| EdCia Corp. v McCormack |
| 2007 NY Slip Op 08179 [44 AD3d 991] |
| October 30, 2007 |
| Appellate Division, Second Department |
| EdCia Corporation, Appellant, v Thomas McCormack etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, NadiaRivera, and Susan Choi-Hausman of counsel), for respondents.
In a hybrid action for a judgment declaring that the plaintiff is exempt from the licensingprovisions of Local Law No. 42 (1996) of City of New York, including the requirements set forthin the Administrative Code of the City of New York § 16-505 (a), and for injunctive reliefand, in effect, a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel thedefendants to grant the plaintiff's application for an exemption pursuant to the AdministrativeCode of the City of New York § 16-505 (a), the plaintiff appeals from an order of theSupreme Court, Richmond County (Mega, J.), dated August 1, 2006, which denied its motion fora preliminary injunction enjoining the defendants from interfering with the operation of itsbusiness of removing waste materials and other construction debris from governmental publicconstruction, demolition, alteration, and excavation projects and other noncommercialestablishments.
Ordered that the order is affirmed, with costs.
In 1996, the City of New York enacted Local Law No. 42 (Administrative Code of City ofNew York title 16-A) to fully regulate the waste carting business to deter infiltration of thebusiness by organized crime (see generally Sanitation & Recycling Indus., Inc. v City of NewYork, 107 F3d 985, 990-992 [1997]). Under Local Law No. 42, all businesses removingtrade waste from[*2]"commercial establishments," includingthose businesses which had been previously licensed, were required to obtain a license from theNew York City Trade Waste Commission, now the defendant City of New York BusinessIntegrity Commission (hereinafter the BIC). The chairman of the BIC is the defendant ThomasMcCormack (hereinafter collectively the defendants). Trade waste is defined, in pertinent part, asmaterials or substances that are discarded or rejected by a "commercial establishment" which isrequired to provide for the removal of its waste pursuant to Administrative Code § 16-116(see Administrative Code § 16-501 [f]). Administrative Code § 16-116requires that every owner or person in control of a "commercial establishment" shall provide forthe removal of waste by a business licensed by the BIC under Administrative Code §16-505.
In February 2005 the plaintiff EdCia Corporation applied to the defendants for an exemptionfrom the licensing provisions of Local Law No. 42. In its application, the plaintiff stated that itwas in the business of removing "demolition and construction debris" from "[c]ommercialconstruction and demolition sites." In response to a requirement that an applicant for anexemption disclose the identity of its principals, the application submitted by the plaintiff onlyprovided the required information for its president and secretary. An applicant is required toprovide the names and contact information of its principals in order to allow the defendants tofully investigate an application to ensure that a license-exempted company does not have aprincipal who is currently or was formerly a principal in a company affiliated with organizedcrime.
On October 24, 2005 the defendants issued temporary permission to the plaintiff to operateits business, pending a determination on the application. On October 31, 2005, however, thedefendants informed the plaintiff that during the course of the investigation, they discovered thatthe plaintiff failed to disclose one of its principals. The defendants provided the plaintiff with aform upon which it could amend the application by disclosing the principal, but the plaintiff didnot comply. On April 3, 2006 the defendants notified the plaintiff that they were revoking theplaintiff's temporary permission to operate. The notice stated: "[D]uring the course of theCommission's review and investigation of [the plaintiff's] application, we have determined that'there is reasonable cause to believe that [the plaintiff] or [one] of its principals may lack goodcharacter, honesty, and integrity' and 'that it would be in the best interests of the City to terminatethis temporary permission to operate pending completion of the background investigation.' "
Thereafter, the plaintiff commenced this hybrid action and proceeding. The plaintiff allegedthat its business was limited to removing construction and demolition debris from public projectsand "other non-commercial establishments." Since its customers were not "commercialestablishments" responsible for removing their waste by hiring a BIC-licensed hauler (seeAdministrative Code § 16-116 [a]), the plaintiff sought a judgment declaring that itwas exempt from the licensing provisions of Local Law No. 42, including the requirements ofAdministrative Code § 16-505 (a), and that it was not required to file an exemptionapplication with the BIC. In the alternative, the plaintiff sought to compel the defendants to grantits application for an exemption pursuant to Administrative Code § 16-505 (a).
When the plaintiff commenced this hybrid action and proceeding, it moved for a preliminaryinjunction enjoining the defendants from interfering with the operation of its business while theaction was pending. The Supreme Court properly denied the plaintiff's motion.
To be entitled to a preliminary injunction, the movant must demonstrate by clear andconvincing evidence "(1) a likelihood of ultimate success on the merits, (2) irreparable injuryabsent [*3]the granting of the preliminary injunction, and (3) thata balancing of equities favors the movant's position" (Apa Sec., Inc. v Apa, 37 AD3d502, 503 [2007] [internal quotation marks omitted]; see W.T. Grant Co. v Srogi, 52NY2d 496, 517 [1981]; Ruiz v Meloney, 26 AD3d 485 [2006]).
The Supreme Court correctly determined that the plaintiff failed to meet its burden ofshowing a likelihood of success on the merits of its cause of action for a declaratory judgment.The plaintiff's conclusory allegations regarding the "noncommercial" nature of its haulingbusiness were insufficient to satisfy its burden. Construction and demolition debris from publicprojects and residential sites generated by commercial establishments performing theconstruction work constitutes the trade waste of "commercial establishments" within the meaningof Local Law No. 42 (see DeCostole Carting, Inc. v Maldonado, 35 AD3d 648, 649[2006]; Rapid Demolition Container Servs., Inc. v Maldonado, 21 AD3d 812 [2005]).Consequently, the activity of removing such waste is subject to the licensing provisions of LocalLaw No. 42 and more specifically the requirements set forth in Administrative Code §16-505 (a) (see DeCostole Carting, Inc. v Maldonado, 35 AD3d at 649; RapidDemolition Container Servs., Inc. v Maldonado, 21 AD3d at 812). Thus, contrary to theplaintiff's contentions, it is required under these circumstances to either apply for a license orapply for an exemption pursuant to Administrative Code § 16-505 (a) (see DeCostoleCarting, Inc. v Maldonado, 35 AD3d at 649; Rapid Demolition Container Servs., Inc. vMaldonado, 21 AD3d at 812).
Moreover, the plaintiff failed to show a likelihood of succeeding on the merits of its cause ofaction to compel the defendants to grant its application for an exemption pursuant toAdministrative Code § 16-505 (a). The plaintiff contends that the granting of an exemptionwas "automatically required" upon the filing of its application with the BIC. An application foran exemption, however, is not a ministerial act and there is no clear legal right to such relief(see DeCostole Carting, Inc. v Maldonado, 35 AD3d at 649, citing Matter of Attonitov Maldonado, 3 AD3d 415 [2004]). Contrary to the plaintiff's contention, the defendants areempowered to review, investigate, and, if warranted, deny the application (see Matter ofAttonito v Maldonado, 3 AD3d at 418).
In addition, the Supreme Court properly determined that the plaintiff failed to show that itwould suffer irreparable harm absent the grant of the preliminary injunction. Economic loss,which is compensable by money damages, does not constitute irreparable harm (see 1659Ralph Ave. Laundromat Corp. v Ben David Enters., 307 AD2d 288 [2003]; Wall St.Garage Parking Corp. v New York Stock Exch., Inc., 10 AD3d 223, 228-229 [2004]). Theplaintiff's bare, conclusory allegations were insufficient to satisfy its burden of demonstratingirreparable injury (see Kurzban & Son v Board of Educ. of City of N.Y., 129 AD2d 756,757 [1987]).
Finally, the Supreme Court properly determined that a balancing of the equities weighs infavor of denying the plaintiff's motion for a preliminary injunction. Local Law No. 42 and itsaccompanying rules (17 RCNY 2-01 et seq.) were enacted to empower the BIC toregulate and oversee the hauling industry. The purpose of Local Law No. 42 would be hindered ifthe plaintiff was permitted to haul trade waste without either a license or an exemption while thishybrid action and proceeding is pending.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Spolzino, Florio andAngiolillo, JJ., concur.