City of New York v. Tokyo Pop

NEW YORK COUNTY
Civil Practice

New York Law Journal

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Justice Martin Schoenfeld

Defendants moved for dismissal in this action commenced under the Nuisance Abatement Law (NAL). The premises operated as a restaurant, and state records showed two liquor licenses. On various dates, an underage auxiliary police officer purchased alcohol at the premises, and New York City sought closure and penalties arguing the incidents constituted public and criminal nuisances under NAL as they were violations of the State Alcoholic Beverage Control (ABC) Law. Defendants requested the court deny the city's motion for a preliminary injunction alleging NAL was preempted by the ABC law as applied to the sale of alcohol. They claimed injunctive relief was punitive, rather than remedial, as intended by NAL. The court noted the focus of NAL was to promote public safety and welfare, finding, as applied here, NAL was a general application law that only incidentally touched on the regulation of alcohol under the ABC law. Thus, contrary to defendants' contention, it ruled NAL was not preempted by the ABC law. The court also found it would be premature to grant defendants' motion without holding a hearing giving both parties a chance to be heard on the city's application for injunctive relief. It denied defendants' motion.

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