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fi Bin SUPREME COURT OF THE STATE OF NEW YORK ce NEW YORE COUNTY gE, PRESENT: _ Beery part 2 Justice Qrorerien, Boowis novrve, /20078/77 ian Craven Law Your worow,_97 The following papers, numbered 1 to, wore rad on thie motion tater Frficle “7 & Notice of Motiow/Order to Show Cause — Affidavits — Exhibits Trio), ‘Anewering Affidavits — Exhibits rete — Noe), et Replying AMdavits rand —_ Nola), Upon the foregoing papers, tle ordered that this motion is 2 DECIDED IN ACCORDANCE Wer . i i ACCOMPANYING DECISI _— ae 3 son ‘ zope oo, vw a\~ >% a3 RECEIVED ‘ JUN 1 2 2017 2 NGENETAL ES ME i HE 18, HON. ARLENE P. BLUTH. sm TB CASE DISPOSED ES eGn-Finat pisPosmon 2, CHECK AS APPROPRIATE: MOTIONS: {GRANTED CIDENIED CIGRANTEDINPART —CJOTHER 3, CHECK IF APPROPRIATE: some CISETTLE ORDER Cisuemir ORDER Ciponor Post —C/FIDUCIARY APPOINTMENT =] REFERENCE SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK : PART 32 — one eX In the Matter of the Application of GODWIN OJOFEITIMI * Index No. 100078/2017 Petitioner, Motion Seq: 001 For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, DECISION ,ORDER & JUDGMENT -against- ARLENE P. BLUTH, JSC CITY OF NEW YORK Respondent, _—— af ' ‘The petition seeking injunctive relief directing respondent to renew petitioner's mobile food vending permit is granted. Background This petition arises out of petitioner’s attempts to renew his permit to operate his food truck. The permit expired on October 31, 2016. Petitioner claims that he received his permit renewal application in July 2016 and it stated that his state sales tax identification number was inactive. Petitioner claims that he immediately applied for a new sales Tax ID number, received it, and then submitted his renewal application in early September 2016, Petitioner contends that respondent rejected the permit renewal application because his new sales Tax ID was categorized as temporary and had an expiration date of October 31, 2016, the same day his permit expired. That meant he would not have a valid sales Tax ID for the renewed permit, Petitioner claims that after receiving the rejection because of the sales Tax ID issue, he applied for a new sales Tax ID number but the New York State Department of Taxation and Finance (which allegedly received his application on October 3, 2016) did not issue him a new sales Tax ID until November 29, 2016, Petitioner insists that, with the permit deadline looming, he called the Department of Taxation and Finance in the middle of October 2016 to inquire about his application and they claimed they had not received his application, Petitioner filled out a new application and mailed it to the Department and received his new sales Tax ID on November 29, 2016. Unfortunately, by the time he received the new sales Tax ID, his food truck permit had expired and he was not permitted to submit a renewal application on an expired permit. In opposition, respondent maintains that it sent petitioner a renewal application for a mobile food vendor license (as opposed to the permit) in January 2016, which informed petitioner that his sales Tax ID was inactive. Respondent also contends that the application it sent to petitioner for the renewal of his permit (in July 2016) also stated that his sales Tax ID was inactive, Respondent explains that there is a cap on the number of permits available in New York 1 City and there are several waiting lists to obtain permits, Respondent asserts that petitioner knew about this Tax ID issue for nine months before his permit expired on October 31, 2016 and did not remedy the problem. In reply, petitioner insists that he submitted a timely application (in early September 2016) and that the Department of Health and Mental Hygiene’s regulations allow for renewal applications to be submitted after the deadline if the delay is caused by an agency issuing certain clearances, such as tax clearance. Page 2 of 5 Discussion In an article 78 proceeding, “the issue is whether the action taken had a rational basis and ‘was not arbitrary and capricious” (Ward v City of Long Beach, 20 NY3d 1042, 1043, 962 NYS2d 587 [2013] [internal quotations and citation omitted]), “An action is arbitrary and capricious ‘when itis taken without sound basis in reason or regard to the facts” (id), “If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable” (id), “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231, 356 NYS2d 833 [1974]). Under Chapter 6 of the Rules of the City of New York, the Department of Health and Mental Hygiene administers mobile food vending permits and provides that: “The Department may accept alate renewal application only ifthe applicant submits | proof that may be verified by the Department thet the delay in submission of the completed application and clearances resulted because of delays in issuing the clearances, In such cases, the permittee must show that the applications for tax and penalty clearances were submitted at least sixty (60) days before the date of renewal of the permit” (24 RCNY § 6-11[a)). Here, the question for this Court is whether it was arbitrary and capricious for respondent | to deny petitioner's application for a renewal of his mobile food vending permit. The practical effect of this denial is that petitioner will be prevented from operating his business and must “go to the back of the line”~ a long wait list- in order to start running his business again, Petitioner submitted an application for a new sales Tax ID on July 20, 2016 through the Department of Taxation and Finance's website, more than sixty days prior to the October 31, Page 3 of 5 2016 expiration of his mobile food vending permit. What caused this trouble? On the application fora sales Tax ID form, one of the boxes asked for an expiration date - probably meant for people seeking a temporary sales Tax ID for a temporary business or a specific event. According to petitioner, he mistakenly entered October 31, 2016 on that form - the date his food truck permit was to expire, Petitioner apparently believed that he should enter the expiration date for his mobile food vending permit when, instead, he should have realized that a permanent Tax ID does not have an expiration date, that the question was not about his food truck permit, and he should have left that box blank. Because he filled in the box in error, the response to this application was that the tax authorities issued a temporary sales Tax ID - to expire on October 31,2016. ‘After the application was rejected because he had no sales Tax ID for the renewal period, petitioner then submitted a new application for a Tax ID only to later find out that the Department claimed it had never received his application (despite his receipt for proof of mailing). These actions delayed petitioner’s ability to obtain a valid permanent sales Tax ID. ‘The regulation cited above gives respondent discretion to accept late renewal applications ‘where the tax clearance delays the permit renewal application. Here, respondent's failure to accept the late renewal application, where petitioner’s initial mistake was merely clerical ~ filling in the wrong box- and the delays were due to dealing with a bureaucracy, was an arbitrary decision and an abuse of discretion, Petitioner did not wait until the very last moment before addressing his renewal application, He received the renewal application for the permit in July ‘and applied for a new Tax ID later that same month. Certainly, petitioner did not fill out that Tax ID form properly, but the penalty for that small error should not deprive him of the ability to run Page 4 of 5 his business, Petitioner js not an accountant ora tax attoraey Who might be expected to be familiar withthe forms ~he has a food truck. Moreover, i was, or should have been, painfully obvious t6 respondent that there was some mistake inthe tax paperwork: petitioner went from having an invalid Tax ID to one that expired on the same day his permit expired, clearly indicating that he had sought to obtain a Tax ID and the taxing authority sought to give him one, ‘Under these circumstances, respondents failure to exercise its discretion is hard to justify (Matter of Balaskas v Hamburg, 198 AD2d 82, 84, 603 NYS2d 835 [Ist Dept 1993}), ‘The fect that petitioner's license was expired when he submitted the renewal application {or the permit does not merit a different conclusion because respondent later approved petitioner's request to renew the license in December 2016. Accordingly, it is hereby ORDERED and ADJUDGED that petitioner's petition is granted and respondent must renew petitioner's mobile food vending permit on or before July 11, 2017. This is the Decision and Order of the Court, Dated: June 9, 2017 New York, New York ARLENE P. BLUTH, JSC a Page 5 of 5