SUPREME COURT OF THE STATE OF NEW YORK

::îl::I.Ì:Yr:T ...........x

NYC C.L.A.S,H., INC. and RUSSELL WISHTART,Individually,

Plaintiffs,

-against

CITY OF NEV/ YORK, THE NEW YORK CITYCOI-INCIL and MELISSA MARK-VIVERITO, in herofficial capacity as Speaker of THE NEV/ YORK CITYCOLINCIL,

Index No. 15272312014

Defendants,

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS'MOTION FORSUMMARY JUDGMENT

ZACHARY W. CARTERCorporation Counsel of the City of New YorkAttorney for RespondentsBY: SHERRILL KURLAND100 Church Street, Room 5-167New York, New York 10007(2t2) 3s6-260s

January 16,2015

FILED: NEW YORK COUNTY CLERK 01/16/2015 05:37 PM INDEX NO. 152723/2014

NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 01/16/2015

TABLE OF CONTENTS

STATEMENT OF FACTS 4

RELEVANT PROVISIONS OF LA\ry 4

ARGUMENT 6

AS THE PLAINTIFFS CANNOT SUCCEEDON THEIR CAUSES OF ACTION,DEFENDANTS ARE ENTITLED TOSUMMARY JUDGMENT AS A MATTER OFLAW

STANDARD FOR GRANTING SUMMARY JUDGMENT

POINT II I

DEFENDANTS' MOTION SHOULD BEGRANTED DISMISSING THE COMPLAINTAS A MATTER OF LAW BECAUSEPLAINTIFFS' CLAIMS HAVE NO MERIT

A. The Single Subject Rule 8

B. Local Law 152 Does Not Violate The Single Subject Rule 13

FOR THE FOREGOING REASONS,DEFENDANTS' MOTION FOR SUMMARYJUDGMENT SHOULD BE GRANTED INFULL

PRELIMINARY STATEMENT

Defendants, the City of New York ("City"), the New York City Council ("City

Council"), and Melissa Mark-Viverito, in her official capacity as Speaker of the New York City

Council; submit this Memorandum of Law in support of Defendants' instant Motion for

Summary Judgment, made pursuant to Civil Practice Laws and Procedure Rules ("CPLR") Rule

3212.

In December,2073, Local Law 152 of 2013 (Int. 1210A-2013) ("Local Law

752')t was introduced in the City Council. Local Law 152 was titled "A Local Law to amend

the administrative code of the city of New York, in relation to the regulation of electronic

cigarettes." At a committee meeting held on December 18,2013, following a hearing that had

been held on December 4,2013, Local Law 152 was passed by the Health Committee of the City

Council. On December 19, 2013, Local Law 152 was passed by the City Council. On December

30,2013 the Mayor signed Local Law 152 into law.2

Local Law 152 enacted amendments to the New York City Administrative Code

("Admin, Code") at Title 17, Chapter 5, which regulate electronic cigarettes in the City of New

York, In summary, Local Law 152 prohibits the use of electronic cigarettes in all areas in New

York City where smoking is prohibited, including public places such as restaurants and bars;

I Int. 1210-^-2013 is the amended version of the legislation and is the version that wasultimately enacted into law.t Th. legislation took effect 120 days after its enactment, with signage requirements taking effect180 days after its enactment.

I

libraries and museums; parks and beaches; and places of employment.3 (A copy of Local Law

152 is at Exhibit uC",)4

On or about March 25, 2014, Plaintiffs filed the instant action. (A copy of the

Verified Complaint, without exhibits, is at Exh. "4",) In the Complaint dated March 25,2014

(the "Complaint"), Plaintiffs challenge the constitutionality of Local Law 152. Specifically, the

Complaint alleges that Local Law 152 of 2013 is unconstitutional as it violates the so-called

"One Subject Rule"s contained in the New York State Constitution, Article III, Sl5; the New

York Municipal Home Rule Law ("MHRL"), Article 3 $20(3); and the New York City Charter

("Charter"), Chapter 2, ç32. (Complaint, First Cause of Action, nn69-72.) The Single Subject

Rule requires that a legislative enactment shall embrace only one subject, which shall be referred

to in its title.

Plaintiffs seek declaratory relief, declaring that Local Law 152 is unconstitutional,

and null and void. (Complaint, Second Cause of Action, fln73-76.) Plaintiffs also seek a

permanent injunction, enjoining Defendants from implementing or enforcing Local Law 152.

(Complaint, Third Cause of Action, TlT77-80.) Issue was joined on May 30, 2014, when

3 The use of electronic cigarettes continues to be permitted in all areas where smoking is notregulated, including private residences, hotel and motel rooms, private automobiles, City streetsand sidewalks, and in retail electronic cigarette stores. The law provides an exception for retailelectronic cigarette stores that mirrors an exception for retail tobacco stores, which allowssmoking in stores where sales of tobacco constitute at least 50Yo of annual gross sales. Bothretail electronic cigarette and retail tobacco stores have to register with the New York CityDepartment of Health and Mental Hygiene ("DOHMH") in order to verify that they fit intosmoking and electronic cigarette use exceptions for generating sales mostly from electroniccigarettes or tobacco products, respectively. The enforcement and penalties provisions related tothe use of electronic cigarettes are identical to those related to smoking.a The Exhibits referred to herein are annexed to the Defendants' moving papers in the instantAction, and will be referred to as "Exh".t The "One Subject Rule" is also called the "single Subject Rule," It will be referred to as theSingle Subject Rule" herein regardless of which legislative provision or provisions are beingreferenced.

.|

Defendants (electronically) served and filed their Answer to the Complaint (A copy of

Defendants' Answer is at Exh. "B").

The Complaint should be dismissed as it fails to state a cause of action. The

allegations in the Complaint mis-state the Single Subject Rule, and misapply the rule as to Local

Law 152. The Single Subject Rule is applicable only to particular legislative actions, such as

bills or Local Laws, Plaintiffs wrongly claim that the Single Subject Rule was violated because

there are allegedly multiple subjects in the sections of the codified law contained in the

Administrative Code, including the code section titles and headings .6 However the Single

Subject Rule does not apply to codified laws such as statutes or codes, or to the titles or section

headings in codified laws. The Single Subject Rule, which applies only to legislative actions,

does not limit the Administrative Code sections that codify those actions to a single subject,

Accordingly, even if the codified law referenced in the Complaint does address multiple subjects

as Plaintiffs claim, the Single Subject Rule is inapplicable thereto. In contrast, Local Law 152,

which is the legislative action, clearly contains only one subject, the title of which properly

describes its contents. Thus Local Law 152 comports with the Single Subject Rule in all

respects. Finally, there can be no violation of New York State Constitution, Article III, $15, as

that provision only applies to state legislative bills, and therefore is not applicable to the Local

Law at issue in this case. Thus, as a matter of law Plaintiffs cannot meet their burden of proof to

succeed on their claims. Accordingly, Defendant's Motion for Summary Judgment should be

granted, and Plaintiffs' claims should be dismissed with prejudice.

6 Solely for the purpose of this dispositive motion, Defendants do not dispute the facts alleged byPlaintifß in the Complaint,

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STATEMENT OF FACTS

Defendants have set forth a statement of material facts in the Affirmation of

Sherrill Kurland signed January 16,2015 and submitted in Support of Defendant's Motion for

Summary Judgment ("Kurland Aff,"), along with the exhibits submitted therewith in support of

the statement of material facts, Defendants hereby incorporates by reference those statements

and the supporting evidence herein.

RELEVANT PROVISIONS OF LAW

New York State Constitution, Article III, $15 provides the following:

Private or Local Bills to Embrace Only OneSubject, Expressed in Title

No private or local bill, which may be passed by thelegislature, shall embrace more than one subject,and that shall be expressed in the title.

MHRL $2(9) defines "Local Law", as follows:

'Local law.' A law (a) adopted pursuant to thischapter or to other authorization ofa state statute orcharter by the legislative body of a localgovernment, or (b) proposed by a chartercommission or by petition, and ratif,red by popularvote, as provided in article four of this chapter or asprovided in a state statute, charter or local law; butshall not mean or include an ordinance, resolutionor other similar act of the legislative body or of anyother board or body,

MHRL Article 3 $20(3) states the following, in relevant part:

Every such local law shall embrace only onesubject. The title shall briefly refer to the subjectmatter. For purposes of this chapter, a local law

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relating to codification or recodification ofordinances or local laws into a municipal code shallbe deemed to embrace only one subject, As usedherein codification or recodification shall includeamendments, deletions, tepeals, alterations or newprovisions in the municipal code...

New York City Charter, Chapter 2 ç32 states:

$32 Local laws. Except as otherwise provided bylaw, all legislative action by the council shall be bylocal law. The style of local law shall be "Be itenacted by the council as follows." Every local lawshall embrace only one subject. The title shallbriefly refer to the subject-matter.

GUIDANCE IN McKINNEY'S STATUTES

McKinney's Statutes is a treatise frequently relied upon by New York courts.

McKinney's Statutes $13 defines Titles of Acts as follows:

$13 Titles of Acts

The title of an act defines the scope of theenactment and gives notice of the purpose which itssponsors had in mind, It is generally sufficientwhere it sets forth substantially the general puposeof the bill and fairly suggests the subject dealt with,

Chapter 6 of McKinney's Statutes provides guidance for the construction and

interpretation of statutes, Section 123 of Chapter 6 describes the functions of statutory titles,

headings and marginal notes. McKinney's Statutes at $123(a) differentiates the title of a statute

from the title of an act as described in McKinney's Statutes $13.

5

McKinney's Statutes $123(b) defines statutory headings as follows:

b. Headings

A heading ofa portion ofa statute such as a chapteror a section usually is not part of the act and does

not extend or restrict the language contained in thebody of the statute, although it may be resorted to as

an aid in ascertainment of the legislative intentwhere a provision is ambiguous in meaning,

The commentary at McKinney's Statutes $123(a) describe the title of a statute as

a preliminary statement in the nature of a label which defines the scope of the enactment.

Strictly speaking it is not part of the act, and a title, except with respect to private and local laws,

is not necessary to the validity of a statute.,. . Titles are to be distinguished from headings of

chapters or sections of a code, which are sometimes treated as part of the act itself."

ARGUMENT

AS THE PLAINTIFFS CANNOT SUCCEED ON THEIRCAUSES OF ACTION, DEFENDANTS ARE ENTITLED TOSUMMARY JUDGMENT AS A MATTER OF LAW

POINT I

STANDARD FOR GRANTING SUMMARY JUDGMENT

CPLR 3212(b) states, inter alia, that a party moving for summary judgment

... shall show that there is no defense to the cause of actionor that the cause of action or defense has no merit, Themotion shall be granted if, upon all the papers and proofsubmitted, the cause of action or defense shall beestablished sufficiently to warrant the court as a matter oflaw in directing judgment in favor of any party.

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When a party moves for summary judgment, the party opposing the motion must

come forward with admissible evidence, such as documents and affrdavits, demonstrating the

existence of a material issue of fact requiring trial. Zuckerman v, City of New York, 49 N,Y.2d

557 (1980), Mere conclusions, expressions of hope or unsubstantiated allegations ate

insufficient, Id, See generally, Weinstein Korn & Miller, N.Y. Civil Practice,fl3212.

When no material issue of fact exists and the undisputed facts establish that a

party is entitled to judgment as a matter of law, summary judgment should be granted, Meth v.

Kolker, 39 A.D.2d651,652 (1st Dep't 1972); see also Long Island R.R. v. Northville,4l N.Y.2d

455,461 (1977). The appellate courts of this State have stressed that summary judgment is an

appropriate vehicle for the prompt and efficient disposition of cases and "should be granted

without hesitation" when there is no genuine issue of fact surrounding a cause of action. Blake

v, Gardino,35 A.D.2d 1022,1023 (3rd Dep't 1970), aff d, 29 N.Y,2d 576 (1972); see also Andre

v, Pomero),,35 N.Y.2d 361, 364 (1974); Gibbons v, Hantman,53 A,D.2d 108, lIl (2d Dep't

1977), af?d,43 N,Y.2d 941 (1978); DiSabato v. Soffes,g A.D.2d297,299 (1st Dep't 1959), As

will be demonstrated below, it is clear that no genuine issues of material fact exist that would

preclude the granting of summary judgment in favor of Defendants, and that Plaintifß' claims

fail as a matter of law. 7 Thus summary judgment dismissing the Complaint should be granted

in favor of Defendants.

7 The issue in this case is purely a legal issue, thus there is no need to engage in discovery inorder to resolve this case.

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POINT II

DEFENDANTS' MOTION SHOULD BE GRANTEDDISMISSING THE COMPLAINT AS A MATTER OF LA\ryBECAUSE PLAINTIFFS' CLAIMS HAVE NO MERIT

A. The Single Subject Rule

The "Single Subject Rule" in New York State has its origin in the New York State

Constitution provision contained in former Art. III, $ 16, which is now re-codihed at Art. III, $

15. The rule provides that "No private or local bill, which may be passed by the legislature, shall

embrace more than one subject, and that shall be expressed in the title." The rule is intended to

prevent legislators, and public at latge, from being deceived by the contents of a proposed

legislative act.

The MHRL generally provides the framework authorizing local governments to

adopt and amend local laws. The "Single Subject Rule" that appears in MHRL $20(3) traces

back to the MHRL's predecessor, the City Home Rule Law, and was included in the original

enactment, in Chapter 363 of 1924. The provision echoes the State Constitution requirement for

bills under consideration by the State legislature, Petition of Mitrione v. Cit), of Glens Falls, 14

A,D.2d716 (3d Dep't 1961); Rebeor v. Wilcox, 58 A.D.2d 186,192 (4th Dep't 1977).

The "Single Subject Rule" Charter provision, Charter $32, was included in the

1936 Charter. The provision mirrors the MHRL Single Subject Rule requirements for

enactments. Burke v. Kern, 287 N.Y. 203,212-213 (1941),

The constitutional provision of the Single Subject Rule by its terms applies only

to state legislative enactments; whereas the MHRL and the Charter provisions of the Single

Subject Rule by their terms apply to local legislative enactments. Nonetheless, the Courts have

interpreted and applied the "Single Subject Rule" in essentially the same manner regardless of

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whether it is the constitutional provision, the MHRL provision or the Charter provision at issue,

Petition of Mitrione v. City of Glens Falls, 14 A.D.2d 716 (3d Dep't 1961); Burke v, Kern, 287

N.Y. 203, 212-213 Qgal); Rebeor v. V/ilcox, 58 A.D.2d 186,192 (4th Dep't 1977).

The purpose of the Single Subject Rule is to prevent concealment and surprise to

the members of the Legislature and to the public at large, and to prevent legislative "logrolling."

Economic Power & Constr. Co. v, City of Buffalo, 195 N,Y. 286 (1909), The constitutional

provision was created as a result of the success of Aaron Burr in persuading the Legislature to

grant him a charter for a water company which had hidden among its provisions a clause

enabling him to found a bank. Burke v. Kern, 287 N, Y, 203,213 (1941), The historical reason

for the enactment is described in more detail in Matter of Cib¡ of New York [Clinton Avenue],

57 A.D. 166,167-170 (2d Dep't 1901):

It is now more than 100 years since the attention ofthe people of this State was emphatically called tothe abuse which this clause of the Constitution wasdesigned to correct. The Bank of New York,chartered in 1791 ,had a practical monopoly of thebanking business in the city of New York, and itsstockholders and directors were Federalists, withAlexander Hamilton at their head, By 1800 thisbank had come to wield, or was supposed to wield,an important political influence, and Aaron Burrconceived it to be necessary to have a rival bank.The Legislature was in the hands of the Federalists,and bank charters appeil to have been granted inthose days as political favors. In this condition ofaffairs Mr, Burr conceived the plan of takingadvantage ofthe then recent yellow fever scourge toorganize a company for the purpose of affording anabundant supply of pure and wholesome water, andthe Legislature were, with great plausibility,invoked to charter, on the most liberal terms, acompany which professed its willingness toundertake so useful an enterprise. As it wasuncertain what amount of capital would be required,and with a view to avoid any chance of failure on

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account of deficiency of capital, the companyrequested to be authorized to raise $2,000,000, butas it was possible, and, indeed, probable, that theconstruction of the water works would not absorbthe whole of that sum, they asked for a provisionthat the "surplus capital might be employed in anyway not inconsistent with the laws and Constitutionof the United States or of the State of New York,"and under the provisions of this water works act oneof the strongest banking institutions of the city ofNew York was incorporated, and has continued todo business up to the present time, and it is to-daygoing through the form of maintaining a waterplant. (1 Hammond's Polit. Hist. New York, 325.)This precedent was followed, or attempted to befollowed, in various bank charters which wereeagerly sought for in the periods of inflation whichintervened between that time and the meeting of theConstitutional Convention in 1846, particularly inthe great speculative era which reached its height inthe decade preceding that event, and other branchesof business felt the pernicious effects of this kind oflegislation, giving no intimation of its real purposeuntil it was in the process of being carried out, Itwas to meet this condition of affairs that theprovision of the Constitution now underconsideration was brought forward and adopted,and that it has served a useful purpose is abundantlyevidenced by the cases in which the courts haveintervened, as in the case of Astor v. ArcadeRailway Co. (l13 N.Y, 93) where it was attemptedto construct an underground railway in the city ofNew York, under the amendments of an act whichwas originally designed to provide for a system ofpneumatic tubes for the transmission of smallpackages and letters. (See Coxe v. State, 144 N,Y.396; Matter of Application of Paul, 94 N.Y. 497,505.) In these cases the courts have recognized thespirit and purpose of the restriction, while in a longline of adjudications upon titles not more clear thanthat involved in the matter now before us, they haverefused to declare the statutes void,

Matter of City of New York fClinton Avenue], 57 A,D. at 167-170

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In applying the constitutional provision, the courts have formulated various tests,

chief among which has been a limitation of the subject-matter to one subject, which, however,

may embrace the carrying out of that subject matter in various objective ways, provided the

objectives are naturally connected with the subject-matter and the title could be said to apprise

the reader of what may reasonably be expected to be found in the statute. Conner v, City_of New

York, 5 N.Y. 285 (1851); Village of Gloversville v, Howell, 70 N. Y .287 (1877).

Courts have held that the Single Subject Rule, which is designed to prevent

concealment of subject matter from the members of the Legislature and the public at large,

should be given a reasonable construction, "which will, on the one hand, uphold legislation as

against meticulous verbal criticism and, on the other, sustain [the] requirement that a local bill

should, however detailed in purpose, embrace but one general subject which should be expressed

in the title in words which fairly suggest possible scope of such legislation," Gaynor v Port

Chester, 231 N.Y. 451 (1921), V/hile the Single Subject Rule requires that legislation embrace

only one subject, which shall be expressed in its title, it in no way precludes there being a

number of purposes for the legislation. Petition of Mitrione v. Cit)¡ of Glens Falls, 14 A.D2d

716 (3d Dep't, 1961), Where the title of a proposed legislative act deceives and misleads no one,

it offrcially meets the requirements of this section. Olin v North Hempstead. 34 Misc. 2d 853

(S.Ct. Nassau Cnty. 1962), affld l8 A.D.2d 831 (2d Dep't 1963), and aff d 13 N.Y,2d 782

(1963), See also Burke v. Kern, 287 N.Y.203 (1941) (Local law abolishing several county

offices did not embrace more than one subject since county rcorganization was main purpose);

Richlreld Oil Corp. v. Syracuse, 287 N.Y, 234 (1942), reh. den, 289 N,Y, 651 (1942) (Method

for obtaining money to pay for public improvement is not separate subject from authority to

cause said improvement to be made); Knapp v, Fasbender, I N,Y,2d 212 (1956), remittitur amd.,

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2 N.Y.2d 724 (1956) (A statute which ratified and confirmed the powers of the board of trustees

of the town of Huntington to acquire and manage real property and ratified and confirmed their

action acquiring beach property, making lease-purchase agreements for parking and recreation

areas, making contracts for dredging and disposal of gravel and sand was not violative of the

Single Subject Rule as it embraced only one subject and its entire subject matter was expressed

in the title); Kerrigan v Kenn),,121 A.D.zd 602 (2d Dep't, 1986); Broad Properties. Inc. v

O'Hara, 45 A,D.2d 868 (2d Dep't 1974), affd 36 N.Y.2d 986 1975); Villaee of Gloversville v.

Howell, 70 N,Y. 287; of New Y 5 N.Y, 285 (1851); Application of

Yaras, 283 A.D. 214,221 (3d Dep't 1953), aff d Application of Yaras, 308 N.Y. 864 Ol.Y,

1955); and Board of Sup'rs v. Water Power & Control Com. ,227 A.D.345 (3d Dep't 1929), affd

2ss N.Y. s31 (1930).

In recent years, appellate courts have rejected Single Subject Rule challenges on

several occasions, most recently in 2012, when the Second Department rejected a challenge to a

local law, finding that the "components of Local law No. 5 were naturally connected, and the

title apprised the reader of what may reasonably be expected to be found in the statute,,."

, 101 A.D.2d

716,720 (2d Dep't 2012). See also York H C I of the Ci

of New York, 169 4.D,2d,547 (1't Dep't 1991); Schilling v. Dunne,Iggl A,D,2d 779,786 (2d

Dep't 1986) ("The local law embraced only one subject, to wit, zoning"); Kerrigan v. Kenny,

l2l A.d.2d 602 (2d Dep't 1986).

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B. Local Law 152 Does Not Violate the Single Subject Rule

Plaintiffs'entire case is based upon their claim that Local Law 152 violates the

Single Subject Rule. However, Plaintiffs have failed to establish any violation of the Single

Subject Rule, and mischaracterize its meaning.

Local Law 152 is titled "A Local Law to amend the administrative code of the

city of New York, in relation to the regulation of electronic cigarettes," (See Exh. C, at p, 1,)

The text of the legislative enactment includes legislative findings about electronic cigarettes,

(See Exh, C, at pp.I-2.) The remainder of the text of the legislative enactment contains the

newly adopted provisions regulating electronic cigarettes, and references the sections of the

Administrative Code that were being amended to add new text relating to the regulation of

electronic cigarettes.s (See Exh. C, at pp. 2-116.) Every provision in the legislative enactment

that is Local Law 152 relates to the regulation of electronic cigarettes. There is nothing

contained in Local Law I 52 that does not pertain to the regulation of electronic cigarettes, As a

result, Local Law 152 is in full compliance with the Single Subject Rule as the enactment

embraces only one subject, which is briefly referred to in the title of the enactment. Plaintiffs

fail to even allege that anything in the title of the enactment could mislead or deceive anyone

from its contents. Rather, Plaintiffs merely allege that Chapter 5 of the Administrative Code is

misleading because it has two subjects (See, Complaint, fl54.) This argument falls flat because,

as set forth more fully below, there is no prohibition on multiple subjects in the Administrative

Code. Indeed, the title of the enactment fairly informs the reader of what may reasonably be

expected to be found in the enactment: the regulation of electronic cigarettes. Thus Local Law

152 does not violate the Single Subject Rule,

8 The underlined provisions in the text are the newly added provisions.

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Although Plaintiffs' case is premised upon the incorrect assertion that Local Law

152 violates the Single Subject Rule, Plaintiffs fail to identify any way in which Local Law 152

violates the Single Subject Rule, Rather, Plaintiffs' claims are founded upon their complete

misunderstanding of the Single Subject Rule. Instead of evaluating the application of the Single

Subject Rule to the legislative enactment which is the Local Law, Plaintiffs try to radically

broaden the application of the Single Subject Rule by attempting to apply it to the codification of

the laws, which are contained in the Admin, Code. Charter $ 32, and MHRL $ 20(3), on their

face, apply to local laws. A local law is an instrument passed by the City Council (see

MHRL$2(9)), and in this case codified within the Admin. Code. The Admin. Code is itself not a

local law, but rather is amended by local laws,e The Single Subject Rule does not say thaf a

chapter or title in the Admin. Code may only address one subject, rather it states that a local law

may only address one subject. There is nothing contained in any of the three versions of the laws

containing the Single Subject Rule, nor are there any reported cases in the over one hundred and

fifty year history of the Single Subject Rule, that would even suggest that the Single Subject

Rule is applicable to the codified text of a law. In fact Plaintiffs' claims are irrelevant to the

express purpose of the Single Subject Rule, which is to apprise the reader of the subject of the

legislative enactment; not to inform the reader of the full content of potentially vast codifications

of laws. Here, Local Law 152 of 2013 met the requirements of the Single Subject Rule,

addressing only one subject that was accurately described in its title.

e The Admin. Code is a compilation of various legislative enactments, including state and locallaws, as well as former City ordinances, See Section 1-0.0 from the 1937 New York CityAdministrative Code, which states "Code; a restatement and codification.-The purpose ofthis code is solely to codify and restate present existing statutes and laws, general, special andlocal .,.", The Admin. Code was recodihed in 1985, and states, in relevant part, at $ l-02"Legislative intent. It is the intent of the legislature by the enactment of this chapter to recodify,without substantive change, the administrative code of the city of New York in effectimmediately prior to the effective date of this chapter."

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Plaintiffs' incorrect analysis of the Single Subject Rule begins with their historical

interpretation of various earlier legislative enactments in New York City, which include the

Clean Indoor Air Act and the Smoke Free Air Act (and the amendments thereto), that were

codif,red as part of the Admin, Code at Title 17.10 (Complaint, Exh, A at flfl 17-42.) Plaintiffs

then allege that the "title section" of Chapter 5, which they identify as Admin. Code $17-501,

remains unchanged in Local Law 152. Next Plaintiffs incorrectly claim that there are now two

subjects contained in this chapter of the Admin, Code and incorrectly allege it to be in violation

of the Single Subject Rule. (Complaint, Exh, A at flfl 53-5a.) Plaintiffs allege that the subject of

Admin. Code Title 17, Chapter 5 is the "the protection of the public from the harmful effects of

second-hand smoke exposure",ll and that Local Law 152 adds the subject the "regulation of E-

Cigarettes", resulting in two subjects in this portion of the codified law, Next Plaintiffs reference

various other provisions of the Admin. Code, as amended by Local Law 152 (Complaint, Exh. A

at flfl 55-68), and allege that "Local Law 152 amended Chapter 5 to cover two wholly separate

subjects" (as described above.) (Complaint, Exh, A af 167.) However, Plaintiffs are clearly

referring to the Admin. Code (Chapter 5 of Title 17), and not to the legislative enactment, which

is the Local Law to which the rule applies. As pointed out above, the Single Subject Rule is

solely applicable to legislative enactments, and there is nothing in any of the three versions of the

Single Subject Rule laws, or in any case law, that would apply the Single Subject Rule to a

codification or compilation of laws, such as the Admin. Code. In fact, as the Second Department

l0 In the Complaint, Plaintiffs point out that Plaintiff, NYC C.L,A,S.H, unsuccessfullychallenged at least one of these laws in Court. (Complaint, Exh, A atl42.)ll Although not relevant to the issues in this motion, it is not entirely clear how the Plaintifßidentify as the alleged subject "the protection of the public from the harmful effects of second-hand smoke exposure," although it seems to be gleaned from some of the legislative history ofthe prior legislation. However, solely for the purpose of this dispositive motion, Defendants willassume that the alleged subject is correct.

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recently stated in Highview Estates, cited supra, a local law should be upheld if its components

are "naturally connected" and its title apprises "the reader of what may reasonably be expected to

be.found" in the local law. 101 A,D.3d at720, Obviously, the Appellate Division's discussion

is about the subject and title of a bill being enacted, not about codified volumes of laws.

Plaintifß' misinterpretation of the Single Subject Rule seems to be further rooted

in their misunderstandings surrounding the title of an act, the title of a statute, and a statutory

chapterheading. As explained in $13, of the respected McKinney's Statutes treatise on statutory

construction, the title of an act defines the scope of the enactment and gives notice of the purpose

which its sponsors had in mind, Chapter 6 of McKinney's Statutes provides guidance for the

construction and interpretation of statutes, Section 123 of Chapter 6 describes the functions of

statutory titles, headings and marginal notes. Section I23(a) differentiates the title of a statute

from the title of an act as described in McKinneys Statutes $ l3. The commentary at McKinney's

Statutes $123(a) describe the title of a statute as "... a preliminary statement in the nature of a

label which defines the scope of the enactment. Strictly speaking it is not part of the act, and a

title, except with respect to private and local laws, is not necessary to the validity of a statute.,,

." McKinney's Statutes goes on to explain: "Titles fof statutes] are to be distinguished from

headings of chapters or sections of a code, which are sometimes treated as part of the act itself."

McKinney's Statutes at $123(b) further explains that "[a] heading of aportion of a statute such

as a chapter or a section usually is not part ofthe act and does not extend or restrict the language

contained in the body of the statute, although it may be resorted to as an aid in asceftainment of

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the legislative intent where a provision is ambiguous in meaning."'' Thus, the title of Local Law

752"A Local Law to amend the administrative code of the city of New York, in relation to the

regulation of electronic cigarettes" is the title of the act or legislative enactment, which in this

case is a local law, and thus subject to the Single Subject Rule. (See Exh. C, at p. 1,) In contrast,

the heading at Admin. Code Title 17, Chapfer 5 called "Smoke-Free Air Act," and the text at

Admin, Code $17-501 are chapter and section headings.13 Neither of the Admin. Code items

constitute the title to an act or local law, and they are thus not subject to the Single Subject Rule.

In the instant matter, there is nothing in the title of the enactment that would

mislead or deceive anyone from its contents, The title of the enactment fairly informs the reader

of what may reasonably be expected to be found in the enactment. Thus Local Law 152 does not

violate the Single Subject Rule.

As a result, Plaintiffs have failed to state a cognizable cause of action, and the

Court should grant summary judgment to Defendants dismissing all of Plaintiffs' claims as a

matter of law.

'' See, eg., Long v. Kissling Real Estate, 80 Misc. 2d817,819 (Sup. Ct. Rockland Cnty. 1975),"A textual title is it'l contrast to the bill title which precedes the enacting clause (N.Y, Clonst.. art.III, $ l3), in that the bill title is not law, and has no legal efTect except as provide d by theConstiturtion (art, III, $ 15)."13 V/hile not at issue in this case, and in contrast to the title of an enactment, a title or heading ofa statute is not required to reflect the subject of the text. See, e,g., Bhd. of R,R, Trainmen v. Ball. &OhioR.R.,331 U.S.519,528-529(U,S. 1947); Matterof CorriganvFireDept.of theCitvofN.Y.,28Misc, 3d 1214(A),1214A (N,Y, Sup, Ct, Qns, Co. 2010); Wells v, New York State Dep't of Transp,,90Misc, 2d 535, 539 (S. Ct. Hamilton Co, 1977): Squadrito v. Griebsch, I N,Y,2d 411 (1956) ("'Thecharacter of a statute', we have written, 'is to be determined by its provisions, and not by its title"'(citingPeople v, O'Brien, supra, lll N.Y. at 59),) See also, People v, O'Brien, 1ll N.Y. 1,59-60 (1888); Bellv, Mayor of Citv of New York, 105 N.Y. 139,144 (1887); Matter of New York & Brooklyn Bridge, 72N.Y, 52 , 40 N,Y, 113, 119, 122 (1869); People v. McCann, 16 N,Y. 58(1857); 5, 146 (3'd Dep't 1852),

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C. The Constitutional Provision Containing the Single Subject Rule Does Not Apply

There can be no violation of New York State Constitution, Article III, $15, as that

provision by its terms only applies to state legislative bills, and therefore is not applicable to the

Local Law at issue in this case. Section 15 provides "No private or local bill. which may be

passed by the legislature, shall embrace more than one subject, and that shall be expressed in the

title." (Emphasis added.) The provision refers only to bills which may be passed by the state

legislature, thereby excluding local legislation. Petition of Mitrione v, Cit), of Glens Falls, 14

A.D.2d 716,717 (3d Dep't 1961). Local Law 152 is not a law enacted by the New York state

legislature, but rather is a local enactment by the City Council. Plaintiffs thus have not stated a

cause of action for any violation of the New York State Constitution, Article III, $15, This

failure is exacerbated by the fact that even if this constitutional provision did apply, the judicial

analysis of the provision would be identical to the analysis of the other Single Subject Rule

provisions, and Plaintiffs' arguments would fail for the reasons outlined at length above,

Consequently, the court should grant summary judgment to Defendants dismissing Plaintiffs'

claims with respect to the New York State Constitution, Article III, $ 15 as a matter of law.

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Dated:

CONCLUSION

FOR THE FOREGOING REASONS, DEFENDANTS'MOTION F'OR SUMMARY JUDGMENT SHOULD BEGRANTED IN F'ULL

New York, New YorkJanuary 14,2015

ZACHARY A. CARTERCorporation Counsel of the

City of New YorkAttorney for Defendants100 Church Street, Room 5-167New York, New York 10007(2t2) 3s6-260s

By: $:l'--*eSHERRILL KURLANDAssistant Corporation Counsel

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