Professional Documents
Culture Documents
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Defendants.
YOUARE HEREBY SUMMONED to answer the complaint in this action and to serv
of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the plaintiff attorneys within 20 days after the service of this summons, exclus
of 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 appear
or answer, judgment will be taken against you by default for the relief demanded in the
complaint. Plaintiff designates New York County as the place of trial. The basis of venue is
CPLR 504(3).
Jon S. Brooks
Kevin McGrath
1120385.1
To:
New York City Department of Parks and Recreation
The Arsenal, Central Park, 830 Fifth Avenue, New York, N.Y. 10021
1120385.1
a .. - m * - * S I -.
SUPREME COURT OF THE STAT^ OF NEW YORK
COUNTY OF NEW YORK
Plaintiffs,
V.
Defendants.
SUMMONS
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Plaintiffs,
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V. COMPLAINT
Defendants.
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Iribhogbe, Robyn Wohl, George Moran and Artists United, by their attorneys, Phiaps Nizer
1, On June 18,2010, Defendant City ofNew York (“New York City” or “City”),
through Defendant New York City Department of Parks and Recreation (“Parks Department”),
adopted Revised Rules 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 19,2010. 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 Metropolitan Museum of Art (the “Met”); Union Square Park; Battery Park; and
I 119577.6
the High Line Park (collectively, the “Restricted Parks”). The Revised Rules define “expressive
3. Plaintiffs - several individual artists who for years regularly have shown and sold
their visual art at Union Square Park, at the southeast end of Central Park and outside the Met, as
well as an unincorporated association of which some of them are members - seek to enforce their
constitutional rights under Article I, §$ 8 and 11, of the Constitution of the State of New York
(the “Constitution”), and to enforce their statutory rights under Title 20, Chapter 2, Subchapter
27, of the Administrative Code of the City of New York (the “Administrative Code”), Title 1,
Chapter 8, 6 8-107 of the Administrative Code and Section 296 of the New York State Executive
Law,
preventing Defendants from enforcing the Revised Rules, and a declaratoryjudgment that (1) the
Revised Rules are unconstitutional, on their face andor as applied, under the Constitution, and
(2) are an impermissible restriction on vending of expressive matter and violate, on their face
andor as applied, the declared legislative intent and the relevant provisions of the Administrative
Code, and (3) have resulted in unlawful discrimination against women, the elderly, and the
physically infirm, in violation of the New York City and State Human Rights laws. In the event
temporary andor preliminary injunctive relief is not granted, and Defendants are not prevented
from enforcing the Revised Rules, 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 photographs and resides in
the City of New York, and who shows and sells his expressive art in Union Square Park.
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7. Plaintiff Bryan Close 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 Square Park.
8. Plaintiff Tenzin Wangdu is an artist who creates expressive photographs and who
resides in the City of New York, and who shows and sells his expressive art at the southeast
9, Plaintiff Jack Diamond is an artist who creates expressive paintings and who
resides in the City 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 York, and who shows and sells his expressive art outside the
Met.
The Arsenal, Central Park, 830 Fifth Avenue, New York, New York 10021.
15. Defendant Adrian Benepe (“Benepe”) is being sued in his official capacity as the
16. 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
FACTUAL
BACKGROUND
18. The Plaintiffs, other than Artists United, are visual artists who show and offer for
sale their respective expressive matter in one or more of the Restricted Parks.
19. Expressive matter vendors are entitled to protection under Article I, §§ 8 and 11
of the Constitution.
20. Expressive matter vendors are also entitled to protection under Title 20, Chapter
2 1. As adopted, the Revised Rules severely restrict the number and location of
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upon direction as required under the preceding sentence will be in
violation of these rules.
sharing’’ among expressive matter vendors, and by rationing those few spots on a “first come,
first serve basis,” the Revised Rules constitute a de facto and impermissible daily licensing
program or lottery, and the first come, first serve system has resulted in unlawful discrimination
24. Defendants have engaged and continue to engage in behavior that violates
Plaintiffs’ New York State constitutional rights of free speech and equal protection, as well as
behavior that violates Plaintiffs rights under the Administrative Code, and have resulted in
unlawful discrimination under the Administrative Code and the New York State Executive Law,
25. Plaintiffs have suffered injuries and damages, and seek attorneys’ fees and costs.
26. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 25 with the
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 Commissioner to engage in such activity and thus
effectively bar Plaintiffs from displaying or selling their art in the Restricted Parks.
28. The free speech rights affected by the Revised Rules are fundamental rights
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29. The Revised Rules are not narrowly tailored to serve a significant governmental
interest.
30. Whether by intent or effect, the Revised Rules curtail the Plaintiffs’ constitutional
32. For all of the above-mentioned reasons, there exists an actual, substantial and
immediate controversy within the Court’s jurisdiction, which controversy is the result of
Defendants’ conduct and which 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 Constitution, and under the laws of the State and City of New York in respect of
this action.
34. The Revised Rules permit only a limited number of expressive matter vendors to
exercise their free speech rights each day, and deny to all other expressive matter vendors the
ability to exercise those same rights on that same day in a similar venue,
36. On their face and as applied to Plaintiffs, the Revised Rules thus violate Plaintiffs’
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38. Plaintiffs are members of a special class because they are engaged in free speech
39, The stated purpose of the Revised Rules 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 aesthetics.
40. The Revised Rules seek to realize those purposes by burdening only expressive
matter vendors to the exclusion 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
41. Upon information and belief, the Green Market 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
42, Similarly, upon information and belief, one or more defendants have entered into
agreements with food and beverage vendors, t-shirt, sunglass and sundry non-expressive matter
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
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Rules make no attempt to reduce and restrict the activities, locations, or numbers of such non-
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’
45. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the
Vendors Law” or “GVL”) govern all vendors in the City of New York.
47. Administrative Code 6 20-453 requires all vendors to obtain a license, but
exempts vendors (the “GVL License Exemption”)who sell “newspapers, periodicals, books,
48. The GVL License Exemption was required by Local Law of the City of New
49, Administrative 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 commissioner of such department ....”
50. Administrative Code 5 20-473 makes Exempt Vendors who display and sell
“within the geographical areas under the jurisdiction of the [Parks Department]” exempt also
Erom, inter alia, Administrative Code 3 20-4650)’s requirement for written authorization from
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the Parks Department commissioner, with the proviso that the Parks Department commissioner
retains authority to regulate Exempt Vendors “in a manner consistent with the purpose of the
parks and the declared legislative intent of this subchapter [27]” (the “Parks Exemption”),
5 1. Since 1996, applicable case law has broadened the statutorily-enumerated Exempt
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:
53. The Revised Rules are inconsistent with the declared legislative intent underlying
Administrative Code 6 20-473 because (1) the Revised Rules place restrictions on the free
speech rights of expressive matter vendors; (2) the Revised Rules constitute a de facto and
impermissible daily licensing program for expressive matter 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 impermissible restrictions on the time, place and manner that
54. Accordingly, on their face and as applied, the Revised Rules are invalid under
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56. The Revised Rules provide the designated “spots shall be allocated upon a first
57. The Revised Rules, however, fail to provide any - let alone clear - standards of
enforcement the government is to follow in allocating spots on a “first come, first serve basis.”
58. The Revised Rules, therefore, are unconstitutionally vague on their face.
59. Furthermore, the Revised Rules fail to provide any criteria as to how expressive
matter vendors, including Plaintiffs, 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
spot becomes available voluntarily or otherwise, is it re-allocated? If so, by whom and according
to what criteria?
60. The Revised Rules, therefore, are unconstitutionally vague as applied to Plaintiffs.
61. The Revised Rules are void for vagueness, as applied and facially.
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SEVENTH CAUSE OF ACTION
(Violation if Human Rights Laws)
62. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the
63. The Revised Rules provide the designated “spots shall be allocated upon a first
also female, and are entitled to protection from unlawful discrimination in public
accommodations 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 Administrative Code, and under § 296(2) of the New York State Executive Law.
66. These same Plaintiffs are also entitled to protection from unlawful discriminatory
de facto licensing based on the gender and age under Title 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.
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69. The Revised Rules have resulted in a “survival of the fittest” system which has a
discriminatory effect on women, the elderly, and the physically infirm, who are unable to fairly
70. The Revised Rules have resulted in an unlawful discriminatory practice against
women, 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.
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
(a) A declaratory judgment that the revision of $4 1-02 and 1-05(b) of Title 56 of the
Official Compilation of the Rules of the City of New York is unconstitutional under Article I, 66
8 and 1 1, of the Constitution of the State of New York, is invalid under the Administrative Code
of the City of New York, is unconstitutionally vague, and has had a discriminatory impact on
women, the elderly, and the physically infirm in violation of the Administrative Code of the City
of New York and the New York State Executive Law, that enforcement of those regulations
would and does violate Plaintiffs’ state constitutional, civil and statutory rights.
employees, agents and all persons acting in concert with them from enforcing, by means of
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arrest, threats of arrest, issuance of summonses, confiscation of materials or any other means of
suffered by Plaintiffs in the above claims as a result of Defendants’ enforcement of the Revised
(e) Any other relief this Court deems just and proper.
u e v i n B .-McGrath
Jeffrey L. Shore
Attorney for Plaintfls
666 Fifth Avenue
New York, New York 10103-0084
(2 12) 977-9700
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Plaintiffs,
V.
Defendants.
COMPLAINT