CITY OF NEW YORK v. NADLER (2003)

Order and judgment (one paper), Supreme Court, New York County (Martin Shulman, J.), entered on or about October 25, 2001, which granted David Hayim's motion for summary judgment, and directed the issuance of an order directing the return of a food vending cart, and denied the City's cross motion for summary judgment, unanimously reversed, on the law, without costs, Mr. Hayim's motion denied, and the City's cross motion granted, and the matter remanded for further proceedings including the entry of judgment in favor of appellant City of New York.

Having established at an administrative hearing that none of the individuals found selling food from the subject vending cart had a proper license (Administrative Code of City of N.Y. § 17-307), the City had the authority, under the enforcement provisions of the food vending forfeiture statute (Administrative Code of the City of N.Y. § 17-321(a), (c)(iii), and § 17-322(a)), to order forfeiture of the cart.   The cited Administrative Code enforcement provisions contain “mandatory and unqualified” language (Property Clerk v. Ferris, 77 N.Y.2d 428, 431, 568 N.Y.S.2d 577, 570 N.E.2d 225), leaving the court with no discretionary authority to direct the return of the cart.   As the Second Department stated in Henry v. Alquist, “[i]f the legislature had intended the penalty of forfeiture to be subject to the court's discretion, it could clearly have indicated [this] intention” in the language of the statute (127 A.D.2d 60, 64, 513 N.Y.S.2d 730).   We are thus compelled to reverse the order appealed, and to grant the City's cross motion for forfeiture.