The state's highest court said Thursday it will hear the city's appeal of the ruling that nixed the soda ban. But it's highly unlikely that Mayor Michael Bloomberg will still be in office when the decision comes down.

The state court of appeals granted the city approval to appeal the lawsuit filed by the beverage companies and other groups that overturned the department of health's proposal to ban establishments that get letter grades from selling sugary drinks served greater than 16 ounces.

Although no date has been set for oral arguments in the case, the city's law department said it probably won't take place before the end of Bloomberg's tenure.

"It's not going to happen before December 31," a spokesperson said. "It's going to be a couple of months."

The ban was originally supposed to go in effect in March, six months after the health department approved it, but a state supreme court justice stopped the proposal, when he ruled in favor of the plaintiffs.

Justice Milton Tingling called the ban it "arbitrary and capricious." The State Supreme Court Appellate division upheld the decision in July.

The American Beverage Association, who along with the NAACP and other groups representing restaurants filed the suit, said both courts proved that Bloomberg's law eliminates choice.

"We are confident in these decisions, and we look forward to a final resolution of this issue," the association said in a statement.

The city cannot take the case to the U.S. Supreme Court because it isn't part of a national legal issue, according to a spokeswoman from the city's law department.

A source with knowledge about the case said the future of the suit could depend on the outcome of the mayoral election. Democratic candidate Bill de Blasio has been outspoken about his support of the ban, which Bloomberg said would help decrease obesity rates, while GOP contender Joe Lhota publicly opposed it.

"If de Blasio were to win, this would keep going. If Lhota wins, he probably would not continue this," the source speculated.

De Blasio's campaign didn't return messages for comment while Lhota's spokeswoman confirmed that the Republican candidate wouldn't continue the appeal.

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