Alhovsky v. New York City Department of Parks and Recreation et al
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ALEXANDER ALHOVSKY and OKSANA
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,
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
married couple who were “expressive matter vendors” in Central
Park, have brought this action against the City of New York, the
Commissioner Jack Linn, General Counsel Alessandro Olivieri, and
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
For the reasons stated herein, this Court
pursuant to § 1983 and dismisses without prejudice the state
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.
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
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
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,
certain rules and regulations of “expressive matter vending” –
materials with expressive content, including newspapers, visual
art, or entertainment.
Defs. R. 56.1 ¶¶ 2-5.
As relevant here,
“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-
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
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
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.
Enforcement Actions against Plaintiffs
enforcement claim involve certain enforcement actions undertaken
by defendants against plaintiffs for violation of Park rules.
three Notices of Violation (“NOVs”) and one related criminal
property in Central Park.
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.
Pls. Opp. at
Plaintiffs allege that Sergeant Langston acted at the
direction of his supervisor, defendant McCants.
Alhovsky an NOV for failure to remain mobile, again allegedly at
the direction of Captain McCants.
Id.; Defs. R. 56.1 ¶ 14.
officers requested that Alhovsky comply with the park’s mobility
Dep. of Alexander Alhovsky, Erlanger Decl. Ex. 3
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.
plaintiff Alhovsky into custody, transported him to the precinct
approximately two hours later.
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
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.
prior day’s NOV, he “decided to come out and get arrested the
Id. at 56.
To publicize his anticipated arrest in
magazines[;] I made sure the cameras are all set up.”
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
going to happen.”
Id. at 27.
According to Alhovsky, the PEP
officers were “reluctant” to arrest him on July 31, 2010.
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.
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
Pls. Opp. at 2; Erlanger Decl. Ex. 8 at 73-76.
Goncharenko paid the fine and did not dispute the ticket.
That plaintiffs were ticketed for actual violations of Park
Rules is not in dispute here.
Tr. at 5-6.
At oral argument,
plaintiff Alhovsky “were properly given” for violation of park
Goncharekno’s ticket for unattended property, plaintiff conceded
in argument, “Was [Goncharenko’s hamper] strictly unattended?
Tr. at 3.
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,
harassment by PEP officers.
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.
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
Pls. Opp. at 4; Compl. ¶¶ 42, 44.
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.
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.
Come on, move, Sasha.”
Further, plaintiff Goncharenko testified that PEP officers
laughed at and made fun of her accent, at least initially.
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-
insulted her by saying, “I am not talking to you, okay? . . . I
got to talk to your husband because you don’t understand.”
Goncharenko clarified that Sergeant Langston did not
take part in that conduct and was “always respect[ful].”
When questioned about anti-Russian conduct, however, Alhovsky
testified that PEP officers, including Captain McCants, Sergeant
Erlanger Decl. Ex. 3 at 70-71.
Indeed, plaintiffs have conceded
“personal animus” against him.
Tr. at 13 (“As to why they are
singling [Alhovsky] out, apparently they like him personally.
did the depositions of Langston and McCants, and nobody seemed
to have any personal animus against them.”).
III. Comparators and Other Enforcement Actions
In support of their selective enforcement claim, plaintiffs
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.
NOVs were issued during that period to non-green spot expressive
Of those twenty-three tickets, three were
issued to plaintiff Alhovsky and one was issued to plaintiff
Goncharenko, as described supra.
Ten of the twenty-three
NOVs, including the four received by plaintiffs, covered conduct
on Wien Walk, where plaintiffs almost exclusively vend.
Plaintiffs do not dispute these numbers, although they choose to
example, that of eight NOVs issued on Wien Walk for non-mobile
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:
Weinstein the puppeteer, (2) Abraham the Juggler, (3) David Rice
Defs. Mem. at 9; Pls. Amended Response to First
Set of Interrogatories, Moston Decl. Ex. D.
We briefly describe
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,
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
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.
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.
With regard to all of the first three comparators, Alhovsky
infraction at the same location on Wallach Walk.
Erlanger Decl. Ex. 3 at 40 (“Q: Has there ever been a situation
when you are vending in the same location and enforcement action
A: Yes . . . Any of the tickets I was given on
Wallach Walk on the north side has him in the background.
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.
identified Josh’s nationality as “Asian,” and more specifically
against Josh the Juggler, Alhovsky recalled the existence of
“one incident but I don’t know when it happened;” he also had
limited information as to where the enforcement action occurred
Plaintiff Goncharenko testified that she was not familiar with
Josh the Juggler.
Erlanger Decl. Ex. 4 at 33.
Erlanger Decl. Ex. 3 at
Jaffee also vended on Wien Walk, and particularly “in
the same part of Wien Walk” as did plaintiffs.
Like plaintiffs, Colin Jaffee was a balloon shaper
and thus an “expressive matter” vendor.
Id. at 52.
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.
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.
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?
No, other than told to leave and
he would leave.”).
Jason Ruby and his wife Stacey, also face-
painters and balloon-shapers, based themselves on Wallach Walk.
testified that Ruby and his wife were issued a ticket by PEP
officers for a vending violation.
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
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.
were typically present to supervise the appropriation of green
spots for the day.
Pls. R. 56.1 Ctr. Stmt. ¶ 105-107.
first few days after the green spot regime went into effect in
summer 2010, Park personnel observed vendors rushing to claim
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.
spots, but that haste subsided within the week.
Dep. of Michael
Dockett, Erlanger Decl. Ex. 9 at 16, 19.
sustained by plaintiff Alhovsky as he sought to claim a green
spot in 2010, shortly after the enforcement of the green spot
Compl. ¶¶ 46-47, 91-95; Erlanger Decl. Ex. 3 at
On the first occasion, August 1, 2010, Alhovsky fell and
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.
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
spot,” defendants committed a breach of their duty of care,
causing Alhovsky’s injuries.
Compl. ¶¶ 91-95.
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.
FED. R. CIV. P.
In this context, “[a] fact is ‘material’ when it might
affect the outcome of the suit under governing law,” and “[a]n
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).
assessing the record to determine whether there is [such] a
ambiguities and draw all permissible factual inferences in favor
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.
2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
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)).
Where that burden is carried, the
demonstrating the existence of a genuine dispute of material
Id. (citing Anderson, 477 U.S. at 249).
metaphysical doubt as to the material facts . . . and may not
rely on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly and Co., 654 F.3d 347, 358 (2d Cir. 2011)
(internal quotation marks and citations omitted).
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).
In their sole
enforcement of Park rules against plaintiffs.
To prevail on a standard claim of selective enforcement,
treated differently from other similarly situated individuals,
impermissible considerations such as race, religion, intent to
Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d
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
denial of constitutional rights.
Yick Wo v. Hopkins, 118 U.S.
356, 373-74 (1886).
plaintiffs’ Russian national origin impermissibly motivated the
alleged differential treatment.
See Compl. ¶ 108.
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
Erlanger Decl. Ex. 4 at 44-45.
plaintiffs’ own testimony, instead indicates that discriminatory
Erlanger Decl. Ex. 3 at 70-71.
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,
Assistant Commissioner, visited plaintiffs in the Park “and he
actually told us that we are doing a good job.”
Id. at 46.
Tr. at 13.
In light of these facts, plaintiffs acknowledged at oral
Tr. at 12.
Because plaintiffs admittedly cannot
impermissible considerations of their national origin, they fail
judgment on the claim itself.
Class of One
In recognition of this weakness, plaintiffs’ briefing and
enforcement action – the “class of one” claim.
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.”
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
membership in a class or differential treatment based on race,
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.”
U.S. at 564.
Though plaintiffs in a “class of one” action need not show
class membership and discriminatory animus on the basis thereof,
Second Circuit precedent instructs that “[c]lass-of-
one plaintiffs must show an extremely high degree of similarity
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.”
Id. at 59-60
Though the question of similar situation is
a factual inquiry that typically should be submitted to the
plaintiffs have made the requisite showing of extremely high
degree of similarity, summary judgment is appropriate.
273 F.3d at 499 n.2.
Plaintiffs here have neither sufficiently established the
comparators nor have they shown reliable evidence of treatment
so differential that no rational basis or legitimate government
policy could explain the disparity.
As an initial matter, it
limited or no corroboration from other witnesses or documents
uncorroborated testimony and drawing all permissible inferences
in their favor, as we must, this Court cannot satisfy itself
situation to comparators.
As exhaustively detailed supra, the
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
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.
Alhovsky himself testified, plaintiffs vended directly in front
of Commissioner Benepe’s office.
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.
That’s where his window
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.
Plaintiffs do not
dispute that they committed the violations for which they were
Tr. at 3, 5-6.
Hence, to the extent that defendant
Benepe was in a position to continually observe plaintiffs in
Department officials, rather than evidence of “intentional and
Olech, 528 U.S. at 564.
To be sure,
vendors who chose to vend on Wallach Walk may have been beyond
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.
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
plaintiffs contend, particularly in the absence of any other
evidence to that effect.
Compl. ¶ 110-11.
themselves have conceded that no personal animus existed.
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.
As balloon-shapers and face“expressive
who provided their art to customers in exchange for donations.
By contrast, some of the named comparators, including four of
“entertainers” – i.e., jugglers and puppeteers who did not sell
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.
Defs. Mem. at
While this period represents only approximately six
months of a two year relevant time frame, it nonetheless carries
at least some weight in explaining differential enforcement, to
the extent it existed.
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
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
between themselves and the comparators.
Ruston, 610 F.3d at 59.
Further, even if plaintiffs had been able to establish the
requirement to show differential treatment.
testimony is rife with contradictions as to the differential
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.
to those tickets plaintiffs actually received at their Wien Walk
vending location, plaintiffs have not shown that this treatment
was, in fact, differential.
Rather, Alhovsky testified that two
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
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 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
action, plaintiffs’ evidence is insufficient to survive summary
Accordingly, defendants’ motion for summary judgment
as to the equal protection claim is granted.
VII. Negligence Claim
attempting to claim a vending location pursuant to the Park’s
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
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
convenience, fairness, and comity — will point toward declining
to exercise jurisdiction over the remaining state-law claims.”).
jurisdiction over plaintiffs’ negligence claim, which is hereby
dismissed without prejudice.
Memorandum and Order resolves
respectfully requested to close
New York, New York
August j'f, 2014
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
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
100 Church Street
New York, NY 10007
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