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)

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