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CITY OF NY v. DEZER PROPS.

259 A.D.2d 116 (1999)

697 N.Y.S.2d 41

CITY OF NEW YORK et al., Appellants, v. DEZER PROPERTIES, INC., et al., Respondents.

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

October 28, 1999.

Attorney(s) appearing for the Case

Margaret G. King of counsel (Barry P. Schwartz, Karen Griffin and Karen Selvin on the brief; Michael D. Hess, Corporation Counsel of New York City, attorney), for appellants.

Simon H. Rothkrug of counsel (Rothkrug & Rothkrug, attorneys), for Dezer Entertainment Concepts, respondent.

Herald Price Fahringer of counsel (Erica T. Dubno on the brief; Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, attorneys), for the Coalition for Free Expression, amicus curiae.

Edward S. Rudofsky of counsel (Zane & Rudofsky, attorneys), for Council of Regulated Adult Liquor Licensees, amicus curiae.

NARDELLI, J. P., WILLIAMS and WALLACH, JJ., concur with LERNER, J.; ANDRIAS, J., dissents in part in a separate opinion.

OPINION OF THE COURT

LERNER, J.

This appeal results from one of the recent cases which arose following amendment of the New York City Zoning Resolution in 1995 with regard to adult establishments. At issue here is whether the "60%-40% substantial portion analysis" (hereinafter 60-40 rule) of section 12-10 of the New York City Zoning Resolution (hereinafter ZR § 12-10) should apply to single-use adult eating or drinking establishments and theaters, and...

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