Otr Media Group Inc. v. the City of N.Y.

• Decision Date: 07 April 2011
• Parties: OTR MEDIA GROUP, INC., Plaintiff–Appellant,v.The CITY OF NEW YORK, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 451

920 N.Y.S.2d 337

2011 N.Y. Slip Op. 02803

OTR MEDIA GROUP, INC., Plaintiff–Appellant,

v.The CITY OF NEW YORK, et al., Defendants–Respondents.

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

April 7, 2011.

Goetz Fitzpatrick LLP, New York (Ronald D. Coleman of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondents.TOM, J.P., SAXE, DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 22, 2010, which granted defendants' motions for summary judgment dismissing the amended complaint, and denied plaintiff's motion for a preliminary injunction, unanimously affirmed, with costs.

The motion court correctly held that the subject advertising regulations that restrict outdoor advertising situated within view of arterial highways and public parks and impose substantial penalties for violations do not violate plaintiff's right to free speech under the New York State Constitution ( see N.Y. Const., art. I, § 8). Contrary to plaintiff's contention, the New York State Constitution does not afford heightened free speech protections to commercial speech. Rather, our courts apply the four-part test articulated by the United States Supreme Court in Central Hudson Gas & Elec. Corp. v. Public Serv. Commn., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 [1980] to restrictions on commercial speech ( see Matter of von Wiegen, 63 N.Y.2d 163, 172–173, 481 N.Y.S.2d 40, 470 N.E.2d 838 [1984], cert. denied sub nom. Committee on Professional Stds. v. Von Wiegen, 472 U.S. 1007, 105 S.Ct. 2701, 86 L.Ed.2d 717 [1985]; Willow Media, LLC v. City of New York, 78 A.D.3d 596, 596, 910 N.Y.S.2d 903 [2010] ). Applying the Central Hudson test, we hold that the subject regulations are constitutional because they directly advance the stated governmental interests of promoting traffic safety and preserving aesthetics, and are narrowly tailored to achieve those interests.

We further hold that the subject regulations and penalty schedule do not violate plaintiff's right to equal protection ( see N.Y. Const., art. I, § 11). The record is bereft of evidence that the City selectively enforces the regulations and penalty schedule against plaintiff and other similarly-situated outdoor advertising companies (OACs), but refrains from enforcing them against governmental and quasi-governmental entities such as the Metropolitan Transportation Authority, the Port Authority, and Amtrak. While the City concedes that it formerly exempted these entities from enforcement, it did so based on a mistaken belief that it did not have the legal authority to enforce the regulations and penalty schedule against them. The City's assertion that it fully intends to enforce the regulation is entitled to deference ( see Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94, 111 [2d Cir.2010], cert. denied sub nom. Metro Fuel LLC v. City of New York, N.Y., ––– U.S. ––––, 131 S.Ct. 414, 178 L.Ed.2d 323 [2010] ). In any event, plaintiff is not similarly situated to any of these entities for purposes of equal protection analysis ( see Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 632, 781 N.Y.S.2d 240, 814 N.E.2d 410 [2004] ). Moreover, as noted above, the City has substantial interests in promoting traffic safety and preserving aesthetics, and the subject regulations are finely tailored to serve those interests ( see generally General Media Communications, Inc. v. Cohen, 131 F.3d 273, 285 [2d Cir.1997], cert. denied 524 U.S. 951, 118 S.Ct. 2367, 141 L.Ed.2d 736 [1998], and Under 21, Catholic Home Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344, 360 n. 6, 492 N.Y.S.2d 522, 482 N.E.2d 1 [1985] ).

We also find no merit to plaintiff's contention that the penalty schedule set forth in Administrative Code of the City of New York § 28–502.6 is discriminatory because it subjects OACs and non-OACs to different fines for the same conduct. Equal treatment of the two categories of business is not required because OACs and non-OACs are not similarly situated. Indeed, in contrast to OACs, non-OACs do not engage in, or hold themselves out as engaging in, the outdoor advertising business ( see Administrative Code § 28–502.1). Furthermore, because the penalty schedule differentiates based on the type of entity that violates the regulations, rather than on the content of the advertisements, rational basis review, as opposed to strict scrutiny, applies ( see Willow, 78 A.D.3d at 596, 910 N.Y.S.2d 903). Here, it cannot be said that the disparate treatment is “so unrelated to the achievement of any combination of legitimate purposes” as to be irrational ( Affronti v. Crosson, 95 N.Y.2d 713, 719...