Town of N. Hempsteadv.Inc. Vil. of Westbury

Appellate Division of the Supreme Court of New York, Second DepartmentOct 11, 1994
208 A.D.2d 614 (N.Y. App. Div. 1994)
208 A.D.2d 614618 N.Y.S.2d 226

October 11, 1994

Appeal from the Supreme Court, Nassau County.

Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is

Ordered that the motion is granted; and it is further,

Ordered that the motion by the respondents in Action No. 1, filed June 17, 1994, is withdrawn, without prejudice; and it is further,

Ordered that, upon reargument, the opinion and order of this Court, dated August 17, 1992, is amended, by deleting the first decretal paragraph thereof and substituting therefor the following decretal paragraph: "ORDERED that the order is modified, on the law, by (1) deleting the provision thereof which declared Laws of 1983 (ch 544) unconstitutional and invalid and substituting therefor a provision declaring Laws of 1983 (ch 544) constitutional and valid, and (2) deleting the provision thereof which severed and continued the counterclaims of the Incorporated Village of Westbury and the Incorporated Village of Mineola, and substituting therefor a provision dismissing those counterclaims; as so modified, the order is affirmed insofar as appealed from, without costs and disbursements; and it is further,"

Upon reconsideration of our opinion and order, dated August 17, 1992, we conclude that Town of North Hempstead Code, chapter 46, § 46-14 violates the Commerce Clause of the United States Constitution and is, thus, invalid (see, C A Carbone v. Town of Clarkstown, 511 US ___, 114 S Ct 1677).

In all other respects, the opinion and order of this Court dated August 17, 1992, remains in full force and effect. Bracken, J.P., Sullivan, Lawrence and Ritter, JJ., concur. [As amended by unpublished order entered Nov. 23, 1994.]