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CWM CHEM. SERVS. v. ROTH

15 A.D.3d 77 (2004)

787 N.Y.S.2d 780

CWM CHEMICAL SERVICES, L.L.C., Appellant-Respondent v. ARTHUR J. ROTH, as Commissioner of New York State Department of Taxation and Finance, et al., Respondents-Appellants.

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

December 30, 2004.

Attorney(s) appearing for the Case

Kirkpatrick & Lockhart, LLP., Boston, Massachusetts (Roger C. Zehntner of the Massachusetts and Illinois bars, admitted pro hac vice, of counsel), and Harris Beach LLP, Hamburg, for appellant-respondent.

Eliot Spitzer, Attorney General, Albany (Denise A. Hartman of counsel), for respondents-appellants.

Pine, J.P., Scudder, Kehoe and Lawton, JJ., concur.

OPINION OF THE COURT

Martoche, J.

Plaintiff commenced this action seeking, inter alia, a declaration that section 27-0923 of the New York Environmental Conservation Law (ECL) violates the "dormant" Commerce Clause of the United States Constitution (Commerce Clause) (US Const, art I, § 8 [3]) and thereafter moved for summary judgment. Supreme Court granted plaintiff's motion in part, declaring section 27-0923 (3) (c) is invalid, unenforceable and facially...

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