Opinion
7372 Index 100734/15
10-18-2018
In re RESTAURANT ACTION ALLIANCE NYC, et al., Petitioners–Appellants, v. The CITY OF NEW YORK, et al., Respondents–Respondents.
Gibson Dunn & Crutcher LLP, New York (Randy M. Mastro of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.
Gibson Dunn & Crutcher LLP, New York (Randy M. Mastro of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.
Sweeny, J.P., Gische, Mazzarelli, Webber, Kahn, JJ.
Judgment, Supreme Court, New York County (Margaret A. Chan, J.), entered June 11, 2018, denying the petition to annul a determination of respondent Department of Sanitation, dated May 12, 2017, pursuant to Local Law 142, that the City's expanded polystyrene single service articles cannot be recycled in a manner that is environmentally effective and economically feasible, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The determination of the Commissioner of the Department of Sanitation, made upon remand, was neither arbitrary and capricious nor without a rational basis (see Matter of Farrell v. New York City Police Dept., 37 N.Y.2d 843, 378 N.Y.S.2d 35, 340 N.E.2d 469 [1975] ; Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v. State of N.Y. Div. of Hous. & Community Renewal, 46 A.D3d 425, 429, 849 N.Y.S.2d 43 [1st Dept. 2007], affd 11 N.Y.3d 859, 873 N.Y.S.2d 247, 901 N.E.2d 740 [2008] ).
The Commissioner properly considered the evidence submitted upon remand, as well as reconsidering the evidence in the original record, and, based on that record, rationally concluded that the City's expanded polystyrene single service articles cannot be recycled in a manner that is environmentally effective and economically feasible, even taking into account petitioners' proposal to pay for the infrastructure costs and subsidize the market for the purchase of the recycled materials for five years. The Commissioner concluded that even if, during the period of the subsidy, petitioners' proposed plan succeeded in collecting and converting the material into marketable recycled products, the plan most likely would result in significant landfilling of expanded polystyrene after the five-year subsidy period. This conclusion is supported by the record, including the historical evidence of efforts to undertake such recycling in other jurisdictions and the evidence indicating that no viable, non-subsidized market for the material would exist or emerge absent the subsidy.