State court keeps possibility of permanent outdoor dining program alive for NYC

A lawsuit that challenged making the outdoor dining program launched by New York City at the start of the pandemic permanent has been temporarily halted by a state court.

The Supreme Court of the State of New York’s Appellate Division unanimously agreed that the lawsuit was premature because an effort to make the program permanent is still in the middle of a legislative process.

“Given the remaining legislative and administrative steps that must be taken by the city before the permanent outdoor dining program is finalized and implemented in place of the presently operating temporary program, the city’s issuance of the SEQRA negative declaration was not an act that itself inflicts actual, concrete injury,” the court ruling states.

The petition “should have been dismissed as not ripe for judicial review,” it continued.

But the high court did not rule on the merits of the objection, which means the program could still face legal challenges.

Leslie Clark, a member of CUEUP, an alliance of community groups that helped organize the lawsuit, said that the petitioners will continue to fight against the program.

“That means that door is wide open and we’re going to come back through that door into court whenever the city starts to create this permanent open restaurants program,” Clark said.

In February, the City Council had introduced a bill intending to create a permanent outdoor dining program by request of Mayor Eric Adams. This would provide restaurants with the option of offering outdoor dining on the sidewalk or roadway immediately in front of the restaurant for a fee.

Supporters of outdoor dining said this recent ruling by the state appeals court “paves the way” for the bill.

“This decision paves the way for legislation implementing a permanent standardized outdoor dining program that will support local businesses, employees, and countless others who love dining al fresco,” said Andrew Rigie, the executive director of NYC Hospitality Alliance, in a statement.

“As we look into the future, we look forward to continuing to work with Mayor Adams’ administration and the City Council on implementing this meaningful and necessary improvement,” he continued.

Last year, around 20 petitioners organized by CUEUP filed a lawsuit contending that the city needed to do an environmental impact study before implementing a permanent outdoor dining program.

The city’s Department of Transportation, which oversees the outdoor dining program, issued a negative declaration concluding that the program would have no significant effect on the environment.

But an environmental review would assess the impact outside eateries would have on residents and the community, such as noise, congestion, and pedestrian access to public space, according to Clark.

“We’re not against outdoor dining. We would love to have a conversation about what outdoor dining would be like in New York City,” Clark said. “It’s the city that has cut all of us out of that conversation by not going through the environment impact study procedure,” which she said allows for a more transparent public engagement process.

City Hall did not immediately respond to a request for comment on the recent state appellate court ruling.

A second lawsuit filed in July by 35 plaintiffs who live in New York City that is also attempting to end the city’s outdoor dining program is still pending in court. This lawsuit specifically challenges the city’s continued use of emergency authority to prolong the temporary outdoor dining program.