People ex rel. Arcara v. Cloud Books, Inc. , 101 A.D.2d 163 ( 1984 )

Green, J. (concurring).

I agree that plaintiff has stated a cause of action pursuant to article 23 of the Public Health Law and that defendant’s motion for partial summary judgment was properly denied. I write separately, however, to express my concern that we are premature in reaching the constitutional issue relating to the statute’s sanctions.

The order appealed from decided only defendant’s motion for partial summary judgment. There has been no trial and no verdict from which defendant is aggrieved. Considerations of propriety, as well as long-established practice, demand that we not anticipate a question of constitutional law in advance of the necessity for deciding it, particularly where as here, there is another ground upon which this case may be disposed of (see Ashwander v Valley Auth., 297 US 288, 341-348 [Brandéis, J., concurring opn]). If defendant should prevail at trial, there would be no constitutional issue. If plaintiff should prevail, defendant may move to cancel the order of abatement (Public Health Law, § 2332, subd 1; People ex rel. Rudd v Rizzo, 146 Misc 675).

Implicit in this court’s prior affirmance of the trial court’s denial of plaintiff’s motion for a preliminary injunction (96 AD2d 751) was the notion that this case should proceed to trial like any other. We should say no more here.

Dillon, P. J., Callahan and Doerr, JJ., concur with Moule, J.; Green, J., concurs in a separate opinion.

Order affirmed, without costs.