Shah v City of New York 2025 NY Slip Op 30029(U) January 6, 2025 Supreme Court, New York County Docket Number: Index No. 161092/2024 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 01/06/2025 05:07 PM INDEX NO. 161092/2024 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/06/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 161092/2024 WAJID SHAH, MOTION DATE 11/29/2024 Petitioner, MOTION SEQ. NO. 003 -v- THE CITY OF NEW YORK, DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion for ARTICLE 78 (BODY OR OFFICER) .
Petitioner is a mobile food vendor in New York City. At some point unspecified prior to
the events at issue here, he was issued a mobile food vending unit permit, under permit number
50130362 by respondent New York City Department of Health and Mental Hygiene. On June 28,
2023, however, petitioner was granted a different permit, under permit number 50131225 (the
“Second Permit”) and the First Permit was withdrawn pursuant to Administrative Code §17-
307(2)(C), which precludes a vendor from holding more than one such permit at a time. This
Second Permit was subsequently revoked.
On or about December 21, 2023, petitioner commenced a special proceeding under index
number 162319/2023 to compel respondent to reinstate the Second Permit and, upon its
reinstatement, transfer this permit to his wife (the “First Proceeding”). In a decision and order
dated June 18, 2024, the Petition was granted to the extent that respondent was directed to reinstate
the Second Permit or its functional equivalent (Index No. 162319/2023, NYSCEF Doc. No. 57).
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The Court added that since respondent had never granted or denied petitioner’s request to transfer
the Second Permit (instead revoking it), this issue was not ripe for judicial review (Id.).
On November 20, 2024, petitioner filed orders to show cause in the First Proceeding
seeking to compel respondent to issue a formal determination regarding his request to transfer his
MFV Supervisory License (which grants a holder the ability to vend in New York City and is
distinct from the permits referenced above, which relate to specific mobile food vending units) to
his wife and issue a determination on his June 30, 2024 request for reissuance of the First Permit.
The Court declined to sign these orders to show cause, as the relief sought was beyond the scope
of that special proceeding. In doing so, however the Court directed the parties to appear for a
conference on December 11, 2024, to “discuss respondent’s compliance with the directives of the
June 18, 2024, order.”
On November 29, 2024, petitioner commenced the instant special proceeding, by petition
and order to show cause compelling respondent to issue a determination on his June 30, 2024
request for reissuance of the First Permit and asserting that the withdrawal of the First Permit was
arbitrary and capricious and contrary to Administrative Code §17-307(2)(C) and General Business
Law §§32 and 35. Petitioner then filed two additional orders to show cause, seeking orders
compelling respondent to issue a formal determination regarding Petitioner’s June 18, 2024
application to transfer his Mobile Food Vending Supervisory License to his spouse and schedule
a pre-permit inspection of his mobile food cart, a necessary predicate to the reinstatement of the
Second Permit.
The Court signed the third order to show cause, concerning the pre-permit inspection, and
scheduled argument for December 11, 2024, the same date as the conference scheduled in the prior
special proceeding. At the parties’ appearance on that date, respondent agreed to schedule an
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inspection of petitioner’s mobile food vending unit within five days and reissue the Second Permit
upon a satisfactory inspection. The Court also issued an order to that effect (Index No.
162319/2023, NYSCEF Doc. No. 156). At that appearance, petitioner represented to the Court that
the reinstatement of the Second Permit would moot the relief sought regarding his request for the
reinstatement of the First Permit, the sole issue raised in the petition in this special proceeding.
On January 1, 2025, filed a fourth order to show cause in the present special proceeding
seeking an order declaring that the purported transfer of his Disabled Veteran Supervisory License
to his spouse was invalid and directing that his Disabled Veteran Supervisory License
(#41618198) be restored within five (5) business days (NYSCEF Doc. No. 30 [Proposed Order to
Show Cause]). In his affirmation in support of this order to show cause, he averred that the Second
Permit had been reinstated and, at his request, transferred to his wife but asserted that his Disabled
Veteran Supervisory License (#41618198) had also been “transferred” to her without his consent.
Ultimately, as petitioner acknowledged at oral argument, the petitioner and first order to
show cause in this special proceeding are mooted by respondent’s reissuance of the Second Permit
to petitioner. As to his second order to show cause, seeking an order compelling respondent to
transfer the Second Permit to his wife, this relief is beyond the scope of the petition but is, in any
event, mooted by petitioner’s representation that the permit was in fact transferred. The third order
to show cause, seeking a pre-permit inspection of the mobile food vending cart, is also outside the
scope of the petition but similarly moot, as there is no dispute that the pre-permit inspection was
held as ordered.
Finally, the Court declines to sign petitioner’s fourth order to show cause. This order to
show cause includes factual allegations and seeks relief beyond that included in the petition.
Petitioner is advised that an order to show cause is only a mechanism through which petitioner
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notifies respondent of the commencement of a special proceeding (See Clinton-178 Towers LLC
v Chapple, 58 Misc 3d 198, 204 [Civ Ct, Bronx County 2017]) and is not an avenue by which
petitioner can add new factual allegations and seek new relief after the petition is filed. As the
issues raised in the petition in this special proceeding have been resolved, petitioner’s challenge to
respondent’s conduct after the pre-permit inspection and reissuance of the Second Permit—
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Shah v City of New York 2025 NY Slip Op 30029(U) January 6, 2025 Supreme Court, New York County Docket Number: Index No. 161092/2024 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 01/06/2025 05:07 PM INDEX NO. 161092/2024 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/06/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 161092/2024 WAJID SHAH, MOTION DATE 11/29/2024 Petitioner, MOTION SEQ. NO. 003 -v- THE CITY OF NEW YORK, DECISION + ORDER ON MOTION Respondent. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion for ARTICLE 78 (BODY OR OFFICER) .
Petitioner is a mobile food vendor in New York City. At some point unspecified prior to
the events at issue here, he was issued a mobile food vending unit permit, under permit number
50130362 by respondent New York City Department of Health and Mental Hygiene. On June 28,
2023, however, petitioner was granted a different permit, under permit number 50131225 (the
“Second Permit”) and the First Permit was withdrawn pursuant to Administrative Code §17-
307(2)(C), which precludes a vendor from holding more than one such permit at a time. This
Second Permit was subsequently revoked.
On or about December 21, 2023, petitioner commenced a special proceeding under index
number 162319/2023 to compel respondent to reinstate the Second Permit and, upon its
reinstatement, transfer this permit to his wife (the “First Proceeding”). In a decision and order
dated June 18, 2024, the Petition was granted to the extent that respondent was directed to reinstate
the Second Permit or its functional equivalent (Index No. 162319/2023, NYSCEF Doc. No. 57).
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The Court added that since respondent had never granted or denied petitioner’s request to transfer
the Second Permit (instead revoking it), this issue was not ripe for judicial review (Id.).
On November 20, 2024, petitioner filed orders to show cause in the First Proceeding
seeking to compel respondent to issue a formal determination regarding his request to transfer his
MFV Supervisory License (which grants a holder the ability to vend in New York City and is
distinct from the permits referenced above, which relate to specific mobile food vending units) to
his wife and issue a determination on his June 30, 2024 request for reissuance of the First Permit.
The Court declined to sign these orders to show cause, as the relief sought was beyond the scope
of that special proceeding. In doing so, however the Court directed the parties to appear for a
conference on December 11, 2024, to “discuss respondent’s compliance with the directives of the
June 18, 2024, order.”
On November 29, 2024, petitioner commenced the instant special proceeding, by petition
and order to show cause compelling respondent to issue a determination on his June 30, 2024
request for reissuance of the First Permit and asserting that the withdrawal of the First Permit was
arbitrary and capricious and contrary to Administrative Code §17-307(2)(C) and General Business
Law §§32 and 35. Petitioner then filed two additional orders to show cause, seeking orders
compelling respondent to issue a formal determination regarding Petitioner’s June 18, 2024
application to transfer his Mobile Food Vending Supervisory License to his spouse and schedule
a pre-permit inspection of his mobile food cart, a necessary predicate to the reinstatement of the
Second Permit.
The Court signed the third order to show cause, concerning the pre-permit inspection, and
scheduled argument for December 11, 2024, the same date as the conference scheduled in the prior
special proceeding. At the parties’ appearance on that date, respondent agreed to schedule an
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inspection of petitioner’s mobile food vending unit within five days and reissue the Second Permit
upon a satisfactory inspection. The Court also issued an order to that effect (Index No.
162319/2023, NYSCEF Doc. No. 156). At that appearance, petitioner represented to the Court that
the reinstatement of the Second Permit would moot the relief sought regarding his request for the
reinstatement of the First Permit, the sole issue raised in the petition in this special proceeding.
On January 1, 2025, filed a fourth order to show cause in the present special proceeding
seeking an order declaring that the purported transfer of his Disabled Veteran Supervisory License
to his spouse was invalid and directing that his Disabled Veteran Supervisory License
(#41618198) be restored within five (5) business days (NYSCEF Doc. No. 30 [Proposed Order to
Show Cause]). In his affirmation in support of this order to show cause, he averred that the Second
Permit had been reinstated and, at his request, transferred to his wife but asserted that his Disabled
Veteran Supervisory License (#41618198) had also been “transferred” to her without his consent.
Ultimately, as petitioner acknowledged at oral argument, the petitioner and first order to
show cause in this special proceeding are mooted by respondent’s reissuance of the Second Permit
to petitioner. As to his second order to show cause, seeking an order compelling respondent to
transfer the Second Permit to his wife, this relief is beyond the scope of the petition but is, in any
event, mooted by petitioner’s representation that the permit was in fact transferred. The third order
to show cause, seeking a pre-permit inspection of the mobile food vending cart, is also outside the
scope of the petition but similarly moot, as there is no dispute that the pre-permit inspection was
held as ordered.
Finally, the Court declines to sign petitioner’s fourth order to show cause. This order to
show cause includes factual allegations and seeks relief beyond that included in the petition.
Petitioner is advised that an order to show cause is only a mechanism through which petitioner
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notifies respondent of the commencement of a special proceeding (See Clinton-178 Towers LLC
v Chapple, 58 Misc 3d 198, 204 [Civ Ct, Bronx County 2017]) and is not an avenue by which
petitioner can add new factual allegations and seek new relief after the petition is filed. As the
issues raised in the petition in this special proceeding have been resolved, petitioner’s challenge to
respondent’s conduct after the pre-permit inspection and reissuance of the Second Permit—
including but not limited to its purportedly improper transfer of petitioner’s license to his wife—
must be brought through a new special proceeding (See Brigham v New York City Loft Bd. 2021
WL 2889928 [Sup Ct, NY County 2021] [“the relief sought by Petitioner in this order to show
cause are separate and distinct from the relief requested in the petition and are outside the scope
of the petition, requiring a separate proceeding”]).
Accordingly, it is
ORDERED and ADJUDGED that this special proceeding is denied and dismissed as
mooted; and it is further
ORDERED that respondent shall, within ten days of the date of this decision and order,
serve a copy of same with notice of entry upon petitioner as well as the Clerk of the Court (60
Centre St., Room 141B) and the Clerk of the General Clerk’s Office (60 Centre St., Rm. 119) who
are directed to enter judgment accordingly; and it is further
ORDERED that within ten days from entry of this order, counsel for respondent shall
serve a copy of this order with notice of entry on the Clerk of the Court (60 Centre St., Room
141B) and the Clerk of the General Clerk’s Office (60 Centre St., Rm. 119) who are directed to
enter judgment accordingly; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on
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Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-
Filing” page on this court’s website at the address www.nycourts.gov/supctmanh).
This constitutes the decision, order, and judgment of the Court.
1/6/2025 ~,;ti~ DATE HON. JUDY H. KIM, J.S.C.
□ ~ ~ CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
161092/2024 SHAH, WAJID vs. THE CITY OF NEW YORK Page 5 of 5 Motion No. 003 003
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