INDEX NO.

152723/2014

FILED: NEW YORK COUNTY CLERK 01/16/2015 05:37 PM

NYSCEF DOC. NO. 57

RECEIVED NYSCEF: 01/16/2015

SUPREME COURT OF THE STATE OF NEV/ YORK

::i:l::):Y.:.Y

..........x

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

Individually,

AFFIRMATION IN
Plaintiffs,
against-

SUPPORT OF
DEFENDANTS' MOTION
FOR SUMMARY
JUDGMENT
Index No. 15272312014

CITY OF NEW YORK, THE NEW YORK CITY

COLINCIL and MELISSA MARK-VIVERITO, in her
official capacity as Speaker of THE NEV/ YORK CITY
COTINCIL,

Defendants

SHERRILL KURLAND, an attorney admitted to practice before the courts of

the State of New York, affirms upon information and belief and under penalty of perjury
pursuant to Rule 2106 of the Civil Practice Law and Rules as follows:

l.

am an Assistant Corporation Counsel in the Offrce of ZACHARY \ry.

CARTER, Corporation Counsel of the City of New York, attorney for Defendants, the City of
New York, the New York City Council ("City Council"), and Melissa Mark-Viverito, in her
official capacity as Speaker of the New York City Council, I am familiar with the facts set forth
herein based upon my review of the relevant records of this office, as well as the relevant records

of City Council, and conversations with employees of the City of New York,

2.

I submit

this declaration in support of Defendant's Motion for Summary

Judgment, and to place certain public documents in the record.

3.

In December, 2013, Local Law 152 of 2013 (Int. 1210A-2013) ("Local

Law 152")l was introduced in the City Council. Local Law 152 was titled "A Local Law to
amend the administrative code of the city of New York, in relation to the regulation of electronic

cigarettes." At a committee meeting held on December 18, 2013, following a hearing that had
been held on December 4,2013, Local Law 152 was passed by the Health Committee of the City

Council. On December 19, 2013, Local Law 152 was passed by the City Council. On December
30,2013 the Mayor signed Local Law 152intolaw.2 (A copy of Local Law 152 is at Exhibit
rrcr',)3

4.

Local Law 152 enacted amendments to the New York City Administrative

Code ("Admin. Code") at Title 17, Chapter 5, which regulate electronic cigarettes in the City of

New York, In summary, Local Law 152 prohibits the use of electronic cigarettes in all areas in

New York City where smoking is prohibited, including public places such as restaurants and

I Int. 1210-A-2013 is the amended version of the legislation

and is the version that was

ultimately enacted into law.

'The legislation took effect 120 days after its enactment, with signage requirements taking effect
180 days after its enactment.

' Thir is a public document

available at the City Council website by accessing the following web

address:

http://leeistar,council,nyc.gov/LesislationDetail.aspx?ID:l526765&GUID:l5D04C6D -C76040EA- 8 8A 4-2840C0374E43 &Options:&S earch:

bars; libraries and museums; parks and beaches; and places of employment,a (A copy of the
Local Law 152 "Legislation Details" is at Exhibit "D"),s

5,

On or about March 25,2014, Plaintiffs filed the instant action. (A copy

of

the Verified Complaint, without exhibits, is at Exhibit "A".)

6.

The Complaint alleges that Local Law 152 of 2013 is unconstitutional as it

violates the so-called "One Subject Rule"6 contained in the New York State Constitution, Article

III,

$15; the New York Municipal Home Rule Law ("MHRL"), Article 3, $20(3); and the New

York City Charter ("Charter"), Chapter 2 32. (Complaint, First Cause of Action, nn69-72.)
Plaintiffs seek declaratory relief, declaring that Local Law 152 is unconstitutional, and null and

void, (Complaint, Second Cause of Action, nn73-76), Plaintiffs also seek a

permanent

injunction, enjoining Defendants from implementing or enforcing Local Law 152 (Complaint,
Third Cause of Action,llITT-80).
a

The use of electronic cigarettes continues to be permitted in all areas where smoking is not
regulated, including private residences, hotel and motel rooms, private automobiles, City streets
and sidewalks, and in retail electronic cigarette stores. The law provides an exception for retail
electronic cigarette stores that mirrors an exception for retail tobacco stores, which allows
smoking in stores where sales of tobacco constitute at least 50Yo of annual gross sales, Both
retail electronic cigarette and retail tobacco stores have to register with the New York City
Department of Health and Mental Hygiene ("DOHMH") in order to verify that they fit into
smoking and electronic cigarette use exceptions for generating sales mostly from electronic
cigarettes or tobacco products, respectively. The enforcement and penalties provisions related to
the use of electronic cigarettes are identical to those related to smoking.
5

Thir is a public document available at the City Council website at the following web address:
http://leeistar,council.nyc.sov/LegislationDetail,aspx?ID:1526765&.GUID:1
5D04C6D-C76040EA- 8 8A 4-2F40C037 4E43 &.Options:&Search:
u

Th" "One Subject Rule" is also called the "single Subject Rule." It will be referred to as the
Single Subject Rule" in Defendants' motion papers regardless of which legislative provision or

provisions are being referenced.

7.

Issue was joined on May 30, 2014, when Defendants (electronically)

served and filed their Answer to the Complaint (A copy of Defendants' Answer is at Exhibit

,,8").

8.

Summary Judgment should be granted dismissing the Complaint pursuant

to CPLR 3212, as the Complaint fails to state any cognizable cause of action.

WHEREFORE, Defendants respectfully requests that this Court grant judgment

in favor of the Defendants dismissing the Complaint with prejudice; and for such other and
further relief as this court deems just and proper.

Dated:

New York, New York

January 16,2015

S't-*-t't

SHERRILL KURLAND
Assistant Corporation Counsel