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Plaintiffs-appellants Gary D. Peake Excavating, Inc. and Gary D. Peake (together, the "Plaintiffs") appeal from a judgment entered in the United States District Court for the Northern District of New York (McAvoy, Ch. J.) granting in part their motion for summary judgment and granting in part the motion for summary judgment of defendant-appellee Town Board of the Town of Hancock. The district court determined that Section 5 of Local Law No. 1 of the Town of Hancock ("Law No. 1" or the "ordinance") violated the Commerce Clause of the United States Constitution by discriminating against out-of-state waste. The district court severed Section 5 from Law No. 1 and determined that the remainder of the ordinance did not violate the Commerce Clause. On appeal, the Plaintiffs contend that severance of Section 5 of Law No. 1 was inappropriate, and that Law No. 1, following the severance of Section 5, violates the Commerce Clause. For the following reasons, we affirm the judgment of the district court.


93 F.3d 68 (1996)

GARY D. PEAKE EXCAVATING INC., a New York Corporation; Gary D. Peake, Plaintiffs-Appellants,


TOWN BOARD OF THE TOWN OF HANCOCK, a Municipal Corporation and Political Subdivision of the State of New York, Defendant-Appellee.

No. 1746, Docket 95-9280.

United States Court of Appeals, Second Circuit.

Argued June 27, 1996.

Decided August 22, 1996.

New York Law School location: File #2470, Box #136