Opinion
6647/2006.
Decided November 27, 2007.
Randy M. Mastro Esq., Gibson, Dunn Crutcher LLP, New York, NY, for Petitioner.
Terri Feinstein Sasanow, Assistant Corporation Counsel, New York, NY, for City Respondents.
I. BACKGROUND
This court's order dated November 27, 2006, finally disposed of the amended petition except for its seventh cause of action and thus disposed of all claims by petitioner Hunts Point Terminal Produce Cooperative Association, Inc., against respondents New York City Economic Development Corporation (EDC), EDC President Alper, and Baldor Specialty Foods, Inc. The court therefore severed petitioner's seventh cause of action, which makes distinct claims directly against respondents New York City
Business Integrity Commission (BIC), BIC Chair MCCormack, and the City of New York only and may proceed independently from the remainder of the proceeding. Am. V. Pet. ¶ 89; C.P.L.R. §§ 407, 603. This decision determines petitioner's remaining claims in the seventh cause of action and the parties' motions insofar as they relate to this cause of action.
II. THE LAWS GOVERNING BUSINESSES IN PUBLIC WHOLESALE MARKETS
The Amended Verified Petition's seventh cause of action challenges noncompliance by BIC, its Chair, and, through BIC, the City, with BIC's mandatory duties under New York City Administrative Code §§ 22-251 to 22-269 and 66 R.C.NY §§ 1-11 to 1-20.8. These laws regulate New York City's wholesale and market businesses operating in its public wholesale markets.
The laws define a "wholesale business" or "wholesaler" as "any business engaged in selling food or related agricultural products or horticultural products at wholesale prices for resale by a wholesaler or retailer or for use by an institution or similar establishment." N.Y.C. Admin. Code § 22-251(j). More critically for purposes of petitioner's claims, a "public wholesale market" includes not only marketplaces owned by the City or on property owned, leased, or possessed by the City, which the City in turn may lease to a non-governmental lessee, but also any
area identified by rule of the commissioner that is in the vicinity of a designated public wholesale market where one or more wholesale businesses or market businesses operate.
N.Y.C. Admin. Code § 22-251(j). The definition of a "market business" is broader than a "wholesale business." The former includes any business that is in a market and (1) provides wholesalers or retail purchasers there merchandise or services relating to a wholesale business' operations or the purchase of food or related agricultural or horticultural products or (2) receives such merchandise there for distribution outside the market. N.Y.C. Admin. Code § 22-251(e).
The city statutes regulating public wholesale markets, including the statutes cited above, became effective in May 1997. They required that the Commissioner of the New York City Department of Small Business Services, now replaced by the BIC Chair, "shall establish by rule measures governing the conduct of wholesale businesses and market businesses in the public wholesale markets." N.Y.C. Admin. Code § 22-254. See N.Y.C. Admin. Code §§ 22-251(c) and (d); Aff. of Thomas McCormack ¶ 2. These measures include requirements for wholesale businesses to maintain "registration numbers" and requirements governing wholesale and market businesses for maintenance of specified financial records and for insurance, bonding, waste disposal, and sanitation. N.Y.C. Admin. Code § 22-254. The statutes require all persons conducting a wholesale or market business in a public wholesale market to be registered with BIC and likewise require all such businesses' employees and principals to obtain identification cards issued by BIC. N.Y.C. Admin. Code §§ 22-252, 22-253. These measures are to weed out, through denial of registration and identification cards, businesses and personnel lacking in "good character, honesty and integrity," N.Y.C. Admin. Code §§ 22-252(d) and (e), 22-253(b)(i) and (ii), 22-259(a) and (b), or financial responsibility. N.Y.C. Admin. Code § 22-259(c).
While BIC is authorized to develop a timetable for sequenced implementation of these statutory provisions and BIC's regulations, N.Y.C. Admin. Code § 22-268(a), once BIC promulgates an implementation date for a public wholesale market, BIC's enforcement of the registration or identification card requirements "shall commence upon the implementation date" for that market. N.Y.C. Admin. Code § 22-268(b). Pursuant to this authority, BIC's predecessor agency promulgated rules that became effective in September 1997. They stayed the statutes' enforcement, except as to the New York Terminal Produce Market, on the Hunts Point peninsula in Bronx County, "and any area adjacent" to that market "identified by the Commissioner." 66 R.C.NY § 1-11. See N.Y.C. Admin. Code § 22-251(h); McCormack Aff. ¶ 15. Effective March 22, 1998, the agency amended 66 R.C.NY § 1-12's definition of "market" to identify an area in the vicinity of the New York Terminal Produce Market, McCormack Aff. ¶¶ 15, 23, thus commencing, simultaneously, the agency's mandatory enforcement of the registration or identification card requirements for wholesale and market businesses in that adjacent area.
Section 1-12's definition of "market" precisely delineates that area's boundaries along Garrison Avenue, Lafayette Avenue, Halleck Street, Ryawa Avenue, Manida Street, Viele Avenue, Tiffany Street, Oak Point Avenue, Barry Street, and Leggett Avenue. The parties do not dispute the boundaries of either the New York Terminal Produce Market or the identified adjacent area. The parties also agree that Baldor, at its 511 Barry Street site, is not in either the New York Terminal Produce Market or the adjacent area and that, even if Baldor, conditionally designated the new lessee of City owned property at 155 Food Center Drive, in the Hunts Point Food Distribution Center, relocates there, Baldor still will not be in that market or adjacent area. McCormack Aff. ¶ 18 n. 1.
Section 1-12's definition of the BIC Chair's designated "market manager" also provides that the market manager's supervision of operations in the public wholesale market "shall include, without limitation: implementation of these rules" and "response to complaints relating to the operation of businesses in the markets." The regulation encompasses all forms of complaints. BIC does not dispute that petitioner, at minimum, has complained to BIC, both in person orally and in writing, that unregistered businesses are operating in the adjacent area, because BIC invited petitioner to lodge such complaints, yet then did not respond to them. Am. V. Pet. ¶ 42, Exs. 19, 39-40; Aff. of Matthew D'Arrigo ¶ 26; Aff. of Stephen Katzman ¶ 26; McCormack Aff. ¶¶ 30-31.
III. THE MANDATORY DUTIES
The statutes impose few specific mandatory requirements on BIC. Administrative Code § 22-254 does require that BIC "shall establish by rule" the specified requirements for maintenance of registration numbers and financial records and for insurance, bonding, waste disposal, and other sanitation measures. BIC's promulgated regulations at 66 R.C.N.Y §§ 1-13, 1-14, 1-18, 1-19, 1-20, 1-20.1, 1-20.4, 1-20.5, and 1-20.6 demonstrate that BIC has established the mandated requirements for registration, financial records, and insurance. In addition, its promulgated regulations governing all public markets prohibit taking, carrying, leaving, throwing, or discharging rubbish, litter, or refuse in or into public markets, 66 R.C.NY § 1-05(b); leaving or discharging sewage or drainage in or into tidal water that may pollute it, 66 R.C.NY § 1-05(c); and damaging, choking, or clogging drains or sewers in public markets. 66 R.C.NY § 1-05(d). See 66 R.C.NY §§ 1-01, 1-02(a). The public market regulations also require structures, adjacent spaces, and fixtures and tools used to be sanitary and tenants to provide containers for dirt, rubbish, and refuse. 66 R.C.NY § 1-08(c). These separate public market regulations predated the 1997 statutory scheme for wholesale businesses in public wholesale markets. 66 R.C.NY §§ 1-05(b)-(d), 1-08(c) (effective July 1, 1991).
While the New York City Council may have intended further sanitation regulations when the Council enacted Administrative Code § 22-254, since 66 R.C.NY §§ 1-05(b)-(d) and 1-08(c) were already in place, these earlier regulatory provisions may reasonably be construed as sanitation measures. Prohibitions simply against leaving waste in a public market, transferring waste into a public market, polluting tidal water with sewage or drainage, and obstructing drainage, however, may not reasonably be construed as requiring businesses' disposal of waste that the businesses generate within the market. BIC's regulations, whether for public wholesale markets, for public markets, or otherwise applicable, nowhere indicate that BIC has established any other requirements for waste disposal or for bonding, as mandated, other than a superfluous prohibition against violations of other applicable laws. 66 R.C.N.Y § 1-20.7(b)(4).
BIC's own regulations impose on BIC a specific date when the agency's mandatory enforcement of "the registration requirements or the requirements for photo identification cards and, where applicable, visitor passes," N.Y.C. Admin. Code § 22-268(b), was to commence: September 17, 1997, within the New York Terminal Produce Market, and March 22, 1998, in BIC's identified area adjacent to that market. N.Y.C. Admin. Code § 22-251(h); 66 R.C.NY §§ 1-11, 1-12. Closely analyzed, Administrative Code § 268(b) actually limits BIC's mandatory enforcement to either (1) the registration requirements, applicable to persons conducting a wholesale or market business in the public wholesale market, or (2) the requirements for (a) identification cards, applicable to such businesses' employees and principals, and (b) visitor passes where applicable. Nonetheless, at minimum BIC must enforce one or the other set of requirements.
Furthermore, the "requirements" to which Administrative Code § 268(b) refers and which BIC must enforce include both the statutory and the more detailed regulatory requirements either for registration or for identification cards and visitor passes. Several reasons compel this interpretation.
First, Administrative Code § 268(b)'s use of the term "requirements" refers to the "requirements" for maintenance of registration numbers that BIC "shall establish by rule" pursuant to § 22-254. Second, when the statutes refer only to other statutory provisions, the statutes do not use the term "requirements," but refer to provisions "of this chapter," 1-B of title 22 of the Administrative Code. E.g., N.Y.C. Admin. Code §§ 22-251(f) and (j), 22-252(d) and (e), 22-253(b), 22-254, 22-259(a) and (f), 22-268, 22-269(a). See, e.g., N.Y.C. Admin. Code § 22-251(e). Similarly, when the statutes refer only to regulations, the statutes do not use the term "requirements" either, but refer to a "rule of the commissioner." E.g., N.Y.C. Admin. Code §§ 22-251(h) and (j), 22-254, See, e.g., N.Y.C. Admin. Code §§ 22-253(a), 22-259(a). Finally, once BIC promulgates an "implementation date" for a market, N.Y.C. Admin. Code § 22-268(b), "implementation" means "implementation of the provisions of this chapter and any rules promulgated thereunder." N.Y.C. Admin. Code § 22-268(b).
Nor does Administrative Code § 268(b) give BIC any further discretion to select which requirements within one set or the other BIC enforces. BIC may be permitted to select which set of requirements BIC will enforce, but it must enforce "the requirements," for registration or for identification cards and visitor passes, meaning all those requirements. Id. See County of Broome v. Cuomo, 102 AD2d 266, 268 (3d Dep't 1985), aff'd, 64 NY2d 1051 (1985).
Although BIC's regulations do not impose any further "enforcement" duty on BIC, they do impose an "implementation" duty. BIC's supervision of the public wholesale market operations "shall include, without limitation: implementation of these rules" and, more specifically, "response to complaints relating to the operation of businesses in the markets." 66 R.C.NY § 1-12.
IV. CONTRAVENTION OF REGULATORY OBJECTIVES AND MANDATORY DUTIES
The gap in BIC's regulations set forth above alone demonstrates BIC's violation of its mandatory statutory duty to establish regulatory requirements for bonding and waste disposal, if not other sanitation measures, even though neither the statutes nor the regulations impose a duty specifically to enforce the bonding, waste disposal, or sanitation regulations. N.Y.C. Admin. Code §§ 22-254, 268(b). If petitioner further demonstrates that BIC is not enforcing all the statutory and regulatory requirements for registering persons conducting a wholesale or market business or for issuing identification cards to such businesses' employees and principals and passes to visitors, petitioner will demonstrate BIC's further violation of this mandatory statutory duty. N.Y.C. Admin. Code § 268(b).
BIC's Chair attests to its regulatory purposes:
(1)"to eliminate the influence of organized crime and other forms of criminality and corruption" from its regulated businesses, McCormack Aff. ¶ 5;
(2)to eliminate "violence, fraud, rackets, and threats" from these businesses' marketplaces, id. ¶ 6; and
(3)to ensure that these businesses "compete fairly," treat customers fairly, and conduct business "with honesty and integrity." Id. ¶ 6.
BIC's Chair maintains that BIC made no finding of organized crime or other corruption among businesses subject to regulation in the adjacent area, id. ¶ 26, yet he does not disavow "other forms of criminality," id. at ¶ 5, "violence," or "threats" there. Id. at ¶ 6. Moreover, he emphasizes BIC's objective of promoting fair competition and business operations beneficial to customers specifically in the adjacent area. Id. ¶¶ 26-27.
Yet, the Chair bluntly admits that his agency has "declined to regulate" the businesses in the adjacent area. Id. ¶ 29. This declination directly flouts BIC's duty to enforce all the requirements for registration or for identification cards and visitor passes in the adjacent area, mandated by Administrative Code §§ 22-251(h) and 268(b) and 66 R.C.NY §§ 1-11 and 1-12.
BIC's refusal to undertake any regulation whatsoever further contravenes the duty BIC imposed on itself in supervising the adjacent area businesses' operations: "implementation" of all BIC's regulations, mandated by 66 R.C.NY § 1-12. Finally, by declining to take any action, including "response to complaints" relating to those operations, BIC contravenes the additional duty mandated by BIC's own § 1-12, as established by BIC's undisputed failure to respond to petitioner's complaints to BIC of unregistered businesses operating in the adjacent area. Am. V. Pet. ¶ 42, Exs. 19, 39-40; D'Arrigo Aff. ¶ 26; Katzman Aff. ¶ 26; McCormack Aff. ¶¶ 30-31.
V. STANDING
A crucial, threshold question is whether petitioner demonstrates its standing to enforce the specific mandatory duties outlined above. Petitioner must show it has suffered actual injury that is distinct from the public interest and falls within the interests the mandatory duties are designed to protect. Transactive Corp. v. New York State Dept. of Social Servs., 92 NY2d 579, 587 (1998); Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 772-74 (1991); Dairylea Cooperative, Inc. v. Walkley, 38 NY2d 6, 9 (1975); Hunts Point Term. Produce Coop. Assn., Inc. v. New York City Economic Dev. Corp. , 36 AD3d 234 , 245 (1st Dep't 2006). As articulated by respondents, the statutory and regulatory interests at issue, id. at 247, are to eliminate criminality, violence, and threats and to promote fair competition and business operations beneficial to customers in the businesses subject to regulation and their marketplaces in the adjacent area. McCormack Aff. ¶¶ 5-6, 26-27.
A. Bonding and Waste Disposal Regulations
BIC's mandatory duty to establish regulatory requirements for bonding and waste disposal surely promotes business operations beneficial to customers in the adjacent area's businesses and marketplaces. Establishing these requirements likely promotes fair competition among those businesses and marketplaces as well, since without these requirements, businesses with financially and environmentally responsible practices will incur expenses for bonding and waste disposal, while businesses without such practices operate free from those burdens. Insofar as petitioner alleges "competitive injury," from adjacent area businesses' adverse competition with petitioner's public market business, that injury is precisely the type that does not confer standing to challenge BIC's failure to establish requirements promoting fair competition and its allowance of business operations unburdened by bonding and waste disposal. Dairylea Cooperative, Inc. v. Walkley, 38 NY2d at 11; Hunts Point Term. Produce Coop. Assn., Inc. v. New York City Economic Dev. Corp., 36 AD3d at 247; Subway Check Cashing Serv. v. Considine, 158 AD2d 406 (1st Dep't 1990); Dorsett-Felicelli, Inc. v. County of Clinton , 18 AD3d 1064 , 1065 (3d Dep't 2005). BIC's total abdication of its mandatory duty to establish bonding and waste disposal requirements, moreover, equally permits petitioner to dispense with bonding and waste disposal. Hunts Point Term. Produce Coop. Assn., Inc. v. New York City Economic Dev. Corp., 36 AD3d at 247. For both these reasons, petitioner has not established its right to protection from competition. Dairylea Cooperative, Inc. v. Walkley, 38 NY2d at 11-12; Dorsett-Felicelli, Inc. v. County of Clinton, 18 AD3d at 1065.
Petitioner alleges more, however, than injury simply from adverse or even unfair competition. The adjacent area includes both wholesale businesses and market businesses, N.Y.C. Admin. Code § 22-251(j), which in turn include businesses that provide wholesalers, such as petitioner, merchandise or services relating to wholesalers' operations or to the purchase of food or agricultural or horticultural products. N.Y.C. Admin. Code § 22-251(e). Market businesses also include businesses that receive such merchandise for distribution outside the market. Id. The requirements BIC is to establish for bonding, waste disposal, and sanitation are to govern both wholesale and market businesses. N.Y.C. Admin. Code § 22-254. Furthermore, wholesalers in the adjacent area include businesses that sell food or agricultural or horticultural products both to retailers and to other wholesalers, institutions, and establishments like petitioner. N.Y.C. Admin. Code § 22-251(j).
Thus petitioner's members, as wholesalers, may be both customers of the adjacent area's wholesale and market businesses, and these adjacent area businesses may be customers of petitioner's members. They are not necessarily competitors. As customers, petitioner's members share the customers' interests in "the economic viability and integrity of the . . . Market," Am. V. Pet., Ex. 19 at 1, as well as its environmental viability, integrity, and safety, that BIC's duties are mandated to protect. Am. V. Pet. ¶¶ 41-42, Exs. 19, 40 at 2; D'Arrigo Aff. ¶ 25; Katzman Aff. ¶ 25.
Even as wholesalers selling to adjacent area businesses, petitioner's members have a direct interest in the bonding and consequent financially security of the businesses that are to pay the members for their products. Am. V. Pet. ¶ 42, Ex. 19 at 2. Finally, as businesses in the vicinity of the adjacent area businesses, petitioner's members share a direct interest in the adoption of waste disposal procedures applicable to all. Am. V. Pet. ¶¶ 41-42, Ex. 40 at 2; D'Arrigo Aff. ¶ 25; Katzman Aff. ¶ 25.
B. Enforcement of Registration or Identification Card Requirements
Although Administrative Code § 22-254 mandates that BIC "shall establish by rule" requirements only for wholesale businesses to maintain "registration numbers," §§ 22-252 and 22-253 require all persons conducting a wholesale or market business in a public wholesale market to be registered and each such business' employees and principals to obtain identification cards from BIC. BIC's mandatory enforcement of these requirements upon the implementation date for the adjacent area, moreover, pertains to the registration or identification card requirements for both wholesale and market businesses. N.Y.C. Admin. Code § 22-268(b). Thus petitioner's members, as customers of the adjacent area's wholesale and market businesses, with them as the members' customers, and as businesses in the vicinity of the adjacent area's businesses, similarly share a direct interest in enforcement of the very measures designed to eliminate businesses and personnel lacking in "good character, honesty and integrity." N.Y.C. Admin. Code §§ 22-252(d) and (e), 22-253(b)(i) and (ii), 22-259(a) and (b). See Am. V. Pet. ¶¶ 41-42, Exs. 19, 40; D'Arrigo Aff. ¶¶ 25-26; Katzman Aff. ¶¶ 25-26.
C. Implementation of Regulations and Response to Complaints
For all the above reasons, petitioner's members have a direct interest in "implementation" of all BIC's regulations, whether for registration numbers, identification cards, visitor passes, financial records, insurance, sanitation, bonding, or waste disposal, governing the wholesale and market businesses in petitioner's vicinity and with whom its members deal. 66 R.C.NY § 1-12. See Am. V. Pet. ¶¶ 41-42, Exs. 19, 40; D'Arrigo Aff. ¶¶ 25-26; Katzman Aff. ¶¶ 25-26. Particularly since petitioner in fact has complained to BIC about unregistered businesses operating in the adjacent area, petitioner has been denied the responses petitioner was entitled to under 66 R.C.NY § 1-12. Am. V. Pet. ¶ 42, Exs. 19, 40; D'Arrigo Aff. ¶ 26; Katzman Aff. ¶ 26. See Transactive Corp. v. New York State Dept. of Social Servs., 92 NY2d at 587; Altamore v. Barrios-Paoli, 90 NY2d 378, 384 (1997); Dairylea Cooperative, Inc. v. Walkley, 38 NY2d at 9; Dorsett-Felicelli, Inc. v. County of Clinton, 18 AD3d at 1065.
D. Petitioner's Standing to Litigate These Claims
Standing involves a threshold determination by the court as to whether it is authorized to adjudicate the merits of a dispute, rather than an actual adjudication of the merits. Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 769; Stark v. Goldberg, 297 AD2d 203, 204 (1st Dep't 2002). Seeking or losing an economic or a business opportunity or benefit is an interest that confers standing, as long the opportunity or benefit coincides or is consistent with the interests protected by the applicable statutes or regulations. Transactive Corp. v. New York State Dept. of Social Servs., 92 NY2d at 587; Altamore v. Barrios-Paoli, 90 NY2d at 384; Dairylea Cooperative, Inc. v. Walkley, 38 NY2d at 9; Dorsett-Felicelli, Inc. v. County of Clinton, 18 AD3d at 1065. See New York State Assn. of Nurse Anesthetists v. Novello , 2 NY3d 207 , 214 (2004); Hunts Point Term. Produce Coop. Assn., Inc. v. New York City Economic Dev. Corp., 36 AD3d at 247-48; C.L.B. Check Cashing v. McCaul , 5 AD3d 593 , 594 (2d Dep't 2004).
Petitioner has shown economic, security, safety, sanitation, environmental, and related business concerns with the issues presented: the absence of specified regulations, of enforcement of specified requirements, of implementation of any regulations in the adjacent area, and of responses to complaints. Whether or not petitioner ultimately establishes the merits of those claims, its stake in filling that void is adequate to present and litigate the issues. See Jones v. Beame, 45 NY2d 402, 409 (1978). Its objective of filling that void also is entirely consistent with the City Council's objectives in enacting the statutes petitioner relies on and with BIC's original objectives in adopting 66 R.C.NY §§ 1-11 and 1-12. Dorsett-Felicelli, Inc. v. County of Clinton, 18 AD3d at 1065; Amdahl Corp. v. New York State Higher Educ. Servs. Corp., 203 AD2d 792, 794 (3d Dep't 1994). See Hunts Point Term. Produce Coop. Assn., Inc. v. New York City Economic Dev. Corp., 36 AD3d at 247-48; C.L.B. Check Cashing v. McCaul, 5 AD3d at 594.
VI. THE COURT'S AUTHORITY TO ORDER RESPONDENTS' COMPLIANCE WITH THEIR MANDATORY STATUTORY AND REGULATORY DUTIES
Ordering respondents to comply with their mandatory statutory and regulatory duties that the record here unquestionably shows they have not complied with entails at least three components, applicable to wholesale and market businesses in the New York Terminal Produce Market and defined adjacent area. N.Y.C. Admin. Code § 22-251(h); 66 R.C.NY §§ 1-11, 1-12. At minimum, respondents must: (1) promulgate regulations establishing bonding and waste disposal requirements, (2) enforce all statutory and regulatory requirements for registration or for identification cards and visitor passes, and (3) supervise these businesses' operations to the extent of (a) implementing all BIC's regulations and (b) responding to complaints about those operations.
Thus limited, none of these components involves the court in resolving policy issues or choices, Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d 215, 221 (1994); Klostermann v. Cuomo, 61 NY2d 525, 537 (1984), or reviewing determinations reserved to the other branches of government: the City Council's legislative allocation of priorities or BIC's "discretionary decisions in implementing the most effective program possible with the resources available." Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 220. See Jones v. Beame, 45 NY2d at 406-407. The City Council and BIC decided the policy issues, made the policy choices, and ordered priorities in adopting Administrative Code §§ 22-254 and 22-268(b) and 66 R.C.NY §§ 1-11 and 1-12. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 221.
The City Council expressly determined that its priorities were BIC's establishment "by rule" of requirements in specified spheres of businesses' operations, N.Y.C. Admin. Code § 22-254, and BIC's actual "enforcement" of the registration or the identification card and visitor pass requirements, commencing upon designation of the targeted areas. N.Y.C. Admin. Code § 22-268(b). See Deane v. City of New York Dept. of Bldgs., 177 Misc 2d 687, 699 (Sup.Ct. NY Co. 1998). BIC then targeted the priority market areas, the New York Terminal Produce Market and its adjacent area, McCormack Aff. ¶¶ 15, 23; set the implementation timetable, id. ¶¶ 14-15; and ordered BIC's supervisory priorities in the targeted areas to include implementing BIC's regulations and responding to complaints about business operations. 66 R.C.NY §§ 1-11, 1-12.
Petitioner does not request the court to reallocate BIC's resources or reorder its priorities toward establishing other rules, enforcing other requirements, or exercising supervision not specified by the statutes and regulations. Jones v. Beame, 45 NY2d at 407. Nor does petitioner request the court to direct how BIC formulates or implements its rules, enforces the requirements, or responds to complaints. Id. at 407-408.
Administrative Code §§ 22-254 and 22-268(b) and 66 R.C.NY §§ 1-11 and 1-12 set standards of conduct and timetables that BIC must meet. Therefore the court may compel BIC's performance of these statutory and regulatory commands. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 220; Jiggetts v. Grinker, 75 NY2d 411, 415-16 (1990); Klostermann v. Cuomo, 61 NY2d at 539; Saslow v. Cephas, 198 AD2d 53, 54 (1st Dep't 1993).
These limited duties are distinctly mandatory. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 220; Jiggetts v. Grinker, 75 NY2d at 417; County of Broome v. Cuomo, 119 AD2d 358, 360 (3d Dep't 1986). BIC " shall establish by rule measures governing the conduct of wholesale businesses and market businesses in the public wholesale markets, including . . . requirements for the disposal of waste . . . and bonding requirements." N.Y.C. Admin. Code § 22-254 (emphasis added). "Enforcement of the registration requirements or the requirements for photo identification cards and . . . visitor passes in a public wholesale market shall commence upon the implementation date for such market set forth in the rules promulgated." N.Y.C. Admin. Code § 22-268(b) (emphasis added). See Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 220 n. 1; County of Broome v. Cuomo, 119 AD2d at 360. The rules promulgated set forth "enforcement . . . as to the New York Terminal Produce Market" effective September 17, 1997, 66 R.C.NY § 1-11, and "the area adjacent to the New York Terminal Produce Market," identified in the rules, effective March 22, 1998. 66 R.C.NY § 1-12. See N.Y.C. Admin. Code § 22-251(h). BIC's supervision of the public wholesale market operations " shall include, without limitation: implementation of these rules" and "response to complaints relating to the operation of businesses." 66 R.C.NY § 1-12 (emphases added). See County of Broome v. Cuomo, 102 AD2d at 267-68, aff'd, 64 NY2d 1051. This "compulsory language of the provisions with which petitioner seek[s] compliance unquestionably evinces an intent . . . to impose mandatory duties upon respondents." Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 221. See Jiggetts v. Grinker, 75 NY2d at 417-18.
Ordering respondents to promulgate and implement regulations, enforce statutory and regulatory requirements, and respond to complaints leaves respondents with broad discretion as to the regulations' content, respondents' means of enforcement and implementation, and the content and means of their responses to complaints. The court may not and therefore does not compel respondents to exercise that discretion a particular way: to promulgate regulations with particular contents beyond requiring bonding and waste disposal, enforce the registration or identification card and visitor pass requirements or implement regulations by particular means, or respond to complaints a particular way. Crain Communications v. Hughes, 74 NY2d 626, 628 (1989); Klostermann v. Cuomo, 61 NY2d at 540; Saslow v. Cephas, 198 AD2d 53; County of Broome v. Cuomo, 119 AD2d at 360. The court simply compels respondents to perform their statutory and regulatory duties to establish regulations requiring bonding and waste disposal, enforce the statutory and regulatory requirements already established for registration or for identification cards and visitor passes, implement regulations already established, and respond to complaints made. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 220; Jiggetts v. Grinker, 75 NY2d at 415-16; Klostermann v. Cuomo, 61 NY2d at 539; Saslow v. Cephas, 198 AD2d at 53-54.
The discretion entailed in obeying that order or the statutory and regulatory mandates, however, does not impermissibly embroil the court in the executive branch's discretionary functions. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 220-21; Klostermann v. Cuomo, 61 NY2d at 530. To the contrary, the order compels the executive branch to perform acts it is duty-bound to perform and allows the executives their full discretion in how they do so. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 221; Klostermann v. Cuomo, 61 NY2d at 540. The forum for determining the executives' duties under statutory and regulatory mandates, their noncompliance with those duties, and petitioner's rights to performance of those duties nonetheless lies in the court. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 222; Klostermann v. Cuomo, 61 NY2d at 536. See Jones v. Beame, 45 NY2d at 408-409.
A. Bonding and Waste Disposal Regulations
Regarding the discretion permitted to respondents in establishing requirements for waste disposal and bonding, N.Y.C. Admin. Code § 22-254, for respondents actually to establish requirements may mean more than simply issuing regulations on paper. Although BIC may determine when implementation of the statutes and regulations governing businesses in a defined public wholesale market commences, N.Y.C. Admin. Code § 22-268(a), once BIC promulgates a commencement date for a market, the statutes contemplate actual "implementation" of their provisions "and any rules promulgated thereunder." Id. The regulations further contemplate their actual "enforcement . . . as to the New York Terminal Produce Market, and any area adjacent to such market identified," 66 R.C.NY § 1-11, and their "implementation." 66 R.C.NY § 1-12.
On the other hand, the statutory mandate specifies that respondents "shall establish by rule" requirements for waste disposal and bonding governing wholesale and market businesses in the defined public wholesale market. N.Y.C. Admin. Code § 22-254 (emphasis added). Moreover, to order respondents to implement and enforce those regulations as well as to promulgate them would be premature. Once respondents promulgate these regulations: (1) they may, like their companion regulatory mandates, e.g., 11 R.C.NY §§ 1-11, 1-12, mandate their own enforcement or implementation; (2) they may be subject to other statutory and regulatory mandates for enforcement or implementation, e.g., N.Y.C. Admin. Code § 22-268, 11 R.C.NY §§ 1-11, 1-12; or (3) respondents may enforce the regulations without any further order. See County of Broome v. Cuomo, 102 AD2d at 270-71, aff'd, 64 NY2d 1051. While other City agencies' promulgation of regulations governing environmental protection, sanitation, and health is no substitute for the regulations BIC is statutorily mandated to establish, N.Y.C. Admin. Code § 22-254; see N.Y.C. Charter § 2101(a), it has ready partners or agents among such other agencies for use in BIC's own enforcement efforts. The mere adoption of a law prohibiting private conduct, however, without any specific enforcement or implementation duty imposed on an executive official, is an inadequate basis to command the official's enforcement of that law. Jones v. Beame, 45 NY2d at 409.
B. Enforcement of Registration or Identification Card Requirements
Respondents insist that enforcement of the requirements for registration or for identification cards and visitor passes in the adjacent area, as Administrative Code § 22-268(b) specifically mandates, depends on businesses, personnel, or visitors there applying for registration, identification cards, or passes. If anyone there were to apply, then respondents would decide whether to issue a registration number, an identification card, or a pass.
Yet the statutes prohibit any person from conducting a wholesale or market business in a public wholesale market unless registered with BIC, prohibit any such business' employee or principal in the market without an identification card issued by BIC, and prohibit any visitor there without a pass. N.Y.C. Admin. Code §§ 22-252(a), 22-253(a).
No person shall conduct a wholesale business or a market business in a public wholesale market unless such person has registered such business with the commissioner and has obtained a registration number. . . .
N.Y.C. Admin. Code § 22-253(a).
It shall be unlawful for any person to be an employee or a principal working in a wholesale business or market business in a market unless such person has obtained a photo identification card issued by the commissioner. . . . or for a person to work on an occasional basis in a market unless such person has obtained a day pass issued by the commissioner. . . . A photo identification card shall be in the possession of an employee or principal at all times when such person is in the market. . . .
N.Y.C. Admin. Code § 22-252(a). 66 R.C.NY §§ 1-13(a) and 1-15(a) reiterate these mandates. In addition,
The department shall maintain and publish a list of all wholesalers and market businesses that are registered with the commissioner together with the registration numbers
. . . .
N.Y.C. Admin. Code § 22-253(c).
When a business or its principal or employee applies, BIC is empowered with an arsenal of tools to scrutinize, before issuing a registration number or an identification card, whether the applicant will operate consistent with the statutory and regulatory objectives to eliminate criminality, violence, and threats and promote fair competition and business beneficial to customers. McCormack Aff. ¶¶ 5-6, 26-27; N.Y.C. Admin. Code §§ 22-252(d), 22-253(b)(i), 22-259(b)-(e). See 66 R.C.NY §§ 1-14(e)(2), 1-17(c)(2). Upon reasonable cause to believe an applicant lacks "good character, honesty and integrity," BIC may require fingerprinting and comprehensive information pertaining to the applicant. N.Y.C. Admin. Code §§ 22-252(d), 22-253(b)(i), 22-259(a); 66 R.C.NY §§ 1-14(e)(1), 1-17(c)(1). The latter includes: persons interested in the business; its regulatory violations; the applicant's criminal convictions, debts, assets, contributors, predecessor businesses, and payment of taxes; and litigation and investigations the applicant has been involved in. N.Y.C. Admin. Code § 22-259(a). After an applicant is issued a registration number or an identification card, if BIC has reasonable cause to believe a principal or employee lacks "good character, honesty and integrity," N.Y.C. Admin. Code §§ 22-252(e), 22-253(b)(ii), 22-259(a); 66 R.C.NY §§ 1-14(c) and (e)(1), 1-17(c)(1), BIC may require the same information and, after a review, revoke the registration number or identification card. N.Y.C. Admin. Code §§ 22-252(c) and (e), 22-253(a) and (b)(ii); 66 R.C.NY §§ 1-14(b), (c), and (e)(1), 1-17(b) and (c)(1). See N.Y.C. Admin. Code § 22-259(a).
The statutory and regulatory mandates, that no person shall conduct a business unless it is registered, N.Y.C. Admin. Code § 22-253(a); 66 R.C.NY § 1-13(a), or lawfully be a business' employee or principal without an identification card or work on an occasional basis without a pass, N.Y.C. Admin. Code § 22-252(a); 66 R.C.NY § 1-15(a), remain unenforced unless BIC bans the prohibited and unlawful persons from the public wholesale market. BIC does not satisfy its statutory duty to enforce the requirements for registration or for identification cards and visitor passes in the public wholesale market by simply allowing persons to conduct businesses as their principals and employees without a registration number or an identification card and waiting for them never to apply. Nor does BIC satisfy the statutory and regulatory objectives, to eliminate criminality, violence, and threats and to promote fair competition and business operations beneficial to customers in the public wholesale market, McCormack Aff. ¶¶ 5-6, 26-27, by waiting for non-compliant persons and businesses never to trigger the investigatory mechanisms dictated to achieve these objectives. E.g., N.Y.C. Admin. Code §§ 22-252(d), 22-253(b)(i) and (ii) and (c), 22-259; 66 R.C.NY §§ 1-14(b), (c), and (e), 1-17(b) and (c).
Furthermore, BIC does not dispute that it is aware of the unregistered businesses in the adjacent area, because, at BIC's request, petitioner provided that information to BIC. Am. V. Pet. ¶ 42, Exs. 19, 39-40; D'Arrigo Aff. ¶ 26; Katzman Aff. ¶ 26; McCormack Aff. ¶¶ 30-31. Significantly, BIC has enforced the requirements for registration, identification cards, and visitor passes within the New York Terminal Produce Market, although BIC has not done so in the adjacent area. Respondents thus found the means to obtain applications for registration numbers and identification cards in one area, yet point to no reason why respondents lack comparable capacity in the adjacent area.
Even were respondents' compliance with their statutory and regulatory mandate, to enforce and implement the requirements for registration or for identification cards and visitor passes, dependent on nonparties' cooperation and participation, such facts would not automatically bar injunctive relief ordering respondents to comply. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 224; Klostermann v. Cuomo, 61 NY2d at 525. In any event, the court need not even consider this factor here. See Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 224. While businesses' actual compliance with those requirements may not be entirely within respondents' control, respondents have shown neither that fact, much less that respondents' own compliance with their statutory and regulatory mandate to enforce and implement the requirements is entirely dependent on nonparties and beyond respondents' control.The BIC Chair's admission that his agency has outright "declined to regulate" the businesses in the adjacent area demonstrates that respondents have defied enforcement; therefore they hardly may claim that it is beyond their control. McCormack Aff. ¶ 29.
Although the Chair alludes to a 1997 attempt at regulation in the adjacent area, id. ¶ 24, which "met with resistance," that attempt was so long ago it would not justify the refusal to undertake a more current, renewed effort. Id. ¶ 25. The very resistance to any prior attempt in fact suggests a need to activate enforcement, not the expressed "hands off" passivity.
Finally, respondents themselves point to the City's Police Department and other agencies that oversee their spheres of regulation in the adjacent area as justification for BIC's own defiance. Again, those other agencies' enforcement efforts are no substitute for the enforcement BIC is statutorily mandated to undertake, N.Y.C. Admin. Code § 22-268(b); see N.Y.C. Charter § 2101(a), but such agencies may be ready partners or agents for use in BIC's own enforcement efforts, further undermining respondents' claims that their hands are tied.
C. Implementation of Regulations and Response to Complaints
Once BIC promulgate regulations, regulations already promulgated and regulations to be promulgated, 66 R.C.NY §§ 1-11 and 1-12 mandate BIC's implementation of all regulations. No other City agency is both authorized and obligated to implement BIC's regulations. N.Y.C. Charter § 2101(a); 66 R.C.NY §§ 1-11, 1-12. While the promulgation of regulations prohibiting businesses' conduct, without specifically imposing a duty to implement them, is inadequate grounds to command respondents' implementation, here 66 R.C.NY § 1-12 specifically commands the BIC Chair, through his market manager, to implement all BIC's regulations in the market areas designated. See Jones v. Beame, 45 NY2d at 409.
Respondents' implementation of most of their regulations does not depend on businesses' initiative. Nothing limits BIC's authority or capacity, in fact its duty under 66 R.C.NY § 1-12, to ascertain, for example, whether adjacent area businesses are maintaining adequate financial records or insurance; keeping their spaces, structures, fixtures, and tools sanitary; or providing containers for dirt, rubbish, and refuse. 66 R.C.NY §§ 1-08(c), 1-19(c)-(f). Since BIC is aware of the unregistered businesses in the adjacent area, Am. V. Pet. ¶ 42, Exs. 19, 39-40; D'Arrigo Aff. ¶ 26; Katzman Aff. ¶ 26; McCormack Aff. ¶¶ 30-31, BIC is equally authorized and enabled, as well as under a statutory enforcement duty, N.Y.C. Admin. Code § 22-268(b), to initiate the registration and identification card process for those businesses and their principals and employees.
BIC's response to complaints relating to businesses' operations, 66 R.C.NY § 1-12, of course depends on other persons communicating complaints to BIC. The record establishes, however, that BIC has both failed to respond fully to the complaints it has received and declined to take any action whatsoever relating to business operations in the adjacent area. Am. V. Pet. ¶ 42, Exs. 19, 39-40; D'Arrigo Aff. ¶ 26; Katzman Aff. ¶ 26; McCormack Aff. ¶¶ 29-31. Therefore respondents' compliance with their duty under 66 R.C.NY § 1-12 is not beyond their control such that their dependence on other persons' participation would bar injunctive relief ordering respondents to comply. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 224; Klostermann v. Cuomo, 61 NY2d at 525.
Ordering respondents to respond to complaints about businesses' operations in the New York Terminal Produce Market and its adjacent area does not involve the court in making a policy choice or encroach on the discretionary decision BIC already made that one of its priorities in supervising its targeted areas, McCormack Aff. ¶¶ 15, 23; 66 R.C.NY § 1-11, was responding to just such complaints. 66 R.C.NY § 1-12. This relief does not order respondents to exercise any supervision other than what they themselves explicitly set forth in their regulation, id., or order how they respond to the complaints received other than reasonably promptly and completely. Natural Resources Defense Council v. New York City Department of Sanitation, 83 NY2d at 220; Jiggetts v. Grinker, 75 NY2d at 415-16; Klostermann v. Cuomo, 61 NY2d at 539. See Jones v. Beame, 45 NY2d at 407-408; Saslow v. Cephas, 198 AD2d at 53-54. Respondents' outright defiance of any effort at regulation in the adjacent area, moreover, warrants no less.
VII. RELIEF
Petitioner has shown a direct stake, independent of any interest in protection from competition, in respondents' compliance with their statutory and regulatory duties under Administrative Code §§ 22-254 and 22-268(b) and 66 R.C.NY §§ 1-11 and 1-12, to regulate business operations in the New York Terminal Produce Market and its adjacent area. The relief sought and the limited relief ordered also promotes respondents' articulated interests in eliminating criminality, violence, and threats and promoting fair competition and business operations beneficial to customers among the businesses and their marketplaces in that public wholesale market, McCormack Aff. ¶¶ 5-6, 26-27, and the public interest. Dorsett-Felicelli, Inc. v. County of Clinton, 18 AD3d at 1065; Amdahl Corp. v. New York State Higher Educ. Servs. Corp., 203 AD2d at 794. See Hunts Point Term. Produce Coop. Assn., Inc. v. New York City Economic Dev. Corp., 36 AD3d at 247-48; C.L.B. Check Cashing v. McCaul, 5 AD3d at 594. The relief is based on and limited to the very standards of conduct articulated by the City Council and respondents themselves in their regulations. The fact that this relief is consistent with or complementary to and also promotes petitioner's economic and business interests, in honest practices among its neighbors and businesses with whom its members deal, as well as security, safety, and environmental interests, supports, rather than undercuts, its standing to seek the relief.
On the grounds set forth above, the court grants petitioner's motion insofar as it seeks injunctive relief based on the amended petition's seventh cause of action and grants the amended petition to the extent of ordering the relief set forth below based on that cause of action, without a further hearing. C.P.L.R. § 409(b). Within 90 days after entry of this order, respondents BIC and its Chair shall take the following action, to apply to all persons who (a) are conducting a wholesale or market business in the New York Terminal Produce Market and its identified adjacent area or (b) are such a business' principal, employee, or occasional worker.
(1) These respondents shall initiate, pursuant to New York City Charter § 1043(b) or (h), rulemaking of regulations establishing bonding and waste disposal requirements and complete the process pursuant to § 1043 reasonably promptly. (2) These respondents shall commence enforcement of all statutory and regulatory requirements for registration or for identification cards and visitor passes. (3) Respondent Chair, through a designated market manager, shall supervise these businesses' operations by: (a) implementing all regulations promulgated or to be promulgated by BIC and (b) responding, reasonably promptly and completely, to all complaints communicated to BIC about those businesses' operations. See Utica Cheese v. Barber, 49 NY2d 1028, 1030 (1980).
The court grants respondent Baldor's cross-motion to dismiss or for summary judgment dismissing the amended petition to the extent of dismissing petitioner's seventh cause of action against Baldor, since this cause of action, by its very terms, is not against this respondent. Am. V. Pet. ¶ 89; C.P.L.R. §§ 409(b), 3211(a), 3212(b). The court further dismisses and discontinues the seventh cause of action against respondents EDC and Alper, as this cause of action is not against them either. Am. V. Pet. ¶ 89; C.P.L.R. §§ 409(b), 3217. Apart from the relief granted above, the court denies the amended petition and dismisses this proceeding. This decision constitutes the court's final order and judgment. C.P.L.R. § 411.