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B E F O R E: HONORABLE RICHARD BRAUN, J.S.C.

A P P E A R A N C E S :

IRVING HEISLER ESQ.
Attorney for Plaintiffs
545 Madison Avenue
New York, New York 10022

NEW YORK CITY LAW DEPARTMENT
Office of the Corporation Counsel
Attorneys for Defendants
100 Church Street
New York New York 10007
BY: LOUISE A. MOED, ESQ.

MICHAEL MANISTER
OFFICIAL COURT REPORTER

- Proceedings -

THE COURT: Counsel, I called you back in because I noticed when going over the papers this past Sunday to render my decision that the defendants' counsel had submitted a letter dated January 21, 2000, in which she said she hereby amends Paragraph 15 of her affirmation in support of defendants' cross-motion as follows, and then makes a statement adding language. But you can't amend an affirmation by a letter. An affirmation is affirmed, a letter is not.

MS. MOED: The letter is signed by me as attorney for the City. It is merely adding a document which your Honor deemed necessary to the decision on this motion.

THE COURT: I didn't deem anything necessary; the law deems it necessary. CPLR 3212(a) says when you make a motion for summary judgment, you have to have all pleadings attached. You didn't make a motion for summary judgment. You improperly moved under CPLR 3211(a)(7) to dismiss after you already answered. I found out that your answer contains the same defenses which you are relying upon in your motion to dismiss.

You also improperly included a ground in your papers in support of the motion which you don't raise in the notice of motion in violation of CPLR 2214.

MS. MOED: I don't understand the last thing you said. Please repeat.

THE COURT: CPLR 2214 requires you to put certain things in a notice of motion to give due process and statutory notice to the other side. You did not do that. You said in your motion -- in your notice of motion you were moving to dismiss under CPLR 3211(a)(7). In your supporting papers you also were moving to dismiss in part as to the Plaintiff The Humane Society on the ground of standing. That should have been in your notice of motion in addition.

However, I did grant you leave to have the motion converted to a motion for summary judgment. And then in going over the papers, as I said, this past Sunday to decide the Motions, I realized that you gave me an unsworn letter to add allegations to an affirmed affirmation and to attach an exhibit. So I asked Mr. Heisler off the record if he would consent to what you asked for off the record which was leave to put in a supplemental affirmation, and he said he wouldn't oppose it or oppose an application by you.

Is there anything you want to say?

MS. MOED: I ask for this Court's permission to submit the answer by way of supplemental affirmation.

THE COURT: Mr. Heisler, on the record, your position on that?

MR. HEISLER: I don't understand it. She is going to submit another supplemental affidavit of what she submitted in court?

THE COURT: She can do it right here now in court.

MR. HEISLER: I have no objection, your Honor.

THE COURT: Why don't you take a stipulation or order form over there and turn it into an affirmation and serve a copy on Mr. Heisler and I'll hear you again at that point when you are done.

(Whereupon, a short recess was taken.)

THE COURT: I granted leave for defendants' counsel, without opposition from plaintiffs' counsel, to serve and submit a supplemental affirmation. That's been done.

Now, originally the plaintiff had moved for a preliminary injunction and defendant cross-moved to dismiss. Upon request of defendants' counsel and without opposition stated by plaintiffs' counsel, I converted the motion to dismiss to a motion for summary judgment.

The Motion, as I said earlier, was based on two grounds: One, in the affirmation and in the notice of motion, that being pursuant to CPLR 3211(a)(7), and the other only in the affirmation, but plaintiff obviously had notice of that ground, that being standing.

MS. MOED: May I ask a question?

Is not standing the same ground which is failure to State a claim?

THE COURT: No. But in any event, I did convert It. The Court of Appeals said in Rich versus Lefkovitz that if the ground for dismissal has been raised in the answer, it is not proper to make a CPLR 3211 motion, but the proper motion is under CPLR 3212. The Court of Appeals, 0f course, recognized that the trial court has the power under CPLR 3211(c) to convert such an improperly made motion to a motion for summary judgment which I did.

The only two grounds raised by the defendant were failure to State a cause of action and standing, and, therefore, the summary judgment motion. I believe in the eyes of counsel per your arguments was limited to those two grounds, correct, counsel?

MS. MOED: Yes.

THE COURT: Mr. Heisler?

MR. HEISLER: Yes.

THE COURT: So, therefore, the Court will limit its decision to those two grounds and for another reason, which I will State in a moment.

The Court is very limited in its review undertaken on such a motion as is the one that's now before it, or rather a motion, I should say action in which the motions have been made. The Court's hands are fairly well tied to that limited review.

This is a situation which has been addressed by way of the defendants having passed a rule interpreting a regulation and therefore defining by way of that rule what the City of New York, defendant City of New York considers are wild animals, and included therein, ferrets.

The Executive Branch of the City of New York has addressed this by way of that rulemaking power. It's really for the Executive Branch or the legislature, that being the City Council, to reach a determination here.

The Court Of Appeals said in Matter of Consolation Nursing Home, Inc., versus Commissioner of New York State Department of Health, 85 NY2d 326, at 331-332, 1995, "the standard", and I'm quoting now, "standard for judicial review of an administrative regulation is whether the regulation has a rational basis and is not unreasonable, arbitrary or capricious. An administrative agency's exercise of its rulemaking powers is accorded a high degree of judicial deference, especially when the agency acts in the area of its particular expertise. Accordingly, the party seeking to nullify such a regulation has the heavy burden of showing that the regulation is unreasonable and unsupported by any evidence."

The Court of Appeals affirmed that standard in Matter of Big Apple Food Vendors Association versus Street Vendor Review Panel, 90 NY2d 402, at 408, in 1997. The Court of Appeals said, "We have said that with respect to the exercise and administrative agency's legislative rule power, the party seeking to nullify such regulation has the heavy burden of showing that the regulation is unreasonable and unsupported by any evidence."

For the plaintiff to succeed on -- plaintiffs, I should say, on their motion for preliminary injunction, they have to show that there's a likelihood of their succeeding on the merits in this action as well as irreparable injury and a balancing of the equities in their favor.

The plaintiffs have not shown that they have a likelihood of succeeding on the merits, in part in light of the Court of Appeals holding which I just referred to.

This Court is constrained by its limited judicial review power to only reviewing the actions of the defendants in passing the regulations to determine whether or not the regulations were both unreasonable or unsupported by any evidence. And I do emphasize that the Court of Appeals has instructed that the standard is unsupported by any evidence, not some evidence or insufficient evidence.

The argument by the plaintiffs that the State has repealed the former Environmental Conservation Law Provision Section 11-0511(2) which related to barring the possession, sale or breeding of ferrets, except where a license was purchased from the Department of Environmental Conservation of the State and irrevocable at the pleasure of that agency. That repeal has led to the State acting in the manner that the City is barring from acting is not a meritorious argument.

It is true that where the State preempts either explicitly or implicitly by way of passing enactments in the field to such a great extent that the State's scheme indicates that the State intends to preempt the field would in fact bar the City from entering the field by way of its regulatory power if in fact that had occurred here.

However, that is not the case. The fact that the state had a law which it then repealed in no way shows any preemption. And furthermore, there is no inconsistency on the part of the City in enacting its rule. The State has merely repealed the regulation, rather a law, which it once had in effect. The field is open for the City to regulate as it did by way of this defining regulation or rule.

It is correct that the New York City Charter has vested in the Department of Health and Board of Health the power to act to protect the public health within the field of the jurisdiction of that agency. And the City has done so here.

The constitutional claims are without merit. There has not been showing that the City has acted unconstitutionally in violation of any rights of due process or equal protection of the plaintiff class.

I want to add at this point a cite for the preemption ruling, part of my holding, I should say, Vatore versus Commissioner of Consumer Affairs of the City of New York, 83 NY2d 645, at 651, 1994.

Therefore, the motion for preliminary injunction must be denied. The temporary restraining order falls with that ruling.

As to the cross-motion which is converted to a motion for summary judgment, the motion is granted to the extent of awarding the defendant summary judgment dismissing as plaintiff The Humane Society of New York. That party has no standing to be a plaintiff in this action. The plaintiffs did not affirmatively oppose that request for relief.

Furthermore, I cite to the Society of the Plastics Industry, Inc., versus County of Suffolk, 77 NY2d 761 at 772-774, 1991; and Matter of New York city Coalition for the Preservation of Gardens versus Giuliani, 246 AD2d 399-400, First Department, 1998.

The defendants have not submitted sufficient evidence for this Court to search the record and award summary judgment to the defendants.

Furthermore, as acknowledged by the parties, the conversion of the motion to dismiss to a motion for summary judgment is not made on the merits but only limited to the failure to state a cause of action and standing grounds.

Although the defendants do submit affidavits including an affidavit from Martin Kurtz from the case New York City Friends of Ferrets versus City of New York, United States District Court, from the Southern District of New York, 93 Civ 64-66, they do not attach exhibits thereto.

The exhibits, according to what's said in that affidavit, would seem to show that the defendants had evidence in support of their regulations, and, therefore, under the Food Vendors case and the Consolation Home case, that there was some evidence in support of the exercise of regulatory power by the defendants. And therefore, the plaintiffs remaining cannot sustain their claim, their heavy burden of showing the regulation was unsupported by any evidence, but both because the parties concede that the motion was not converted to a complete motion for summary judgment and because those exhibits have not been submitted, the summary judgment award will be limited to the standing issue as raised by the defendants regarding the plaintiff Humane Society of New York.

As to the failure to state a cause of action ground, the Court on such a motion must accept as true these facts stated in the complaint and must give the plaintiffs remaining the benefit or all inferences that flow from the allegations in the complaint. The complaint certainly does state a cause of action. Therefore, it cannot be dismissed on that basis. A well settled principle of law, for the record I cite Foley versus D'Agostino, 21 AD2d 60, and it is Appellate Division, First Department, 1964.

I just want to finish by saying that this Court, of course, is bound by the precedential rulings in the Court of Appeals and Appellate Division, First Department, which I have referred to. And as one branch of the government, this Court in this type of lawsuit has very limited power as stated by the Court of Appeals.

The Court does find it distressing that there appears to be evidence on the plaintiffs' behalf that the plaintiffs, as pet owners, in this case a particular type of pet which has been domesticated, I believe the plaintiffs have shown for centuries, if not millennia, are being treated differently from other owners of domesticated pets such as dogs and cats and are potentially being barred by the defendants from continuing to own those pets. And anyone who has been a pet owner, and this Court has been, although not of a ferret, pets are members of the human owners' families.

It is distressing that therefore the City is attempting to enforce by way of this regulation their power to regulate this pet ownership as a matter of public health and take away these pets. On the other hand, the City has regulatory power to regulate the public health and in fact is, as defendants have stated, acting in a manner to prevent injuries, particularly to small children, and that is a power that the defendants do have.

This Court does not have the power to intercede in the area if the defendants are acting within the area of their expertise, which clearly they are, and as long as the regulations are not unreasonable and are supported by some evidence.

Therefore, as I said earlier, due to the restrictions upon this Court's power , any claims that the plaintiffs have for a remedy in this circumstance really have to be addressed at the executive branch, which I know they have done already, and/or to the legislative branch which I understand, I believe, they have done also, but that's where they have to find their remedy.

So that concludes this Court's opinion.

Again, the motion for summary judgment is granted to the extent of dismissing the complaint of The Humane Society of New York, and the motion for a preliminary injunction is denied.

This Court, when the court system, IAS system was restructured, effective January 31, 2000, was changed from being a City Part to a pure general IAS part. When that happened, this Court kept the motions because the motions had been made before the January 31, 2000 date. The directive from the administrative judge of this court was that judges who had motions submitted before that date had to keep the motions. This Court was also given the discretion to keep a small number of cases from its prior part, so this Court kept these motions as all of us judges were directed to keep this type of motion or motions by way of directive of Judge Crane.

At this point though, since this Court is no longer a City Part, this Court will be having this case transferred to an appropriate judge. That will be up to the trial support office. That may be a judge in the administrative law part, which I understand is supposed to be dissolved because of its pilot program, or at least studied as to whether it will be discontinued in the very near future, or alternatively, it will be assigned to a City Part judge.

As interesting as I find this case, and as much as I would like to keep it, I do have -- I haven't gotten my inventory for this month, but last I looked I had about 55O cases and my responsibility is to address those cases primarily and, therefore, this case should be transferred to an administrative law part or a City Part, whichever is appropriate.

I wish both sides the best of luck. That concludes this matter.

(Whereupon, the proceedings were concluded.)