Summary
In Kaswan v Aponte (160 AD2d 324 [1st Dept 1990], affg 142 Misc 2d 298 [Sup Ct, NY County 1989]), this Court upheld the right conferred by section 35, which supersedes and proscribes any local law restricting the right of disabled veterans to engage in hawking or peddling — specifically, in Kaswan, a local regulation intended to abate congestion.
Summary of this case from Rossi v. N.Y. Dep't of Parks & RecreationOpinion
April 10, 1990
Appeal from the Supreme Court, New York County (Edward H. Lehner, J.).
Procedurally, it was not improper for the court, on its own, in this declaratory judgment action, to convert respondent's motion to dismiss to one for summary judgment, pursuant to CPLR 3211 (c), since the case presented no issues of fact but only issues of law in involving an issue of statutory construction, fully appreciated and argued by both sides. (Four Seasons Hotels v Vinnik, 127 A.D.2d 310, 320; Mihlovan v. Grozavu, 72 N.Y.2d 506, 508.)
On the merits, we reject respondent's argument that Department of Consumer Affairs regulation 11, prohibiting the peddling of goods in certain areas to avoid congestion in those areas, constitutes a special condition which would warrant that the local regulation be given full force and effect in spite of its conflict with State law. (See, Robin v. Incorporated Vil. of Hempstead, 30 N.Y.2d 347, 351.) General Business Law § 35 provides that "no such * * * ordinance or regulation shall prevent or in any manner interfere with the hawking or peddling * * * in any street * * * of a municipal corporation, by any honorably discharged member of the armed forces of the United States who is physically disabled". This State law expressly provides that it shall supersede any local regulation to afford a benefit to a special class and should be construed as such. In any event, the purpose of the regulation, to guard against congestion, will not be defeated in light of the comparatively small number of licensed vendors involved.
Concur — Sullivan, J.P., Rosenberger, Asch, Ellerin and Smith, JJ.