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SUPREME COURT OF THE STATE OF NEW YORK
::îl::I.Ì:Yr:T ...........x
NYC C.L.A.S,H., INC. and RUSSELL WISHTART,Individually,
Plaintiffs,
-against
CITY OF NEV/ YORK, THE NEW YORK CITYCOI-INCIL and MELISSA MARK-VIVERITO, in herofficial capacity as Speaker of THE NEV/ YORK CITYCOLINCIL,
Index No. 15272312014
Defendants,
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS'MOTION FORSUMMARY JUDGMENT
ZACHARY W. CARTERCorporation Counsel of the City of New YorkAttorney for RespondentsBY: SHERRILL KURLAND100 Church Street, Room 5-167New York, New York 10007(2t2) 3s6-260s
January 16,2015
FILED: NEW YORK COUNTY CLERK 01/16/2015 05:37 PM INDEX NO. 152723/2014
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/16/2015
TABLE OF CONTENTS
STATEMENT OF FACTS 4
RELEVANT PROVISIONS OF LA\ry 4
ARGUMENT 6
AS THE PLAINTIFFS CANNOT SUCCEEDON THEIR CAUSES OF ACTION,DEFENDANTS ARE ENTITLED TOSUMMARY JUDGMENT AS A MATTER OFLAW
STANDARD FOR GRANTING SUMMARY JUDGMENT
POINT II I
DEFENDANTS' MOTION SHOULD BEGRANTED DISMISSING THE COMPLAINTAS A MATTER OF LAW BECAUSEPLAINTIFFS' CLAIMS HAVE NO MERIT
A. The Single Subject Rule 8
B. Local Law 152 Does Not Violate The Single Subject Rule 13
FOR THE FOREGOING REASONS,DEFENDANTS' MOTION FOR SUMMARYJUDGMENT SHOULD BE GRANTED INFULL
PRELIMINARY STATEMENT
Defendants, the City of New York ("City"), the New York City Council ("City
Council"), and Melissa Mark-Viverito, in her official capacity as Speaker of the New York City
Council; submit this Memorandum of Law in support of Defendants' instant Motion for
Summary Judgment, made pursuant to Civil Practice Laws and Procedure Rules ("CPLR") Rule
3212.
In December,2073, Local Law 152 of 2013 (Int. 1210A-2013) ("Local Law
752')t was introduced in the City Council. Local Law 152 was titled "A Local Law to amend
the administrative code of the city of New York, in relation to the regulation of electronic
cigarettes." At a committee meeting held on December 18,2013, following a hearing that had
been held on December 4,2013, Local Law 152 was passed by the Health Committee of the City
Council. On December 19, 2013, Local Law 152 was passed by the City Council. On December
30,2013 the Mayor signed Local Law 152 into law.2
Local Law 152 enacted amendments to the New York City Administrative Code
("Admin, Code") at Title 17, Chapter 5, which regulate electronic cigarettes in the City of New
York, In summary, Local Law 152 prohibits the use of electronic cigarettes in all areas in New
York City where smoking is prohibited, including public places such as restaurants and bars;
I Int. 1210-^-2013 is the amended version of the legislation and is the version that wasultimately enacted into law.t Th. legislation took effect 120 days after its enactment, with signage requirements taking effect180 days after its enactment.
I
libraries and museums; parks and beaches; and places of employment.3 (A copy of Local Law
152 is at Exhibit uC",)4
On or about March 25, 2014, Plaintiffs filed the instant action. (A copy of the
Verified Complaint, without exhibits, is at Exh. "4",) In the Complaint dated March 25,2014
(the "Complaint"), Plaintiffs challenge the constitutionality of Local Law 152. Specifically, the
Complaint alleges that Local Law 152 of 2013 is unconstitutional as it violates the so-called
"One Subject Rule"s contained in the New York State Constitution, Article III, Sl5; the New
York Municipal Home Rule Law ("MHRL"), Article 3 $20(3); and the New York City Charter
("Charter"), Chapter 2, ç32. (Complaint, First Cause of Action, nn69-72.) The Single Subject
Rule requires that a legislative enactment shall embrace only one subject, which shall be referred
to in its title.
Plaintiffs seek declaratory relief, declaring that Local Law 152 is unconstitutional,
and null and void. (Complaint, Second Cause of Action, fln73-76.) Plaintiffs also seek a
permanent injunction, enjoining Defendants from implementing or enforcing Local Law 152.
(Complaint, Third Cause of Action, TlT77-80.) Issue was joined on May 30, 2014, when
3 The use of electronic cigarettes continues to be permitted in all areas where smoking is notregulated, including private residences, hotel and motel rooms, private automobiles, City streetsand sidewalks, and in retail electronic cigarette stores. The law provides an exception for retailelectronic cigarette stores that mirrors an exception for retail tobacco stores, which allowssmoking in stores where sales of tobacco constitute at least 50Yo of annual gross sales. Bothretail electronic cigarette and retail tobacco stores have to register with the New York CityDepartment of Health and Mental Hygiene ("DOHMH") in order to verify that they fit intosmoking and electronic cigarette use exceptions for generating sales mostly from electroniccigarettes or tobacco products, respectively. The enforcement and penalties provisions related tothe use of electronic cigarettes are identical to those related to smoking.a The Exhibits referred to herein are annexed to the Defendants' moving papers in the instantAction, and will be referred to as "Exh".t The "One Subject Rule" is also called the "single Subject Rule," It will be referred to as theSingle Subject Rule" herein regardless of which legislative provision or provisions are beingreferenced.
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Defendants (electronically) served and filed their Answer to the Complaint (A copy of
Defendants' Answer is at Exh. "B").
The Complaint should be dismissed as it fails to state a cause of action. The
allegations in the Complaint mis-state the Single Subject Rule, and misapply the rule as to Local
Law 152. The Single Subject Rule is applicable only to particular legislative actions, such as
bills or Local Laws, Plaintiffs wrongly claim that the Single Subject Rule was violated because
there are allegedly multiple subjects in the sections of the codified law contained in the
Administrative Code, including the code section titles and headings .6 However the Single
Subject Rule does not apply to codified laws such as statutes or codes, or to the titles or section
headings in codified laws. The Single Subject Rule, which applies only to legislative actions,
does not limit the Administrative Code sections that codify those actions to a single subject,
Accordingly, even if the codified law referenced in the Complaint does address multiple subjects
as Plaintiffs claim, the Single Subject Rule is inapplicable thereto. In contrast, Local Law 152,
which is the legislative action, clearly contains only one subject, the title of which properly
describes its contents. Thus Local Law 152 comports with the Single Subject Rule in all
respects. Finally, there can be no violation of New York State Constitution, Article III, $15, as
that provision only applies to state legislative bills, and therefore is not applicable to the Local
Law at issue in this case. Thus, as a matter of law Plaintiffs cannot meet their burden of proof to
succeed on their claims. Accordingly, Defendant's Motion for Summary Judgment should be
granted, and Plaintiffs' claims should be dismissed with prejudice.
6 Solely for the purpose of this dispositive motion, Defendants do not dispute the facts alleged byPlaintifß in the Complaint,
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STATEMENT OF FACTS
Defendants have set forth a statement of material facts in the Affirmation of
Sherrill Kurland signed January 16,2015 and submitted in Support of Defendant's Motion for
Summary Judgment ("Kurland Aff,"), along with the exhibits submitted therewith in support of
the statement of material facts, Defendants hereby incorporates by reference those statements
and the supporting evidence herein.
RELEVANT PROVISIONS OF LAW
New York State Constitution, Article III, $15 provides the following:
Private or Local Bills to Embrace Only OneSubject, Expressed in Title
No private or local bill, which may be passed by thelegislature, shall embrace more than one subject,and that shall be expressed in the title.
MHRL $2(9) defines "Local Law", as follows:
'Local law.' A law (a) adopted pursuant to thischapter or to other authorization ofa state statute orcharter by the legislative body of a localgovernment, or (b) proposed by a chartercommission or by petition, and ratif,red by popularvote, as provided in article four of this chapter or asprovided in a state statute, charter or local law; butshall not mean or include an ordinance, resolutionor other similar act of the legislative body or of anyother board or body,
MHRL Article 3 $20(3) states the following, in relevant part:
Every such local law shall embrace only onesubject. The title shall briefly refer to the subjectmatter. For purposes of this chapter, a local law
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relating to codification or recodification ofordinances or local laws into a municipal code shallbe deemed to embrace only one subject, As usedherein codification or recodification shall includeamendments, deletions, tepeals, alterations or newprovisions in the municipal code...
New York City Charter, Chapter 2 ç32 states:
$32 Local laws. Except as otherwise provided bylaw, all legislative action by the council shall be bylocal law. The style of local law shall be "Be itenacted by the council as follows." Every local lawshall embrace only one subject. The title shallbriefly refer to the subject-matter.
GUIDANCE IN McKINNEY'S STATUTES
McKinney's Statutes is a treatise frequently relied upon by New York courts.
McKinney's Statutes $13 defines Titles of Acts as follows:
$13 Titles of Acts
The title of an act defines the scope of theenactment and gives notice of the purpose which itssponsors had in mind, It is generally sufficientwhere it sets forth substantially the general puposeof the bill and fairly suggests the subject dealt with,
Chapter 6 of McKinney's Statutes provides guidance for the construction and
interpretation of statutes, Section 123 of Chapter 6 describes the functions of statutory titles,
headings and marginal notes. McKinney's Statutes at $123(a) differentiates the title of a statute
from the title of an act as described in McKinney's Statutes $13.
5
McKinney's Statutes $123(b) defines statutory headings as follows:
b. Headings
A heading ofa portion ofa statute such as a chapteror a section usually is not part of the act and does
not extend or restrict the language contained in thebody of the statute, although it may be resorted to as
an aid in ascertainment of the legislative intentwhere a provision is ambiguous in meaning,
The commentary at McKinney's Statutes $123(a) describe the title of a statute as
a preliminary statement in the nature of a label which defines the scope of the enactment.
Strictly speaking it is not part of the act, and a title, except with respect to private and local laws,
is not necessary to the validity of a statute.,. . Titles are to be distinguished from headings of
chapters or sections of a code, which are sometimes treated as part of the act itself."
ARGUMENT
AS THE PLAINTIFFS CANNOT SUCCEED ON THEIRCAUSES OF ACTION, DEFENDANTS ARE ENTITLED TOSUMMARY JUDGMENT AS A MATTER OF LAW
POINT I
STANDARD FOR GRANTING SUMMARY JUDGMENT
CPLR 3212(b) states, inter alia, that a party moving for summary judgment
... shall show that there is no defense to the cause of actionor that the cause of action or defense has no merit, Themotion shall be granted if, upon all the papers and proofsubmitted, the cause of action or defense shall beestablished sufficiently to warrant the court as a matter oflaw in directing judgment in favor of any party.
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When a party moves for summary judgment, the party opposing the motion must
come forward with admissible evidence, such as documents and affrdavits, demonstrating the
existence of a material issue of fact requiring trial. Zuckerman v, City of New York, 49 N,Y.2d
557 (1980), Mere conclusions, expressions of hope or unsubstantiated allegations ate
insufficient, Id, See generally, Weinstein Korn & Miller, N.Y. Civil Practice,fl3212.
When no material issue of fact exists and the undisputed facts establish that a
party is entitled to judgment as a matter of law, summary judgment should be granted, Meth v.
Kolker, 39 A.D.2d651,652 (1st Dep't 1972); see also Long Island R.R. v. Northville,4l N.Y.2d
455,461 (1977). The appellate courts of this State have stressed that summary judgment is an
appropriate vehicle for the prompt and efficient disposition of cases and "should be granted
without hesitation" when there is no genuine issue of fact surrounding a cause of action. Blake
v, Gardino,35 A.D.2d 1022,1023 (3rd Dep't 1970), aff d, 29 N.Y,2d 576 (1972); see also Andre
v, Pomero),,35 N.Y.2d 361, 364 (1974); Gibbons v, Hantman,53 A,D.2d 108, lIl (2d Dep't
1977), af?d,43 N,Y.2d 941 (1978); DiSabato v. Soffes,g A.D.2d297,299 (1st Dep't 1959), As
will be demonstrated below, it is clear that no genuine issues of material fact exist that would
preclude the granting of summary judgment in favor of Defendants, and that Plaintifß' claims
fail as a matter of law. 7 Thus summary judgment dismissing the Complaint should be granted
in favor of Defendants.
7 The issue in this case is purely a legal issue, thus there is no need to engage in discovery inorder to resolve this case.
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POINT II
DEFENDANTS' MOTION SHOULD BE GRANTEDDISMISSING THE COMPLAINT AS A MATTER OF LA\ryBECAUSE PLAINTIFFS' CLAIMS HAVE NO MERIT
A. The Single Subject Rule
The "Single Subject Rule" in New York State has its origin in the New York State
Constitution provision contained in former Art. III, $ 16, which is now re-codihed at Art. III, $
15. The rule provides that "No private or local bill, which may be passed by the legislature, shall
embrace more than one subject, and that shall be expressed in the title." The rule is intended to
prevent legislators, and public at latge, from being deceived by the contents of a proposed
legislative act.
The MHRL generally provides the framework authorizing local governments to
adopt and amend local laws. The "Single Subject Rule" that appears in MHRL $20(3) traces
back to the MHRL's predecessor, the City Home Rule Law, and was included in the original
enactment, in Chapter 363 of 1924. The provision echoes the State Constitution requirement for
bills under consideration by the State legislature, Petition of Mitrione v. Cit), of Glens Falls, 14
A,D.2d716 (3d Dep't 1961); Rebeor v. Wilcox, 58 A.D.2d 186,192 (4th Dep't 1977).
The "Single Subject Rule" Charter provision, Charter $32, was included in the
1936 Charter. The provision mirrors the MHRL Single Subject Rule requirements for
enactments. Burke v. Kern, 287 N.Y. 203,212-213 (1941),
The constitutional provision of the Single Subject Rule by its terms applies only
to state legislative enactments; whereas the MHRL and the Charter provisions of the Single
Subject Rule by their terms apply to local legislative enactments. Nonetheless, the Courts have
interpreted and applied the "Single Subject Rule" in essentially the same manner regardless of
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whether it is the constitutional provision, the MHRL provision or the Charter provision at issue,
Petition of Mitrione v. City of Glens Falls, 14 A.D.2d 716 (3d Dep't 1961); Burke v, Kern, 287
N.Y. 203, 212-213 Qgal); Rebeor v. V/ilcox, 58 A.D.2d 186,192 (4th Dep't 1977).
The purpose of the Single Subject Rule is to prevent concealment and surprise to
the members of the Legislature and to the public at large, and to prevent legislative "logrolling."
Economic Power & Constr. Co. v, City of Buffalo, 195 N,Y. 286 (1909), The constitutional
provision was created as a result of the success of Aaron Burr in persuading the Legislature to
grant him a charter for a water company which had hidden among its provisions a clause
enabling him to found a bank. Burke v. Kern, 287 N, Y, 203,213 (1941), The historical reason
for the enactment is described in more detail in Matter of Cib¡ of New York [Clinton Avenue],
57 A.D. 166,167-170 (2d Dep't 1901):
It is now more than 100 years since the attention ofthe people of this State was emphatically called tothe abuse which this clause of the Constitution wasdesigned to correct. The Bank of New York,chartered in 1791 ,had a practical monopoly of thebanking business in the city of New York, and itsstockholders and directors were Federalists, withAlexander Hamilton at their head, By 1800 thisbank had come to wield, or was supposed to wield,an important political influence, and Aaron Burrconceived it to be necessary to have a rival bank.The Legislature was in the hands of the Federalists,and bank charters appeil to have been granted inthose days as political favors. In this condition ofaffairs Mr, Burr conceived the plan of takingadvantage ofthe then recent yellow fever scourge toorganize a company for the purpose of affording anabundant supply of pure and wholesome water, andthe Legislature were, with great plausibility,invoked to charter, on the most liberal terms, acompany which professed its willingness toundertake so useful an enterprise. As it wasuncertain what amount of capital would be required,and with a view to avoid any chance of failure on
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account of deficiency of capital, the companyrequested to be authorized to raise $2,000,000, butas it was possible, and, indeed, probable, that theconstruction of the water works would not absorbthe whole of that sum, they asked for a provisionthat the "surplus capital might be employed in anyway not inconsistent with the laws and Constitutionof the United States or of the State of New York,"and under the provisions of this water works act oneof the strongest banking institutions of the city ofNew York was incorporated, and has continued todo business up to the present time, and it is to-daygoing through the form of maintaining a waterplant. (1 Hammond's Polit. Hist. New York, 325.)This precedent was followed, or attempted to befollowed, in various bank charters which wereeagerly sought for in the periods of inflation whichintervened between that time and the meeting of theConstitutional Convention in 1846, particularly inthe great speculative era which reached its height inthe decade preceding that event, and other branchesof business felt the pernicious effects of this kind oflegislation, giving no intimation of its real purposeuntil it was in the process of being carried out, Itwas to meet this condition of affairs that theprovision of the Constitution now underconsideration was brought forward and adopted,and that it has served a useful purpose is abundantlyevidenced by the cases in which the courts haveintervened, as in the case of Astor v. ArcadeRailway Co. (l13 N.Y, 93) where it was attemptedto construct an underground railway in the city ofNew York, under the amendments of an act whichwas originally designed to provide for a system ofpneumatic tubes for the transmission of smallpackages and letters. (See Coxe v. State, 144 N,Y.396; Matter of Application of Paul, 94 N.Y. 497,505.) In these cases the courts have recognized thespirit and purpose of the restriction, while in a longline of adjudications upon titles not more clear thanthat involved in the matter now before us, they haverefused to declare the statutes void,
Matter of City of New York fClinton Avenue], 57 A,D. at 167-170
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In applying the constitutional provision, the courts have formulated various tests,
chief among which has been a limitation of the subject-matter to one subject, which, however,
may embrace the carrying out of that subject matter in various objective ways, provided the
objectives are naturally connected with the subject-matter and the title could be said to apprise
the reader of what may reasonably be expected to be found in the statute. Conner v, City_of New
York, 5 N.Y. 285 (1851); Village of Gloversville v, Howell, 70 N. Y .287 (1877).
Courts have held that the Single Subject Rule, which is designed to prevent
concealment of subject matter from the members of the Legislature and the public at large,
should be given a reasonable construction, "which will, on the one hand, uphold legislation as
against meticulous verbal criticism and, on the other, sustain [the] requirement that a local bill
should, however detailed in purpose, embrace but one general subject which should be expressed
in the title in words which fairly suggest possible scope of such legislation," Gaynor v Port
Chester, 231 N.Y. 451 (1921), V/hile the Single Subject Rule requires that legislation embrace
only one subject, which shall be expressed in its title, it in no way precludes there being a
number of purposes for the legislation. Petition of Mitrione v. Cit)¡ of Glens Falls, 14 A.D2d
716 (3d Dep't, 1961), Where the title of a proposed legislative act deceives and misleads no one,
it offrcially meets the requirements of this section. Olin v North Hempstead. 34 Misc. 2d 853
(S.Ct. Nassau Cnty. 1962), affld l8 A.D.2d 831 (2d Dep't 1963), and aff d 13 N.Y,2d 782
(1963), See also Burke v. Kern, 287 N.Y.203 (1941) (Local law abolishing several county
offices did not embrace more than one subject since county rcorganization was main purpose);
Richlreld Oil Corp. v. Syracuse, 287 N.Y, 234 (1942), reh. den, 289 N,Y, 651 (1942) (Method
for obtaining money to pay for public improvement is not separate subject from authority to
cause said improvement to be made); Knapp v, Fasbender, I N,Y,2d 212 (1956), remittitur amd.,
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2 N.Y.2d 724 (1956) (A statute which ratified and confirmed the powers of the board of trustees
of the town of Huntington to acquire and manage real property and ratified and confirmed their
action acquiring beach property, making lease-purchase agreements for parking and recreation
areas, making contracts for dredging and disposal of gravel and sand was not violative of the
Single Subject Rule as it embraced only one subject and its entire subject matter was expressed
in the title); Kerrigan v Kenn),,121 A.D.zd 602 (2d Dep't, 1986); Broad Properties. Inc. v
O'Hara, 45 A,D.2d 868 (2d Dep't 1974), affd 36 N.Y.2d 986 1975); Villaee of Gloversville v.
Howell, 70 N,Y. 287; of New Y 5 N.Y, 285 (1851); Application of
Yaras, 283 A.D. 214,221 (3d Dep't 1953), aff d Application of Yaras, 308 N.Y. 864 Ol.Y,
1955); and Board of Sup'rs v. Water Power & Control Com. ,227 A.D.345 (3d Dep't 1929), affd
2ss N.Y. s31 (1930).
In recent years, appellate courts have rejected Single Subject Rule challenges on
several occasions, most recently in 2012, when the Second Department rejected a challenge to a
local law, finding that the "components of Local law No. 5 were naturally connected, and the
title apprised the reader of what may reasonably be expected to be found in the statute,,."
, 101 A.D.2d
716,720 (2d Dep't 2012). See also York H C I of the Ci
of New York, 169 4.D,2d,547 (1't Dep't 1991); Schilling v. Dunne,Iggl A,D,2d 779,786 (2d
Dep't 1986) ("The local law embraced only one subject, to wit, zoning"); Kerrigan v. Kenny,
l2l A.d.2d 602 (2d Dep't 1986).
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B. Local Law 152 Does Not Violate the Single Subject Rule
Plaintiffs'entire case is based upon their claim that Local Law 152 violates the
Single Subject Rule. However, Plaintiffs have failed to establish any violation of the Single
Subject Rule, and mischaracterize its meaning.
Local Law 152 is titled "A Local Law to amend the administrative code of the
city of New York, in relation to the regulation of electronic cigarettes," (See Exh. C, at p, 1,)
The text of the legislative enactment includes legislative findings about electronic cigarettes,
(See Exh, C, at pp.I-2.) The remainder of the text of the legislative enactment contains the
newly adopted provisions regulating electronic cigarettes, and references the sections of the
Administrative Code that were being amended to add new text relating to the regulation of
electronic cigarettes.s (See Exh. C, at pp. 2-116.) Every provision in the legislative enactment
that is Local Law 152 relates to the regulation of electronic cigarettes. There is nothing
contained in Local Law I 52 that does not pertain to the regulation of electronic cigarettes, As a
result, Local Law 152 is in full compliance with the Single Subject Rule as the enactment
embraces only one subject, which is briefly referred to in the title of the enactment. Plaintiffs
fail to even allege that anything in the title of the enactment could mislead or deceive anyone
from its contents. Rather, Plaintiffs merely allege that Chapter 5 of the Administrative Code is
misleading because it has two subjects (See, Complaint, fl54.) This argument falls flat because,
as set forth more fully below, there is no prohibition on multiple subjects in the Administrative
Code. Indeed, the title of the enactment fairly informs the reader of what may reasonably be
expected to be found in the enactment: the regulation of electronic cigarettes. Thus Local Law
152 does not violate the Single Subject Rule,
8 The underlined provisions in the text are the newly added provisions.
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Although Plaintiffs' case is premised upon the incorrect assertion that Local Law
152 violates the Single Subject Rule, Plaintiffs fail to identify any way in which Local Law 152
violates the Single Subject Rule, Rather, Plaintiffs' claims are founded upon their complete
misunderstanding of the Single Subject Rule. Instead of evaluating the application of the Single
Subject Rule to the legislative enactment which is the Local Law, Plaintiffs try to radically
broaden the application of the Single Subject Rule by attempting to apply it to the codification of
the laws, which are contained in the Admin, Code. Charter $ 32, and MHRL $ 20(3), on their
face, apply to local laws. A local law is an instrument passed by the City Council (see
MHRL$2(9)), and in this case codified within the Admin. Code. The Admin. Code is itself not a
local law, but rather is amended by local laws,e The Single Subject Rule does not say thaf a
chapter or title in the Admin. Code may only address one subject, rather it states that a local law
may only address one subject. There is nothing contained in any of the three versions of the laws
containing the Single Subject Rule, nor are there any reported cases in the over one hundred and
fifty year history of the Single Subject Rule, that would even suggest that the Single Subject
Rule is applicable to the codified text of a law. In fact Plaintiffs' claims are irrelevant to the
express purpose of the Single Subject Rule, which is to apprise the reader of the subject of the
legislative enactment; not to inform the reader of the full content of potentially vast codifications
of laws. Here, Local Law 152 of 2013 met the requirements of the Single Subject Rule,
addressing only one subject that was accurately described in its title.
e The Admin. Code is a compilation of various legislative enactments, including state and locallaws, as well as former City ordinances, See Section 1-0.0 from the 1937 New York CityAdministrative Code, which states "Code; a restatement and codification.-The purpose ofthis code is solely to codify and restate present existing statutes and laws, general, special andlocal .,.", The Admin. Code was recodihed in 1985, and states, in relevant part, at $ l-02"Legislative intent. It is the intent of the legislature by the enactment of this chapter to recodify,without substantive change, the administrative code of the city of New York in effectimmediately prior to the effective date of this chapter."
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Plaintiffs' incorrect analysis of the Single Subject Rule begins with their historical
interpretation of various earlier legislative enactments in New York City, which include the
Clean Indoor Air Act and the Smoke Free Air Act (and the amendments thereto), that were
codif,red as part of the Admin, Code at Title 17.10 (Complaint, Exh, A at flfl 17-42.) Plaintiffs
then allege that the "title section" of Chapter 5, which they identify as Admin. Code $17-501,
remains unchanged in Local Law 152. Next Plaintiffs incorrectly claim that there are now two
subjects contained in this chapter of the Admin, Code and incorrectly allege it to be in violation
of the Single Subject Rule. (Complaint, Exh, A at flfl 53-5a.) Plaintiffs allege that the subject of
Admin. Code Title 17, Chapter 5 is the "the protection of the public from the harmful effects of
second-hand smoke exposure",ll and that Local Law 152 adds the subject the "regulation of E-
Cigarettes", resulting in two subjects in this portion of the codified law, Next Plaintiffs reference
various other provisions of the Admin. Code, as amended by Local Law 152 (Complaint, Exh. A
at flfl 55-68), and allege that "Local Law 152 amended Chapter 5 to cover two wholly separate
subjects" (as described above.) (Complaint, Exh, A af 167.) However, Plaintiffs are clearly
referring to the Admin. Code (Chapter 5 of Title 17), and not to the legislative enactment, which
is the Local Law to which the rule applies. As pointed out above, the Single Subject Rule is
solely applicable to legislative enactments, and there is nothing in any of the three versions of the
Single Subject Rule laws, or in any case law, that would apply the Single Subject Rule to a
codification or compilation of laws, such as the Admin. Code. In fact, as the Second Department
l0 In the Complaint, Plaintiffs point out that Plaintiff, NYC C.L,A,S.H, unsuccessfullychallenged at least one of these laws in Court. (Complaint, Exh, A atl42.)ll Although not relevant to the issues in this motion, it is not entirely clear how the Plaintifßidentify as the alleged subject "the protection of the public from the harmful effects of second-hand smoke exposure," although it seems to be gleaned from some of the legislative history ofthe prior legislation. However, solely for the purpose of this dispositive motion, Defendants willassume that the alleged subject is correct.
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recently stated in Highview Estates, cited supra, a local law should be upheld if its components
are "naturally connected" and its title apprises "the reader of what may reasonably be expected to
be.found" in the local law. 101 A,D.3d at720, Obviously, the Appellate Division's discussion
is about the subject and title of a bill being enacted, not about codified volumes of laws.
Plaintifß' misinterpretation of the Single Subject Rule seems to be further rooted
in their misunderstandings surrounding the title of an act, the title of a statute, and a statutory
chapterheading. As explained in $13, of the respected McKinney's Statutes treatise on statutory
construction, the title of an act defines the scope of the enactment and gives notice of the purpose
which its sponsors had in mind, Chapter 6 of McKinney's Statutes provides guidance for the
construction and interpretation of statutes, Section 123 of Chapter 6 describes the functions of
statutory titles, headings and marginal notes. Section I23(a) differentiates the title of a statute
from the title of an act as described in McKinneys Statutes $ l3. The commentary at McKinney's
Statutes $123(a) describe the title of a statute as "... a preliminary statement in the nature of a
label which defines the scope of the enactment. Strictly speaking it is not part of the act, and a
title, except with respect to private and local laws, is not necessary to the validity of a statute.,,
." McKinney's Statutes goes on to explain: "Titles fof statutes] are to be distinguished from
headings of chapters or sections of a code, which are sometimes treated as part of the act itself."
McKinney's Statutes at $123(b) further explains that "[a] heading of aportion of a statute such
as a chapter or a section usually is not part ofthe act and does not extend or restrict the language
contained in the body of the statute, although it may be resorted to as an aid in asceftainment of
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the legislative intent where a provision is ambiguous in meaning."'' Thus, the title of Local Law
752"A Local Law to amend the administrative code of the city of New York, in relation to the
regulation of electronic cigarettes" is the title of the act or legislative enactment, which in this
case is a local law, and thus subject to the Single Subject Rule. (See Exh. C, at p. 1,) In contrast,
the heading at Admin. Code Title 17, Chapfer 5 called "Smoke-Free Air Act," and the text at
Admin, Code $17-501 are chapter and section headings.13 Neither of the Admin. Code items
constitute the title to an act or local law, and they are thus not subject to the Single Subject Rule.
In the instant matter, there is nothing in the title of the enactment that would
mislead or deceive anyone from its contents, The title of the enactment fairly informs the reader
of what may reasonably be expected to be found in the enactment. Thus Local Law 152 does not
violate the Single Subject Rule.
As a result, Plaintiffs have failed to state a cognizable cause of action, and the
Court should grant summary judgment to Defendants dismissing all of Plaintiffs' claims as a
matter of law.
'' See, eg., Long v. Kissling Real Estate, 80 Misc. 2d817,819 (Sup. Ct. Rockland Cnty. 1975),"A textual title is it'l contrast to the bill title which precedes the enacting clause (N.Y, Clonst.. art.III, $ l3), in that the bill title is not law, and has no legal efTect except as provide d by theConstiturtion (art, III, $ 15)."13 V/hile not at issue in this case, and in contrast to the title of an enactment, a title or heading ofa statute is not required to reflect the subject of the text. See, e,g., Bhd. of R,R, Trainmen v. Ball. &OhioR.R.,331 U.S.519,528-529(U,S. 1947); Matterof CorriganvFireDept.of theCitvofN.Y.,28Misc, 3d 1214(A),1214A (N,Y, Sup, Ct, Qns, Co. 2010); Wells v, New York State Dep't of Transp,,90Misc, 2d 535, 539 (S. Ct. Hamilton Co, 1977): Squadrito v. Griebsch, I N,Y,2d 411 (1956) ("'Thecharacter of a statute', we have written, 'is to be determined by its provisions, and not by its title"'(citingPeople v, O'Brien, supra, lll N.Y. at 59),) See also, People v, O'Brien, 1ll N.Y. 1,59-60 (1888); Bellv, Mayor of Citv of New York, 105 N.Y. 139,144 (1887); Matter of New York & Brooklyn Bridge, 72N.Y, 52 , 40 N,Y, 113, 119, 122 (1869); People v. McCann, 16 N,Y. 58(1857); 5, 146 (3'd Dep't 1852),
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C. The Constitutional Provision Containing the Single Subject Rule Does Not Apply
There can be no violation of New York State Constitution, Article III, $15, as that
provision by its terms only applies to state legislative bills, and therefore is not applicable to the
Local Law at issue in this case. Section 15 provides "No private or local bill. which may be
passed by the legislature, shall embrace more than one subject, and that shall be expressed in the
title." (Emphasis added.) The provision refers only to bills which may be passed by the state
legislature, thereby excluding local legislation. Petition of Mitrione v, Cit), of Glens Falls, 14
A.D.2d 716,717 (3d Dep't 1961). Local Law 152 is not a law enacted by the New York state
legislature, but rather is a local enactment by the City Council. Plaintiffs thus have not stated a
cause of action for any violation of the New York State Constitution, Article III, $15, This
failure is exacerbated by the fact that even if this constitutional provision did apply, the judicial
analysis of the provision would be identical to the analysis of the other Single Subject Rule
provisions, and Plaintiffs' arguments would fail for the reasons outlined at length above,
Consequently, the court should grant summary judgment to Defendants dismissing Plaintiffs'
claims with respect to the New York State Constitution, Article III, $ 15 as a matter of law.
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Dated:
CONCLUSION
FOR THE FOREGOING REASONS, DEFENDANTS'MOTION F'OR SUMMARY JUDGMENT SHOULD BEGRANTED IN F'ULL
New York, New YorkJanuary 14,2015
ZACHARY A. CARTERCorporation Counsel of the
City of New YorkAttorney for Defendants100 Church Street, Room 5-167New York, New York 10007(2t2) 3s6-260s
By: $:l'--*eSHERRILL KURLANDAssistant Corporation Counsel
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