Open restaurant shanties law will be heard by State Supreme Court

If there is debate about keeping outdoor dining restaurant shanties on the streets of #NYC, this one should end it. As rats scurried away from piles of wood that were dismantled from the structure where they once called home

This is under every one of these, even the fancy ones pic.twitter.com/XeeOStZeVx

— JQ LLC (@ImpunityCity) July 19, 2022

 

 NY Daily News

A Manhattan lawsuit calls for the city and state to scrap the outdoor dining option launched when the pandemic hit in 2020, arguing the al fresco operations now leave a bad taste in their mouths.

The eight-page Supreme Court filing cited “increased and excessive noise, traffic congestion, garbage and uncontrolled rodent populations (and) the blocking of sidewalks and roadways” since the Temporary Outdoor Restaurant program began in June 2020.

“Now some restaurant owners are using the sheds for storage, not for outdoor dining ... some are filled with garbage,” said Brooklyn Community Board 4 Chair Robert Camacho in an affidavit with Friday’s suit. “Some are filled with garbage. Some have kids in there getting high.”

 In addition, the lawsuit alleged, the outdoor dining option created problems for traffic on city streets and sidewalks, along with a dearth of parking spaces for customers that leads to a reduction in business.

“TOR also continues to appropriate substantial share of public sidewalks and streets for private use and profit,” the suit alleges.

Lower East Side restaurant owner Vincent Sgarlato supports the continuation of outdoor dining in the city — to a point. Some of the outdoor operations near his eatery turned into “putrid structures” over time, and cleanliness in general has become a pandemic problem in the area, he said.

Supreme Court rules against Cuomo

Yesterday the US Supreme Court ruled that New York's "special" limits on religious gatherings violated the First Amendment to the US Constitution. In other words, Cuomo can't arbitrarily choose 10 or 25 people as an attendance limit for houses of worship while 100 are shopping at Costco at the same time. And it was our local Catholic diocese, along with Agudath Israel, that got this nonsense stopped. Happy Thanksgiving ya big turkey!

2 de Blasio donors charged, but not de Blasio himself

From the NY Times:

A major donor to Mayor Bill de Blasio pleaded guilty to using campaign contributions as bribes to buy better treatment at City Hall — and yet the mayor, who took the money and aided the donor, was not charged with a crime.

Another donor pleaded guilty to honest services wire fraud that included making political contributions in exchange of official action — and again, no charges for the mayor.

The outcome has led some, including the WNYC radio host Brian Lehrer, to an obvious question.

“How can someone be guilty of giving you a bribe and you not be guilty of taking it?” Mr. Lehrer asked Mr. de Blasio on Friday.

It’s abundantly clear,” the mayor said. But it wasn’t.

“This man did a lot of bad things in a lot of places,” Mr. de Blasio said of Harendra Singh, a restaurateur who pleaded guilty to bribing the mayor. “I’m someone who never did, never would be involved in such an effort.”

Several factors were in play.

The United States Supreme Court set a much higher bar for public corruption cases with its 2016 ruling that reversed the bribery conviction of the former Virginia governor, Bob McDonnell. In the ruling, the court determined that making introductions or setting up meetings, even in exchange for gifts or financial benefits, did not constitute a crime.

As a consequence, several prominent corruption convictions were set aside, and prosecutors have become more cautious in taking on such cases.

Furthermore, bribery cases against elected officials based on campaign contributions are rare, the legal experts said. That is in part because the Supreme Court has drawn a clear distinction between a legal contribution to a political campaign and other kinds of payments like cash, gifts or other benefits that in effect go into the pocket of a public servant.

It may also have been that it was simply easier for prosecutors to bring charges against the person buying access, because the men admitted guilt, in the face of abundant evidence, as part of plea deals in which they agreed to cooperate with the government against other defendants. Mr. Singh is a witness in corruption trials on Long Island; Mr. Rechnitz testified against a labor official who was accused of steering millions of dollars of officers’ retirement funds into a hedge fund in exchange for promised kickbacks.

The Crowley court suspension is over

From the Observer:

Relatives of Congressman Joseph Crowley, chairman of Queens Democratic Party, are once again picking up appointments and payments from the borough’s Supreme Court—six years after anti-nepotism rules banned members of the clan from profiting off the system.

A minor scandal broke out in 2011 when reports arose that jurists in the borough had handed out lucrative temporary work to Bernadette and Theresa Crowley, cousins of the party boss and sisters to Queens Councilman Elizabeth Crowley, at the same time that their other sister Margaret held a six-figure clerking gig under Supreme Court Justice Darrell Gavrin. State strictures forbid lawyers from getting court-ordered assignments in a judicial district where a member of their nuclear family holds any moderately well-compensated position.

And so began a four year hiatus for the Crowleys from Queens Supreme Court. But state payroll records indicate that Margaret Crowley left her job a few months into 2015, and her family members began scooping up appointments from Supreme Court judges almost immediately afterward.

City enters Supreme Court fight re: voting district lines

From the Daily News:

The de Blasio administration has joined a Supreme Court fight that could change the way voting districts are carved up to exclude residents like immigrants and felons from the population count, the Daily News has learned.

If successful, Evenwel vs. Abbott would dramatically change the political landscape in immigrant-rich communities like New York, because it would draw districts to include only eligible voters.

Immigrants, felons who have lost the right to vote and children would be excluded.

In court papers filed last week, the city’s Law Department said rewriting the rules would punish New York City for its diverse population.

It would “effectively wipe millions of individual residents and entire families off the map, rendering those residents and their unique needs invisible to our local democracy,” the brief read.

The brief argues that the city’s use of total population in apportioning districts “conforms with fundamental tenets of representational democracy.”

It ensures that “all residents are entitled to equal representation, a principle of particular importance given the nation’s historic commitment to diversity, inclusion and robust civic involvement and debate,” the brief adds.

Zachary Carter, head of the city Law Department, said that counting everyone in an electoral district is important because all residents use city services, not just those eligible to vote.

Illegal hotel operator sued by the City

From Wall Street Journal:

Mayor Michael Bloomberg's administration filed a lawsuit on Monday against what is believed to be the largest operator of illegal hotels in New York City, seeking $1 million in damages and the creation of a restitution fund for tourists who have been duped and exposed to dangerous conditions.

The lawsuit in state Supreme Court accuses Smart Apartments LLC and Toshi Inc., a related company that was dissolved last year, of operating illegal short-stay rooms in as many as 50 residential buildings in Manhattan and Brooklyn. The suit also named as a defendant Robert "Toshi" K.Y. Chan, the companies' principal executive, who appeared in an Academy Award-winning film, "The Departed," and is known for throwing lavish parties in New York.

"Illegal hotel operators create hazardous conditions and place the lives of guests in danger," Mr. Bloomberg said in an email. "With this lawsuit, we are sending a clear message to operators of all illegal hotels: Our administration will remain vigilant in its commitment to combating this public safety problem."

Mr. Chan declined a request for an interview. Jonathan Nelson, an attorney representing Smart Apartments, said in a statement that the litigation "apparently is directed toward situations that have allegedly occurred in the past."

Judge rules that porn is ok

From the NY Times:

A Manhattan judge on Thursday ruled that a 2001 city law was unconstitutional in seeking to reduce the number of stores and clubs that offer a mix of sexual content and other material in neighborhoods where X-rated establishments are banned.

The law sought to plug what the city considered to be a loophole in the 1995 zoning change that banned “adult establishments” from residential neighborhoods and from being within 500 feet of another such establishment, a school or a place of worship.

The 1995 law defined an “adult establishment” as any business where more than 40 percent of its material was sexually oriented. By the end of the 1990s, the city came to believe that many of the so-called 60-40 establishments were shams that kept a few shelves of innocuous material to disguise the true nature of their business.

So in 2001, the city broadened the definition to include criteria that would have required most of the 60-40 establishments to close or move to industrial areas.

On Thursday, Justice Louis B. York of State Supreme Court ruled that the mixed-use establishments were not shams and did not create a public nuisance in their communities, and that the city had sufficient tools to close any establishment that skirted the 40 percent rule.

Board of Estimate survives on paper

From the NY Times:

Of the 150 references to the board [of estimate] in the administrative code alone, some describe actions that had been taken by the board before it was abolished and others refer to the board “or its successor.” But many read as if the board still existed.

Complying with a United States Supreme Court ruling that the board violated the one-person, one-vote principal (since the borough presidents, representing counties with divergent populations, had equal votes), a charter revision commission recommended the board’s abolition. In 1989, the voters agreed. Most of the powers were transferred to the City Council. References to the board still exist in the City Charter itself, although the revised charter’s abolition of the board presumably takes precedence legally.

Amending the administrative code of city rules and regulations is the Council’s job. The Council has been doing just that, but on a case-by-case basis as legislation on a particular subject is drafted. When two local laws on recycling were amended in 2010, for example, references to the Board of Estimate were removed.

Peter F. Vallone, the former Council speaker, recalls that in 1990, legislation was drafted to remove all anachronistic references to “the board” and replace them with “the Council” or another relevant agency or body. For reasons nobody seemed able to explain, that legislation was never approved.

So 22 years after the last vote on its 580-item calendar — a proposal to expand a United Parcel Service warehouse in Lower Manhattan — and Frank New, sitting in for Mayor David N. Dinkins, gaveled the board into terminal adjournment, it survives on paper.

Countries won't take back their criminals

From Fox News:

Long after they were ordered out of the country, thousands of criminal aliens from places like China, Cuba, Vietnam and Pakistan remain free in the United States to commit new crimes because their home countries refuse to take them back.

For years, this unique problem percolated under the political radar. But recent crimes by immigrant felons have lawmakers scrambling to punish nations that refuse to repatriate their own citizens. The Obama administration and many Democrats in Congress, however, are blocking punitive legislation, preferring to let the State Department handle the issue diplomatically.

Rep. Ted Poe, R-Texas, is leading the charge in Congress to change the law, pushing to withhold visas to nations that refuse to take back their own.

"I don't know why the State Department seems to take the side of foreign countries over our own American interest in the United States," Poe said, urging the U.S. to tell those countries: "Look, you take these people back or the consequence is going to be no visas for your nation."

Under a 2001 Supreme Court decision, U.S. immigration officials are only permitted to hold someone for six months after their incarceration. So when a home nation refuses to take back their national, the U.S. is required to release them -- no matter what they've done.

The issue recently came to Poe's attention after three especially heinous crimes were committed by men ordered deported years ago.

The return of Robert Moses

From City Limits:

Restaurants, stores, and a 200-room hotel would go up on the Willets Point side of 126th Street, just east of Citi Field, though the city does not entirely own the property. The proposed shopping mall west of the stadium may face a larger hurdle: The parking lot is part of Flushing Meadows Corona Park. State law requires the alienation of parkland before it can be used for non-park purposes.

To meet that requirement, Bloomberg has reached back to a law passed 51 years ago, summoning an uncertain ally in the ghost of Robert Moses. But questions surround this curious piece of legislation, setting up the latest in a string of disputes over city-sponsored developments on public parkland.

"Yes, this area is parkland," says Benjamin Branham, a spokesman for the city's Economic Development Corporation, "but development is permitted under the 1961 law that authorized the construction of Shea Stadium—known as Administrative Code 18-118—which also allowed for additional uses to be built on the parking lot. It's important to be clear the authorization comes from this law as opposed to a contract or other agreement of some kind."

Yet, as recently as 2001, New York's highest court ruled parkland can't be taken, even for temporary use, without an explicit act of alienation passed by the state Legislature and approved by the Governor: "[O]ur courts have time and again reaffirmed the principle that parkland is impressed with a public trust, requiring legislative approval before it can be alienated or used for an extended period for non-park purposes."

Moses presided over the 1961 groundbreaking for Shea Stadium. He had originally offered to build the municipal arena in Flushing Meadows for the Brooklyn Dodgers and resurrected the plan when the city pushed for a new National League franchise.

The state Legislature approved his building of Shea Stadium in the park, but its 1961 legislation was primarily aimed at granting the city authority to issue bonds to finance construction. It loosely laid out the permitted uses for the stadium and grounds, listing "recreation, entertainment, amusement, education, enlightenment, cultural development or betterment, and improvement of trade and commerce." The law even allowed the city to use the site for "any business or commercial purpose," so long as this activity "aids in the financing of the construction and operation of [the] stadium, grounds, parking areas and facilities" and "does not interfere with the accomplishment of the purposes referred to" above.

"The bill reads like a Robert Moses special," says Geoffrey Croft of the watchdog group NYC Park Advocates. The broad powers it conferred were a hallmark of the Power Broker, who was so well-practiced in the black art of political legislating that Al Smith once called him "the best bill-drafter I know." The Parks Commissioner could enter into agreements to use part or all of the stadium grounds, but any agreements lasting for more than a year had to be approved by the Board of Estimate, which included the mayor, the comptroller, the City Council president, and all of the borough presidents.

In 1989, the U.S. Supreme Court found the Board of Estimate unconstitutional, because it violated the “one man, one vote” rule—for example, the borough president of Brooklyn (the city’s most populous county) had no more power than the borough president of Staten Island (the least populous county). With the elimination of the Board of Estimate, the city's Law Department says, the power of site approval under the 1961 Shea Stadium law now rests solely with the mayor. A shopping mall may not offer the "enlightenment" referenced in the text, but a Bloomberg administration spokesperson describes the new project as a "retail/entertainment complex" benefiting “trade and commerce.”

Don't you love how the city has no money for needed services for existing neighborhoods, yet has tons of cash to throw around in an attempt to justify park alienation in order to realize a Bloomberg legacy project? Why doesn't the billionaire pony up his own cash and buy out the Willets Point property owners? Then he can build whatever the hell he wants.

Leave the damn park alone.

Bruno off the hook

From the NY Post:

Federal prosecutors, citing a recent US Supreme Court decision, have conceded for the first time that last year's conviction of former state Senate Majority Leader Joseph Bruno on two felony counts must be dismissed, The Post has learned.

The concession came in a letter from Northern District US Attorney Richard Hartunian to Bruno lawyer William Dreyer late last month in response to Dreyer's inquiry about the impact of the unanimous Supreme Court ruling in June throwing out the complicated "honest services" statute under which Bruno was convicted.

Hartunian, after reviewing details of the decision and noting that the judge's instructions to the jury were based on the now-nullified statute, told Dreyer, "We will concede that reversal is appropriate as a result of the instructional error."

Madman sent to slammer

From the NY Post:

The hulking “monster” who went on a stabbing rampage in Queens last year was sentenced to 25 years to life for killing an elderly man and stabbing the victim’s wife and another woman.

David Williams left Joan Purcell “overwhelmed with pain” when he killed her husband and stabbed her in January 2009.

Williams, who also stabbed Juhn Fook as he ran amok, pleaded guilty to murder and two counts of assault in April.

He told State Supreme Court Justice Gregory Lasak that he had no history of mental problems or prescribed psychotropics before the assault and apologized to his victims, his family and his community.

“Something went terribly wrong that I cannot account for,” Williams said. “Whatever sentence I am given, I hope that it should start to serve as a healing process for the victims.”

He was sentenced to 25 years to life on the murder count and 25 years on each of the assault counts which will run concurrently to the longer stretch.

Judge overturns convictions in deaths of firefighters

From the NY Times:

A Bronx judge on Tuesday overturned the convictions of the owner and former owner of a building where two firefighters leapt to their deaths from a fourth-floor window to escape advancing flames.

A jury convicted the defendants of criminally negligent homicide and reckless endangerment a year ago; prosecutors had argued that they knew about the illegal partitions that had turned the apartment building into a dangerous maze that helped disorient the firefighters as the flames quickly spread.

But Justice Margaret L. Clancy of State Supreme Court took the unusual step on Tuesday of overturning the verdict because, she said, prosecutors had failed to prove that the defendants — the company that owned the building, and Cesar Rios, its former owner — knew about the partitions.

“An individual or entity cannot be convicted of a crime without evidence of actual knowledge,” Justice Clancy said.

A spokesman for the Bronx district attorney’s office said prosecutors were deciding whether to appeal the decision.

Salvatore J. Cassano, the fire commissioner, said in a statement: “Today’s decision hopefully does not send the wrong message to those who seek to profit by creating illegal occupancies. The fact is, people continue to die in fires because of illegally constructed partitions that block egress.”

The check's not in the mail

From the NY Post/AP:

WASHINGTON -- Dozens of current and former corporate executives have a message for Congress: Quit hitting us up for campaign cash.

Roughly 40 executives from companies including Playboy Enterprises, ice cream maker Ben & Jerry's, the Seagram's liquor company, toymaker Hasbro, Delta Airlines and Men's Wearhouse sent a letter to congressional leaders Friday urging them to approve public financing for House and Senate campaigns. They say they are tired of getting fundraising calls from lawmakers - and fear it will only get worse after Thursday's Supreme Court ruling.

The court ruled that corporations and unions can spend unlimited money on ads urging people to vote for or against candidates. The decision was sought by interest groups including one that represents American businesses, the U.S. Chamber of Commerce. They argued that restrictions on ads they could finance close to elections violated their free-speech rights, and the court agreed.

Corporate contribution ban deemed unconstitutional

From Fox News:

In a stunning reversal of the nation's federal campaign finance laws, the Supreme Court ruled 5-4 Thursday that as an exercise of free speech, corporations, labor unions and other groups can directly spend on political campaigns.

Siding with filmmakers of "Hillary: The Movie," who were challenged by the Federal Election Commission on their sources of cash to pay for the film, the court overturned a 20-year-old ruling that banned corporate and labor money. The decision threatens similar limits imposed by 24 states.

The justices also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

Justice Anthony Kennedy wrote the main opinion, which reads in part that there is "no basis for allowing the government to limit corporate independent expenditures."

"There is no basis for the proposition that, in the political speech context, the government may impose restrictions on certain disfavored speakers," he wrote. "The government may regulate corporate speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether."

Dissenters included Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

"The notion that the First Amendment dictated [today's ruling] is, in my judgment, profoundly misguided," Stevens wrote for the others.

"In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it," he added.

The ruling is sure to send a jolt to political campaigns throughout the country that are gearing up for the 2010 midterm elections. It will also impact the 2012 presidential race and federal elections to come.

Court ruling could let Bruno & Seminerio off the hook

From the Queens Chronicle:

This book was closed, some thought.

A series of convictions — culminating in the recent prosecutions of former state Sen. Joe Bruno and former Assemblyman Anthony Seminerio — had finally cast light on Albany’s legislative underworld. Its most egregious players had faced justice. And newfound federal scrutiny would surely deter those who would follow their unseemly path.

But a trio of cases before the U.S. Supreme Court could soon turn back the clock — setting the stage for pols like Bruno and Seminerio to escape the long prison terms that otherwise await them.

The court began hearing arguments against the government’s “honest services fraud” law last Tuesday. Enacted in 1988, the law criminalizes ethical lapses among public and private officials. Should the justices strike it down, thousands of white-collar offenders convicted under the statute, including Bruno and Seminerio, could be set free.

At question is whether the law adequately defines corruption by establishing a clear line between minor moral lapses and criminal activity. In the first of two hearings last week, the justices seemed to agree it did not.

Veterans Memorial covered by plywood box

From the Wall Street Journal:

The Mojave Desert Veterans Memorial, a seven-foot metal cross, was erected in 1934 by World War I veterans to honor their fallen brethren. In 2001, the American Civil Liberties Union (ACLU) sued to have the memorial taken down. The reason? The ACLU claims that the mere presence of the cross within the 1.6 million acre national preserve runs afoul of the Constitution, because it is effectively a religious symbol.

Judge Robert J. Timlin of the U.S. District Court for the Central District of California agreed with that claim, and ordered that the cross be covered up while the case was on appeal. So now a memorial dedicated to those who fought tyranny and oppression is hidden from view by a plywood box.

This case is part of a disturbing pattern. Like lawsuits seeking to stop the Pledge of Allegiance from being recited each morning in our public schools or to remove "In God We Trust" from our currency, the ACLU's argument in Salazar v. Buono is based on a misconception of the Constitution—that the government must be hostile to religion.

Far more is at stake than a single memorial. If the Supreme Court allows this cross to be destroyed, it could presage the destruction of thousands of similar memorials nationwide, inflicting sorrow on millions of Americans, especially veterans and their families.

The theory being advanced by the ACLU is that no religious symbol can be allowed on public land. That is a radical notion that is contrary to the text of the Constitution, to the original understanding of the Framers, and to how the Supreme Court has long interpreted the First Amendment's prohibition on the establishment of a religion.

Well isn't this special?

From PolitickerNY:

One little-noticed result of last night's primary: the grandson of Assemblywoman Carmen Arroyo who was charged with embezzlement earlier this year was just elected as a delegate to the judicial convention.

Richard Izquierdo Arroyo defeated Linda Duke for the position, which is unpaid but would help decide the Democratic Party's picks for Supreme Court judgeships in the Bronx. Delegates are elected by Assembly district.

Photo from Daily News.

Judging Sonia on eminent domain abuse

From the Washington Times:

If you thought Judge Sonia Sotomayor's controversial stances on racial issues were problematic, you should get a gander at the Supreme Court nominee's apparent hostility to property rights.

Judge Sotomayor served as the senior judge on one 2006 case, Didden v. Village of Port Chester, which respected University of Chicago law professor Richard Epstein described as "about as naked an abuse of government power as could be imagined." Her judicial panel's ruling might be the worst violation of property rights ever approved by a federal appeals court. It is part of a pattern of Judge Sotomayor's pro-government rulings that run roughshod over the most basic of private property rights.

In the Didden ruling, as in the Supreme Court's infamous Kelo v. New London decision, the government used its constitutionally limited power of "eminent domain" to force one private owner to turn over land (for a fee) to give it to a private developer. Yet the Didden case was even worse than the Kelo one. When the town of New London, Conn., took Susette Kelo's home - a rank injustice - the town at least did so after public hearings. The Village of Port Chester, N.Y., took Bart Didden's land without a public hearing.

New London took the land around Ms. Kelo's house in order to change it from residential use to a commercial use that purportedly was for the public good. Port Chester, to the contrary, did not claim to change the land use for the public good. Instead, it merely gave the land to a private developer who wanted to use it for the same purpose, a pharmacy, as the original owners. Instead of a CVS, the new owner used it for a Walgreens.

In essence, wrote Mr. Epstein and George Mason University law professor Ilya Somin, the taking of private property amounted to "out-and-out extortion" with government support. Yet Judge Sotomayor's panel not only ruled against Mr. Didden's property rights, but did so with a bare, six-paragraph order - as Mr. Somin described it, "without serious examination of the legal issues to any significant degree."

It's a mystery how the judge could square this case with the Constitution's requirement that private property can be taken only for "public use," or with its requirement that "no state" shall pass any "law impairing the obligation of contracts."

Is it any wonder that Bloomberg is desperately trying to get her on the country's highest court?

Supreme Court overturns Sotomayor decision

From ABC 7/AP:

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

One bad decision overturned, I wish this one was next.