Dua v. N.Y. City Dep't of Parks

• Citation: 84 A.D.3d 596,924 N.Y.S.2d 47,2011 N.Y. Slip Op. 04112
• Parties: Diane I. DUA, et al., Plaintiffs–Appellants,v.NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, etc., et al., Defendants–Respondents.
• Decision Date: 17 May 2011
• Court: New York Supreme Court Appellate Division

84 A.D.3d 596
924 N.Y.S.2d 47
2011 N.Y. Slip Op. 04112

Diane I. DUA, et al., Plaintiffs–Appellants,
v.
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, etc., et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

May 17, 2011.

[924 N.Y.S.2d 48]

Phillips Nizer LLP, New York (Jon Schuyler Brooks of counsel), for appellants.Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.TOM, J.P., SAXE, CATTERSON, MOSKOWITZ, MANZANET–DANIELS, JJ.

[84 A.D.3d 597] Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 15, 2010, which denied plaintiffs' motion for a temporary restraining order and preliminary injunction, and granted defendants' motion to vacate the existing temporary restraining order, unanimously affirmed, without costs.

Plaintiffs, artists and vendors of expressive matter—defined as “materials or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, or sculpture” (56 RCNY 1–02; 56 RCNY 1–05[b][2]; Administrative Code § 20–473)—seek to enjoin the enforcement of revised regulations (the Revised Rules) promulgated by the New York City Department of Parks and Recreation. The Revised Rules would limit such vending to 100 specifically designated sites or “spots” in Union Square Park, Battery Park, High Line Park and portions of Central Park. These sites would be allocated on a first come, first served basis with only one vendor allowed at each site ( see 56 RCNY 1–05[b][2] ).

Plaintiffs failed to demonstrate “a likelihood of ultimate success on the merits” of their challenge to the subject regulations, since they failed to show that the regulations violated their rights under the New York State Constitution ( see Central Hudson Gas & Elec. Corp. v. Public Serv. Commn. of N.Y., 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 [1980]; see also Matter of Von Wiegen, 63 N.Y.2d 163, 170, 481 N.Y.S.2d 40, 470 N.E.2d 838 [1984] ). The Revised Rules, although addressed to

[924 N.Y.S.2d 49]

expressive matter vendors, are part of a comprehensive scheme which governs time, place, and manner rules for all vendors under the Parks Department's jurisdiction. We find that the Revised Rules are content neutral ( see Bery v. City of New York, 97 F.3d 689, 697 [2d Cir.1996], cert. denied 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 [1997] ). The City has a significant interest in preserving and promoting the scenic beauty of its parks,...