18‐1002
Crescenzi, et al. v. City of New York, et al.


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                                 August Term 2018

             (Argued: February 28, 2019                            Decided: October 3, 2019)

                                                     No. 18‐1002

                              ––––––––––––––––––––––––––––––––––––

                  ARMANDO CRESCENZI, JAMES KENNEDY, ALBERT SIMMONS,
                           HOWARD DALTON, ORAL FIELDS,

                                                 Plaintiffs‐Appellees,

                                                         ‐v.‐

THE CITY OF NEW YORK, VERONICA M. WHITE, CHAIRMAN OF THE NEW YORK CITY
 DEPARTMENT OF PARKS AND RECREATION, INDIVIDUALLY AND IN HER OFFICIAL
         CAPACITY, BRUCE LANGSTON, ASHA HARRIS, JOHN DOES # 1‐10,


                                                Defendants‐Appellants,

              RAYMOND KELLY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY,

                                                     Defendant.

                              ––––––––––––––––––––––––––––––––––––

Before:           KATZMANN, Chief Judge, and LIVINGSTON and DRONEY, Circuit Judges.

     Defendant‐Appellant the City of New York (“the City”) appeals from a
judgment of the United States District Court for the Southern District of New York

                                                          1
(Daniels, J.), granting judgment to Plaintiffs‐Appellees on their 42 U.S.C. § 1983
false‐arrest claim. On appeal, the City argues that the district court erred in
determining that New York General Business Law § 35‐a(7)(i) does not require
curbside vending. We agree with the City. Accordingly, the judgment of the
district court is REVERSED.

       CHIEF JUDGE KATZMANN dissents in a separate opinion.

FOR PLAINTIFFS‐APPELLEES:               JOSHUA P. FITCH, Cohen & Fitch LLP, New
                                        York, NY.

FOR DEFENDANTS‐APPELLANTS:              DEVIN SLACK (Richard Dearing, on the brief),
                                        for Zachary W. Carter, Corporation Counsel
                                        of the City of New York, New York, NY.

DEBRA ANN LIVINGSTON, Circuit Judge:

       Defendant‐Appellant the City of New York (“the City”) appeals from a

March 29, 2018 judgment of the United States District Court for the Southern

District of New York (Daniels, J.), granting judgment to Plaintiffs‐Appellees on

their 42 U.S.C. § 1983 false‐arrest claim. On appeal, the City argues that the district

court erred in determining that New York General Business Law (“GBL”) § 35‐

a(7)(i) does not require curbside vending. We agree and conclude that § 35‐a(7)(i)

does require curbside vending. Accordingly, we reverse the judgment of the

district court.




                                          2
                                  BACKGROUND

      The City is a bustling metropolis in which walking is the primary means of

getting around for many of the 8.5 million people who call the City home (not to

mention the City’s 60 million annual visitors). See Winnie Hu, New York’s Sidewalks

Are So Packed, Pedestrians Are Taking to the Streets, N.Y. Times, June 30, 2016,

http://nyti.ms/2je0h4J. Much of this pedestrian traffic takes place on sidewalks.

Congestion and blockages on these busy sidewalks, then, can create frustrating

challenges and real dangers for people simply trying to get to work, school, or the

grocery store. The City, cognizant of the sometimes‐difficult circumstances of its

pedestrians, regulates its sidewalks with a complex patchwork of laws and

regulations in order to ensure a steady—and safe—flow of foot traffic. See, e.g.,

N.Y. City Admin. Code § 19‐125(d) (regulating ornamental lamppost placement);

id. § 19‐128.1(b)(5) (newsracks); N.Y. City Zoning Resolution §§ 26‐23, 26‐42

(planting strips and trees); 34 R.C.N.Y. § 2‐20(q)(4) (street poles).

      One such regulatory scheme governs disabled veteran vendors, who can be

seen on sidewalks across the City selling hot dogs, pretzels, ice cream, and more.

The longstanding exemption from municipal limitations on sidewalk vending for

disabled veterans, codified in GBL § 35, entitles “any honorably discharged




                                           3
member of the armed forces of the United States who is physically disabled as a

result of injuries received while in the service of said armed forces” to vend in “any

street, avenue, alley, lane or park” of the City, so long as he or she has been issued

a license to do so. But this entitlement comes with several restrictions, set forth in

GBL § 35‐a, as to where, when, and how vendors may vend. Cf. Matter of Rossi v.

N.Y.C. Dep’t of Parks & Recreation, 127 A.D.3d 463, 465 (1st Dep’t 2015) (noting that

the restrictions in § 35‐a are designed to “combat sidewalk congestion and

promote public safety”). At issue in this case is the restriction described in § 35‐

a(7)(i), which provides that no disabled veteran vendor

      shall occupy more than eight linear feet of public space parallel to the
      curb in the operation of a vending business and, in addition, no
      [disabled veteran vendor] operating any vending business on any
      sidewalk shall occupy more than three linear feet to be measured
      from the curb toward the property line.

GBL § 35‐a(7)(i).

      Armando Crescenzi, James Kennedy, Albert Simmons, Howard Dalton, and

Oral Fields (collectively, “Plaintiffs‐Appellees”) are five disabled veterans who

were issued, as relevant here, 298 summonses between 2011 and 2013 while

vending in front of the Metropolitan Museum of Art. The summonses were issued

by City Parks Enforcement Patrol (“PEP”) officers for Plaintiffs‐Appellees’ failure

to comply with orders to relocate their vending carts in violation of the City’s rule

                                          4
that no person shall “refuse to comply with the lawful direction or command” of

any PEP officer. See 56 R.C.N.Y. § 1‐03(c)(1). The stated “lawful” basis for the

relocation orders was that Plaintiffs‐Appellees were contravening § 35‐a(7)(i) by

operating their carts more than three feet from the curb. Each summons contained

nearly identical language. To take one example:

      I did observe the respondent vending food from a cart on parks
      property that is under the jurisdiction of NYC Parks. The respondent
      cart was approximately 20 feet from the curb. I told the food vendor
      that according to GBL 35‐a(7)(i) a vendor must occupy no more than
      three (3) linear feet measured from the curb. When asked to move to
      the curb the respondent failed to comply with my directives.

A‐654.

      On February 5, 2013, Plaintiffs‐Appellees filed the instant action against the

City under 42 U.S.C. § 1983 in the United States District Court for the Southern

District of New York.1 The complaint alleged a claim of false arrest, on the theory

that Plaintiffs‐Appellees were in compliance with § 35‐a(7)(i)—if properly

interpreted—at the time of the officers’ relocation orders, so that there was no

probable cause to issue the summonses.2 The complaint also alleged a claim of

selective enforcement.



      1 The complaint named certain individual defendants, but the City is the only
remaining defendant.
      2   The parties have assumed throughout this litigation that the officers’ issuances

                                             5
      After several years of discovery, the City moved for judgment on the

pleadings. In a July 26, 2017 Memorandum Decision and Order on that motion,

the district court dismissed the selective‐enforcement claim 3 but ruled for

Plaintiffs‐Appellees on the false arrest claim, as to which the district court deemed

the “central question” to be “whether Section 35‐a(7)(i) restricts a . . . cart’s

distance from the curb, or whether it simply restricts the size and dimensions of

the cart.” A‐940. The court ultimately determined that § 35‐a(7)(i) restricts only the

size and dimensions of vending carts, reasoning primarily that because the

provision’s first clause restricts only “the length of a cart and not its placement,” it

is therefore “logical that the next clause . . . should be interpreted in the same

manner—that is, restricting only a cart’s width between the curb and the property

line and not its distance from the curb.” A‐941. Based on this interpretation, the

court concluded that Plaintiffs‐Appellees had “plausibly alleged that the officers

who issued [the] summonses lacked probable cause to believe a violation” of § 35‐

a(7)(i) had occurred. A‐944. After dealing with other issues in the litigation, the




of summonses constituted “seizures” that triggered the Fourth Amendment’s
protections. Given the parties’ posture, we assume the same for purposes of resolving
this appeal.
      3   Plaintiffs‐Appellees have not appealed this ruling.


                                             6
court entered judgment for Plaintiffs‐Appellees on March 29, 2018, stating that

there was “no probable cause to issue the Disputed Summonses.” SPA‐5.

      The City timely appealed.

                                   DISCUSSION

      The district court’s probable cause determination turned on its antecedent

resolution of the question whether § 35‐a(7)(i) imposes a curbside vending

requirement on disabled veteran vendors. Resolution of this municipal law

question is sufficient to resolve this appeal. The district court determined that § 35‐

a(7)(i) merely imposes length and width restrictions on carts, which led it to

conclude that there was no probable cause for the summonses. Plaintiffs‐

Appellees defend that interpretation before this Court. We review de novo both the

district court’s probable cause determination under the Fourth Amendment, see

United States v. Pabon, 871 F.3d 164, 173 (2d Cir. 2017) (citing Ornelas v. United

States, 517 U.S. 690, 699 (1996)), and its determination as to the meaning of § 35‐

a(7)(i). We conclude that § 35‐a(7)(i) prohibits vending more than three feet from

the sidewalk curb—in other words, that it imposes a curbside vending




                                          7
requirement. 4 Accordingly, the officers did not lack a basis to issue the

summonses, and the district court’s conclusion to the contrary is reversed.

       Section 35‐a(7)(i) has two clauses. The first clause provides that no vendor

“shall occupy more than eight linear feet of public space parallel to the curb.” The

second clause provides that no vendor “shall occupy more than three linear feet to

be measured from the curb toward the property line.” The language of the second

clause is somewhat unusual, and we recognize some ambiguity in the interpretive

task it presents us. Nevertheless, we conclude that, on balance, the City’s

interpretation makes better sense of that clause. According to the City, § 35‐a(7)(i)

does two things simultaneously: first, it limits the dimensions of vending carts to

eight feet in length by three feet in width; second, it requires that carts be

positioned lengthwise alongside the curb, out of the way of pedestrians. This

interpretation gives full effect to every word in the second clause. Carts can occupy




       4   The parties dispute whether Heien v. North Carolina, 574 U.S. 54 (2014), which
held that a seizure conducted on the basis of an officer’s “reasonable mistake of law” does
not violate the Fourth Amendment, applies to cases like this one involving municipal
rather than individual liability. Because we conclude that the City’s interpretation of § 35‐
a(7)(i) is not only reasonable, but correct, we decline to weigh in on whether Heien applies.
We note, however, that in light of this Fourth Amendment issue, the dissent, which finds
§ 35‐a(7)(i) to be ambiguous, incorrectly labels that question “outcome determinative” in
arguing for certification to the New York Court of Appeals. See Dissenting Op. at 1.


                                             8
the three feet nearest the curb, “to be measured from the curb toward the property

line.”

         By contrast, Plaintiffs‐Appellees’ interpretation ignores the distinct and

unusual phrasing of the second clause. In their view, this clause simply requires

that carts be no more than three feet in width. But they never explain how that

interpretation accords with § 35‐a(7)(i)’s language. If all the legislature had wanted

to do was limit the dimensions of vending carts, it could have written a

straightforward provision reading “no vendor’s operation shall occupy more than

eight feet in length by three feet in width.” Tellingly, however, that’s not what the

legislature did. Instead, it wrote a provision with the clause that no vendor “shall

occupy more than three linear feet to be measured from the curb toward the

property line.” Plaintiffs‐Appellees offer no rationale for why the legislature

would use such convoluted language if all it intended to do was limit cart width,

and their interpretation renders the phrase “to be measured from the curb toward

the property line” meaningless.

         Plaintiffs‐Appellees’   interpretation   has   still   another   problem:   the

background context of § 35‐a(7)(i) renders their interpretation implausible, to say

the least. That’s because under their interpretation of the provision, vendors could




                                            9
place their carts directly in the middle of the sidewalk, so long as the cart was eight

feet by three feet in width and placed parallel to the curb. Such an interpretation

defies common sense and contravenes the explicit rationale for having a provision

like § 35‐a. When § 35‐a was enacted in 1998, the legislature noted that the law

imposed “placement restrictions and other types of controls” on vendors. Budget

Rpt., Bill Jacket, L. 1998, ch. 227. Those restrictions were designed to “address both

safety and congestion concerns” with “the flow of traffic on New York City’s busy

sidewalks.” Id. The law was reenacted in 2004, and the reasons for it were

unchanged: to “keep streets safe and make it easier for the millions of people who

walk on New York City sidewalks every day to move about in high traffic areas.”

Governor’s Press Release, N.Y. Legis. Serv., Bill Jacket, L. 2004, ch. 11. It is difficult

for us to understand how allowing vendors to place large, eight‐by‐three carts

smack in the middle of busy sidewalks would make it easier for pedestrians to

move about. On the other hand, it is obvious how the City’s interpretation of § 35‐

a(7)(i) furthers this goal. By restricting vendors to the three feet nearest the

curbside, § 35‐a(7)(i) ensures that the remainder of the sidewalk—including the

middle, where pedestrians usually walk—remains free and clear of obstruction.

The City’s interpretation also ensures that people with mobility‐related




                                           10
disabilities, such as those in wheelchairs, can make their way up and down

sidewalks without having to navigate around carts placed (incredibly

inconveniently) directly in their travel path.

      Plaintiffs‐Appellees’ primary textual argument is that, in their view, § 35‐

a(7)(i)’s two clauses use “similar expressions,” and thus “it must be presumed that

the legislature intended the second clause to operate in the same manner” as the

first, “namely, to regulate a cart’s size and not its placement.” Appellee Br. 16. We

find this argument unpersuasive, because the two clauses are not similarly

phrased—at all. To repeat, the first clause provides that no vendor “shall occupy

more than eight feet of public space parallel to the curb,” and the second provides

that no vendor “shall occupy more than three linear feet to be measured from the

curb toward the property line.” Had the second clause actually been worded

similarly to the first, as Plaintiffs‐Appellees insist, it would have said something

like “no vendor shall occupy more than three linear feet of public space on the

sidewalk perpendicular to the curb.” Instead, the legislature worded the second

phrase completely differently. Indeed, the striking differences in the wording of

the two clauses actually prove the opposite of what Plaintiffs‐Appellees contend—




                                         11
that a textually sound interpretation of § 35‐a(7)(i) must assign a different meaning

to each clause.5 The City’s interpretation does just that.

       The only other argument related to the statutory text that Plaintiffs‐

Appellees make is that if § 35‐a(7)(i) contained a curbside vending requirement,

the legislature would have communicated that meaning by using the word

“within” rather than “from”—that is, the second clause would have required that

vendors “operate within three feet of the curb.” Plaintiffs‐Appellees assert that

other provisions of § 35‐a use “within” to describe the minimum required distance

between a cart and some other point, such as entrances to buildings, and because

the legislature used “from” in § 35‐a(7)(i), it must have meant something different

there. But the other uses of “within” in § 35‐a are used to describe distances that

carts cannot be located in, while § 35‐a(7)(i) describes the area that carts must be

located in. We have no reason to think the legislature would have used—let alone

been required to use—the same word to convey these different concepts.




       5 The dissent’s view that Plaintiffs‐Appellees’ interpretation “gives full effect” to
the disputed clause by “modif[ying] the word ‘feet’ to prevent vendors from placing
eight‐foot‐by‐three‐foot carts perpendicular to the curb” glosses over this distinction.
See Dissenting Op. at 1. The legislature could have readily achieved that reading using
the consistent language “no vendor shall occupy more than three linear feet of public
space on the sidewalk perpendicular to the curb”; instead, it chose to use wholly
dissimilar language.


                                            12
Moreover, and more importantly, we ultimately do not ascribe much importance

to the use of “from” instead of “within.” Both words can be used to convey

distances, and the use of “within” in one part of the statute does not foreclose the

legislature’s use of “from” in another.

      Having failed to put forth a convincing reading of the text of § 35‐a(7)(i),

Plaintiffs‐Appellees next attempt to support their interpretation by resort to

surrounding provisions that, they say, duplicate or contradict any curbside

vending requirement in § 35‐a(7)(i). For instance, they point to § 35‐a(7)(h)’s

regulation of vendor proximity to “entranceway[s] to any commercial building or

store.” Subsection (h) provides that “where such doorways are within forty feet

from each other . . . , a vending pushcart, stand or goods shall be an equal distance

from the center of the doorway of each such commercial business or store at the

furthest possible distance on the sidewalk from the building line.”6 According to

Plaintiffs‐Appellees, the phrase “furthest possible distance on the sidewalk from

the building line” in subsection (h) creates a limited curbside vending

requirement, which would be at least partially superfluous if subsection (i) creates


      6  We note that the legislature used the word “from” in this provision to convey
distances, just as it did in § 35‐a(7)(i), lending further support to our conclusion above
that the word “from” in § 35‐a(7)(i) does not somehow preclude a curbside vending
requirement.


                                           13
a universal curbside vending requirement. We first note that the “canon against

superfluity assists only where a competing interpretation gives effect to every

clause and word of a statute,” Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 106–07

(2011) (internal quotation marks omitted), and because Plaintiffs‐Appellees have

yet to offer an interpretation that makes use of all of the words in § 35‐a(7)(i) itself,

their attempt to invoke the canon here largely falls flat. But even taking the

argument on its merits, subsection (h) requires a vending cart near doorways less

than 40 feet apart to be placed both (1) at the curbside and (2) “an equal distance

from the center of [each] doorway.” The point of subsection (h), then, is to ensure

that a clear path is available to each doorway. We hardly think that the universal

curbside requirement in subsection (i) undermines or renders superfluous the

legislature’s decision in subsection (h) to, in the course of providing clarity about

what vendors need do around doors, reiterate that carts must also be located near

the curb.

      The other ancillary provisions cited by Plaintiffs‐Appellees and found

persuasive by the dissent, see Dissenting Op. at 3–4, are even less helpful to their

interpretation and drift even further from the key interpretive point, which is that

Plaintiffs‐Appellees have not offered a plausible interpretation of the provision at




                                           14
issue in this case, § 35‐a(7)(i). In such circumstances, Plaintiffs‐Appellees cannot

solve their interpretive problems by pointing to surrounding provisions that may,

in limited circumstances, overlap with § 35‐a(7)(i)’s universal curbside

requirement. See, e.g., Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881 (2019)

(“Sometimes the better overall reading of the statute contains some redundancy.”).

      The final piece of support for their interpretation that Plaintiffs‐Appellees

offer is a collection of 125 decisions by administrative law judges (“ALJs”) on the

City’s Environmental Control Board rejecting the interpretation of § 35‐a(7)(i) that

the City presents here. We find these decisions of limited persuasiveness for two

reasons. First, these 125 decisions—all of them written by the same five ALJs—

contain identical, formulaic language that merely states, in relevant part: “the rule

in question, which requires that vending units not occupy more than 8 feet

measured parallel to the curb and 3 feet when measured, in effect, perpendicularly

from the curb, . . . pertains only to a unit’s length and width, not to its distance

from the curb.” E.g., A‐693. Our analysis above of the text of § 35‐a(7)(i) refutes the

quoted statement. Second, while they do not speak directly to the issue here,

several decisions of the Appeals Board (above the ALJs in the administrative

hierarchy) appear to contradict the interpretation of § 35‐a(7)(i) set forth in the ALJ




                                          15
decisions. See, e.g., NYC v. Howard Dalton, ECB Appeal No. 1200146 (July 26, 2012)

(stating that because § 35‐a(7)(i)’s restrictions apply in a museum plaza, an officer’s

directions to a vendor whose cart was located “about 15, 20, 25, or 30 feet from the

curb” to move to within three feet of the curb “were lawful”).

      In sum, we read the two clauses of § 35‐a(7)(i) just as the City does: to both

limit the dimensions of vending carts and to impose a curbside vending

requirement. To do otherwise, and allow carts to be placed in the middle of the

sidewalk, would be to defy common sense as well as both the text and context of

the statutory provision before us.

                                  CONCLUSION

      For these reasons, we REVERSE the district court’s judgment and REMAND

to the district court with instructions to enter judgment for the City.




                                          16
KATZMANN, Chief Judge, dissenting:

      As the majority’s thoughtful opinion outlines, there are good reasons to

view New York General Business Law (“GBL”) § 35‐a(7)(i) as imposing a

curbside vending requirement on disabled veteran vendors. However, I believe

that Plaintiffs‐Appellees also present strong arguments that subsection (i)

restricts the width of a vendor’s cart, measured perpendicular to the curb, but

does not independently dictate where the cart must be placed on the sidewalk.

Because I find the statutory provision at issue to be ambiguous, and involving an

unsettled question of state law, I would certify the question of its proper

interpretation to the New York Court of Appeals, whose decision, on my

reading, would be outcome determinative as to the matter at hand.

      Contrary to the majority’s characterization, Plaintiff‐Appellees’

interpretation gives full effect to the clause “to be measured from the curb

toward the property line”: it modifies the word “feet” to prevent vendors from

placing eight‐foot‐by‐three‐foot carts perpendicular to the curb. In other words,

under their interpretation, the provision governs the carts’ dimensions and

orientation, requiring that vendors use up only three feet of space along the

narrow dimension of the sidewalk—the dimension from the curb to the property



                                            1
line—while permitting vendors to use up to eight feet of space along the wider

dimension of the sidewalk—the dimension running parallel to the curb.

      To be sure, if Plaintiffs‐Appellees are right, the legislature could have

expressed this concept more clearly. But the same critique applies to the

majority’s interpretation of the clause as a curbside vending requirement. The

legislature could have written a straightforward provision stating explicitly that

vending must occur within three feet of the curb or that vendors are prohibited

from vending farther than three feet from the curb. The simple fact is that

subsection (i) is unclear, and, while both parties’ interpretations could explain

the words used, neither renders the phrasing natural.

      That said, the legislature does use clear language to restrict cart placement

in other subsections of the statute. Subsection (h) provides that “no vending

pushcart . . . shall be located . . . within twenty feet from an entranceway to any

commercial building or store” or “within sixty‐five feet of the entranceway to

any theater, movie house, indoor sports arena, or place of worship or school,”

and subsection (l)(i) provides that no vendor shall “vend . . . within ten feet of




                                             2
any driveway.”1 Indeed, subsection (h) contains a perfectly clear curbside

vending requirement: where there are multiple commercial doorways within

forty feet of each other, carts must “be an equal distance from the center of the

doorway of each such commercial business or store at the furthest possible

distance on the sidewalk from the building line.”

      These unambiguous provisions lend credence to Plaintiffs‐Appellees’

argument that the legislature “knew how to draft a [curbside vending

requirement] when it wanted to.” City of Chicago v. Envtl. Def. Fund, 511 U.S. 328,

338 (1994); see Russello v. United States, 464 U.S. 16, 23 (1983) (if the legislature

intended to restrict a certain subsection in a particular way, “it presumably

would have done so expressly as it did in the immediately following

subsection”).

      Moreover, interpreting subsection (i) to impose a curbside vending

requirement would render superfluous other provisions governing cart

placement. The statute prohibits locating vending carts over cellar doors, in front

of the glass windows of businesses, and against the sides of buildings, all



      1I do not find it to be a meaningful distinction that these subsections are
discussing areas that a cart cannot be “within,” while the provision in question,
under the majority’s interpretation, discusses areas that a cart must be “within.”

                                               3
locations next to the property line, not the curb. See GBL § 35‐a(7)(l), (g), (h).

And, as discussed above, the statute specifically requires curbside vending on

blocks with lots of entrances along the property line. See GBL § 35‐a(7)(h). These

specific provisions would be unnecessary if section 35‐a(7)(i) imposed a general

curbside vending requirement.

      The majority could be correct that these provisions merely indicate a belt‐

and‐suspenders approach. But “one of the most basic interpretive canons [is] that

a statute should be construed so that effect is given to all its provisions, so that

no part will be inoperative or superfluous, void or insignificant.” Corley v. United

States, 556 U.S. 303, 314 (2009). Given the number of prohibitions that the

majority’s interpretation would render superfluous, Plaintiffs‐Appellees at least

have a strong argument that these other provisions are in fact necessary because

subsection (i) does not require a disabled veteran vendor to vend at the curb at

all times.

      While I agree fully with the majority that the statute is intended to reduce

sidewalk congestion, I disagree that this general purpose indicates that this

particular provision requires curbside vending. Plaintiffs‐Appellees’ reading of

subsection (i) would also reduce sidewalk congestion, by ensuring that vending



                                              4
carts take up only three feet of space across the sidewalk and leave the rest for

pedestrians. Other parts of the statute prevent a cart from being stationed in the

center of a sidewalk, absent unusual circumstances. For instance, many avenues

and side streets, including all sidewalks narrower than ten feet as measured from

the property line to the curb, are entirely off limits to disabled veteran vendors.

See GBL § 35‐a(7)(a), (f). The statute further requires a clear, ten‐foot wide

pedestrian path from the property line to any obstruction. See GBL § 35‐a(3).

      Finally, I find the decisions of the ECB Appeals Board, which simply

assumed that the City’s interpretation of subsection (i) was correct while

resolving other disputed questions, to be of little persuasive value. More

relevant, in my view, are the 125 ECB administrative law judge decisions directly

addressing this question and finding against the City. Notably, the City appealed

none of these decisions–‐although officers continued to issue new summonses

based on the interpretation of subsection (i) rejected by the ECB, summonses,

which, strangely, also appear to have been issued in vastly disproportionate

numbers to the disabled veteran vendors in the Met plaza.2




      2 During the nineteen months in question, the 904 summonses issued to
disabled veteran vendors at the Met represented 80% of the total number of that
type of summonses issued citywide.
                                          5
      In sum, it appears to me that there are two plausible interpretations of this

unusually‐worded provision of state law, a provision that has been previously

interpreted only by state administrative agencies. Accordingly, consistent with

our preference that states define the meaning of their own laws in the first

instance, I would certify the question of this provision’s meaning to the New

York Court of Appeals. See, e.g., Haar v. Nationwide Mut. Fire Ins. Co., 918 F.3d

231, 235 (2d Cir. 2019); Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 821 F.3d 265, 270‐

71 (2d Cir. 2016); Ministers & Missionaries Benefit Bd. v. Snow, 780 F.3d 150, 153‐54

(2d Cir. 2015).

      For the reasons stated above, I respectfully dissent.




                                              6
