SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

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In the Matter of Application of
CARLOS VASQUEZ
Petitioner,
-againstVERIFIED PETITION
CITY OF NEW YORK; STEVEN LINDEN,
in his official capacity as Director of Licensing
at the New York City Department
of Health and Mental Hygiene,
Respondents.
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SUMMARY
Carlos Vasquez is a sixty eight year-old U.S. citizen and disabled military veteran,
originally from Puerto Rico, who has sold fruits and vegetables in upper Manhattan for the past
six years. On March 24, 2011 Mr. Vasquez attempted to renew his mobile food vending permit
that was set to expire on April 30, 2011 but he was informed that his application could not be
accepted because he needed to obtain a new New York State Sales Tax Number. In fact, Mr.
Vasquez had a valid New York Sales Tax Number and submitted proof as part of his renewal
application. The rejection of Mr. Vasquezs permit application was an error on the part of the
City.

After months of being unable to work and trying to find assistance from different

community groups and elected officials, Mr. Vasquez continues to struggle to pay his bills
because he can no longer work as a mobile food vendor.
Mr. Vasquez has repeatedly attempted to explain to New York City (NYC) Department
of Health and Mental Hygiene (DOHMH) that his original application was complete and
should have been accepted, but has received no response. He has been unable to work for nearly

one year and has been scraping by based on public assistance. Mr. Vasquez has no other option
but to file this proceeding in hopes that this Court will order the City to accept his renewal
application and issue him his mobile food vending permit so he may return to work.
ALLEGATIONS
As such, Petitioner Carlos Vasquez, by his attorney, the Urban Justice Center, for his
Verified Petition to this Court, respectfully alleges as follows:
1.

Petitioner is a sixty eight year-old United States citizen and has worked as

a mobile food vendor in New York City for approximately seven years.
2.

Respondent, the City of New York, is an incorporated municipality in the

State of New York.

3.

Respondent, Mr. Steven Linden, is the Director of Licensing at the New

York City Department of Health and Mental Hygiene (DOHMH).

4.

Petitioners most recent mobile food vending permit was valid for two

years and expired on April 30, 2011. On March 24, 2011, Petitioner submitted his mobile food
vending permit renewal application in person at the Department of Consumer Affairs (DCA). 1 A
copy of the renewal application materials are attached as Exhibit A.
5.

The representative at the DCA rejected Petitioners application and stated

that Petitioner needed to obtain a new New York State Department of Taxation and Finance
identification number because it was inactive.2 In fact, Petitioner had a current and active sales
tax identification number and submitted proof as part of his application. A copy of the notice
from the New York State Department of Taxation and Finance is attached hereto as Exhibit B.

Although the NYC Department of Health and Mental Hygiene is the agency that issues mobile food vending
permits, applications are submitted to the Department of Consumer Affairs located at 42 Broadway, 5 th Floor.
2
Mobile food vendors are required to obtain a sales tax identification number known as a Certificate of Authority
to collect New York State and City sales tax. See New York City Administrative Code 17-309(b)(4).

6.

Nevertheless, Petitioner, who needed the DCA to accept his application,

called the New York State Department of Taxation and Finance to request a new identification
number. On June 6, 2011, Petitioner received a copy of his sales tax identification number that
had been valid since December 10, 2010, the very same number that Petitioner submitted with
his renewal application on March 24, 2011. A copy of Petitioners sales tax Certificate of
Authority is attached hereto as Exhibit C. When Petitioner returned to the DCA to present his
permit renewal application again on June 21, 2011, he was informed that he was too late and
could not submit the application because his permit had expired on April 30, 2011.
7.

During the months of the summer and fall, Petitioner attempted to obtain

assistance from various community groups and elected officials in order to contact the DOHMH
for reconsideration of Petitioners renewal permit application. Petitioner asked for help at the
Bronx Borough Presidents Office as well as at the Institute for the Puerto Rican Hispanic Elderly
who attempted to help clarify the issue with the DOHMH. Copies of the correspondence sent on
behalf of the two organizations are attached hereto as Exhibit D.
8.

Petitioner went back to the DCA on October 6, 2011 and spoke with a

representative named Sonia who told Petitioner to write to Mr. Linden, explaining the
situation, and include a doctors letter confirming that Petitioner was a disabled military veteran.
Petitioner sent this letter to Mr. Linden on October 27, 2011. A copy of the letter and mailing
receipt is attached hereto as Exhibit E. Petitioner received no response from Mr. Linden or
anyone at the DOHMH. On November 21, 2011, Petitioner returned to the DCA and spoke with
Sonia who informed Petitioner that nothing else could be done.
9.

On December 14, 2011, Petitioner, though his attorneys, sent a letter with

supporting documentation to Mr. Steven Linden at the DOHMH explaining that Petitioner had

submitted a complete renewal application on March 24, 2011 and that it was an error for
application to be rejected. A copy of the letter is attached hereto as Exhibit F. Petitioner did not
receive any response. On January 19, 2011, Petitioner, through his attorneys sent another letter
to the DOHMH asking for a response to the December 14, 2011 letter. A copy of the letter is
attached hereto as Exhibit G. Petitioner has still not received any response from the DOHMH.
10.

Section 17-310 of the New York City Administrative Code requires all

mobile food vendor renewal applications to include tax clearance certificates proving that the
applicant has no outstanding New York State and City sales tax liabilities.

Significantly,

Petitioner had submitted both tax clearance certificates, on March 24, 2011 when he originally
attempted to submit his renewal application to the DCA. Copies of the tax clearance certificates
are attached as Exhibit H.
11.

Respondents failure to accept Petitioners mobile food vending permit

renewal application is arbitrary and capricious and in violation of lawful procedure. Petitioner
submitted a complete renewal application, with all required documentation, on March 24, 2011,
more than one month before his permit was set to expire. There was no rational basis for the
DCA to force Petitioner to obtain a new New York State sales tax identification number when
he submitted proof that there were no outstanding tax liabilities under his current and active
identification number.
12.

Moreover, it is arbitrary and capricious to deny an elderly citizen his

livelihood because of a technical error in the processing of his renewal application. See Matter
of Falco v. New York City Department of Health & Mental Hygiene, 2008 NY Slip Op 32985U,
4 (N.Y. Sup. Ct. Oct. 30, 2008) (Denying mobile food vendor a renewal permit because of
confusion over inspection deadline was arbitrary and capricious). Petitioner has attempted to

contact the DOHMH numerous times and enlisted the assistance of other organizations and
elected officials offices, but the DOHMH has never responded.
13.

Petitioner has not been able to work at his mobile food vending business

since May, 2011 and has suffered damages for lost business income in the amount of
approximately $4,500.00. When Petitioner was working as a mobile food vendor, he earned
$90.00 per day and worked five days a week. Since the DOHMH failed to renew Petitioners
mobile food vending permit when Petitioner applied on March 24, 2011, Petitioner has lost his
business income for nearly one year.
14.

Upon information and belief, the NYC Department of Health and Mental

Hygiene (DOHMH) has not in any way been prejudiced by Petitioners request for an
extension to renew his mobile food vending permit so he may return to work.
15.

Respondents are equitably estopped from preventing Petitioner from

renewing his vending permit because of their own error in forcing Petitioner to obtain a new
New York State sales tax identification number when there was no rational basis for doing so.
WHEREFORE, Petitioner respectfully requests that this Court:
1. Issue an order pursuant to Article 78 of the Civil Practice Law and Rules,
directing the NYC DOHMH to expeditiously allow Petitioner to submit his permit renewal
application, and renew his mobile food vending permit;
2. Grant Petitioner damages in the amount of $4,500.00 for lost income due to
Respondents failure to issue Petitioner his renewal mobile food vending permit.
3. Grant him such other and further relief as this court deems pro

Dated:

New York, New York

March 8, 2012

________________________
MATTHEW SHAPIRO
ATTORNEY FOR PETITIONER
Urban Justice Center
123 William St. 16th Floor
New York, NY 10038
(646) 602-5679 (phone)
(212) 533-4598 (fax)