Crescenzi v. The City of New York, 100319 FED2, 18-1002

Docket Nº:18-1002
Opinion Judge:DEBRA ANN LIVINGSTON, Circuit Judge
Party Name:Armando Crescenzi, James Kennedy, Albert Simmons, Howard Dalton, Oral Fields, Plaintiffs-Appellees, v. The City of New York, Veronica M. White, Chairman of the New York City Department of Parks and Recreation, individually and in her official capacity, Bruce Langston, Asha Harris, John Does # 1-10, Defendants-Appellants, Raymond Kelly,...
Attorney:FOR PLAINTIFFS-APPELLEES: JOSHUA P. FITCH, Cohen & Fitch LLP, New York, NY. FOR DEFENDANTS-APPELLANTS: DEVIN SLACK (Richard Dearing, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY.
Judge Panel:Before: Katzmann, Chief Judge, and Livingston and Droney, Circuit Judges. Katzmann, Chief Judge, dissenting:
Case Date:October 03, 2019
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Armando Crescenzi, James Kennedy, Albert Simmons, Howard Dalton, Oral Fields, Plaintiffs-Appellees,

v.

The City of New York, Veronica M. White, Chairman of the New York City Department of Parks and Recreation, individually and in her official capacity, Bruce Langston, Asha Harris, John Does # 1-10, Defendants-Appellants,

Raymond Kelly, individually and in his official capacity, Defendant.

No. 18-1002

United States Court of Appeals, Second Circuit

October 3, 2019

Argued: February 28, 2019

Defendant-Appellant the City of New York ("the City") appeals from a judgment of the United States District Court for the Southern District of New York (Daniels, J.), granting judgment to Plaintiffs-Appellees on their 42 U.S.C. § 1983 false-arrest claim. On appeal, the City argues that the district court erred in determining that New York General Business Law § 35-a(7)(i) does not require curbside vending. We agree with the City. Accordingly, the judgment of the district court is REVERSED.

FOR PLAINTIFFS-APPELLEES: JOSHUA P. FITCH, Cohen & Fitch LLP, New York, NY.

FOR DEFENDANTS-APPELLANTS: DEVIN SLACK (Richard Dearing, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY.

Before: Katzmann, Chief Judge, and Livingston and Droney, Circuit Judges.

DEBRA ANN LIVINGSTON, Circuit Judge

Defendant-Appellant the City of New York ("the City") appeals from a March 29, 2018 judgment of the United States District Court for the Southern District of New York (Daniels, J.), granting judgment to Plaintiffs-Appellees on their 42 U.S.C. § 1983 false-arrest claim. On appeal, the City argues that the district court erred in determining that New York General Business Law ("GBL") § 35- a(7)(i) does not require curbside vending. We agree and conclude that § 35-a(7)(i) does require curbside vending. Accordingly, we reverse the judgment of the district court.

BACKGROUND

The City is a bustling metropolis in which walking is the primary means of getting around for many of the 8.5 million people who call the City home (not to mention the City's 60 million annual visitors). See Winnie Hu, New York's Sidewalks Are So Packed, Pedestrians Are Taking to the Streets, N.Y. Times, June 30, 2016, http://nyti.ms/2je0h4J. Much of this pedestrian traffic takes place on sidewalks. Congestion and blockages on these busy sidewalks, then, can create frustrating challenges and real dangers for people simply trying to get to work, school, or the grocery store. The City, cognizant of the sometimes-difficult circumstances of its pedestrians, regulates its sidewalks with a complex patchwork of laws and regulations in order to ensure a steady-and safe-flow of foot traffic. See, e.g., N.Y. City Admin. Code § 19-125(d) (regulating ornamental lamppost placement); id. § 19-128.1(b)(5) (newsracks); N.Y. City Zoning Resolution §§ 26-23, 26-42 (planting strips and trees); 34 R.C.N.Y. § 2-20(q)(4) (street poles).

One such regulatory scheme governs disabled veteran vendors, who can be seen on sidewalks across the City selling hot dogs, pretzels, ice cream, and more. The longstanding exemption from municipal limitations on sidewalk vending for disabled veterans, codified in GBL § 35, entitles "any honorably discharged member of the armed forces of the United States who is physically disabled as a result of injuries received while in the service of said armed forces" to vend in "any street, avenue, alley, lane or park" of the City, so long as he or she has been issued a license to do so. But this entitlement comes with several restrictions, set forth in GBL § 35-a, as to where, when, and how vendors may vend. Cf. Matter of Rossi v. N.Y.C. Dep't of Parks & Recreation, 127 A.D.3d 463, 465 (1st Dep't 2015) (noting that the restrictions in § 35-a are designed to "combat sidewalk congestion and promote public safety"). At issue in this case is the restriction described in § 35- a(7)(i), which provides that no disabled veteran vendor shall occupy more than eight linear feet of public space parallel to the curb in the operation of a vending business and, in addition, no [disabled veteran vendor] operating any vending business on any sidewalk shall occupy more than three linear feet to be measured from the curb toward the property line.

GBL § 35-a(7)(i).

Armando Crescenzi, James Kennedy, Albert Simmons, Howard Dalton, and Oral Fields (collectively, "Plaintiffs-Appellees") are five disabled veterans who were issued, as relevant here, 298 summonses between 2011 and 2013 while vending in front of the Metropolitan Museum of Art. The summonses were issued by City Parks Enforcement Patrol ("PEP") officers for Plaintiffs-Appellees' failure to comply with orders to relocate their vending carts in violation of the City's rule that no person shall "refuse to comply with the lawful direction or command" of any PEP officer. See 56 R.C.N.Y. § 1-03(c)(1). The stated "lawful" basis for the relocation orders was that Plaintiffs-Appellees were contravening § 35-a(7)(i) by operating their carts more than three feet from the curb. Each summons contained nearly identical language. To take one example: I did observe the respondent vending food from a cart on parks property that is under the jurisdiction of NYC Parks. The respondent cart was approximately 20 feet from the curb. I told the food vendor that according to GBL 35-a(7)(i) a vendor must occupy no more than three (3) linear feet measured from the curb. When asked to move to the curb the respondent failed to comply with my directives.

A-654.

On February 5, 2013, Plaintiffs-Appellees filed the instant action against the City under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York.1 The complaint alleged a claim of false arrest, on the theory that Plaintiffs-Appellees were in compliance with § 35-a(7)(i)-if properly interpreted-at the time of the officers' relocation orders, so that there was no probable cause to issue the summonses.2 The complaint also alleged a claim of selective enforcement.

After several years of discovery, the City moved for judgment on the pleadings. In a July 26, 2017 Memorandum Decision and Order on that motion, the district court dismissed the selective-enforcement claim 3 but ruled for Plaintiffs-Appellees on the false arrest claim, as to which the district court deemed the "central question" to be "whether Section 35-a(7)(i) restricts a . . . cart's distance from the curb, or whether it simply restricts the size and dimensions of the cart." A-940. The court ultimately determined that § 35-a(7)(i) restricts only the size and dimensions of vending carts, reasoning primarily that because the provision's first clause restricts only "the length of a cart and not its placement," it is therefore "logical that the next clause . . . should be...

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