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INDEX NO.

152723/2014

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


NYSCEF DOC. NO. 33

RECEIVED NYSCEF: 01/15/2015

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
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NYC C.L.A.S.H., INC. and RUSSELL WISHTART,
Individually,
Hon. Frank P. Nervo
Plaintiffs,

Motion Sequence: 001

-againstCITY OF NEW YORK, THE NEW YORK CITY


COUNCIL and MELISSA MARK-VIVERITO,
in her official capacity as Speaker of THE NEW YORK
CITY COUNCIL,

ATTORNEY AFFIRMATION
IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
PURSUANT TO CPLR 3212

Defendants.
---------------------------------------------------------------------X
EDWARD A. PALTZIK, an attorney admitted to practice in New York State, deposes
and says under penalty of perjury:
1.

I am a Partner in Joshpe Law Group LLP, attorneys for Plaintiffs NYC

C.L.A.S.H., INC. (CLASH) and RUSSELL WISHTART (Wishtart). As such, I am fully


familiar with the facts and circumstances of this case.
2.

I submit this Affirmation in support of Plaintiffs Motion for an Order pursuant to

CPLR 3212, granting summary judgment in favor of the Plaintiffs as to all of the relief
requested in this declaratory judgment action, to wit:
(a) A declaratory judgment 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 (N.Y.C.
Admin. Code) Title 17, Chapter 5 17-501 to 17-514 (Title 17 Chapter 5), is
unconstitutional, ultra vires, and null and void, in that Local Law 152 adds a second subject
1

(electronic cigarettes) to Title 17 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; and
(b) A declaratory judgment 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; and
(c) A judgment permanently enjoining and restraining Defendants from implementing
and enforcing Local Law 152.
3.

As set forth more fully in Plaintiffs accompanying Memorandum of Law and the

exhibits attached to this Affirmation, Defendants exceeded their legislative powers by adding a
second subject, (electronic cigarettes) to Title 17 Chapter 5, in violation of the One Subject
Rule of 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.
4.

The exhibits attached hereto are as follows:

5.

Exhibit A Pleadings: Plaintiffs Summons and Complaint and Defendants

Answer.
6.

Exhibit B October 30, 2014 Stipulation.

7.

Exhibit C A copy of the original CIAA (Clean Indoor Air Act), effective

April 6, 1988 (New York City Administrative Code Title 17, Chapter 5 [ 17-501 to 17-514]).
8.

Exhibit D - A copy of Local Law 5, the SFAA (Smoke-Free Air Act of 1995,

effective April 10, 1995), amending Title 17, Chapter 5, obtained from web.archive.org.
9.

Exhibit E - A copy of the New York City Department of Health and Mental

Hygiene Bulletin entitled, Answers to Common Objections to Smoke-Free Workplace Laws.


2

10.

Exhibit F - A copy of quoted testimony excerpted from the New York City

Council Committee on Healths October 10, 2002 Hearing.


11.

Exhibit G A copy of quoted testimony from the New York City Council

Committee on Healths December 13, 2002 Hearing.


12.

Exhibit H A copy of the Local Law 47 Legislation Details obtained from the

New York City Councils website, amending Title 17, Chapter 5.


13.

Exhibit I A copy of Title 17, Chapter 5 as amended by Local Law 47.

13.

Exhibit J A copy of quoted excerpts from CLASH v. City of New York, et al.,

03 Civ. 5463, Decision & Order dated April 7, 2004.


14.

Exhibit K - A copy of the Local Law 11 Legislation Details obtained from the

New York City Councils website, amending Title 17, Chapter 5.


15.

Exhibit L A copy of Audrey Silks testimony at the New York City Council

Committee on Healths December 4, 2013 Hearing.


16.

Exhibit M - A copy of additional quoted testimony from the New York City

Council Committee on Healths December 4, 2013 Hearing.


17.

Exhibit N A copy of quoted testimony from the New York City Council

Committee on Healths May 2, 2013 Hearing.


18.
ranging

Exhibit O A copy of Queens Chronicle Article, City council levies widee-cigarette

ban,

Queens

Chronicle,

December

26,

2013,

available

http://www.qchron.com/editions/queenswide/city-council-levies-wide-ranging-e-cigaretteban/article_1f66c92f-778c-5923-81ea-906f24a9000f.html.

at:

19.

Exhibit P A copy of the Gothamist Article, E-Cigs Banned in NYC Public

Spaces, The Gothamist, December 19, 2013, available at: gothamist.com/2013/12/19/ecigs_likely_to_be_banned_in_publi.php).


20.

Exhibit Q - A copy of the New York City Council Committee on Healths

December 4, 2013 Report comprising of its analysis of the E-Cig Bill that became Local Law
152.
21.

Exhibit R - A copy of the New York City Council Committee on Healths

December 18, 2013 Report comprising of its analysis of the E-Cig Bill that became Local Law
152.
22.

Exhibit S - A copy of the Local Law 152 Legislation Details obtained from the

New York City Councils website, amending Title 17, Chapter 5.


WHEREFORE, Plaintiffs respectfully request that their motion for summary
judgment be granted in its entirety, and any similar motions by Defendants be denied in their
entirety.
Dated: New York, NY
January 13, 2015
__________________________________
EDWARD PALTZIK