Matter of Rossi v. New York City Dept. of Parks & Recreation

127 A.D.3d 463, 8 N.Y.S.3d 25

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 2015
• Docket: 103793/12 -103794/12 -103796/12 12600 103795/12 12599 12598 12597
• Status: Published

Opinions

Order and judgment (one paper), Supreme Court, New York County (Joan B. Lobis, J.), entered March 25, 2013, granting petitioner Danny Rossi’s petition to annul the determination of the New York City Environmental Control Board (ECB), dated May 31, 2012, which sustained three notices of violation of Rules of City of New York Department of Parks and Recreation (56 RCNY) § 1-03 (c) (1), affirmed, without costs. Order and judgment (one paper), same court and Justice, entered March 25, 2013, granting petitioner Elizabeth A. Rossi’s petition to annul the determination of ECB, dated May 31, 2012, which sustained two notices of violation of 56 RCNY 1-03 (c) (1), modified, on the law, to deny the petition with respect to the notice of violation premised upon General Business Law § 35-a (7) (i), and otherwise affirmed, without costs. Order and judgment (one paper), same court and Justice, entered March 25, 2013, granting petitioner Rabah Belkebir’s petition to annul the determination of ECB, dated May 31, 2012, which sustained one notice of violation of 56 RCNY 1-03 (c) (1), affirmed, without costs. Order and judgment (one paper), same court and Justice, entered March 25, 2013, granting petitioner Martin Diaz’s petition to annul the determination of ECB, dated May 31, 2012, which sustained 11 notices of violation of 56 RCNY 1-03 (c) (1), modified, on the law, to deny the petition with respect to the two notices of violation premised upon General Business Law § 35-a (7) (i), and otherwise affirmed, without costs.

In these related CPLR article 78 proceedings, petitioners, who are disabled veterans holding mobile food vending licenses, challenge notices of violation issued by respondent New York City Department of Parks and Recreation (DPR) for failure to comply with Parks Department officers’ directives to move their food carts. Most of the notices of violation allege that petitioners were asked to move their carts because General Business Law § 35-a (3) provides that only two street vendors holding “specialized vending licenses” (SVLs) may vend on each “block face.” SVLs are issued to disabled veterans by way of a priority system based upon the veteran’s date of application (General Business Law § 35-a [1] [a], [b]). When three or more SVL holders attempt to vend on the same “block face,” the two SVL holders with higher priority have the exclusive right to vend, and any other SVL holder vending on that “block face” is deemed to be vending without having obtained a license (General Business Law § 35-a [3]). Since other SVL holders with higher priority were vending on the dates in question, the Parks Department officers asked petitioners to move, and issued the notices of violation when they refused. Separate from the “block face” issue, two of the notices of violation issued to petitioner Diaz, and one issued to petitioner Elizabeth A. Rossi, allege that they refused to move after being told that their food carts violated certain footage restrictions contained in General Business Law § 35-a (7) (i).

General Business Law § 35-a governs the issuance of SVLs to disabled veterans who “hawk, peddle, vend and sell goods, wares or merchandise or solicit trade” (General Business Law § 35-a [1] [a]). Petitioners argue that this statute does not apply to food vendors. The central issue presented in this appeal is whether the phrase “goods, wares or merchandise” encompasses food. We conclude that it does. “It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Matter of State of New York v John S., 23 NY3d 326, 340 [2014] [internal quotation marks omitted]). “As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Because the terms “goods” and “merchandise” are not defined in General Business Law § 35-a, they should be construed in accordance with their common, everyday meaning (Matter of New York Skyline, Inc. v City of New York, 94 AD3d 23, 27 [1st Dept 2012], lv denied 19 NY3d 809 [2012]).

The word “goods” is broadly defined as “something manufactured or produced for sale” (Merriam-Webster’s Collegiate Dictionary 539 [11th ed 2003]). Likewise, “merchandise” is defined as “the commodities or goods that are bought and sold in business” (id. at 776). As a matter of common parlance, the term “goods” plainly includes food. For example, one often refers to canned foods as “canned goods,” and baked items as “baked goods.” Thus, food products such as those sold by petitioners fall within the common, everyday meaning of “goods” and “merchandise” (see Monroy v City of New York, 95 AD3d 535 [1st Dept 2012] [food is “merchandise” as that term is used in city regulation governing the sale of merchandise]). If the legislature had intended to exclude food from the purview of General Business Law § 35-a, it could have expressly done so, as it did, for example, in General Municipal Law § 85-a [explicitly excepting “food products” from the phrase “goods, wares or merchandise”]). Its failure to have made such an exclusion in General Business Law § 35-a indicates an intention to include food within the broad reach of the statute.¹

The phrase “goods, wares or merchandise” is drawn verbatim from General Business Law § 35-a’s companion statute, General Business Law § 32, which governs the rights of veterans to vend. That statute, from its inception, has been understood to apply to all categories of vendors, including food vendors (see e.g. City of Buffalo v Linsman, 113 App Div 584 [4th Dept 1906] [sale of vegetables]; Matter of Sharpe v NYC Dep’t of Health & Mental Hygiene, 2008 NY Slip Op 32094[U] [Sup Ct, NY County 2008] [mobile food vending]; People v Mann, 113 Misc 2d 980 [Dist Ct, Suffolk County 1982] [sale of hot dogs]; People v Gilbert, 68 Misc 48 [County Ct, Otsego County 1910] [sale of peanuts and popcorn]; see also Good Humor Corp. v City of New York, 290 NY 312 [1943] [involving sale of ice cream and local law regulating sale of “goods, wares or merchandise”]). It would be incongruous for the legislature to have viewed food as “goods, wares or merchandise” for purposes of General Business Law § 32, but not for General Business Law § 35-a.

It is axiomatic that “a statute . . . must be construed as a whole and that its various sections must be considered together and with reference to each other” (People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]). A review of the myriad provisions in General Business Law § 35-a makes clear that the statute was intended to, inter alia, combat sidewalk congestion and promote public safety in areas where vending is taking place. For example, vending is prohibited on sidewalks where the pedestrian path is less than 10 feet wide (General Business Law § 35-a [3]). There are also restrictions on, inter alia, vending within bus stops and taxi stands, and near subway entrances, driveways, disabled access ramps and entrances to stores (General Business Law § 35-a [7] [h], [1] [i], [viii]). Other parts of the statute prohibit interference with fire hydrants and traffic barriers, use of oil and gas powered equipment, and vending over subway grates, ventilation grills and manholes (General Business Law § 35-a [7] [g], [1] [iii], [v]). The congestion and safety concerns underlying these provisions pertain to all vendors regardless of what they are selling, and there is no rational reason why the legislature would intend for these restrictions to apply to general vendors but not food vendors.

The passing reference to food vendors in General Business Law § 35-a (11) fails to demonstrate that the legislature did not intend food vending to be covered under the statute. That subdivision, which provides for certain caps on vending by disabled veterans, is merely an acknowledgment that there are different types of vendors — namely “food, general [and] vendors of written matter” (General Business Law § 35-a [11]), and sheds no light on the central question of whether food is “goods” or “merchandise.” Likewise, the fact that two different agencies regulate street vending in New York City does not mean that the state legislature intended to carve out food vending from General Business Law § 35-a.

Having concluded that the vending limitations contained in General Business Law § 35-a apply to the sale of food, we turn to the remaining issues presented in this proceeding. Petitioners were vending in front of the Metropolitan Museum of Art, which is abutted by a five-block span of sidewalk on the west side of Fifth Avenue extending from the side streets of East 79th Street through East 84th Street. On the east side of Fifth Avenue, this span comprises five distinct blocks separated by the above side streets, each of which forms a T-junction with Fifth Avenue. Most of the notices of violation were issued because petitioners had allegedly violated the provision in General Business Law § 35-a (3) allowing no more than two SVL holders to vend on a given “block face.”

DPR and ECB take the position that the entire span of sidewalk in front of the museum comprises a single “block face” for purposes of General Business Law § 35-a (3). We disagree. The regulations enacted with respect to this statute define “block face” as “the area of sidewalk spanning from one intersection to the next” (Rules of City of NY Dept of Consumer Affairs [6 RCNY] § 2-315 [a] [1]). The term “intersection” is defined in the Vehicle and Traffic Law as, inter alia, “[t]he area embraced within the prolongation or connection of the lateral curb lines ... of two highways which join one another at, or approximately at, right angles” (Vehicle and Traffic Law § 120 [a]). Likewise, the New York City Department of Transportation’s regulations define “intersection” as “the area contained within the grid created by extending the curblines of two or more streets at the point at which they cross each other” (Rules of City of NY Dept of Transportation [34 RCNY] § 2-01). Because the T-junctions formed where Fifth Avenue meets each of the streets from East 79th through East 84th Streets are all separate intersections, the multi-block sidewalk span in front of the museum is not a single “block face.” Thus, in light of the provisions of the Vehicle and Traffic Law and RCNY, ECB’s interpretation of the term “block face” was an error of law. Accordingly, ECB erroneously sustained those notices of violation based on the restriction of two SVL holders per “block face.”²

Contrary to the dissent’s view, the “block face” issue, which was fully briefed in the CPLR article 78 proceedings below, is properly before us. CPLR 7804 (g) provides, in relevant part, that “when the [article 78] proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding” (emphasis added). Thus, we are empowered to resolve all issues raised in the article 78 petitions, including the “block face” issue (see Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174 [1969]; see also Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C7804:8 [“To preserve judicial economy, . . . 7804 (g) has been interpreted as a direction to the Appellate Division to consider all of the questions that are presented in an Article 78 proceeding no matter how the case arrived at its doorstep”]). We disagree with the dissent’s position that we should defer to ECB’s construction of the term “block face.” The issue before us turns solely on statutory interpretation, and no such deference is owed since we are not interpreting a statute “where specialized knowledge and understanding of underlying operational practices” or “an evaluation of factual data and inferences to be drawn therefrom is at stake” (Matter of RAM I LLC v New York State Div. of Hous. & Community Renewal, 123 AD3d 102, 105 [1st Dept 2014] [internal quotation marks omitted]).

ECB properly upheld those notices of violation issued to petitioners Diaz and Elizabeth A. Rossi premised upon General Business Law § 35-a (7) (i). Under that provision, SVL holders are prohibited from “occupying] more than eight linear feet of public space parallel to the curb” and “more than three linear feet to be measured from the curb to the property line.”³ The sole defense raised in the administrative proceedings to these notices of violation, which have nothing to do with the “block face” issue, was that General Business Law § 35-a does not apply to food vending.⁴ In light of our rejection of this defense, no

basis exists to vacate these notices of violation.

Concur— Moskowitz, DeGrasse, Richter and Kapnick, JJ.

1 . There is nothing in the legislative history to indicate that the legislature intended to exclude food vending.

2 . The dissent’s reference to the number of bus stops in front of the museum, an issue not fully developed in the administrative record, has no bearing on the legal issue of whether the sidewalk area in front of the museum constitutes a single “block face.”

3 . Although, in general, the provisions of General Business Law § 35-a (7) are not applicable to the area where petitioners were vending, the specific prohibitions contained in General Business Law § 35-a (7) (i) apply to all SVL holders, regardless of where they vend (see General Business Law § 35-a [3]).

4 . In the article 78 petitions, petitioners argued that these size limitations create a disadvantage for disabled veteran food vendors since they purportedly conflict with certain city regulations. We do not reach this issue because it was not raised in the ECB proceedings (see Matter of 72A Realty Assoc. v New York City Envtl. Control Bd., 275 AD2d 284, 286 [1st Dept 2000]).