Wilcox v. City of Utica
| Decision Date | 04 October 1974 |
| Citation | 364 N.Y.S.2d 665,80 Misc.2d 998 |
| Parties | Robert WILCOX, Plaintiff, v. CITY OF UTICA, Defendant. |
| Court | New York Supreme Court |
Plaintiff moves by Order to Show Cause, returnable before Special Term, September 5, 1974, for an Order declaring Section 16--13 of the Utica City Charter null and void and unenforceable and restraining enforcement of such Section of the Charter until further Order of this Court.
A Summons and Complaint was served by plaintiff in an action for declaratory judgment and issue was joined by service of an Answer by defendant. After due notice to both parties, they agreed that this motion be considered as one for summary judgment under CPLR 3212 on the pleadings and records submitted, including exhibits.
The facts disclose that the defendant, City of Utica, through its Corporation Counsel's Office served a Notice in writing on J. M. Fields Department Store advising that a sale of goods and merchandise on Labor Day is prohibited by the aforesaid Section 16--13 of the Utica City Charter and that the store could not be open on that day, and if it were, official action would be taken to close it, under the provisions of this Section of the City Charter.
J. M. Fields Department Store is located in a large shopping center known as the Riverside Mall in the City of Utica, New York. The plaintiff is the manager of the Riverside Mall and has a financial and pecuniary interest in J. M. Fields Department Stores and other stores who are tenants in the Mall, since he receives compensation based on total sales made by such retail stores and, therefore, has status to bring this action.
It is claimed that curtailment of the sales would result in the closing of these stores by virtue of this provision of the City Charter, and thereby damage the plaintiff and that this would be a continuing condition requiring the determination of the validity of the Section of the City Charter 16--13 and if found to be invalid, curtailment of its future use is sought in this motion for Summary Judgment.
The Section of the Charter in question, 16--13, copy of which is part of the pleadings as an exhibit, is entitled 'Holiday sales; restricted, regulated'. It reads as follows:
'All manner of public selling or offering for sale of any property upon Memorial Day, Independence Day, Labor Day and Thanksgiving Day is prohibited, except as follows * * *'.
The exceptions relate to the sale of food articles, meals, catering, miscellaneous articles such as tobacco, bread, milk, eggs, newspapers, magazines, etc., groceries, delicatessens, bakeries, with hours limited between 4:00 P.M. and 7:30 P.M., alcoholic beverage sales to be conducted in accordance with the existing State laws, and further provides that the provisions of Section 2142 and Section 2149 of the Penal Law of New York State shall apply in their entirety to any party violating this Local Law (section).
This Section of the Utica City Charter, 16--13, depends for its legal existence on Section 86 of the General Municipal Law of the State of New York entitled 'Regulation of Commercial and Business Activities on Memorial Day and Independence Day.' This statute provides .
From a reading of the Charter Section 16--13 and Section 86 of the General...
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