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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X Index # 152723/14 NYC C.L.A.S.H., INC. and RUSSELL WISHTART, Individually, Hon. Frank P. Nervo

Plaintiffs, Motion Sequence: 001

-against- ATTORNEY AFFIRMATION IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT CITY OF NEW YORK, THE NEW YORK CITY PURSUANT TO CPLR § 3212 COUNCIL and MELISSA MARK-VIVERITO, in her official capacity as Speaker of THE NEW YORK CITY COUNCIL,

Defendants. ---------------------------------------------------------------------X EDWARD A. PALTZIK, an attorney admitted to practice in New York State, deposes and says under penalty of perjury:

1. I am a Partner in Joshpe Law Group LLP, attorneys for Plaintiffs NYC

C.L.A.S.H., INC. (“CLASH”) and RUSSELL WISHTART (“Wishtart”). As such, I am fully

familiar with the facts and circumstances of this case.

2. I submit this Affirmation in support of Plaintiffs’ Motion for an Order pursuant to

CPLR § 3212, granting summary judgment in favor of the Plaintiffs as to all of the relief

requested in this declaratory judgment action, to wit:

(a) A declaratory judgment that Local Law 152, Titled: “A Local Law to amend the

administrative code of the City of New York, in relation to the regulation of electronic

cigarettes” (Local Law 152), which amends New York City Administrative Code (“N.Y.C.

Admin. Code”) Title 17, Chapter 5 §§ 17-501 to 17-514 (“Title 17 Chapter 5”), is

unconstitutional, ultra vires, and null and void, in that Local Law 152 adds a second subject

FILED: NEW YORK COUNTY CLERK 01/15/2015 05:25 PM INDEX NO. 152723/2014

NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 01/15/2015

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(electronic cigarettes) to Title 17 Chapter 5 and therefore violates the “One Subject Rule”

contained in the New York State Constitution, Article III, § 15, the New York Municipal Home

Rule Law, Article 3, § 20(3), and the New York City Charter, ch. 2, § 32; and

(b) A declaratory judgment that Local Law 152 may not be implemented and is

unenforceable on the basis that Local Law 152 is unconstitutional, ultra vires, and null and void,

in that Local Law 152 violates the “One Subject Rule”; and

(c) A judgment permanently enjoining and restraining Defendants from implementing

and enforcing Local Law 152.

3. As set forth more fully in Plaintiffs’ accompanying Memorandum of Law and the

exhibits attached to this Affirmation, Defendants exceeded their legislative powers by adding a

second subject, (electronic cigarettes) to Title 17 Chapter 5, in violation of the “One Subject

Rule” of the New York State Constitution, Article III, § 15, the New York Municipal Home Rule

Law, Article 3, § 20(3), and the New York City Charter, ch. 2, § 32.

4. The exhibits attached hereto are as follows:

5. Exhibit “A” – Pleadings: Plaintiff’s’ Summons and Complaint and Defendants’

Answer.

6. Exhibit “B” – October 30, 2014 Stipulation.

7. Exhibit “C” – A copy of the original CIAA (Clean Indoor Air Act), effective April 6, 1988 (New York City Administrative Code Title 17, Chapter 5 [§§ 17-501 to 17-514]).

8. Exhibit “D” - A copy of Local Law 5, the SFAA (Smoke-Free Air Act of 1995,

effective April 10, 1995), amending Title 17, Chapter 5, obtained from web.archive.org.

9. Exhibit “E” - A copy of the New York City Department of Health and Mental

Hygiene Bulletin entitled, “Answers to Common Objections to Smoke-Free Workplace Laws.”

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10. Exhibit “F” - A copy of quoted testimony excerpted from the New York City

Council Committee on Health’s October 10, 2002 Hearing.

11. Exhibit “G” – A copy of quoted testimony from the New York City Council

Committee on Health’s December 13, 2002 Hearing.

12. Exhibit “H” – A copy of the Local Law 47 Legislation Details obtained from the

New York City Council’s website, amending Title 17, Chapter 5.

13. Exhibit “I” – A copy of Title 17, Chapter 5 as amended by Local Law 47.

13. Exhibit “J” – A copy of quoted excerpts from CLASH v. City of New York, et al.,

03 Civ. 5463, Decision & Order dated April 7, 2004.

14. Exhibit “K” - A copy of the Local Law 11 Legislation Details obtained from the

New York City Council’s website, amending Title 17, Chapter 5.

15. Exhibit “L” – A copy of Audrey Silk’s testimony at the New York City Council

Committee on Health’s December 4, 2013 Hearing.

16. Exhibit “M” - A copy of additional quoted testimony from the New York City

Council Committee on Health’s December 4, 2013 Hearing.

17. Exhibit “N” – A copy of quoted testimony from the New York City Council

Committee on Health’s May 2, 2013 Hearing.

18. Exhibit “O” – A copy of Queens Chronicle Article, City council levies wide-

ranging e-cigarette ban, Queens Chronicle, December 26, 2013, available at:

http://www.qchron.com/editions/queenswide/city-council-levies-wide-ranging-e-cigarette-

ban/article_1f66c92f-778c-5923-81ea-906f24a9000f.html.

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19. Exhibit “P” – A copy of the Gothamist Article, E-Cigs Banned in NYC Public

Spaces, The Gothamist, December 19, 2013, available at: gothamist.com/2013/12/19/e-

cigs_likely_to_be_banned_in_publi.php).

20. Exhibit “Q” - A copy of the New York City Council Committee on Health’s

December 4, 2013 Report comprising of its analysis of the E-Cig Bill that became Local Law

152.

21. Exhibit “R” - A copy of the New York City Council Committee on Health’s

December 18, 2013 Report comprising of its analysis of the E-Cig Bill that became Local Law

152.

22. Exhibit “S” - A copy of the Local Law 152 Legislation Details obtained from the

New York City Council’s website, amending Title 17, Chapter 5.

WHEREFORE, Plaintiffs respectfully request that their motion for summary

judgment be granted in its entirety, and any similar motions by Defendants be denied in their

entirety.

Dated: New York, NY January 13, 2015 __________________________________ EDWARD PALTZIK