Playtogs Factory Outlet, Inc. v. Orange County

• Decision Date: 17 February 1976
• Citation: 51 A.D.2d 772,379 N.Y.S.2d 859
• Parties: PLAYTOGS FACTORY OUTLET, INC., et al., Appellants, v. The COUNTY OF ORANGE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 859

379 N.Y.S.2d 859

51 A.D.2d 772

PLAYTOGS FACTORY OUTLET, INC., et al., Appellants, v. The COUNTY OF ORANGE et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Feb. 17, 1976.

Martin Rosenblum and Michael M. Platzman, Middletown, for appellants.

Peter G. Striphas, County Atty., Goshen (Gary M. Sobo, Middletown, of counsel), for respondents County of Orange and others.

Louis J. Lefkowitz, Atty. Gen., New York City (David R. Spiegel and Samuel A. Hirshowitz, New York City, of counsel), for respondents Rockefeller and Lefkowitz.

Before HOPKINS, Acting P.J., and SHAPIRO, LATHAM, MARGETT and CHRIST, JJ.

MEMORANDUM BY THE COURT.

In an action Inter alia to declare sections 2 through 10 of the General Business Law unconstitutional, plaintiffs appeal from (1) an order of the Supreme Court, Orange County, dated July 19, 1974, which (a) granted the separate motions of defendants Nelson Rockefeller, as Governor, and Louis J. Lefkowitz, as Attorney-General, for summary judgment and of defendants the County of Orange and Abraham J. Weissman, as District Attorney, to dismiss the complaint, and (b) dismissed the action as against all defendants, with prejudice, and (2) so much of a further order of the same court, dated August 30, 1974, as, upon reargument, adhered to its original determination.

Appeal from order dated July 19, 1974 dismissed as academic. That order was superseded by the order of August 30, 1974.

Order dated August 30, 1974 reversed insofar as appealed from, and motions denied.

Plaintiffs are awarded one bill of $50 costs and disbursements, to cover both appeals, jointly against respondents appearing separately and filing separate briefs.

The complaint contains several causes of action; the essential thrust of the complaint, however, is directed against the Sunday closing laws on the grounds that they are facially unconstitutional and that, as enforced, plaintiffs have been unconstitutionally discriminat against. We think that the pleadings and the affidavits submitted on the motions state a real controversy, involving substantial legal interests which may be placed in jeopardy by the threatened actions of the defendants. Thus, the remedy of a declaratory judgment is proper (see De Veau v. Braisted, 5 A.D.2d 603, 606--607, 174 N.Y.S.2d 596, 599--600, affd. 5 N.Y.2d 236, 187 N.Y.S.2d 793, 157 N.E.2d 165, affd. 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109).

In view of the 1972 decision of the Court of Appeals in People v. L. A. Witherill, Inc. (29 N.Y.2d 446, 449, 328 N.Y.S.2d 668, 670, 278 N.E.2d 905, 906), holding that the challenged statutes 'remain constitutional exercises of legislative power', we are not inclined to declare them facially unconstitutional. Nevertheless, plaintiffs, in their affidavits in opposition to the motions, submitted evidence that defendants, in enforcing the laws exhibited a 'pattern of discrimination consciously practiced' (People v. Friedman, 302 N.Y. 75, 81, 96 N.E.2d 184, 186; cf. People v. Acme Markets, 37 N.Y.2d 326, 372 N.Y.S.2d 590, 334 N.E.2d 555). For this reason, issues of fact exist which require a trial.

HOPKINS, Acting P.J., and LATHAM, MARGETT and CHRIST, JJ., concur.

SHAPIRO, J., concurs as to the dismissal of the order dated July 19, 1974 and as to the reversal of the order dated August 20, 1974 and the concomitant denial of the motions, but otherwise dissents and votes to grant summary judgment to plaintiffs to the extent of (1) enjoining the Orange County defendants, including the District Attorney of the County of Orange, from enforcing the Sunday closing laws against plaintiffs and (2) declaring section 9 of the General Business Law unconstitutional, with the following memorandum:

Plaintiffs brought this action Inter alia to permanently enjoin defendants from prosecuting them for violating sections 2 through 10 of the General Business Law, the Sunday closing laws, and for judgment declaring said laws unconstitutional. Special Term granted the motion of defendants Rockefeller and Lefkowitz for summary judgment an the motion of defendants County of Orange and its District Attorney to dismiss the complaint, and dismissed the complaint

as against all defendants, with prejudice. Plaintiffs' motion for reargument was granted and, upon reargument, Special Term adhered to its original determination. I agree with the majority that the motions for summary judgment and to dismiss the complaint were improperly granted, but I cannot agree that there is an issue of fact in this case which requires a trial. As I read the record, the undisputed and indisputable facts require that summary judgment be gratned to plaintiffs declaring the law in question unconstitutional.

THE ISSUES

In my view, the determinative issues in this case are (1) whether what Judge Wachtler, in his concurring opinion in People v. Acme Markets, 37 N.Y.2d 326, 333, 372 N.Y.S.2d 590, 596, 334 N.E.2d 555, 559, characterizes as the 'polyglot of exceptions' contained in section 9 of the General Business Law, violates plaintiffs' right to equal protection of the laws because the classifications there established have no rational relationship to the purpose of the law, ¹ and (2) whether the pattern of enforcement, and threatened enforcement, of the Sunday closing laws followed by the Orange County prosecutor against plaintiffs is so discriminatory as to constitute a denial of their right to the equal protection of the laws.

There is also a procedural issue as to whether these questions are properly raised in an action for a declaratory judgment and injunctive relief.

THE PRIOR PROCEEDINGS

A. THE COMPLAINT.

The lengthy, and by no means clearly drawn, complaint consists of six causes of action. The first alleges that plaintiffs were charged by some of the defendants with having violated the provisions of the General Business Law barring Sunday sales, that some of the plaintiffs were convicted of such violation in April, 1972 and that, thereafter, plaintiffs were threatened by those defendants that, if they again opened for business on any Sunday, and if a complaint were filed against them, plaintiffs would be prosecuted for those later violations and subjected to 'the imposition of harsher penalties', including confiscation, under section 12 of the General Business Law, of all plaintiffs' goods, wares and merchandise offered for sale in violation of the law. The first cause of action then alleges that the statute involved is unconstitutional under the First and Fourteenth Amendments of the United States Constitution as a law interfering with the freedom of religion. ² There are also allegations in this cause of action that most of the exceptions authorized by the statute, allowing for the sales of food and liquor and for certain other permitted Sunday activities, were carried on closer to churches and homes than were the stores of plaintiffs and were therefore 'more violative of the statutory intent.'

The second cause of action alleges that defendants' interference with plaintiffs' rights to do business violates the Fourteenth Amendment ban on the taking of property without due process of law.

The third cause of action sets forth the grounds for plaintiffs' claim that defendants' method of enforcement resulted in intentional discrimination against plaintiffs as large businesses. This cause of action alleges that a private individual complainant, a chiropractor, who opposes sales of merchandise on Sunday by 'divers large, substantial and active businesses', and who is characterized as 'the self-appointed guardian of the health and morals of the citizenry of Orange County', has 'enunciated and publicly proclaimed' that Sunday sales by small establishments were exempt from his charges of Sunday violations and that he had made complaints only against large businesses, not small ones. The third cause of action also alleges that defendants were aware of the complainant chiropractor's plan and policy but, nevertheless, continued to enforce the Sunday closing laws on the basis of individual complaints made by him. The third cause of 'That the said defendants and each of them have threatened that if the said plaintiffs thereafter opened their respective premises for business on any Sunday and offered merchandise for sale on such date, and if there was filed with any of the governmental bodies or officers having jurisdiction thereof a complaint against the plaintiffs or any one of them with respect to such acts, that the said plaintiffs would be further prosecuted for an alleged violation of such statutes, and the imposition of harsher penalties.'

action also incorporates, by reference, all of the allegations of the first cause of action. In paragraph 44 thereof, plaintiffs allege:

This allegation is undenied by defendants the County of Orange and its District Attorney in their answer. Also admitted by said defendants is paragraph 45 of the complaint (also incorporated in the third cause of action):

'That the said defendants and each of them have threatened that if the said plaintiffs thereafter opened their respective premises for business on any Sunday and offered merchandise for sale on such date, and if there was filed with any of the governmental bodies or officers having jurisdiction thereof a complaint against the plaintiffs or any one of them with respect to such acts, that the said plaintiffs would be further prosecuted for an alleged violation of such statutes, And in addition to the penalties to be imposed upon the said plaintiffs and its employees that the goods, wares and merchandise of the said plaintiffs would be confiscated.' (Emphasis supplied.)

In their brief to this court (p. 2) defendants the County of Orange and the District Attorney of Orange County admit that 'each complaint filed by a citizen was acted upon, but there was no independent effort of the law enforcement officials of the County to initiate complaints or informations.'

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