INDEX NO.

152723/2014

FILED: NEW YORK COUNTY CLERK 01/15/2015 05:25 PM

NYSCEF DOC. NO. 53

RECEIVED NYSCEF: 01/15/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
---------------------------------------------------------------------X Index # 152723/14
NYC C.L.A.S.H., INC. and RUSSELL WISHTART,
Individually,
Hon. Frank P. Nervo
Plaintiffs,

Motion Sequence: 001

-againstCITY OF NEW YORK, THE NEW YORK CITY

COUNCIL and MELISSA MARK-VIVERITO,
in her official capacity as Speaker of THE NEW YORK
CITY COUNCIL,

AFFIDAVIT IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT PURSUANT TO
CPLR 3212

Defendants.
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STATE OF NEW YORK )
ss.:
COUNTY OF KINGS )
AUDREY SILK, being duly sworn, deposes and says:
1.

I am the chairperson, chief executive officer and founder of Plaintiff, NYC

C.L.A.S.H., INC. (CLASH - New York City Citizens Lobbying Against Smoker
Harassment). As such, I am fully familiar with the facts and circumstances of this case. I submit
this affidavit in support of Plaintiffs Motion for Summary Judgment in this declaratory judgment
action challenging Local Law 152, as enacted by Defendant THE NEW YORK CITY
COUNCIL, which amended the New York City Administrative Code Title 17, Chapter 5
( 17-501 to 17-514).
2.

CLASH is a non-profit smokers rights organization that has been dedicated to

advancing and promoting the interests of smokers and protecting the legal rights of smokers since
2002. Recently, CLASH had also dedicated itself to advancing and promoting the interests of
1

vapers (users of electronic cigarettes E-Cigs) and protecting their legal rights, as reflected on
CLASHs website (nycclash.com), and as demonstrated by CLASHs efforts in opposition to
Local Law 152. A copy of my testimony at a Hearing before the CITY COUNCILs Committee
on Health on December 4, 2013 is attached to the accompanying attorney affirmation as Exhibit
L.
3. Unfortunately, as evidenced by Local Law 152, even though E-Cigs and traditional
Cigarettes are two entirely different things, and vaping (E-Cig use) and smoking are two entirely
different subjects, the Defendant NEW YORK CITY COUNCIL has impermissibly lumped them
into the same local law.
4. CLASH has over 914 members, many of whom are vapers, over 90% of whom are
smokers, and over 60% of whom reside in New York State. Our members who are vapers will be
unable to engage in vaping in public locations within New York City due to the enactment of
Local Law 152. Some of CLASHs members also use E-Cigs to help them quit smoking.
5. CLASH challenges Defendants enactment of Local Law 152 as unconstitutional
because it adds a second subject, (electronic cigarettes hereinafter referred to as E-Cigs or ECig) to Chapter 5, in violation of the One Subject Rule of the New York State Constitution,
Article III, 15, the New York Municipal Home Rule Law, Article 3, 20(3), and the New York
City Charter, ch. 2, 32.
6. Together with our co-Plaintiff, Russell Wishtart, CLASH submits that as demonstrated
in our Verified Complaint, in our Memorandum of Law in Support of Motion for Summary
Judgment, and in the accompanying exhibits, Local Law 152 is unconstitutional because it adds a
second subject, E-Cigs, to Title 17, Chapter 5, in violation of the One Subject Rule of the New
York State Constitution, Article III, 15, the New York Municipal Home Rule Law, Article 3,
2

20(3),andtheNew York City Charter,ch.2, $ 32.

requests
thatPlaintiffs'Motionbe grantedin
WHEREFORE, CLASHrespectfully
be deniedin their entirety.
its entirety,andanysimilarmotionsby Defendants

Sworn to beforeme this

/ Zth dayof January,2015

Nolery Public, State of Ncw York

No.24-t653215
OualfLd In Nmreu County
nE?fs'rtnExplm Au<r.31,