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PEOPLE v. PYMM

151 A.D.2d 133 (1989)

The People of the State of New York, Appellant, v. William Pymm, Edward Pymm, Jr., Pymm Thermometer Corporation and Pak Glass Machinery Corporation, Respondents

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

October 23, 1989

Attorney(s) appearing for the Case

Elizabeth Holtzman, District Attorney (Barbara D. Underwood and Shulamit Rosenblum of counsel), and Robert Abrams, Attorney-General (Lawrence S. Kahn and Nancy Stearns of counsel), for appellant. (One brief filed.)

Albert J. Brackley and Lewis D. Cohen for respondents. (One brief filed.)

Berle, Kass & Case, (Michael B. Gerrard and Anne C. Weisberg of counsel), for New York Committee for Occupational Safety and Health, amicus curiae.

Bredhoff & Kaiser (George H. Cohen, Robert M. Weinberg and Virginia A. Seitz of counsel), and Laurence Gold for American Federation of Labor and Congress of Industrial Organizations, amicus curiae. (One brief filed.)

MANGANO, J. P., BRACKEN and BROWN, JJ., concur.

HARWOOD, J.

On this appeal the primary issue we are called upon to determine is whether the Occupational Safety and Health Act of 1970 (hereinafter OSHA) (29 USC § 651 et seq.) preempts the State, in the absence of approval from OSHA officials, from prosecuting the defendants for conduct which is regulated by OSHA. We conclude that it does not and therefore reverse the order setting aside the jury...

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