Matter of Diaz v New York City Dept. of Health & Mental Hygiene 2013 NY Slip Op 32360(U) September 25, 2013 Supreme Court, New York County Docket

Transcription

1 Matter of Daz v New York Cty Dept. of Health & Mental Hygene 2013 NY Slp Op 32360(U) September 25, 2013 Supreme Court, New York County Docket Number: /13 Judge: Joan B. Lobs Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court System's E-Courts Servce, and the Bronx County Clerk's offce. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* 1] SCANNED ON SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ndex Number : /2013 DAZ, MARTN vs NYC DEPARTMENT OF HEALTH Sequence Number : 001 ARTCLE 78 PART 6 NDEX NO. MOTON D A W MOTON SEQ. NO. The followng papers, numbered 1 to a, were read on ths moton t Q or Notce of MotonlOrder to Show Cause - Affdavts - Exhbts Pet- )No(s). -4 * Answerng Affdavts - Exhbts (No(s). 5-4 Replyng Affdavts Upon the foregong papers, t s ordered that ths moton s (No(s). z5 :9 2$ s? 2% Ql- gg U N F 1 LED 3 L DG Pd EET 'Ths judgment has not been entered by the County Clerk and notce of entry cannot be served based hereon. To obtan entry, counsel or authorzed representatve must appear n person at the Judgment Clerk's Desk (Room- Dated:.*- ',.e * - J.S.C. 1. CHECK ONE:... 0 CASE DSPOSED Q,NON.HNAL. EWOSTON 2. CHECK AS APPROPRATE:... MOTON S: 0 GRANTED 3. CHECK F APPROPRATE:... J SETTLE ORDER a DENED 3 GRANTED N PART OTHER 0 SUBMT ORDER 0 DO NOT POST 0 FDUCARY APPONTMENT 3 REFERENCE

3 [* 2] SUPREME COURT OF THE STATE OF NEW YOU NEW YORK COUNTY: AS PART 6 X n the Matter of the Applcaton of , MARTN DAZ, Pettoner, ndex No /13 * -aganst-. Decson, Order. and Judpent NEW YORK CTY DEPARTMENT OF HEALTH AND MENTAL HYGENE, Respondent. For an Order and Judgment Pursuant to Artcle 78 of the Cvl Practce Law and Rules.... JOAN B. LOBS, J.S.C.: X Martn Dm, actng pro se, brngs ths petton under Artcle 78 of the New York Cvl Practce Law and Rules. He challenges the denal ofhs applcaton for a restrcted area moble food vendng permt and seeks to compel the Respondent, the New York Cty Department of Health and Mental Hygene (DOH), to gve hm prorty on the watng lst for a ctywde moble food permt. The DOH opposes the petton. For the reasons set forth below, the petton s dened. Pettoner Martn Daz s anavy veteran wth servce-related dsabltes. Snce 2009, Mr. Dm has had a moble food vendor lcense ssued by the DOH and sells hot dogs, pretzels, and beverages from pushcarts of dsabled veterans who already have moble food vendng permts. On March 22, 2013, Pettoner Dm and another food vendor lcensee, Barbara Morrs, appled for restrcted area moble food vendng permts. That sane month ths Court ssued a seres of decsons, ncludng Ross v. New York Ctv Department of Parks and Recreaton, ndex No /2012,2013 N.Y. Msc. LEXS

4 [* 3] 1092 (N.Y. County Sup. Ct., Mar. 20, 2013) (collectvely the March 2013 Decsons ). n the March 2013 Decsons, food-vendng veterans wth servce-related dsabltes, ncludng Pettoner Du, challenged notces of volaton that they had receved n operatng hot dog pushcarts. The volatons generally cted the New York Cty Department of Parks and Recreaton regulaton, Secton 1-03(c)(l) of Ttle 56 of the Rules of the Cty of New York, whch prohbts a person from falng to comply wth the lawful drecton or command of an offcer. The legal authorty upon whch the drectve to move was based was New York General Busness Law Secton 35-a. That state statute, among other thngs, lmts the amount of space that a specalzed vendng lcensee can take up at a gven locaton and lmts the number of specalzed vendng lcensees n partcular areas. Under Secton 35-a, the New York Cty Department of Consumer Affars (DCA) ssues specalzed vendng lcenses that restrct by locaton, sze of vendng area, and number of vendors per area, among others, veterans wth servce-related dsabltes who are general vendors. Ths Court, construng the face of the statute, found that Secton 35-a dstngushes general vendors, who are regulated by the DCA, from certan other types of vendors, ncludng food vendors, who are regulated by the DOH. t held that Secton 35-a, whch was enacted as a narrow excepton restrctng certan veteran protectons provded under New York General Busness Law Sectons 32 and 35, dd not extend to food vendors.2 Related proceedngs appear at Belkebr v. New York Ctv Department of Parks and Recreaton, ndex No /2012,2013 N.Y. Msc. LEXS 1097 (N.Y. County Sup. Ct., Mar. 20, 20 13); Daz v. New York Cty DeDartment of Parks and Recreaton, ndex No /20 12,20 13 N.Y. Msc. LEXS 1098 (N.Y. County Sup. Ct., Mar. 20, 2013); and Ross v. New York Cty Department of Parks and Recreaton, ndex No /2012,2013 N.Y. Msc. LEXS (N.Y. County Sup. Ct., Mar. 20,2013). *No moton to reargue or renew was submtted followng the March Decsons. The Respondent n those proceedngs has fled notces of appeal. -2- L

5 [* 4] n response to the March 2013 Decsons, holdng that the veterans restrctons enacted under General Busness Law Secton 35-a dd not extend to food vendors, the DOH ssued a letter dated Aprl 1,2013, sgned by ts General Counsel, Thomas Merrll, addressed to To Whom t May Concern (the Merrll nterpretaton ). General Counsel Merrll nterpreted ths Court s decson as requrng that snce the veterans restrctons under Secton 35-a dd not extend to food vendors, the general protectons for veterans under General Busness Law Sectons 32 and 35 dd not apply to them ether.3 General Counsel Merrll threatened approprate enforcements [sc] proceedngs aganst these dsabled veteran food vendors for any falure to comply wth all local laws regulatng food vendng regardless of any prevous exemptons. On Aprl 15,2013, the DOH dened Barbara Morrs s applcaton for a restrcted area moble food vendng permt. Steven Lnden, Drector of Lcensng for the DOH wrote to Ms. Morrs * that due to ongong ltgaton, you may submt an applcaton for a restrcted area moble food vendng permt only f you have a contract from the Department of Parks and Recreaton authorzng you to vend on Parks property. As a result of the Aprl 15 denal, Pettoner Dm brought ths Artcle 78 petton n June. He seeks an order compellng the DOH to ssue hm a restrcted area moble food vendng permt and declarng that he need not contract wth the Parks Department to be elgble for that permt. Addtonally he clams that he s enttled to prorty on the watng lst for a ctywde fullterm moble food vendng permt. 3The DOH was not a party to the proceedngs n the March Decsons. -3-

6 [* 5] Later, on June 27,201 3, n separate proceedngs, ths Court dened cross-motons by the DOH to dsmss pettons by smlarly-stuated food vendors seekng a declaraton that the Merrll nterpretaton was vres, and that the state legslature s protectons for veterans contnued to apply to these dsabled veteran food vendors notwthstandng ths Court s March Decsons. Ross v. N.Y. Cty Dep t of Health and Mental Hygene, ndex No /2013; Rvera v. N.Y. Cty Deft of Health and Mental Hygene, ndex No /2013; Belkebr v. N.Y. Ctv DeD t of Health and Mental Hygene, ndex No /2013; Ross v. N.Y. Cty Deu t of Health and Mental Hygene, ndex. No /2013 (collectvely the Merrll nterpretaton Decsons ). n August, followng the DOH S answer n those actons, ths Court n fnal dspostons declared that the Merrll nterpretaton was ultra vres, and that the protectons contnued to apply. n ts Answer to the petton now before ths Court, the DOH opposes Mr. Daz s \ petton on two grounds. Notwthstandng ths Court s dsposton denyng the moton to dsmss n the Merrll nterpretaton Decsons, whch had been rendered over a month before the DOH submtted ts Answer, the DOH clams that Mr. Du has faled to establsh hs rght to the relef sought. Whle concedng that ths Court has rejected ts legal poston regardng the applcablty of General Busness Law Secton 35-a, Respondent reasserts that poston. Lastly t clams that any prorty on any watng lst s not avalable as a matter of law. Ths Court fnds for other reasons that Pettoner Daz has not establshed hs rght to compel the DOH to reconsder hs applcaton for a restrcted area moble food vendng permt. n an Artcle 78 proceedng, the judcary revews an admnstratve acton to determne whether that *. -4-

7 [* 6] ~ acton volates lawful procedures, s arbtrary or caprcous, or s affected by an error of law. &, Pel1 v. Bd. of Educ., 34 N.Y.2d 222,231 (1974); Roberts v. Gavn, 96 A.D.3d 669,671 (1st Dep't j 2012). The record does not show that the DOH has made any determnaton on Mr. Daz's applcaton. At most, Mr. Daz kferences an emal from the DOH'S Drector of Lcensng addressed to another applcant, Barbara Morrs, denyng her applcaton. Mr. Dm s not referenced n that emal. Nor s he coped on that correspondence. Absent any proof of a fnal determnaton n whch ths Pettoner s aggreved, see Secton 7801 (1) of the Cvl Practce Law and Rules, ths Court wll not revew any agency acton. 1 Next ths Court fnds that Pettoner Daz has not establshed hs rght to compel placement of hs name on any watng lst for the same reasons that Pettoner has not establshed hs rght to compel reconsderaton of hs permt applcaton. Mr. Dm avows that he sought prorty placement on the watng lst as'recently as That reference, however, fals to show when that request was dened. At most ths Court notes that, n hs Reply papers, the Pettoner has attached recent correspondence n whch the DOH denes that t has authorty to grant hm prorty on any watng lst. But that correspondence, made n the context of settlement negotatons over ths case and sent after the flng of ths petton, cannot serve as any fnal determnaton upon whch to base ths petton. Accordngly, t s 1 j ~ Dated: ADJUDGED that the petton s dened, and the proceedngs are dsmssed. DGMENT Ths judgment has not been entered by the' County GkdER: and notce of entry cannot be served based hereon. TO obtan entry, counsel or authorzed representatve must w appear n person at the Judgment Clerk's J.S.C. yuy\ km, ~ W <* * H N 3. L&JB( * 1418). a "& -. 2