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

Filing 43

MEMORANDUM AND ORDER granting 35 Motion for Summary Judgment. For the foregoing reasons herein, defendants' motion for summary judgment is granted insofar as this Court dismisses the only federal claim. This Memorandum and Order resolves Docket No. 35, and the Clerk of Court is respectfully requested to close this case. (Signed by Judge Naomi Reice Buchwald on 8/19/2014) Copies Mailed By Chambers. (kgo)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------X ALEXANDER ALHOVSKY and OKSANA GONCHARENKO, Plaintiffs, 11 Civ. 3669 (NRB) - against MEMORANDUM AND ORDER NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, ADRIAN BENEPE, JACK T. LINN, ALESSANDRO GIOVANNI OLIVIERI, CAPT. MCCANTS, SGT. B. LANGSTON, and the CITY OF NEW YORK, Defendants. ----------------------------------X NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE Plaintiffs Alexander Alhovsky and Oksana Goncharenko, a married couple who were “expressive matter vendors” in Central Park, have brought this action against the City of New York, the New York Department’s City Department former of Parks Commissioner and Adrian Recreation, Benepe, the Assistant Commissioner Jack Linn, General Counsel Alessandro Olivieri, and Park Enforcement Patrol Officers Bene eight separate causes Langston. Of the plaintiffs’ initial complaint, only two McCants of and action remain Bruce pled following in a November 2013 stipulation – a claim alleging the violation of the equal protection clause premised on selective enforcement of park vending rules, brought pursuant to 42 U.S.C. § 1983, and a claim for gross negligence brought pursuant to New York state law. Now pending before the Court is defendants’ motion for summary judgment. For the reasons stated herein, this Court grants motion defendants’ with respect to the claim brought pursuant to § 1983 and dismisses without prejudice the state negligence claim. BACKGROUND1 I. The Parties Plaintiffs Alhovsky and Goncharenko are “expressive matter vendors” who paint faces and make balloon animals for children in Central Park in exchange for optional donations. 56.1 ¶¶ 9-10. Defs. R. See also Alhovsky v. New York City Dept. of Parks and Recreation, No. 11 Civ. 3669 (NRB), Memorandum & Order, August 16, 2012 (holding that plaintiffs were “expressive matter vendors” within the meaning of Park Regulation 56 R.C.N.Y. § 105(b)(1)). Between 2010 and 2012, the time period relevant to 1 The facts recited here draw upon the Second Amended Complaint (“Compl.”), filed June 21, 2012; Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment, filed February 24, 2014 (“Defs. Mem.”), Defendants’ Rule 56.1 Statement in Support of their Motion for Summary Judgment, filed February 24, 2014 (“Defs. R. 56.1”), the Declaration of Rachel K. Moston, Esq. in Support of Defendants’ Motion for Summary Judgment, filed February 24, 2014 (“Moston Decl.”), and the exhibits annexed thereto; Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, filed April 7, 2014 (“Pls. Opp.”); Plaintiffs’ Response to Defendants’ Rule 56.1 Statement, filed April 7, 2014 (“Pls. R. 56.1 Ctr. Stmt.”); the Declaration of Robert K. Erlanger, Esq. in Opposition to Defendants’ Motion, filed April 7, 2014 (“Erlanger Decl.”), and the exhibits annexed thereto; and Plaintiffs’ Reply Memorandum of Law in Further Support of their Motion for Summary Judgment, filed April 21, 2014 (“Defs. Reply Mem.”). 2 this action, plaintiffs vended almost exclusively on Wien Walk, a pathway in Central Park running from the southeast entrance to Central Park at Fifth Avenue and 60th Street to the south gates of the Central Park Zoo. Defs. Mem. at 2; Defs. R. 56.1 ¶ 9. Defendant New York City Department of Parks and Recreation, acting on behalf of the City of New York, has promulgated certain rules and regulations of “expressive matter vending” – i.e., the sale or offering in exchange for donation any materials with expressive content, including newspapers, visual art, or entertainment. these rules permissible limit Defs. R. 56.1 ¶¶ 2-5. expressive options – matter vending from As relevant here, vending to specifically one of two designated “green spots,” which are allocated on a first come, first serve basis, or, in the alternative, fully mobile vending without the use of a cart, display stand or other device. Defs. Mem. at 2- 3; further Defs. R. 56.1 ¶¶ 3-7. The park rules prohibit vendors from storing or leaving unattended personal belongings. Defs. R. 56.1 ¶ 8. The individual defendants who are parties to the instant action are members or former members of the Parks Department tasked, inter alia, with enforcement of park vending rules. Defs. Mem. at 2; Pls. Opp. at 1; Defs. R. 56.1 ¶¶ 11-21. Plaintiffs generally vended on a mobile basis from their Wien Walk location, though they occasionally made efforts to claim a designated “green spot,” 3 as discussed infra. On a typical day, plaintiffs Alhovsky and Goncharenko were two of approximately five mobile vendors on Wien Walk. Dep. of Bruce Langston, Erlanger Decl. Ex. 8 at 46-50. II. Enforcement Actions against Plaintiffs The principal facts underlying plaintiffs’ selective enforcement claim involve certain enforcement actions undertaken by defendants against plaintiffs for violation of Park rules. Between 2010 and 2012, defendants issued plaintiff Alhovsky three Notices of Violation (“NOVs”) and one related criminal summons issued for vending plaintiff in an unlawful Goncharenko property in Central Park. one location, NOV for and defendants storing unattended Defs. Mem. at 3-4; Pls. Opp. at 1-2. More specifically, on July 30, 2010, defendant PEP Officer Langston issued Alhovsky, then vending on Wien Walk, the first NOV pertinent to this action for failure to comply with the Park’s mobility rule for non-green spot vendors. 1-2. Pls. Opp. at Plaintiffs allege that Sergeant Langston acted at the direction of his supervisor, defendant McCants. The next day, July 31, 2010, Sergeant Id. Langston issued Alhovsky an NOV for failure to remain mobile, again allegedly at the direction of Captain McCants. that time, according to Id.; Defs. R. 56.1 ¶ 14. Alhovsky’s deposition testimony, At PEP officers requested that Alhovsky comply with the park’s mobility regulations. Dep. of Alexander Alhovsky, Erlanger Decl. Ex. 3 4 at 29. Shortly thereafter, Sergeant Langston issued plaintiff Alhovsky a Criminal Court Summons for failure to comply with the directives of an officer in violation of Park Rules. 56.1 ¶ 15. After issuing the summons, PEP Defs. R. Officers took plaintiff Alhovsky into custody, transported him to the precinct for processing and fingerprinting, approximately two hours later. and released him Erlanger Decl. Ex. 3 at 29. However, no criminal charges were pursued, and, according to Alhovsky, the summons was removed from the system. Id. at 30. According to plaintiff’s own deposition testimony, the July 31, 2010 arrest came as no surprise to Alhovsky. Sergeant Langston had warned him the previous week “that they were going to arrest me next time they see me doing what I do.” Id. at 26. In response, Alhovsky decided to invite media personnel to the Park, and apparently further decided to provoke an arrest. his deposition, Alhovsky testified that after receiving At the prior day’s NOV, he “decided to come out and get arrested the next day.” advance, he Id. at 56. To publicize his anticipated arrest in “specifically called the media, newspapers magazines[;] I made sure the cameras are all set up.” 26. and Id. at After receiving defendants’ initial warning that he was vending in violation of park mobility rules, Alhovsky testified that “[a]ll I wanted is just to see if [an arrest was] really 5 going to happen.” Id. at 27. According to Alhovsky, the PEP officers were “reluctant” to arrest him on July 31, 2010. The occurred third enforcement nearly two years action against later. On plaintiff June 16, Id. Alhovsky 2012, Parks Commissioner Benepe, whose office overlooked Wien Walk, summoned Sergeant Langston and pointed out that Alhovsky was “always in violation at this location,” and that he was “tired of this guy being in this location in violation.” Decl. Ex. 8 at 69-71. Pl. Opp. at 2; Erlanger Thereafter, Sergeant Langston issued Alhovsky an NOV for violating park mobility rules once again. Defs. R. 56.1 ¶ 14; Moston Decl. Ex. B. During the relevant two-year time period, plaintiff Goncharenko received only one NOV for violation of the rule prohibiting unattended property. That ticket was issued by PEP Officer Knowles on July 27, 2012, shortly after McCants and Langston had observed an unattended hamper filled with balloons in a tree near the zoo’s south gate. Defs. R. 56.1 ¶ 18; Pls. Opp. at 2. At the time, Goncharenko was on the opposite side of the gate. Pls. Opp. at 2; Erlanger Decl. Ex. 8 at 73-76. Goncharenko paid the fine and did not dispute the ticket. Tr. at 3. That plaintiffs were ticketed for actual violations of Park Rules is not in dispute here. Tr. at 5-6. plaintiffs the acknowledged that 6 three At oral argument, tickets issued to plaintiff Alhovsky “were properly given” for violation of park mobility rules. Tr. at 2-3. With regard to plaintiff Goncharekno’s ticket for unattended property, plaintiff conceded in argument, “Was [Goncharenko’s hamper] strictly unattended? suppose so.” Tr. at 3. I Instead, the gravamen of plaintiffs’ complaint, discussed infra, is that the enforcement action they experienced constituted unconstitutional “selective enforcement” of the Park Rules. Although the briefing focused largely on the four NOVs and one criminal summons plaintiffs received between 2010 and 2012, at oral argument plaintiffs harassment by PEP officers. emphasized instead alleged Tr. at 12 (“[T]here are allegations by my clients that they were singled out to be harassed every day, not just get tickets. PEP officers standing on top of them telling them to move, move, move, move, and [the officers] are not doing it to anybody else, they are just doing it to them. . . . Again, it is not just the tickets. harassment.”). It is a day-in, day-out Plaintiffs testified that PEP officers shadowed them and gave them recurrent directives to remain mobile, which differed in kind and in frequency from directives given to other vendors. Pls. Opp. at 4; Compl. ¶¶ 42, 44. According to plaintiffs’ depositions, PEP officers only permitted Goncharenko to remain in one spot for five minutes, apparently in accordance with Park Rules. Pls. Opp. at 4. 7 When Alhovsky, who vended under the name “Sasha the Clown,” was observed to be stationary for a period of time, PEP officers advised him, “Hey Sasha, you are pissing off the boss. Move. Come on, move, Sasha.” Id. Further, plaintiff Goncharenko testified that PEP officers laughed at and made fun of her accent, at least initially. She explained that “[w]hen I just get to New York, I got a thick accent and I couldn’t speak at all. I wouldn’t understand 80 percent of what they are saying.” Erlanger Decl. Ex. 4 at 44- 45. Captain She further testified that McCants and others insulted her by saying, “I am not talking to you, okay? . . . I got to talk to your husband because you don’t understand.” at 45. Id. Goncharenko clarified that Sergeant Langston did not take part in that conduct and was “always respect[ful].” Id. When questioned about anti-Russian conduct, however, Alhovsky testified that PEP officers, including Captain McCants, Sergeant Langston and others, “never” Erlanger Decl. Ex. 3 at 70-71. that defendants “like used racial epithets or slurs. Indeed, plaintiffs have conceded [Alhovsky] “personal animus” against him. personally” and harbor no Tr. at 13 (“As to why they are singling [Alhovsky] out, apparently they like him personally. I did the depositions of Langston and McCants, and nobody seemed to have any personal animus against them.”). 8 III. Comparators and Other Enforcement Actions In support of their selective enforcement claim, plaintiffs allege that individuals. they were treated from similarly situated See infra Section V, for further discussion of the applicable legal standards. Hence, defendants produced during discovery all NOVs to “expressive matter vendors” for unlawful vending that occurred in a non-designated “green spot,” issued in the approximately two-year time period between July 20, 2010 and September 20, 2012. Defs. Mem. at 8. Twenty-three such NOVs were issued during that period to non-green spot expressive matter vendors. Id. Of those twenty-three tickets, three were issued to plaintiff Alhovsky and one was issued to plaintiff Goncharenko, as described supra. Id. Ten of the twenty-three NOVs, including the four received by plaintiffs, covered conduct on Wien Walk, where plaintiffs almost exclusively vend. Id. Plaintiffs do not dispute these numbers, although they choose to frame the numbers within narrower categories – noting, for example, that of eight NOVs issued on Wien Walk for non-mobile vending violations specifically, Alhovsky was issued three. Pls. Opp. at 12. In an attempt to carry their burden, plaintiffs identified in their responses to interrogatories five similarly situated individuals, sometimes referred to as “comparators,” whom they allege were treated differently than plaintiffs: 9 (1) Ronnie Weinstein the puppeteer, (2) Abraham the Juggler, (3) David Rice the Juggler, (4) balloon-shaper. Josh the Juggler, and the facts Colin Jaffee, a Defs. Mem. at 9; Pls. Amended Response to First Set of Interrogatories, Moston Decl. Ex. D. here (5) elicited in discovery We briefly describe about these identified comparators. The first three identified comparators – Ronnie Weinstein the Puppeteer, Abraham the Juggler, and David Rice the Juggler – are similar to one another, and different from plaintiffs, in a number of respects. For instance, unlike plaintiffs, all three vended as pure entertainers and did not distribute “expressive matter.” Defs. Mem. at 15, n.10; Erlanger Decl. Ex. 3 at 36-37, 41-43, 46. All three also vended either primary or exclusively on Wallach Walk, a location north of the zoo and separated by the zoo itself from plaintiffs’ vending location on Wien Walk.2 Erlanger Decl. Ex. 3 at 38, 42, 46. As to all three, plaintiff Alhovsky testified that he believed they had never received a notice of violation, but did not know if they had been arrested or issued a criminal court summons in connection with their vending. Id. at 39, 43, 47. 2 Plaintiff identified the The first comparator, Ronnie Weinstein the Puppeteer, whose nationality Alhovsky identified as “Jewish,” apparently vended primary on Wallach Walk, north of the zoo, but also vended occasionally from a designated green spot on Wien Walk. Defs. Mem. at 10; Erlanger Decl. Ex. 3 at 37-38 (“Q: Where specifically on Wien Walk [does Ronnie vend]? A: “On the designated green spot where it’s available . . . Most part, 90 percent I see him on Wallach.”). The latter two, Abraham the Juggler and David Rice the Juggler, vended exclusively on Wallach Walk. Erlanger Decl. Ex. 3 at 42, 46. 10 nationality of the first two comparators, Ronnie Weinstein the Puppeteer and Abraham the Juggler, as “Jewish,” but did not testify as to the nationality of David Rice the Juggler. Id. at 41, 43-44. With regard to all of the first three comparators, Alhovsky testified failure about to comparators situations remain escaped in mobile, which while enforcement he received his despite tickets equally committing infraction at the same location on Wallach Walk. for non-mobile the same See, e.g., Erlanger Decl. Ex. 3 at 40 (“Q: Has there ever been a situation when you are vending in the same location and enforcement action had been taken Puppeteer]? against you but not Ron[nie Weinstein the A: Yes . . . Any of the tickets I was given on Wallach Walk on the north side has him in the background. I was given a ticket, he was left alone.”); see also id. at 44, 47. In all three cases, however, Alhovsky’s testimony is belied by the documentary record, which establishes that all of Alhovsky’s tickets were issued on Wien Walk, not Wallach Walk. The fourth identified comparator, Josh the Juggler, vended as an entertainer basing himself on Wien Walk, which was also plaintiffs’ primary vending location. Id. at 50. Alhovsky identified Josh’s nationality as “Asian,” and more specifically “Korean.” Id. at 52. When asked about enforcement action against Josh the Juggler, Alhovsky recalled the existence of 11 “one incident but I don’t know when it happened;” he also had limited information as to where the enforcement action occurred and whether it carried criminal consequences. Id. at 51. Plaintiff Goncharenko testified that she was not familiar with Josh the Juggler. The closest fifth Erlanger Decl. Ex. 4 at 33. identified comparator plaintiffs. who comparator, was situated Jaffee, most the similarly to Erlanger Decl. Ex. 3 at Jaffee also vended on Wien Walk, and particularly “in the same part of Wien Walk” as did plaintiffs. addition is Like plaintiffs, Colin Jaffee was a balloon shaper and thus an “expressive matter” vendor. 52-54. Colin to vending the same wares at the Id. at 52. same In location as plaintiffs, Jaffee also shared another similar condition – he too had been the subject of enforcement action and had received an NOV during the relevant time period from Park officers. Id. at 53. Although not identified in their interrogatory response, plaintiffs mentioned in their opposition papers two additional comparators, about whom less information is available. Opp. at 3-4. Pls. Sean, a fellow balloon-shaper who vended on Wien Walk, apparently did not receive NOVs, perhaps because, unlike Alhovsky, he complied with PEP officer directives given to him. Erlanger Decl. Ex. 3 at 74 (“Q: Did Sean ever have enforcement action taken against him? A: No, other than told to leave and 12 he would leave.”). Jason Ruby and his wife Stacey, also face- painters and balloon-shapers, based themselves on Wallach Walk. Erlanger Decl. differential Ex. 4 treatment at 26-27. from Although Ruby and his plaintiffs wife, allege Alhovsky testified that Ruby and his wife were issued a ticket by PEP officers for a vending violation. IV. Erlanger Decl. Ex. 3 at 69. Green Spot System The remaining facts relevant to the instant motion involve plaintiffs’ state law negligence claim. As discussed supra, in summer 2010 the Park promulgated a regulatory regime, whereby expressive matter vendors could lay claim to specifically designated “green spots,” within which vendors were permitted to vend on a non-mobile basis, with the use of a cart, display stand, or other device.3 Defs. R. 56.1 ¶ 6; Rules of the City of New York, Title 56, §1-05(b)(2)-(3). Pursuant to Park rules, the green spots were allocated daily to vendors on a first-come, first-served basis, beginning when the Park opened at 6 a.m. Defs. R. 56.1 ¶ 7; Pls. R. 56.1 Ctr. Stmt. ¶ 104. PEP Officers were typically present to supervise the appropriation of green spots for the day. Pls. R. 56.1 Ctr. Stmt. ¶ 105-107. For the first few days after the green spot regime went into effect in summer 2010, Park personnel observed vendors rushing to claim 3 As discussed extensively supra, expressive matter vendors are permitted to vend outside the green spots only on a mobile basis – i.e., without the use of a cart, display stand, or other device. Defs. R. 56.1 ¶ 6. 13 spots, but that haste subsided within the week. Dep. of Michael Dockett, Erlanger Decl. Ex. 9 at 16, 19. Plaintiffs’ negligence claim stems from two injuries sustained by plaintiff Alhovsky as he sought to claim a green spot in 2010, shortly after the enforcement of the green spot regime began. 75-87. Compl. ¶¶ 46-47, 91-95; Erlanger Decl. Ex. 3 at On the first occasion, August 1, 2010, Alhovsky fell and injured his hamstring. Erlanger Decl. Ex. 3 at 75-82. Approximately one week later, on August 7, 2010, Alhovsky fell and fractured his elbow, for which he sought hospital treatment including X-rays, an MRI, a sling and pain medication. 83-87. Id. at Alhovsky testified that on both occasions, he did not trip and was not pushed to the ground, but rather fell due to a weakness in his leg. Id. at 79-80, 83-87. In the complaint, plaintiffs allege that, by instituting the first-come, foreseeably gave first-served rise to a allocation “frenzied, mob regime, rush for which a green spot,” defendants committed a breach of their duty of care, causing Alhovsky’s injuries. Compl. ¶¶ 91-95. DISCUSSION V. Standard of Review A motion for summary judgment is appropriately granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 14 FED. R. CIV. P. 56(a). In this context, “[a] fact is ‘material’ when it might affect the outcome of the suit under governing law,” and “[a]n issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and citations omitted). “In assessing the record to determine whether there is [such] a genuine issue to be tried, we are required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). On a motion for summary judgment, “[t]he moving party bears the initial burden of demonstrating ‘the absence of a genuine issue of material fact.’” F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). non-moving party “must come Where that burden is carried, the forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” party Id. (citing Anderson, 477 U.S. at 249). “must do more than simply show that The non-moving there is some metaphysical doubt as to the material facts . . . and may not rely on conclusory allegations or unsubstantiated speculation.” 15 Brown v. Eli Lilly and Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal quotation marks and citations omitted). VI. Equal Protection Claim The Equal Protection Clause requires that the government treat all similarly situated people alike. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). remaining federal violated this claim, plaintiffs fundamental allege precept by In their sole that defendants pursuing selective enforcement of Park rules against plaintiffs. A. Selective Enforcement To prevail on a standard claim of selective enforcement, plaintiffs must establish two elements: “(1) that they were treated differently from other similarly situated individuals, and (2) that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or malicious punish or bad the exercise faith intent of to constitutional injure a rights, person.” or Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (internal quotation marks and citations omitted). Historically, these two factors were known, respectively, as the “unequal hand” and “evil eye” elements, and where both were present a law “fair on its face and impartial in appearance” could still be enforced in such a manner as to constitute the 16 denial of constitutional rights. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Conspicuously meaningful absent evidence of from the the before requisite second record us prong – is that plaintiffs’ Russian national origin impermissibly motivated the alleged differential treatment. evidence suggesting plaintiffs’ that national origin See Compl. ¶ 108. defendants is were Goncharenko’s The only attentive testimony to that, shortly after her arrival in New York, PEP officers laughed at her accent and her difficulty understanding English and told her that they preferred to speak to her husband Alhovsky, himself of Russian origin. By Erlanger Decl. Ex. 4 at 44-45. contrast, the weight of the evidence, including plaintiffs’ own testimony, instead indicates that discriminatory animus did testified not that Goncharenko’s motivate defendants’ PEP officers, accent, “never” enforcement. including used Erlanger Decl. Ex. 3 at 70-71. the racial one epithets Alhovsky who mocked or slurs. Goncharenko further testified that Sergeant Langston, the PEP officer with whom plaintiffs apparently most frequently interacted and who issued plaintiffs all four of the NOVs they received in the relevant time period, was “always Moreover, respect[ful].” according to Erlanger plaintiffs, Decl. defendant Ex. Jack 4 at Linn, 45. then Assistant Commissioner, visited plaintiffs in the Park “and he 17 actually told us that we are doing a good job.” Indeed, at entirely, oral argument, indicating against plaintiffs. that plaintiffs defendants Id. at 46. conceded held point personal no the animus Tr. at 13. In light of these facts, plaintiffs acknowledged at oral argument that [defendants] “the discriminated were Russian.” show that evidence alleged not against Tr. at 12. the is particularly that because [plaintiffs] strong they Because plaintiffs admittedly cannot differential treatment was based in impermissible considerations of their national origin, they fail to establish enforcement a requisite action and element of accordingly a standard cannot selective survive summary judgment on the claim itself. B. Class of One In recognition of this weakness, plaintiffs’ briefing and argument focused primarily on a second form enforcement action – the “class of one” claim. of selective Pursuant to this doctrine, a plaintiff claiming violation of his equal protection rights need only allege that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiffs may bring do a “class of one” action even if they not claim membership in a class or differential treatment based on race, 18 religion, national origin or the like, so long as they can show “invidious discrimination” by government officials, Harlen, 273 F.3d at 499, which was “intentional and arbitrary.” Olech, 528 U.S. at 564. Though plaintiffs in a “class of one” action need not show class membership and discriminatory animus on the basis thereof, such plaintiffs establishing situated. must nonetheless differential meet treatment a high from standard others when similarly Second Circuit precedent instructs that “[c]lass-of- one plaintiffs must show an extremely high degree of similarity between themselves themselves.” and the persons to whom they compare Ruston v. Town Bd. for Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.2006)). “Accordingly, to succeed on a class- of-one claim, a plaintiff must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.” (citation omitted). Id. at 59-60 Though the question of similar situation is a factual inquiry that typically should be submitted to the jury, in cases where no reasonable 19 jury could find that plaintiffs have made the requisite showing of extremely high degree of similarity, summary judgment is appropriate. Harlen, 273 F.3d at 499 n.2. Plaintiffs here have neither sufficiently established the required “high degree of similarity” between themselves and comparators nor have they shown reliable evidence of treatment so differential that no rational basis or legitimate government policy could explain the disparity. must be noted majority of that the plaintiffs’ evidence As an initial matter, it testimony regarding comprises similar the vast situation, with limited or no corroboration from other witnesses or documents regarding the names, facts, or even existence of the comparators. Nonetheless, even crediting where possible plaintiffs’ uncorroborated testimony and drawing all permissible inferences in their favor, as we must, this Court cannot satisfy itself that plaintiffs have sufficiently situation to comparators. record indicates genuine shown the required similar As exhaustively detailed supra, the differences between plaintiffs, who were expressive matter vendors vending on Wien Walk, a heavily trafficked path to the Central Park Zoo, and a number of the named comparators, who were pure entertainers vending on Wallach 20 Walk,4 which was “not even close to where the zoo area is.” Langston Dep., Erlanger Decl. Ex. 8 at 50. That difference in location gives rise to an explanation for possible differential treatment that is far more plausible than the invidious or baseless account argued by plaintiffs. As Alhovsky himself testified, plaintiffs vended directly in front of Commissioner Benepe’s office. (“Q: Erlanger Decl. Ex. 3 at 74 Do you know if he can see you out his window? got like the best view of me out there. is directed. He doesn’t see much A: He’s That’s where his window other than me.”). Per defendant Langston’s testimony, Benepe commented that Alhovsky was “always in violation at this location,” and that he was “tired of this guy being in this location in violation.” Opp. at 2; Erlanger Decl. Ex. 8 at 70-71. Pl. Plaintiffs do not dispute that they committed the violations for which they were ticketed. Tr. at 3, 5-6. Hence, to the extent that defendant Benepe was in a position to continually observe plaintiffs in violation rules are of Park in rules, accordance defendants’ with their actions to enforce obligations as the Parks Department officials, rather than evidence of “intentional and arbitrary” discrimination. Olech, 528 U.S. at 564. To be sure, vendors who chose to vend on Wallach Walk may have been beyond 4 These three comparators were Ronnie Weinstein the Puppeteer, Abraham the Juggler, and David Rice the Juggler. See supra, Section III. Balloonshaper and face-painter Jason also vended from Wallach Walk. 21 the scope of defendant Benepe’s personal observation and hence may have received less enforcement attention. That state of affairs, however, does not persuade us that “Benepe’s conduct toward Alhovsky and Goncharenko has been invidious and in bad faith” or otherwise motivated by “personal animus,” as plaintiffs contend, particularly in the absence of any other evidence to that effect. Compl. ¶ 110-11. Indeed, plaintiffs themselves have conceded that no personal animus existed. at 13. Tr. If plaintiffs felt “singled out” compared to those who vended on Wallach Walk, they were certainly welcome to relocate away from the immediate environs of Parks Department offices. Comp. ¶¶ 108-110. The type of vending represents another difference between plaintiffs and named comparators. painters, plaintiffs constituted As balloon-shapers and face“expressive matter vendors,” who provided their art to customers in exchange for donations. By contrast, some of the named comparators, including four of the five named in response to interrogatories, were pure “entertainers” – i.e., jugglers and puppeteers who did not sell their wares. From at least March 2012 through the end of the relevant time period, the Parks Department stopped enforcing the vending rules against entertainers, in an effort to comply with their reading of a New York State court decision. 15, n.10. Defs. Mem. at While this period represents only approximately six 22 months of a two year relevant time frame, it nonetheless carries at least some weight in explaining differential enforcement, to the extent it existed. The record between reflects plaintiffs interaction style. and yet further alleged possible comparators in differences attitude and For instance, comparator Sean, a balloon- shaper on Wien Walk about whom limited information is available, promptly complied with defendants’ directives to remain mobile, thereby escaping further enforcement action. Erlanger Decl. Ex. 3 at 74 (“Q: Did Sean ever have enforcement action taken against him? A: No, other than told to leave and he would leave.”). By contrast, according to his own testimony, Alhovsky ignored initial warnings and appeared to welcome the opportunity to be arrested, even going so far as to publicize his anticipated arrest by calling news media beforehand. See supra Section II. Taken together, this evidence makes clear that no genuine issue of establish material the fact required exists as “extremely to high between themselves and the comparators. whether degree plaintiffs of can similarity” Ruston, 610 F.3d at 59. They cannot. Further, even if plaintiffs had been able to establish the similar situation element, their claim would requirement to show differential treatment. founder on the Indeed, plaintiffs’ testimony is rife with contradictions as to the differential 23 enforcement targeted itself. him on Alhovsky’s Wallach Walk testimony for mobility that PEP Officers violations, while ignoring the same behavior in others, is directly refuted by the documentary record establishing that Alhovsky was not issued any tickets on Wallach Walk. See supra, Section III. With regard to those tickets plaintiffs actually received at their Wien Walk vending location, plaintiffs have not shown that this treatment was, in fact, differential. named comparators who also Rather, Alhovsky testified that two vended on Wien Walk – Josh the Juggler and Colin Jaffee the Balloon-shaper – were also both subject to enforcement action, and thus experienced similar, not differential, treatment to plaintiffs. Plaintiffs’ failure to establish differential treatment in their deposition testimony is only compounded by the documentary data, which indicates that, out of twenty-three NOVs issued during a two-year time period to mobile vendors, ten of which were issued on Wien Walk, plaintiffs received only four such tickets. Given that plaintiffs were two of only a handful of mobile vendors on Wien Walk, the data does not suggest that they received a highly disproportionate share of tickets. Having failed to establish the elements required for either a standard selective enforcement claim or a “class of one” action, plaintiffs’ evidence is insufficient to survive summary 24 judgment. Accordingly, defendants’ motion for summary judgment as to the equal protection claim is granted. VII. Negligence Claim Plaintiffs’ negligence, remaining arising claim out is injuries a state Alhovsky law claim sustained for while attempting to claim a vending location pursuant to the Park’s “green spot” dismissed the regime. claim Having for granted which there summary exists judgment and federal-question jurisdiction, it is within this Court's discretion to decide whether to exercise supplemental jurisdiction over plaintiff's remaining state claim. Klein & Co. Futures, Inc. v. Bd. of Trade of City of N.Y., 464 F.3d 255, 262–63 (2d Cir. 2006); see also Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.”). We exercise this discretion here and decline supplemental jurisdiction over plaintiffs’ negligence claim, which is hereby dismissed without prejudice. 25 CONCLUSION For the judgment federal 35, is foregoing granted claim. and the This Clerk of reasons, insofar defendants' this as motion dismisses Court Memorandum and Order resolves Court is for summary the only Docket No. respectfully requested to close this case. Dated: New York, New York August j'f, 2014 £qzk~ NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE 26 Copies of the foregoing Memorandum mailed on this date to the following: Attorney for Plaintiffs Robert K. Erlanger, Esq. Erlanger Law Firm PLLC 122 East 42nd Street, Suite 519 New York, NY 10168 Attorneys for Defendants Rachel K. Moston, Esq. Sheryl R. Neufeld, Esq. Melanie V. Sadok, Esq. Office of the Corporation Counsel City of New York Law Department 100 Church Street New York, NY 10007 27 and Order have been

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