Dua State Court Case

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SUPREME COURT OF THE CITY OF NEW YORKCOUNTY OF NEW YORK

DIANE I. DUA, JOEL KAYE, BRYAN CLOSE,TENZIN WANGDU , JACK DIAMOND, B A Y 0IRIBHOGBE, ROBYN WOHL, GEORGE : IndexNo.

MORAN and ARTISTS UNITED,

X___r________ll_llll_1--11----------------------------------------

:

Plaintiff,: Date Purchased:

V.

: Th e basis of venue isCPLR 504(3)

SUMMONS

NEW YORK CITY DEPARTMENT OF PARKSAND RECREATION (as a Municipal agency);ADRIEN BENEPE (in his Official Capacity as theParks Com missioner); CITY OF NEW YORK (as a :

municipality); and HONOR ABLE MICHA ELBLOO MBERG (in his Official Capacity as the :May0 0

Defendants.

To the above named Defendants:

Y O U ARE HEREBY SUMMONED to answer the com plaint in this action and to se rvof your answer, or, if the complaint is not served with this summ ons, to serve a notice ofappearance, on the p laintiff attorneys within 20 days after the service of this summons, exclusof the day of service (or within 30 days after the service is complete if this summons is not

personally delivered to you within the State of New York); and in case of your failure to appearor answer, judgm ent will be taken against you by default for the relief demanded in thecomplaint. Plaintiff designates New York County as the place of trial. The basis of venue is

CPLR 504(3).

Dated: New York, New YorkAugust 4 ,2 0 10

Jon S. Brooks

Kevin McGrath

66 6 Fifth AvenueNew Y ork, New Y ork 10103

Attorneys for Pluintgs

(2 12) 977-9700

1120385.1



To:Ne w York City Department of Parks and RecreationThe A rsenal, Central Park, 830 Fifth Avenue, New Y ork, N.Y. 10021

Adrien Benepe (in his official capacity as the Parks Com missioner)The A rsenal, Central Park, 83 0 Fifth Avenue, New York, N.Y. 10021

City of New York100 Church Street, Ne w Y ork, N.Y. 10007

Honorable Michael Bloomberg (in his official capacity as Mayor)100 Church Street, Ne w Y ork, N.Y. 10007

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1120385.1



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SUPREME COURT OF THE STAT^ OFN EW YORK

COUNTY OF NEW YORK

Index No.IANE I. DUA, JOEL KAY E, BRYAN CLOSE, TENZINWANGDU, JACK DIAMOND, BA Y0 IRIBHOGBE, ROBYNWOHL, GEORGE MORAN and ARTISTS UNITED,

Plaintiffs,

V .

NE W YORK CITY DEPARTMENT OF PARKS AND

RECREATION (as a Municipal agency); ADM EN BENEPE (in hisOfficial Capacity as the Parks Commissioner); CITY OF NEW YORK(as a municipality); an d MICHAEL BLOOMBERG (in his OficialCapacity as the Mayor),

Defendants.

SUMMONS

PHIL LIPS NTZER LLPAttorneysfor Plaintcfs

666 FIFTH AVENUENEW Y O N , N.Y. 10103-0084

(2 12)977-9700

Signed and certified pursuant to 22 NYCRR $130-1.l-a

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK

DIANE I. DUA, JOEL KAYE, BRYAN C LOSE, TENZIN :WANGDU, JACK DIAMOND, BA Y 0 IRIBHOGBE,ROBYN WOHL, GEORGE M ORAN and ARTISTS

X_ l r r r r r _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

UNITED,

Plaintiffs,

V.

-.

COMPLAINT

NEW YORK CITY DEPARTMENT OF PARKSAND RECREATION (as a Municipal agency);ADR IEN BENEPE (in his Official Capacity as the Parks

Comm issioner); CITY OF NEW Y ORK (as a

municipality); and MICHA EL BLOO MB ERG (in his

Official Capacity as the Mayor),

Defendants.X______________“______l___r_r___________-----~~~-----------------------

Plaintiffs, Diane I. Dua, Joel Kaye, Bryan Close, Tenzin Wangdu,

Iribhogbe, Robyn W ohl, George Moran and A rtists United, by their attorneys, Ph ia p s Nizer

LLP , as and for their Com plaint, allege as follows:

STATEMENT OF THE C A S E

1, On June 18,2010 , Defendant City of N ew York (“New York City” or “City”),

through Defendant New York City Department of Parks and Recreation (“Parks D epartment”),

adopted Revised R ules to sections 1-02 and 1-05(b) of Title 56 of the Official Compilation of the

Rules of the City of New York (the “Revised Rules”). The Revised Rules became effective on

July 19,2 010 . A true and correct copy of the Revised Rules is attached hereto as Exhibit A.

2. As adopted, the Revised Rules severely restrict the number and location of

vendors who display and offer for sale “expressive matter” in four specified City parks and their

“perimeters” (i.e., adjacent sidewalks): Central Park, including in front of the Fifth Avenue

facades of the M etropolitan Museum of Art (the “Met”); Union Square Park; Battery Park; and

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the High L ine Park (collectively, the “Restricted Parks”). The Rev ised Rules define “expressive

matter” to include visual art. 56 RCNY 6 1-02.

3. Plaintiffs- everal individual artists who for years regularly have sh own and sold

their visual art at Union Square Park, at the so utheast end of Central Park and ou tside the Met, as

well as an u nincorporated association of which som e of them are members - eek to enforce their

constitutional rights under Article I, §$ 8 and 11 , of the Co nstitution of the State of New York

(the “Con stitution”), and to enforce their statutory rights under T itle 20, Chapter 2, S ubchapter

27, of the Administrative Code of the City of New York (the “Ad ministrative Code”), Title 1,

Chapter 8, 6 8-107 of the Ad ministrative Code and S ection 296 of the New York State Executive

Law,

4. Plaintiffs seek injunctive relief (tem porary, preliminary and permane nt)

preventing Defenda nts from enforcing the Revised R ules, and a declaratory udgment that (1) the

Revised Rules are unconstitutional, on their face an d o r as applied, under the C onstitution, and

(2) are an imperm issible restriction on v ending of expressive matter and violate, on their face

a n d o r as applied, the declared legislative intent and the relevant provisions of the Ad ministrative

Code , and (3 ) have resu lted in unlawful discrimination against women, the elderly, and the

physically infirm, in v iolation of the New York City and StateHuman Rights laws. In the event

temporary a n d o r preliminary injunctive relief is not granted, and De fendants are not prevented

from en forcing the Revised R ules, Plaintiffs also seek money damages.

THEPARTIES

5 . Plaintiff Diane I. Dua is an artist who creates expressive photographs and resides

in the City of New York, and who shows and sells her expressive art outside of the Met.

6. Plaintiff Joel Kaye is an artist who creates expressive photograph s and resides in

the City of New York, and who sh ows and sells his expressive art in Union Square Park.

21119577.6



7. Plaintiff Bryan C lose is an artist who creates expressive art and who resides in the

City of New York, and who shows and sells his expressive art in Union S quare Park.

8. Plaintiff Tenzin Wangdu is an artist who creates expressive photographs and who

resides in the City of N ew York, and who show s and sells his expressive art at the southeast

section of the perimeter of Central Park known as Grand Army P laza..

9, Plaintiff Jack Diamond is an artist who creates expressive paintings and who

resides in the C ity of New York, and who shows and sells his expressive art in Union Square

Park.

10. Plaintiff Bay0 Iribhogbe is an artist who creates expressive paintings, and who

resides in the City of New York, and who shows and sells his expressive art outside the Met.

11. Plaintiff Robyn Wohl is an artist who creates expressive prints, and who resides in

the City of New York, and who shows and sells her expressive art outside the Met.

12. Plaintiff George Moran is an artist who creates expressive matter drawings, and

who resided in the City of New Y ork, and who shows and sells his expressive art outside the

Met.

13 . Plaintiff Artists United is an unincorporated associated, made up of members who

include some of the individual plaintiffs in this lawsuit.

14. Defendant Parks Department is an agency of the C ity maintaining an address at

The Arsenal, Central Park, 83 0 Fifth Avenue, New York, New York 10021.

15. Defendant Adrian Benepe (“Benepe”) is being sued in his official capacity as the

Comm issioner of the Parks D epartment.

16 .

State of New York,

Defendant City is a municipal corporation duly incorporated under the laws of the

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17. Defendant Michael Bloomberg (the “Mayor”) is being sued in his official

capacity as the Mayor of the City of New York.

FACTUALACKGROUND

18. The Plaintiffs, other than A rtists United, are visual artists who show and offer for

sale their respective expressive matter in one o r more of the Restricted Parks.

19. Expressive matter vendors are entitled to protection under Article I, §§ 8 and 11

of the Constitution.

20 . Expressive m atter vendors are also entitled to protection under Title 20 , Chapter

2, Subchapter 27 , 0 47 3 of the Adm inistrative C ode.

21. As adopted, the Revised Rules severely restrict the number and location of

vendors of expressive matter in the Restricted Parks.

22. In pertinent part, the Revised Rules provide:

[Elxpressive matter vendors may only vend expressive matterat the

specifically designated spots identifed by the Commissioner in the

accompanying maps and as marked by a D epartment decal, medallion, orother 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 forlonger than necessary to conduct a transaction and are otherwise incompliance with D epartment rules. These spots shall be allocated upon a

first come,_firstserve basis except as otherwise provided by law and anyexpressive matter vendor may only vend expressive matter centereddirectly behind the Department decal, medallion, or other form ofmarking. Only one expressive matter vendorisauthorized to vend

directly behind the Department decal, medallion, or other ormof

marking as indicated by the Department deca l, medallion, or other form of

marking and if multiple expressive matter vendors attem pt to vendexpressive matter at anyone Department decal, medallion, or other form of

marking and ifit cannot be otherwise determined which expressive

matter vendor arrivedfirst, 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 orm of marking

immediately.Any such expressive matter vendor failing to leave the areaof the Department decal, medallion, or other form of marking im mediately

411 19577.6



upon d irection as required under the preceding sentence will be inviolation of these rules.

56 RCNY 0 1-05(b)(2) (emphases added).

23. By limiting the number of “spec ifically designa ted spots,” by prohibiting “spot

sharing’’ among expressive matter vendors, and by ra tioning those few spots on a “first com e,

first serve basis,” the R evised Rules constitute a defacto and im permissible daily licensing

program or lottery, and the first come, first serve system has resulted in unlawful discrimination

against women, the elderly and the physically infirm.

24. Defendants have engaged and continue to engage in behavior that violates

Plaintiffs’ New York S tate constitutional rights of free speech and equal protection, as w ell as

behavior that v iolates Plaintiffs rights under the A dministrative Code, and have resulted in

unlawful discrimination under the Adm inistrative Code and the New York State Executive Law,

and have thereby irreparably injured Plaintiffs.

25. Plaintiffs have suffered injuries and damages, and seek attorneys’ fees and costs.

FIRST CAUSE OF ACTION(Free Speech)

26 . Plaintiffs repeat and reallege the allegations in paragraphs 1 through 25 with the

same force and effect as though set forth here at length.

27. On their face and as applied to Plaintiffs, the Revised Rules constitute an

impermissible restraint on constitutionally protected speech under the Constitution, in that they

require authorization from the Park’s Com missioner to engage in such activity and thus

effective ly bar Plaintiffs from displaying or selling their art in the R estricted Parks.

28. The free speech rights affected by the Revised Rules are fundamental rights

guaranteed by the Constitution.

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29 . The Re vised Rules are not narrowly tailored to se rve a significant governm ental

interest.

30 . Wh ether by intent or effect, the Revised R ules curtail the Plaintiffs’ co nstitutional

rights under the Con stitution.

SECOND CAUSE OF ACTION

(DeclaratoryJudgment)

3 1. Plaintiffs repeat and reallege the allegations in paragrap hs 1 through 30 with the


32 . For all of the above-mentioned reasons, there exists an actual, substantial and

imm ediate controversy within the Court’s jurisdiction, which controversy is the result o f

Defendan ts’ conduct and w hich controversy can be redressed by a judicial decision in favor of

Plaintiffs. Thus, the Court may properly declare Plaintiffs’ constitutional, civil and statutory

rights under the C onstitution, and under the laws of the State and City of New York in respect of

this action.

THIRD CAUSE OF ACTION(Equal Protection)

33. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the


34. The Revised Ru les permit only a limited number of expressive matter vendors to

exercise their free sp eech rights each day, and den y to all other exp ressive matter vendo rs the

ability to exercise those sam e rights on that same day in a similar venue,

35, The R evised Rules, therefore, constitute a governm entally-imposed system of

disparate treatment of sim ilarly situated individuals, namely ex pressive matter vendors.

36 . On their face and as applied to Plaintiffs, the Revised R ules thus violate Plaintiffs’

rights to equal protection under the law guaran teed by the Constitution.

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FOURTH CAUSE OF ACTION

(Equal Protection)



38. Plaintiffs are m embers of a special class because they are engaged in free speech

protected activities which are fundam ental rights.

39, The stated purpose of the Revised Ru les is to deal with a purported and

unsubstantiated “proliferation, in certain parks, of expressive matter vendors, and the impact they

can have on parkland and other park visitors,” The Defendants elsewhere have recast the

purpose of the Revised Rules as being to reduce congestion and preserve aesthe tics.

40 . The Revised Rules seek to realize those purposes by burdening only expressive

matter vendors to the ex clusion of all other vendors utilizing the Restricted Parks whose impact

on “parkland and other park visitors,” as well as congestion and aesthetics, is far greater than that

of the expressive matter vendors.

41 . Upo n information and belief, the Green Marke t in Union Square Park, the

Holiday Markets, corporate-owned art installations, and special corporate events have a much

greater adverse impact on parkland, park visitors, congestion and aesthetics than all expressive

matter vendors combined, but the Revised Rules make no attempt to reduce and restrict the

activities, locations, or numbers of such non-expressive matter vendors so as to reduce

congestion in the Restricted Parks.

42, Similarly, upon inform ation and belief, one or more defendan ts have entered into

agreem ents with food and beverage vendors, t-shirt, sunglass and sundry non-expressive m atter

vendors to sell in front of the Met. Upon further information and belief, said vendors will create

more danger and congestion than all expressive matters vendors combined, but the Revised

711 19577.6



Rules make no attempt to reduce and restrict the activities, locations, or numbers of such non-

expressive matter vendors so as to reduce congestion in front of the Met.

43 . The Revised R ules, therefore, constitute a governmentally-imposed system of

disparate treatment of similarly situated individuals, namely all vendors who sell in the

Restricted Parks.

44 . On their face and as applied to Plaintiffs, the Revised Rules thus violate Plaintiffs’

rights of equal protection under the laws guaranteed by the Constitution.

FIFTH CAUSE OF ACTION

(Statutory Violation)



46. Adm inistrative Code 6 6 20-452 through 20-474.3 (collectively, the “General

Vendors Law” or “GV L”) govern all vendors in the City of New Y ork.

47. Adm inistrative Code 6 20-453 requires all vendors to obtain a license, but

exempts vendors (the “GVL License Exemp tion”)who sell “new spapers, periodicals, books,

pamphlets, or other similar written matter” (the “Exempt Vendors”).

48. The GV L L icense Exemption was required by Local Law of the City of New

York No. 33 (1982) ((‘LocalLawNo. 33”).

49, Adm inistrative Code 4 20-4650) prohibits general vendors from vending “within

the geographical areas under the jurisdiction of the [Parks Department] unless written

authorization therefore has been obtained from the comm issionerof such department . ”

50 . Adm inistrative Code 5 20-473 makes Exem pt Vendors who display and sell

“within the geographical areas under the jurisdiction of the [Parks Department]” ex empt also

Erom, inter alia, Adm inistrative Code 3 20-4650)’s requirement for w ritten authorization from

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the Parks D epartment com missioner, with the proviso that the Parks Department comm issioner

retains authority to regulate E xempt Vendors “in a manner consistent with the purpose of the

parks and the declared legis lative intent of this subchapter [27]” (the “Parks Exemption”),

5 1. Since 1996,applicable case law has broadened the statutorily-enumerated Exempt

Vendors to include vendors of expressive visual a rt, such as Plaintiffs.

52. Local Law 33, Section 1, sets forth the declared legislative intent underlying the

GVL License Exemption and the Parks Exemption, and states, in relevant part:

[IJt is consistent with the principles of free speech and freedom onthe press to eliminate as many restrictions on the vending ofwritten matter as is consisten t with the pub lic health, safety and

welfare. The counsel further finds and declares that generalvendors who exclusively vend written matter should be free fromlicensing requirements. It is further found and declared thatgeneral vendors who exclusively vend written matter with the aidof small portable stands should be exempt from restrictions on thetime, place and manner of their vending activity insofar as suchexemp tion does not constitute a threat to the public health, safetyor welfare.

The Revised Rules are inconsistent with the declared legislative intent underlying3.

Adm inistrative C ode 6 20-473 because (1 ) the R evised Rules place restrictions on the free

speech rights of expressive m atter vend ors; (2) the Revised Rules constitute a defacto and

imperm issible daily licensing program for expressive m atter vendors, severely restricting the

number of expressive matter vendors who can vend in the Restrictive Parks on any given day;

and (3) the Revised Rules place imp ermissible restrictions on the time, place and manner that

expressive matter vendors can vend in the Restricted Parks.

54. Accord ingly, on their face and as applied, the Revised Rules are invalid under

Adm inistrative Code 6 20-473.

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SIXTH CAUSE OF ACTION

(Void forVagueness)

5 5 . Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the


56. The Revised R ules provide the designated “spots shall be allocated upon a first

come, first serve basis ., .” 56 RCNY 6 1-05(b)(2).

57. The R evised Rules, however, fail to provide any - et alone clear - tandards of

enforcement the government is to follow in allocating spots on a “first come , first serve basis.”

5 8 .

59.

The R evised Rules, therefore, are unconstitutionally vague on their face.

Furthermore, the R evised Rules fail to provide any criteria as to how expressive

matter vendors, including Plain tiffs, either retain or forfeit designated spots after they are

allocated. For example, must an expressive matter vendor be physically present at his or her

display to sustain the allocation, or does “first come” grant a temporary right of adverse

possession that is secured merely by the presence of an expressive matter vendor’s table? Must

an expressive matter vendor actively vend to retain a designated spot? May an expressive matter

vendor leave his or her display stand to address personal needs or eat meals without risking that

his or her departure shall be deemed an abandonment? If so, for how long? If a display table is

left unattended for a period of time, is it deemed “abandoned” for purposes of the allocation, and

may another expressive matter vendor take possession of that designated spot? If an allocated

spo t becomes available voluntarily or otherwise , is it re-allocated? If so, by who m and according

to what criteria?

60.

61.

The Revised Rules, therefore, are unconstitutionally vague as applied to Plaintiffs.

The Revised R ules are void for vagueness, as applied and facially.

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SEVENTH CAUSE OF ACTION(Violation if Human Rights Laws)



63. The Revised Rules provide the designated “spots shall be allocated upon a first

come, first serve basis .. ” 56 RCNY 5 1-O5(b)(2).

64. Plaintiffs Diane I. Dua and Robyn Wohl are expressive matter vendors who are

also female, and are en titled to protection from unlawful discrimination in public

accomm odations based on their gender under Title 8, Chapter 1 , Q 8-107(4) of the Administrative

Code, and under 6 296(2) of the New York State Executive Law.

65. Most of the Plaintiffs are expressive matter vendors who are over 40 years old

(and at least three are over 60 years old), and are entitled to protection from unlawful

discrimination in public accommodations based on their age under Title 8, Chapter 1, 6 8-107(4)

of the Adm inistrative Code , and under § 296(2) of the New York State Executive Law.

66. These sam e Plaintiffs are also entitled to protection from unlawful discriminatory

de facto licens ing based on the gender and age under T itle 8, Chapter 1, 0 8-107(9) of the

Administrative Code.

67 . Expressive matter vendors have been spending the night on the perimeter areas of

the Restricted Parks, including, but not limited to, the perimeter areas outside the Met and the

southeast portion of the perimeter of Central Park, in order to be the first to claim one of the few

designated spots.

68. Expressive Matter vendors have also been faced with intimidating conflicts with

other expressive matter vendors over who arrived first at particular designated spots.

111 I 19577.6



69 . The Revised Rules have resulted in a “survival of the fittest” system w hich has a

discriminatory effect on women, the elderly, and the physically infirm, who are unable to fairly

compete with others for the designated spots.

70. Th e Revised Rules have resulted in an unlawful discriminatory practice against

wom en, the elderly and the physically infirm of a public accommodation in violation of Title 8,

Chapter 1, 8 8- 107(4)(a) of the Administrative Code, and §296(2) of the New York State

Executive Law because of their inability to compete fairly for such spots.

71. Th e Revised Rules have also resulted in an unlawful discriminatory practice

against women, the elderly and the physically infirm to be permitted (via a de facto license) to

vend in the designated spots, in violation of Title 8, Chapter 1, 6 8-107(9) because of their

inability to compete fairly fo r such spots.

WHEREFORE, Plaintiffs respectfully request the following relief:

(a) A declaratory judgm ent that the revision of $4 1-02 and 1 05(b) of Title 56 of the

Official Com pilation of the Rules of the City of New York is unconstitutional under A rticle I, 6 6

8 and 1 1, of the C onstitution of the State of New York, is invalid under the Adm inistrative Code

of the City of New Y ork, is unconstitutionally vague, and has had a discriminatory impact on

wom en, the elderly, and he physically infirm in violation of the Administrative Code of the City

ofNew York and the New York State Executive Law , that enforcement of those regulations

would and does violate Plaintiffs’ state constitutional, civil and statutory rights.

(b) A permanent injunction enjoining Defendants and their agencies, officers,

employees, agents and all persons acting in concert with them from enforc ing, by means of

1211 19577.6



arrest, threats of arrest, issuance of summonses, confiscation of materials or any other means of

enforcement, the R evised Rules.

(c) An award of m onetary damages to P laintiffs for those compensable injuries

suffered by Plaintiffs in the above claims as a result of Defendants’ enforcement of the Revised

Rules, in an amount to be determined a t trial.

(d)

(e)

An award of reasonable attorneys’ fees.

Any other relief this Court deems just and proper.

Dated: New York, New YorkAugust 4,20 10

PHILLIBS NIZER LLP

u e v i n B. McGrathJeffrey L. Shore

Attorneyfor Plaint f l s

66 6 Fifth AvenueNew York, New York 10103-0084(2 12) 977-9700

1311 19577.6



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Y

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

Index No.IANE1.

DUA, JOEL KAYE, BRYAN CLOSE, TENZINWANGDU, JACK DIAMOND, B AY 0 IRIBHOGBE, ROBYNWOHL, GEORGE MORAN and ARTISTS UNITED,

Plaintiffs,

V.

N EW YORK CITY DEPARTMENT OF PARKS ANDRECREATION (as a Municipal agency); ADME N B ENEPE (in his

Official Capacity as the Parks Comm issioner); CITY OF NEW YORK(as a municipality); and MICHAEL BLOOMBERG (in his OfficialCapacity as the Mayor),

Defendants.

COMPLAINT

PHILLIPS NlZER LLPAttorneys fo r Plaintifs

664 FIFTH AVENUENE W YORK, N.Y. 0103-0084

(2 12) 977-9700

Signed and certified pursuan t to 22 NYCRR §130-l.l-a

Documents

Dua State Court Case