Town of Clarkstown v. C & A Carbone, Inc.

208 A.D.2d 612, 617 N.Y.S.2d 482, 1994 N.Y. App. Div. LEXIS 9569

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 1994
• Status: Published

Opinion

In an action, inter alia, to permanently enjoin violations of Local Law, 1990, No. 9 of the Town of Clarkstown, the defendants C & A Carbone, Inc., Recycling Products of Rockland, Inc., C&C Realty, Inc., and Angelo Carbone appeal (1) from an order of the Supreme Court, Rockland County (Stolarik, J.), dated July 15, 1991, which granted the plaintiff’s motion for summary judgment, (2) from a judgment of the same court dated July 31, 1991, which declared that Local Law, 1990, No. 9 of the Town of Clarkstown is valid and that the appellants are in violation thereof, permanently enjoined the appellants from operating their business at their premises located at 183 Western Highway, West Nyack, in Rockland County, in violation of that local law, and directed that the appellants immediately cease all operations in violation of that local law and Town of Clarkstown Code chapter 106, and (3) as limited by their brief, from so much of an order of the same court, dated September 16, 1991, as, upon reargument and renewal, adhered to the original determination. By opinion and order dated August 31, 1992, this Court dismissed the appeal from the order dated July 15, 1991, on the ground that a final judgment had been entered, dismissed the appeal from the judgment, on the ground that it had been superseded by the order dated September 16, 1991, made upon reargument, and affirmed the order dated September 16, 1991, insofar as appealed from (see, Town of Clarkstown v C & A Carbone, 182 AD2d 213). By opinion and order, dated May 16, 1994, the Supreme Court of the United States reversed the opinion and order of this Court, and remitted the matter to this Court for further proceedings not inconsistent with its decision (see, C & A Carbone v Town of Clarkstown, 511 US —, 114 S Ct 1677).

Ordered that upon remittitur, the appeal from the order dated July 15, 1991, is dismissed; and it is further,

Ordered that the appeal from the judgment dated July 31, 1991, is dismissed, as the judgment was superseded by the order dated September 16, 1991, made upon reargument; and it is further,

Ordered that the order dated September 16, 1991, is reversed insofar as appealed from on the law, the judgment dated July 31, 1991, and the order dated July 15 1991, are vacated, the plaintiff’s motion for summary judgment is denied, upon searching the record, the appellants are granted summary judgment, and it is declared that Local Law, 1990, No. 9 of the Town of Clarkstown violates the Commerce Clause of the United States Constitution and is thus invalid; and it is further,

Ordered that the appellants are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment and the subsequent order made upon reargument (CPLR 5501 [a] [1]).

Local Law 1990, No. 9 of the Town of Clarkstown violates the Commerce Clause of the United States Constitution and is thus invalid (see, C & A Carbone v Town of Clarkstown, supra). Thompson, J. P., Bracken, Sullivan and Miller, JJ., concur.