Boreali et al. v. Axelrod

A New York state Public Health Council adopted a regulation prohibiting smoking in most indoor areas. The court ruled that the regulation was invalid because the Commission exceeded the scope of its authority and usurped the lawmaking power of the Legislature in violation of the separation of powers doctrine. The court stressed that it was not basing its decision on the harmful effects of tobacco smoke—which were not disputed—but only on the authority of the Commission.


Boreali v. Axelrod, 518 N.Y.S. 2d 440 (N.Y.A.D. 3 Dept. 1987).

  • United States
  • Jul 23, 1987
  • New York State Supreme Court, Appellate Division, Third Department



  • Brooklyn Chamber of Commerce, Inc
  • Dennis Paperman as President of the Brighton Beach Board of Trade
  • Fred Boreali, Boreali's Restaurant, Inc., d/b/a Boreali's
  • Robert Wertz
  • Thomas Bartosiewicz
  • United Restaurant, Hotel, Tavern Association of New York State, Inc.


  • David M. Axelrod, Commissioner of the New York State Department of Health
  • New York State Public Health Council

Legislation Cited

10 New York State Code, Rules, Regulations part 25

New York State Public Health Law section 225

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