The opinion
Shah v City of New York
2025 NY Slip Op 32766(U)
August 11, 2025
Supreme Court, New York County
Docket Number: Index No. 156288/2025
Judge: Lyle E. Frank
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
INDEX NO. 156288/2025
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 08/11/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
---------------------------------------------------------------------------------X INDEX NO. 156288/2025
WAJID SHAH,
MOTION DATE 05/14/2025
Petitioner,
MOTION SEQ. NO. 001
-v-
THE CITY OF NEW YORK, DECISION + ORDER ON
MOTION
Respondent.
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The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 7, 8, 9, 29, 30, 31,
32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 50, 51, 53
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Upon the foregoing documents, the petition is denied.
Background
Petitioner Wajid Shah is a disabled veteran of the U.S. Marines Corps and a mobile food
vendor in New York County. He had been issued a Mobile Food Vending Permit (#50131225),
which he transferred to his wife in December of 2024. Following this transfer, he then applied
for a general vendor permit, which was denied by Respondent on the grounds that the original
permit was still tied to his license. Petitioner brought this present petition seeking to challenge
this denial. Petitioner has also moved to supplement the petition to add a claim for relief from
several summons that have been issued.
Standard of Review
A party may bring an Article 78 petition to challenge the final determination of an
administrative agency. CPLR § 7801(1). A court must give great deference to the agency’s
decision and cannot “interfere unless there is no rational basis for the exercise of discretion or the
action complained of is arbitrary and capricious.” Pell v. Board of Education, 34 N.Y.2d 222,
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231 [1974]. Judicial review is also available if the agency’s determination was “contrary to law
or procedure.” Barrett Japaning, Inc. v. Bialobroda, 190 A.D.3d 544, 545 [1st Dept. 2021]. An
action is irrational or arbitrary and capricious if “it is taken without sound basis in reason or
regard to the facts.” Matter of A.Z. v. City Univ. of N.Y., Hunter Coll., 197 A.D.3d 1027, 1027
[1st Dept. 2021].
Discussion
As an initial matter, part of the requested relief is the vacatur of three summonses that
were issued to Petitioner related to his vending operation. Two of them are time-barred and the
third was never appealed. Therefore, the Court is unable to grant such relief. Additionally,
Petitioner is requesting attorneys’ fees, but has been proceeding pro se, and therefore cannot
have accumulated attorneys’ fees in this action. Therefore, that portion of the requested relief
will likewise be denied.
There are two main issues to be resolved in the supplemented petition: 1) whether the
Respondent’s denial of Petitioner’s application for a vending permit was arbitrary and
capricious; and 2) whether the application of the geographical restrictions pursuant to GBL § 35-
a to vending licenses obtained under GBL § 32 is arbitrary and capricious. For the reasons that
follow, the supplemented petition is denied.
The Decision to Deny the Permit Application Was Not Arbitrary or Capricious
Petitioner was denied permit #50163463 on the grounds that his former permit, which
was transferred to his wife, was still tied to his name. The former permit was transferred to
Petitioner’s wife pursuant to NYC Admin. Code § 17-314.1(d)(1), which permits a discretionary
transfer to certain family members of an “incapacitated or deceased person” that was issued the
permit. It is not disputed that petitioner’s wife would not, on her own, qualify for the vending
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permit which was transferred. Respondent’s position is that this provision of the Administrative
Code does not permit for a person to transfer a permit to a spouse and then apply again for
another permit in their own name. The Court agrees. If Petitioner is an incapacitated person as
contemplated under this provision of the Administrative Code, then Petitioner would by
definition not be able to receive another permit in his name. This is not an arbitrary reading of
the Administrative Code.
Respondent Cannot Be Required to Issue a New, Unrestricted Vending License to Disabled
Veterans
Petitioner also requests that Respondent be required to issue a new form of vending
license to disabled veterans. Under General Business Law § 32(1), disabled and other veterans
“shall have the right to hawk, peddle, vend and sell goods, wares, or merchandise or solicit trade
upon the streets and highways within the county of his or her residence.” Subsection 8 of the
same provision states that cities issuing such licenses “may prescribe the terms and conditions
under which such local license may be issued.” Another provision of the GBL, Section 35, states
that “no such by-law, ordinance or regulation shall prevent or in any manner interfere with the
hawking or peddling” by disabled and certain other veterans. The Legislature later passed GBL §
35-a, which addresses specialized vending licenses issued to disabled veterans, and allows for
some cities to include certain time, place, and manner restrictions on vending.
Petitioner argues that GBL § 32 is an unrestricted provision, and therefore disabled
veterans can freely vend anywhere in the city, such as the Brooklyn Bridge, and are not subject
to the geographical restrictions in GBL § 35-a. Respondent argues that they have no duty to
create and issue such licenses. Respondent’s position cannot be said to be arbitrary and
capricious. A veteran operating under GBL § 32 would be subject to the city’s right in § 32(8) to
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set forth the terms and conditions of such a license, which may include certain geographical
restrictions. Veterans using a vending license under GBL § 35 would also be subject to the
provisions of § 35-a, which clearly by its terms modifies the rights granted in GBL § 35. See,
e.g., Matter of Rossi v. New York City Dept. of Parks & Recreation, 149 A.D.3d 481, 482 [1st
Dept. 2017] (holding that “[v]endors, including food vendors, seeking to avail themselves of the
vending terms available to disabled veterans must comply with the additional licensing
requirements applicable to disabled veterans, which in New York City are set forth in General
Business Law § 35-a”). Respondent has not acted arbitrarily or capriciously in interpreting the
various statutes passed by the Legislature, and therefore the relief sought cannot be granted.
Accordingly, it is hereby
ADJUDGED that the petition is denied.
8/11/2025
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□ □
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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