The following papers, numbered 3, were read on this application to/for DismissNotice of Motion/ Petition/ OSC – Affidavits – Exhibits No(s) 1Answering Affidavits – Exhibits No(s) 2Replying Affidavits No(s) 3DECISION AND ORDER Defendant’s motion to dismiss is granted.BackgroundThis case is about the location of plaintiff’s mobile food cart. Plaintiff holds a disabled veteran vendor’s license. Plaintiff claims this “specialized vendor’s license” is the premier license and which grants him access to more locations in which to set up his cart pursuant to General Business Law §35-a than ordinary licenses.Here, plaintiff claims he has the right to put his food cart on the northern-most edge of Herald Square Plaza. This pedestrian plaza covers the portion of what used to be Broadway between West 35th Street and West 34th Street; there is no street Broadway any longer, it is now a pedestrian plaza. Initially, plaintiff brought an Article 78 seeking to prevent the New York Police Department from issuing him tickets for placing his food cart in Herald Square Plaza. The Court, in a decision dated June 4, 2018, converted this special proceeding to a plenary action for declaratory relief about whether plaintiff’s food cart could be placed in that location.Defendant argues that the complaint should be dismissed because New York’s General Business Law prohibits food vendors, even those with a disabled veteran vendor license, from vending on Broadway from West 30th Street to West 65th Street. Defendant concludes that the location of plaintiff’s food cart is illegal.In opposition, plaintiff asserts that his food cart is not on Broadway. Rather, plaintiff claims that his cart is located on West 35th Street (a permissible location) and not on Broadway because defendant eliminated Broadway in that area. Plaintiff contends that the sidewalk is wide enough in his preferred location because his cart is parallel to West 35th Street and it is more than 10 feet from both the western and eastern corners. Plaintiff points to the New York City Administrative Code’s provision allowing food vendors to position themselves in a public space.Discussion“When considering these pre-answer motions to dismiss the complaint for failure to state a cause of action, we must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiffs every possible favorable inference. We may also consider affidavits submitted by plaintiffs to remedy any defects in the complaint” (Chanko v. American Broadcasting Companies Inc., 27 NY3d 46, 52, 29 NYS3d 879 [2016]).As an initial matter, the Court rejects defendant’s argument that plaintiff cannot vend in his desired area because Broadway is a “mapped street.” The Court is not blind to the fact that defendant eliminated Broadway in this area and replaced it with a pedestrian plaza with tables and chairs. True, if Broadway was still there, the subject location would be in the middle of the street, but defendant took Broadway away. Agreeing with defendant on this point would be ignoring reality. The Court will not, at the motion to dismiss stage, ignore how this space is actually used just because defendant never unmapped Broadway.But that is not fatal to defendant’s motion because the Rules of the City of New York contain provisions about pedestrian plazas. One of those provisions, cited in an affirmation by Matthew Smith for defendant, provides that “Except as otherwise permitted, no person shall bring or place tables, carts, chairs, or furniture in or on any pedestrian plaza” (34 RCNY §4- 16[d][6]). Plaintiff’s food cart clearly qualifies as a cart and he has not alleged that he has a permit to vend in this location.1 Plaintiff failed to adequately explain how his specialized vendor’s license (“SPL”) allows him to vend in a place that requires a permit or to ignore regulations governing pedestrian plazas.In fact, General Business Law §35-a(2) provides that “In areas where general vending is authorized, outside of the area specified in subdivision seven of this section, all specialized vending license holders, including those vendors authorized to vend in the area specified in subdivision seven of this section, shall be subject to those restrictions on the placement of vehicles, pushcarts and stands contained in any local law, ordinance, by-law, rule or regulation of a city having a population of one million or more, to the extent that such restrictions are not inconsistent with the provisions contained in subdivisions four, five, six and eight of this section” (emphasis added). Even if the Court were to find that this location is outside the area specified in subdivision seven (the prohibition on vending along Broadway between 30th and 65th), the General Business Law still prohibits plaintiff from vending in the subject location. The Court also finds that the RCNY provisions about pedestrian plazas are not inconsistent with subdivisions, four, five six and eight of General Business Law §35-a.SummaryThere is no question that plaintiff has an SPL that allows him to vend in many more locations than persons holding an ordinary vending license. But the Court cannot ignore the clear directives of the General Business Law and the RCNY. The relevant provisions cited above lead to only one conclusion — that plaintiff is not entitled to set up his food truck in a pedestrian plaza without a permit.Accordingly, it is herebyORDERED that the motion by defendant to dismiss the complaint is granted without costs.CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITIONX GRANTED DENIED GRANTED IN PART OTHERAPPLICATION: SETTLE ORDER SUBMIT ORDERCHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
