For a Judgment under Article 78 of the CPLR DECISION & ORDER The Court has reviewed e-filed documents numbered 1 through 41 in preparing this Decision and Order. This a special proceeding brought pursuant to Article 78 of the CPLR. Petitioner commenced this action claiming Respondents’ “wrongfully suspended” Petitioner’s License to operate the facility at the Harry Tappen Beach Food and Beverage Concession, in Sea Cliff, New York. Petitioner contends the decision to suspend the License was arbitrary and capricious. Petitioner moved by Order to Show Cause for a temporary restraining order to enjoin Respondents from repossessing the facility, which was denied. Respondent submits opposition to the Petition. The parties concede that the written agreement is a License Agreement. It is undisputed that Harry Tappen Beach is a park owned by the Town of Oyster Bay (TOB). It is also uncontested that the License Agreement permitted Petitioner to operate its business seasonally, from May 26, 2022 until the end of the term, December 31, 2023. The parties concede that there was a fire on September 2, 2022, which prohibited Petitioner from operating the concession in the remaining portion of the 2022 season. The parties agree that Respondents sent a letter of Notice of Termination on February 17, 2023. Petitioner claims it will suffer irreparable harm if a preliminary injunction is not granted, as Petitioner is prospectively barred from the future sale profits for the remaining term of the License Agreement. In addition, Petitioner claims they have a damages claim for alleged negligence that caused the fire. The Court does not have that action before it nor does it have any evidence that a negligence action has been commenced. Petitioner claims it is entitled to a preliminary injunction, pending a hearing pursuant Town of Oyster Bay Code, Chapter 147. Petitioner claims that Respondents’ “suspension” of the license without a hearing on notice is arbitrary and capricious. Petitioner’s argument is based on its belief that the License Agreement is a license issued pursuant to the Town of Oyster Bay Code, Chapter 147, License and Permits. Chapter 147 states “any license or permit issued pursuant to this chapter may be revoked or suspended by the license commissioner, after a hearing upon notice, and the making of findings.” Respondents oppose stating that the License Agreement is revocable at will and no hearing is required. Respondents also claim that Chapter 147, License and Permits, applies to specific license privileges (i.e. shellfish, plumbing, electrical, towing, peddling, and soliciting…) and not for a “license in real estate.” Respondents’ state a license in real estate is “an authority to do a particular act or series of acts upon another’s land without possessing any estate therein.” Respondents also claim that Petitioner is not entitled to a preliminary injunction based on a license in real estate as there is “no possession of any estate.” To succeed in an Article 78 proceeding, a petitioner must meet the high standard of showing that a determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious or an abuse of discretion. Matter of Rosenberg v. New York State Off. of Parks, Recreation, & Historical Preserv., 94 A.D.3d 1006 (2d Dept. 2012). An Article 78 proceeding against a public body must be commenced “after the determination to be reviewed becomes final and binding upon the petitioner.” CPLR §7801. A “determination becomes final and binding when it has an impact on the petitioner.” Matter of Simon v. New York City Tr. Auth., 34 A.D.3d 823 (2d Dept. 2006). “The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual.” Vanderbilt Brookland, LLC v. Vanderbilt Myrtle, Inc., 147 AD3d 1104, 1106 [2d Dept 2017]. The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the hearing court. Id. “In order to obtain a preliminary injunction, the moving party must demonstrate: (1) the likelihood of success on the merits; (2) an irreparable injury absent the injunction; and (3) balancing of the equities in its favors.” Shasho v. Pruco Life Ins. Co. of New Jersey, 67 A.D.3d 663 (2d Dept. 2009). That issues of fact remain “shall not be grounds for denial of the motion.” Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 60 A.D.3d 666 (2d Dept. 2009). “Under the public trust doctrine, dedicated parkland cannot be converted to a nonpark purpose for an extended period of time absent the approval of the State Legislature.” Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks and Recreation, 22 NY3d 648, 654 [2014]. Likewise, “parkland cannot be leased, even for a park purpose, absent legislative approval.” Id. at 656. Absent legislative approval, a parks department can execute a license or permit to for a park purpose without violating the public trust doctrine. Id. “A license…is a revocable privilege given “to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands.” (Id.; see also Lordi v. County of Nassau, 20 A.D.2d 658, 659, 246 N.Y.S.2d 502 [2d Dept. 1964], aff’d without op. 14 N.Y.2d 699, 250 N.Y.S.2d 54, 199 N.E.2d 155 [1964] ["Generally, contracts permitting a party to render services within an enterprise conducted on premises owned or operated by another, who has supervisory power over the method of rendition of the services, are construed to be licenses"]. It is undisputed that a hearing has not occurred, therefore, there is no decision from TOB for the Court to review. Petitioner does not cite any decision rendered by the TOB that “suspends” the License Agreement. The only evidence of a “decision” is Respondents’ Notice of Termination Letter. The question before this Court is whether the TOB can terminate the License Agreement without a hearing. Petitioner’s reliance on TOB Code Chapter 147 is misplaced. Petitioner has not provided any supporting caselaw that the License Agreement would require a hearing. The license privileges in Chapter 147, clearly requires a fee and an application process, where the TOB considers each applicant prior to issuing a license. The privilege listed in Chapter 147, includes licenses for: “public assembly,” “vehicle for hire,” “oil storage and handling,” amongst others. However, there is no language in Chapter 147 regarding issuing a “license in real estate,” specifically to use park land. Petitioner did not file an application or pay a fee to obtain a special privilege license to conduct food and beverage services at the Harry Tappan Beach concession. The License Agreement was for Petitioner to operate a concession stand. It was therefore not a special privilege license issued, as defined by Chapter 147 of the TOB Code. Therefore, the hearing requirement of the TOB Code Chapter 147 is not applicable to the License Agreement. Respondents’ are not required to hold a hearing prior to revoking the License Agreement. The License Agreement does not lease the concession stand to Petitioner, as the Town does not have the authority under the public trust doctrine to lease the premises. The license allows Petitioner to use the premises, the park concession stand for its food and beverage services. A license-agreement, “by its common-law right” allows a licensor “to cancel the agreement at will and without cause.” Hartzler v. Westair, Inc., 55 AD2d 905, 905 [2d Dept 1977]. “A license, within the context of real property law, grants the licensee a revocable non-assignable privilege to do one or more acts upon the land of the licensor, without granting possession of any interest therein” R.C. Church of Our Lady of Sorrows v. Prince Realty Mgt., LLC, 47 AD3d 909, 911 [2d Dept 2008] Here, the License Agreement is revocable at will and Respondents right to do so cannot be said to be arbitrary and capricious. Petitioner’s license was to act as a vendor at the concession providing food and beverage services. Petitioner was never granted any possessory interest and the license was temporary in nature, it was non-assignable. Union Sq. Park Community Coalition, Inc. v. New York City Dept, of Parks and Recreation, 22 NY3d 648, 654 [2014]. Petitioner makes two alternative arguments regarding the validity of the “suspension.” The first is that the cause for the “suspension” was improper and was “suspicious in timing” based on when the Nassau County Health Department’s Inspection violations were posted on its website. The Petitioner’s second argument is that that Respondents did not provide notice within the thirty-day written notice requirement pursuant paragraph 36 of the License Agreement. Both arguments are without merit. The License Agreement is revocable at will, without cause. Additionally, the Court does not have before it a cause of action for breach of contract. Notwithstanding, the License Agreement grants Petitioner a license to operate the concession, from April 1st through October 31st throughout each year term. Respondents’ Notice of Termination on February 17, 2023 was at least thirty days prior to the commencement of Petitioner’s 2023 season. Preliminary Injunctive relief is denied. Petitioner failed to demonstrate a likelihood of success on the merits, the danger of irreparable harm and that the balance of the equities does not favor injunctive relief (see 159 Smith, LLC v. Boreum Hill Prop. Holdings, LLC, 191 AD3d 741, 742 [2d Dept 2021]; Shake Shack Fulton St. Brooklyn, LLC v. Allied Prop. Group, LLC, 177 AD3d 924, 927 [2d Dept 2019]). Accordingly, it is hereby ORDERED, that the Petition is DENIED. Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of this Court. Dated: May 26, 2023
