Metropolitan Package Store Ass'n, Inc. v. Koch

• Decision Date: 05 March 1981
• Citation: 437 N.Y.S.2d 760,80 A.D.2d 940
• Parties: METROPOLITAN PACKAGE STORE ASSOCIATION, INC. et al., Respondents, v. Edward I. KOCH, as Mayor of the City of New York et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 760

437 N.Y.S.2d 760

80 A.D.2d 940

METROPOLITAN PACKAGE STORE ASSOCIATION, INC. et al., Respondents, v. Edward I. KOCH, as Mayor of the City of New York et al., Appellants.

Supreme Court, Appellate Division, Third Department.

March 5, 1981.

Allen G. Schwartz, Corporation Counsel, New York City (Isaac C. Donner, New York City, of counsel), for appellants City of New York & Edward Koch, as Mayor of the City of N. Y.

Robert Abrams, Atty. Gen. (Francis V. Dow, Asst. Atty. Gen., of counsel), for appellant N. Y. S. Tax Commission.

Warren Pesetsky, New York City (Leslie W. Trebby, Albany, of counsel), for appellant State Liquor Authority.

Gerard A. Navagh, New York City, for respondents.

Mehler & Buscemi, New York City (Francis R. Buscemi, New York City, of counsel), for intervenor-respondent, Retailers Alliance, Inc.

Seymour Howard, Jericho, for Nathan D. Fein Liquors, Inc., et al., intervenors-respondents.

Before SWEENEY, J. P., and KANE, MAIN, MIKOLL and CASEY, JJ.

MEMORANDUM BY THE COURT.

Appeal from an order of the Supreme Court at Special Term, entered September 24, 1980 in Albany County, which granted plaintiffs' motion for a preliminary injunction and denied the City of New York's cross motion to dismiss the complaint.

Plaintiffs, a trade association of retail liquor dealers in New York City, one of its members and a liquor distributor in New York City, commenced this action seeking a declaratory judgment declaring Local Law No. 30 of 1980 of the City of New York unconstitutional, and a permanent injunction enjoining the administration and enforcement of the local law. Local Law No. 30 of 1980 of the City of New York, enacted pursuant to section 445 of the Tax Law, imposes an excise tax on distributors and noncommercial importers of beer and alcohol sold or used in the city and a floor tax on persons who own or possess certain amounts of beer or alcohol on the effective date of the local law. The taxes are administered by the State Tax Commission (Tax Law, § 445, subd. 4), which pays the taxes collected to the city (Tax Law, § 445, subd. 7). After the State Liquor Authority issued a bulletin detailing the procedure to be followed in incorporating the tax in wholesale and retail prices, this action was commenced. Plaintiffs moved for a preliminary injunction and defendants cross-moved to dismiss the complaint. Special Term granted plaintiffs' motion and denied defendants' cross motion.

In our view, Special Term erred in granting plaintiffs' motion. One of the conditions which plaintiffs must meet in order to establish their entitlement to a preliminary injunction is the showing of irreparable harm without the injunction (Picotte Realty v. Gallery of Homes, 66 A.D.2d 978, 412 N.Y.S.2d 47). Plaintiffs must show that the irreparable injury to be sustained by them is more...