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  • 8/7/2019 Tingling Denies Injunction



  • 8/7/2019 Tingling Denies Injunction


    SUPREME COURT OF TH E STATE OF NEW YORKIndex No.: 110344/2010OF NEW YOR% ~~~~~~% $I*:~~~~Diane I. Dua, Joel Kaye, Bryan Close, Tenzin Wangdu,Jack Diamond, Bay0 Iribhogbe, Robyn Wohl, George

    Moran and Artists United,Plaintiffs,

    vs .New York City Department of Parks and Recreation(as a Municipal agency); Adrien Benepe (in his O fficialCapacity as the Parks Commissioner); City ofNew York(as a municipality); and Honorable Michael Bloomberg(in his Official Capacity as the Mayor),

    Decision & Order

    The Plaintiffs move by order to show cause for a temporary restraining order andpreliminary injunction denying enforcement by the defendants of the provisions of theRevision of $8 1-02 and 1-05(b) of Title 56 of the O fficial Compilation of the Rules ofThe City of New York.

    The defendants cross-move to vacate the temporary restraining order issued by thisCourt on August 2 , 2 0 10.

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

    The issue presented to the Court is whether the Revised Rules of the New York CityParks Department (Parks D ept.), $ 5 1-02 (Definition) and 1-05 (b) (UnlawfulVending) of Title 56 of the Official Compilation of the Rules of the City of New York(LRevised Rules ) violate the plaintiffs rights under New York State law and New YorkCity ordinance and if plaintiffs are entitled to an injunction prohibiting their enforcement.

  • 8/7/2019 Tingling Denies Injunction


    As revised, Title 56 5 10 2 of the Rules of the City of New York defines expressivematter as materials or objects with expressive content such as newspapers, books, writings orvisual art such as paintings, prints, photography or sculpture.

    As revised, 0 1-05 (b ) in pertinent reads:

    1. No person in or on a ny property under the jurisdiction o f the Departmentshall sell, offer for sale; hire, lease o r let anything whatsoever, or provide or offer to provideservices or items in excha nge for a dona tion (hereinafter vend) except under an d withinthe terms of a permit or except as other wise provided by law. For the purposes of this entiresection, persons who vend as define d herein may be referred to as vendor or vendor^.'2. Persons may vend expressive matter, as defined in section 1-02 of this title, onproperty under jurisdic tion of the Departm ent without a permit; but mu st comply with allapplicable provisions of these rules. However, in the specific locations enumerated inparagraph (3 ) expressive matter vendors may only vend expressive matter a t the specificallydesignated spots identified by the C omm issioners in the accompanying maps and asmarked by a Departm ent decal, meda llion, or other forms of marking, o n the specificlocation of the approved vending s pot, unless they are only vending expressive m atter with-out using a cart, display stand or other d evice and without occupancy a sp ecific location forlonger than necessary to conduct a transaction and are otherwise in compliance withDepartment rules. These spo ts shall be alleviated upon a first come first serve basis exceptas otherwise provided by and any ex pressive m atter centered directly behind theDepartment decal, medallion, or other form of marking. Only one expressive matter vendoris authorized to vend d irectly behind the Department decal, medallion, or other form ofmarking and if multiple expressive m atter vendors attempt to vend expressive matter at anyone Department decal, medallion, or other form of marking and if it cannot be determinedwhich expressive matter vendor arrived first, then all such expressive matter vendors atsuch spot will be in violation o f this section and may be directed to leave the area o f thatDepartment decal, medallion, o r other ma rking immediately.

    medallion as form of marking im mediately upon direction as required under the precedingsentence will be in violation of these rules. Expressive matter vendors can only occupy thedesignated spots for the purpo se of vend ing expressive matter and only during postedtimes, which will be c onsistent with the hours of operation for the park where suchdesignated are located in or adjace nt to. The designated spots may deviate from therestrictions in subsection 5(I), (iv), (v), or (vi), if such spots are determined to beappropriate by the C omm issioners given the specific features of the park.

    Any such expressive matter ven dor failing to leave the area of the Department, decal,

    3. Expressive m atter vendo rs may not vend in the fo llowing general areas unlessthey vend at the specifically designated spo ts for such vending on the accom panying mapand in compliance with all other applicable Department rules.

  • 8/7/2019 Tingling Denies Injunction


    1. Central Park at the follow ing locations:(A) the perimeter of the park between East 85 Street and East 60 Street, including allsidewalks and plazas (B) the perimeter of the park between West 8gthStreet and We st 60*Street, including all sidewalks and plazas Q al l of Central Park South, including allsidewalks and plazas (D) Wien Walk and W allach Walk, (E) pedestrian pathway s parallelto East Drive between Grand Army Plaza and the Center Drive, (F) Grand Army Plaza,(G) Pulitzer Plaza an d (H ) Columbus Circle...11 .iii,iv.

    Battery Park, including all perimeter sidewa lksUnion S quare Park, including all perimeter sidewalksElevated portions of High Line ParkTranslated, it means under the Revised R ules, there are 100 designated spots amongthe fou r Restricted Parks on a daily basis.There are 68 designated spots in C entral Park [includ ing the Metropolitan Museum

    of Art (The Met), Grand Army Plaza, Central Park South, Columbus Circle and CentralPark West]; 18 designated spots for Union Square Park; 9 for Battery Park; and 5 for theHigh Line. Eighty-two (82) of the designated spots are located in plazas, or sidewalks adjacen tto the Restricted Parks. Designated Spots may no t be shared. The occupying expressive mattervendors of such designated spots are determined on a firstcome first served basis.

    A request fo r a preliminary injunction subjects itself to a three prong test; (1) a likelihood ofsuccess on the m erits; (2) the prospect of irreparable injury; and (3) a balance ofequities weighing in the movants favor. Doe v Axelrod 73NY2d748.

    This decision must note the fact that Contemporaneous with the filing of thiscomplaint the several plaintiffs herein pursued preliminary injunctive relief to stopenforcement of the Revised Rules in Federal Court. Dua et a1 v New York City Departmentof Parks and Recreation, et al,, Docket No. 10, 5185 (US). On July 16 ,20 10, the FederalCourt denied plaintiffs motion to en join the Rev ised Rules from taking effect on July 19,2010,by Memorandum and Order of United S tates District Judge Richard J. Sullivan. The Courtnotes that the Federal proceeding was brought solely on alleged infringements of theConstitution of the United States. This proceeding is brought pursuant to an allegedinfringement of rights under A rticle I, 0 8 of the Constitution of the State of New York.

  • 8/7/2019 Tingling Denies Injunction


    Plaintiffs argue that rights afforded to parties thereunder are stronger than those engagedunder the Federal Constitution. The courts of this State have emphasized that the FederalConstitution 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 commonlaw and State Constitutional law . , , the Federal Constitution only guaranteesminimum protections, leaving to the States the task of affording additional or greater rightsunder 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 aremore diverse, and thus where independ ent State constitutional rights serve their intendedpurposes, than in the area dealing with freedom of expression. Miller v California;413 U. S. 15; Matter of Beach v Shanlev, 62 NY2d, 24 1,2 55.

    The defendants oppose the m otion for a preliminary injunction and cross move tovacate the temporary restraining orde r on several grounds. They argue the plaintiffsare not entitled to any greater protection in this instance than they are under the FederalConstitution and for the reasons articulated in the federal case the motion for a preliminaryinjunction should likewise fail.

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

    It is uncontes ted that fo r City parks, vending is generally prohibited without a permit.56 RCNY 5 1-05(b). [City parks als o include the side walks that adjoin parkland, CityCharter 4 533(a) (5).] Artists and other expressive matter vendors have been and continue

  • 8/7/2019 Tingling Denies Injunction


    to be exempt from this prohibition. Ne w York City Administrative Code 5 20-473.They are subject to restrictions g overning size and placement of vending tables. NYC Adm. Code$8 20-465 (A-F) (K-Q) and 6 473.

    Plaintiffs also allege the R evised Rules violate the equal protection clause under Article 15 11 of the New York State Constitution. Contrary to Plaintiffs assertion that the Revised Rulesdivide expressive vendors into tw o classes (those who obtain Designated spots and those who dont)this Court finds that

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