Pulling Back the Legal Curtain Ep 4: New York’s New Outdoor Dining Structures

What is the issue all about?

Paul Edelstein:

I've got my young new partner, Arthur Blyakher here with me. And as we usually discuss things at lunch, I brought to Arthur's attention the fact that I read an article on my train ride today that said, "New Yorkers left feeling queasy after court rules in favor of completely disgusting outdoor structures."

And actually you read the first line of the New York Post article, and I love the Post, but I don't know sometimes. It says, "A New York court ruled on Tuesday in favor of the outdoor dining structures lining Big Apple streets, dismissing a lawsuit and paving the way for the pandemic era fixtures to become a permanent part of the city life."

I read that and I'm like, "What? Holy crap." I got to read that appellate division decision.

Did the Post get the issue right?

Arthur Blyakher:

Sort of, it's certainly misleading. It makes it seem like there's a final determination about these structures, these outdoor dining, which is not the case.

Paul Edelstein:

That's right. That did not happen. We have two things that are interesting, I think that are interesting for you and I to chat about and record. One is, the substantive issues. And we talk as lawyers all the time, there are substantive things that go on in cases and procedural things that go on in cases. This is a perfect example. This case, the substantive issue of whether these temporary dining structures should be allowed and things like that, is super interesting, particularly to you and I because we like to eat and drink on the streets, we like that.

We love this thing, but we also both live in the city. I know you're not right in the city right now, but we both have talked about this issue for the last two years and it's a very interesting issue. That's the substantive issue, so let's talk about that for a minute. But there's also a procedural issue and that is that lawsuits have a procedural element to them. And so when you read this New York Post article, when I read it, I got the feeling like, "Wow, the appellate division, so the higher court made a ruling and that's it. These dining structures, it's over? They're permanent?" And when you read the decision, it doesn't say that, does it?

What did the decision say?

Arthur Blyakher:

It said that the petitioner in this case who challenged the making permanent these outdoor dining structures or passing the legislation permitting outdoor dining, challenged this based on concerns about environmental impact. And what this decision said is, there hasn't been an injury yet to the petitioner that is actionable. It says, "You still have to go through certain processes before you can challenge this law." First of all, the law has to be formally passed, which has not yet been done.

Paul Edelstein:

Interesting. See, this is why you need young smart attorneys. Because I was like, "What the hell? Arthur, go do the research. I want to know what the hell is going on." And you actually figured it out and you told me. But I wanted to look at it from a little bit higher up. And then when I looked at it, I said, "Wow, okay, what happened?"

If a client came to me and said, "Hey," or, "My wife," which is what we talk all the time in the morning, said, "What is going on here? I don't get it." Here's what I would've told him. In the height of the pandemic, Mayor DeBlasio passed an emergency law called the Open Restaurant Program in Outdoor Seating.

Now, I think it was a great idea. I think a lot of people agree with that. You saved a lot of jobs and made life in the city a little bit more tolerable. And that was fantastic. But after a certain amount of time, that emergency law started to result in some blow backs, so some neighborhoods are complaining about noise, vermin, homeless people, these structures are deteriorating and a lot of crazy stuff going on with it. The temporary law now is set for some analysis to become permanent. And when it was a temporary law, it was able to bypass certain requirements that would normally happen. Is that right?

Arthur Blyakher:

Correct.

If it wasn't an emergency with the pandemic and somebody said, "We want to do this," what would they normally have to do?

Arthur Blyakher:

There's a period, any proposed legislation by an administrative agency such as what we have here, there has to be a process of public comment, open discussion, round table, proposed legislation, amendments brought back to the public for additional comment. There's several agencies involved. The DOT is one that's integral in this process, SEQRA.

Paul Edelstein:

That I actually know as a lawyer, but I don't think any regular person has any idea what that is, the State Environmental Quality Review Act. And so let me explain what that really is. That's a really formal process that an environmental agency, a state environmental agency, has to go through when there's any kind of major change or impact on an area. Let me ask you this, my young partner here, normally, would New York state have to go through that process to pass a law like this outdoor dining law?

Arthur Blyakher:

Absolutely.

Paul Edelstein:

Now, they didn't have to do it in this case because it was the pandemic and it was an emergency. But as far as we know right now, what's happening right now, is that they are attempting to make this law permanent. And so there's a legislative proposal to do that. And in connection with that legislative proposal is this SEQRA review, this State Environmental Review. And what many people don't understand and what was not on this Post article this morning, is that the proposed permanent law actually has some pretty interesting limitations in it. It's trying to address some of these concerns, right?

Arthur Blyakher:

Right, it's actually in the second round. There were certain initial concerns that were raised and the proposed legislation was amended and now it's back in front of the different council members and borough presidents for additional review.

Conclusion:

Paul Edelstein:

Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glen. Because we get so many questions over so many years about what goes on behind the legal curtain, in the legal world, we try to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain, doing the only thing that we know how to do, which is proceed. Take care.

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