Precision Carts Vending, Inc. v. City of New York

250 A.D.2d 396, 672 N.Y.S.2d 346, 1998 N.Y. App. Div. LEXIS 5321

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered September 5, 1997, which, inter alia, granted plaintiff’s motion for summary judgment to the extent of rescinding seven concession agreements and directing the return of security deposits tendered in connection therewith, and denied defendants’ cross motion for summary judgment on their counterclaims, unanimously affirmed, without costs.

The court properly granted plaintiff summary judgment to the extent indicated, since the subject concession agreements purporting to allow plaintiff, a mobile food vendor, to operate concessions at seven locations within a city park are illegal pursuant to Local Laws, 1995, No. 15 of the City of New York (amending Administrative Code of City of NY § 17-306 et seq. [Local Law 15]). At the time the agreements were entered into, plaintiff was deemed to hold multiple permits pursuant to Administrative Code § 17-307 (b) (3) and (g) (2) (b), and defendants were without authority to adopt regulations exempting plaintiff, a private for-profit corporation, from the multiple permit prohibition of Local Law 15 (Administrative Code § 17-320). Such an exemption, if it was to be given the force of law, had to be enacted by the City Council, since it is that body, and not defendants, that is vested “ ‘with the legislative power of the city, and shall be the local legislative body of the city5 (New York City Charter, ch 2, § 21)” (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 356). Moreover, the exemption defendants would create is contrary to the express policy goals of Local Law 15, namely, to make permits available to a broader spectrum of individuals and entities while decreasing the likelihood that permits will be illegally leased and that excessive fees will be charged for the use of food carts (Big Apple Food Vendors’ Assn. v City of New York, 228 AD2d 282, appeal dismissed 88 NY2d 1064, lv denied 89 NY2d 807). We have considered defendants’ remaining contentions and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Wallach, Williams and Saxe, JJ.