Supreme Court, Suffolk County, May 21, 2018

Killoran Law, P.C., Westhampton Beach, for plaintiffs.

Matthew V. Jakubowski, Town Attorney, Smithtown, for defendant.

[*2]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 admissions." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit,{**60 Misc 3d at 261} repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment (Olan v Farrell Lines, 105 AD2d 653 [1st Dept 1984], affd 64 NY2d 1092 [1985]; Spearmon v Times Sq. Stores Corp., 96 AD2d 552 [2d Dept 1983]; Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.09 [2d ed]).

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 NY2d 1065 [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 Corp., 3 NY2d 395 [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" (CPLR 3212 [b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]; Zuckerman v City of New York, 49 NY2d 557 [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 AD2d 1014 [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 Mem. Hosp., 98 AD2d 976 [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 Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 AD2d 595 [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, citing Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439 [1968]; Columbus Trust Co. v Campolo, 110 AD2d 616 [2d Dept 1985], affd 66 NY2d 701 [1985]).

The plaintiffs are a not-for-profit corporation, Hunters for Deer, Inc., and a licensed New York State hunter, Michael Lewis. They claim that "[t]ownship, such as the Town of Smithtown, are pre-empted from legislating within the areas of hunting,{**60 Misc 3d at 262} 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 [*3]firearm." The plaintiffs claim that Smithtown's local code chapter 160 which establishes firearm discharge setbacks and related regulations is illegal.

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 farm structure actually occupied or used, or a school building or playground, public structure, or occupied factory or church."

Town Law § 130 states:

"The town board after a public hearing may enact, amend and repeal ordinances, rules and regulations not inconsistent with law, for the following purposes in addition to such other purposes as may be contemplated by the provisions of this chapter or other laws. In order to accomplish the regulation and control of such purposes, the town board may include in any such ordinance, rule or regulation provision for the issuance and revocation of a permit or permits, for the appointment of any town officers or employees to enforce such ordinance, rule{**60 Misc 3d at 263} or regulation and/or the terms and conditions of any permit issued thereunder, and for the collection of any reasonable uniform fee in connection therewith. The town clerk shall give notice of such hearing by the publication of a notice in at least one newspaper circulating in the town, specifying the time when and the place where such hearing will be held, and in general terms describing the proposed ordinance. Such notice shall be published once at least ten days prior to the day specified for such hearing . . .

"27. Firearms. In the towns of . . . Smithtown . . . prohibiting the discharge of firearms in areas in which such activity may be hazardous to the general public or nearby residents, and providing for the posting of such areas with signs giving notice of such regulations, which ordinances, rules and regulations may be more, but not less, restrictive than any other provision of law. Thirty days prior to the adoption of any ordinance changing the five hundred foot rule, a notice must be sent to the regional supervisor of fish and game of the environmental conservation department, notifying him of such intention." (Emphasis added.)

Smithtown Town Code chapter 160 states:

"§ 160-2. Definitions.

"The following definitions shall govern the interpretation of this chapter unless otherwise expressly defined herein:

"FIREARM

"Includes a weapon which acts by the force of gunpowder or from which a shot is discharged by the force of an explosion, as well as an air rifle, an air gun, a BB gun, a slingshot and a bow and arrow. . . .

"§ 160-3. Purpose.

"The purpose of this chapter is to prohibit any person from discharging a firearm in those areas of the Town of Smithtown in which such activity may be hazardous to the general public or nearby residents.

"§ 160-4. Prohibited areas.

"The discharge of firearms is deemed hazardous to the general public and, therefore, prohibited in all{**60 Misc 3d at 264} areas of the Town of Smithtown except those areas as stipulated under § 160-5, Exceptions.

"§ 160-5. Exceptions.

"A. Firearms may be discharged upon one's own property and upon the property of another with the written consent of the landowner, provided that any such discharge of firearms does not occur within 500 feet from a dwelling, school or occupied structure, or a park, beach, playground or any other place of outdoor recreational or nonrecreational activities; and further provided that any such discharge of firearms does not violate the provisions of the New York State Environmental Conservation Law."

[1, 2] In Matter of Chwick v Mulvey (81 AD3d 161 [2d Dept 2010]), the Court discussed both conflict preemption and field preemption. The Court outlined conflict preemption and stated that

"[u]nder the doctrine of conflict preemption, a local law is preempted by a state law when a 'right or benefit is expressly given . . . by . . . State law which has then been curtailed or taken away by the local law' (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 97 [1987]; see New York State Club Assn. v City of New York, 69 NY2d at 217; Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d at 400; DJL Rest. Corp. v City of New York, 96 NY2d at 95). Put differently, conflict preemption occurs when a local law prohibits what a state law explicitly allows, or when a state law prohibits what a local law explicitly allows (see Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 NY2d 761, 762-763 [1989] [City of New York ordinance that required cabarets to close between the hours of 4:00 a.m. and 8:00 a.m. was preempted, as it conflicted with state law that allowed patrons to remain on the premises consuming alcoholic beverages until 4:30 a.m.]; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327 [1962], affd for reasons stated below 12 NY2d 998 [1963] [local ordinance that provided for a different minimum wage than state law was preempted, as it conflicted with state minimum wage law]). In determining the applicability of conflict preemption, we examine not{**60 Misc 3d at 265} only the language of the local ordinance and the state statute, but also whether the direct consequences of a local ordinance 'render illegal what is specifically allowed by State law' (Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 NY2d at 764, quoting People v De Jesus, 54 NY2d 465, 472 [1981])." (Matter of Chwick v Mulvey, 81 AD3d 161, 167-168 [2010].)

The Court also outlined field preemption and stated that

"[t]urning to the doctrine of field preemption, 'a local law regulating the same subject matter [as a state law] is deemed inconsistent with the State's transcendent interest, whether or not the terms of the local law actually conflict with a State-wide statute' (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d at 377; see Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d at 401; DJL Rest. Corp. v City of New York, 96 NY2d at 95; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d at 97-98; Dougal v County of Suffolk, 102 AD2d at 532-533; Matter of Ames v Smoot, 98 AD2d at 218-219). 'Such [local] laws, were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State's general law and thereby thwart the operation of the State's overriding policy concerns' (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d at 97; see Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d at 377).

"Field preemption applies under any of three different scenarios (see Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99, 105 [1983]). First, an express statement in the state statute explicitly avers that it preempts all local laws on the same subject matter (see DJL Rest. Corp. v City of New York, 96 NY2d at 95). Second, a declaration of state policy evinces the intent of the Legislature to preempt local laws on the same subject matter (see Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350 [1972]). And third, the Legislature's enactment of a comprehensive and detailed regulatory scheme in an area in controversy is deemed to demonstrate an intent to preempt local laws (see New York State Club Assn. v City of New York, 69 NY2d at 217; People v De Jesus, 54 NY2d at 468-469)."{**60 Misc 3d at 266} (Matter of Chwick v Mulvey, 81 AD3d 161, 169-170 [2d Dept 2010].)

The plaintiffs argue that the ECL "vests the Department of Environmental Conservation (DEC) with the authority to promulgate rules and regulations to carry out the purposes of the ECL." Plaintiffs further argue that the "outer boundary of applicable 'home rule authority' can be approximated as where the state 'has demonstrated its intent to preempt an entire field and thereby preclude any further local regulation.' "

Here the state has not preempted the entire field for regulations related to firearm discharge as evinced by Town Law § 130. This section specifically allows the Town of Smithtown, among several other towns, to enact laws related to firearm discharge when "such activity may be hazardous to the general public or nearby residents" and allows for those laws to "be more, but not less, restrictive than any other provision of law" (Town Law § 130 [27]). The Smithtown Town Code specifically states that firearm discharge within the Town is "deemed hazardous to the general public" (Smithtown Town Code § 160-4). The Town does make an exception to the firearm discharge prohibition to allow firearms to be discharged "upon one's own property and upon the property of another with the written consent of the landowner" (id. § 160-5 [A]) and establishes a discharge setback of 500 feet which in certain ways is more restrictive than the ECL but authorized under Town Law § 130. Similarly there is no conflict preemption within the state [*5]statutes and town code provisions since the state laws do not specifically allow anything that the town code prohibits outside of Town Law § 130 specific language allowing the Town of Smithtown to enact firearm discharge laws.

Based upon a review of the motion papers the court concludes that the defendant has made a prima facie showing of its entitlement to judgment as a matter of law that the Town of Smithtown's locally enacted law on firearm discharge is not illegal in nature. The plaintiffs did not rebut that presumption in their opposition or original motion papers. Accordingly, the defendant's cross motion for summary judgment is granted and the complaint is dismissed.

This motion by the plaintiffs for an order awarding them summary judgment is denied in all respects.