| Dua v New York City Dept. of Parks & Recreation |
| 2011 NY Slip Op 04112 [84 AD3d 596] |
| May 17, 2011 |
| Appellate Division, First Department |
| Diane I. Dua et al., Appellants, v New York CityDepartment of Parks and Recreation et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), forrespondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 15,2010, which denied plaintiffs' motion for a temporary restraining order and preliminaryinjunction, and granted defendants' motion to vacate the existing temporary restraining order,unanimously affirmed, without costs.
Plaintiffs, artists and vendors of expressive matter—defined as "materials or objectswith expressive content, such as newspapers, books, or writings, or visual art such as paintings,prints, photography, or sculpture" (56 RCNY 1-02; 1-05 [b] [2]; Administrative Code of City ofNY § 20-473)—seek to enjoin the enforcement of revised regulations (the revisedrules) promulgated by the New York City Department of Parks and Recreation. The revised ruleswould limit such vending to 100 specifically designated sites or "spots" in Union Square Park,Battery Park, High Line Park and portions of Central Park. These sites would be allocated on afirst come, first served basis with only one vendor allowed at each site (see 56 RCNY1-05 [b] [2]).
Plaintiffs failed to demonstrate "a likelihood of ultimate success on the merits" of theirchallenge to the subject regulations, since they failed to show that the regulations violated theirrights under the New York State Constitution (see Central Hudson Gas & Elec. Corp. vPublic Serv. Comm'n of N. Y., 447 US 557, 566 [1980]; see also Matter of vonWiegen, 63 NY2d 163, 170 [1984]). The revised rules, although addressed to expressivematter vendors, are part of a comprehensive scheme which governs time, place, and manner rulesfor all vendors under the Parks Department's jurisdiction. We find that the revised rules arecontent neutral (see Bery v City of New York, 97 F3d 689, 697 [2d Cir 1996], certdenied 520 US 1251 [1997]). The City has a significant interest in preserving and promotingthe scenic beauty of its parks, providing sufficient areas for recreational uses, and preventingcongestion in park areas and on perimeter sidewalks (see id.). The revised rules respondto Parks Department concerns that, since 2001, expressive matter vendors have tripled. Thegeneral restrictions applicable to all vendors were no longer sufficient to balance the vending ofexpressive matter with the use of parks by the general public. The revised rules provide open,ample alternative means of communication (see Matter of Rogers v New York City Tr.Auth., 89 NY2d 692, 701 [1997]), since they only apply to four parks. Expressive mattervendors may operate at any other city park, subject only to general [*2]restrictions. Thus, the revised rules satisfy the narrow tailoringrequirement of promoting "a substantial government interest that would be achieved lesseffectively absent the regulation" (Ward v Rock Against Racism, 491 US 781, 799[1989]; cf. Time Sq. Books v City of Rochester, 223 AD2d 270, 276 [1996]; Peopleex rel. Arcara v Cloud Books, 68 NY2d 553 [1986]).
The fact that the designated sites are limited in number does not turn the revised ruleslimitation into de facto licenses in contravention of Local Law No. 33 (1982) of City of NewYork. Unlike the lottery system rejected in People v Balmuth (178 Misc 2d 958 [1998],affd 189 Misc 2d 243 [2001], lv denied 97 NY2d 678 [2001]), the revised rulesdo not regulate who obtains any particular designated vending site on any particular day. Nor dothe revised rules appear to run afoul of the legislative intent of Local Law No. 45 (1993) of Cityof New York. While the revised rules allow expressive matter vending at sites and times whenfood or general vending is allowed, the record reveals that the Parks Department designated 68sites for expressive matter vending in and around Central Park below 86th Street and authorizedonly 36 food and souvenir carts to operate in that area. Equally unavailing is plaintiffs' contentionthat the first come, first served system of allocating designated sites is unconstitutionally vague;due process "requires only a reasonable degree of certainty so that individuals of ordinaryintelligence are not forced to guess at the meaning of statutory terms" (Foss v City ofRochester, 65 NY2d 247, 253 [1985]; see also Heffron v International Soc. for KrishnaConsciousness, Inc., 452 US 640, 648-649 [1981]). Finally, the record is not sufficientlydeveloped regarding plaintiffs' assertion that the revised rules violate section 8-107 (4) and (9) ofthe City Human Rights Law (Administrative Code) and section 296 (2) of the State HumanRights Law (Executive Law § 296 [2]). The testimony at the preliminary injunctionhearing highlights that, during the time the revised rules were in effect, both individuals over 40and women were able to obtain designated spots.
Plaintiffs also failed to demonstrate that either the prospect of imminent and irreparable harmor the balance of equities tips in their favor (see Doe v Axelrod, 73 NY2d 748, 750[1988]). Any expressive matter vendor who is foreclosed from a designated site may, amongother things, sell his or her artwork on public sidewalks throughout the City (seeAdministrative Code §§ 17-306, 20-452; Bery, 97 F3d at 698-699) or sell inany part of the perimeter of Central Park north of 86th Street, any part of the interior of CentralPark other than the pathways along the Central Drive and Wein and Wallach Walks, and anyother park in the City, provided they comply with the general provisions of the revised rules(see 56 RCNY 1-05 [b]). Concur—Tom, J.P., Saxe, Catterson, Moskowitz andManzanet-Daniels, JJ. [Prior Case History: 2010 NY Slip Op 33666(U).]