State v. Fey

Full title: STATE OF NEW YORK, by LOUIS J. LEFKOWITZ, Attorney-General, Plaintiff, v…

Court: Supreme Court, Special Term, Albany County

Date published: Aug 3, 1976

87 Misc. 2d 987 (N.Y. Sup. Ct. 1976)

386 N.Y.S.2d 549

Opinion

August 3, 1976

Louis J. Lefkowitz, Attorney-General, for plaintiff.

Richard C. Johnson for Linda Fey, defendant.

W. Roger Pratt and Walter G. Pratt for Donald R. Brower and another, defendants.

WILLIAM R. MURRAY, J.

The plaintiff has instituted an action against the named defendants alleging fraudulent, illegal and deceptive practices and acts in the marketing and sale of certain products, pursuant to subdivision 12 of section 63 Exec. of the Executive Law and article 22-A of the General Business Law and seeks to enjoin such alleged practices.

Defendant Fey has moved for an order pursuant to CPLR 3024 (subd [b]) and 603 striking from the complaint the allegations contained therein which are included in causes of action asserted against defendants other than defendant Fey and severing from the action the claims made against defendant Fey and for a further order pursuant to CPLR 3211 (subd [a], par 7) dismissing the complaint on the ground of unconstitutionality of said subdivision 12 of section 63 Exec. of the Executive Law and sections 349 Gen. Bus. and 350 Gen. Bus. of the General Business Law. Defendants Brower and John E. Snyder Sons, Inc., crossmove and join in the motion of defendant Fey for severance.

A reading of the voluminous papers submitted on these applications compels the conclusion that the defendants' contentions cannot be sustained. It is found that the attack on the constitutionality of subdivision 12 of section 63 Exec. of the Executive Law and sections 349 Gen. Bus. and 350 Gen. Bus. of the General Business Law is without merit. Subdivision 12 of section 63 is sufficiently clear and unambiguous and defines the proscribed conduct in language that is able to be understood. Nor is there found to be an unauthorized delegation of legislative authority to the Attorney-General. Unfettered delegation would have to be struck down. Here, the Attorney-General is empowered to enforce the sections under attack within the guidelines stated and no constitutional prohibition is discerned. Other issues raised by defendants have been considered and are found to be without basis. The several motions are denied.