NY Appellate Court Reverses Annulment of Petition for the Establishment of a Sidewalk Café

This post was authored by Matthew Loescher, Esq.

This case arose following the Supreme Court of New York County’s decision to grant the petition to annul a determination of respondent The Council of the City of New York, disapproving petitioner’s application for a revocable consent to operate an unenclosed sidewalk café, ordering the Council to grant petitioner a revocable consent to operate an unenclosed sidewalk café, and denying respondent’s cross motion to dismiss the petition.

The court found, as an initial matter, that the Council reserved for itself the authority to either grant or deny a petition for revocable consent without delineating standards for the exercise of its own discretion, As such, the Council was not bound by the standards set forth in the New York City Zoning Resolution addressing unenclosed sidewalk cafés which circumscribed the Department of Consumer Affairs’ review. The court further determined that the Council providently exercised its discretion in denying the petition based upon evidence concerning problems specific to the petitioner and location, rather than based on generalized community objections to sidewalk cafés. Accordingly, the Council’s determination disapproving the petition for a new revocable consent to establish, maintain and operate an unenclosed sidewalk café had a rational basis in the record and was not arbitrary and capricious.

Maxver, LLC v Council of City of New York, 2020 WL 4005871 (NYAD 1 Dept. 7/16/2020)