O'Rourke v City of New York

[*1] O'Rourke v City of New York 2019 NY Slip Op 50996(U) Decided on June 14, 2019 Supreme Court, Kings County Levine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2019
Supreme Court, Kings County

James O'Rourke, et. al., Petitioner,

against

The City of New York, The New York City Department of Sanitation, et. al., Respondent.



512565/2017



Attorney for Petitioners

Steven A. Harrison, Esq.

544 Bay Ridge Parkway

Brooklyn, NY 11209

Attorneys for Respondents

Zachary W. Carter

Corporation Counsel of the City of New York

100 Church Street, Room 5-157

New York, NY 10007

Attn: Pamela A. Koplik, Esq.

Assistant Corporation Counsel
Katherine A. Levine, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers/Numbered

Petitioners' Verified Petition 1

Petitioners' Memorandum of Fact and Law 2

Respondents' Verified Answer to Petition 3

Respondents' Memorandum of Law in Opposition to the Verified Petition 4

Petitioners' Memorandum of Fact and Law in Reply 5

Respondents' Sur-Reply Affirmation in Further Opposition to Petition 6

Petitioners bring this Article 78 proceeding to vacate and annul a determination by respondent New York City Department of Sanitation ("DSNY" or "respondent") to discontinue waste collection on four separate dead-end unmapped alley streets in the Bay Ridge section of Brooklyn (the "alley streets"). They also seek on order compelling DSNY to immediately restore the refuse collections to what existed prior to March 13, 2017. Petitioners, who either reside on the alley streets or public streets that intersect with the entry to each of those private alley streets, assert that the DSNY has collected garbage from the front of their residences for over 50 years by utilizing a Motorized Litter Patrol ("MLP") collection bin

The DSNY asserts that it was first alerted to this practice in October 2016, when it discovered that a "rogue local district garage" had allocated a separate MLP to collect garbage on the alley streets. DSNY directed that this practice cease because there was a potential for injury to DSNY workers traversing the alley streets. It also claims that it has a longstanding custom and practice not to service private streets without a written agreement executed between the agency and homeowners on those streets, with liability insurance and indemnification to be provided by the homeowners. Finally, DSNY asserts that it will not service alleys and other streets that cannot accommodate its trucks, in support of its goal to protect worker safety.

Petitioners counter that DSNY's discontinuance of garbage collection on the alley streets was arbitrary and capricious and without a rational basis. They allege that there has never been any injury or incident arising from the prior arrangement, and that DSNY failed to explain what supposed danger sanitation workers face by collecting garbage without using garbage trucks. They also assert that there is no rule requiring a written executed agreement between the agency and homeowners on those streets before garbage can be collected. Petitioners also argue that no rule prohibits DSNY workers from using carts to collect garbage on the alley streets. Petitioners further assert that DSNY's determination is affected by an error of law since by directing that residents of the alley streets place their refuse at the corner of the adjacent intersecting streets, DSNY forces these residents to violate N.Y.C. Admin. Code § 16-120 which prohibits them from placing their garbage in front of other residential properties.

Facts

Unlike the typical situation where the City owns the sidewalk and street adjacent to the homes, the property lines of the homes on the alley streets extend to the center of the alley. The alley streets are private, but a public easement forms in the center of each alley street serving as a public traverse. Three of the four alleys have no street or sidewalk. The fourth, Wogan Terrace, has a sidewalk and a small street which is not large enough to accommodate a sanitation truck.

While it is undisputed that for over 50 years, DSNY provided regular "standard 'frontside'" garbage collection to residents of the alley ways (Petition "fifth"), the parties are unclear as to what the term MLP even stands for and whether it was driven up and down the alley. Petitioners first assert that alley street residents placed their garbage at the edges of their property and that DSNY would collect the garbage on a regular schedule utilizing the MLP - a [*2]small collection truck - combined with manual collection. However, they then claim that a DSNY worker would walk down the alley, collect and dump the refuse into a barrel on a manually operated cart and roll it to and dump it into a MLP waiting on the adjacent public street ( Petition fifth). The petition then claims that the MLPs were always stationed at the intersection of the alleys ways and streets.[FN1] The affidavit of Josephine Beckmann, District Manager of Community Board 10, annexed to the petition, states that the MLP "alley truck" used two sanitation workers to collect garbage and clean that alley streets and that this collection methodology was used in the four alley ways in question, as well as in other locations throughout the district that are inaccessible to large trucks. This statement presumes that the MLP trucks were small and flexible enough to maneuver up and down the alley.

The DSNY submits equally disparate information about the MLPs. In its answer, DSNY states that MLP stands for "mobile litter patrol" where a DSNY worker "actually walked down the private alley to collect refuse. (Answer ¶77). DSNY Commissioner Kathryn Garcia and DSNY Director Ehrhardt also used the same definition in their respective May 5, 2017 and June 5, 2017 letters.[FN2] However, in the same letter Ehrhardt later refers to the MLP as a "motorized litter patrol" and assures Community Board 10 that despite its new bulk collection procedures, "any litter/dump-out conditions normally addressed by Motorized Litter Patrol crews will continue to be addressed."

The DSNY asserts that after the NYC Council passed a law in 2013 requiring DSNY to establish a voluntary organic waste curbside program, it began a "comprehensive evaluation" of garbage collection throughout the city. In or about October 2016, DSNY "headquarters discovered" that the subject private streets were "improperly" receiving garbage collection via the MLPs (Answer ¶77). District Manager Beckmann, on the other hand, asserts that Sanitation Brooklyn 10 first became aware of the use of MLPs after she called to inquire about the reason for missed alley collection, missed bulk collection and dirty sidewalks due to the implementation or district wide organics recycling collection. DSNY informed Beckmann that "fleet changes" were made after the organics recycling was introduced resulting in the replacement of single refuse collection vehicles with double bin loaders to allow for the collection of both organics and regular garage. It also resulted in the loss of biweekly MLP service which in turn resulted in missed garbage collection at the alley streets. Beckmann stated that it was her understanding that the MLP alley truck collection with two sanitation workers "was discontinued" due to the organics program which created the need to add additional single loader trucks to collect large bulk items.

DSNY asserts that the prior alley way garbage collection ran contrary to its long-established policy of requiring liability insurance and an agreement amongst all owners of the private property to the arrangement. DSNY also contends that it ran contrary to DSNY rules and policy that all garbage be placed at the curbs that are accessible to DSNY vehicles for collection, citing to 16 R.C.NY §§1-01 and 1-02. It asserts that none of its vehicles could safely fit down [*3]the alley ways "without risking damage to private property or injury to workers." (Answer ¶78).[FN3]

DSNY asserts that on or about February 6, 2017, its Office of Community Affairs conducted an "outreach walk" in which it distributed fliers advising the alley street residents of the change in collection retroactive to February 1st and of "how garbage collection would be conducted going forward." DSNY conducted a second outreach walk on February 23, 2017, wherein it distributed revised flyers which advised that the route change would take effect March 13, 2017. The flyers stated that sanitation workers would no longer traverse the alleys to collect garbage and instructed the residents of three of the four alley ways to bring their "properly packaged garbage" to three different curbs on 94th street and the residents of the fourth alley way to bring their garbage to a curbside on 97th Street. The flyers stated that the change was necessary because "private walkways/easements/alleyways are not accessible for sanitation trucks and sanitation workers cannot be entering and traversing through various private properties to collect trash and recycling..." The route change was not memorialized by any formal document, rule or regulation. The flyers did not mention any safety issue.

Petitioners subsequently registered complaints regarding the collection route change with Brooklyn Borough President Eric Adams and the local Community Board 10 ("CB10"), and each in turn sent letters to DSNY dated April 5, 2017 ("Adams letter") and May 3, 2017 ("CB 10 letter"), requesting that collection service be restored. B.P. Adams specifically wrote that "as a result of this new refuse collection policy, the private homes affronting the public sidewalk are now receiving the bulk of refuse" since the alley blocks residents have to place their refuse in front of another. This new practice violates Admin Code §16-120(a) (Improper Disposal) and "saddles the homeowners whose homes are now receiving refuse" from alley block residents with the "daunting task of keeping the area clean."

By letter dated May 15, 2017, DSNY Commissioner Garcia responded to BP Adams and elaborated upon the reasons for DSNY's service changes to alley ways ("Garcia letter"). A followup letter was sent from DSNY Director of Community Affairs Henry Ehrhardt to CB10 dated June 5, 2017 ("Ehrhardt letter").[FN4] Garcia first set forth that the alley way service practice was "done without direct knowledge of the office that handles all collection operations and in conflict with established department policy in place throughout the city." Garcia then summarized the new practice (bringing the refuse to the public street intersections) and assured BP Adams that "DSNY personnel have been instructed to not issue any violations to any property owners along the public streets for any conditions related to this practice." After setting forth the DSNY's authority to regulate the collection of refuse, Garcia stated the DSNY must evaluate whether its employees can safely drive a 25 yard truck, alley truck or other specialized truck within the alley. "The vehicle must be able to enter and exit the privately owned area with normal maneuvering by the operator for accessibility," and "a written agreement must be executed and insurance provided." She concluded that "[u]nder no circumstances will DSNY [*4]allow its workers to enter an alleyway or private street to provide collection services unless they are using a truck." This protects the "safety of our workers," which is "my biggest concern and this change furthers this goal." She concluded that the four private alleys in Bay Ridge "would not qualify for service as they do not meet the criteria listed above."

Arguments

Petitioners allege that these changes created an undue burden upon both the residents of the alley ways and residents on the adjacent public streets and violated the DSNY's own regulations. Specifically, residents of the alley ways, many of whom are elderly, must lug heavy trash containers and rubbish back and forth for as far as a city block for collection. While in the past three garbage bags might be placed in front of homes on the streets connecting with the alley ways, now 30 bags are placed at these intersections. This inconvenience is compounded by the fact that the community board requests that residents utilize three containers for different types of garbage. As a result, for example, the 20 homeowners on Wogan Terrace drag more than 60 containers of garbage containers to the adjacent 94th street curb. This garbage heap is increased by all of the extra garbage and "flotsam and jetsam" that passers by typically dump in a NYC trash pile. Petitioners assert that "[a]t times, this completely obstructs the use of the sidewalk, forcing pedestrians to walk in the street, creating a dangerous condition, particularly for the local residents who habituate those sidewalks" (Petition, "eleventh").

Petitioners also assert that this resultant pile up of garbage has caused both sets of petitioners to face potential fines. The adjacent public street home owners will now be responsible for "unidentifiable trash receptacles" belonging to alley way homeowners placed on the curb sides at the end of the alley streets (Petition, "thirteenth"). The alley way residents would be in violation RCNY § 16-120 (a) which the DSNY has interpreted as prohibiting a person form using "another person's receptacles without permission, or plac[ing] his...refuse in front of a premises other than the building in which he/she resides or works."(DSNY Brochure annexed to petition as Exh. "6").

As to the alleged safety issues propounded by the DSNY, petitioners counter that in the over 50 years that garbage has been collected from the alley ways, there have never been any reported injuries or accidents sustained by a sanitation workers due to this practice (See Beckmann affidavit). Petitioners also correctly assert that the City has failed to produce any study or evidence that supports the DSNY's "Ill founded contention" about safety issues (Petition, "twenty fifth").

DSNY avers that it has a longstanding policy not to service alleys ways unless it obtains an indemnification agreement from all homeowners whereas petitioners counter that there was never any such requirement and "the DSNY's posture does not constitute a practice or policy" (Tr. 11/29/18 at 19). DSNY points to its regulatory agenda for the Fiscal years 2016 -2018 which included a "proposed promulgation of a rule to address refuse ...collection from residential properties on privately owned streets and alleys." The proposed rule would amend 16 RCNY 1.02 to incorporate the DSNY"s "practice regarding its collection services." The Rationale for the proposed rule states that the DSNY currently collects refuse from residences in privately owned property "only if [it] obtains a signed written agreement that indemnifies the City, along [*5]with meeting certain insurance requirements." However, such agreement is only for garbage collection and does not obligate the DSNY to provide snow removal services in these areas. The failure to sign such agreement and provide insurance for the requisite hazardous conditions that can impact worker and equipment safety will result in DSNY requiring residents of these private ways to set out their refuse "in an accessible public area" for collection. It is salient to note that these rules were never promulgated.

While reiterating that it has always been the pattern and practice of DSNY to enter into these agreements, the City then stated that it was up to the homeowners association to request the agreement. The City was only able to provide two exhibits on indemnification agreements for garbage collection: one was a resolution in front of the Board of Estimate dated September 1952 between DSNY and Hillside Hospital; the other was an undated sample Association Agreement with the DSNY. Neither the resolution nor the sample agreement address what method of garbage collection can be utilized in the private streets or alley ways, much less even mention the MLPs. The memo accompanying the sample Association Agreement with DSNY, dated March 24, 1998, states that DSNY has required collection agreements from owners where DSNY must enter private property since 1952 and that it has agreements with large residential complexes as well as private communities like Sea Gate. The memo indicates that the accompanying sample agreement was modified to reflect that a homeowners association may execute the agreement on behalf of individual owners and that the promise to indemnify is limited to the association and not individual members

Due to the voluminous submissions, and unclear arguments, this Court held oral arguments on November 29, 2018, and directed that further briefs be submitted by the end of January 2019. At the commencement of the hearing, petitioners asserted that there was "zero evidence" that anyone had ever been injured by virtue of the use of MLPs in the alleyways. The City admitted that they were not aware of any accidents ever having been reported about the alley way collection procedures (Tr 8-9). The Court inquired whether over the 50 years prior to the change of policy the DSNY had any rules governing the collection of refuse in the alleys ways. The City side stepped this question by referring to its proposed regulations, which were never passed, that stated that the DSNY would only collect refuse in alley ways if it "obtains a signed written agreement that indemnifies the City, along with meeting certain insurance requirements." (Tr. 12). However, DSNY could not point to any existing rule or regulation in place mandating an indemnification agreement with homeowners. In response to the Court's query as to why DSNY was not aware that the residents of these four alleyways had not signed an indemnification agreement for over 50 years, the city responded that its was "rogue garage" (Tr.14).

While DSNY asserted in its answer that about 750 of these agreements exist, it failed to annex one executed copy of such an agreement. DSNY admitted there was "no definitive law (written policy, rule or regulation) either mandating or prohibiting" the picking up in garbage on private property and alleys ways unless there was an indemnification agreement and that any such agreement was predicated on the 1952 Board of Estimate resolution (Tr. 17-18). Counsel for petitioners noted that the indemnification agreements discussed by DSNY covered a hospital and a homeowners association "not with individual homes." (Tr. 19). The City also stated that it was up to the homeowners association or group of homeowners to initiate the contract, i.e indemnification agreement which then had to be approved by Corporation Counsel (Tr. 17).

When the court inquired whether there were are any rules which addressed the use of a hand truck or MLP to collect garbage, DSNY conceded that "there is no regulation in place" which prohibited its use (Tr. 14). DSNY asserted that the use of MLPs was "improper" because it was not sanctioned by the main office of Sanitation (Tr. 20). When the court further inquired whether there was any rule or regulation prohibiting the collection of garbage unless a DSNY truck could fit down a street, DSNY replied that it was discretionary as to what equipment is used, and that the reason for the change to collection at the curbside was that there was no indemnification agreement (Tr. 29-30). DSNY also admitted that the rationale for the change was not that the use of the MLPs was dangerous but that the practice ran contrary to DSNY rules requiring that garbage be placed at the curb (Tr. 29). Petitioners pointed to Admin Code §16-120(e) which prohibits any person from placing household refuse in a public litter basket and, according to petitioners, thus prohibits alley way homeowners from placing their garbage in front of the homes effacing the intersection of the alleys ways and public streets. The City admitted that Commissioner Garcia had instructed DSNY personnel not to issue tickets any violations to any property owners along the public streets for any conditions related to the new practice of alleyway residents bringing their garbage to the curbside. The court commented that it " seems like [DSNY] created an exception to the rule to allow this to happen (Tr. 32, 48-49). Counsel for the city confirmed that due to this letter, the homeowners would no longer be responsible for the garbage dumped in from of their homes ( Tr. 49-51).

Petitioners deferred to the Court's question as to whether they had a right to say how garbage should be collected, and replied that "It's not a question of a right." Rather it was arbitrary and capricious and a violation of law to direct the alley way residents bring their garbage to the curbside because Admin Code §16-120 prohibited them from placing their garbage in front of someone else's houses. ...(Tr. 45-46). Petitioners' counsel pointed to 100 citations given to homeowners who improperly disposed of their garbage at buildings other than where they resided and stated that sanitation enforcement looked at garbage to determine its genesis. The DSNY then reversed course and informed the alley way residents they were not going to enforce the law resulting in fifty garbage cans being placed in front of other individuals' residences by the curbside.

The Court inquired whether DSNY had ever decided not to go down a public street because it was too congested with double parked cars and bike lanes to which the City replied that the public street is a different scenario. The Court then inquired whether there was any DSNY rule and regulation mandating that every street be serviced by a sanitation truck and whether there were any studies that as to the efficacy of utilizing MLPs to collect garbage. The City responded that there was no formal study; rather, it was the commissioner's determination that it was unsafe. The Court inquired upon what this determination was based - was their anecdotal evidence about any worker slipping when he collected garbage; did the union complain? Again, the City responded that simply that "this protects our workers (Tr. 44-45).

Analysis

Section 753 of Chapter 31 of the NYC Charter sets forth the powers and duties of the DSNY Commissioner and provides in pertinent part that the commissioner shall have "charge [*6]and control of, and be responsible for all those functions relating to the ....disposal of waste, including without limitation, the following: (2) the removal and disposition of ...garbage, refuse, rubbish and waste" and [is] responsible for "all those functions and operations of the city relating to the cleanliness of the streets and the disposal of waste, including, without limitation the removal and disposition of garbage, refuse, rubbish and waste."

Section 753(b) of the Charter authorizes the commissioner to "adopt regulations specifying the kind of garbage, refuse, rubbish ...that will be collected by the city, from whom it will be taken," the manner in which it shall be arranged and the time of place of collection. Section 755 of the Charter includes within the definition of "street" an alley, lane or driveway. Section 753(d) of the Charter authorizes the commissioner to " adopt regulations controlling the use of sidewalks and gutters by abutting owners and occupants for the disposition of sweepings, garbage, refuse or rubbish."

Admin. Code §16-120(a), as set forth above, provides that the receptacles provided by the owner...occupant etc for the building "shall be provided for the exclusive use of each building or dwelling..." Admin. Code. § 16-120 (e) sets forth obligations and restrictions for waste disposal for owners of private residences, and provides that "(1) No person shall deposit household or commercial refuse...in a public litter basket placed on the streets by the department or any other person. There shall be a rebuttable presumption that the person whose name, or other identifying information, appears on any household or commercial refuse .... deposited in such public litter basket violated this paragraph"(effective 9/27/18).

16 RCNY § 1-02 states that the Department will provide collection service for waste generated by occupants or residential buildings. 16 RCNY §1.02(a) prohibits the placement of solid waste or recyclables "out at the curb for collection" by the Department earlier than 4pm on the day before scheduled collection. 16 RCNY 1-01 defines "curbside collection" as collection service where building solid waste collected by the department is "placed at the curbside of such building" in containers which are then "manually emptied by Department personnel into collection vehicles."

It is clear from above that there is no rule or regulation prohibiting or permitting the collection of garbage in alley ways or prohibiting the use of MLPs or hand collection carts regardless of the venue. In fact, during oral argument before this Court, DSNY stated that "[t]here is no definitive law mandating or prohibiting" the collection of garbage in alleyways and private property or the use of hand trucks, and argued that "[i]t's discretionary under the law for the Sanitation Commissioner to adopt regulations controlling the collection of garbage" (Tr. , 16, 20, 30). It is also clear that the DSNY commissioner has extremely broad discretion as to how and when garbage shall be collected so long as it does not run afoul of the standards set forth in CPLR Article 78 governing the review of agency determinations.

Specifically, where such a determination under review was not made after an administrative hearing or a quasi-judicial evidentiary hearing, judicial review is limited to whether the determination as irrational, arbitrary and capricious or contrary to law (CPLR 7803 [3]. Mtr of Madison County Indus. Dev. Agency v State of New York Auths. Budget Off., 33 NY3d 131 ( 2019). See, Mtr of Lemma v Nassau County Police Officer Indem. Bd., 31 NY3d 523, 528 (2018); Mtr of Ball v NY State Dept. of Envtl. Conservation, 35 AD3d 732, 733 (2d Dept 2006). A court can only ask whether the determination is rationale and not an abuse of [*7]discretion, or a violation of the agency's legal duty. Mtr. Of Save Gansevoort, LLC v. City of NY,2017 NY Slip Op. 30563U, 2017 NY Misc. LEXIS 1033 (Sup. Ct., NY Co. 2017). See, Mtr of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 (2010); Mtr of Peckham v Calogero, 12 NY3d 424, 431, (2009). See Mtr. Of Suffolk Co. Assn. Of Mun. Emp. Inc. V. Levy, 133 AD3d 676 , 677 (2d Dept. 2015).

An agency abuses its exercise of discretion if it lacks a rational basis in its administrative orders. Save America's Clocks Inc v City of NY, 52 Misc 3d 282, 294 (Sup. Ct., NY Co. 2016) aff'd 157 AD3d 133 (1st Dept. 2017). A court may overturn an administrative action where it is "taken without sound basis in reason" or "without regard to the facts". Mtr. Of Wooley v. NY State Dept. Of Correctional Servs., 15 NY3d 275, 280 (2010) citing Mtr of Pell v. Bd. Of Educ, U.F.S.D. No.1, 34 NY2d 222, 231(1974); Mtr. Of Halpert v Shah, 107 AD3d 800, 801-802 (2013); Mosley v. N.Y.C. Landmarks Preserv, Comm'n, 2005 NY Slip Op 30504U, 2005 NY Misc. LEXIS 8493 at 12 (Sup. Ct . NY Co. 2005), but cannot overturn agency decisions because it believes that a better solution could be obtained. Peconic Bay Broadcasting Corp. v. Bd. f of App., 99 A.D.2d 773, 774 (2d Dept. 1984). See, Mtr. Of Save Gansevooort, supra, 2017 NY Misc. LEXIS 1033 at 20.

An agency decision is arbitrary and capricious when the agency has relied upon factors which the legislature had not intended it to consider, entirely failed to consider an important aspect of the problem, "offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Kentucky Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, 407 (6th Cir. 2013) (quoting Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 168 L. Ed. 2d 467 (2007). See, Cnty. of Westchester v. United States HUD, 802 F.3d 413, 431 (2d Cir. 2015); Mtr. Of Caspian Realty, Inc. v. Zoning Bd. Of Appeals, Town of Greenburgh, 68 AD3d 62, 70-71 (2d Dept. 2009); Matter of Hilbertz v. City of New York, 2019 NY Misc. LEXIS 1729 at 58 (Sup. Ct., Kings Co. 2019). The court must be certain that "an agency has considered all the important aspects of the issue and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made." Brooklyn Heights Ass'n v. Nat'l Park Serv., 777 F. Supp. 2d 424, 436-37 (E.D.NY 2011) citing Forest Watch v. U.S. Forest Service, 410 F.3d 115, 118-19 (2d Cir. 2005) (quoting Henley v. FDA, 77 F.3d 616, 620 (2d Cir. 1996). Finally, an agency decision which "provides no basis for lack of adherence (to a prior practice) is arbitrary and capricious and will not be upheld." Uniform Firefighters of Cohoes, Local v. Cuevas, 276 AD2d 184, 187 (3d Dept. 2000). See, Gross v Chaffetz, 2013 NY Slip Op 31440(U), 2013 NY Misc. LEXIS 2834 at 6 (NY Co. 2013).

Based upon the papers and oral argument, this Court finds that the DSNY's abolition of refuse pickup in the alleyways by MLPS, and its dictate that alley way residents haul their garbage some 100 feet to the "curbside" by public streets, was arbitrary and capricious because it lacked a sound basis in reason and was in disregard of the facts. First, it is unclear to this date what the MLPs are and how they were deployed. Both petitioners and the DSNY referred to the MLPs in different ways as either a " motorized litter patrol truck" or a mobile litter patrol; the latter collection device was never even defined. Nor is the record clear as to whether the sanitation workers drove the MLPs down the alley ways or alternatively, collected the garbage by hand and then deposited it into the MLPs. The papers variably assert that the MLPS were either [*8]wheeled to standing standing sanitation trucks at the intersection, or that the garbage was handcarted to "awaiting" MLPs at the curbside which would not make sense since regular sized sanitation trucks fit on the public streets.

Second, the DSNY did not offer a consistent reason as to why it had actually abolished collection in the alleyways. DSNY asserted that the use of MLPs to collect garbage in the alleyways ran contrary to its long-established policy of requiring liability insurance and an indemnification agreement amongst all owners of the private property. DSNY also contended that it ran contrary to DSNY rules and policy that all garbage be placed at the curbs that are accessible to DSNY vehicles for collection, and that none of its vehicles could safely fit down the alley ways "without risking damage to private property or injury to workers." (Answer ¶78).

However, during oral argument DSNY admitted that there no actual rule and regulation mandating that it obtain an indemnification agreement from all homeowners before it collects garbage and petitioners added that "DSNY's posture does not constitute a practice or policy." (Tr. 11/29/18 at 19). Although DSNY pointed to its regulatory agenda for the Fiscal years 2016 -2018 which included a "proposed promulgation of a rule to address refuse ...collection from residential properties on privately owned streets and alleys," the rule was never passed.

Furthermore, the City failed to prove that there was an actual patten and practice of DSNY entering into these agreements. Rather, the onus fell upon the homeowners association to request such agreements, and such agreements needed to be approved by the Contracts Division of the Corporation Counsel. However, the City was only able to provide two exhibits on indemnification agreements for garbage collection: one was a resolution in front of the Board of Estimate dated September 1952 between DSNY and Hillside Hospital; the other was an undated sample Association Agreement with the DSNY. Neither of these documents addressed what method of garbage collection could be utilized in the private streets or alley ways, much less even mention the MLPs. The memo dated March 24, 1998, specifically stated that the accompanying sample agreement was modified to reflect that a homeowners association may execute the agreement on behalf of individual owners and that the promise to indemnify is limited to the association and not individual members. No mention was even made as to what procedure DSNY might follow for private streets or alley ways when there was no homeowners association.

Furthermore, during the hearing, the City changed course as to the real reason for the abolition of alley way collection. Near the end of the hearing, the Court commented that "had these people signed the indemnification agreements, everything would be fine. Why don't we just resolve the case like that?" (Tr. at 40). Rather than discuss whether it was even feasible for DSNY to go to each of the homeowners and obtain individual indemnification agreements, or whether these agreements just ran between the DSNY and Homeowner Associations, the City responded it could not happen because DSNY does not believe it was safe for its employees to walk up and down 100 feet alley ways with a hand truck and pick up garbage. Pointing to the Garcia and Ehrhardt letters, the City attorney reiterated that DSNY had to ascertain that is employees could safely drive a 25 yard alley or specialized collection truck within the alley, and that said vehicle must be able to enter and exit the privately owned area with normal maneuvering by the operator for accessibility. Yet, as noted above, the flyers disseminated to the alley residents did not mention any safety issue.

DSNY never provided any sound basis or facts to support its contention that the elimination of alley way pick up was due to safety concerns. At the beginning of the hearing, Counsel for the City admitted that no accidents had ever been reported due to refuse pick up in the alley ways. (Tr. 8-9). Later on, the court inquired what exactly were the safety concerns, when did the DSNY have an epiphany about safety concerns, and whether it held any meetings on these concerns. The City responded that the Commissioner had made the determination (Tr. 41). DSNY also admitted that it did not conduct any formal study or hold a public hearing on the matter (Tr. 44). Nor did the rationale for the promulgation of new rules - that the indemnification agreements should cover snow removal as well as refuse collection so that "insurance would be provided for the requisite hazardous conditions that can impact worker and equipment safety" - ever mention that the use of the MLPs to collect garbage in alleys was hazardous or jeopardized worker safety.

The court also credits the inference that the precipitating factor for DSNY's epiphany that hand collection was unsafe was its institution of the organic waste refuse program in 2016. This is confirmed by Chairwoman Beckmann's assertion that DSNY had informed her that "fleet changes" were made after the organics recycling was introduced resulting in the replacement of single refuse collection vehicles with double bin loaders to allow for the collection of both organics and regular garage. She stated that it was her understanding that the MLP alley truck collection with two sanitation workers "was discontinued" due to the organics program which created the need to add additional single loader trucks to collect large bulk items.

Finally, there is nothing in the law that precludes alley way pickups. Despite respondents contention the its policy mandates "that all garbage be placed at the curb for collection in area accessible to DSNY's vehicles" (Answer, ¶78), nothing in the rules or regulations contains the latter term. The Charter includes alley ways and driveways within its definition of street. 16 RCNY 1-01 defines curbside collection as collection service where solid waste is placed "at the curbside of such building" in containers which are then "manually emptied by Department personnel into collection vehicles." Collection vehicles are not defined in the rules. The regulations do not further specify what "curbside means" but "curbside" is modified by the term "of such building." Furthermore, 16 RCNY 1-02.1 does not even address this issue but merely prohibits the placement of refuse out at the curb for collection earlier than 4:00pm preceding the day of collection.

Under the tenets of statutory construction, the term "at the curbside of said building" must be read in a narrow restrictive manner to mean curbside of the building in which the homeowner resides. Contrary to DSNY's argument, the regulations do not refer to the curbside as the "public curbside." Moreover, words, phrases and sentences of a section "should be interpreted with reference to the scheme of the entire section" and the meaning of an undefined word depends on the meaning of the whole act. People v. Odum, 31 NY3d 344, 351 (2018) ("such"); Charlotte's Restaurant, supra, 121 AD2d at 972 citing to Statutes §97 ("incidental"); Hilbertz v. City of New York, supra ("other pertinent matters); Riccelli Enters, Inc., supra,30 Misc 3d 573, 581-82 (Sup. Ct., Onondaga Cty. 2010) (even if there was ambiguity in the phrase "on behalf of" the resolution must be in favor of a narrow interpretation, since "the words used in a statute are construed in connection with, and the meaning is ascertained with reference to the words and phrases with which they are associated"). Furthermore, under the rule of Noscitur a sociis [*9](Statutes, §239(a)), the meaning of an amorphous word or phrase may be ascertained by a "consideration of the company in which it is found and the meaning of the words which are associated with it." Popkin v. Sec. Mut. Ins. Co. Of NY 48 AD2d 46, 48 (1st Dept. 1975) (Where comprehensive words in a contract are followed by an enumeration of specific things, under the rule of ejusdem generis the things coming within the comprehensive words will be limited to those of a like nature to those enumerated).

In fact, this narrow interpretation of "curbside of said building" lends credence to petitioners' contention that DSNY's new requirement that alley way residents place garbage at the corner of the adjacent intersecting streets violated the law. This phrase, read in tandem with § 16-120 (e)(1)'s prohibition against homeowners placing their household refuse in a public litter basket on the street, would seem to prohibit DSNY from directing that alley street homeowners drag their refuse up to 140 feet from their homes to the public sidewalks. The DSNY instruction to its sanitation inspectors not to issue tickets for the placement of the alleyway residences' garbage in front of — the nearest public street is the alleyway." (Tr. 38) indicates that DSNY knew its revised practice violated the Administrative Code.

While DSNY has broad discretion to establish routes, it has failed to set forth any rational basis or sound factual predicate to support its decisions in the instant matter. In light of the above, this Court nullifies the DSNY decision to discontinue waste collection on the four alley streets in question and to require the alley way residents to haul their refuse to the street curbsides. This determination in no way precludes the DSNY from requiring all alley way residents to sign indemnity agreement and or implementing a different refuse collection procedure so long as there is a rational basis for such changes. However, in the interim the relief requested in the Petition is granted. This constitutes the decision and order of the court.

DATED: June 14, 2019

KATHERINE A. LEVINE

Justice Supreme Court Footnotes

Footnote 1:This leads the court to ask rhetorically why the MLP was even used since no one disputes that the public streets are large enough to accommodate a regular sized sanitation truck.

Footnote 2:Commissioner Garcia's and Director Ehrhardt's letters will be discussed on pp 4 infra.

Footnote 3:In a footnote, DSNY asserts that the rogue district allocated an MLP to collect garbage during overtime, costing the city six hours of overtime pay per week.

Footnote 4:The Ehrhardt letter is almost identical to the Garcia letter and therefore will not be reiterated herein.