Boreali v. Axelrod

In Boreali v. Axelrod (71 NY2d 1), the Court of Appeals specifically affirmed the decision of Justice Hughes which converted an article 78 proceeding alleging that DOH, the Council and the Commissioner had acted ultra vires in enacting a comprehensive code banning smoking in some public places to a declaratory judgment action. By implication, in affirming the trial court, the Court of Appeals also determined that an action charging the defendants with enacting an ultra vires comprehensive code of conduct sets forth a justiciable claim, stated a cause of action, and was within the subject matter jurisdiction of Supreme Court. Therefore, the plaintiff is awarded summary judgment dismissing the affirmative defenses set forth in the answer, and the defendants' dismissal motion is denied. In Boreali (at 6), the Court of Appeals ruled that the Commissioner, DOH and the Council acted ultra vires when they enacted a "comprehensive code" governing smoking. The Court of Appeals concluded that while the Legislature had given a broad delegation of powers to DOH, the Commissioner and the Council, because of four coalescing circumstances, the defendants exceeded the powers that were delegated to them.