The opinion
Carro, J. (dissenting).
The rules and regulations whereby respondents retain the right to restore the pavements were arbitrarily used by the commissioner to deny the petitioners a code “B” permit. Respondents have not demonstrated any valid distinction which would.allow contractors, utilities and other groups to restore pavement openings, while at the same time denying such right to licensed plumbers.
While the power to grant a permit vests in the discretion of the licensing authority, such discretion is not without limitations. It must not be arbitrary and capricious. (Matter of Small v Moss, 277 NY 501 .) In this case, the refusal of the respondents to issue a code “B” permit was an improper exercise of discretion. No statute dealing with pavement opening or restoration restricts the issuance of a permit to any type or class or contains any restrictions on the issuance of code “B” permits to licensed plumbers. Petitioners’ application for a code “B” permit was in full compliance with all listed qualifications and requirements.
The petitioners contend that during the course of their business they are required to obtain approximately 1,500 street opening permits each year and that as a result of the failure to grant them a code “B” permit, they will incur additional costs in the area of $450,000 in restoration fees charged to them under a code “A” permit schedule. These *205 costs must be passed on to the residents of the city. The city or its subcontractors often take months to restore pavements, leaving them in an open, unsafe condition, whereas appellants contend they could perform the work in a week’s time. They aver that none of the individuals granted code “B” permits do their own repairing, as it is usually done by subcontractors. Petitioners would comply with the same strict requirements and specifications, file the same required bond and papers and be subject to the same supervision as other contractors who are permitted to do the work.
Here, respondents, to justify denial of a code “B” permit to petitioners, created a distinction between plumbing contractors and others who obtain “B” permits. The refusal to issue a “B” permit to the petitioners as opposed to utilities or other contractors working for the city is without a valid basis in law or fact. No evidence was shown that petitioners, who are in business over 50 years, have ever failed to meet their obligations or forfeited any bond or are any less fit than others to whom permits are routinely issued. If an applicant for a permit or license can show that he is a proper person to engage in a licensed business under the provisions of the licensing statute, the licensing officer may not arbitrarily impose limitations not contained in that statute. (Matter of Picone v Commissioner of Licenses of City of N. Y., 241 NY 157 ; Matter of Brooklyn Parking Corp. v Cannella, 193 Misc 811 .)
While the city is entrusted with responsibility for the keeping and repair of streets and may promulgate rules and regulations, those regulations are subject to constitutional scrutiny. The placing of a condition upon the issuance of a code “B” permit, excluding plumbers, while such permit is routinely issued to various other groups, is arbitrary and without a rational basis.
Accordingly, the granting of the city’s cross motion to dismiss should be reversed, and respondent should be directed to issue petitioner a code “B” opening permit.
Sullivan and Ross, JJ., concur with Lupiano, J.; Kupferman, J. P., concurs in an opinion; Carro, J., dissents in a separate opinion.
*206 Judgment, Supreme Court, New York County, entered on September 24, 1981, affirmed. Respondents shall recover of appellants $75 costs and disbursements of this appeal.