Lederman v. N.Y.C. Dep't of Parks & Recreation, 150242/2018
| Decision Date | 20 September 2018 |
| Docket Number | 150242/2018 |
| Citation | 61 Misc.3d 1202 (A),110 N.Y.S.3d 792 (Table) |
| Parties | Robert LEDERMAN, Plaintiff, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a municipal agency), Mitchell J. Silver (in his official capacity as the Parks Commissioner), City of New York (as a municipality), and William De Blasio (in his official capacity as the Mayor), Defendants. |
| Court | New York Supreme Court |
Robert Lederman, Pro Se, Zachary Carter, Corporation Counsel, By Elizabeth Jun Kim, New York City Law Department, 100 Church St., New York, NY 10007
Carmen Victoria St. George, J.
Plaintiff Robert Lederman brings this action for declaratory, injunctive, and monetary relief against defendants New York City Department of Parks and Recreation (Parks), Parks Commissioner Mitchell J. Silver, the City of New York (the City), and New York City Mayor William De Blasio. Currently before the Court is defendants' collective pre-answer motion to dismiss the complaint on the grounds of res judicata and collateral estoppel. For the purposes of this decision, the Court accepts the allegations in the complaint as true, giving it a liberal construction and according to plaintiff every possible favorable inference ( Samuelson v. New York City Trans. Auth. , 101 AD3d 537, 540 [1st Dept 2012] ).
In June 2010, defendant the City, through defendant Parks, revised the rules governing the operation of vendors who sell their goods in City parks (the 2010 revisions). The revised rules were amended in 2013. Pursuant to the revised rules and the amendments, "expressive matter" is defined as "material or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment" (Rules of City of NY Dept of Parks and Recreation [56 RCNY] § 1-02). Under 56 RCNY § 1-05 (b) (1), vendors can sell their goods or services, including expressive material such as visual art, without a permit. Nevertheless, under Section 2 of 56 RCNY § 1-05, 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 in the accompanying maps and as marked by a Department decal, medallion, or other form 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 occupying a specific location for longer than necessary to conduct a transaction (56 RCNY § 1-05 [b] [2] ).
Subsection (b) (2) goes on to state that expressive matter vendors (EMVs) may take these spots "on a first, come, first served basis" and that vendors must center their display stands "directly behind" the identifying markings (id. ). Furthermore, only one EMV is permitted at each spot; if there are multiple vendors at any spot and Parks cannot determine which one arrived first, all the vendors at the spot shall be instructed to leave the site at once (id. ).
Section 3 of the Rule sets forth the parks which the provision regulates. They include certain areas of Central Park, all of Battery Park and Union Square Park, including their perimeter sidewalks, and the elevated section of High Line Park. Sections 4 and 5 include further regulations. Among other things, these sections regulate the placement of the display stands so as to prevent the stands from blocking or limiting access to the street or Park furniture, or from damaging Park property or impinging on a carriage, pedicab, taxi stand, pedestrian pathway. The remaining provisions are not pertinent to the motion, except as may be addressed below.
The stated purpose of the rule is to give EMVs "reasonable opportunities" to display and sell their materials on Park property while simultaneously addressing the concerns of park visitors, vendors, and others. According to the statement of purpose, in 2001 the Park ended its lottery system, which regulated the number of Park vendors, and since then there has been a "dramatic increase" in vendors at Union Square Park, Battery Park, and Central Park — which, in turn, has altered Park conditions. The rule includes High Line Park as well, because it is "the park most likely to also be significantly affected by expressive matter vendors due to its unique use and character" (56 RCNY [Statement of Basis and Purpose] ). It allows 68 EMVs in Central Park, 9 vendors in Battery Park, 5 vendors in High Line Park, 18 daily vendors, as well as 40 additional vendors on Tuesday, Thursday, and Sunday in Union Square Park.
Plaintiff is a visual artist, and, on alternate days, he sells his art in the parks that are regulated by 56 RCNY § 1-05. The money he receives as a vendor comprises his sole source of income. He describes himself as "a longtime advocate for artists" (Complaint, ¶ 20) and notes that he was the first artist to vend on the High Line. In addition, he points out that as an EMV, he is protected under the New York State Constitution and the Administrative Code.
Along with Jack Nesbitt, another visual artist, plaintiff challenged the 2010 revisions in federal court (Lederman v. New York City Parks & Recreation [Lederman and Nesbitt], SDNY, Sullivan, J., Index No 10 Civ. 4800 [RJS] ). The 2010 complaint asserted that the revisions to RCNY §§ 1-02 and 1-05 (b) violated federal law as well as Article I, §§ 8 and 11, of the New York State Constitution (Complaint, ¶ 1). It alleged that the asserted justification for the rule — that Parks had to ensure public safety by easing congestion — was pretextual and, in fact, the revision merely retaliated against the plaintiffs because they were vending in the parks. The complaint stated that the revisions violated the plaintiffs' right to free speech and expression, denied them equal protection, violated New York law, and violated several federal civil rights statutes. The plaintiffs sought declaratory judgment, monetary damages, and attorney's fees.
On September 30, 2012, the district court granted the defendants' motion for summary judgment and dismissed the case (Lederman , 901 F Supp 2d 464901 [SDNY 2012], aff'd , 731 F3d 199 [2d Cir 2013], cert denied , 561 US 1237 [2014] ). The district court noted that artists did not need a license to vend outside of the parks, and that due to Parks' attempts to regulate the vending of expressive matter within the parks, "the City and various expressive matter vendors have waged an ongoing battle with regard to the City's regulation of where and how those vendors may sell their wares" (id. at 467). The district court evaluated this litigious history, related court rulings, and the purpose and impact of the challenged regulations.
As is relevant here, the district court stated that although expressive matter is entitled to First Amendment protection, "the City may, within constitutional limits, regulate the time, place, and manner of activities in public parks" (id. at 472). The court stated that the City's goal of reducing congestion in the parks was significant (id. at 476), and that there was "significant evidence in the record that the influx of tangible art vendors — and tangible art vendors alone — was the driving impetus for the [r]evisions" (id. at 480). The court noted that the revisions were in conformance with guidelines set forth in Bery v. City of New York (97 F3d 689 [2d Cir 1996], cert denied , 520 US 1251 [1997] ). Moreover, the court determined that the regulations were content neutral, and therefore the court evaluated them subject to an intermediate level of scrutiny (see Lederman , 901 F Supp 2d at 475 ). The court rejected the plaintiffs' contention that EMVs were unduly restricted, noting that, in addition to the designated spots in the parks subject to the revised regulations, EMVs may sell their wares "in any of the hundreds of other parks in the City" as well as on public sidewalks throughout New York City ( id. at 479-80 ). The court rejected the plaintiffs' position that the City's asserted justification for the revised regulations was pretextual, as they clarified their scope after the Skyline decision.
Although the amendments to the revised regulations were not yet in effect, the district court considered the proposed amendments and plaintiffs' challenges to them (see id. at 471 ). Parks indicated that it had discontinued the enforcement of the revised regulations against performers in 2012. This allegedly was in response to the First Department's decision in Matter of New York Skyline, Inc. v. City of New York (94 AD3d 23 [1st Dept] [Skyline], lv denied , 19 NY3d 809 [2012] ), which concluded that because Administrative Code 20-453, which regulated vendors, did not expressly refer to "entertainers," that provision did not apply to them. Accordingly, Parks stated, it suspended the enforcement of the revised regulations against entertainers. It amended the revised regulations to clarify that they applied to entertainers and other performers who use display tables. As the regulations only restrict vendors who use display tables, Parks stated, most entertainers and performers would not be impacted. (see Lederman and Nesbitt , 901 F Supp 2d at 471 ).
In addition, the district court considered and rejected plaintiffs' arguments that few pathways in Central Park have a clearance of fifteen-feet or more and that there were no bona fide spots from which they could vend legally under the restrictions ( id. at 478-79 ). The district court stated that plaintiff did not support this statement ( id. at 479 ). Moreover, the court found plaintiffs' assertion that "the [r]evisions extend the required clearance to fifteen feet — three more than under the general vending restrictions" had no merit ( id. at 478 n 9 ).
Plaintiffs appealed the trial court's decision. On August 23, 2013 the United States Court of Appeals for the Second Circuit affirmed the trial court's order in Lederman and Nesbitt (731 F3d 199 ...
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