Lederman et al v. New York City Department of Parks and Recreation et al

Filing 83

MEMORANDUM AND ORDER: Defendants' motion for summary judgment is granted. The Clerk of the Court is respectfully requested to terminate the motion located at Doc. No. 34 and to close this case. (Signed by Judge Richard J. Sullivan on 9/30/2012) (ago)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 10 Civ. 4800 (RJS)

_____________________

ROBERT LEDERMAN AND JACK NESBITT,
Plaintiffs,
VERSUS

NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, et al.,
Defendants.
__________________
MEMORANDUM AND ORDER
September 30, 2012

__________________
RICHARD J. SULLIVAN, District Judge:
Plaintiffs Robert Lederman and Jack
Nesbitt, visual artists who sell their work on
sidewalks and in public parks in New York
City (the “City”), bring this suit challenging
the constitutionality of recent revisions to
the Rules of the City of New York
(“R.C.N.Y.”) governing where “expressive
matter vendors” – defined as sellers of
books, art, and similar work – may sell their
wares. See 56 R.C.N.Y. §§ 1-02, 1-05 (the
“Revisions”). Specifically, the Revisions
contemplate that in Battery Park, Union
Square Park, the High Line, and certain
parts of Central Park, expressive matter
vendors may set up display stands and the
like for sales only in a limited number of
designated spots, which are allocated on a
first-come, first-served basis (the “spot
designations”).
Id. § 1-05(b)(2)-(3).
Additionally, the Revisions set forth general

restrictions on the sale of expressive matter
in non-designated areas of Central Park and
all other City parks (the “general expressive
matter vending restrictions”). Id. § 105(b)(4)-(8).
Before the Court is Defendants’ motion
for summary judgment, made pursuant to
Federal Rule of Civil Procedure 56. 1 For
the reasons that follow, Defendants’ motion
is granted in its entirety.
1

Defendants also include Mayor Michael Bloomberg
and Parks Commissioner Adrian Benepe, in their
individual and official capacities, and the City of New
York. Although the law is clear that the Department
of Parks and Recreation is not a proper defendant,
since a City agency is not a suable entity, see N.Y.
City Charter ch. 17, ' 396; Bissinger v. City of N.Y.,
06 CIV. 2325 (WHP), 2007 WL 2826756, at *5
(S.D.N.Y. Sept. 24, 2007), neither party has contested
the issue, and the Court does not address it here.

I. BACKGROUND 2

– are not required to obtain permits to sell
their wares on Parks Department property.
56 R.C.N.Y. §§ 1-02; 1-05(b)(2).

The New York City Department of Parks
and Recreation (the “Parks Department”) is
charged with the management and care of all
parks in the City, and is directed to maintain
the beauty and utility of those parks. See
New York City Charter (“Charter”)
§ 533(a)(1); (Decl. of Jack T. Linn, dated
Sept. 7, 2011, Doc. No. 40 (“Linn Decl.”), ¶
3). To fulfill this mandate, the Parks
Department is authorized to promulgate
rules and regulations for the use,
management, and protection of public parks.
Charter § 533(a)(9).
These rules and
regulations are set forth in 56 R.C.N.Y. § 101, et seq. (See Linn Decl. ¶ 3.)

Likewise, no license is required to vend
expressive matter on City streets and
sidewalks that are not under the Parks
Department’s jurisdiction.
See N.Y.C.
Admin. Code (“Admin. Code”) § 20-473;
Bery v. City of New York, 97 F.3d 689 (2d
Cir. 1996). However, expressive matter
vendors on the City’s streets and sidewalks
must nonetheless comply with the General
Vendor Laws relating to, inter alia, the size
and placement of their vending tables as set
forth in the City’s Administrative Code.
Admin. Code §§ 20-465(a)-(f), (k)-(q), 20473. These restrictions do not address the
parks specifically, and the Parks Department
does not have authority to enforce them.
(Linn Decl. ¶¶ 6-7.)

Under the Parks Department’s Rules,
“vending” constitutes selling, offering for
sale, hiring, leasing, letting, or providing or
offering to provide services or items in
exchange for a donation. 56 R.C.N.Y. § 105(b)(1). It is generally unlawful to vend on
property under the Parks Department’s
jurisdiction, including the sidewalks that
adjoin parkland, without a permit from the
Parks Department. Id.; Charter § 533(a)(5).
However, 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”

A. Prior Attempts to Regulate Expressive
Matter Vendors 3
Though expressive matter vendors are
exempt from the permit and license
requirements applicable to vendors of other
goods, the City has several times attempted
to promulgate rules to regulate expressive
matter vendors in certain respects. As a
result of those efforts, the City and various
expressive matter vendors have waged an
ongoing battle with regard to the City’s
regulation of where and how those vendors
may sell their wares.

2
The facts are taken from the parties’ briefs filed in
connection with this motion (“Def. Br.”, “Pl. Br.”,
and “Def. Reply Br.”), the parties’ Local Civil Rule
56.1 Statements (“Def. 56.1” and “Pl. Reply 56.1”),
the parties’ supplemental briefing (“Pl. Supp. Br.”
and “Def. Supp. Br.”), the parties’ post-briefing
submissions to the Court (“Def. Ltr.” and “Pl. Ltr.”),
the declarations submitted in connection with the
instant motions, and the exhibits attached thereto.
The facts are undisputed unless otherwise noted.
Where one party’s 56.1 Statement is cited, the other
party does not dispute the fact asserted, has offered
no admissible evidence to refute that fact, or merely
objects to inferences drawn from that fact.

3

The Court set forth an overview of the City’s
previous attempts to regulate expressive matter
vendors and the resulting litigation in more detail in
its Memorandum and Order, dated July 16, 2010.
See Lederman v. N.Y.C. Dep’t of Parks & Recreation,
Nos. 10 Civ. 4800 (RJS), 10 Civ. 5185 (RJS), 2010
WL 2813789, at *1-3 (S.D.N.Y. July 16, 2010)
(“Lederman III”). The Court presumes the parties’
familiarity with that Memorandum and Order.

2

more applications than spaces available for
any particular location, the Parks
Department would hold a random-draw
lottery for each month.” Id. at *2. After
declining
to
obtain
permits,
and
consequently being ticketed, the plaintiffs in
Lederman I brought suit and attempted to
preliminarily enjoin further enforcement of
the regulations on the grounds that the
regulations violated the First and Fourteenth
Amendments. See id. at *3-4.

For example, in 1996, in Bery v. City of
New York, the Second Circuit addressed a
licensing scheme that required all vendors
other than book sellers to obtain a general
vendor license before selling their wares in
any public space. 97 F.3d 689, 692 (2d Cir.
1996). As part of the regulatory scheme,
only 853 general vendor licenses were
issued, and licenses became available only
to new applicants when current license
holders failed to renew. Id. As a result, at
the time of the Bery decision, the waiting list
to acquire a license had grown to between
500 and 5,000, and no new licenses had
been issued in the previous fifteen years. Id.
at 693, 697 n.7.
The Second Circuit
concluded that expressive matter vendors
were entitled to “full First Amendment
protection” and, on these facts, that the
City’s licensing scheme operated as “a de
facto bar preventing visual artists from
exhibiting and selling their art in public
areas in New York.”
Id. at 696-97.
Consequently, the Second Circuit concluded
that the regulations were “too sweeping to
pass constitutional muster.” Id. at 697.

The Honorable Lawrence M. McKenna,
District Judge, denied the motions for a
preliminary injunction, holding that the
regulations were content-neutral time, place,
and manner restrictions. Id. at *3, *6.
Specifically, Judge McKenna concluded
that, first, “[t]he City undoubtedly 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.” Id. at
*3.
Additionally, he found that the
“regulations [were] narrowly tailored to
serve the government’s interest.”
Id.
Finally, Judge McKenna held that the
regulations left “open alternative avenues
for
communication,”
because
“[a]n
unlimited number of permits are available
for Prospect Park in Brooklyn” and “[a]ny
artist vendor who is foreclosed from
obtaining a permit or chooses not to obtain
one may, under Bery, sell his artwork on any
other public sidewalk throughout the City
not within the jurisdiction of the Parks
Department, subject only to narrow
restrictions.” Id. at *3-4. After discovery,
the parties filed motions for summary
judgment. At that point, Judge McKenna
concluded – without disturbing his
preliminary analysis of the regulations’
constitutionality – that, as a matter of state
administrative law, the regulations should be
interpreted not to apply to expressive matter

Taking to heart the Bery court’s
suggestion that “there exist less intrusive
means” to accomplish the City’s objectives,
such as “a rotating first-come, first-served
lottery system for assigning a limited
number of licenses,” id. at 698 n.8 (citation
omitted), the City amended its regulatory
scheme in 1998 to provide for “seventy-five
site-specific permits for art vendors in
Manhattan parks,” see Lederman v. Giuliani,
No. 98 Civ. 2024 (LMM), 1998 WL
186753, at *1 (S.D.N.Y. Apr. 17, 1998)
(“Lederman I”). As part of that scheme,
each permit gave “its holder a legal right to
sell his work in a specific area for one
month” at a cost of twenty-five dollars. Id.
In the event that more than “seventy-five
people appl[ied] for the seventy-five sites
available in Manhattan, or if there [were]

3

vendors. See Lederman v. Giuliani, No. 98
Civ. 2024 (LMM), 2001 WL 902591, at *6
(S.D.N.Y. Aug. 7, 2001) (“Lederman II”),
aff’d 70 F. App’x 39, 40 (2d Cir. 2003).

June 18, 2010. (Id. ¶¶ 11, 13, Ex. A.) The
revised rules became effective on July 19,
2010. (Id. ¶ 13.) Under the final version of
the Revisions,

B. The Revisions

[p]ersons may vend expressive
matter . . . on property under
jurisdiction
of
the
[Parks]
Department without a permit, but
must comply with all applicable
provisions of these rules. However,
in the specific locations enumerated
in paragraph (3)[,] expressive matter
vendors may only vend expressive
matter at the specifically designated
spots identified by the Commissioner
in the accompanying maps and as
marked by a [Parks] 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 card, 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 [Parks] Department
rules.

After Judge McKenna’s decision, the
City saw an increase in vendors in certain
parks between 2001 and 2010. (See Linn
Decl. ¶¶ 9-10; id. Ex. B; Decl. of Sheryl R.
Neufeld, dated Sept. 7, 2011, Doc. No. 38
(“Neufeld Decl.”), Ex. L at 11:15-20, 16:2017:3; id. Ex. N at 31:18-21.) To address
concerns about the proliferation of vendors
in those parks, the Parks Department began
to contemplate ways to regulate expressive
matter vendors on its property. (Linn Decl.
¶ 6, n.3.) The Parks Department specifically
targeted expressive matter vendors because
vendors of non-expressive matter were
already subject to numerous requirements
set forth in the individual permits issued to
them by the Parks Department. (Linn Decl.
¶ 12; Decl. of Julie Milner, dated Oct. 10,
2011, Doc. No. 61 (“Milner Decl.”), Ex. F 4);
see also 56 R.C.N.Y. § 1-05(b)(1) (“No
person in or on any property under the
jurisdiction of the Department shall [vend]
except under and within the terms of a
permit, or except as otherwise provided by
law.”).

These spots shall be allocated upon a
first[-]come, first[-]serve[d] basis
except as otherwise provided by law
and any expressive matter vendor
may only vend expressive matter
centered directly behind the [Parks]
Department decal, medallion, or
other form of marking . . . .

On March 24, 2010, the Parks
Department
published
the proposed
Revisions, and on April 23, 2010, held a
public hearing at which over 100 members
of the public expressed their opinion of the
proposed rules. (Linn Decl. ¶¶ 11, 13, 22,
Ex. A.) Based on the comments at the
hearing, and over 200 written comments, the
proposed rules were revised, and the revised
rules were published in the City Record on

Expressive matter vendors can only
occupy the designated spots for the
purpose of vending expressive matter
and only during posted times, which
will be consistent with the hours of
operation for the park where such

4

The Court notes that the “Canned Art” presentation,
attached to the Declaration of Julie Milner as part of
Exhibit F, appears to be incomplete.

4

for expressive matter vendors in the
designated portions of Central Park
(including twenty-eight outside of the
Metropolitan Museum of Art); nine spots for
expressive matter vendors in Battery Park;
eighteen spots for expressive matter vendors
in Union Square Park – plus forty more on
Tuesdays, Thursdays, and Sundays when the
Greenmarket farmers’ market is closed; and
five spots along the High Line. (Linn Decl.
¶¶ 30, 36, 43, 46-49, Ex. H.) In selecting
the spot designations, the Parks Department
considered the number of visitors those
parks received; monuments and art
installations in those parks; the need to
maintain access to park benches, gardens,
and esplanades, as well as bus, subway, and
ferry stops; the historical uses of the parks;
the aesthetic integrity of those parks; and the
unique features of those parks. (See id.
¶¶ 23-28; 30-43; 45; 47-49.) The Parks
Department also considered where vendors
have historically conducted business in
making the spot designations, although
Plaintiffs note that expressive matter
vendors were not given an opportunity to
choose the spot designations themselves.
(See id. ¶ 21; Pl. Reply 56.1 ¶ 22.)

designated spots are located in or
adjacent to.
56 R.C.N.Y. § 1-05(b)(2) (paragraph breaks
added).
Section 1-05(b)(3) of the Revisions
specifies the “spot designations” as follows:
[e]xpressive matter vendors may not
vend in the following general areas
unless they vend at the specifically
designated spots for such vending on
the accompanying maps and in
compliance with all other applicable
Department rules:
(i) Central Park at the following
locations: (A) the perimeter of the
park between East 85th Street and
East 60th Street, including all
sidewalks and plazas[,] (B) the
perimeter of the park between West
86th Street and West 60th Street,
including all sidewalks and plazas[,]
(C) all of Central Park South,
including all sidewalks and plazas[,]
(D) Wien Walk and Wallach Walk,
(E) pedestrian pathways parallel to
East Drive between Grand Army
Plaza and the Center Drive,
(F) Grand Army Plaza, (G) Pulitzer
Plaza, and (H) Columbus Circle.

Outside
these
specific
“spot
designations,”
the
Revisions
allow
expressive matter vendors to sell their wares
anywhere in property under the Parks
Department’s jurisdiction, provided that
they comply with the general expressive
matter vending restrictions, which prohibit
all vendors from, inter alia, blocking any
person from using any street or park
furniture, vending in a way that would
damage or otherwise injure Department
property, and vending anything over any
ventilation grill, cellar door, manhole,
transformer vault, or subway access grating.
56 R.C.N.Y. § 1-05(b)(4). The general
expressive matter vending restrictions also
prohibit vendors from, inter alia, using a

(ii) Battery Park, including all
perimeter sidewalks.
(iii) Union Square Park, including all
perimeter sidewalks.
(iv) Elevated portions of High Line Park.
Id. § 1-05(b)(3) (paragraph breaks added).
The “accompanying maps” referenced in
section 1-05(b)(3) set forth sixty-eight spots

5

display stand that: provides less than a
twelve-foot wide clear pedestrian path; is
within five feet from any street or park
furniture, disabled access ramp, or trees; is
within ten feet from any crosswalk; or is
placed within fifty feet from any monument
or other public art installation. Id. § 105(b)(5)-(7). Finally, the Revisions require
that, “[w]here exigent circumstances exist
and a [Parks] Department employee or
police officer gives notice to a vendor to
move temporarily from any location[,] such
vendor shall not vend from such location.”
Id. § 1-05(b)(8).

crowd of twenty or more are already subject
to permitting requirements, further requiring
that performers use the medallions was an
attempt by Defendants to drive visual artists
out of City parks. (Id.)
However, on February 23, 2012 – after
briefing in this matter had concluded – a
New York State appellate court issued a
decision calling Defendants’ interpretation
into question. See In re New York Skyline,
Inc. v. City of New York, 939 N.Y.S.2d 42
(N.Y. App. Div. 2012). In Skyline, the New
York State Supreme Court, Appellate
Division, First Department read the
definition of “vendor” in the City’s
Administrative Code – which resembles the
definition of “vendor” in the Revisions – to
exclude entertainers. Id. at 27. The First
Department reasoned that, because the Code
required vendors of “goods” and “services”
to obtain permits, and because “[a]s a matter
of common parlance, one would not say that
[entertainment] is a ‘service,’” entertainers
need not obtain permits to sell their wares.
Id.; see also Admin. Code §§ 20-452(b), 20453 (defining a “vendor” as “a person who
. . . sells . . . goods or services” and
requiring a “vendor” to be licensed).
Following the decision, in March 2012, the
Parks Department announced that the
Revisions would no longer be enforced
against performers. (Def. Supp. Br. at 3;
Def. Ltr., dated Sept. 24, 2012, Doc. No. 79
(“Def. Ltr.”), at 2.)

C. The Skyline Decision
Despite seemingly contrary language in
the Revisions, Defendants initially interpreted
“expressive matter” broadly to include
performances for donations by buskers and
street artists. 5
(Linn Decl. ¶ 4, n.2.)
Pursuant to that interpretation, Defendants
stated, inter alia, that “the impact of
[performance] artists on parkland is no
different from the impact of artists who sell
tangible items of art.” (Decl. of Michael
Dockett, dated Oct. 20, 2011, Doc. No. 36
(“Dockett Decl.”), at ¶ 12.)
Further,
Defendants asserted that “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.” (Def.
Reply Br. at 12.) Plaintiffs protested this
interpretation, arguing that applying the
Revisions to performers would deprive
tangible art vendors of their already limited
access to the designated spots. (Pl. Br. at
14-15.) Plaintiffs asserted that, because
performance artists who expect to draw a

D. Procedural History
Plaintiffs filed the present action on June
18, 2010 – the same day that the Revisions
were published. On June 24, 2010, the
Court issued an Order denying Plaintiffs’
application for an ex parte temporary
restraining order. By Order dated July 16,

5

As earlier noted, the Revisions define “expressive
matter” as including “materials or objects with
expressive content, such as newspapers, books or
writings, or visual art such as paintings, prints,
photography, or sculpture.” 56 R.C.N.Y. §§ 1-02.

6

2010, the Court denied Plaintiffs’ motion for
a preliminary injunction. 6

art. (Def. Ltr., dated Sept. 24, 2012, Doc.
No. 79 (“Def. Ltr.”), at 2.) Abandoning
their earlier position, Plaintiffs replied that
the Skyline decision is a “mere post-hoc
justification” for Defendants’ long-standing
practice of targeting visual artists for
enforcement, and that the Revisions should
be ruled unenforceable in their present state,
regardless of Defendants’ intent to revise
them, because of their unequal impact on
similarly situated artists. (Pl. Ltr., dated
Sept. 26, 2012, Doc. No. 81 (“Pl. Ltr.”), at
2-3.)

After the parties engaged in extensive
discovery, including depositions of multiple
high-ranking Parks Department officials,
interrogatories, and the production of
numerous documents, Defendants filed the
instant motion on September 9, 2011. (Doc.
No. 34.) The motion was fully submitted as
of October 20, 2011. However, on May 14,
2012, Plaintiffs requested permission to
supplement the record with evidence of
Defendants’ changed enforcement policy as
to performers following the Skyline decision
(Doc. No. 71); that same day, the Court
granted Plaintiffs’ request and permitted
Defendants to file a response (id.). In their
response, Defendants asserted that the
changed enforcement policy was temporary
pending the City’s appeal of the Skyline
decision. The Court heard oral argument on
the motion on July 20, 2012.

II. LEGAL STANDARD
Pursuant to Federal Rule of Civil
Procedure 56(a), a court may not grant a
motion for summary judgment unless “the
movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that it is
entitled to summary judgment.
See
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). The court “is not to weigh
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(internal quotation marks omitted); accord
Anderson, 477 U.S. at 248. As such, “if
there is any evidence in the record from any
source from which a reasonable inference in
the [non-moving party’s] favor may be
drawn, the moving party simply cannot
obtain a summary judgment.” Binder &
Binder PC v. Barnhart, 481 F.3d 141, 148
(2d Cir. 2007) (internal quotation marks
omitted).

On August 30, 2012, the New York State
Court of Appeals denied the City’s motion
for leave to appeal the Skyline decision, In
re New York Skyline, Inc. v. City of New
York, No. 2012-642, 2012 WL 3743746, at
*1 (N.Y. Aug. 30, 2012), and on September
20, 2012, the Court directed the parties to
make submissions concerning the impact, if
any, of that ruling on the instant motion
(Doc. No. 78). Complying with that order,
Defendants responded that the current
Revisions would not be enforced against
performers but declared their intent to
amend the Revisions so that they would
again apply to and be equally enforced
against performers and vendors of tangible
6

On July 7, 2010, Dua v. New York City Department
of Parks and Recreation, 10 Civ. 5185, was referred
to this Court as related to the present matter.
Plaintiffs in that case voluntarily dismissed the suit
on July 12, 2011. See Dua v. N.Y.C. Dep’t of Parks
& Recreation, 10 Civ. 5185 (RJS), Doc. No. 37. The
case was closed on July 12, 2011.

7

presumptively invalid. See, e.g., R.A.V. v.
City of St. Paul, 505 U.S. 377, 382 (1992).

III. DISCUSSION

1. Content Neutrality

Plaintiffs challenge the Revisions, which
regulate the time, place, and manner of the
sale of expressive matter, under the First
Amendment.
(See Pl. Br. at 2-23.)
Plaintiffs also challenge the Revisions under
the Fourteenth Amendment, asserting that
they impinge on their fundamental First
Amendment rights and are enforced
selectively against art vendors, as opposed
to corporate vendors or performers. (See Pl.
Br. at 23-29.) Finally, Plaintiffs allege
several violations of their civil rights, under
42 U.S.C. § 1985 and § 1986, as well as
retaliation for exercising their free speech
rights. For the reasons set forth below, the
Court finds that Defendants are entitled to
summary judgment on each of Plaintiffs’
claims.

As the Court held in its Memorandum
and Order denying Plaintiffs’ motion for a
preliminary injunction, the Revisions, as
drafted, are unquestionably content-neutral.
See Lederman v. N.Y.C. Dep’t of Parks &
Recreation, No. 10 Civ. 4800 (RJS), 2010
WL 2813789, at *8 (S.D.N.Y. July 16,
2010) (“Lederman III”).
Nevertheless,
Plaintiffs continue to press the argument,
first advanced in their motion for a
preliminary injunction, that the Revisions
are content-based because they treat
expressive matter vendors differently from
other vendors, such as commercial and
corporate ones. (Pl. Br. at 10-15.) The fact
that the Revisions target expressive matter
vendors is undisputed. However, Plaintiffs
are simply mistaken in their assertion that
“all regulations distinguishing between
speakers warrant strict scrutiny.” Turner
Broad. Sys., Inc. v. Fed. Commc’ns
Comm’n, 512 U.S. 622, 657 (1994). In fact,
“heightened scrutiny is unwarranted when
the differential treatment [between speakers]
is justified by some special characteristic of
the particular [speaker] being regulated.” Id.
at 660-61.
Expressive matter vendors
clearly have such a “special characteristic” –
specifically, the fact that they are not
covered by the regulations that govern other
vendors.
Thus, strict scrutiny is not
warranted merely because the Revisions
“target [expressive matter vendors] and no
other type of vendor or parkgoer.” (Pl. Br.
at 8.)

A. First Amendment Claims
Though the expressive matter sold by
Plaintiffs is afforded full First Amendment
protection, see Bery, 97 F.3d at 695-96, the
City may, within constitutional limits,
regulate the time, place, and manner of
activities in public parks, see Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989);
Housing Works, Inc. v. Kerik, 283 F.3d 471,
478 (2d Cir. 2002). To determine if a time,
place, and manner regulation passes
constitutional muster, it is first necessary to
decide if the regulation is content neutral.
Courts apply intermediate scrutiny to
content-neutral time, place, and manner
regulations,
upholding
reasonable
restrictions that are narrowly tailored to
meet a significant government interest and
leave open ample alternative means of
communication. Mastrovincenzo v. City of
New York, 435 F.3d 78, 98 (2d Cir. 2006).
Conversely, content-based regulations are
subject to strict scrutiny and are

As the Supreme Court has explained:
[t]he principal inquiry in determining
content neutrality, in speech cases
generally and in time, place, or

8

Second, Defendants’ purpose in adopting the
new policy was to comply with an
unanticipated (and arguably ill-reasoned 7)
court ruling – a matter plainly divorced from
the content of tangible art vendors’ speech.
Finally, the City’s present enforcement
policy is a sharp departure from the
licensing regime struck down in Bery, where
visual art vendors were effectively banned
while book vendors operated largely
unfettered. See Bery, 97 F.3d at 696. There,
the court suggested that the regulation might
be content-based due to the risk that the
“effective bar on the sale of [visual] artwork
in public places raises concerns that an
entire medium of expression is being lost.”
Id. The same simply cannot be said of the
Revisions, given their relatively limited
impact on tangible art vendors in only four
City parks. Because the Revisions do not
thus “raise[] suspicions that [Defendants’]
objective was, in fact, the suppression of
certain ideas,” Turner, 512 U.S. at 660, the
Revisions are content neutral as enforced.

manner cases in particular, is
whether the government has adopted
a regulation of speech because of
disagreement with the message it
conveys. The government’s purpose
is the controlling consideration. A
regulation that serves purposes
unrelated to the content of
expression is deemed neutral, even if
it has an incidental effect on some
speakers or messages but not others.
Ward, 491 U.S. at 791, accord Hous. Works,
Inc. v. Kerik, 283 F.3d 471, 480 (2d Cir.
2002). In this case, the Revisions are
completely unrelated to the content of the
expressive matter being sold. Plaintiffs have
put forth no evidence to indicate that the
Revisions as drafted treat types of
expressive matter differently based on the
ideas or messages that they convey. Further,
Plaintiffs have not demonstrated that the
spot designations are distributed according
to the content of the expressive matter sold.
Put simply, the Revisions apply to all
expressive matter, regardless of the content
of the item sold.

Nor do the Revisions reflect government
disapproval of the protected activity of
selling expressive matter. See Lederman III,
2010 WL 2813789, at *6-7. As an initial
matter, the Revisions are part of a larger
regulatory scheme that governs the time,
place, and manner of all vendors’ sales. See
56 R.C.N.Y. § 1-05(b)(3); (Linn Decl. Ex.
F). Although the Revisions apply only to
expressive matter vendors, once again, this
is simply because courts have struck down
previous attempts to treat expressive matter
vendors like all other vendors. See Bery, 97
F.3d at 698-99. Indeed, expressive matter

Further, the Revisions as enforced are
content-neutral.
In their supplemental
briefing, Plaintiffs assert that Defendants’
decision to exempt performers from the
Revisions “is an impermissible restriction
based on content.” (Pl. Supp. Br. at 5.)
Putting aside Plaintiffs’ earlier position that
including performers under the Revisions
was evidence of content-based animus,
Plaintiffs again offers a mistaken view of
content neutrality. First, there are any
number of “special characteristic[s]”
distinguishing vendors of tangible art and
performing artists that support the present
policy, not least among them that, as
Plaintiffs acknowledge, performers are
already subject to permitting requirements
when they expect to draw large crowds.

7

Indeed, Judge Buchwald reached the contrary
conclusion in her analysis of the Revisions’ definition
of “vendor.” Specifically, Judge Buchwald held that
vending encompasses face painting and the making
of balloon animals when done for donations. See
Alhovsky v. N.Y.C. Dep’t of Parks & Recreation, No.
11 Civ. 3669 (NRB), 2012 WL 3552916 (S.D.N.Y.
Aug. 16, 2012), at *3-4.

9

vendors are treated more favorably than
other vendors – they can sell their wares
without a general vendor license, they can
sell in any public space in the City subject
only to the General Vendor Laws, and they
can sell in any space under the Parks
Department jurisdiction subject only to the
limited general expressive matter vending
restrictions set forth in section 1-05(b)(3). 8

York City’s licensing requirement applies
across the board to all non-exempt vendors.”
(citation omitted)).
Accordingly,
as
content-neutral
regulations, the Revisions will pass
constitutional muster if they are “narrowly
tailored to serve a significant governmental
interest” and “leave open ample alternative
channels for communication.” See Ward,
491 U.S. at 791 (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293
(1984)) (internal quotation marks omitted).

Plaintiffs’ argument that the Revisions –
specifically, the spot designations – “were
designed to be a clandestine licensing
scheme a[nd] an end run around this Court’s
jurisprudence” (Pl. Br. at 8) is not only
unsupported by the record but also fails as a
matter of law. In support of this apparent
argument that the Revisions delegate too
broad discretion to authorities, Plaintiffs
offer nothing more than the “evidence” that
Parks officials are charged with overseeing
the distribution of the spot designations each
morning, and that Parks officials are vested
with the authority to enforce the Revisions
and issue summonses for those vendors who
are not in compliance. (Id. at 10.) Even if
these facts were not obviously insufficient as
a matter of law, they have nothing to do with
the content of the expressive matter being
sold as opposed to the category of vendor
selling them. See Mastrovincenzo, 435 F.3d
at 99 (“Unlike a licensing scheme in which
‘there are no limiting criteria or standards’
for when a license will be required, New

2. Significant Government Interests
Defendants assert that the Revisions were
promulgated in order to promote the City’s
interests in
alleviating congestion and improving
circulation, promoting aesthetics by
preserving the integrity of the overall
design of the parks, including the
need to preserve landscapes and
scenic views, and ensuring that the
parks are available to the public for a
wide range of activities, including
active and passive recreation,
performances, demonstrations and
the viewing of historical monuments
and public art exhibits.
(Def. Br. at 8-9; see also Linn Decl. Ex. A at
4 (the Revisions “address concerns . . .
related to the proliferation, in certain parks,
of expressive matter vendors and the impact
they can have on parkland and other park
visitors. . . . [T]o accommodate the interest
of a broad range of park visitors, including
the interests of expressive matter vendors
who wish to operate on parkland, the rules
establish general park locations where
vendors may operate and minimum
requirements regarding vending activity.”).)
Without question, these interests are

8

The Court notes that, at oral argument, Plaintiffs
seemed to suggest that vendors who are subject to the
permit scheme in the General Vendor Laws are
somehow “better off” than Plaintiffs. (See Tr. 21:522:17.) However, there is nothing in the record to
suggest that the General Vendor Laws, applicable to
commercial vendors, are less restrictive than the
Revisions. Further, nothing in the record indicates
that Plaintiffs are prohibited from seeking a general
vendor permit. Finally, it must be reiterated that the
Revisions are, in large part, a response to Plaintiff
Robert Lederman’s prior course of litigation that
endeavored to exempt visual art vendors from the
General Vendor Laws.

10

relation to defining “expressive matter
vendors.” (Pl. Br. at 12.) However, the
record indicates that the Parks Department
tracked primarily artists as a means of
gauging the increase in expressive matter
vending and that the Revisions were
spurred, in part, by the dramatic increase in
art vendors. (Linn Decl. ¶¶ 9, 10; id. at Ex.
B; see Pl. Reply 56.1 ¶ 14; Milner Decl. at
Ex. F.) That the Parks Department used
“artists” as shorthand for “expressive matter
vendors” does not betray animus against
artists. Nor is there any indication that the
Parks Department’s proffered reasons for
promulgating the Revisions were a pretext
for driving artists out of the parks.

significant. See Ward, 491 U.S. at 797
(“The city enjoys a substantial interest in
ensuring the ability of its citizens to enjoy
whatever benefits the city parks have to
offer . . . .”); Clark, 468 U.S. at 296 (“[The
g]overnment[ has a] substantial interest in
maintaining the parks . . . in an attractive
and intact condition, readily available to the
millions of people who wish to see and
enjoy them by their presence.”); Bery, 97
F.3d at 697 (“The City certainly has a
significant interest in keeping its public
spaces safe and free of congestion.”);
Lederman I, 1998 WL 186753, at *3 (“The
City undoubtedly 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.”).

Plaintiffs advance several other theories
to support their argument that the Parks
Department’s reasons for promulgating the
Revisions were pretextual. (Pl. Br. at 1520.) These theories also fail. For example,
Plaintiffs insist that Defendants’ proffered
reasons must be pretextual because the City
has an interest in reducing pedestrian
congestion only when there is a nexus
between a threat to public safety and the
congestion the municipality seeks to limit.
(Pl. Br. at 16.) However, the law in the
Second Circuit defines the City’s interest in
alleviating congestion much more broadly.
See Mastrovincenzo, 435 F.3d at 100
(“There can be no doubt that New York
City’s avowed objectives in enforcing its
licensing requirement, such as reducing
sidewalk and street congestion in a city with
eight
million
inhabitants,
constitute
‘significant government interests.’”); Bery,
97 F.3d at 697.

Indeed, Plaintiffs do not dispute that
these stated purposes implicate government
interests.
Rather, Plaintiffs argue that
Defendants’ stated interests are pretextual,
and that Defendants actually promulgated
the Revisions to drive visual artists out of
the parks or to retaliate against Plaintiffs
personally. (Pl. Br. at 10-20, 32-34.) Once
again, however, Plaintiffs’ arguments that
the Revisions were promulgated because of
an animus against artists finds no support in
the record. Plaintiffs argue that vendors of
all sorts increased in the City’s parks
between 2001 and 2010, and the Revisions
therefore betray the City’s animus against
artists because the Revisions target
expressive matter vendors. (Pl. Reply 56.1
¶¶ 14, 16.) As discussed above, however,
the Revisions target expressive matter
vendors specifically because those vendors
were not subject to the regulatory schemes
that govern other vendors.

Additionally, Plaintiffs argue that
Defendants have not offered any evidence to
show that the expressive matter vendors
caused any dangerous congestion or that
they were the sole cause of congestion. (Pl.
Reply 56.1 ¶ 15.) In this vein, Plaintiffs

Plaintiffs also note that, leading up to the
promulgation of the Revisions, the Parks
Department discussed only art and artists in

11

3. Narrowly Tailored

insist that other activities – such as the
Union Square Greenmarket and the Holiday
Markets at Columbus Circle and Union
Square – contribute more significantly to
congestion and pose greater threats to public
safety than expressive matter vendors. (Pl.
Br. at 16-17.) However, as the Court noted
in its July 16, 2010 Memorandum and
Order, “[t]hat the City tolerates heightened
congestion in some circumstances neither
requires it to tolerate such congestion at all
times nor suggests that its other congestionreducing
measures
are
pretextual.”
Lederman III, 2010 WL 2813789, at *9.
Furthermore,
the
Revisions
were
promulgated not only to reduce congestion,
but also to address aesthetic concerns, to
prevent interference with other users’
enjoyment of the parks, and to allow for an
array of activities to take place in the parks.
(See Def. 56.1 ¶ 19; Linn Decl. ¶ 7; Ex. A at
4.)

To be “narrowly tailored,” a regulation
need not be “the least restrictive or least
intrusive means” of achieving the City’s
interest in preserving its parkland and
regulating its use. See Ward, 481 U.S. at
798.
Rather, “the narrow tailoring
requirement is satisfied so long as the . . .
regulation
promotes
a
substantial
government interest that would be achieved
less effectively absent the regulation.” Id. at
799 (quoting United States v. Albertini, 472
U.S. 675, 689 (1985)) (internal quotation
marks omitted). As long as the regulations
as a whole are “not substantially broader
than necessary to achieve the government’s
interest[,] . . . the regulation[s] will not be
invalid simply because a court concludes
that the government’s interest could be
adequately served by some less-speechrestrictive alternative.” Id. at 800.
The record reflects that Defendants
attempted only to impose spot designations
on the most heavily used areas.
For
instance, the Linn Declaration sets forth the
specific considerations made in choosing the
designated vending spots, including the
volume of park visitors, the specific
aesthetic needs of the parks, transportation
within the parks and access to the parks, the
historic uses of the parks, and the
configuration and layouts of the parks. (See
Linn Decl. ¶¶ 7, 16-17, 20-21.)
Additionally, in deciding where to place the
spot designations, the Parks Department
considered where expressive matter vendors
traditionally vended and attempted to
accommodate them even where the general
expressive matter vending restrictions would
otherwise preclude vendors from setting up.
(Id. at ¶ 21.) The record likewise reflects
that the Parks Department considered
comments received during the public review
process, and moved and added spots in

Finally, as discussed, while Plaintiffs
initially argued that the inclusion of
performance artists under the Revisions was
an attempt to drive visual artists out of parks
(Pl. Br. at 14-15), they now contend that
Defendants’ effort to comply with the
Skyline decision is a mere ruse to conceal
the City’s intent to discriminate against
visual artists (Pl. Ltr. at 2) – not to serve the
aforementioned
government
interests.
However, there is simply no evidence in the
record to support this contention.
Because Defendants have shown that the
Revisions
serve
several
significant
government interests, and because Plaintiffs
have done nothing more than allege pretext
(without factual basis), the Court last looks
to whether the Revisions are narrowly
tailored and allow for ample other means of
communication.

12

significant government interests or the
degree to which those interests should be
promoted.”
481 U.S. at 798 (quoting
Albertini, 472 U.S. at 689) (internal
quotation marks omitted). Though the Bery
court did fault the prior licensing regime on
such underinclusiveness grounds, that
finding is inapposite here: the book vendors
in Bery were virtually unregulated and the
art vendors virtually banned; the performers
here remain subject to all Parks Department
regulations outside the Revisions and
tangible art vendors enjoy equal freedom
outside the four parks with the spot
designations. See Bery, 97 F.3d at 698.

response to those comments. See Lederman
III, 2010 WL 2813789, at *10 (noting that
“the Revisions bear the hallmarks of a
carefully considered attempt to advance a
significant government interest without
placing undue burdens on expressive-matter
vendors”).
Moreover, the Revisions essentially track
suggestions set forth in previous cases. For
instance, the Bery Court suggested a “less
intrusive means” for accomplishing the
goals of the regulations it struck down,
including a “first-come, first-served lottery
system for assigning a limited number of
licenses.” 97 F.3d at 698 n.8. That
recommendation echoed the admonition of
numerous other courts to limit licensing
discretion in government officials. See, e.g.,
Ward, 491 U.S. at 791; Hous. Works, Inc.,
283 F.3d at 478.
Consequently, the
Revisions require that medallions be
allocated on a first-come, first-served basis,
and articulate rules and standards that
specifically withhold discretion from
government officials. See 56 R.C.N.Y. § 105(b)(2)-(3). That there may be a different –
or better – way to regulate expressive matter
vendors is not dispositive as long as the
regulations as a whole are “not substantially
broader than necessary to achieve the
government’s interest[.]” Ward, 481 U.S. at
798.

Thus, the Court finds that the Revisions
are narrowly tailored to serve the cited
government interests.
d. Ample Alternative Channels
Neither the federal nor state constitution
guarantees a person the right to
“communicate one’s views at all times and
places and in any manner that may be
desired.” Heffron v. Int’l Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640, 647
(1981). Although ample alternatives must
be available, speakers are not guaranteed
“access to every or even the best channels or
locations for their expression.” Carew-Reid
v. MTA, 903 F.2d 914, 919 (2d Cir. 1990)
(citing City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 812
(1984)). Moreover, the “requirement that
‘ample alternative channels’ exist does not
imply that alternative channels must be
perfect substitutes for those channels denied
to plaintiffs by the regulation at hand.”
Mastrovincenzo, 435 F.3d at 101.

Finally, while Defendants’ decision to
exclude performers from enforcement may
diminish the effectiveness of the Revisions,
there is no evidence in the record to suggest
that such an outcome is inevitable, nor is it
the Court’s place to dictate the minute
details of City policy. As the Supreme
Court instructed in Ward, the “validity of
[time, place, and manner] regulations does
not turn on a judge’s agreement with the
responsible decision maker concerning the
most appropriate method for promoting

The Court finds that, under the Revisions
as drafted and as enforced, expressive matter
vendors have ample avenues to sell their
wares. In Central Park alone, vendors may

13

sell artwork in any part of the perimeter of
Central Park north of 86th Street, and in any
part of the interior of Central Park other than
the pathways along the Central Drive and
Wein and Wallach Walks. (Linn Decl. ¶
29.) Expressive matter vendors may also
sell their wares at any other park in the City,
provided that they comply with the
provisions of the general expressive matter
vending restrictions. (Id. at ¶ 14.) Although
vending is not permitted everywhere – such
as on grassy areas, in close proximity to
park benches, or on pathways that provide
less than a twelve-foot wide clear pedestrian
path – a significant amount of the Parks
Department’s 2,700 acres of parkland in
Manhattan is available to expressive matter
vendors. (Id. at ¶¶ 50-51; Dep. of Douglas
Blonsky, dated June 22, 2011, Doc. No. 38
(“Blonsky Dep. Tr.”), at 22:3-24:4.)

medallions because Jack Linn and the other
mysterious
drafters
cleverly
and
surreptitiously designed the new rules to
foreclose vending entirely within the interior
of these parks.” (Pl. Br. at 22.) Plaintiffs
base this argument on Commissioner Adrian
Benepe’s alleged “inability” to identify legal
vending spots under the general expressive
matter vending restrictions in Central Park
when Plaintiffs presented him with a tourist
map at his deposition. (See Pl. Br. at 21-22;
Tr. of Oral Argument, dated July 20, 2012
(“Tr.”), at 4:16-22.)
However, this argument is a slender reed
in light of the record as a whole. That
Benepe did not identify areas permissible for
expressive matter vendors under the general
restrictions does not indicate that there is not
“a single, bona fide legal spot in any of the
four affected parks outside the medallions,”
as Plaintiff contends. (See Pl. Br. at 22.)
Indeed, the map presented to Benepe solely
concerned Central Park; there is no support
for the contention that the Revisions unduly
limit vending in any of the hundreds of other
parks in the City. Nor do Plaintiffs contend
that areas identified by Defendants as
potentially appropriate for expressive matter
vending – such as the Central Park Mall and
the path leading toward Wollman Rink – fall
afoul of the Revisions. (See Dep. of Jack
Linn, dated June 23, 2011, Doc. No. 44, at
25:6-21; Blonsky Dep. Tr. at 24:2-4.)
Furthermore, expressive matter vendors can
vend on public sidewalks throughout the
City, and the Revisions do not prohibit
expressive matter vendors from giving their
goods away or from vending while not
stationary. (Linn Decl. ¶ 12.)

Plaintiffs rejoin that this account of
available space is a “linguistic trick” by the
Parks Department meant to obscure the fact
that “there is . . . little parkland left under
the Revision[s] legally available for artists.”
(Pl. 56.1 Reply ¶ 42.) Plaintiffs claim that
“only a miniscule amount” of pathways in
Central Park have a fifteen-foot or more
clearance, and that when questioned, certain
Defendants could not identify which
sections of those pathways would be
available to vendors. 9 Plaintiffs argue that
“[a] reasonable jury could infer from these
facts that [D]efendants have utterly failed to
articulate a single, bona fide legal spot in
any of the four affected parks outside the
9

Plaintiffs assert that the Revisions extend the
required clearance to fifteen feet – three more than
under the general vending restrictions. (Pl. Reply
56.1 ¶ 42.) However, as stated in the Revisions,
expressive matter vendors may not erect a display
table within “less than a twelve[-](12)[-]foot[-]wide
clear pedestrian path measured from the display on
the sidewalk or park path to the opposite edge of the
sidewalk or park path.” 56 R.C.N.Y. § 1-05(b)(5)(i).
Thus, there is no support for Plaintiffs’ contention.

Finally, Plaintiffs argue that the spots
available to expressive matter vendors are
not adequate because they are not suitable
for vending activity or are poorly located.
(Tr. at 26:25-27:5.) However, as noted

14

out suspect classifications carry with them a
strong presumption of constitutionality and
must be upheld if ‘rationally related to a
legitimate state interest.’” Beatie v. City of
New York, 123 F.3d 707, 711 (2d Cir. 1997)
(quoting City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985)).

above, the law does not require “access to
every or even the best channels or locations
for their expression.” Carew-Reid, 903 F.2d
at 919. Moreover, if the spot designations
are unsatisfactory, expressive matter
vendors can choose to sell their wares
elsewhere (subject to the general expressive
matter vending restrictions), carry their
wares instead of vending while stationary, or
obtain a general vendor permit.

Expressive matter vendors are not a
suspect classification, and Plaintiffs do not
suggest as much.
Instead, Plaintiffs’
argument for strict scrutiny rests on the
contention that the Revisions impinge on
Plaintiffs’ fundamental, First Amendment
rights. (Pl. Br. at 23-28.) However, as
discussed above, the Court finds that the
Revisions fall well within the parameters of
the First Amendment. Accordingly, the
Revisions are subject only to rational basis
review for equal protection purposes. Under
rational basis review, Plaintiffs’ Equal
Protection claims must fail as a matter of
law, because Defendants have met the low
bar in establishing that the Revisions are
“rationally related to a legitimate
government interest,” namely, promoting the
use and enjoyment of public parks. See
Kraham v. Lippman, 478 F.3d 502, 506 (2d
Cir. 2007); see also City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 55
(1986) (finding that respondents fared “no
better under the Equal Protection Clause
than under the First Amendment itself”
when a sufficient rationale existed for the
ordinance under the First Amendment).

While Plaintiffs may prefer to vend
throughout the more lucrative park areas, the
very qualities that make these locations
attractive to Plaintiffs – presumably, high
foot traffic – support the City’s efforts to
regulate their use. Accordingly, because the
Revisions are content-neutral, and narrowly
tailored to serve a substantial government
interest while permitting ample other
avenues for communication, the Court finds
that Defendants are entitled to summary
judgment on Plaintiff’s First Amendment
claims.
B. Equal Protection Claims
Plaintiffs also challenge the Revisions
under the Fourteenth Amendment, alleging
that the regulations intrude on their
fundamental First Amendment rights and
discriminate against them as visual art
vendors while sparing similarly situated
vendors. (See Pl. Br. at 23-29.) However,
for the reasons discussed above, both of
these claims fail.

Furthermore, Plaintiffs’ contention of
discrimination is wholly unjustified. Prior
to the Skyline decision, Plaintiffs’ sole
support for this allegation were conclusory
assertions that corporate vendors are exempt
from the Revisions and that “favored artists”
such as Sol Lewitt and Christo and JeanClaude were permitted to install work in the
parks while Plaintiffs are limited in their
ability to do so.
(Pl. Br. at 26-28.)

The equal protection clauses of the
federal and state constitutions “guarantee[]
every person the equal protection of the
laws, ‘which is essentially a direction that all
persons similarly situated should be treated
alike.” Jankowski-Burczyk v. INS, 291 F.3d
172, 176 (2d Cir. 2002). “Legislative acts
[and regulatory schemes] that do not
interfere with fundamental rights or single

15

However, as discussed earlier, there are
plainly legitimate reasons for these
distinctions, not least among them that the
so-called “favored artists” were merely
displaying their works as opposed to
vending and that corporate vendors are
subject to other, stricter regulations not
imposed on expressive matter vendors.
Plaintiffs’ claims of unequal treatment have
somewhat more force in light of Defendants’
changed policy with respect to performers,
but on close inspection, these claims too
must fail. As an initial matter, it is wellestablished that courts are sharply limited in
their ability to question governmental linedrawing under rational basis review. See,
e.g., Williamson v. Lee Optical, Inc., 348
U.S. 483, 486 (1955). That there is no
apparent invidious discrimination or animus
alone warrants upholding the Revisions.
However, the record itself provides
significant support for the finding the
Plaintiffs’ claims are unfounded. First, it is
not at all apparent to the Court that tangible
art vendors and performing artists are
similarly situated – indeed, Plaintiffs
themselves argued for the exclusion of
performers on these grounds prior to the
Skyline decision.
Moreover, there is
significant evidence in the record that the
influx of tangible art vendors – and tangible
art vendors alone – was the driving impetus
for the Revisions in the first place. (Linn
Decl. ¶¶ 9, 10; id. at Ex. B; Neufeld Decl.,
Ex. L at 11:9-14, 16:8-17:17). Finally,
Defendants have, at a minimum, articulated
one very rational basis for any alleged
disparate treatment – namely, the desire to
comply with a judicial ruling in Skyline.
(See Tr. at 6:14-8:8.)

C. Plaintiffs’ Other Claims
Plaintiffs also raise claims for conspiracy
under 42 U.S.C. § 1985 and § 1986, and a
claim for retaliation. Because Plaintiffs’
First and Fourteenth Amendment claims
have failed, their conspiracy and retaliation
claims must fail as well.
Section 1985 allows an injured party to
seek damages if “two or more persons in any
State conspire . . . for the purpose of
depriving, either directly or indirectly, any
person or class of persons of the equal
protection of the laws, or of equal privileges
and immunities under the laws.” 42 U.S.C.
§ 1985. To state a conspiracy claim in
violation of § 1985, a plaintiff must allege
(1) a conspiracy, (2) for the purpose of
depriving any person or class of persons of
the equal protection of laws, (3) an act in
furtherance of the conspiracy, (4) whereby a
person is deprived of any right or privilege
of a citizen of the United States. Griffin v.
Breckenridge, 403 U.S. 88, 102-03 (1971).
As Plaintiffs cannot demonstrate that the
Revisions impinge upon their First or
Fourteenth Amendment rights, their
conspiracy claim must also fail.
Plaintiffs seek to hold Mayor Michael
Bloomberg liable under 42 U.S.C. § 1986,10
which states that any person “who, having
knowledge that any of the wrongs conspired
to be done, and mentioned in § 1985 of this
title, are about to be committed, and having
power to prevent or aid in preventing the
commission of the same, neglects or refuses
so to do” is liable to the injured party for

Consequently, Defendants’ motion for
summary judgment on Plaintiffs’ Fourteenth
Amendment claim is granted.

10

Plaintiffs identified this claim as arising under 42
U.S.C. § 1985. (See Compl. ¶¶ 50-53.) However,
because Plaintiffs allege that Mayor Bloomberg
failed to prevent a § 1985 violation, it is clearly a
claim under § 1986.

16

such a wrongful act "if such wrongful act be
committed." However, without a violation
of § 1985, there can be no violation of
§ 1986. See 42 U.S.C. § 1986; Jews Jor

to enjoy whatever benefits the city parks
have to offer." Ward, 491 U.S. at 797
(1989). Because the City has established
that unbounded vending would squelch a
range of those benefits, and has responded
with narrow, targeted regulations that leave
Plaintiffs ample opportunity to exercise their
rights, Defendants' motion for summary
judgment is granted. The Clerk of the Court
is respectfully requested to terminate the
motion located at Doc. No. 34 and to close
this case.

Jesus, Inc. v. Jewish Cmty. Relations
Council oj NY, Inc., 968 F.2d 286, 292 (2d
Cir. 1992). Thus, Plaintiffs' § 1986 claim
fails.
Finally, to make out a First Amendment
retaliation claim, a plaintiff must show
"(1) an interest protected by the First
Amendment; (2) [that] defendants' actions
were motivated or substantially caused by
his exercise of that right; and (3) [that]
defendants' actions effectively chilled the
exercise of his First Amendment right."
Curley v. Vill. oj Suffern, 268 F.3d 65, 73
(2d Cir. 2001). Because the Revisions are
valid time, place, and manner restrictions
that leave Plaintiffs ample alternative
channels for vending, Plaintiffs cannot fulfill
the third element of the claim. I I
Accordingly, Plaintiffs' retaliation claim
fails as well, and Defendants' motion for
summary judgment on these claims is
granted.

SO ORDERED.

R~

United States District Judge
Dated: September 30,2012
New York, New York

***
Plaintiffs Robert Lederman and Jack
Nesbitt are represented by Julie Marie
Milner of Milner Law Office, PLLC, 8302
Broadway, Third Floor, Elmhurst, New
York 11373.

IV. CONCLUSION

Plaintiffs have made a practice of
contesting any attempt to limit their ability
to display and sell their art whenever and
however they please.
However, the
Constitution recognizes that the City must
be permitted to balance Plaintiffs' speech
rights with other myriad demands on
It is thus beyond
municipal resources.
debate that the City "enjoys a substantial
interest in ensuring the ability of its citizens

Defendants are represented by Michael
A. Cardozo, Corporation Counsel of the City
of New York, as well as Mark W.
Muschenheim, Teresita Villaseca Magsino,
and Sheryl R. Neufeld, of Counsel, 100
Church Street, New York, NY 10007.

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#: ____--~~--nATE FILED: uJ:3012»! 2-

11 Plaintiffs' appear to bring a claim against the City,
pursuant to Monell v. Dep '( of Soc. Servs. of City of
N.Y, that mirrors their retaliation claim. See 436
U.S. 658 (1978); (Compl. ~~ 57-62). Naturally, this
claim fails for the same reason that the individual
retaliation claim fails.

17