Matter of Rockaway Vibes Inc. v City of New York

Supreme Court, Queens County

Decided on June 4, 2026

Index No. 721241/2024

Robert I. Caloras, J.

The following e-filed documents, listed by NYSCEF under the application as: 2, 16-35, were read on the application by petitioner Rockaway Vibes Inc. (petitioner), pursuant to Article 78 of the CPLR, to challenge a sealing order issued by respondents City of New York (the City) and New York City Sheriff Anthony Miranda (the Sheriff), closing petitioner's business located at 114-13 Rockaway Beach Boulevard, in the County of Queens, and to challenge the decision dated June 28, 2024, of nonparty hearing officer Takara Strong, (Strong), who is a hearing officer with respondent New York City Office Of Administrative Trials and Hearings (OATH), in which Strong recommended continuing the Sheriff's sealing order of petitioner's business.

Upon the foregoing papers it is ordered that petitioner's Article 78 proceeding is decided as follows:

Petitioner commenced the instant proceeding under Article 78 of the CPLR to challenge a decision issued by OATH, as well as to challenge a final determination issued by the Sheriff. In the petition, petitioner has alleged that it operated a business located at 114-13 Rockaway Beach Boulevard, in the County of Queens, that on June 21, 2024, the Sheriff, along with others, conducted an inspection of said business, that the Sheriff issued a summons charging petitioner with a violation of section 7-551 (a) of the New York City Administrative Code and issued a sealing order, immediately closing petitioner's business. Petitioner has alleged that it requested an administrative hearing with OATH, which hearing was held on June 28, 2024, following which, OATH issued a decision sustaining the summons.

The City, the Sheriff, respondents Preston Niblack, Commissioner New York City Department of Finance, and Asim Rehman, Commissioner of OATH (collectively referred to as respondents) have submitted an answer, among other things, denying that they acted contrary to applicable law, seeking transfer of the matter to the Appellate Division, Second Department pursuant to CPLR 7804 (g), on the basis that, on the entire record, the determination was supported by substantial evidence, and contending that the administrative record has demonstrated that both the summons and sealing order were properly served under applicable law.

Following a hearing on February 3, 2025, in an order also dated February 3, 2025, and entered on February 4, 2025, the court granted petitioner a preliminary injunction against the City and the Sheriff, preventing the City and the Sheriff from enforcing a previously issued order to seal said business, and allowing petitioner's business to re-open until the instant petition is decided. Subsequently, in an order dated February 7, 2025, the Appellate Division, Second Department issued an order granting respondents' application, and stated the following: it is "ORDERED that [respondents'] application is GRANTED, and the interim relief [granted by the Supreme Court, Queens County,] permitting the reopening of [] petitioner's business pending the determination of the order to show cause is stricken."

Administrative Code of the City of New York §§ 7-551 and 7-552 both govern the City's enforcement authority regarding unlicensed cannabis activity, empowering the City to issue penalties and sealing orders. Administrative Code of the City of New York § 7-552 (b) (2), in particular, entitles a respondent to a summons and sealing order to a hearing within five business days before OATH. Cannabis Law §§ 138-b (2), (3), (6), and (7), govern sealing orders by the Sheriff.

CPLR 7804 (g) provides the following:

"Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues [*2]in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding ... without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division ...."

CPLR 7803 (4) provides the following: "The only questions that may be raised in a proceeding under this article are: . . . 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence." When a proceeding in Supreme Court " 'raises a question of whether an administrative determination is supported by substantial evidence, the proceeding should be transferred from the Supreme Court to this Court to address that issue' " (Cruz v New York City Off. of Admin. Trials and Hearings, 236 AD3d 651, 652-53 [2d Dept 2025], quoting Matter of Doran v Town of Babylon, 219 AD3d 832, 833 [2d Dept 2023]; CPLR §§ 7803 [4], 7804 [g]).

Based upon a thorough review of the pleadings, respondents have properly raised the substantial evidence issue in this proceeding. Given that OATH's hearing officer in this matter held a hearing and made a determination pursuant to the above-stated provisions of the Administrative Code regarding the summons, and inasmuch as no threshold objections such as, among other things, jurisdiction, statute of limitations, or res judicata have been raised in this proceeding to be decided upon by Supreme Court, transfer is appropriate (see Doran v Town of Babylon, 219 AD3d at 834). The court notes that to the extent that petitioner has challenged the Sheriff's determination as arbitrary and capricious, which determination was made without a hearing, this is not a threshold issue which could terminate the proceeding under the provisions of CPLR 7804 (g).

The parties' remaining contentions have been considered and found to be unavailing.

Accordingly, it is

ORDERED that for the above-stated reasons, the instant proceeding involving substantial evidence questions under CPLR Article 78 is, hereby, transferred to the Appellate Division, Second Department pursuant to CPLR 7804 (g). Petitioner shall serve a copy of this Decision and Order with Notice of Entry upon the Clerk of the Queens County Supreme Court, which is directed to transfer the matter to the Appellate Division, Second Department.

Dated: June 4, 2026

ROBERT I. CALORAS, J.S.C.