Matter of Diaz v New York City Dept. of Health & Mental Hygiene

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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 Number: 100846/13 Judge: Joan B. Lobis Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 101412013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number : 100846/2013 DIAZ, MARTIN PART 6 vs NYC DEPARTMENT OF HEALTH INDEX NO. Sequence Number : 001 MOTION D ARTICLE 78 A W MOTION SEQ. NO. The following papers, numbered 1 to a, Notice of MotionlOrder to Show Cause * Answering Affidavits - Exhibits Q or were read on this motion t -Affidavits - Exhibits Pet- )No(s). (No(s). Replying Affidavits I -4 5 -4 (No(s). Upon the foregoing papers, it is ordered that this motion is z 5 UNF1 LED 3L!DGPd EET 2$ s? 'This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room- :9 2 % Ql- gg Dated: .*- ' . , e J.S.C. * - ..................................................................... 0CASE DISPOSED aDENIED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0GRANTED 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................iJSETTLE ORDER 0DO NOT POST Q,NON.HNAL. EWOSITION 3 GRANTED IN PART OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 3REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW Y O U NEW YORK COUNTY: IAS PART 6 ----------------------------------------------.---X , In the Matter of the Application of MARTIN DIAZ, Petitioner, * -against- Index No. 100846/13 . Decision, Order. and Judpent NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, Respondent. For an Order and Judgment Pursuant to Article 78 of the C v l Practice Law and Rules. ii ......................................................................... X JOAN B. LOBIS, J.S.C.: Martin Dim, acting pro se, brings this petition under Article 78 of the New York Civil Practice Law and Rules. He challenges the denial ofhis application for a restricted area mobile food vending permit and seeks to compel the Respondent, the New York City Department of Health and Mental Hygiene (DOH), to give him priority on the waiting list for a citywide mobile food permit. The DOH opposes the petition. For the reasons set forth below, the petition is denied. I Petitioner Martin Diaz is aNavy veteran with service-related disabilities. Since 2009, Mr. Dim has had a mobile food vendor license issued by the DOH and sells hot dogs, pretzels, and beverages from pushcarts of disabled veterans who already have mobile food vending permits. On March 22, 2013, Petitioner Dim and another food vendor licensee, Barbara Morris, applied for restricted area mobile food vending permits. or That saine month this C u t issued a series of decisions, including Rossi v. New York Citv Department of Parks and Recreation, Index No. 103794/2012,2013 N.Y. Misc. LEXIS [* 3] 1092 (N.Y. County Sup. Ct., Mar. 20, 2013) (collectively the March 2013 Decisions ). In the March 20 13 Decisions, food-vending veterans with service-related disabilities, including Petitioner Diu, challenged notices of violation that they had received in operating hot dog pushcarts. The violations generally cited the New York City Department of Parks and Recreation regulation, Section 1-03(c)(l) of Title 56 of the Rules of the City of New York, which prohibits a person from failing to comply with the lawful direction or command of an officer. The legal authority upon which the directive to move was based was New York General Business Law Section 35-a. That state statute, among other things, limits the amount of space that a specialized vending licensee can take up at a given location and limits the number of specialized vending licensees in particular areas. Under Section35-a, the New York City Department of Consumer Affairs (DCA) issues specializedvending licenses that restrict by location, size of vending area, and number of vendors per area, among others, veterans with service-related disabilities who are general vendors. This Court, construing the face of the statute, found that Section 35-a distinguishesgeneral vendors, who are regulated by the DCA, from certain other types of vendors, including food vendors, who are regulated by the DOH. It held that Section 35-a, which was enacted as a narrow exception restricting certain veteran protections provided under New York General Business Law Sections 32 and 35, did not extend to food vendors.2 Related proceedings appear at Belkebir v. New York Citv Department of Parks and Recreation, Index No. 103796/2012,2013 N.Y. Misc. LEXIS 1097 (N.Y. County Sup. Ct., Mar. 20, 20 13); Diaz v. New York City DeDartment of Parks and Recreation, Index No. 103795/2012,20 13 N.Y. Misc. LEXIS 1098 (N.Y. County Sup. Ct., Mar. 20, 2013); and Rossi v. New York City Department of Parks and Recreation, Index No. 103792/2012,2013 N.Y. Misc. LEXIS 1 1 17 (N.Y. County Sup. Ct., Mar. 20,2013). *No motion to reargue or renew was submitted following the March 20 13 Decisions. The Respondent in those proceedings has filed notices of appeal. -2- I L [* 4] In response to the March 2013 Decisions, holding that the veterans restrictions enacted under General Business Law Section 35-a did not extend to food vendors, the DOH issued a letter dated April 1,20 13, signed by its General Counsel, Thomas Merrill, addressed to To Whom It May Concern (the Merrill Interpretation ). General Counsel Merrill interpreted this Court s decision as requiring that since the veterans restrictions under Section 35-a did not extend to food vendors, the general protections for veterans under General Business Law Sections 32 and 35 did not apply to them either.3 General Counsel Merrill threatened appropriate enforcements [sic] proceedings against these disabled veteran food vendors for any failure to comply with all local laws regulating food vending regardless of any previous exemptions. On April 15,2013, the DOH denied Barbara Morris s application for a restricted area mobile food vending permit. Steven Linden, Director of Licensing for the DOH wrote to Ms. Morris * that due to ongoing litigation, you may submit an application for a restricted area mobile food vending permit only if you have a contract from the Department of Parks and Recreation authorizing you to vend on Parks property. As a result of the April 15 denial, Petitioner Dim brought this Article 78 petition in June. He seeks an order compelling the DOH to issue him a restricted area mobile food vending permit and declaring that he need not contract with the Parks Department to be eligible for that permit. Additionally he claims that he is entitled to priority on the waiting list for a citywide fullterm mobile food vending permit. 3TheDOH was not a party to the proceedings in the March 20 13 Decisions. -3- [* 5] Later, on June 27,201 3, in separate proceedings, this Court denied cross-motions by the DOH to dismiss petitions by similarly-situated food vendors seeking a declaration that the Merrill Interpretation was vires, and that the state legislature s protections for veterans continued to apply to these disabled veteran food vendors notwithstanding this Court s March 20 13 Decisions. Rossi v. N.Y. City Dep t of Health and Mental Hygiene, Index No. 100562/2013; Rivera v. N.Y. I City Deft of Health and Mental Hygiene, Index No. 100563/2013;Belkebir v. N.Y. Citv DeD t of ! I I Health and Mental Hygiene, Index No. 100564/2013; Rossi v. N.Y. City Deu t of Health and Mental I Hygiene, Index. No. 100565/2013 (collectively the Merrill Interpretation Decisions ). In August, I following the DOH S answer in those actions, this Court in final dispositions declared that the i Merrill Interpretation was ultra vires, and that the protections continued to apply. I In its Answer to the petition now before this Court, the DOH opposes Mr. Diaz s petition on two grounds. Notwithstanding this Court s disposition denying the motion to dismiss i I \ in the Merrill Interpretation Decisions, which had been rendered over a month before the DOH submitted its Answer, the DOH claims that Mr. D i u has failed to establish his right to the relief sought. While conceding that this Court has rejected its legal position regarding the applicability i of General Business Law Section 35-a, Respondent reasserts that position. Lastly it claims that any ! priority on any waiting list is not available as a matter of law. I ! or This C u t finds for other reasons that Petitioner Diaz has not established his right I ! I to compel the DOH to reconsider his application for a restricted area mobile food vending permit. I In an Article 78 proceeding, the judiciary reviews an administrative action to determine whether that I II I i I i * . -4- [* 6] I ~ I i I action violates lawful procedures, is arbitrary or capricious, or is affected by an error of law. &, Pel1 v. Bd. of Educ., 34 N.Y.2d 222,231 (1974); Roberts v. Gavin, 96 A.D.3d 669,671 (1st Dep't I 2012). i application. At most, Mr. Diaz kferences an email from the DOH'S Director of Licensing addressed I to another applicant, Barbara Morris, denying her application. Mr. Dim is not referenced in that ! email. Nor is he copied on that correspondence. Absent any proof of a final determination in which The record does not show that the DOH has made any determination on Mr. Diaz's j i i this Petitioner is aggrieved, see Section 780 1(1) of the Civil Practice Law and Rules, this Court will not review any agency action. i I I 1 Next this Court finds that Petitioner Diaz has not established his right to compel placement of his name on any waiting list for the same reasons that Petitioner has not established his right to compel reconsideration of his permit application. Mr. Dim avows that he sought priority placement on the waiting list as'recently as 2012. That reference, however, fails to show when that request was denied. At most this Court notes that, in his Reply papers, the Petitioner has attached recent correspondence in which the DOH denies that it has authority to grant him priority on any waiting list. But that correspondence, made in the context of settlement negotiations over this case and sent after the filing of this petition, cannot serve as any final determination upon which to base ! this petition. Accordingly, it is ADJUDGED that the petition is denied, and the proceedings are dismissed. 1 j I I i I Dated: DGMENT w This judgment has not been entered by the' County GkdER: and notice of entry cannot be served based hereon. T O obtain entry, counsel or authorized representative must J.S.C. appear in person at the Judgment Clerk's yuyI\ km, ~ W H N L&JB( ¬3. * 11) 48. * 4-. <* a ~ i i I I I " @ , . & , .. .. 2

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