Appellate Court Decision Overturns Lower Court Ruling on Timing Technicality
FOR IMMEDIATE RELEASE
TWO-PAGE APPELLATE COURT DECISION OVERTURNS LOWER COURT RULING ON TIMING TECHNICALITY
Leaves environmental hazards of the NYC Open Restaurants program open to future legal action
NEW YORK, NY (October 5, 2022) Yesterday’s two-page appellate ruling on Arntzen et al v City of New York failed to address the environmental impacts of the City’s controversial Open Restaurants program. Instead, the decision concerned itself exclusively with the timing of the petitioners’ initial filing — and said nothing about the merits of the case. The court's decision merely delays the reckoning on the City's end-run around New York State's Environmental Quality Review law.
The negative environmental impacts of the City's pandemic-era program are evident throughout the five boroughs, impacting thousands of New Yorkers. The court is not disputing that fact.
The Appellate Division simply stated that it "need not address the merits of petitioners’ challenge to the City's action" - leaving the door wide open for future legal action challenging the Permanent Open Restaurants program that will soon come up for a vote by the 51-member NY City Council.
"Opening this process to the public and soliciting its response would have doomed the proposal and embarrassed those who supported it,” noted Michael H. Sussman, attorney for the petitioners.
New Yorkers deserve to have a City government and elected officials who abide by our environmental laws, which require public review and comment. We are considering all legal avenues available to us and look forward to re-filing our action when the City has completed the Permanent Open Restaurants legislation. The fight to protect our public space from privatization, to safeguard our environmental laws, and to rein in unbridled government overreach is far from over.
Attorney Sussman concluded, "Having failed to follow the procedures set forth under state law for a project of this magnitude, the City is left with only one option: self-congratulation."