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Open Restaurants Program Survives Legal Hurdle … For Now

Outdoor dining is saved…for now.

This lawsuit is simply unripe.

A panel of state judges has stalled a community lawsuit against the city's open restaurant program — but not because the suit lacks merit, but simply because it's too early to claim damages from an initiative that is in the middle of a legislative process to become a permanent fixture of New York City life.

The lawsuit hinged partly on whether the city could declare that the program had no environmental impact. Earlier this year, a lower court handed plaintiffs a victory by ruling that the city could not, in fact, issue a "negative declaration" of impact and ordering up a full environmental review. But the Appellate Division overruled that on Tuesday.

"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 unsigned two-page ruling by the 21-member panel.

"Accordingly, the petition seeking to annul the declaration should have been dismissed as not ripe for judicial review."

Plaintiffs vowed that their fight against the program — which they see as creating noise and exacerbating the trash problem (though that's certainly not clear), as well as being a theft of what they consider parking spaces — is not over.

"The ruling was based on a technicality," tweeted a person who claimed to be one of the plaintiffs. "That it wasn’t the right time for us to sue. The Judges specifically said they were not ruling on the merits of our case. We have a strong case and we’ll be back."

But supporters of the exceptionally popular program also said they would fight on — to ensure that a Council bill creating a permanent outdoor dining program will succeed.

"[We are] pleased to see the dismissal of a lawsuit challenging the environmental impacts of New York City's Open Restaurants program," tweeted Alfresco NYC, a coalition formed by the Design Trust for Public Space, Regional Plan Association and Tri-State Transportation Campaign. "Open Restaurants have taken cars off our streets and saved tens of thousands of jobs in an industry devastated by the pandemic. By enlivening spaces and streets in a new and exciting way, we've seen how repurposing streets actually improves our environmental and public health. We look forward to working with the Adams Administration and the City Council to find thoughtful and sustainable ways to transition Open Restaurants to a permanent city program that benefits all communities."

Andrew Rigie of the New York City Hospitality Alliance ignored the threat of opponents to continue their fight.

“We are pleased that the Appellate Division unanimously dismissed the lawsuit challenging the outdoor dining program that so many New Yorkers love," said Rigie, executive director of a group with thousands of member eateries. "This decision paves the way for legislation implementing a permanent standardized outdoor dining program that will support local businesses, employees, and countless others who love dining alfresco."

The filing of the ruling was first reported by The Village Sun.

Outdoor dining still faces an uphill fight. Last week, Council Speaker Adrienne Adams suggested that she doesn't personally like putting restaurant tables in curbside spaces, though she later clarified that she was only offering her personal opinion. The current bill moving through the Council would only allow outdoor dining in warm-weather months, which restaurant supporters claim is a non-starter.

There is also another lawsuit alleging that the city's continued extension of the temporary dining program is illegal.

This is a breaking story that we hope to update later.

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