UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT LEDERMAN and JACK NESBITT, Plaintiffs, -against10

CV 4800 (RJS) NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a Municipal agency); ADRIAN BENEPE (in his Individual and Official Capacity as the Parks Commissioner); CITY OF NEW YORK (as a municipality); and HONORABLE MICHAEL BLOOMBERG (in his Official Capacity as the Mayor), Defendants. ______________________________________________________________________________ PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPLEMENT THE SUMMARY JUDGMENT RECORD WITH NEW MATERIAL EVIDENCE AND FOR OTHER RELIEF REQUIRED IN THE INTERESTS OF JUSTICE

Hon. Richard J. Sullivan

Dated: Queens, New York May 20, 2012

(#JM1227) MILNER LAW OFFICE, PLLC 8302A Broadway, Third Floor Suite Elmhurst, NY 11373 (718) 766-5242 Counsel for the plaintiffs

TABLE OF CONTENTS TABLE OF AUTHORITIES iii PRELIMINARY STATEMENT .. 1 STATEMENT OF RELEVANT FACTS . 2 ARGUMENT 3 I. Defendants Summary Judgment must be dismissed as a matter of law. 4 A. Parks Policy Change regarding performers renders the Revised Rules void 5 B. Parks Policy Change regarding where the Rules will actually be enforced calls into question the Necessity of the Rules in the remaining Parks . 5 C. Parks continuing harassment of plaintiff Lederman smacks of targeting . 6 CONCLUSION .. 6

TABLE OF AUTHORITIES CONSTITUTIONAL PROVISIONS: First Amendment Fourteenth Amendment CASES: Bornholdt v. Brady, 869 F.2d 57, 68 (2d Cir. 1989) DLC Management Corp. v. Town of Hyde Park, 163F.3d 124, 135-36 (2d Cir.1998). Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995) Taylor v. Illinois, 484 U.S. 400 (1988) Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 43234 (S.D.N.Y. 2004) STATUTES & OTHER AUTHORITIES: Fed. R. Civ. P.15(d) Fed. R. Civ. P. 16(b)(4) Fed. R. Civ. P. 26(e) Fed. R. Civ. P. 37(c) Fed. R. Civ. P. 56 Fed. R. Civ. P. 56(f) Local Rule 56.1 TERTIARY SOURCES

Bekiempos, Victoria, Parks Department Reverses Restrictions on Performers, Village Voice, May 11, 2012 Bekiempos, Victoria, Why Are Artists Still Barred From City Parks? Village Voice, May 14, 2012 Colvin, Jill, City Reverses Policy Barring Performances in Washington Square Park, DNAinfo, May 11, 2012 Foderaro, Lisa, A Reprieve for Performers in Washington Square Park, NY Times, May 17, 2012 Swan, Cathryn, City Reverses Course on Performance Crackdown at Washington Square Park No More Ticketing and Fining of Entertainers and Buskers, Washington Square Park Blog, May 10, 2012.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ROBERT LEDERMAN and JACK NESBITT, Plaintiffs, -against10 CV 4800 (RJS) NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a Municipal agency); ADRIAN BENEPE (in his Individual and Official Capacity as the Parks Commissioner); CITY OF NEW YORK (as a municipality); and HONORABLE MICHAEL BLOOMBERG (in his Official Capacity as the Mayor), Defendants. ______________________________________________________________________________ PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPLEMENT THE SUMMARY JUDGMENT RECORD WITH NEW MATERIAL EVIDENCE AND FOR OTHER RELIEF REQUIRED IN THE INTERESTS OF JUSTICE Plaintiffs respectfully submit this memorandum of law in support of their motion to supplement the summary judgment record with new material evidence that defeats defendants summary judgment motion as a matter of law. Plaintiffs also seek an award of attorneys fees, costs and disbursements, and any other appropriate relief in conjunction with this present motion. PRELIMINARY STATEMENT The defendants filed a summary judgment motion in this case on September 8, 2011. Plaintiffs filed their opposition on October 11th, and the defendants replied on October 20th. No decision has been rendered on that motion. Plaintiffs now seek to enter dispositive new evidence. STATEMENT OF RELEVANT FACTS

Hon. Richard J. Sullivan

There are three crucial developments in the case since the filing of the summary judgment papers. First, the Parks Department has just issued a statement to the press that the Revised Rules at issue in this present case will no longer be enforced against buskers and entertainers. 1 Yet the crux of the Citys position regarding the equal treatment of artists is that the Rules also apply to performers. 2 Moreover, the defendants assert that performers have the same impact on parkland as do the artists. 3 There is an issue of material fact of whether artists are targeted for enforcement not equally applied to similarly situated individuals. Second, plaintiffs have just obtained a copy of a letter by the head of enforcement for the Parks Department, Michael Dockett, that was sent to the Environmental Control Boards Adjudication Unit requesting dismissal of all related summonses against expressive matter vendors in the other parks besides Union Square. (Exhibit A). It should be noted that Parks failed to comply with the FOIL request of this letter pursuant to Ledermans defense against his ECB summonses, and plaintiffs had to obtain it through a third party. This letter raises an issue of Bekiempos, Victoria, Parks Department Reverses Restrictions on Performers, Village Voice, May 11, 2012; Bekiempos, Victoria, Why Are Artists Still Barred From City Parks? Village Voice, May 14, 2012; Colvin, Jill, City Reverses Policy Barring Performances in Washington Square Park, DNAinfo, May 11, 2012; Foderaro, Lisa, A Reprieve for Performers in Washington Square Park, NY Times, May 17, 2012. Swan, Cathryn, City Reverses Course on Performance Crackdown at Washington Square Park No More Ticketing and Fining of Entertainers and Buskers, Washington Square Park Blog, May 10, 2012.
1

[D]efendants dispute plaintiffs' assertion that performers or musicians who accept donations are not expressive matter vendors under the Rules. (Defendants Reply to Plaintiffs Rule 56.1 Statement, p.4, 12); [A]s artists who sell merchandise for money and artists who perform in exchange for a donation have the same impact on parkland (Dockett Reply Dec., 12), the fact that both types of artists are subject to the designated spot requirement is evidence of the Parks Department's effort and intent to treat all expressive matter vendors equally. (Defendants Reply Memorandum, p. 12).
2

in performance art for a donation, such as living statutes and musicians, are included in the definition of vendor and are required to be in designated spots (unless they are mobile, as discussed above). Indeed, the impact of these artists on parkland is no different from the impact of artists who sell tangible items of art. (Dockett Reply Dec., 12).
3

People who are engaged

material fact of whether the defendants have adopted a new policy of just enforcing the rule in Union Square Park, thus questioning the necessity of the rules continued existence and the defendants stated reasons for the overall rule change in the first place. Third, even though the ECB dismissed all but two of plaintiff Ledermans tickets from the High Line pursuant to the Dockett letter, Parks has filed appeals in those and for no other expressive matter vendors tickets dismissed. (Exhibit B-Lederman Affidavit, 3-4). Further, Parks has requested a full hearing on the two tickets of Ledermans that were not dismissed even though the two tickets are identical to the others that were dismissed. (Exhibit B, 3). This raises an issue of material fact of whether Lederman is singled out for targeting in retaliation for his First Amendment protected activities. ARGUMENT Good cause exists to reopen the record on the pending summary judgment. A schedule may be modified only for good cause and with the judges consent. Fed. R. Civ. P. 16(b)(4). A finding of good cause depends on the diligence of the moving party. Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). Plaintiffs diligently moved right away. Inclusion of this new crucial evidence into the summary judgment record serves the broader public interest in full and truthful disclosure of critical facts. Taylor v. Illinois, 484 U.S. 400, 412 (1988). The significant probative value of the evidence is readily apparent. Rule 15(d) provides that upon motion, a court may permit a party to serve a supplemental pleading setting forth any events that happened after the date of the pleading sought to be supplemented. Fed. R. Civ. P. 15(d); see also Bornholdt v. Brady, 869 F.2d 57, 68 (2d Cir. 1989). Rule 15(d) is liberally construed and leave should be freely granted. Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). The Court should allow leave to supplement absent undue delay, bad faith, dilatory tactics,

unfair prejudice, or futility. Id. Because those factors are absent here, Plaintiffs motion for leave to supplement the summary judgment record should be granted. Further, the defendant failed to honor its ongoing obligation under Rule 26(e) to correct errors of fact. The duty to disclose that arises under Rule 26 does not terminate after the first responsive answer or production, but is a continuing obligation. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 43234 (S.D.N.Y. 2004). Even in the absence of a discovery order, the Court may impose sanctions on a party for misconduct in discovery under its inherent power to manage its own affairs. Fed. R. Civ. P. 37(c); DLC Management Corp. v. Town of Hyde Park, 163F.3d 124, 135-36 (2d Cir.1998). The press reported that the City has been in negotiations with performance artists legal counsel since last December to exempt them from the Revised Rules. In the five months following, defendants failed to inform this Court of this very significant reversal of policy. Plaintiffs were prejudiced by this failure because of the peril of a summary judgment ruling based on erroneous facts. Thus plaintiffs seek attorneys fees, costs, disbursements and any other appropriate relief. I. DEFENDANTS SUMMARY JUDGMENT MUST BE DISMISSED AS A MATTER OF LAW.

Facts showing a genuine issue for trial will defeat a summary judgment motion. Fed. R. Civ. P. 56(e). Parks announcement of its new policy to exempt performance artists from enforcement of the Revised Rules; the letter from Parks head enforcement officer to dismiss tickets outside Union Square Park; and the relentless singling out of Lederman for specific targeting all lead to the inescapable conclusion that the defendants summary judgment motion must be denied. A. Parks Policy Change for Performers Renders the Revised Rules Void.

Parks reversal of policy regarding the applicability of the Revised Rules to performers violates the visual artists rights in two respects. First, continuing to enforce the Revised Rules against visual art and not performance is an impermissible restriction based on content. The defendants admitted that both sets of speakers had the same effect on parkland, so allowing one group an exemption based on their category of speech while targeting the other based on nothing other than what kind of expression they engage in violates Free Speech. Second, there is no dispute that the two speakers are similarly situated. In fact the defendants argued that the Revised Rules applied equally to the two. Since both groups are engaged in the exercise of fundamental rights, the defendants are unable to articulate a purpose akin to national security to survive strict scrutiny for exempting one and not the other. Thus exempting performing artists from the Revised Rules and not visual artists violates both the First and Fourteenth Amendments. B. Parks Policy Change of where the Rules will actually be Enforced Calls into Question the Necessity of them in the Remaining Parks. Assistant Parks Commissioner Michael Dockett in his letter to ECB admitted that tickets issued in Washington Square Park were in error because the Revised Rules are applicable to Union Square Park. Nowhere in the letter does he mention Central Park, the High Line, the Met, or Battery Park. Plaintiffs are entitled to the inference that Parks intends to enforce the Revised Rules only in Union Square. A reasonable jury can find that a lack of intention to enforce the rules in the other parks renders them unnecessary. If the Rules are unnecessary, then they cannot survive even a rational basis scrutiny. Thus defendants summary judgment motion is defeated. C. Parks Continuing Harassment of Lederman Smacks of Targeting.

Plaintiff Robert Lederman has never had a summons or arrest stick in the past two decades of the art wars waged by the City against him and other visual artists, but that has not deterred the

defendants from continuing to target him while the summary judgment motion is pending. As he attests in his affidavit, Lederman has received five summonses on the High Line issued to him within five minutes of setting up legally. The ECB dismissed all but two of them outright and granted Parks request for a hearing for the remainder. Parks filed an appeal for two of the dismissed summonses, which Lederman has attested is unprecedented. Moreover, Commissioner Benepe, a named defendant, personally ordered Ledermans arrest while engaging in peaceful protest at a public forum. A reasonable jury can conclude that Lederman has been singled out for unlawful enforcement in retaliation for his First Amendment activities. Thus summary judgment is unwarranted. CONCLUSION For these reasons, plaintiffs request the summary judgment record be open to include the new evidence presented, and that the Court either dismiss defendants Rule 56(f) motion or grant summary judgment in favor of plaintiffs. Plaintiffs further request attorneys fees, costs, disbursements and any other appropriate relief. Dated: Queens, New York May 22, 2012 MILNER LAW OFFICE, PLLC 8302A Broadway, Elmhurst, NY 11373 (718) 766-5242 Counsel for Plaintiffs

EXHIBIT A

Parks Letter to ECB

EXHIBIT B

Lederman Affidavit