ED ON 81412010

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SUPREME COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK
"___r________ll_llll_1--11----------------------------------------
X
DIANE I. DUA, JOEL KAYE, BRYAN CLOSE, :
TENZIN WANGDU, JACK DIAMOND, BAY0
IRIBHOGBE, ROBYN WOHL, GEORGE : IndexNo.
MORAN and ARTISTS UNITED,
Plaintiff, : Date Purchased:
V.
: The basis of venue is
NEW YORK CITY DEPARTMENT OF PARKS CPLR 504(3)
AND RECREATION (as a Municipal agency);
ADRIEN BENEPE (in his Official Capacity as the SUMMONS
Parks Commissioner); CITY OF NEW YORK (as a :
municipality); and HONORABLE MICHAEL
BLOOMBERG (in his Official Capacity as the :
May00 ?

Defendants.

To the above named 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).

Dated: New York, New York

August 4,20 10

Jon S. Brooks
Kevin McGrath

666 Fifth Avenue

New York, New York 10103
(2 12) 977-9700
Attorneys for Pluintgs

1120385.1
To:
New York City Department of Parks and Recreation
The Arsenal, Central Park, 830 Fifth Avenue, New York, N.Y. 10021

Adrien Benepe (in his official capacity as the Parks Commissioner)

The Arsenal, Central Park, 830 Fifth Avenue, New York, N.Y. 10021

City of New York

100 Church Street, New York, N.Y. 10007

Honorable Michael Bloomberg (in his official capacity as Mayor)

100 Church Street, New York, N.Y. 10007

1120385.1
a .. - m * - * S I -.
SUPREME COURT OF THE STAT^ OF NEW YORK
COUNTY OF NEW YORK

DIANE I. DUA, JOEL KAY E, BRYAN CLOSE, TENZIN Index No.

WANGDU, JACK DIAMOND, BAY0 IRIBHOGBE, ROBYN
WOHL, GEORGE MORAN and ARTISTS UNITED,

Plaintiffs,

V.

NEW YORK CITY DEPARTMENT OF PARKS AND

RECREATION (as a Municipal agency); ADMEN BENEPE (in his
Official Capacity as the Parks Commissioner); CITY OF NEW YORK
(as a municipality); and MICHAEL BLOOMBERG (in his Oficial
Capacity as the Mayor),

Defendants.

SUMMONS

PHILLIPS NTZER LLP

Attorneys for Plaintcfs

666 FIFTH AVENUE

NEW Y O N , N.Y. 10103-0084
(2 12) 977-9700

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

‘ I
,-- e +

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
_ _ l r r r r r _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - -
X
- - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

DIANE I. DUA, JOEL KAYE, BRYAN CLOSE, TENZIN :

WANGDU, JACK DIAMOND, BAY0 IRIBHOGBE,
ROBYN WOHL, GEORGE MORAN and ARTISTS
UNITED,

Plaintiffs,
-.

V. COMPLAINT

NEW YORK CITY DEPARTMENT OF PARKS

AND RECREATION (as a Municipal agency);
ADRIEN BENEPE (in his Official Capacity as the Parks
Commissioner); CITY OF NEW YORK (as a
municipality); and MICHAEL BLOOMBERG (in his
Official Capacity as the Mayor),

Defendants.
-______________“______l___r_r___________-----~~~-----------------------
X

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

Iribhogbe, Robyn Wohl, George Moran and Artists United, by their attorneys, Phiaps Nizer

LLP, as and for their Complaint, allege as follows:

STATEMENT OF THE CASE

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

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

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,

4. Plaintiffs seek injunctive relief (temporary, preliminary and permanent)

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.

2
1119577.6
 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

section of the perimeter of Central Park known as Grand Army Plaza..

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.

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 City maintaining an address at

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

Commissioner of the Parks Department.

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

State of New York,

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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.

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, Subchapter 27, 0 473 of the Administrative Code.

2 1. 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 matter at the

specifically designated spots identifed by the Commissioner in the
accompanying maps and as marked by a Department decal, medallion, or
other 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 for
longer than necessary to conduct a transaction and are otherwise in
compliance with Department rules. These spots shall be allocated upon a
first come,_firstserve basis except as otherwise provided by law and any
expressive matter vendor may only vend expressive matter centered
directly behind the Department decal, medallion, or other form of
marking. Only one expressive matter vendor is authorized to vend
directly behind the Department decal, medallion, or otherform of
marking as indicated by the Department decal, medallion, or other form of
marking and if multiple expressive matter vendors attempt to vend
expressive 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 otherform of marking
immediately. Any such expressive matter vendor failing to leave the area
of the Department decal, medallion, or other form of marking immediately

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1119577.6
 upon direction as required under the preceding sentence will be in
violation of these rules.

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

23. By limiting the number of “specifically designated spots,” by prohibiting “spot

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

against women, the elderly and the physically infirm.

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,

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 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

guaranteed by the Constitution.

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1119577.6
I f ; I

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

rights under the Constitution.

SECOND CAUSE OF ACTION

(Declaratory Judgment)
3 1. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the

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

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.

THIRD CAUSE OF ACTION

(Equal Protection)
33. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the

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

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,

35, The Revised Rules, therefore, constitute a governmentally-imposedsystem of

disparate treatment of similarly situated individuals, namely expressive matter vendors.

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

rights to equal protection under the law guaranteed by the Constitution.

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I
L

FOURTH CAUSE OF ACTION

(Equal Protection)
37. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the

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

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

protected activities which are fundamental rights.

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

of the expressive matter vendors.

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

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

congestion in the Restricted Parks.

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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11 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 Rules, 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)

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

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

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

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,

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

48. The GVL License Exemption was required by Local Law of the City of New

York No. 33 (1982) ((‘Local Law No. 33”).

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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1 I 19577.6
r P

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

Vendors to include vendors of expressive visual art, 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 on

the press to eliminate as many restrictions on the vending of
written matter as is consistent with the public health, safety and
welfare. The counsel further finds and declares that general
vendors who exclusively vend written matter should be free from
licensing requirements. It is further found and declared that
general vendors who exclusively vend written matter with the aid
of small portable stands should be exempt from restrictions on the
time, place and manner of their vending activity insofar as such
exemption does not constitute a threat to the public health, safety
or welfare.

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

expressive matter vendors can vend in the Restricted Parks.

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

Administrative Code 6 20-473.

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 r

SIXTH CAUSE OF ACTION

(Void for Vagueness)
55. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 30 with the

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

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

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

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

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

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 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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1 I 19577.6
 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

compete with others for the designated spots.

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.

7 1. The 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 for such spots.

WHEREFORE, Plaintiffs respectfully request the following relief:

(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.

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

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

enforcement, the Revised Rules.

(c) An award of monetary damages to Plaintiffs 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 at trial.

(d) An award of reasonable attorneys’ fees.

(e) Any other relief this Court deems just and proper.

Dated: New York, New York

August 4,20 10

PHILLIBS NIZER LLP

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

13
1119577.6
 Y
-* 6' 't

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

DIANE 1. DUA, JOEL KAYE, BRYAN CLOSE, TENZIN Index No.

WANGDU, JACK DIAMOND, BAY0 IRIBHOGBE, ROBYN
WOHL, GEORGE MORAN and ARTISTS UNITED,

Plaintiffs,

V.

NEW YORK CITY DEPARTMENT OF PARKS AND

RECREATION (as a Municipal agency); ADMEN BENEPE (in his
Official Capacity as the Parks Commissioner); CITY OF NEW YORK
(as a municipality); and MICHAEL BLOOMBERG (in his Official
Capacity as the Mayor),

Defendants.

COMPLAINT

PHILLIPS NlZER LLP

Attorneys for Plaintifs

664 FIFTH AVENUE

NEW YORK, N.Y.10103-0084
(2 12) 977-9700

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