Gless v. City of New York , 483 N.Y.S.2d 715 ( 1985 )

— Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered December 12, 1983, which in a declaratory judgment action seeking a declaration that Local Law No. 23 of 1983 of the City of New York is invalid and unenforceable, denied plaintiffs’ motion for a preliminary injunction, denied plaintiffs’ cross motion for summary judgment declaring that Local Law No. 23 is preempted by New York State legislation and declared that law to be valid and enforceable, unanimously reversed, on the law, without costs, plaintiffs’ motion for an injunction is granted, and the injunction is to be permanent, plaintiffs’ cross motion for summary judgment is granted, defendants’ motion for summary judgment is denied, and it is declared that Local Law No. 23 is preempted by article 39 of the General Business Law.

This is an action for declaratory and injunctive relief by plaintiffs, owners of certain retail shops in which are sold, as here relevant, smoking accessories, which seeks a declaration that Local Law No. 23 of 1983 is invalid and unenforceable. Local Law No. 23 in essence prohibits sale or display of various items which are characterized as drug paraphernalia.

The dispositive issue on this appeal is raised by the contention of plaintiffs, rejected in Special Term, that Local Law No. 23 is invalid in that it enters into an area that has been preempted by article 39 of the General Business Law, which regulates in detail the sale and display of drug paraphernalia.

It is agreed that Local Law No. 23 is in all essential respects identical with local laws as to which essentially the same issue was recently addressed by the Appellate Division, Second Department, in Dougal v County of Suffolk (102 AD2d 531). We are in agreement with the analysis set forth in that opinion and the conclusions reached. Accordingly, we hold that Local Law No. 23 improperly undertakes to prohibit activities in an area that has been preempted by State legislation, article 39 of the General Business Law. The local law is accordingly declared invalid and unenforceable. Concur — Sandler, J. P., Sullivan, Carro and Milonas, JJ. [121 Misc 2d 1030.]