Party Magic Enters., Inc. v City of Long Beach

[*1] Party Magic Enters., Inc. v City of Long Beach 2006 NY Slip Op 51469(U) [12 Misc 3d 1187(A)] Decided on June 30, 2006 Supreme Court, Nassau County Palmieri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2006
Supreme Court, Nassau County

Party Magic Enterprises, Inc., Plaintiff,

against

City of Long Beach, Defendant.



010420/06



Lawrence V. Carra, Esq.

Attorney for Plaintiff

114 Old Country Road

Mineola, NY 11501

Carolyn Cairns Olson

Corporation Counsel, City of Long beach

attorney for Defendant

City Hall

City of Long Beach, NY 11561

Daniel Palmieri, J.

Upon the foregoing papers, and oral argument held before the Court this date, this motion for a preliminary injunction is denied.

This present decision and order memorializes the determination announced from the bench.

This is an application for a preliminary injunction enjoining the City of Long Beach ("City") from enforcing section 14-179(a)(3) of its Code of Ordinances, based on its contention that this ordinance is unconstitutionally vague, and from seizing/impounding plaintiff's mobile food carts as a consequence of its violation of that section. The essential facts are not in dispute, and have been set forth in the papers and in oral argument before the undersigned this date. Accordingly, they will not be repeated here. The motion is denied.

It is well established that in order to obtain a preliminary injunction the movant must demonstrate a probability of success on the merits, irreparable harm absent the granting of the relief, and a balancing of the equities in the movant's favor (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]; Grant Co. v Srogi, 52 NY2d 496 [1981]). The plaintiff has been unable to demonstrate any of these branches to the Court's satisfaction.

With regard to the merits, the Appellate Division has recently reiterated that there is a strong presumption in favor of the constitutionality of local ordinances, just as there is [*2]with state statutes (Korotun v Incorp. Village of Bayville, 26 AD3d 311 [2d Dept. 2006]). The attack on the subject ordinance is that it does not provide sufficient guidance as to how far a cart must be moved to comply with the ordinance. That, however, merely requires a common-sense approach by law enforcement, and the City has required movement of at least a block. This is an interpretation that strikes this Court as not being so "irrational, unreasonable or inconsistent with the ordinance" that it indicates a fatal weakness in the ordinance, or should lead a court to intervene (see Ford v Zoning Board of Appeals of City of Long Beach, 7 AD3d 797 [2d Dept. 2004]). Accordingly, the Court cannot find that the plaintiff will likely succeed on the merits.

As to irreparable harm, it appears to the undersigned that the plaintiff can be made whole, if it succeeds, by monetary damages. Thus, this branch cannot be satisfied (see, Putter v City of New York, 27 AD3d 250 [2006]). With regard to the third prong, and as noted in this Court's ruling from the bench, the equities are essentially equal here the plaintiff surely should be allowed a reasonable opportunity to conduct its business, but the City just as surely has the need and the right to control its own facilities and streets and to enforce its ordinances.

Finally, the seizure and impounding of the carts is covered by Code section 15-209, which states that

"whenever any vehicle shall be found parked or standing in and in violation of any provisions of this chapter or other City Ordinance (emphasis supplied) the vehicle may be removed and conveyed... to the City yard or... other place as the commissioner of police may direct..."

Thus, as a facial matter the seizure and impound of the carts is legal, as the foregoing provision's application to section 14-179(a)(3) by law enforcement has a reasonable basis (Ford v Zoning Board of Appeals of City of Long Beach, supra). Accordingly, the Court finds no additional basis for granting the relief requested based on an impound of the carts.

This shall constitute the Decision and Order of this Court

E N T E R

DATED: June 30, 2006

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO: