Dua v. N.Y.C. Dep't of Parks & Recreation

• Decision Date: 20 September 2017
• Docket Number: 110344,2010
• Parties: Diane I. DUA, Joel Kaye, Bryan Close, Tenzin Wangdu, Jack Diamond, Bayo Iribhogbe, Robyn Wohl, George Moran, and Artists United, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a Municipal Agency), Adrien Benepe (in his Official Capacity as the Parks Commissioner); City of New York (as a municipality), and Honorable Michael Bloomberg (in his Official Capacity as the Mayor ), Defendants.
• Court: New York Supreme Court

59 Misc.3d 633
70 N.Y.S.3d 329

Diane I. DUA, Joel Kaye, Bryan Close, Tenzin Wangdu, Jack Diamond, Bayo Iribhogbe, Robyn Wohl, George Moran, and Artists United, Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a Municipal Agency), Adrien Benepe (in his Official Capacity as the Parks Commissioner); City of New York (as a municipality), and Honorable Michael Bloomberg (in his Official Capacity as the Mayor ), Defendants.

110344
2010

Supreme Court, New York County, New York.

Decided on September 20, 2017

For Plaintiffs: Jon Schuyler Brooks Esq., Jeffrey L. Shore Esq., Phillips Nizer LLP, 666 5th Avenue, New York, NY 10103

For Defendants: Sheryl R. Neufield Esq., Division Chief, New York City Law Department, 100 Church Street, New York, NY 10007

Lucy Billings, J.

59 Misc.3d 636

I. BACKGROUND

Plaintiffs sue for a judgment declaring defendant New York City Department of Parks and Recreation's Expressive Matter Vending (EMV) regulations, 56 R.C.NY § 1–05(b)(2)-(8), unconstitutional because they impose a prior restraint on expression, violate equal protection guarantees, and are vague. NY Const. art. I, §§ 8 and 11. Plaintiffs further claim that the regulations violate plaintiffs' statutory rights under New York City Administrative Code § 20–473 and the New York State and City Human Rights Laws. NY Exec. Law § 296(2) ; N.Y.C. Admin. Code § 8–107(4) and (9). Defendants move for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). Plaintiffs

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cross-move to amend their complaint to add a claim that the regulations violate the constitutional separation of powers, C.P.L.R. § 3025(b), and for summary judgment in their favor on their various claims. C.P.L.R. § 3212(b). For the reasons explained below, the court grants defendants' motion in part and plaintiffs' cross-motion in part.

II. SUMMARY JUDGMENT STANDARDS

To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b) ; Friends of Thayer Lake LLC v. Brown , 27 N.Y.3d 1039, 1043, 33 N.Y.S.3d 853, 53 N.E.3d 730 (2016) ; Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 (2015) ; Voss v. Netherlands Ins. Co. , 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 (2014) ; Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012). Only if the moving parties satisfy this standard, does the burden shift to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones , 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 (2016) ; Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP , 26 N.Y.3d at 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 ; Morales v. D & A Food Serv. , 10 N.Y.3d 911, 913, 862 N.Y.S.2d 449, 892 N.E.2d 842 (2008) ; Hyman v. Queens County Bancorp, Inc. , 3 N.Y.3d 743, 744, 787 N.Y.S.2d 215, 820 N.E.2d 859 (2004). If the moving parties fail to meet their initial burden, however, the court must deny them summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co. , 22 N.Y.3d at 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 ; Vega v. Restani Constr. Corp. , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Smalls v. AJI Indus., Inc. , 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008) ; JMD Holding Corp. v. Congress Fin. Corp. , 4 N.Y.3d 373, 384, 795 N.Y.S.2d 502, 828 N.E.2d 604 (2005).

In evaluating the evidence for purposes of the motion and cross-motion for summary judgment, the court construes the evidence in the light most favorable to the opponents. De Lourdes Torres v. Jones , 26 N.Y.3d at 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; Vega v. Restani Constr. Corp. , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Cahill v. Triborough Bridge & Tunnel Auth. , 4 N.Y.3d 35, 37, 790 N.Y.S.2d 74, 823 N.E.2d 439 (2004). For purposes of determining the motion and cross-motion for summary judgment, at the oral argument July 9, 2015, the parties stipulated that the regulations were neutral regarding the content of the expression to which they apply.

III. THE MOTION AND CROSS–MOTION FOR SUMMARY JUDGMENT

A. The Expressive Matter Vendor Regulations

"Expressive matter" is "materials or objects with expressive content, such as newspapers, books, or writings, or visual art

59 Misc.3d 638

such as paintings, prints, photography, sculpture, or entertainment." 56 R.C.NY § 1–02. 56 R.C.NY § 1–05(b)(2) allows expressive matter vendors (EMVs) to sell expressive matter "on property under jurisdiction of the Department without a permit," but they "must comply with all applicable provisions of these rules." 56 R.C.NY § 1–05(b)(2) also limits EMVs to selling in specified parts of New York County's Central Park, High Line Park, Union Square Park, and Battery Park: "specifically designated spots for such vending on the accompanying maps." The spots are "allocated on a first come, first serve basis," 56 R.C.NY § 1–05(b)(2), as set forth in 56 R.C.NY § 1–05(b)(3).

56 R.C.NY § 1–05(b)(4) through (8) apply to all vendors. Paragraph (4) prohibits placing anything on specified features of parks, blocking use of the parks, damaging park property, and vending from vehicles or specialized park areas. 56 R.C.NY § 1–05(b)(5) sets forth maximum dimensions of vending display stands and minimum required distances from specified areas or features of the parks. 56 R.C.NY § 1–05(b)(6) defines a "display stand." 56 R.C.NY § 1–05(b)(7) defines "street or park furniture" among the park areas or features from which the stands must maintain a distance. Finally, 56 R.C.NY § 1–05(b)(8) authorizes park employees or police to move a vendor from a location temporarily under exigent circumstances and defines exigent circumstances.

B. Free Expression

Plaintiffs contend that the regulations impose a restraint on the fundamental constitutional right to free expression. Defendants maintain that the regulations are valid restrictions on the time, place, and manner of the exercise of that right. New York Constitution Article I, § 8, provides that:

Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

Walton v. New York State Dept. of Correctional Servs. , 13 N.Y.3d 475, 490, 893 N.Y.S.2d 453, 921 N.E.2d 145 (2009). New York's Constitution thus defines a broader scope of protection for freedom of expression than the United States Constitution. People v. Pavone , 26 N.Y.3d 629, 639, 26 N.Y.S.3d 728, 47 N.E.3d 56 (2015) ; Children of Bedford v. Petromelis , 77 N.Y.2d 713, 731, 570 N.Y.S.2d 453, 573 N.E.2d 541 (1991) ; Immuno AG. v. Moor–Jankowski , 77 N.Y.2d 235, 249, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (1991) ;

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People ex rel. Arcara v. Cloud Books , 68 N.Y.2d 553, 557– 558, 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986). See Town of Islip v. Caviglia , 73 N.Y.2d 544, 556, 542 N.Y.S.2d 139, 540 N.E.2d 215 (1989).

The EMV regulations are silent regarding the particular content of the expressive matter they govern, consistent with the parties' stipulation; only incidentally affect particular expressive matter; and expressly authorize the sale of expressive matter at designated locations. People v. Barton , 8 N.Y.3d 70, 77, 828 N.Y.S.2d 260, 861 N.E.2d 75 (2006) ; Town of Islip v. Caviglia , 73 N.Y.2d at 557–58, 542 N.Y.S.2d 139, 540 N.E.2d 215. Content neutral regulations of free speech are constitutional if they serve a substantial governmental interest, allow alternative means of communication, City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) ; Town of Islip v. Caviglia , 73 N.Y.2d at 552, 542 N.Y.S.2d 139, 540 N.E.2d 215, and are narrowly tailored to serve that governmental interest. People v. Barton , 8 N.Y.3d at 76, 828 N.Y.S.2d 260, 861 N.E.2d 75 ; Rogers v. New York City Tr. Auth. , 89 N.Y.2d 692, 698, 657 N.Y.S.2d 871, 680 N.E.2d 142 (1997) ; Uhlfelder v. Weinshall , 47 A.D.3d 169, 178, 845 N.Y.S.2d 41 (1st Dep't 2007).

The Appellate Division, ruling on plaintiffs' motion for a preliminary injunction, already found that:

The City has a significant interest in preserving and promoting the scenic beauty of its parks, providing sufficient areas for recreational uses, and preventing congestion in park areas and on perimeter sidewalks.

Dua v. New York City Dept. of Parks & Recreation , 84 A.D.3d 596, 597, 924 N.Y.S.2d 47 (1st Dep't 2011). That finding, however, does not end the analysis here, as defendants, to obtain summary judgment in their favor and, depending on plaintiffs' evidence, to withstand summary judgment in plaintiffs' favor, must support a significant governmental interest with admissible evidence. See Anonymous v. City...