Oriental Boulevard Co. v. Heller , 311 N.Y.S.2d 635 ( 1970 )

In an action for a declaratory judgment and injunctive relief, the cross appeals are from separate portions of an order of the Supreme Court, Kings County, dated February 18, 1969, as follows:Defendants appeal from so much of the order (1) as, in granting their cross motion to dismiss the complaint and supplemental complaint on the ground that Local Law 14 of the Local Laws of 1966 of the City of New York, as amended by Local Law 14 of the Local Laws of 1968 of the City of New York (the Air Pollution Control Law), is constitutional, excepted from that determination the provisions of said Local Law which prescribe (a) the dates for compliance with the Local Law by plaintiffs Oriental Boulevard Company and Concord Village Company and (b) the penalties for said plaintiffs’ noncompliance; and (2) as directed a hearing with respect to said excepted provisions of the Local Law as applied to said plaintiffs. Plaintiffs cross-appeal, as limited by their brief (in addition to the limitations in their notice of appeal) from so much of the order as (1) denied their motion for summary judgment declaring the Local Law unconstitutional per se, (2) enjoined enforcement of the Local Law, pendente lite, only as against plaintiffs Oriental Boulevard Company and Concord Village -Company, (3) dismissed the complaint in part and adjudged the Local Law constitutional in all respects and as to all persons, except as to its provisions concerning compliance dates and penalties which would apply to said two plaintiffs. Order modified, on the law, by deleting the fifth decretal paragraph; by deleting from the third decretal paragraph all the matter following the provision that defendants’ cross motion “ is granted in all respects ”; by deleting from the fourth decretal paragraph all the matter following the adjudication that all provisions of the Local Law “ are hereby declared to be constitutionally valid ”. As so modified, order affirmed insofar as appealed from, with costs to defendants-appellants. We agree with the Special Term’s determination that the subject Local Law is constitutional on its face. On this record, however, we see no fact issue requiring a trial as to whether the time limitations for compliance and the penalties for noncompliance are constitutionally oppressive as applied to these plaintiffs. The statute is presumptively constitutional (Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537, 541); and on this motion and cross motion for judgment plaintiffs had the burden of overcoming that presumption by an evidentiary showing that the statute is unconstitutionally oppressive as applied to them personally (cf. Shapiro v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 56, 60, 64). Plaintiffs made no such showing and raised no fact issue in that respect. Consequently, the presumption of constitutionality stands unrebutted on this record; no trial is required on the issue of uneonstitutionality of the statute as it applies to these plaintiffs; and it was improper to direct a trial of that issue. Christ, P. J., Rabin, Hopkins, Brennan and Benjamin, JJ., concur. [58 Misc 2d 920.]