Cohalan v. Caviglia ( 1979 )

In an action pursuant to CPLR 6330 to permanently enjoin defendant, his agents, servants and employees from selling, etc., certain films and magazines, the appeal is from a judgment of the Supreme Court, Suffolk County, entered January 16, 1979, which granted the application. Judgment reversed, on the law, without costs or disbursements, and complaint dismissed. The findings of fact have not been considered. In our view, the procedure by which Suffolk County law enforcement authorities seized the magazines and films which are the subject of this action was disapproved in Lo-Ji Sales v New York (442 US 319). Accordingly, the injunction against the sale, display or distribution of those items cannot stand. We note that the six items which were originally purchased by the policy do not fall within the proscription of the Lo-Ji case. However, for reasons which do not appear, those items were not included in the complaint, and are not listed in the judgment granting the permanent injunction. Accordingly, this court has no basis on which to act with respect thereto. Damiani, J. P., Lazer, Mangano and Margett, JJ., concur.