Opinion
Index No. 156328/2022 Motion Seq. Nos. 001 002
08-01-2023
DOUGLAS ARMER, ANGIE BILOTTI, TANYA BONNER, ROBERT CAMACHO, ERIC CASIMIRO, MEREDITH CASIMIRO, FAI CHU, EMMA CULBERT, ELIZABETH DEMAYO, ELIZABETH DWORKIN, MARY EVANCHO, DEBORAH FARLEY, DEBORAH GONZALEZ, DAVID GRUBER, CHHAYA KAPADIA, MICHAEL KENNA, NORA KILLORAN, ELLEN KOENIGSBERG, DASHIELL KUPPER, CHERI LEON, BETSY MAK, WALTER NASH, RICARDO PACHECO, SHANNON PHIPPS, DANIEL PREBUTT, LARRY ROBERTS, MARCELL ROCHA, INA SELDEN, TRINA SEMORILE, MICHAEL SIMON, ANTHONY STROPOLI, PATRICK WALSH, JOHN WETHERHOLD, RUSSEL WHITEHOUSE, JUDITH ZABOROWSKI Petitioners, v. CITY OF NEW YORK, Respondent.
Unpublished Opinion
MOTION DATE 07/31/2023
DECISION+ ORDER ON MOTION
ARLENE P. BLUTH, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 13,14,15, 16,17, 18,19, 20, 21,22, 23, 24, 25, 26, 27, 28, 29, 30, 31,32, 33, 34, 35, 36, 37, 38, 39, 40, 41,42, 43, 44, 49, 50, 52, 55, 56, 57, 58, 59, 60, 62, 63 were read on this motion to/for ARTICLE 78.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 64, 65, 66, 67, 68, 69, 70, 71,72, 73, 74, 75, 76 were read on this motion to/for AMEND CAPTION/PLEADINGS.
Motion Sequence Numbers 001 and 002 are consolidated for disposition. The initial petition (MS001) is moot as it was based on previous iterations of the subject executive orders. Petitioners' motion (MS002) for leave to amend and for a temporary injunction on the City of New York's Temporary Open Restaurant Program ("TORP") is granted as described below.
Background
This dispute concerns the various executive orders that permit the use of public spaces by restaurants and bars. The initial purpose of TORP, or outdoor dining, was to assist bars and restaurants which were then struggling to cope with the effects of the CO VID-19 pandemic. The program was initiated via an executive order (number 126) dated June 18, 2020 and has continued in some form for the last three years. The ability to utilize outdoor public spaces, such as sidewalks and the streets, allowed a restaurant or bar to serve more customers during the height of the pandemic. Restaurants and bars were granted this relief (as opposed to all businesses) because masks (which were required indoors at the time) had to be removed to eat and drink. Permitting outdoor service was part of an effort to help keep these establishments in business during the pandemic.
Petitioners contend that they are all adult residents of New York City and ask this Court to temporarily stop respondent's use of TORP. They observe that the initial justifications for outdoor dining (indoor mask requirements) no longer exist and they emphasize that the recent executive orders authorizing the use of TORP are wholly insufficient. Petitioners point to many actions implemented by respondent suggesting that there is no longer an emergency, including the end of vaccine and mask mandates, the lifting of occupancy restrictions and the end of social distancing requirements. Petitioners question how respondent can rationally suspend local laws based on a pandemic that, at least according to respondent, no longer requires significant public health rules. They claim that the executive orders permitting the continued use of TORP are arbitrary and capricious. Petitioners also seek to amend their petition to address the executive order now in effect.
Respondent opposes and cross-moves to dismiss. It claims that the mayor has declared a state of emergency and so there is no basis to disturb the relevant executive orders. It maintains that petitioners lack standing as they cannot show irreparable harm. Respondent maintains that petitioners did not cite anything other than generalized grievances. It also claims that this Court lacks jurisdiction to review these executive orders and that, in any event, the Court should not disturb a lawful use of executive discretion.
Respondent insists that the continuation of TORP is reasonably necessary in order to facilitate the city's economic recovery. It characterizes petitioners' complaints as anecdotal descriptions that should have no import in this proceeding.
Standing
A threshold issue for this proceeding is whether petitioners have standing to bring the instant petition.
"The two-part test for determining standing is a familiar one. First, a plaintiff must show 'injury in fact,' meaning that plaintiff will actually be harmed by the challenged administrative action. As the term itself implies, the injury must be more than conjectural. Second, the injury a plaintiff asserts must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" (New York State Assn, of Nurse Anesthetists v Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123 [2004]).
Petitioners allege that they are all adult residents of New York City and detail the ways in which they claim they have been adversely affected by TORP. Petitioners submit affidavits in which they complain about increased foot traffic and overwhelming amounts of trash in their neighborhoods (see NYSCEF Doc. No. 13 at 2), increase in rodents (NYSCEF Doc. No. 7) and loud music late at night (NYSCEF Doc. No. 21 at 2-3). One business owner (who does not own a restaurant and therefore cannot utilize TORP) details how her shop is hidden between two sheds (NYSCEF Doc. No. 26 at 2).
The Court finds that petitioners have standing to bring the instant proceeding to challenge the executive order at issue. Respondent's assertion that petitioners have suffered no injury is not supported on this record. Petitioners detail numerous issues with the prevalence of outdoor dining, many of which might constitute a nuisance. And petitioners clearly fall within the zone of interests protected under the purpose of the suspended local laws. The local laws suspended by the executive order require that certain areas, like sidewalks and streets, are public areas and not places for private establishments to run their businesses. Part of the rationale for these laws is to ensure that all city residents and visitors including pedestrians, cyclists, and vehicles can traverse these neighborhoods in a safe way.
The Court questions who would have standing in this case if not petitioners? Petitioners contend they are New York City residents who want a court to address the efficacy of a governmental action that purportedly adversely affects not just them, but every New Yorker. That is, after all, one purpose of the courts-to allow residents to seek judicial review of the actions of another branch of government.
That leads to another argument raised by respondent-that the Court should decline jurisdiction pursuant to the separation of powers doctrine. Respondent insists that only the state legislature has oversight authority over the instant executive order. It even argues that discretionary acts of an executive are not subject to judicial review.
This Court declines to embrace a theory of judicial review that would permit unlimited actions by an executive without any check by the judicial branch. There were many challenges brought during the pandemic concerning executive actions (see e.g, Dixon v De Blasio, 566 F.Supp.3d 171, 179 [ED NY 2021], vacated and remanded sub nom. Dixon v DeBlasio, 21-2666, 2022 WL 961191 [2d Cir 2022]). This Court is not aware of, and respondent did not cite, any case in which a court held that executive actions based on the COVID-19 pandemic were wholly shielded from judicial scrutiny.
Injunctive Relief
Having found that petitioners have standing, the Court must assess whether or not petitioners are entitled to injunctive relief.
"A preliminary injunction substantially limits a defendant's rights and is thus an extraordinary provisional remedy requiring a special showing. Accordingly, a preliminary injunction will only be granted when the party seeking such relief demonstrates a likelihood of ultimate success on the merits, irreparable injury if the preliminary injunction is withheld, and a balance of equities tipping in favor of the moving party" (1234 Broadway LLC v W. Side SRO Law Project), 86 A.D.3d 18, 23, 924 N.Y.S.2d 35 [1st Dept 2011] [citation omitted]).
Likelihood of Success on the Merits
The Court begins its analysis on this branch of the motion with the statutory basis for the mayor's executive order.
Respondent relies upon Executive Law § 24 for the proposition that the mayor may permit outdoor dining. This statutory scheme permits the mayor, as chief executive, to declare an emergency (Executive Law § 24[1]) and to suspend "any of its local laws, ordinances or regulations, or parts thereof subject to federal and state constitutional, statutory and regulatory limitations, which may prevent, hinder, or delay necessary action in coping with a disaster or recovery therefrom" (Executive Law § 24[l][g]).
The Court's first task is to assess the nature of the claimed emergency or disaster. Disaster is defined under the Executive Law as an "occurrence or imminent, impending or urgent threat of wide spread or severe damage, injury, or loss of life or property resulting from any natural or man-made causes, including, but not limited to, fire, flood, earthquake, hurricane, tornado, high water, landslide, mudslide, wind, storm, wave action, volcanic activity, epidemic, disease outbreak, air contamination, terrorism, cyber event, blight, drought, infestation, explosion, radiological accident, nuclear, chemical, biological, or bacteriological release, water contamination, bridge failure or bridge collapse" (Executive Law § 20[2][a]).
The above cited statutory scheme clearly permits the mayor to declare that a disaster or emergency exists and to take certain actions to address that emergency or disaster. The Court must then consider the executive order in question and the cited basis for suspending certain local laws.
The order currently in effect, Executive Order 459, states that:
"WHEREAS, although the City, state, and federal governments have rescinded various public health-related measures responding to COVID-19, the City has yet to fully recover from the effects of the COVID-19 pandemic; and
WHEREAS, as of June 2023, the City's unemployment rate is 5.4%, higher than the national rate of 3.7%, and higher than City's unemployment rate of 4.3% in February 2020; and
WHEREAS, the City's office occupancy rate is approximately 48% of the prepandemic rate, and the City's subway ridership is at 70% of pre-pandemic levels; and
WHEREAS, this Order is given because certain emergency measures continue to be necessary for the City's recovery from the economic, housing, transportation, and other effects of the COVID-19 pandemic; and
WHEREAS, a state of emergency related to the effects of the COVID-19 pandemic and the recovery therefrom in New York City, declared in Emergency Executive Order No. 435, dated June 20, 2023, remains in effect; and
WHEREAS, additional reasons for requiring the measures continued in this Order are set forth in Emergency Executive Order No. 435, dated June 20, 2023;
NOW, THEREFORE, pursuant to the powers vested in me by the laws of the State of New York and the City of New York, including but not limited to the New York Executive Law, the New York City Charter and the Administrative Code of the City of New York, and the common law authority to protect the public in the event of an emergency:
Section 1. I hereby direct that the State of Emergency declared in Emergency Executive Order No. 435, dated June 20, 2023, is extended for thirty (30) days.
§ 2. I hereby direct that Section 1 of Emergency Executive Order No. 455, dated July 14, 2023, is hereby extended.
§3.1 hereby direct the Fire Department of the City of New York, the New York City Police Department, the Department of Buildings, the Sheriff, and other agencies as needed to immediately enforce the directives set forth in this Order in accordance with their lawful enforcement authorities, including but not limited to Administrative Code sections 15-227(a), 28-105.10.1, and 28-201.1, and section 107.6 of the New York City Fire Code. Violations and directives set forth in this Order may be issued as if there were violations under the New York City Health Code, title 24 Rules of the City of New York sections 3.07 and 3.11, and may be enforced as such by the Department of Health and Mental Hygiene or any other agency named in this section.
§ 4. This Emergency Executive Order shall take effect immediately. The State of Emergency shall remain in effect for a period not to exceed thirty (30) days or until rescinded, whichever occurs first. Additional declarations to extend the State of Emergency for additional periods not to exceed thirty (30) days shall be issued if needed."
The Court finds that this executive order fails to offer a rational justification for suspending local laws in order to permit outdoor dining. Simply put, the Court finds that the order did not sufficiently explain why an emergency exists that requires the suspension of certain local laws. That compels the Court to find that petitioners have a likelihood of success on the merits as respondent did not show a proper basis for suspending the laws in question.
To be clear, the Court is not minimizing or downplaying the long-term economic effects of the pandemic. There is no doubt that New York City and the entire country will be dealing with the negative ramifications of COVID-19 for a long time. But the question here is the nature of the claimed emergency. The executive order points to a slightly higher unemployment rate (according to the order, the unemployment rate is currently 1.1% higher in New York City than it was before the pandemic began in February 2020). That does not justify the imposition of emergency powers to suspend local laws.
The other stated reasons also do not compel a declaration of an emergency. That the occupancy rate of commercial offices is lower and that fewer people are taking the subway does not, standing alone, constitute an emergency. Many factors that have nothing to do with an "emergency" bear on these issues, chief among them being the rise of remote work. And the Court observes that these two asserted reasons have only a tenuous connection to a restaurant's revenues. Even if people are working remotely, they can still go to (and order from) a local restaurant. That is not to say that fewer commuters into New York City (a possible reason for these numbers) will have no effect on the success of a bar or restaurant. The Court merely finds that there are many overlapping factors relating to the lower occupancy rate for commercial properties and lower subway ridership and the executive order does not cite anything that remotely constitutes an emergency. Moreover, the severity of these cited factors does not approach an emergency; for instance, the unemployment level is not so high that it invokes concerns about a recession or depression.
The reasons cited in Executive Order 435 (the current order also references the reasons cited in number 435) do not compel a different conclusion. That order cites some identical justifications (such as the low office occupancy rate and slightly higher unemployment) but also points to statistics about how many New Yorkers are rent burdened. While many New Yorkers are struggling to deal with ever increasing rents, the Court fails to see how that specifically relates to TORP.
Executive Order 435 also makes sweeping claims about the general economic struggles facing certain industries that were hit hard by the pandemic. However, some of the industries cited in the order, such as retail and construction, are not part of the outdoor dining program. Also mentioned is that outdoor dining saved 100,000 jobs. While that assertion, if true, is heartening, it does not demonstrate that there is an emergency that justifies the continued suspension of certain laws. Instead, it suggests that legislative action to implement some form of outdoor dining should be explored.
A review of other cases involving what constitutes an emergency include the COVID-19 pandemic itself (Generoso v Adams, 74 Mise 3d 760, 769, 164 N.Y.S.3d 383 [Sup Ct, Kings County 2022] [finding that the COVID-19 pandemic constituted an emergency under Executive Law § 24] and the aftermath of a hurricane (Sluys v Holbrook, 292 A.D.2d 371, 372, 739 N.Y.S.2d 173 [2d Dept 2002] [noting that a town had declared an emergency under Executive Law § 24 to justify efforts to stabilize a slope behind a condominium following a hurricane]).
But respondent did not cite to any cases where an executive declared an emergency because of less than ideal general economic indicators. This factor clearly weighs in favor of petitioners.
Irreparable Injury
The Court finds that petitioners have satisfied this prong as well. They will continue to suffer from the loss of public use of the sidewalks and other public areas covered under the executive order without the issuance of an injunction. Petitioners insist there has been increased prevalence of vermin, trash, nuisance from noise as well as harmful effects on businesses not entitled to use this outdoor space. These allegations establish irreparable harm (61 W. 62 Owners Corp, v CGMEMP LLC, 77 A.D.3d 330, 335 [1st Dept 2010], affd as mod and remanded, 16 N.Y.3d 822 [2011] [finding that continuous loud music from a rooftop bar that played until 3 a.m. constituted irreparable harm]).
The Court takes no position on whether legislative action (or executive action based on some other statute) could amend or modify the currently existing laws to allow outdoor dining. The Court's decision rests on the fact that respondent cited an inapplicable basis for suspending laws that, according to petitioners, wreak havoc with their neighborhoods. This is not a situation in which a governmental agency decides, in its discretion, not to enforce a law (see Alliance to End Chickens as Kaporos v New York City Police Dept., 152 A.D.3d 113, 118 [1st Dept 2017], affd, 32 N.Y.3d 1091 [2018]). Rather, the mayor is affirmatively suspending the current law without a proper basis to do so and that action is allegedly actively injuring petitioners.
Balancing of the Equities
Petitioners also succeed on this branch for injunctive relief. Petitioners complain about legitimate issues related to outdoor dining while respondent cites to an emergency that is not an actual emergency on this record. A review of the initial executive orders permitting TORP makes this clear. The first executive order (number 126) claimed that "measures taken to combat the spread of COVID-19 have created a particular need to enliven the City's commercial corridors and provide businesses with an opportunity to generate revenue while allowing customers and employees to practice social distancing in order to protect public health and safety" which justified the implementation of outdoor dining.
There is no dispute that nearly all of the COVID-19 related restrictions, including those involving social distancing and indoor masks, have been lifted. Accordingly, the Court must conclude that there is no longer an emergency that could justify the suspension of local laws to justify outdoor dining. Clearly, the executive order now in effect does not purport to rely on the dangers or harms from the virus itself. Instead, it focuses on the recovery process from COVID-19. But that is simply too vague a justification to permit an executive to routinely suspend the laws for over three years.
Whatever might be covered as part of recovery efforts from a disaster under the Executive Law, the circumstances here are not applicable. Contrast the instant situation with Sluys v Holbrook (292 A.D.2d 371, 372, 739 N.Y.S.2d 173 [2d Dept 2002]). In Sluys, governmental action to shore up a slope behind a condominium (although taken after the end of the hurricane) was permitted under Executive Law § 24. That type of action-a discreet step that directly relates to the effects of a prior disaster or emergency-is quite different from macro level efforts to ameliorate economic harms that likely have many causes separate and apart from the pandemic. The point is that the recovery efforts from a disaster must have some temporal limitations and this record suggests that the initial public health concerns that led to the start of outdoor dining concluded many months ago.
In other words, a balancing of the equities clearly favors petitioners.
Summary
The Court's decision should not be viewed as an opinion about the costs or benefits of outdoor dining itself nor is it a basis to dramatically limit the power of an executive under Executive Law § 24. That law provides substantial power to the mayor to "enact a state of emergency after finding an immediate or imminent public danger" (Dixon v De Blasio, 566 F.Supp.3d 171, 189 [ED NY 2021], vacated and remanded sub nom. Dixon v DeBlasio, 21-2666, 2022 WL 961191 [2d Cir 2022]). The problem here is that respondent has not adequately explained that an emergency involving an immediate or imminent danger still exists to justify the suspension of local laws.
Petitioners are permitted leave to amend as that request must be granted freely (CPLR 3025[b]) and they have cited cognizable requests for relief in their proposed amended pleading.
At the height of the pandemic (an obvious basis for an emergency under the Executive Law), the mayor was entitled to take steps to implement outdoor dining. But circumstances have changed and the dangers from the virus have significantly lessened. People are back to eating unmasked inside restaurants. In fact, the current executive order no longer makes any mention of an ongoing emergency from the COVID-19 virus itself. That leaves only respondent's general economic rationale which, if it were appropriate, would allow respondent to take nearly any action affecting any industry, struggling or not. Respondent has not even shown, on these papers, that the restaurant industry is still struggling to the point where emergency action is required. In this Court's view, the executive order impermissibly seeks to expand the scope of Executive Law § 24 to permit an executive to take steps that would ordinarily be handled by the legislative branch.
Were the mayor permitted to suspend any local rule based on generalized economic concerns, such as a slightly elevated unemployment rate, the Court questions what limitations would accompany Executive Law § 24. The entire purpose of a legislative body is to address the issues cited in the executive order-unemployment, low occupancy rates for commercial properties and low subway ridership. It is not this Court's role to evaluate whether or not outdoor dining (in whatever form it might take should such legislation become law) is good or bad public policy. There are good arguments both in favor and against it. The Court is only concerned with the statutory basis for TORP and the Court simply finds that there is no longer an emergency or disaster under any common-sense application of that term.
The Court must also address the type of injunctive relief it is imposing. The Court merely finds that respondent is preliminarily enjoined from relying upon Executive Order 459 as a basis for TORP. Nothing prevents the City Council from taking action on this issue.
The Court observes that although petitioners ask this Court to preliminarily bar the entire TORP program, they did not adequately explain how that would occur or the specific actions respondent would be required to take. The Court declines to issue an order that would, in effect, require all outdoor dining structures that violate the subject laws to be immediately removed. In fact, the Court questions the extent to which it could instruct respondent about its enforcement priorities (Alliance to End Chickens as Kaporos, 152 A.D.3d at 118). In any event, the relief here merely temporarily vacates the subject executive order in support of outdoor dining pending a final decision in this proceeding.
Accordingly, it is hereby
ORDERED that motion sequence 001 (the initial petition) is moot in light of the subsequent executive orders; and it is further
ORDERED that petitioners' motion (002) is granted to the extent that petitioners are granted leave to amend and petitioners shall upload the proposed amended pleading and file a new notice of petition with a separate motion sequence number (which will be sequence number 003) before August 10, 2023 and respondent shall have until August 30, 2023 to answer, petitioners shall have until September 6 to reply and the new return date shall be September 7, 2023; and it is further
ORDERED that respondent is hereby temporarily enjoined from relying on Executive Order 459 in support of TORP during the pendency of this action.