The 13 artists represented by the law firm Phillips Nizer have lost
their State Court appeal.
This means that the temporary restraining order is no longer in effect
in Union Sq Park, Battery Park, on the High Line or in Central Park
including Columbus Circle and Central Park South.
That means that the full revised park rules will now be in effect [See
the item on this page for the revised park rules - Adoption of Rule
Amendments and Maps Regarding Expressive Matter Vending [as published
in the City Record on June 18, 2010 - PDF, 781 KB and Frequently Asked
Questions about New Rules for selling art, photography, reading
material, or sculpture in City Parks [PDF, 1.46 MB]
The revised rules include a very tight limit on the number of artists,
marked spots, a 50 foot distance from monuments etc. Artists who are
not in compliance can expect to be summonsed.
In the meantime, the Federal lawsuit Lederman et al v Parks Department
is proceeding according to schedule. We fully expect to win it.
What can you do to help your own situation now?
As you will recall, I have repeatedly suggested that all street
artists in parks should display protest signs on a daily basis rather
than acting as if nothing is going on except business as usual. That
advice was never more important than now. Rather than give up, its
time to stand up. The public supports artists in parks and is
generally very negative about Mayor Bloomberg. Make your situation
visible to the world.
You can expect that within a few days that Parks Enforcement will
begin ordering artists around in an aggressive manner. It is important
that you record every single word of every such confrontation as
evidence. I suggest you download those rules, study them carefully and
have them with you while selling in any NYC Park. Also have a video
recorder and camera and use it.
New York Law Journal
Panel Finds Vendor Restrictions Do Not Violate Free Speech Rights
Restrictions on the number of art vendors at four New York City parks
do not violate the vendors' state constitutional rights to free
speech, a Manhattan appellate court ruled yesterday.
A unanimous panel of the Appellate Division, First Department, upheld
the city's regulations of "expressive matter" vendors at Union Square
Park, Battery Park, High Line Park and parts of Central Park.
Since the vendors who challenged the rules did not show a likelihood
that they would prevail in the litigation, the panel declined to
overturn Manhattan Supreme Court Justice Milton Tingling's (See
Profile) denial of a preliminary injunction against the rules.
The panel's decision in Dua v. New York City Department of Parks and
Recreation, 5122N, observed that the regulations were "content
neutral" because, though addressed to "expressive matter" vendors,
they "are part of a comprehensive scheme which governs time, place,
and manner rules for all vendors under the Parks Department's
Moreover, the panel said the rules allowed "open, ample alternative
means of communication" because they only applied to the four parks in
question and did not prevent vendors from selling their goods at other
"Any expressive matter vendor who is foreclosed from a designated site
may, among other things, sell his or her artwork on public sidewalks
throughout the city," the panel wrote, saying the plaintiffs could not
show irreparable harm without the injunction.
Finally, the panel said the regulations served the city's "significant
interest in preserving and promoting the scenic beauty of its parks,
providing sufficient areas for recreational uses, and preventing
congestion in park areas and on perimeter sidewalks."
Under 56 R.C.N.Y. 1-05(b)(2), artists and vendors of expressive
matterdefined as "materials or objects with expressive content, such
as newspapers, books, or writings, or visual art such as paintings,
prints, photography, or sculpture"have been allotted 100 sites to
sell their wares in the four parks. The spots, marked by green plastic
circles, are open to vendors on a first-come, first-served basis each
The regulations were enacted in 2010 to cope with what city officials
said was a tripling of vendors in the parks since 2001. They argued
that the increase had created aesthetic concerns and congestion that
crowed out other activities.
The rules went into effect on July 19, 2010, three days after Southern
District Judge Richard J. Sullivan denied a preliminary injunction
because he found the rules did not violate the U.S. Constitution
(NYLJ, July 20, 2010).
On Aug. 25, 2010, however, Justice Martin Schoenfeld (See Profile)
granted a temporary restraining order blocking the rules' enforcement
(NYLJ, Aug. 27, 2010).
Justice Tingling vacated the order in his December decision denying
the plaintiffs' motion for a preliminary injunction. However, the
First Department later decided the stay should be enforced pending
appeal (NYLJ, Feb. 2).
Justices Peter Tom (See Profile), David B. Saxe (See Profile), James
M. Catterson (See Profile), Karla Moskowitz (See Profile) and Sallie
Manzanet-Daniels (See Profile) sat on the First Department panel,
which heard oral arguments on April 27.
The plaintiffs were represented by Jon Schuyler Brooks of Phillips
Nizer. He did not return a call for comment.
Julie Steiner, a senior counsel in the city Law Department's appeals
division who represented the parks department, said in a statement
that the city is "extremely pleased" with the appellate ruling.
"The court correctly found that the Vending Rules are
narrowly-tailored, content-neutral regulations that do not infringe on
the plaintiffs' First Amendment rights to vend their wares," she said.
Gabriel Taussig, chief of the Law Department's administrative law
division, confirmed in an interview that the rules are "now
enforceable" and referred questions on how the rules might be
implemented to the parks department. A parks department spokeswoman
could not comment by deadline.
The Appeals Court ruling
Dua v. NYC Dept. of Parks and Recreation, 110344/10
Before: Tom, J.P., Saxe, Catterson, Moskowitz, Manzanet-Daniels, JJ.
Cite as: Dua v. NYC Dept. of Parks and Recreation, 110344/10, NYLJ
1202494339902, at *1 (App. Div. 1st, Decided May 17, 2011)
Before: Tom, J.P., Saxe, Catterson, Moskowitz, Manzanet-Daniels, JJ.
Decided: May 17, 2011
Phillips Nizer LLP, New York (Jon Schuyler Brooks of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of
counsel), for respondents.
Order, Supreme Court, New York County (Milton A. Tingling, J.),
entered December 15, 2010, which denied plaintiffs' motion for a
temporary restraining order and preliminary injunction, 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 objects with expressive content, such as newspapers,
books, or writings, or visual art such as paintings, prints,
photography, or sculpture" (56 RCNY 1-02; 56 RCNY 1-05 [b];
Administrative Code §20-473)seek to enjoin the enforcement of revised
regulations (the Revised Rules) promulgated by the New York City
Department of Parks and Recreation. The Revised Rules would 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 a first come, first served
basis with only one vendor allowed at each site (see 56 RCNY 1-05
Plaintiffs failed to demonstrate "a likelihood of ultimate success on
the merits" of their challenge to the subject regulations, since they
failed to show that the regulations violated their rights under the
New York State Constitution (see Central Hudson Gas & Elec. Corp. v.
Public Serv. Commn. of N.Y., 447 US 557, 566 ; see also Matter
of Von Wiegen, 63 NY2d 163, 170 ). The Revised Rules, although
addressed to expressive matter vendors, are part of a comprehensive
scheme which governs time, place, and manner rules for all vendors
under the Parks Department's jurisdiction. We find that the Revised
Rules are content neutral (see Bery v. City of New York, 97 F3d 689,
697 [2d Cir 1996], cert denied 520 US 1251 ). The City has a
significant interest in preserving and promoting the scenic beauty of
its parks, providing sufficient areas for recreational uses, and
preventing congestion in park areas and on perimeter sidewalks (see
id.). The Revised Rules respond to Parks Department concerns that,
since 2001, expressive matter vendors have tripled. The general
restrictions applicable to all vendors were no longer sufficient to
balance the vending of expressive 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 Tr. Auth., 89
NY2d 692, 701 ), since they only apply to four parks. Expressive
matter vendors may operate at any other city park, subject only to
general restrictions. Thus, the Revised Rules satisfy the narrow
tailoring requirement of promoting "a substantial government interest
that would be achieved less effectively absent the regulation" (Ward
v. Rock Against Racism, 491 US
781, 799 ; cf. Time Square Books v. City of Rochester, 223 AD2d
270, 276 ; People ex rel. Arcara v. Cloud Books, 68 NY2d 553
The fact that the designated sites are limited in number does not turn
the Revised Rules limitation into de facto licenses in contravention
of Local Law 33. Unlike the lottery system rejected in People v.
Balmuth (178 Misc 2d 958 , affd 189 Misc 2d 243 , lv
denied 97 NY2d 678 ), the Revised Rules do not regulate who
obtains any particular designated vending site on any particular day.
Nor do the Revised Rules appear to run afoul of the legislative intent
of Local Law 45. While the Revised Rules allow expressive matter
vending at sites and times when food or general vending is allowed,
the record reveals that the Parks Department designated 68 sites for
expressive matter vending in and around Central Park below 86th Street
and authorized only 36 food and souvenir carts to operate in that
area. Equally unavailing is plaintiffs' contention that 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 ordinary intelligence are
not forced to guess at the meaning of statutory terms" (Foss v. City
of Rochester, 65 NY2d 247, 253 ; see also Heffron v.
International Soc. for Krishna Consciousness, Inc., 452 US 640,
648-649 ). Finally, the record is not sufficiently developed
regarding plaintiffs' assertion that the Revised Rules violate section
8-107 and  of the City Human Rights Law and section 296 of
the State Human Rights Law. The testimony at the preliminary
injunction hearing highlights that, during the time the Revised Rules
were in effect, both individuals over 40 and women were able to obtain
Plaintiffs also failed to demonstrate that either the prospect of
imminent and irreparable harm or the balance of equities tips in their
favor (see Doe v. Axelrod, 73 NY2d 748, 750 ). Any expressive
matter vendor who is foreclosed from a designated site may, among
other things, sell his or her artwork on public sidewalks throughout
the City (see Administrative Code of the City of New York §§17-306 and
§§20-452; Bery, 97 F3d at 698-699]) or sell in any part of the
perimeter of Central Park north of 86th Street, any part of the
interior of Central Park other than the pathways along the Central
Drive and Wein and Wallach Walks, and any other park in the City,
provided they comply with the general provisions of the Revised Rules
(see 56 RCNY §1-05 [b]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT,
APPELLATE DIVISION, FIRST DEPARTMENT.