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Hunters for Deer, Inc. v. Town of Smithtown

Supreme Court, Suffolk County

May 21, 2018

Hunters for Deer, Inc., and MICHAEL LEWIS, Plaintiffs,
v.
Town of Smithtown, Defendant.

          KILLORAN LAW, PC Attorneys for Plaintiffs MATTHEW V. JAKUBOWSKI, ESQ. SMITHTOWN TOWN Attorneys for Defendant

          HON. JOSEPH A. SANTORELLI J.S.C.

         The plaintiffs seek an order pursuant to CPLR 3212 granting summary judgment and declaring that the Town of Smithtown's locally enacted law on firearm discharge is illegal in nature. The defendant opposes this application and cross moves for an order granting summary judgment.

         CPLR §3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment (Olan v. Farrell Lines, Inc., 105 A.D.2d 653, 481 N.Y.S.2d 370 (1st Dept., 1984; aff'd 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985); Spearman v. Times Square Stores Corp., 96 A.D.2d 552, 465 N.Y.S.2d 230 (2nd Dept., 1983); Weinstein-Korn-Miller, New York Civil Practice Sec. 3212.09)).

         The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790');">416 N.Y.S.2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498');">165 N.Y.S.2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form... and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp. v Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988] ; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595');">427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340');">435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983]).

         On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776');">313 N.E.2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354');">559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105');">487 N.Y.S.2d 105 [2d Dept 1985], affd, 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282).

         The plaintiffs are a not for profit corporation, Hunters for Deer, Inc., and a licensed New York State hunter, Michael Lewis. They claim that "Township, such as the Town of Smithtown, are pre-empted from legislating within the areas of hunting, discharge of a bow and arrow, discharge of an air gun or, with the exception of the Village of Green Island in Albany County, discharge of a firearm." The plaintiffs claim that Smithtown's local code section 160 which establishes firearm discharge setbacks and related regulations is illegal.

         NY ECL § 11-0931(4) states:

a. No person shall:
(1) discharge a firearm, crossbow or long bow in such a way as will result in the load, bolt, or arrow thereof passing over a public highway or any part thereof;
(2) discharge a firearm within five hundred feet, a long bow within one hundred fifty feet, or a crossbow within two hundred fifty feet from a dwelling house, farm building or farm structure actually occupied or used, school building, school playground, public structure, or occupied factory or church;...
b. The prohibitions contained in subparagraph 2 of paragraph a above shall not apply to:
(1) The owner or lessee of the dwelling house, or members of his immediate family actually residing therein, or a person in his employ, or the guest of the owner or lessee of the dwelling house acting with the consent of said owner or lessee, provided however, that nothing herein shall be deemed to authorize such persons to discharge a firearm within five hundred feet, a long bow within one hundred fifty feet, or a crossbow within two hundred fifty feet of any other dwelling house, or a farm building or ...

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