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

• Decision Date: 08 December 2010
• Docket Number: Docket Number: 110344/2010
• Citation: 2010 NY Slip Op 33666
• 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

2010 NY Slip Op 33666

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.

Docket Number: 110344/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

December 8, 2010

Decision & Order

Judge: Milton A. Tingling

The Plaintiffs move by order to show cause for a temporary restraining order and preliminary injunction denying enforcement by the defendants of the provisions of the Revision of §§ 1-02 and 1-05(b) of Title 56 of the Official Compilation of the Rules of The City of New York.

The defendants cross-move to vacate the temporary restraining order issued by this Court on August 2, 2010.

The temporary restraining order was granted by the Honorable Martin Schoenfeld and continued by this Court pending hearing and decision.

The issue presented to the Court is whether the Revised Rules of the New York City Parks Department ("Parks Dept."), §§1-02 ("Definition") and 1-05 (b) ("Unlawful Vending") of Title 56 of the Official Compilation of the Rules of the City of New York ("Revised Rules") violate the plaintiffs' rights under New York State law and New York City ordinance and if plaintiffs are entitled to an injunction prohibiting their enforcement.

As revised, Title 56 § 102 of the Rules of the City of New York defines "expressive matter" as materials or objects with expressive content such as newspapers, books, writings or visual art such as paintings, prints, photography or sculpture.

As revised, § 1-05 (b) in pertinent reads:

"1. No person in or on any property under the jurisdiction of the Department shall sell, offer for sale; hire, lease or let anything whatsoever, or provide or offer to provide services or items in exchange for a donation (hereinafter "vend") except under and within the terms of a permit or except as otherwise provided by law. For the purposes of this entire section, persons who vend as defined herein may be referred to as "vendor" or "vendors."

2. Persons may vend expressive matter, as defined in section 1-02 of this title, on property under jurisdiction of the Department without a permit; but must comply with all applicable provisions of these rules. However, in the specific locations enumerated in paragraph (3) expressive matter vendors may only vend expressive matter at the specifically designated spots identified by the Commissioner's in the accompanying maps and as marked by a Department decal, medallion, or other forms of marking, on the specific location of the approved vending spot, unless they are only vending expressive matter without using a cart, display stand or other device and without occupancy a specific location for longer than necessary to conduct a transaction and are otherwise in compliance with Department rules. These spots shall be alleviated upon a first come first serve basis except as otherwise provided by and any expressive matter centered directly behind the Department decal, medallion, or other form of marking. Only one expressive matter vendor is authorized to vend directly behind the Department decal, medallion, or other form of marking and if multiple expressive matter vendors attempt to vend expressive matter at any one Department decal, medallion, or other form of marking and if it cannot be determined which expressive matter vendor arrived first, then all such expressive matter vendors at such spot will be in violation of this section and may be directed to leave the area of that Department decal, medallion, or other marking immediately.

Any such expressive matter vendor failing to leave the area of the Department, decal, medallion as form of marking immediately upon direction as required under the preceding sentence will be in violation of these rules. Expressive matter vendors can only occupy the designated spots for the purpose of vending expressive matter and only during posted times, which will be consistent with the hours of operation for the park where such designated are located in or adjacent to. The designated spots may deviate from the restrictions in subsection 5(1), (iv), (v), Or (vi), if such spots are determined to be appropriate by the Commissioner's given the specific features of the park.

3. Expressive matter vendors may not vend in the following general areas unless they vend at the specifically designated spots for such vending on the accompanying map and in compliance with all other applicable Department rules.i. Central Park at the following locations:

(A) the perimeter of the park between East 85th Street and East 60th Street, including all sidewalks and plazas (B) the perimeter of the park between West 86th Street and West 60th Street, including all sidewalks and plazas © all of Central Park South, including all sidewalks and plazas (D) Wien Walk and Wallach Walk, (E) pedestrian pathways parallel to East Drive between Grand Army Plaza and the Center Drive, (F) Grand Army Plaza, (G) Pulitzer Plaza and (H) Columbus Circle.

ii. Battery Park, including all perimeter sidewalks

iii. Union Square Park, including all perimeter sidewalks

iv. Elevated portions of High Line Park

Translated, it means under the Revised Rules, there are 100 designated spots among the four Restricted Parks on a daily basis.

There are 68 designated spots in Central Park [including the Metropolitan Museum of Art ("The Met"), Grand Army Plaza, Central Park South, Columbus Circle and Central Park West]; 18 designated spots for Union Square Park; 9 for Battery Park; and 5 for the High Line. Eighty-two (82) of the designated spots are located in plazas, or sidewalks adjacent to the Restricted Parks. Designated Spots may not be shared. The occupying expressive matter vendors of such designated spots are determined on a first come first served basis."

A request for a preliminary injunction subjects itself to a three prong test; (1) a likelihood of success on the merits; (2) the prospect of irreparable injury; and (3) a balance of equities weighing in the movant's favor. Doe v Axelrod 73NY2d748.

This decision must note the fact that contemporaneous with the filing of this complaint the several plaintiffs herein pursued preliminary injunctive relief to stop enforcement of the Revised Rules in Federal Court. Dua et al v New York City Department of Parks and Recreation, et al., Docket No. 10, 5185 (RJS). On July 16, 2010, the Federal Court denied plaintiffs' motion to enjoin the Revised Rules from taking effect on July 19, 2010, by Memorandum and Order of United States District Judge Richard J. Sullivan. The Court notes that the Federal proceeding was brought solely on alleged infringements of the Constitution of the United States. This proceeding is brought pursuant to an alleged infringement of rights under Article I, § 8 of the Constitution of the State of New York.

Plaintiffs argue that rights afforded to parties thereunder are stronger than those engaged under the Federal Constitution. "The courts of this State have emphasized that the Federal Constitution fixes only minimum standards and that "matters of free expression in books, movies and the arts are particularly suited to resolution as a matter of State common law and State Constitutional law" "... the Federal Constitution only guarantees minimum protections, leaving to the States the task of affording additional or greater rights under their Constitutions tailored to the special needs and traditions of the various States. People v Adams 53NY2d241; 250. "There is probably no area in which State attitudes are more diverse, and thus where independent State constitutional rights serve their intended purposes, than in the area dealing with freedom of expression. Miller v California; 413 U. S. 15; Matter of Beach v Shanlev. 62 NY2d, 241, 255.

The defendants oppose the motion for a preliminary injunction and cross move to vacate the temporary restraining order on several grounds. They argue the plaintiffs are not entitled to any greater protection in this instance than they are under the Federal Constitution and for the reasons articulated in the federal case the motion for a preliminary injunction should likewise fail.

Plaintiffs also raise additional claims which are (1) the first come first serve method of allocation of space is unconstitutionally vague; (2) the designated vending spots are licenses, permits or other prior authorizations prohibited by New York City Administrative Code Section 20-473; and (3) the Revised Rules violate State and City Human Rights Laws.

It is uncontested that for City parks, vending is generally prohibited without a permit. 56 RCNY § 1-05(b). [City parks also include the side walks that adjoin parkland. City Charter § 533(a) (5).] Artists and other expressive matter vendors have been and continueto be exempt from this prohibition. New York City Administrative Code § 20-473. They are subject to restrictions governing size and placement of vending tables. NYC Adm. Code §§ 20-465 (A-F) (K-Q) and § 473.

Plaintiffs also allege the Revised Rules violate the equal protection clause under Article 1 § 11 of the New York State Constitution. Contrary to Plaintiffs' assertion that the Revised Rules divide expressive vendors into two classes (those who obtain Designated spots and those who don't) this Court finds that the Revised Rules do not divide expressive matters vendors into two classes because ALL expressive matter vendors are similarly situated and treated alike under the Revised Rules. When no suspect classification is found then no critical examination of state interest must be had. Zablarki v.. Redhall. 434 U.S. 374. 383 (1978).

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