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SCANNED ON 11212014

SUPREME COURT OF THE STATE OF NEW YORK


YORK COUNTY

Index Number : 40097412013


PART

HASSAN, AHMED
vs

CITY OF NEW YORK

INDEX NO.

Sequence Number : 001

MOTION DATE

ARTICLE 78

MOTION SEQ. NO.

The following papers, numbered 1 to

,were read on this motion tolfor

Notice of MotionlOrder to Show Cause -Affidavits


Answering Affidavits
Replying Affidavits

- Exhibits

I Ws).

- Exhibits

IW s ) .
IW s ) .

Upon the foregoing papers, it is ordered that this

UNFILED JUDGMENT

This judgment has not been entered by the County Clerk


and notice of entry cannot be served based hereon. To
obtain entry, counsel or authorized representative must
appear in person at the Judgment Clerk's Desk (Room

1418).

Dated:

DEL .I8 2013

, J.S.C.

CAROL

0 NON-FINAL DISPOSITION
0DENIED 0GRANTED IN PART 0OTHER
2. CHECK AS APPROPRIATE:.,........,,,............MOTION
IS:
GRANTED
0SUBMIT ORDER
3. CHECK IF APPROPRIATE: ................................................0SETTLE ORDER
0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE
1. CHECK ONE:

.....................................................................

@ CASE DISPOSED

SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK: PART 32

Index No. 400974/13

In the Matter of the Application of


AHMED HASSAN,
Petitioner,
For a Judgment Pursuant to Article 78, CPLR,
- against -

CITY OF NEW YOFUS,

. UNFILED JUDGMENT
This judgment has not been entered by the County Clerk
and notice of entry cannot be served based hereon. To
obtain e n t j , counsel or authorized representative must
appear in person at the Judgment Clerks Desk (Room
1416).
:

Respondent.

CAROL E. HUFF, J.:

In this Article 78 proceeding, petitioner seeks to annul respondents Determination dated


February 28, 2013, which upheld petitioners $1,000 fine for failure to produce a mobile food
vending unit badge upon demand, pursuant to 24 RCNY 0 89.07(d).
The facts in this matter are not in dispute. Petitioner is a licensed street vendor who sells
food from a location in downtown Manhattan. On April 18, 2012, petitioner received a notice of

violation for an alleged violation of 4 89.07(d), which provides:


No person shall operate any mobile food vending unit unless the badge issued to
such person by the Department [of Health and Mental Hygiene] is conspicuously
displayed on his or her outer clothing, and is carrying both the original food
vendor license issued to such person and the original mobile food vending unit
permit documents. Such license and permit shall be exhibited upon demand to
any police officer, Department employee or agent . . .

On that date, an Environmental Control Board (ECB) inspecting officer approached


petitioners cart, which was staffed by petitioners employee, and asked for the permit. The

.
employee, who had been working for petitioner for one month, was not able to locate it
immediately. The inspecting officer walked off to write the violation, and when he returned the
employee had found the permit and produced it. The officer nevertheless issued the violation,
which was upheld on appeal to the ECB Appeal Board.

An administrative determination will be upheld unless it is shown that it was affected by


an error of law . . . or was arbitrary and capricious or an abuse of discretion. CPLR 7803(3).
The test is whether the determination is without sound basis in reason and is generally taken
without regard to the facts. Pel1 v Board of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale and Mamaroneck, 34 NY2d 222, 23 1 (1974). An administrative agency, acting
pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if
different conclusions could be reached as a result of conflicting evidence, a court may not
substitute its judgment for that of the agency when the agencys determination is supported by the
record. Partnership 92 LP & Bld. Met. Co. Vv State of N.Y. Div. of Hous. & Community
Renewal, 46 AD3d 425,429 (lstDept 2007), aff d 11 NY3d 859 (2008).
However, where the question is one of pure statutory reading and analysis, dependent
only on accurate apprehension of legislative intent, there is little basis to rely on any special
competence or expertise of the administrative agency. Kurcsics v Merchants Mut. Ins. Co., 49
NY2d 45 1,459 (1980). In such circumstances, the judiciary need not accord any deference to the
agencys determination, and is free to ascertain the proper interpretation from the statutory
language and legislative intent. Van Teslaar v Levine, 35 N.Y.2d 3 11, 3 18 (1974).
It is patently obvious that 24 RCNY $ 89.07(d) was enacted to ensure that the required
license and permit were kept within mobile food vending units, not to put a clock on the time
required to produce them. It is undisputed that the license and pennit were kept within

.
petitioners cart. To fine the vendor $1,000 for a delay in locating the documents is without
sound basis in reason and is arbitrary and capricious.
Accordingly, it is

ADJUDGED that the petition is granted and the determination of respondents 28,2013
determination is hereby annulled.

0%
J.S. . Em
HUFF