Town of Babylon v. Conte
| Decision Date | 03 December 1969 |
| Citation | 61 Misc.2d 626,305 N.Y.S.2d 553 |
| Parties | TOWN OF BABYLON et al., Plaintiff v. Peter CONTE et al., Defendants. |
| Court | New York Supreme Court |
The motion is for a preliminary injunction enjoining and restraining the defendants from maintaining, operating or permitting the operation of a place of public assembly as a cabaret, bar or lounge, dancehall or discotheque establishment without having obtained a license therefor, in accordance with a certain ordinance known as Chapter VII, section 705 of the Unified Code of Ordinances of the Town of Babylon. Defendants, it appears, previously held such a license. But it was suspended by the town building inspector and has not been renewed since defendants have permitted at their establishment the activity known as 'topless dancing' and said ordinance specifically authorizes the building inspector to revoke the license of any person permitting such activity.
Defendants have not denied the acts alleged in the complaint. No answer has yet been interposed. But by way of cross-motion, they seek to vacate the temporary restraining order provided for in the order to show cause by which the motion was brought, on the ground it is violative of their constitutional rights.
To deny the motion and grant the cross-motion would, in effect, deny the presumption of constitutionality ordinarily afforded a legislative enactment (McKinney's Cons.Laws of N.Y. Book 1, Statutes, § 150). But the presumption of constitutionality attaches to every statute and ordinance (Matter of Fay, 291 N.Y. 198, 52 N.E.2d 97; Jahn v. Berzon,255 App.Div. 1023, 8 N.Y.S.2d 640). Indeed, that presumption is so strong that our courts have imposed upon those who seek to attack the validity of a legislative enactment the burden of demonstrating their invalidity beyond a reasonable doubt and will strike down a legislative enactment only as a last unavoidable result (Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539; Atkins v. Hertz Driveurself Stations, 237 App.Div. 31, 260 N.Y.S. 783). Moreover, this presumption continues until such time that the statute or ordinance is adjudicated invalid by a court of competent jurisdiction (Mellman v. Metropolitan Jockey Club, 195 Misc. 121, 89 N.Y.S.2d 64). The appropriate procedure to adjudicate the construction or the validity of a statute is an action for declaratory judgment (Bunis v. Conway, 17 A.D.2d...
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Voccola v. Shilling
...procedure to adjudicate the constitutional validity of a statute and the procedures pursuant thereto (Town of Babylon v. Conte, 61 Misc.2d 626, 627--628, 305 N.Y.S.2d 553, 554--555). Jurisdiction over declaratory judgment actions has been vested exclusively in the Supreme Court (CPLR 3001; ......
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...one of limited jurisdiction, has authority to grant relief of a declaratory judgment. CPLR § 3001; Town of Babylon v. Conte, 61 Misc.2d 626, 305 N.Y.S.2d 553 (Sup.Ct., Suff.Co., 1969). Nevertheless, because defendants' motions are made in the context of a criminal proceeding and as a defens......
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Robin v. Village of Hempstead
...attaches not only to statutes but to ordinances as well (Jahn v. Berzon, 255 App.Div. 1023, 8 N.Y.S.2d 640; Town of Babylon v. Conte, 61 Misc.2d 626, 305 N.Y.S.2d 553). The presumption of the validity of legislative enactments is 'so strong as to demand of those who attack them a demonstrat......