Restaurant sheds on the Upper West Side of Manhattan August...

Restaurant sheds on the Upper West Side of Manhattan August 18, 2022. Credit: Craig Ruttle

A state appeals court on Tuesday unanimously dismissed a challenge to New York City’s pandemic-era outdoor dining program, ending a lawsuit that Mayor Eric Adams had said was the reason the government hasn’t yet established permanent standards for the sheds and sidewalk cafes.

The two-page order — by the Appellate Division, First Judicial Department of the State Supreme Court — overturned a trial court’s ruling March 25 that the program, in which nearly 10,000 eateries participate, needed more study. The justices dismissed the case on technical grounds, saying the matter wasn't ready to be litigated.

Now, citing the ruling, the city plans to proceed with establishing rules to govern the program, called Open Restaurants, which began at the peak of the coronavirus pandemic, when nearly all indoor gathering was banned to halt the spread of a virus with no effective treatment or vaccine.

In an email Wednesday, Adams spokesman Jonah Allon called the ruling “great news.”
”The Open Restaurants program saved 100,000 jobs during the pandemic, and it’s time for a permanent outdoor dining program that all New Yorkers can be proud of — that’s what our administration is focused on,” the email said.

Allon added: “With this ruling, we can and will advance the process of crafting a permanent outdoor dining program that  prioritizes our restaurants, our workers, and quality of life in our communities.”

Last month, Adams said he supports standardizing the sheds, perhaps allowing just four different styles, requiring union labor and mandating that the structures be rat-proof.

The lawsuit was filed in 2021 by a group of New Yorkers who say that the program has led to noise, gridlock, vermin, more garbage, and has ruined neighborhood character.

Supporters of the program, begun in June 2020 during the mayoralty of Bill de Blasio and continued under Adams, say it has boosted the economy, breathed new life into neighborhoods, helped employment, and made streets a place for people instead of parked cars.

At issue in the suit is a law called the State Environmental Quality Review Act — and whether the city’s Department of Transportation violated it by issuing a “negative declaration” that the program posed no significant impact to the environment.

In March, the trial court’s Judge Frank Nervo said the city did not take “a hard look at environmental impacts of the program” and ordered more diligence.

But the appeals court Tuesday ruled that the matter shouldn’t yet be before the court — in legal lingo, that it wasn’t yet “ripe” to be litigated because facts essential to the dispute are still subject to change. 

“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 justices wrote.

An attorney for the challengers, Michael Sussman of upstate Goshen, said in an email that the ruling “merely puts off the inevitable.” He said he plans to appeal to the state’s top court.

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