|SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
|THE HUMANE SOCIETY OF NEW YORK,
|GUY F. GLASS, LEWIS REECE BARATZ and
|THE CITY OF NEW YORK, THE DEPARTMENT
|OF HEALTH OF THE CITY OF NEW YORK, RUDOLPH
|GIULIANI, and NEAL L. COHEN,
The Plaintiffs allege:
1. The plaintiff, THE HUMANE SOCIETY OF NEW YORK, is a domestic
not-for-profit corporation incorporated under the laws of the
State of New York
2. The plaintiffs GUY F. GLASS. LEWlS REECE BARATZ and GARY KASKEL
reside in the City of New York, own ferrets, and they and their
families wish to own and continue to own ferrets in the City of
3. The plaintiffs in the above entitled action sue both on their
own behalf and also on behalf of the thousands of persons in the
City of New York that own ferrets as household pets or may wish
to own ferrets.
4. Defendant RUDOLPH GIULIANI is the mayor of the City of New
5. Defendant CITY OF NEW YORK is a municipal corporation chartered
by the legislature of the State of New York, and the other named
defendants are officers or bodies of the City of New York authorized
to act as such pursuant to the New York City Charter.
6. Defendant THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK
is a mayoral executive agency created pursuant to Chapter 22 of
the City Charter with jurisdiction over matters affecting health
in the City of New York as per City Charter section 556.
7. Defendant NEAL L. COHEN is the Commissioner of the Department
of Health of the City of New York and the chairman of the Board
of Health of the City of New York, which promulgated the amendment
to the regulation.
8. Venue is proper in New York County pursuant to CPLR 504(3)
because the cause of action arose in New York County, where the
regulation was adopted and will be enforced.
9. On or about June 29, 1999, the Board of Health and the Department
of Health of the City of New York adopted and promulgated an amendment
to Section 161.01 of the Health Code of the City of New York.
Which, in part, made it illegal to sell or give to another person,
possess, harbor or keep certain listed animals, including ferrets.
10. Under the amendment to the Health Code, ferrets may be seized
by any employee of the City of New York and the Commissioner may
provide for its "disposition". As alleged below, such disposition
may require that the ferrets so seized be killed.
11. The amendment of Section 161.01 of the Health Code of the
City of New York violates both the equal property rights and due
process clauses of the New York Constitution.
12. The amendment of Section 161.01 of the Health Code of the
City of New York is unconstitutional and beyond the scope of authority
delegated to the Board of Health.
13. The amendment of the New York City Health Code is alleged
to have been promulgated pursuant to Section 558 of the New York
City Charter, which provides in subdivision (e) that any violation
of the health code shall be treated and punished as a misdemeanor.
It also provides that an administrative tribunal established by
the Board of Health shall have the power to enforce its final
decisions and orders and may impose pecuniary penalties as if
they were money judgments. Without court proceedings and to pursue
any other remedies in a civil action in any court in the City.
14. The legislature of the State of New York in 1997 amended
Section 11-0511 of the Environmental Conservation Law and deleted
therefrom subdivision 2, which had, previous to the amendment,
required persons owning a ferret in the State of New York to pay
for and obtain a license.
15. On and after April 1, 1997, it was lawful under the law of
the State of New York to possess a ferret without any permit or
permission from any government agency or officer.
16. Article IX of the New York State Constitution confers on
local governments the affirmative authority to enact local laws
that are not inconsistent with or in conflict with the laws of
the State of New York. The New York City Council did not enact
a local law prohibiting the possession of ferrets.
17. The prohibition promulgated by the Board of Health of the
City of New York making it illegal for a resident of the City
of New York to possess a ferret under the penalty of criminal
and civil penalties is an administrative regulation, and not a
law enacted by the local legislature of the City of New York in
compliance with its Charter.
18. Section 558 of the New York City Charter, in subdivision
(b), authorized the Board of Health to publish additional provisions
that "are not inconsistent with the constitution, laws of this
state or this charter". It does not delegate legislative powers
to the agency.
19. The amendment to New York City Health Code section 161.01
is illegal because it prohibits conduct expressly permitted by
state law and is inconsistent with the general laws enacted by
the New York State legislature.
20. The enforcement of Health Code section 161.01 could necessitate
the seizure of ferrets from any person that possesses a ferret
in the City of New York and their destruction as provided in that
Regulation. The destruction of friendly and lovable pets is against
public policy and would be an objectionable and distasteful burden
that should not be imposed upon the plaintiffs and other residents
and institutions in the City of New York.
2l. The enforcement of Health Code section 161.01 will subject
persons owning ferrets in the City of New York to criminal and
civil penalties causing many to either abandon them in the streets
and public parks of the City of New York or request their destruction
by animal welfare institutions or veterinarians.
22. The amendment to Health Code section 161.01, specifically
excludes in subparagraph (c)(1) domesticated dogs and in subparagraph
(c)(2) domesticated cats, but subparagraph (4) does not exclude
ferrets, animals that have been domesticated for more than two
thousand years worldwide.
NEED FOR DECLARATORY RELIEF,
23. By reason of Section 161.01 of the Health Code, the plaintiffs
and other residents of the City of New York owning ferrets live
in fear of severe criminal and civil penalties. They also fear
that their household pets may be confiscated and put to death
at the caprice of officials of the Department of Health.
24. The plaintiffs, their families and other persons owning ferrets
in the City of New York will suffer serious and irreparable injury
and damage, and will continue to do so in deprivation of their
state and federal constitutional rights to due process of law.
25. Immediate relief in the form of a Declaratory Judgment is
needed to prevent the imposition of criminal and civil penalties
upon owners of ferrets and the abandonment and destruction of
their household pets.
SECOND CAUSE OF ACTION
26. The plaintiffs repeat and reallege each of the allegations
in paragraphs 1 through 25 above, both inclusive as if fully set
27. The plaintiffs, by reason of the conduct of the defendants
as alleged herein above, have been deprived of due process required
under Article I, section 6 of the New York State Constitution.
28. Persons that acquired ferrets before the promulgation of
the regulation when it was lawful to possess a ferret have been
deprived of their property and legal rights without due process.
THIRD CAUSE OF ACTION
29. The plaintiffs repeat and reallege each of the allegations
in paragraphs 1 through 28 above, both inclusive as if fully set
30. Section 161.01 of the Health Code of the City of New York
is an unlawful and invalid usurpation by an executive mayoral
agency of legislative powers that are reserved to the New York
City Council pursuant to Chapter 2, section 21 of the New York
FOURTH CAUSE OF ACTION
31. The plaintiffs repeat and reallege each of the allegations
in paragraphs 1 through 29 above, both inclusive as if fully set
32. Section 161.01 of the Health Code is arbitrary and capricious
and is not rationally related to the accomplishment of a legitimate
municipal purpose or interest.
33. There is no reasonable purpose in prohibiting the possession
of domesticated ferrets. It was a legislative choice to exclude
domesticated dogs and cats that are known on numerous occasions
to bite animals, adults and children from the regulation and at
the same time to prohibit the possession of domesticated ferrets
that very seldom, if ever, bite any humans.
34. There is no rational basis for the Board of Health to treat
differently owners of domesticated ferrets and owners of domesticated
dogs and cats. The regulation as promulgated by administrative
fiat contains no explanation for the disparate treatment of owners
of domesticated animals.
35. By reason thereof, Section 161.01 of the Health Code is void
because it violates the equal protection requirements of Article
1, Section 1 and Section 6 of the New York State Constitution,
and is a usurpation of legislative functions by an administrative
36. No previous application has been made to any court or judge
for the relief requested herein.
WHEREFORE, the plaintiffs pray for a Judgment,
(i) declaring that the amendment of Section 161.01 of the New
York City Health Code was enacted by the Board of Health in violation
of the New York City Charter, is inconsistent with the New York
State Constitution, and is therefore null, void and without force
(ii) permanently restraining and enjoining each and every defendant,
and all agencies, officers and bodies of the City of New York,
its employees and agents, from exercising any of their respective
power rights or duties to enforce Section 161.01 of the Health
Code insofar as it applies to ferrets;
(iii) awarding the plaintiffs the costs and disbursements of
this action, including reasonable attorneys' fees, together with
such other and further relief as the Court deems just and proper.
(Iv) that a preliminary injunction be granted staying enforcement
of section 161.01 of the New York City Health Code the adjudication
of this action.
New York, New York.
Attorney for the plaintiffs