COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY: CIVIL TERM: PART 23
HUMANE SOCIETY OF NEW YORK,
F. GLASS, LEWIS REECE BARATZ and
CITY OF NEW YORK, THE DEPARTMENT OF
OF THE CITY OF NEW YORK,
GIULIANI, and NEAL L. COHEN,
New York, New York 10007
June 1, 2000
B E F O R E: HONORABLE RICHARD
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.
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
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,
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
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,
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
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
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
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
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