130 A.D.2d 107 (1987)

Fred Boreali et al., Respondents, v. David M. Axelrod, as Commissioner of The New York State Department of Health, et al., Appellants

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 23, 1987

Attorney(s) appearing for the Case

Robert Abrams, Attorney-General (Peter H. Schiff, Nancy A. Spiegel and Denise A. Hartman of counsel), for appellants.

Hinman, Straub, Pigors & Manning, P. C. (Bartley J. Costello, III, Paul M. Collins and Eileen M. Kelley of counsel), for respondents.

John F. Banzhaf, III, for Action on Smoking and Health (ASH), amicus curiae.

Peter L. Zimroth, Corporation Counsel (Leonard Koerner and Francis F. Caputo of counsel), for City of New York, amicus curiae.

Robert M. Kaufman (Beatrice S. Frank, Robert Eisenstadt, Barry Ensminger, Glenn E. Jenkins and Ellen B. Simon of counsel), for Association of the Bar of the City of New York and others, amici curiae.

Daniel S. Ross for American Lung Association of New York State, Inc., and others, amici curiae.

John J. Cavanaugh, Jr., on behalf of himself and others, amici curiae.

Daniel L. Feldman, amicus curiae.

Finley, Kumble, Wagner, Heine, Underberg, Manley Myerson & Casey (William L. Kandel and Charles H. Kaplan of counsel), for New York Chamber of Commerce and Industry, Inc., amicus curiae.

Charles J. Engel, Jr., for the Pyramid Companies, amicus curiae.

YESAWICH, JR., and HARVEY, JJ., concur with WEISS, J.; MAHONEY, P. J., and LEVINE, J., dissent and vote to reverse in an opinion by LEVINE, J.


It is more simple to state what this case is not about. It is not about the harmful effects of tobacco smoke upon the members of society who are nonsmokers. Rather, the issue is whether a subsidiary agency, in this case an advisory council to defendant Commissioner of Health, has the power to enact a regulation having the force of law which sets forth the...

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