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Plaintiff-appellant Cross Sound Ferry Services, Inc. ("Cross Sound") appeals from a summary judgment entered in the United States District Court for the Eastern District of New York (Feuerstein, J.) in favor of defendant Town of East Hampton ("East Hampton" or the "Town"). Cross Sound and plaintiffs Town of Southold and Town of Shelter Island (collectively, "Town Plaintiffs") brought this action seeking a declaration that Local Law No. 40 of 1997 of the Town of East Hampton (the "Ferry Law"), which requires ferry operators to obtain a special permit before using a ferry terminal within the Town and restricts the types of ferries that may use local terminals, is unconstitutional. Plaintiffs alleged in their Complaint that the Ferry Law violates the dormant Commerce Clause and Equal Protection Clause of the United States Constitution, as well as the Equal Protection Clause of the New York State Constitution. Plaintiffs also claimed that the law constitutes an improper and abusive exercise of the Town's police power under the laws and Constitution of New York and sought to enjoin its enforcement.

Following joinder of issue, the Town moved for summary judgment dismissing the Complaint pursuant to Federal Rule of Civil Procedure 56. Plaintiffs cross-moved for summary judgment on each cause of action in the Complaint except for their police power claim. Plaintiffs further moved to strike the Town's Rule 56.1 Statement, contending that it was based on inadmissible evidence. The District Court granted the Town's motion and denied plaintiffs' cross motion and their motion to strike the Rule 56.1 Statement. For the reasons that follow, we vacate the judgment of the District Court insofar as it determined that the Ferry Law did not violate the dormant Commerce Clause and remand for further proceedings consistent with this Opinion. We affirm the judgment in all other respects.


477 F.3d 38 (2007)

TOWN OF SOUTHOLD, Town of Shelter Island, Plaintiffs, Cross Sound Ferry Services, Inc., Plaintiff-Appellant, v. TOWN OF EAST HAMPTON, Defendant-Appellee.

Docket No. 06-0335-CV.

United States Court of Appeals, Second Circuit.

Argued: September 15, 2006.Decided: February 8, 2007.New York Law School location: File #3525, Box #151