Past Legalization Efforts
Lawsuit against Mayor Giuliani and the Department of Health
Text from Judge Braun's Ruling (with our notes in blue)


What follows is the text from Judge Braun's ruling on June 1, 2000 with our notes added in blue. Please bear in mind that we are not lawyers and our comments are simply our understanding of the text that follows.

You may also

For anyone who isn't familiar with legal terms, "the Plaintiffs" in this case are our side (the Ferret Owners). "The Defendants" are Mayor Giuliani, the Department of Health and the Commissioner of Health.


In the first part the judge announces that the DOH lawyer tried to file an amendment to one of her documents by writing a letter and that a letter was not the appropriate way to file an amendment. He asked the plaintiffs' lawyer if he had any objection to her re-filing it the correct way right then and there, and the lawyer said he had no objection. Then they took a short break to allow her to do that.

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.

After the break, the judge confirmed for the record that the supplemental affirmation had now been filed. Then he continued...

The judge stated that the plaintiff had originally moved for a preliminary injunction (which would prevent the DOH from enforcing the ban pending the outcome of the lawsuit).

He also stated that the DOH had filed a cross-motion to dismiss the case but that because of the way it was filed, the motion to dismiss was not the appropriate motion. Based on the way it was presented, the appropriate motion should have been a motion for summary judgment. As the judge, he had the power to change the motion to the correct one and with no objections from the lawyers, he had done so. So the DOH's motion to dismiss was changed to the motion for summary judgment.

The judge confirmed that the DOH's motion to dismiss was originally based on only two grounds:

  1. failure to state a cause of action and
  2. standing

and stated that therefore the court would only base its summary judgment on those two grounds.

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?


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 judge stated that the Court is limited in what it can do regarding those two motions (the plaintiffs' motion for the preliminary injunction and the DOH's motion for summary judgment -which was previously the motion to dismiss).

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.

He defined that this was a case in which the DOH had passed a rule (the ban) interpreting a regulation and that the DOH had determined that insofar as NYC is concerned, ferrets were considered to be wild animals.

The judge stated that the DOH or the city council were the ones who had the authority to determine if this ban was appropriate.

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.

When reviewing an administrative regulation such as this, the judge has to determine whether the regulation has a rational basis or whether it is unreasonable, arbitrary or capricious. However, if it is determined that the agency (in this case the DOH) is acting in its area of "supposed" expertise, the judge must give their decision a high level of deference -meaning that in most instances the court must defer to their judgment and their presumed expertise.

If someone wants to nullify a regulation, they must show that the regulation is unreasonable and unsupported by any evidence.

In order for the plaintiffs to be granted their preliminary injunction (again, the "preliminary injunction" would prohibit the DOH from enforcing the ban pending the outcome of the lawsuit), the judge needs to be convinced that they will succeed in their case against the DOH by proving the things mentioned above. Based on those standards, he did not believe that the Plaintiffs were likely to win in court since (he emphasized again) based on the standard already set by the Court of Appeals, the plaintiffs had to show that the DOH's regulation was unsupported by any evidence, not some evidence or insufficient evidence. The judge reminded everyone that the Court's power was limited and that it could only make its decision based on those pre-established standards.

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 judge also stated that ferrets being legal in the rest of NY state did not automatically mean that the City law must be the same. It is true that this would be the case if the state specifically stated or implied that its law must supercede local laws. However, the state has not made that specific statement with regards to ferret legalization and the NYC ban. If the state had done so, the city would have had to conform its local law to match the state's law. But, the state had not made such a statement with regards to ferret legalization nor did it seem likely that they had any plans to do so.

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.

The judge stated that based on the New York City Charter the Department of Health and Board of Health have the power to act to protect the public health within the field of the jurisdiction of that agency. He believed that, with regards to the standards mentioned above, the DOH had acted within their field of jurisdiction here.

As a result, the plaintiffs' motion for a preliminary injunction was denied, and with it, the temporary injunction was no longer in effect.

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.

Then the judge went on to discuss the DOH's cross motion to dismiss which was converted to the motion for summary judgment. He stated that their motion was granted but ONLY as it applied to the Humane Society as a plaintiff. He did not find that the Humane Society had any reason to be a plaintiff in this lawsuit and said that the plaintiffs did not file a specific statement opposing the removal of the Humane Society.

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 judge then stated that the DOH did not submit sufficient evidence for him to award them complete summary judgment and dismiss the entire case.

Apparently, the DOH submitted affidavits in which they referred to other documents from previous cases. These documents would have supposedly shown that there was sufficient reason to institute the ban and would have worked against the remaining plaintiffs (who had to prove -as stated earlier- that the DOH's decision was unsupported by any evidence). However, the DOH did not actually attach or submit those documents, they just referred to them.

Since it had already been determined that the motion for summary judgment was not a motion for complete summary judgment, but only for a summary judgment on the two grounds the DOH had raised earlier as reasons to dismiss the case,
-Again, those two grounds were:

  1. failure to State a cause of action and
  2. standing

and since the DOH had not officially submitted sufficient evidence to support their decision, the judge said that his decision for summary judgment would be limited to the issue of "standing" as it related to the Humane Society remaining as a plaintiff.

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 DOH's claim that the plaintiffs failed to state a cause of action, (the other grounds on which they sought to have the case dismissed), the judge stated that the plaintiffs absolutely did state a cause of action, so the lawsuit could not be dismissed on those grounds.

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.

The judge reminded everyone again that he was bound by the precedents set by rulings in similar cases from the past (and he named those specific cases throughout his decision) and that as a result there was a limit to what he could legally rule on in this type of proceeding as well as strict guidelines as to what he was allowed to consider to determine those rulings.

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 judge then stated:

"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. "

However, he restated that the DOH has the power to act in a manner to protect the public, and since that is what they claim to be doing in this instance, they are within their rights to do so (until it is proven otherwise and the ban is officially lifted.)

Again he stated that since they appeared to be acting in their area of presumed expertise, and since their decision appeared to be supported by some evidence, the courts could not intercede.

Due to the restrictions placed upon the court with regards to overturning a regulation such as this, he stated that the DOH and the City Council were really the only two governing bodies that had the true authority to change the ban.

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.

The judge concluded his ruling by restating that

"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."

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.

After the judge gave his decision, he explained that the court system gets restructured from time to time and judges get shifted around. During the most recent restructuring in January of this year, he was shifted from being a "city part" judge to a "general part" judge. Due in part to that restructuring and also to a heavy caseload, he would not be able to continue with this case. Therefore the lawsuit will be transferred to an appropriate judge for this type of case which he believed would either be a "city part judge" (which is what he was before the restructuring), or an "administrative law part" judge.

He wished both parties the best of luck, and the proceedings ended.

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.)


<< More Information on the Lawsuit