Caldor, Inc. v. Ulster County, 888

• Decision Date: 13 January 1981
• Docket Number: No. 888,U,888
• Citation: 438 N.Y.S.2d 160,108 Misc.2d 606
• Court: New York Supreme Court
• Parties: CALDOR, INC. and Sidney Heller, as President of Local Unionnited Food & Commercial Workers' International Union, A.F.L.-C.I.O., Plaintiffs, v. The COUNTY OF ULSTER, Defendant.

Page 160

438 N.Y.S.2d 160

108 Misc.2d 606

CALDOR, INC. and Sidney Heller, as President of Local Union No. 888, United Food & Commercial Workers' International Union, A.F.L.-C.I.O., Plaintiffs, v. The COUNTY OF ULSTER, Defendant.

Supreme Court, Special Term Ulster County.

Jan. 13, 1981.

Edmiston, Burrows, Vaccaro, Henkin & Galloway, White Plains, for plaintiffs.

Francis T. Murray, Kingston, for defendant.

AARON E. KLEIN, Justice.

Plaintiffs seek summary judgment (CPLR 3212) in this action for a declaratory judgment. (CPLR 3001) The defendant, County of Ulster, has opposed the application of the plaintiffs, and cross-moves (CPLR 2215) for summary judgment against the plaintiffs.

The plaintiffs are composed of a corporation doing business in the Town and County of Ulster, and the President of a union whose members are employed by the plaintiff corporation. The defendant, County of Ulster, enacted in 1968 a Local Law No. 1 by its Legislature.

The object of the Local Law, which is being attacked in this proceeding by the plaintiffs, according to its terms, is "...to regulate commercial and business activities on Memorial Day in the County of Ulster." It contains seven separate sections, with the restriction of trade and business the concern of the first two sections. In § 3, it prohibits the use of advertising which employs language mentioning Memorial Day. In § 4, it provides for the observance of Memorial Day services throughout the respective villages, towns and cities within the County. In § 5, the Local Law specifies penalties which include a fine up to $1,000, as well as imprisonment of not more than thirty (30) days. The sixth section has a saving clause seeking to confine any invalidity or impairment of the Local Law by a court to such portions that are found objectionable, and preserving the remainder of it. The last section makes the Local Law effective immediately.

The plaintiffs have brought a broad-based attack on the Local Law's validity. They argue that the county lacks the requisite power to regulate business on Memorial Day, the Local Law prohibits rather than regulates business, and the prohibition regarding advertising is unconstitutional due to its vagueness and impermissible restraint on free speech and expression. On the other hand, the County contends that the Local Law is a reasonable exercise of the County's power under Municipal Home Rule § 10, subd. 1. a(12). Furthermore, the County urges that under the case of S. E. Nichols Herkimer Corp. v. Village of Herkimer, 38 A.D.2d 456, 330 N.Y.S.2d 747, Local Law No. 1 of 1968, if it is found to be prohibitory because of the length of time during which business is restricted, the court should, under the saving clause contained in § 6, limit the language of the Local Law to regulation of business between the hours of 10:30 A.M. and 3:30 P.M. Additionally, the County contends that the Local Law is neither vague nor overly broad in restricting commercial speech. Lastly, it points out that the plaintiffs concede the right to have county businesses closed for fifteen (15) minutes during the local public memorial services.

The court will strike down Local Law No. 1 for 1968 on the ground that the County lacks statutory authority to promulgate such a law. In § 86 of the General Municipal Law, the following language regarding the regulation of commercial and business activities on Memorial Day and Independence Day is found: "The municipal officers and boards in the several cities, towns and villages of this state now having the authority to enact ordinances and local laws, may adopt ordinances and local laws regulating the nature of commercial and business activities that may be conducted on Memorial day ... Provision shall be made in such ordinances or local laws for punishment of violations thereof." (emphasis supplied) The foregoing language mentions specifically villages, towns and cities while conspicuously omitting counties. However, General Municipal Law § 2,...