Hajovsky v. City of New York ( 2000 )

—Order, Supreme Court, New York County (Charles Tejada, J.), entered July 30, 1998, insofar as it denied petitioner’s request in this CPLR article 78 proceeding to annul respondents’ denial of petitioner’s application for a newsstand license (Application No. 920807) and order, same court and Justice, entered August 17, 1998, which denied petitioner’s motion for leave to submit an amended reply, unanimously affirmed, without costs.

The court properly concluded that denial of the license application for the Broadway/43rd Street site was rationally based, since there is no dispute that, at the time of the Department of Transportation site inspection, the proposed newsstand location was directly in front of a building entrance, which circumstance is a violation of 6 RCNY 2-68 (b) (5) (iii). The appropriate remedy for petitioner to have pursued was the filing of a new application with a new site plan that reflected the changed conditions following demolition and reconstruction at the site.

We note that, pursuant to the parties’ stipulation, respondents’ appeal from that portion of the order that directed them to issue a newsstand license under Application No. 920813 has been withdrawn and discontinued with prejudice.

The court properly denied petitioner’s motion for leave to submit an amended reply, since the matters raised therein were not before the agency. Concur — Nardelli, J. P., Tom, Lerner, Rubin and Saxe, JJ.