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Kevin Gray-East Coast v. Village of Nyack

Appellate Division of the Supreme Court of New York, Third Department
Mar 7, 1991
171 A.D.2d 924 (N.Y. App. Div. 1991)

Opinion

March 7, 1991

Appeal from the Supreme Court, Rockland County (Weiner, J.).


Plaintiff operates a repair business located in the Village of Nyack, Rockland County, known as East Coast Auto Body. At the time plaintiff commenced operations, there was a sign on the roof of the building where the business was located that read "Car Service Center". The sign existed as a nonconforming sign under defendant's local Village Code and when plaintiff altered the sign to read "East Coast Auto Body" with the company logo, defendant's Building Inspector filed an information alleging that plaintiff violated a section of the Village Code that prohibited altering the message on a nonconforming sign (see, Village of Nyack Code § 59-25 [N] [1]). While the matter was pending, plaintiff commenced the instant action pursuant to 42 U.S.C. § 1983 challenging the constitutionality of defendant's application of the Village Code to plaintiff and seeking, inter alia, a judgment permanently enjoining defendant from interfering with plaintiff's display of the sign. Defendant answered and moved to dismiss the complaint for failing to state a cause of action. Supreme Court granted the motion and this appeal followed.

We reverse. The parties do not dispute that the sign itself constitutes a lawful nonconforming sign, the use of which was rightfully conveyed to plaintiff when the business was established (see, Matter of Putnam Armonk v Town of Southeast, 52 A.D.2d 10, 14). At issue is defendant's prohibition of any change to the nonconforming sign's message. The local law at issue reads, specifically, "[a] nonconforming sign may not be enlarged and the message may not be altered" (Village of Nyack Code § 59-25 [N] [1] [emphasis supplied]).

In our view plaintiff has sufficiently alleged a prima facie case that the restriction placed on the sign by defendant's zoning ordinance violates his 1st Amendment right of free speech (see, Zoepy Marie, Inc. v Town of Greenburgh, 103 A.D.2d 776, 777). Plaintiff has alleged that, as applied to him, the ordinance impermissibly prohibits the alteration of the sign based solely on its content (see, People v Mobil Oil Corp., 48 N.Y.2d 192, 200-202). No other alteration is at issue here as plaintiff has simply changed the name on the sign to reflect the current owner of the business. Generally, absent a showing that the predominant purpose of the ordinance is not to control the content of the message (see, e.g., Town of Islip v Caviglia, 73 N.Y.2d 544, 552), such truthful commercial speech may not be prohibited on the basis of its content alone (see, People v Mobil Oil Corp., supra; Zoepy Marie, Inc. v Town of Greenburgh, supra; Town of Smithtown v Commack Gas Washateria, 108 Misc.2d 887, 889). Accordingly, plaintiff's complaint was improperly dismissed.

Order reversed, on the law, with costs, and motion denied. Mahoney, P.J., Casey, Weiss, Crew III, and Harvey, JJ., concur.


Summaries of

Kevin Gray-East Coast v. Village of Nyack

Appellate Division of the Supreme Court of New York, Third Department
Mar 7, 1991
171 A.D.2d 924 (N.Y. App. Div. 1991)
Case details for

Kevin Gray-East Coast v. Village of Nyack

Case Details

Full title:KEVIN GRAY-EAST COAST AUTO BODY, Appellant, v. VILLAGE OF NYACK, Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 7, 1991

Citations

171 A.D.2d 924 (N.Y. App. Div. 1991)
566 N.Y.S.2d 795