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Court nixes prior ruling against Open Restaurants, but dining-shed foes vow, ‘It’s not over!’

BY LINCOLN ANDERSON | Updated Oct. 5, 12 p.m.: Just as in comedy, when it comes to community lawsuits, timing is everything.

An Appellate court on Tuesday, agreeing with the city’s Law Department, declared that the time is “not ripe” for a ruling on a community lawsuit seeking to compel the city to conduct a full-scale environmental review on the contentious Open Restaurants program.

However, an advocacy group supporting the suit charged that the court’s ruling “failed to address the environmental impacts of the controversial program,” and so merely “delays the reckoning” that is to come on the city’s effort to skirt doing a proper environmental review on the sweeping scheme.

Meanwhile, pro-development YIMBY groups and other advocates for Open Restaurants, like Streetsblog, crowed that the lawsuit was “tossed” out of court. However, Leslie Clark, a member of CUEUP, an ad hoc citywide residents group that facilitated the lawsuit — on which she is a plaintiff — told The Village Sun that’s far from the truth.

“Streetsblog can say they threw it out,” Clark scoffed. “They did not throw it out — Streetsblog is wrong.

“People seem to have got this wrong — they did not rule on the merits of the case,” Clark stressed. “[The Appellate court] just said, ‘You brought it too early.’ They want to see the permanant Open Restaurants program first. All it means is that it’s ‘not ripe’ — in their opinion,” she said of the lawsuit. “We disagree.”

Told of Clark’s comment, Streetsblog editor Gersh Kuntzman responded, “The ruling speaks for itself and I believe our story is very straightforward.”

As for the trash on the streets that critics say the dining sheds has increased, Clark quipped, “It’s ripe all right.”

Plus, Clark stressed of the court’s “ripeness” rejection, “That does not keep us from coming back” and continuing to litigate the lawsuit. “And we plan to,” she said. “When the city acts — we’ll be back.”

By “acts,” Clark was referring to the city’s creating a permanent Open Restaurants program to replace the current temporary one. Signaling a pending vote on permanent legislation could be afoot, the City Council recently posted a 24-page revised proposed bill — known in Council lingo as an “Intro.” — on its Web site, though with extensive modifications and additions compared to a previous version that was posted back in February. (Brackets indicate language that has been taken out of the earlier version while underlines denote additions.) Marjorie Velázquez, chairperson of the Committee on Consumer and Worker Protection, is the point person on the bill.

As for Tuesday’s court decision, the Appellate Division’s First Department said that State Supreme Court Justice Frank Nervo erred in his March 23 ruling by decreeing that a full environmental review of Open Restaurants under the State Environmental Quality Review Act must be done. The city’s Department of Transportation had previously cursorily claimed that the program — which has launched 12,000 dining sheds onto the city’s streets — has no negative impacts whatsoever.

“For a taxpayer-supported agency to declare, in effect, the Open Restaurants Program and Outdoor Seating have no negative impact on our streets and communities because that Agency has unilaterally made that determination,” Nervo wrote in a scathing decision this spring, “serves only as a thinly veiled attempt to avoid statutory scrutiny of the program by a baseless claim of its own omnipotence.”

After the Appellate court’s ruling, Mayor Adams tweeted that it was “great news” for the city.

Seeking to speed up the sheds’ removal, attorney Michael Sussman, who filed the original anti-sheds community lawsuit in March, filed another community lawsuit against the Open Restaurants program in July. Clark explained that Tuesday’s Appellate court’s ruling on the first suit does not moot the second case — which is still alive. The first lawsuit — the one the Appellate panel said was not ripe — argues that the city must do a full and proper environmental review for Open Restaurants under New York State law.

“The second case is that the mayor is keeping the program based on emergency orders — but we don’t have an emergency,” Clark explained. “It’s sitting before a judge on the State Supreme Court.”

In response to the city’s appeal of Nervo’s ruling on the first lawsuit, the Appellate court indicated that a decision on such a legal challenge should wait until the city is actually ready to replace the current temporary Open Restaurants program with a permament one.

“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 Appellate justices said in their decision.

(The program’s critics, though, would argue that the sreet-seating scheme has been causing “actual injury” since it continues to impact their quality of life).

“Accordingly, the petition seeking to annul the [D.O.T. negative] declaration should have been dismissed as not ripe for judicial review,” the court said this week. “In view of the foregoing, we need not address the merits of petitioners’ challenge to the City’s action.”

Anti-shed advocates said the current setback was just a technicality on timing and that the court’s action still “leaves the door wide open” for future legal action to end Open Restaurants.

“Yesterday’s two-page Appellate ruling failed to address the environmental impacts of the city’s controversial Open Restaurants program,” said a release posted by CUEUP, some of whose members are plaintiffs in both lawsuits. “Instead, the [Appellate] decision concerned itself exclusively with the timing of the petitioners’ initial filing — and said nothing about the merits of the case. The court’s decision merely delays the reckoning on the city’s end-run around New York State’s Environmental Quality Review law.

In March, C.B. 2 Chairperson Jeannine Kiely showed Councilmember Marjorie Velázquez a video posted on social media of rats having the run of Mexican restaurant Tacombi’s enclosed bubble shed at Cornelia and Bleecker Streets. At rear left is Councilmember Christopher Marte and at rear right is former C.B. 2 Chairperson David Gruber. (Photo by The Village Sun)

“The negative environmental impacts of the city’s pandemic-era program are evident throughout the five boroughs, impacting thousands of New Yorkers,” CUEUP said. “The court is not disputing that fact.

“The Appellate Division simply stated that it ‘need not address the merits of petitioners’ challenge to the city’s action’ — leaving the door wide open for future legal action challenging the permanent Open Restaurants program that is now coming up for a vote by 51 city councilmembers at the request of the mayor.”

“Opening this process to the public and soliciting its response would have doomed the proposal and embarrassed those who supported it,” noted petitioners attorney Sussman.

“New Yorkers deserve to have a city government and elected officials who abide by our environmental laws, which require public review and comment,” CUEUP’s press release said. “We are considering all legal avenues available to us and look forward to re-filing our action when the city has completed the permanent Open Restaurant legislation. The fight to protect our public space from privatization, to safeguard our environmental laws and to rein in unbridled government overreach is far from over.”

Meanwhile, City Council Speaker Adrienne Adams, in a clear break with the mayor, last week said — as the Council is reportedly nearing a vote on rules for permanent outdoor dining — that she wants the dining sheds out of the roadway and that eateries’ seating can be on the sidewalk instead.

As Streetsblog reported, “Council Speaker Adrienne Adams appeared to throw the entire Open Restaurant program under the bus on Tuesday morning, suggesting that the revolutionary de Blasio-era repurposing of roadway space from storage of privately owned cars to outdoor dining was a mistake, despite how few parking spaces it actually took and how many jobs the city estimated it saved.”

“Outdoor dining, in my perspective, should be sidewalk,” Speaker Adams told a Citizens Union breakfast, per Streetsblog. “The street extensions were designed to be temporary.”

However, aftter the Council speaker’s statement, Councilmember Erik Bottcher, who represents District 3 (Greenwich Village/Chelsea/Hell’s Kitchen), dug in his heels against removing all the pandemic-inspired dining sheds.

“The use of road space for outdoor dining has been an overall positive development,” Bottcher told Streetsblog. “Banning all restaurants from using road space for dining would be a mistake.”

Meanwhile, Andrew Rigie, head of the NYC Hospitality Alliance, naturally hailed the Appellate court’s decision on what he called the “streeteries.”

However, in his March 23 decision, Justice Nervo wrote that the flood of Open Restaurants sheds on the streets “warrants nothing less than a comprehensive and earnest consideration and examination of the actual impacts of the already implemented program upon the daily functioning of the city’s sidewalks and streets, as well as the impact upon locally affected residents.

A fairly enclosed-looking dining shed on E. Houston Street near Mulberry Street. Under COVID regulations, the structures were supposed to have two sides open. (Photo by The Village Sun)

“The programs have, at a minimum,” Nervo said, “impacted traffic and noise levels, and may have significantly impacted sanitation. Petitioners cite the increase in noise complaints in locations where the program has been implemented as further evidence of the environmental impacts.”

Meanwhile, Governor Hochul recently agreed to stop issuing monthly COVID-emergency executive orders, which Sussman and shed opponents said had been “giving cover” to Mayor Adams to keep the Open Restaurants program going. In response, the plaintiffs agreed to remove Hochul’s name from their lawsuit. However, despite there no longer being any health-releated need for the roadway dining sheds, Mayor Adams continues to issue an emergency order every five days to keep the program going.


  1. Duda Duda October 21, 2022

    The outdoor dinning is great and should remain. Have some regulations on the size and all that, but people acting like these caused more trash is laugh-out-loud funny.

    “Turning Greenwich Village into a trailer park?” What does this even mean lol

    The restaurants are seating people on the street…
    …You think that is ok?”

    Yes…yes i do.

    “Most of the restaurants can’t even fill the seats they have.” A baseless comment with no merit.

    • LES3025 LES3025 October 21, 2022

      Duda, good to see you here my friend! Not sure whether your fan club from Bowery Boogie has also migrated over.

  2. Larry Storch Larry Storch October 5, 2022

    City Council members must run again in 2023 due to redistricting. Bottcher excels in three things: pandering, platitudes and bad dancing.

    Who could run and maybe even win, and who has gravitas?

    Andrew Berman … it’s time he steps up.

  3. Maggie Stone Maggie Stone October 5, 2022

    Former Council Speaker Corey Johnson’s Open Restaurants study can be downloaded from a pdf when pasting ALL OF the following into your browser: › 2021/08 PDF

  4. Robert Lederman Robert Lederman October 5, 2022

    Suing any City agency is always an uphill battle. Judges usually defer to whatever nonsense City lawyers present, even when the judges know it’s phony or outright perjury. City Councilmembers are pretty much all BID puppets who go along with whatever Business Improvement Districts want, even if it is the opposite of their own views. Restaurants, one of the main BID participants, like the sheds because it allows them to double their seating at no additional cost. Still, it is well worth suing. That’s the only way to fully expose the City’s position and, if exposed by the lawsuit enough, a judge may actually do what’s right.

  5. Maggie Stone Maggie Stone October 5, 2022

    These sheds may (and I mean may) work on AVENUES, NOT ON THE NARROW PRE-1811 STREET GRID OF BOTTCHER’S DISTRICT. Roadway dining has not worked for residents living on streets that have sidewalks that are not even 10 feet wide. All the pandemic road-dining rules meant nothing, as Bottcher should know, as he worked for former Council Speaker Corey Johnson. Corey’s office did a study that concluded 97 percent of restaurants did not follow Open Restaurants rules and were allowed to do so without fines for the most part. CB 2 also spent a great deal of time working on a “Temporary Open Restaurants Program Survey Analysis.” This can be found at: › 2021/08 PDF

    The bottom line is oversight and enforcement, which the City has been terrible at, and even more so under our new Nightclub Mayor.

  6. John Sullivan John Sullivan October 5, 2022

    Vote Erik out next year! Shame on him for not seeing what is happening all over his district in terms of noise, rats and trash from sheds. This is not enforceable — all along West 4th Street from 7th Avenue South to West 12th Street restaurant sheds have occupied loading zones. I have seen people with mobility issues walking into the street with oncoming cars to navigate their way home because the sidewalks are filled with customers and waitstaff. Open your eyes, Erik, not everyone is your age! One in every 5 New Yorkers is over 60. This program is for people with money to buy expensive meals and drinks while longtime residents are ignored. Erik has all the markings of a callous, smiling politician in the making.

  7. LES3025 LES3025 October 5, 2022

    Local NIMBYs would be well served to take a step back and look at the results of these lawsuits. There is a laundry list of suits that have been thrown out recently. 14th Street busway, 250 Water Street, multiple ESCR suits, borough-based jails and now Open Restaurants. The ideologues and grifters who are organizing these suits are clearly selling people false hope that the courts are going to help them. No need to keep giving away money.

    • JQ LLC JQ LLC October 5, 2022

      Sure, Benji, let’s continue to blow taxpayer dollars for high-end restaurants that can afford to build graffiti-covered, rat-infested shanty motels on the streets. And good thing you mentioned those other policy failures that have exacerbated the wretched environmental conditions and dead businesses on the streets.

    • The Sweeper The Sweeper October 5, 2022

      Mmmmh…NIMBY ideologues & grifters…Well…the density is more than 350 sheds per square mile in this Manhattan area. There are more sheds in a 6-block radius of where I live on Cornelia Street (150) than there are in the entire 13 square miles of the Permanent Open Restaurant bill sponsor’s district in the Bronx. Noisy restaurant din & rats & grimey filth off the hook along the sidewalks & lack of curb space at a level like I’ve never known since moving here in 1989.

      All these years I always thought I was a trumpet player with a day job. I never realized all along that I was actually a NIMBY ideologue & grifter for joining my neighbors to work hard protesting what’s being done to them post-pandemic.

      You’d think restaurant owners would reflect a little & respectfully give back the space they took. It was supposed to be temporary.

      Good thing the result of this lawsuit is a good one: It stopped puppeteered pols & lawmakers in their tracks from helping the Hospitality Alliance take over what started out during the tragedy as a healthy urban policy. The court is providing them time to get it right, and access to be stopped again by NYC’s activated NIMBY ideologues & grifters, if they screw it up again. If they don’t learn from their mistakes this time around and do the right thing (like we all did during a raging pandemic tragedy to supporting the temporary program) they’ll also be out of a job in the next primary.

      But, hey, don’t take it from me, after all you know who I am.

      My question for you & anyone so ready, willing & able to dismiss the concerns of real NIMBY ideologues & grifters:

      Who are you?

      • LES3025 LES3025 October 5, 2022

        This lawsuit didn’t stop anything because it was dismissed. The ideologues and grifters are the lawyers and leaders of orgs like CUE-UP who take money from people on the false promise that everything you don’t like is actually illegal and can be stopped in court. You didn’t say who you are, so I don’t know if you’re one of the leaders, a supporter who gave money, or just someone like me who likes to post anonymously.

        • The Sweeper The Sweeper October 5, 2022

          It was dismissed on ripeness, not merits, so it’s not going away just because you don’t like it. Look it up if you care to take the time. If the City doesn’t solve the problems the program has been creating, the lawsuit will be back disrupting and holding the City to account as best it can (with or without your help). The false promise is what the Hospitality Alliance & the Mayor has you believing, which is that the so-called “temporary” Open Restaurants program’s 12,000 outdoor dining sheds throughout NYC residential neighborhoods have had no negative impact, either during or after the pandemic, therefore the permanent one will be a wonderful, beautiful thing for everyone. That’s over 2 million square feet of perfectly engineered rat & vermin habitat, fed daily from droppings from above, right outside residential doorways and windows. Adds over 200,000 seats of patrons at night on sidewalks and sheds outside residential windows and doorways. Removes literally miles of curb space used by residential dwellers in the flow of life. Tens of thousands of residents are affected. I’m just one of them. The only reason the lawsuits come, and will keep coming, is if the problems being created unnecessarily don’t go away, don’t get solved, streets don’t get swept, on and on. You don’t want to see it, that’s ok. I’m 65 years old, and I’ve seen a lot, I know you could just put your head down and try to ignore the things you think and believe you can’t do anything about. You have lots of company, because most New Yorkers have no idea, since they live nowhere near an outdoor dining operation.

          But at the end of the day, one could ask: Why would otherwise reasonable people try to put themselves out, try to change the direction of a bad policy, try to move on from the pandemic tragedy? Because some NIMBY ideologies & grifters showed up to make a killing on our collective stupidity? I agree there’s an army of ideologues & grifters showing up to make a killing. It’s not on on affected residents though. It’s the hospitality industry and it’s on fire.

          No I don’t normally post anonymously, or post at all, until this past year or so. But you labeled me from your anonymous, blanket-judging perch, and my work, and my life experience and those of us that reached out to find each other to fight this thing.

          We’ll see what happens.

          • Ariana Ariana October 16, 2022

            I like what you have said here as someone who was involved in the fight to change the ESCR into a flood-protection plan that would not destroy all of the nature in East River Park. The pro-development lobby does not care one bit about New Yorkers and our quality of life. They only care about the bottom line — theirs — and all of our lives and futures are irrelevant to them. Thank you for standing up.

  8. Larry Storch Larry Storch October 5, 2022

    The one thing that Erik Bottcher cares about most is the homeless … making more of them.

  9. Fred O. Fred O. October 5, 2022

    Bottcher should take time off from his incessant selfies and pathetic, off-tune guitaring and spend more time on the streets of his district in the evening when these ugly land-grabs infest formerly quiet blocks.

    I’ve lived on MacDougal between Houston and Prince Streets for 20 years. It used to be a nice, quiet block. Now at night it is like Spring Break in Ft. Lauderdale 7 days a week.

    His constituents hate these eyesores. But Bottcher doesn’t care. Does restaurant $$$$ have anything to do with it?

    Shame on Bottcher. He will be primaried next year. VOTE BOTTCHER OUT!!

  10. Sandy F. Sandy F. October 5, 2022

    Erik seems very attuned to the needs of his most important constituency: real estate and hospitality industry donors.

    • savenycjobs savenycjobs October 5, 2022

      Sandy, you have his number right. Erik played the KEY role in stalling the amendments to the Jobs Survival Act which would have saved countless Village businesses and jobs. In fact, because of his stalling for 3 years in making the promised amendment, the Jobs Survival Act died in Committee with 28 sponsors. Eric never cared for the future of Village restaurants and still does not today. Simple question for Eric: “Long term, what good is any program if the business owners have no rights when their leases expire and must face even higher, sky-high rents for the added space that belongs to the community and not the landlords?” Open Restaurants is just another landlord and BID grab to make more windfall profits.

      • Sandy F. Sandy F. October 5, 2022

        That’s an interesting jump: landlords will increase their commercial rents because they can include the public space as *theirs.* I’ve heard others say similar things to what you’re saying but it never made sense until now.

        • Alan Flacks Alan Flacks October 7, 2022

          Doesn’t the N.Y.C. Dept. of Consumer Affairs (or whatever its called today) charge a fee for restaurant outdoor cafes? Likewise, shouldn’t there be a charge for these outdoor cafe “extensions” into the public streets? Strangely, we haven’t heard complaints from automobile owners who have lost public parking, whether metered or not, on the public roadways. Nor a peep from the local AAA.

  11. Starship Trooper Starship Trooper October 5, 2022

    Erik Bottcher thinks the dining sheds are a “positive development.”

    Is this person out of their mind?
    This is someone who has the power to vote on this issue?

    Positive development…of what??

    Turning Greenwich Village into a trailer park?

    Not having the ability to walk on the sidewalk in front of the building that you live in?

    The restaurants are seating people on the street…
    …You think that is ok?

    Does sitting people on the street line up with food safety?

    All the graffiti looks wonderful, Erik,doesn’t it?

    These sheds need to be removed.

    Most of the restaurants can’t even fill the seats they have.

    Why keep this mismanaged, unkept, poorly planned facade going?

    I would love to hear from Erik Bottcher to actually explain and defend the nonsensical statement that he made.

    Vote down this nonsense.

    • ME ME October 5, 2022

      Will there be A,B,C,D ratings of the sheds? Will they have the same sanitation requirements the restaurant has? Will rats and homeless sheltering in them be considered? Will the garbage under and around them be included in the rating? These sheds are absurd and another unplanned urban unplanning to destroy anything in our city that relates to cars and driving in our city. Does anyone remember how well the city traffic flowed before streets were blocked off for “pedestrian use” that turned into Elmos and masked (not Covid masks) characters, as well as mostly naked people harassing visitors to our “used to be greatest city in the world”? Every even street went east and odd streets west, Broadway flowed from north to south and it was brilliantly laid out…until now. Heaven help us and those with an unconscionable agenda. There is no common sense behind these knee-jerking policies. PS, Will the landlords now consider this additional space in their rents increases?

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