Dua v. N.Y.C. Dep't of Parks & Recreation
| Decision Date | 20 August 2019 |
| Docket Number | 110344/10 8291 |
| Parties | Diane I. Dua, et al., Plaintiffs-Respondents, v. New York City Department of Parks and Recreation, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Dianne T. Renwick,J.P.
Judith J. Gische
Barbara R. Kapnick
Ellen Gesmer
Peter H. Moulton,JJ.
Defendants appeal from the order and judgment (one paper) of the Supreme Court, New York County (Lucy Billings, J.), entered October 11, 2017, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment granted plaintiffs' cross motion for summary judgment, with respect to the fifth cause of action and issued an injunction against defendants, and granted plaintiffs' cross motion for leave to amend the complaint.
Zachary W. Carter, Corporation Counsel, New York (Julie Steiner and Claude S. Platton of counsel), for appellants.
Phillips Nizer LLP, New York (Elizabeth Adinolfi and Kevin B. McGrath of counsel), for respondents.
Plaintiffs, several visual artists, as well as an unincorporated association of which some of them are members, challenge the New York City Department of Parks and Recreation's (DPR) "Expressive Matter Vending Rules" (EMV Rules) set forth in 56 RCNY § 1-05(b)(2)-(8) as invalid because they are inconsistent with the declared intent of Administrative Code of City of New York § 20-473 as set forth in Local Law No. 33 (1982), violate plaintiffs' free speech and equal protection rights under the New York Constitution (NY Const, art I, §§ 8, 11) and have a discriminatory effect on some vendors in violation of the New York State and City Human Rights Laws (Executive Law § 296[2]; Administrative Code § 8-107[4], [9]). We conclude that the EMV Rules are valid and that defendant is entitled to summary judgment dismissing all of plaintiffs' claims.
In New York City, the General Vendors Law, enacted in 1977, requires that all general vendors acquire licenses before selling nonfood goods or services in public spaces, such as City streets, sidewalks and parks (Administrative Code § B32-491.0; Administrative Code § 20-452 et seq.). Certain exceptions to those rules have been adopted, including exceptions for artists and other expressive matter vendors (EMVs). Expressive matter is defined as "materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment" (56 RCNY § 1-02).1
Administrative Code § 20-473 provides that while EMVs are exempt from licensing requirements applicable to general vendors, "nothing herein shall be construed to deprive the commissioner of the department of parks and recreation [DPR] of the authority to regulate [EMVs] in a manner consistent with the purpose of the parks and the declared legislative intent of this subchapter." With regard to legislative intent, the City Council has declared:
(Local Laws, 1982, No. 33 of City of New York § 1).
Following the enactment of Local Law No. 33, DPR has, at times, promulgated rules, other than the forbidden licensing requirement, for the purpose of regulating EMVs selling their wares in City parks. In the 1990s, DPR promulgated 56 RCNY § 1-05(b), prohibiting vendors, including EMVs, from operating without a "permit" within the parks. That permitting scheme was struck down as inconsistent with the statement of legislative intent in Local Law No. 33, which provides that EMVs should be free from licensing requirements (see Lederman v Giuliani, US Dist Ct, SD NY, 98 Civ 2024, McKenna, J., 2001, affd 70 Fed Appx 39 [2d Cir 2003]).
As relevant here, in March 2010, DPR published proposed revisions to the rules applicable to EMVs. It held a public hearing, and based on comments at the hearing as well as written comments, revised the proposed rules. The new rules became effective on July 19, 2010. Under the revised EMV Rules, while EMVs may sell in almost all City parks if they comply with certain requirements,4 they are restricted in Union Square Park, Battery Park, High Line Park, and portions of Central Park below 86th Street, where they may only sell their items, on a first-come, first-serve basis, in certain designated areas, and only one vendor is allowed to sell at each spot. The EMVs may always sell in the nonenumerated areas, including other City parks and sidewalks. The designated spots are as follows:
The "accompanying maps" referenced in section 1-05(b)(3) detail the designated spots. For example, there are 68 spots for EMVs in the designated portions of Central Park (including 28 outside of the Metropolitan Museum of Art); nine spots for EMVs in Battery Park; 18 spots for EMVs in Union Square Park and five spots on the High Line. In addition, during the review process prior to adoption of the EMV Rules, and in response to submitted comments, the Parks Department added 40 spots in Union Square Park for EMVs, which are available on Sundays, Tuesdays and Thursdays, days that the longstanding Greenmarket is not operating there.
Soon after the EMV Rules were announced, artists who are EMVs in City parks, including some of the plaintiffs in this case, brought two actions in federal court seeking to enjoin enforcement of the rules on constitutional grounds. Because the cases were related, they were decided together under Lederman v New York City Dept. of Parks & Recreation (US Dist Ct, SD NY, 10 Civ 4800, Sullivan, J., 2010). In its memorandum and order, the federal court denied the plaintiffs' motions for a preliminary injunction, finding that the revisions "appear to be reasonable, content-neutral restrictions on time, place, and manner that are narrowly tailored to advance a significant government interest while leaving open ample alternative channels for the expressive activity" (id.). On August 4, 2010, plaintiffs commenced this declaratory judgment action, which alleges that the EMV Rules violate their free speech and equal protection rights under the New York Constitution; are inconsistent with the declared legislative intent underlying Administrative Code § 20-473; and that the spot designations have a discriminatory effect on those vendors for whom it is difficult, whether due to age, gender, or disability, to compete to secure a spot, in violation of the State and City Human Rights Laws. They also sought preliminary injunctive relief.
In a December 2010 order, Supreme Court denied plaintiffs' motion for a preliminary injunction, finding the EMV Rules "to be a reasonable content-neutral restriction on time, place and manner that are narrowly tailored to support a rational basis for the Legislative action" (Dua v New York City Dept. of Parks & Recreation, 2010 NY Slip Op 33666[U], *7-8 [Sup Ct, New York County 2010]). In May 2011, this Court affirmed that order, finding that the rules were content neutral, part of a comprehensive scheme governing time, place, and manner for all vendors, and that they addressed the City's 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, in response to valid concerns relating to the increase in the number of such vendors (84 AD3d 596 [1st Dept 2011]).
In February 2012, the City moved for summary judgment, arguing that, as found in the earlier preliminary injunction orders, the EMV Rules are valid time, place, and manner restrictions, and thus not constitutionally infirm; that the rules are not prohibited by Administrative Code § 20-473; and that they do not implicate the State or City Human Rights Laws. While that motion was pending, the City was granted summary judgment dismissing the complaint in the federal Lederman action, with the district court concluding that the EMV Rules are constitutional (901 F Supp 2d 464 [SD NY 2012]). That decision was affirmed by the Second Circuit (731 F3d 199 [2d Cir 2013], cert denied 571 US 1237 [2014]).
In July 2014, having received lengthy adjournments from the court, plaintiffs opposed defendants' summary judgment motion, and cross-moved for summary judgment on their claims and for leave to amend their complaint to add a separation of powers claim.
By order dated September 20, 2017 (59 Misc 3d 633 [Sup Ct, NY County 2017]), the...
To continue reading
Request your trial