The opinion
Catterson, J. (concurring).
While I believe that there may be a genuine issue of material fact sufficient to warrant a trial on the question of whether the tax in question violates the Commerce Clause as it is applied to the activities of the plaintiffs, I must nonetheless concur with the majority because on appeal, the plaintiffs have chosen to assert only a facial challenge to the statute’s constitutionality under the Commerce Clause.
The majority maintains that, “[c]learly, Amazon’s program, reasonably, is not designed for the passive advertiser, but seeks growth by reliance upon representatives who will look to solicit business.” The majority concludes that the statute in question would be valid “when a New York representative uses some form of proactive solicitation which results in a sale by Amazon and a commission to the representative, and the representative *208 has an in-state presence sufficient to satisfy the substantial nexus test.” Unfortunately, the record is insufficient to rebut the premise as a matter of law.
Thus, I agree with the majority that in order to prevail on a facial challenge to the constitutionality of the tax at issue, plaintiffs must overcome the strong “presumption of constitutionality accorded to legislative enactments by proof ‘beyond a reasonable doubt.’ ” (Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003], quoting LaValle v Hayden, 98 NY2d 155, 161 [2002].) Furthermore, that plaintiffs bear the “substantial burden of demonstrating ‘that “in any degree and in every conceivable application,” the law suffers wholesale constitutional impairment.’ ” (Moran Towing Corp., 99 NY2d at 448 , quoting Cohen v State of New York, 94 NY2d 1, 8 [1999], quoting McGowan v Burstein, 71 NY2d 729, 733 [1988].) Had the challenge been based on the tax as applied to the plaintiffs’ actual activities in New York, supported by a complete record of those activities as well as how the tax was apportioned, the plaintiffs may have had a valid challenge.
Andrias, J.P., Sweeny and DeGrasse, JJ., concur with Nardelli, J.; Catterson, J., concurs in a separate opinion.
Judgment, Supreme Court, New York County, entered February 17, 2009, modified, on the law and on the facts, to declare that the statute is constitutional on its face and does not violate the Equal Protection Clause either on its face or as applied and to reinstate the complaint for further proceedings with regard to the claims that, as applied, the statute violates the Commerce and Due Process Clauses, and otherwise affirmed, with costs. Order, same court, entered January 15, 2009, modified, on the law and on the facts, to declare that the statute is constitutional on its face, and does not violate the Equal Protection Clause either on its face or as applied, and to reinstate the complaint for further proceedings with regard to the claims that, as applied, the statute violates the Commerce and Due Process Clauses, and otherwise affirmed, with costs.