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UNIVERSAL SANITATION CORP. v. TRADE WASTE COMM'N O

October 16, 1996

UNIVERSAL SANITATION CORP. and COMPACTION SYSTEMS CORPORATION, Plaintiffs, against THE TRADE WASTE COMMISSION OF THE CITY OF NEW YORK, Defendant.


The opinion of the court was delivered by: POLLACK

 Milton Pollack, Senior U.S. District Judge

 Plaintiffs applied for injunctive relief pendente lite. A preliminary injunction was denied by the Court on the ground that plaintiffs failed to establish probability of success or irreparable damages.

 The Trade Waste Commission of the City of New York (the "Commission") administratively determined in its discretion on an evidentiary record that the customers of the plaintiffs were entitled to notification that they were privileged to cancel their contracts with the plaintiffs, unless the plaintiffs has received a new license from the Commission. The plaintiffs sought to enjoin this notification and sought to reopen the Commission's administrative record to submit additional evidence supporting their application for a waiver of such notification to plaintiffs' customers.

 Applicable law provides that the Commission may "waive the termination clause requirement with respect to identified" contracts if the Commission determines "in its discretion" that a waiver would be "consistent with the purposes of [Local Law 42]." The Commission administratively determined on an evidentiary record that plaintiffs already had a full and fair opportunity to present written affidavits and documentary evidence, and to make written arguments, first upon submission of their application and again on receipt of the Commission's recommended decision, and that further, plaintiffs had sufficient opportunity to produce their principal, Benny Villani, to give sworn testimony to the Commission, and chose not to do so.

 In denying the waiver sought the Commission cited plaintiffs' questionable contracting practices and the questionable background of Mr. Villani. Plaintiffs will have an opportunity to present additional evidence before the Commission in connection with their pending new license applications. The Court found that the administrative determination was neither arbitrary nor capricious, that plaintiffs do not have a legitimate claim of entitlement to a waiver, and that plaintiffs have not shown that a waiver would be inconsistent with the purposes of Local Law 42. Accordingly, Plaintiffs' motion for an injunction pendente lite was denied from the Bench.

 The Commission cross-moved for summary judgment in its favor. The plaintiffs had commenced this proceeding in state court challenging the Commission's determination on several grounds; most of the grounds are federal constitutional claims and there is one state law claim for Article 78 relief. The suit was removed to this court by the defendant.

 The constitutional claims asserted are a contracts clause claim, a takings claim, a procedural due process claim, what the plaintiffs refer to as a vagueness claim, and a bill of attainder claim. Plaintiffs focus principally on their procedural due process claim.

 Defendant has moved for summary judgment in its favor on the ground that there are no genuine issues of material fact herein on the issues presented. Although presenting purported denials of the allegations, plaintiffs have not directly disputed the statements of the defendant presented pursuant to Rule 3(G) of the Local Civil Rules or suggested a material version contrary to the Rule 3(G) statements.

 The motion for summary judgment in favor of the defendant will be granted for the reasons appearing hereafter.

 BACKGROUND

 On June 3, 1996, the New York City Council adopted Local Law No. 42 of 1996 ("Local Law 42"), known as the Trade Waste Law, thereby overhauling the regulatory scheme applicable to trade waste removal businesses operating in the City. This Court upheld the facial constitutionality of Local Law 42 in Sanitation and Recycling Industry, Inc. v. City of New York, 928 F. Supp. 407 (S.D.N.Y. 1996) (Pollack, J.) (" SRI ").

 Plaintiffs Universal Sanitation Corp. ("Universal") and Compaction Systems Corporation ("Compaction") are entities engaged in the trade waste removal business in the City of New York. Benny Villani is a principal of both plaintiffs, holding a ...


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