From Casetext: Smarter Legal Research

New York State Restaurant Ass'n v. State

Appellate Division of the Supreme Court of New York, First Department
Nov 8, 1984
105 A.D.2d 619 (N.Y. App. Div. 1984)

Opinion

November 8, 1984

Appeal from the Supreme Court, New York County (Stanley Ostrau, J.).


Although suits against the State primarily seeking money damages should be brought in the Court of Claims ( Cass v State of New York, 58 N.Y.2d 460; Schaffer v Evans, 57 N.Y.2d 992), it is clear that a declaratory judgment action in the Supreme Court is an appropriate means to attack the constitutionality of a statute. ( Cass v State of New York, supra; Press v County of Monroe, 50 N.Y.2d 695.) However, in the instant matter, which involves a challenge to chapter 221 of the Laws of 1980, amending subdivision (d) of section 558 of the New York City Charter, the only allegations against the State of New York relate to the fact that the State enacted the legislation at issue. There is no assertion that the State is responsible for the enforcement of this statute or the imposition of any penalties pursuant thereto or that the State has ever attempted to institute enforcement proceedings against plaintiffs. Indeed, chapter 221 expressly authorizes the Board of Health or an administrative tribunal established by the Board of Health to enforce the provisions in question. Consequently, the complaint fails to state a cause of action against defendant State of New York and Special Term should have granted the State's motion to dismiss.

Concur — Sandler, J.P., Sullivan, Silverman and Milonas, JJ.


Summaries of

New York State Restaurant Ass'n v. State

Appellate Division of the Supreme Court of New York, First Department
Nov 8, 1984
105 A.D.2d 619 (N.Y. App. Div. 1984)
Case details for

New York State Restaurant Ass'n v. State

Case Details

Full title:NEW YORK STATE RESTAURANT ASSOCIATION, INC., et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 8, 1984

Citations

105 A.D.2d 619 (N.Y. App. Div. 1984)

Citing Cases

Santiago v. Cuomo

(internal citations omitted) ].) In Tuitt, the court dismissed the claims against the State because the…