Joseph A. Santorelli, J.
The plaintiffs seek an order pursuant to CPLR 3212 granting summary judgment and declaring that the Town of Smithtown's locally enacted law on firearm discharge is illegal in nature. The defendant opposes this application and cross moves for an order granting summary judgment.
CPLR § 3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment ( Olan v. Farrell Lines, Inc. , 105 A.D.2d 653, 481 N.Y.S.2d 370 [1st Dept., 1984] ; aff'd 64 N.Y.2d 1092, 489 N.Y.S.2d 884, 479 N.E.2d 229 [1985] ; Spearm o n v. Times Square Stores Corp. , 96 A.D.2d 552, 465 N.Y.S.2d 230 [2nd Dept., 1983] ; Weinstein–Korn–Miller, New York Civil Practice Sec. 3212.09).
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( Friends of Animals v. Associated Fur Mfrs. , 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( Sillman v. Twentieth Century–Fox Film Corporation , 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ... and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp. v. Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988] ; Zuckerman v. City of New York , 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v. Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept. 1981] ). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion ( Robinson v. Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept. 1983] ).
On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974] ). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated ( Prunty v. Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept. 1990] ). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted ( Prunty v. Keltie's Bum Steer, supra , citing Glick & Dolleck v. Tri–Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968] ; Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept. 1985], affd , 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282 ).
The plaintiffs are a not for profit corporation, Hunters for Deer, Inc., and a licensed New York State hunter, Michael Lewis. They claim that "Township, such as the Town of Smithtown, are pre-empted from legislating within the areas of hunting , discharge of a bow and arrow, discharge of an air gun or, with the exception of the Village of Green Island in Albany County, discharge of a firearm." The plaintiffs claim that Smithtown's local code section 160 which establishes firearm discharge setbacks and related regulations is illegal.
N.Y. ECL § 11–0931(4) states:
a. No person shall:
(1) discharge a firearm, crossbow or long bow in such a way as will result in the load, bolt, or arrow thereof passing over a public highway or any part thereof;
(2) discharge a firearm within five hundred feet, a long bow within one hundred fifty feet, or a crossbow within two hundred fifty feet from a dwelling house, farm building or farm structure actually occupied or used, school building, school playground, public structure, or occupied factory or church;...
b. The prohibitions contained in subparagraph 2 of paragraph a above shall not apply to:
(1) The owner or lessee of the dwelling house, or members of his immediate family actually residing therein, or a person in his employ, or the guest of the owner or lessee of the dwelling house acting with the consent of said owner or lessee, provided however, that nothing herein shall be deemed to authorize such persons to discharge a firearm within five hundred feet, a long bow within one hundred fifty feet, or a crossbow within two hundred fifty feet of any other dwelling house, or a farm building or farm structure actually occupied or used, or a school building or playground, public structure, or occupied factory or church.
N.Y. Town § 130 states:
The town board after a public hearing may enact, amend and repeal ordinances, rules and regulations not inconsistent with law , for the following purposes in addition to such other purposes as may be contemplated by the provisions of this chapter or other laws. In order to accomplish the regulation and control of such purposes, the town board may include in any such ordinance, rule or regulation provision for the issuance and revocation of a permit or permits, for the appointment of any town officers or employees to enforce such ordinance, rule or regulation and/or the terms and conditions of any permit issued thereunder, and for the collection of any reasonable uniform fee in connection therewith. The town clerk shall give notice of such hearing by the publication of a notice in at least one newspaper circulating in the town, specifying the time when and the place where such hearing will be held, and in general terms describing the proposed ordinance. Such notice shall be published once at least ten days prior to the day specified for such hearing...
27. Firearms. In the towns of...Smithtown ... prohibiting the discharge of firearms in areas in which such activity may be hazardous to the general public or nearby residents, and providing for the posting of such areas with signs giving notice of such regulations, which ordinances, rules and regulations may be more, but not less , restrictive than any other provision of law. Thirty days prior to the adoption of any ordinance changing the five hundred foot rule, a notice must be sent to the regional supervisor of fish and game of the environmental conservation department, notifying him of such intention. (Emphasis added).
Smithtown Town Code Chapter 160 states:
§ 160–2. Definitions. The following definitions shall govern the interpretation of this chapter unless otherwise expressly defined herein: FIREARM—Includes a weapon which acts by the force of gunpowder or from which a shot is discharged by the force of an explosion, as well as an air rifle, an air gun, a BB gun, a slingshot and a bow and arrow.
§ 160–3. Purpose. The purpose of this chapter is to prohibit any person from discharging a firearm in those areas of the Town of Smithtown in which such activity may be hazardous to the general public or nearby residents.
§ 160–4. Prohibited areas. The discharge of firearms is deemed hazardous to the general public and, therefore, prohibited in all areas of the Town of Smithtown except those areas as stipulated under § 160–5, Exceptions.
§ 160–5. Exceptions. Firearms may be discharged upon one's own property and upon the property of another with the written consent of the landowner, provided that any such discharge of firearms does not occur within 500 feet from a dwelling, school or occupied structure, or a park, beach, playground or any other place of outdoor recreational or nonrecreational activities; and further provided that any such discharge of firearms does not violate the provisions of the New York State Environmental Conservation Law.
In Matter of Chwick v. Mulvey , 81 A.D.3d 161, 915 N.Y.S.2d 578 (2d Dept. 2010), the court discussed both conflict preemption and field preemption. The court outlined conflict preemption and stated that
Under the doctrine of conflict preemption, a local law is preempted by a state law when a "right or benefit is expressly given ... by ... State law which has then been curtailed or taken away by the local law" ( Jancyn Mfg. Corp. v. County of Suffolk , 71 N.Y.2d 91, 97[, 524 N.Y.S.2d 8, 518 N.E.2d 903] [1987] ; see New York State Club Assn. v. City of New York , 69 N.Y.2d [211] at 217[, 513 N.Y.S.2d 349, 505 N.E.2d 915 [1987]] ; Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock , 100 N.Y.2d [395] at 400[, 764 N.Y.S.2d 64, 795 N.E.2d 619 [2003]] ; DJL Rest. Corp. v. City of New York , 96 N.Y.2d [91] at 95[, 725 N.Y.S.2d 622, 749 N.E.2d 186 [2001]] ). Put differently, conflict preemption occurs when a local law prohibits what a state law explicitly allows, or when a state law prohibits what a local law explicitly allows (see Matter of Lansdown Entertainment Corp. v. New York City Dept. of Consumer Affairs , 74 N.Y.2d 761, 762–763[, 543 N.E.2d 725, 545 N.Y.S.2d 82] [1989] [City of New York
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