Rossi v. N.Y.C. Dep't of Parks & Recreation

• Decision Date: 09 April 2015
• Docket Number: 103793/12 -103794/12 -103796/12, 12600, 103795/12, 12599, 12598, 12597
• Parties: In re Danny ROSSI, Petitioner–Respondent, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Respondent–Appellant. In re Elizabeth A. Rossi, Petitioner–Respondent, v. New York City Department of Parks and Recreation, Respondent–Appellant. In re Rabah Belkebir, Petitioner–Respondent, v. New York City Department of Parks and Recreation, Respondent–Appellant. In re Martin Diaz, Petitioner–Respondent, v. New York City Department of Parks and Recreation, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 463
8 N.Y.S.3d 25
2015 N.Y. Slip Op. 03047

In re Danny ROSSI, Petitioner–Respondent
v.
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Respondent–Appellant.

In re Elizabeth A. Rossi, Petitioner–Respondent
v.
New York City Department of Parks and Recreation, Respondent–Appellant.

In re Rabah Belkebir, Petitioner–Respondent
v.
New York City Department of Parks and Recreation, Respondent–Appellant.

In re Martin Diaz, Petitioner–Respondent
v.
New York City Department of Parks and Recreation, Respondent–Appellant.

103793/12 -103794/12 -103796/12, 12600, 103795/12, 12599, 12598, 12597

Supreme Court, Appellate Division, First Department, New York.

April 9, 2015.

8 N.Y.S.3d 26

Zachary W. Carter, Corporation Counsel, New York (Michael J. Pastor of counsel), for appellant.

Danny Rossi, respondent pro se.

Elizabeth Rossi, respondent pro se.

Rabah Belkebir, respondent pro se.

Martin Diaz, respondent pro se.

TOM, J.P., MOSKOWITZ, DeGRASSE, RICHTER, KAPNICK, JJ.

Opinion

127 A.D.3d 463

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

In these related article 78 proceedings, petitioners, who are disabled veterans holding mobile food vending licenses, challenge notices of violation issued by respondent New York City Department of Parks and Recreation (DPR) for failure to comply with Parks Department officers' directives to move their food carts. Most of the notices of violation allege

127 A.D.3d 464

that petitioners were asked to move their carts because GBL 35–a(3) provides that only two street vendors holding “specialized vending licenses” (SVLs) may vend on each “block face.” SVLs are issued to disabled veterans by way of a priority system based upon the veteran's date of application (GBL 35–a[1][a], [b] ). When three or more SVL holders attempt to vend on the same “block face,” the two SVL holders with higher priority have the exclusive right to vend, and any other SVL holder vending on that “block face” is deemed to be vending without having obtained a license (GBL 35–a[3] ). Since other SVL holders with higher priority were vending on the dates in question, the Parks Department officers asked petitioners to

8 N.Y.S.3d 27

move, and issued the notices of violation when they refused. Separate from the “block face” issue, two of the notices of violation issued to petitioner Diaz, and one issued to petitioner Elizabeth A. Rossi, allege that they refused to move after being told that their food carts violated certain footage restrictions contained in GBL 35–a(7)(i).

GBL 35–a governs the issuance of SVLs to disabled veterans who “hawk, peddle, vend and sell goods, wares or merchandise or solicit trade” (GBL 35–a [1 ][a] ). Petitioners argue that this statute does not apply to food vendors. The central issue presented in this appeal is whether the phrase “goods, wares or merchandise” encompasses food. We conclude that it does. “It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Matter of State of New York v. John S., 23 N.Y.3d 326, 340, 991 N.Y.S.2d 532, 15 N.E.3d 287 [2014] [internal quotation marks omitted] ). “As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] ). Because the terms “goods” and “merchandise” are not defined in GBL 35–a, they should be construed in accordance with their common, everyday meaning (Matter of New York Skyline, Inc. v. City of New York, 94 A.D.3d 23, 27, 939 N.Y.S.2d 42 [1st Dept.2012], lv. denied 19 N.Y.3d 809, 2012 WL 3743746 [2012] ).

The word “goods” is broadly defined as “something manufactured or produced for sale” (Merriam–Webster's Collegiate Dictionary 539 [11th ed. 2003] ). Likewise, “merchandise” is defined as “the commodities or goods that are bought and sold in business” (id. at 776, 951 N.Y.S.2d 467, 975 N.E.2d 913 ). As a matter of common parlance, the term “goods” plainly includes food. For example, one often refers to

127 A.D.3d 465

canned foods as “canned goods,” and baked items as “baked goods.” Thus, food products such as those sold by petitioners fall within the common, everyday meaning of “goods” and “ merchandise” (see Monroy v. City of New York, 95 A.D.3d 535, 943 N.Y.S.2d 510 [1st Dept.2012] [food is “merchandise” as that term is used in city regulation governing the sale of merchandise] ). If the legislature had intended to exclude food from the purview of GBL 35–a, it could have expressly done so, as it did, for example, in General Municipal Law § 85–a [explicitly excepting “food products” from the phrase “goods, wares or merchandise”] ). Its failure to have made such an exclusion in GBL 35–a indicates an intention to include food within the broad reach of the statute.¹

The phrase “goods, wares or merchandise” is drawn verbatim from GBL 35–a's companion statute, GBL 32, which governs the rights of veterans to vend. That statute, from its inception, has been understood to apply to all categories of vendors, including food vendors (see e.g. City of Buffalo v. Linsman, 113 App.Div. 584, 98 N.Y.S. 737 [4th Dept.1906] [sale of vegetables]; Matter of Sharpe v. New York City Dept. Of Health & Mental Hygiene, 2008 N.Y. Slip Op. 32094[U] [Sup.Ct., N.Y. County 2008] [mobile food vending]; People v. Mann, 113 Misc.2d 980, 450 N.Y.S.2d 275 [Dist.Ct., Suffolk County 1982] [sale of hot dogs];

8 N.Y.S.3d 28

People v. Gilbert, 68 Misc. 48, 123 N.Y.S. 264 [County Ct., Otsego County 1910] [sale of peanuts and popcorn]; see also Good Humor Corp. v. City of New York, 290 N.Y. 312, 49 N.E.2d 153 [1943] [involving sale of ice cream and local law regulating sale of “goods, wares or merchandise”] ). It would be incongruous for the legislature to have viewed food as “goods, wares or merchandise” for purposes of GBL 32, but not for GBL 35–a.

It is axiomatic that “a statute ... must be construed as a whole and that its various sections must be considered together and with reference to each other” (People v. Mobil Oil Corp., 48 N.Y.2d 192, 199, 422 N.Y.S.2d 33, 397 N.E.2d 724 [1979] ). A review of the myriad provisions in GBL 35–a makes clear that the statute was intended to, inter alia, combat sidewalk congestion and promote public safety in areas where vending is taking place. For example, vending is prohibited on sidewalks where the pedestrian path is less than 10 feet wide (GBL 35–a[3] ). There are also restrictions on, inter alia, vending within bus stops and taxi stands, and near subway entrances, driveways, disabled access ramps and entrances to stores (GBL 35–a[7][h], [l][i], [l] [viii] ). Other parts of

127 A.D.3d 466

the statute prohibit interference with fire hydrants and traffic barriers, use of oil and gas powered equipment, and vending over subway grates, ventilation grills and manholes (GBL 35–a [7 ][g], [l][iii], [l][v] ). The congestion and safety concerns underlying these provisions pertain to all vendors regardless of what they are selling, and there is no rational reason why the legislature would intend for these restrictions to apply to general vendors but not food vendors.

The passing reference to food vendors in GBL 35–a(11) fails to demonstrate that the legislature did not intend food vending to be covered under the statute. That subdivision, which provides for certain caps on vending by disabled veterans, is merely an acknowledgment that there are different...