FILED: NEW YORK COUNTY CLERK 01/15/2015 05:25 PM

NYSCEF DOC. NO. 32

INDEX NO. 152723/2014

RECEIVED NYSCEF: 01/16/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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NYC C.L.A.S.H., INC and RUSSELL WISHTART,

Index No. 152723/14

Hon. Frank P. Nervo

Plaintiff,

Motion Sequence: 001

-against-

NOTICE OF MOTION
FOR SUMMARY
JUDGMENT PURSUANT
TO CPLR 3212

CITY OF NEW YORK, THE NEW YORK CITY

COUNCIL and MELISSA MARK-VIVERITO,
in her official capacity as Speaker of THE NEW YORK
CITY COUNCIL,
Defendants.
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COUNSEL:
PLEASE TAKE NOTICE, that upon the Attorney Affirmation of Edward Paltzik,
Joshpe Law Group LLP, attorneys for Plaintiffs, affirmed January 13, 2015 and the exhibits
attached thereto; the Affidavit of Audrey Silk, sworn to January 12, 2015; the Affidavit of
Russell Wishtart, sworn to January 9, 2015; the Plaintiffs Memorandum of Law, dated January
13, 2015; and upon all prior proceedings herein, the undersigned will move this Court pursuant
to New York Civil Practice Law and Rules (CPLR) 3212, to be held in and for the County of
New York at the Courthouse of the Supreme Court, returnable to the Motion Submission Part,
Room 130, 60 Centre Street, New York, NY 10007, on the 27th day of February, 2015, at 9:30
a.m., to be heard on submission or as soon thereafter as counsel may be heard, for an Order

pursuant to CPLR 3212, granting summary judgment in favor of the Plaintiffs as to all of the
relief requested in this declaratory judgment action, to wit:
(a) A declaratory judgment that Local Law 152, Titled: A Local Law to amend the
administrative code of the City of New York, in relation to the regulation of electronic
cigarettes (Local Law 152), which amends New York City Administrative Code (N.Y.C.
Admin. Code) Title 17, Chapter 5 17-501 to 17-514 (Title 17 Chapter 5), is
unconstitutional, ultra vires, and null and void, in that Local Law 152 adds a second subject
(electronic cigarettes) to Title 17 Chapter 5 and therefore violates the One Subject Rule
contained in the New York State Constitution, Article III, 15, the New York Municipal Home
Rule Law, Article 3, 20(3), and the New York City Charter, ch. 2, 32; and
(b) A declaratory judgment that Local Law 152 may not be implemented and is
unenforceable on the basis that Local Law 152 is unconstitutional, ultra vires, and null and void,
in that Local Law 152 violates the One Subject Rule; and
(c) A judgment permanently enjoining and restraining Defendants from implementing
and enforcing Local Law 152.
PLEASE TAKE FURTHER NOTICE that answering affidavits, if any, shall be served on
the undersigned no later than seven (7) days prior to the return date hereof pursuant to CPLR
2214(b).
Dated: New York, NY
January 16, 2015
_________________________________
JOSHPE LAW GROUP LLP
By: Edward Paltzik
Attorneys for Plaintiffs
1040 Avenue of the Americas, Suite 1101
New York, NY 10018
2

Tel: 646- 820-6701

Fax: 212-313-9478
E-mail: epaltzik@joshpelaw.com
TO:

ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorneys for Defendants
100 Church Street, Room 5-167
New York, NY 10007
By: Sherrill Kurland, Senior Counsel