5,
which tellingly, is still titled the Smoke-Free Air Act, even though for all intents and purposes,
Chapter 5 is now the Smoke Free Air and E-Cig Act.
67. Since Local Law 152 amended Chapter 5 to cover two wholly separate subjects protection of the public from the harmful effects of second-hand smoke exposure on the one
hand, and regulation of E-Cigs on the other hand - Chapter 5, which has been a single local law
since its enactment in 1988 and still is a single local law (the SFAA), now violates the One
Subject Rule, as it no longer inform[s] the public in general and members of the legislature in
particular by the title of the bill what interests are likely to be affected by its becoming a law.
See, Economic Power & Const. Co., 195 N.Y. at 296 (Exhibit E). This is the kind of
misleading legislative act the One Subject Rule was enacted to prevent: the fraudulent insertion
of provisions upon subjects foreign to that indicated in the title. Id.
68. In adding an E-Cig prohibition to the smoking provisions already in place in Chapter
5, the Council perpetrated the kind of legislative evil the One Subject Rule was created to
prevent. See, Economic Power & Const. Co., 195 N.Y. at 296 (Exhibit E). As Commissioner
Farley conceded: the smoke free air act doesnt apply. See, Exhibit P.

AS AND FOR A FIRST CAUSE OF ACTION

(All Defendants)

1
Assertions which are by no means accurate, in fact, multiple studies by respected sources indicate that E-Cigs help
smokers quit. See, Riccardo Polosa, et al, Effect of an electronic nicotine delivery device (e-Cigarette) on smoking
reduction and cessation: a prospective 6-month pilot study, Harm Reduction Journal 10 (10) [2013] (concluding that
substantial and objective modifications in the smoking habits may occur in smokers using e-Cigarettes, with
significant smoking reduction and smoking abstinence and no apparent increase in withdrawal symptoms),
Available at http://www.biomedcentral.com/content/pdf/1471-2458-11-786.pdf ; See, Caponnetto, et al, [Mar
2013]. Electronic cigarette: a possible substitute for cigarette dependence,.Monaldi Arch Chest Dis 79 (1): 12
9. PMID 23741941 (concluding that electronic cigarettes help some smokers quit smoking).

19

Declaratory Judgment as to the Constitutionality of Local Law 152

69. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through
68of the Complaint as if set forth at length herein.
70. In enacting Local Law 152, the Council violated the One Subject Rule, as set
forth in Article III, 15 of the New York State Constitution, the MHR, Article 3 20(3), and the
New York City Charter, ch 2, 32.
71. By reason of the foregoing, an actual and justiciable controversy exists in that
Plaintiffs, including CLASHs members and Wishtart, as well as others similarly situated, will be
unlawfully and unconstitutionally prevented from vaping at public places and places of
employment in New York City, and will be unlawfully deceived and misled by Local Law 152.
72. Therefore, Plaintiffs seek a judicial declaration that Local Law 152 is
unconstitutional, ultra vires, and null and void, in that Local Law 152 adds a second subject
(electronic cigarettes) to Chapter 5, a single local law, and therefore violates the One Subject
Rule contained in the New York State Constitution, Article III, 15, the New York Municipal
Home Rule Law, Article 3, 20(3), and the New York City Charter, ch. 2, 32.
AS AND FOR A SECOND CAUSE OF ACTION
(All Defendants)
Declaratory Judgment as to the Implementation and Enforceability of
Local Law 152
73. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through
72of the Complaint as if set forth at length herein.
74. In enacting Local Law 152, the Council violated the One Subject Rule, as set
forth in Article III, 15 of the New York State Constitution, the MHR, Article 3 20(3), and the
New York City Charter, ch 2, 32.
75. By reason of the foregoing, an actual and justiciable controversy exists in that
20

Plaintiffs, including CLASHs members and Wishtart, as well as others similarly situated, will be
unlawfully and unconstitutionally prevented from vaping at public places and places of
employment in New York City, and will be unlawfully deceived and misled by Local Law 152.
76. Therefore, Plaintiffs seek a judicial declaration that Local Law 152 may not be
implemented and is unenforceable on the basis that Local Law 152 is unconstitutional, ultra
vires, and null and void, in that Local Law 152 adds a second subject (electronic cigarettes) to
Chapter 5, a single local law, and therefore violates the One Subject Rule contained in the New
York State Constitution, Article III, 15, the New York Municipal Home Rule Law, Article 3,
20(3), and the New York City Charter, ch. 2, 32.

AS AND FOR A THIRD CAUSE OF ACTION

(All Defendants)
Permanent Injunction
77. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through
76of the Complaint as if set forth at length herein.
78. In enacting Local Law 152, the Council violated the One Subject Rule, as set
forth in Article III, 15 of the New York State Constitution, the MHR, Article 3 20(3), and the
New York City Charter, ch 2, 32.
79. By reason of the foregoing, an actual and justiciable controversy exists in that
Plaintiffs, including CLASHs members and Wishtart, as well as others similarly situated, will be
unlawfully and unconstitutionally prevented from vaping at public places and places of
employment in New York City, and will be unlawfully deceived and misled by Local Law 152
80. Therefore, Plaintiffs seek a permanent injunction enjoining the Defendants from
implementing or enforcing Local Law 152.

21

VERIFICATION
STATE OF NEW

YORK )
ss.:

COUNTYOFNEWYORK )
I, RUSSELL WISHTART, being duly sworn, depose and say that I am a Plaintiff
in the action entitled I{yC C.L.A.S.H., INC. and Russell Wishtart v. City of New York
and the New York City Council (Supreme Court of the State of New York, County of New

York), I have read the foregoing Complaint and know the contents thereof; that the same is true
to my own knowledge, except as to the matters therein stated to be alleged on

belief and

as to those matters

I believe them to be true.

Sworn to before me this

Ll

day of

March,2)l4

.aG

/1

Notary Public
HOWARO KASTIN
Notary public, State of Ns,,v york
No. 01t(A62142,t4
in Nasuu County
,Qualified
Fited in New york C6unty
uommission
"^1T,1..f]: Explres l,{ovembe r SO ZrJfl

,/,r/y

and

VERIFICATION

STATEOFNEWYORK

ss.:

cotrNTY oF KrNGS )
I, AUDREY SILK, being duly swoln, depose and say that I am the chairperson, chief
execurive officer and founder of Plaintiff, NYC C.L.A.S.H.,

INC. I have read the foregoing

Complaint in the action entitled NyC C.L.A.S.H., INC. and Russell Wishtartv. Ci4, of New York
and the New York Ciqv Council (Supreme Court of the State of New York, County

ofNew Yolk)

and know the contents thereof; that the same is o:ue to rny own knowledge, except as to tlre

matters therein stated to be alleged on intbrmation and beliet, and as to those matters I believe
them to be true.

Sworn to before rne this

llorrfuoflc - &d.ot tllr tbt

,t0.0rv062s67r

0tlt|lltoo in Richmond
oct 7.2017

INDEX NO. 152723/2014

FILED: NEW YORK COUNTY CLERK 05/30/2014

NYSCEF DOC. NO. 27

RECEIVED NYSCEF: 05/30/2014

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEV/ YOR

NY C.L.A.S.H., INC. and RUSSELL WISHTART,

Individually,

Plaintiffs,

ANSWER
Index No. 15272312014

-against-

CITY OF NEW YORK, THE NEV/ YORK CITY

COUNCIL and MELISSA MARK-VIVERITO, in her
official capacity as Speaker of THE NEW YOR.K CITY
COI.INCIL,

Defendants.

DEFENDANTS, the City of New York ("City"), the New York City
Council ("City Council"), and MELISSA MARK-VIVERITO, in her offrcial capacity
Speaker

as

of the New York City Council, by their attorney ZACHARY W. CARTER,

Corporation Counsel for the City of New York, as and for their answer to the Complaint,
state upon information and belief:

l.

Deny the allegations contained in paragraph "1" of the Complaint

insofar as they allege or purport to allege that Plaintiffs have a valid claim or claims
against Defendants, insofar as Plaintiffs allege that they are entitled to the relief sought

herein, and insofar as they allege any wrongdoing on the part of Defendants; except deny

knowledge or information sufficient to form a belief as to the truth of the allegations set

forth in paragraph

"l"

of the Complaint as to Plaintiffs'states of mind and intent in

commencing this action, and as to the relief sought by Plaintiffs.

2,

Deny the allegations set forth in paragraph "2" of the Complaint,

3,

The allegations set forth in paragraph "3" of the Complaint consist

solely of legal argument for which no response is warranted, however to the extent that a
response is required Defendants deny the allegations contained in paragraph

(63"

of the

Complaint insofar as they allege or purport to allege that Plaintif have a valid claim or

claims against Defendants, and insofar as they allege any wrongdoing on the part of
Defendants; and deny that the allegations set forth in paragraph '(3)' of the Complaint
completely and accurately describe New York Civil Practice Law and Rules ("CPLR")

3001 referred to therein, and respectfully refer the Court to CPLR $ 3001 for the full text
and true meaning thereof.

4.

The allegations set forth in paragraph "4" of the Complaint consist

solely of legal argument for which no response is warranted, however to the extent that a
response is required Defendants deny the allegations contained in paragraph '(4)' of the

Complaint insofar as they allege or purport to allege that Plaintiffs have a valid claim or

claims against Defendants, and insofar as they allege any wrongdoing on the part of
Defendants.

5.

Deny the allegations set forth in paragraph

"5" of the Complaint,

insofar as they allege or purport to allege that Plaintiffs have a valid claim or claims

,)
-2.-

against Defendants, and insofar as they allege any wrongdoing on the part of Defendants,
except admit that Venue for this action lies in this Court.

6,

Deny knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in paragraph "6" of the Complaint.

7.

Deny knowledge or information suffrcient to form a belief as to

the truth of the allegations set forth in paragraph((7)) of the Complaint.

8.

Deny knowledge or information suffrcient to form a belief as to the

truth of the allegations set forth in paragraph "8" of the Complaint about the Plaintifls
members; except deny that the allegations set forth in paragraph

completely and accurately describe Local Law 152

"8" of the Complaint

of 2013 refened to therein, and

respectfully refer the Court to Local Law 152 of 2013 for the full text and true meaning
thereof,

9.

Deny knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in paragraph "9" of the Complaint.

10.

Admit the allegations set forth in paragraph

11.

Deny that the allegations set forth

in

"l0"

of the Complaint,

paragraph

"11" of

the

Complaint accurately and completely describe the New York City Council, and
respectfully refer the Court to the New York City Charter ("City Charter"), and the New

York City Administrative Code ("Administrative Code") for the powers and duties
thereof; and additionally respectfully refer the Court to the Municipal Home Rule Law
for the full text and true meaning thereof.

12.

The allegations set forth

in

paragraph

"12" of the Complaint

consist solely of legal argument for which no response is warranted, however to the

-3-

extent that a response is required Defendants deny the allegations contained in paragraph

"12" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants,

13.

Deny knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in paragraph "13" of the Complaint,

14.
consist solely

The allegations set forth

of legal argument for which no

in paragraph "14" of the Complaint

response

is warranted, however to

the

extent that a response is required Defendants deny the allegations contained in paragraph

"14" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants.

15.

Deny knowledge or information sufflrcient to form a belief as to the

truth of the allegations set forth in paragraph "l5" of the Complaint.

16.
consist solely

The allegations set forth in paragraph "16" of the Complaint

of legal argument for which no

response is warranted, however to the

extent that a response is required Defendants deny the allegations contained in paragraph

"16" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "16" of the

Complaint completely and accurately describe the case cited therein, and respectfully
refer the Court to the case for the full text and true meaning thereof.

-4-

17.

The allegations set forth in paragraph "17" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent That a response is required Defendants deny the allegations contained in paragraph

"17" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "17" of the

Complaint completely and accurately describe the Clean Indoor

Air Act

referred to

therein, and respectfully refer the Court to the Clean Indoor Air Act for the full text and
true meaning thereof; and further deny the allegations set forth in paragraph

"lT" of the

Complaint to the extent that they allege or purport to allege that Chapter 5 referenced
therein constitutes a local law; and fuither deny the allegations set forth in paragraph

"17" of the Complaint to the extent that they allege or purport to allege that the Historical

Note referenced therein is part

of the Administrative

Code; and further deny the

allegations set forth in paragraph "T'7" of the Complaint to the extent that they allege or
purport to allege hat a "chapter" of the "Administrative Code" comprises a "single local

law", or that it is an accurate definition or use of the term "local law",

18.

Deny that the allegations set forth

in

paragraph

Complaint completely and accurately describe the Clean Indoor

"18" of

Air Act

the

referred to

therein, and respectfully refer the Court to the Clean Indoor Air Act for the full text and
true meaning thereof.

19.

The allegations set forth in paragraph "79" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

-5-

"19" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph

"l9" of the

Complaint completely and accurately describe the purpose of the Clean Indoor Air Act
referred to therein, and respectfully refer the Court to the Clean Indoor Air Act and its

legislative history for the

full texts and true meanings thereof; and further deny the

allegations set forth in paragraph "19" of the Complaint to the extent that they allege or

purport

to

allege that the Legislative Findings referred to therein are part

of

the

Administrative Code, and respectfully refer the Court to the Administrative Code for the

full text and true meaning thereof.

20.

The allegations set forth

in paragraph "20" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"20" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "20" of the

Complaint completely and accurately describe the Clean Indoor

Air Act and

Administrative Code $17-503 referred to therein, and respectfully refer the Court to the
Clean Indoor

Air Act

and Administrative Code $17-503 for the

full texts and true

meanings thereof,

21,

Deny that the allegations set forth

in paragraph "21" of

Complaint completely and accurately describe the Clean Indoor

6-

the

Air Act referred

to

therein, and respectfully refer the Court to the Clean Indoor Air Act for the full text and
true meaning thereof,

22.
consist solely

The allegations set forth

in paragraph "22" of the Complaint

of legal argument for which no response is warranted,

however to the

extent that a response is required Defendants deny the allegations contained in paragraph

"22" of the Complaint insofar as they allege or purport to allege that Plaintiffs have
valid claim or claims against Defendants, and insofar

as

they allege any wrongdoing on

the part of Defendants; and deny that the allegations set forth in paragraph "22" of the

Complaint completely and accurately describe the Clean Indoor Air Act, its legislative
history and Administrative Code $17-503 referred to therein, and respectfully refer the
Court to the Clean Indoor Air Act, its legislative history and Administrative Code $17503 for the full texts and true meanings thereof.

23.
consist solely

The allegations set forth

of legal argument for which no

in paragraph "23" of the Complaint

response is warranted, however to the

extent that a response is required Defendants deny the allegations contained in paragraph

"23" of the Complaint insofar as they allege or purport to allege that Plaintiffs have a
valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "23" of the

Complaint completely and accurately describe the Smoke Free

Air Act referred to

therein, and respectfully refer the Court to the Smoke Free Air Act for the full text and
true meaning thereof.

24.
consist solely

The allegations set forth

of legal argument for which no

-7

in paragraph "24" of the Complaint

response is warranted, however to the

extent that a response is required Defendants deny the allegations contained in paragraph

"24" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "24" of the
Complaint completely and accurately describe the Clean Indoor Air Act and the Smoke
Free

Air Act referred to therein, and respectfully refer the Court to the Clean Indoor Air

Act and the Smoke Free Air Act for the full texts and true meanings thereof.

25.

Deny that the allegations set forth

in

paragraph

Complaint completely and accurately describe the Smoke Free

"25" of

the

Air Act referred to

therein, and respectfully refer the Court to the Smoke Free Air Act for the full text and
true meaning thereof.

26.

Deny the allegations set forth in paragraph "26" o1he Complaint.

27.

Deny that the allegations set forth

in paragraph "27" of

the

Complaint completely and accurately describe the purpose of the Smoke Free Air Act
referred to therein, and respectfully refer the Court to the legislative history of the Smoke
Free

Air Act for the full text

28.
consist solely

and true meaning thereof.

The allegations set forth in paragraph "28" of the Complaint

of legal argument for which no

response

is warranted, however to

the

extent that a response is required Defendants deny the allegations contained in paragraph

"28" of the Complaint insofar as they allege or purport to allege that Plaintiffs have a
valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "28" of the

Complaint completely and accurately describe the Smoke Free

-8

Air Act

referred to

therein, and respectfully refer the Court to the Smoke Free Air Act for the full text and
true meaning thereof.

29.

Deny that the allegations set forth

in

paragraph

"29" of

the

Complaint completely and accurately describe the DOHMH Bulletin referred to therein,

and respectfully refer the Court to the DOHMH Bulletin for the

full text and true

meaning thereof.

30.

Deny that the allegations set forth

in

paragraph

"30" of

the

Complaint completely and accurately describe the testimony referred to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof.

31.

Deny that the allegations set forth

in

paragraph

"3l" of the

Complaint completely and accurately describe the testimony refened to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof.

32.

Deny that the allegations set forth

in

paragraph

"32" of

the

Complaint completely and accurately describe the testimony referred to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof.

33.

Deny that the allegations set forth

in

paragraph

"33" of

the

Complaint completely and accurately describe the testimony referred to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof.

34.

Deny that the allegations set forth

in

paragraph

"34" of

the

Complaint completely and accurately describe the testimony referred to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof,

-9

35,

Deny that the allegations set forth

in

paragraph

"35" of

the

Complaint completely and accurately describe the testimony referred to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof,

36.

Deny that the allegations set forth

in

paragraph

"36" of

the

Complaint completely and accurately describe the testimony refened to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof,
37

Deny the allegations contained in paragraph "37" of the Complaint

insofar as they allege that Intro 256, or Local Law 47 of 2002, was enacted on December

18,2002,

38.

Deny that the allegations set forth

in

paragraph

Complaint completely and accurately describe the Smoke Free

"38" of

the

Air Act, or the

amendments thereto, and respectfully refer the Court to the Local Law 47 of 2002 for the

full text and true meaning thereof.

39.

Deny the allegations set forth in paragraph "39" of the Complaint.

40.

The allegations set forth in paragraph "40" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"40" of the Complaint insofar

as they allege

or purport to allege that Plaintiffs have a

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "40" of the

Complaint completely and accurately describe the local law and administrative code
provisions referred to therein, and respectfully refer the Court to the local law and
administrative code provisions referred to therein for the

-10-

full texts and true

meanings

thereof; and deny the allegations set forth in paragraph "40" of the Complaint to the
extent that they allege that Chapter 5 fof Title 17] is a local law.

41,

The allegations set forth

in paragraph "41" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"47" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants.

42.

The allegations set forth

in paragraph "42" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"42" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "42" of the
Complaint completely and accurately describe the Decision and Order of the Court dated

April 7, 2004 in CLASH v. City of New York referred to therein, and respectfully refer
the Court to the Decision and Order for the full text and true meaning thereof.

43.

Deny that the allegations set forth

in

paragraph

"43" of

the

Complaint completely and accurately describe the committee hearing and the Local Law
referred to therein, and respectfully refer the Court to the hearing transcript and to the
Local Law for the full texts and true meanings thereof.

44.

Deny knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in paragraph"44" of the Complaint as to the relationship

- 11-

of Audrey Silk to NYC C,L.A.S.H,, except admit that an individual identified as Audrey
Silk provided testimony about the then-proposed Local Law 152 of 2013.

45.
consist solely

The allegations set forth in paragraph "45" of the Complaint

of legal argument for which no response is warranted,

however to the

extent that a response is required Defendants deny the allegations contained in paragraph

"45" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any \ilrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "45" of the

Complaint completely and accurately describe the testimony referred to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof.

46.
consist solely

The allegations set forth

in paragraph "46" of the Complaint

of legal argument for which no response is warranted, however to

the

extent that a response is required Defendants deny the allegations contained in paragraph

"46" of the Complaint insofar as they allege or purport to allege that Plaintiffs have
valid claim or claims against Defendants, and insofar

as

they allege any wrongdoing on

the part of Defendants; and deny that the allegations set forth in paragraph "46" of the

Complaint; and deny that the allegations set forth in paragraph "46" of the Complaint
completely and accurately describe the testimony referred to therein, and respectfully
refer the Court to the testimony for the full text and true meaning thereof.

47.
consist solely

The allegations set forth

in

paragraph

"47" of the

of legal argument for which no response is warranted,

Complaint

however to the

extent that a response is required Defendants deny the allegations contained in paragraph

"47" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

-12-

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "47" of the

Complaint; and deny that the allegations set forth in paragraph "47" of the Complaint
completely and accurately describe the testimony referred to therein, and respectfully
refer the Court to the testimony for the full text and true meaning thereof.

48.

Deny that the allegations set forth

in

paragraph

"48" of

the

Complaint completely and accurately deScribe the testimony referred to therein, and
respectfully refer the Court to the testimony for the full text and true meaning thereof.

49.

Deny that the allegations set forth

in

paragraph u49"

of

the

Complaint completely and accurately describe the Committee Reports refened to therein,
and respectfully refer the Court to the Committee Reports for the

full texts and

true

"50" of

the

meanings thereof.

50.

Deny that the allegations set forth

in

paragraph

Complaint completely and accurately describe the Health Committee amendments to the
proposed Local Law 152 of 2073 refened to therein, and respectfully refer the Court to
the Health Committee amendments for the full texts and true meanings thereof.

51.

Deny that the allegations set forth

in

paragraph

Complaint completely and accurately describe the Local Law 152

"5l" of the

of

2013, and

respectfully refer the Court to Local Law 152 of 2013 for the full text and true meaning
thereof.

52.

Deny that the allegations set forth

in

paragraph

Complaint completely and accurately describe the Local Law 152

13 -

"52" of

of

the

2073, and

respectfully refer the Court to Local Law 152 of 2013 for the full text and true meaning
thereof,

53,

The allegations set forth

in

paragraph

"53" of the

Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"53" of the Complaint insofar as they allege or purport to allege that Plaintif have

valid claim or claims against Defendants, and insofar as they allege any \Nrongdoing on
the part of Defendants,

54.

Deny the allegations set forth in paragraph "54" of the Complaint.

55.

Deny that the allegations set forth

in

paragraph

"55" of

the

Complaint completely and accurately describe Administrative Code $17-503, and

respectfully refer the Court to Administrative Code $17-503 for the full text and true
meaning thereof.

56.

Deny the allegations set forth in paragraph "56" of the Complaint.

57.

Deny the allegations set forth in paragraph "57" of the Complaint.

58.

The allegations set forth in paragraph "58" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"58" of the Complaint insofar as they allege or purport to allege that Plaintiffs have a
valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "58" of the
Complaint completely and accurately describe the Legislative findings for Local Law 152

-t4-

of 2013 referred to therein, and respectfully refer the Court to the Legislative findings for
the Local Law for the full text and true meaning thereof.

consist solely

59.

Deny the allegations set forth in paragraph "59" of the Complaint.

60.

The allegations set forth

in

paragraph

"60" of the Complaint

of legal argument for which no response is warranted,

however to the

extent that a response is required Defendants deny the allegations contained in paragraph

"60" of the Complaint insofar as they allege or purport to allege that Plaintiffs have
valid claim or claims against Defendants, and insofar

as

they allege ariy wrongdoing on

the part of Defendants; and deny that the allegations set forth in paragraph "60" of the
Complaint completely and accurately describe Local Law I 52 of 2013 and Chapter 5 of

Title 17 of the Administrative Code referred to therein, and respectfully refer the Court to
Local Law I 52 o12013 and Chapter 5 of Title 17 of the Administrative Code for the full
texts and true meanings thereof.

61.

The allegations set forth

in

paragraph

"6l" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"61" of the Complaint insofar

as they allege

or purport to allege that Plaintiffs have a

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph

"6l" of the

Complaint completely and accurately describe Local Law I 52 of 2013 and Chapter 5 of

Title l7 of the Administrative

Code referred to therein, and respectfully refer the Court to

Local Law I 52 of 2013 and Chapter 5 of Title 17 of the Administrative Code for the full
texts and true meanings thereof.

15 -

62.

The allegations set forth in paragraph "62" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"62" of the Complaint insofar as they allege or purport to allege that Plaintiffs have a
valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "62" of the

Complaint completely and accurately describe the Reports

of the Health

Committee

referred to therein, and respectfully refer the Court to Local Law 1 52 of 2013 and Reports

of the Health Committee for the full text and true meaning thereof.

63,

The allegations set forth in paragraph "63" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

"63" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; and deny that the allegations set forth in paragraph "63" of the

Complaint completely and accurately describe the Reports

of the Health

Committee

referred to therein, and respectfully refer the Court to Local Law 1 52 of 2013 and Reports

of the Health Committee for the full text and true meaning thereof.

64,

Deny the allegations set forth in paragraph "64" of the Complaint.

65.

Deny the allegations set forth in paragraph "65" of the Complaint,

66.

The allegations set forth

in paragraph "66" of the Complaint

consist solely of legal argument for which no response is warranted, however to the
extent that a response is required Defendants deny the allegations contained in paragraph

-16-

"66" of the Complaint insofar as they allege or purport to allege that Plaintiffs have

valid claim or claims against Defendants, and insofar as they allege any wrongdoing on
the part of Defendants; except deny the allegations set forth in the last sentence of
paragraph "66" of the Complaint,

67,

Deny the allegations set forth in paragraph "67" of the Complaint.

68.

Deny the allegations set forth in paragraph "68" of the Complaint.

69.

In response to the allegations set forth in paragraph "69" of

the

Complaint, Defendants repeat and reallege the responses set forth in each and every
paragraph of the Answer, as if fully set forth herein.

70.

Deny the allegations set forth in paragraph "T0" of the Complaint,

Deny the allegations set forth in paragraph "71" of the Complaint.

7|

72.

Deny the allegations set forth in paragraph "'72" of the Complaint;

except deny knowledge or information sufficient to form a belief as to the truth of the
allegations set forth in paragraph "72" of the Complaint as to Plaintiffs' states of mind
and intent in commencing this proceeding, and as to the relief sought by Plaintif.

73.

In response to the allegations set forth in paragraph "73" of the

Complaint, Defendants repeat and reallege the responses set forth in each and every
paragraph of the Answer, as

if fully

set forth herein,

74.

Deny the allegations set forth in paragraph "74" of the Complaint,

75.

Deny the allegations set forth in paragraph "75" of the Complaint.

76.

Deny the allegations set forth in paragraph "76" of the Complaint;

except deny knowledge or information sufficient to form a belief as to the truth of the

-17-

allegations set forth in paragraph "76" of the Complaint as to Plaintiffs' states of mind
and intent in commencing this proceeding, and as to the relief sought by Plaintiffs.

77,

In response to the allegations set forth in paragraph "77" of the

Complaint, Defendants repeat and reallege the responses set forth in each and every
paragraph of the Answer, as

if fully

set forth herein.

78.

Deny the allegations set forth in paragraph "TS" of the Complaint.

79.

Deny the allegations set forth in paragraph "79" of the Complaint,

80.

Deny the allegations contained in paragraph "80" of the Complaint

insofar as they allege or purport to allege that Plaintiffs have a valid claim or claims
against Defendants, insofar as Plaintif allege that they are entitled to the relief sought

herein, and insofar as they allege any wrongdoing on the part of Defendants; except deny
knowledge or information sufficient to form a belief as to the truth of the allegations set

forth in paragraph "80" of the Complaint as to Plaintiffs' states of mind and intent in
commencing this action, and as to the relief sought by Plaintiffs.

AS AND F'OR A FIRST DEFENSE

8l

The Complaint fails to state a cause of action against Defendants,

and therefore must be dismissed.

AS AND FOR A SECOND DEFENSE

82.

Local Law I 52 of 2013 is valid and enforceable, and does not

violate the New York State Constitution.

- l8

WHEREFORE, Defendants demand judgment dismissing the Complaint

in its entirety, and awarding the costs of this action, together with such other and further
relief as to the court may seem just.

Dated:

New York, New York

I|u4.ay 30,2014

ZACHARY \il. CARTER

Corporation Counsel of the
City of New York
Attorney for Defendants
100 Church Street, Room 5-167
New York, New York 10007
Phone: (212) 356-2605
Fax: (212) 356-2019
E-Mail: sherkurland@law.nyc. gov

By:

SHERRILL KURLAND
Senior Counsel

TO:
ED\ryARD A. P
ESQ.
^LTZIK,
JOSHPE LAV/ GROUP
LLP
Attorneys for Plaintiffs
1040 Avenue of the Americas, Suite
New York, New York 10018
Phone: (646)820-6701
Fax: (212) 313-9478
E-Mail : epaltzik@j oshpelaw.com

l10l

-19-

VERIFICATION

SHERYL NEUFELD, an attorney admitted to practice before the Courts of the

State of New York, hereby affirms the following to be true, under the penalties of perjury,
pursuant to CPLR 2106:

have been duly designated as Acting Corporation Counsel of the City of New

York and, as such, I am an officer of the City of New York, a Defendant in the within action. I
have read the foregoing Answer to Defendants' Complaint in NYC C.L.A,S.H.. et al. v, City

of

New York. et. al,, New York County Index Number 15272312014 and know the contents thereof;
the same are true to my knowledge except as to those matters therein alleged upon information
and belief, and as to those matters I believe them to be true.

The reason why this verif,rcation is not made by the City of New York is that it is

a corporation. My belief as to all matters not stated upon my knowledge is based upon
information obtained from various deparlments of the city government, from statements made to
me by certain off,rces or agents of the City of New York, and from statements, aff,rdavits, or
affirmations of other persons.

DATED:

New York, New York

May 30,2014

'

ESQ.

Index No, 15272312014

SUPREME COURT FOR THE STATE OF NEW YORK

COUNTY OF NEW YORK

NYC C.L.A.S,H., INC. and RUSSELL WISHTART,

Individually,
Plaintiffs,
-against-

CITY OF NEW YORK, THE NEW YORK CITY

COUNCIL and MELISSA MARK-VIVERITO, in her

official capacity as Speaker of THE NEW YORK CITY
COUNCIL,
Defendants.

ANSWER AND VERIFICATION

ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Defendants
100 Church St., Room 5-167
New York, N,Y, 10007
Of Counsel: SHERRILL KURLAND
Tel: (212) 356-2605
LM No.2014-010967
Due and timely service is hereby admitted,

New York, N.Y. ..........

200
Esq

Attorney

for