Opinion
110344 2010
09-20-2017
Diane I. DUA, Joel Kaye, Bryan Close, Tenzin Wangdu, Jack Diamond, Bayo Iribhogbe, Robyn Wohl, George Moran, and Artists United, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a Municipal Agency), Adrien Benepe (in his Official Capacity as the Parks Commissioner); City of New York (as a municipality), and Honorable Michael Bloomberg (in his Official Capacity as the Mayor ), Defendants.
For Plaintiffs: Jon Schuyler Brooks Esq., Jeffrey L. Shore Esq., Phillips Nizer LLP, 666 5th Avenue, New York, NY 10103 For Defendants: Sheryl R. Neufield Esq., Division Chief, New York City Law Department, 100 Church Street, New York, NY 10007
For Plaintiffs: Jon Schuyler Brooks Esq., Jeffrey L. Shore Esq., Phillips Nizer LLP, 666 5th Avenue, New York, NY 10103
For Defendants: Sheryl R. Neufield Esq., Division Chief, New York City Law Department, 100 Church Street, New York, NY 10007
Lucy Billings, J. I. BACKGROUND
Plaintiffs sue for a judgment declaring defendant New York City Department of Parks and Recreation's Expressive Matter Vending (EMV) regulations, 56 R.C.NY § 1–05(b)(2)-(8), unconstitutional because they impose a prior restraint on expression, violate equal protection guarantees, and are vague. NY Const. art. I, §§ 8 and 11. Plaintiffs further claim that the regulations violate plaintiffs' statutory rights under New York City Administrative Code § 20–473 and the New York State and City Human Rights Laws. NY Exec. Law § 296(2) ; N.Y.C. Admin. Code § 8–107(4) and (9). Defendants move for summary judgment dismissing the complaint. C.P.L.R. § 3212(b). Plaintiffs cross-move to amend their complaint to add a claim that the regulations violate the constitutional separation of powers, C.P.L.R. § 3025(b), and for summary judgment in their favor on their various claims. C.P.L.R. § 3212(b). For the reasons explained below, the court grants defendants' motion in part and plaintiffs' cross-motion in part.
II. SUMMARY JUDGMENT STANDARDS
To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b) ; Friends of Thayer Lake LLC v. Brown , 27 N.Y.3d 1039, 1043, 33 N.Y.S.3d 853, 53 N.E.3d 730 (2016) ; Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 (2015) ; Voss v. Netherlands Ins. Co. , 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 (2014) ; Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012). Only if the moving parties satisfy this standard, does the burden shift to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones , 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 (2016) ; Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP , 26 N.Y.3d at 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 ; Morales v. D & A Food Serv. , 10 N.Y.3d 911, 913, 862 N.Y.S.2d 449, 892 N.E.2d 842 (2008) ; Hyman v. Queens County Bancorp, Inc. , 3 N.Y.3d 743, 744, 787 N.Y.S.2d 215, 820 N.E.2d 859 (2004). If the moving parties fail to meet their initial burden, however, the court must deny them summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co. , 22 N.Y.3d at 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 ; Vega v. Restani Constr. Corp. , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Smalls v. AJI Indus., Inc. , 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008) ; JMD Holding Corp. v. Congress Fin. Corp. , 4 N.Y.3d 373, 384, 795 N.Y.S.2d 502, 828 N.E.2d 604 (2005).
In evaluating the evidence for purposes of the motion and cross-motion for summary judgment, the court construes the evidence in the light most favorable to the opponents. De Lourdes Torres v. Jones , 26 N.Y.3d at 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; Vega v. Restani Constr. Corp. , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Cahill v. Triborough Bridge & Tunnel Auth. , 4 N.Y.3d 35, 37, 790 N.Y.S.2d 74, 823 N.E.2d 439 (2004). For purposes of determining the motion and cross-motion for summary judgment, at the oral argument July 9, 2015, the parties stipulated that the regulations were neutral regarding the content of the expression to which they apply.
III. THE MOTION AND CROSS–MOTION FOR SUMMARY JUDGMENT
A. The Expressive Matter Vendor Regulations
"Expressive matter" is "materials or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment." 56 R.C.NY § 1–02. 56 R.C.NY § 1–05(b)(2) allows expressive matter vendors (EMVs) to sell expressive matter "on property under jurisdiction of the Department without a permit," but they "must comply with all applicable provisions of these rules." 56 R.C.NY § 1–05(b)(2) also limits EMVs to selling in specified parts of New York County's Central Park, High Line Park, Union Square Park, and Battery Park: "specifically designated spots for such vending on the accompanying maps." The spots are "allocated on a first come, first serve basis," 56 R.C.NY § 1–05(b)(2), as set forth in 56 R.C.NY § 1–05(b)(3).
56 R.C.NY § 1–05(b)(4) through (8) apply to all vendors. Paragraph (4) prohibits placing anything on specified features of parks, blocking use of the parks, damaging park property, and vending from vehicles or specialized park areas. 56 R.C.NY § 1–05(b)(5) sets forth maximum dimensions of vending display stands and minimum required distances from specified areas or features of the parks. 56 R.C.NY § 1–05(b)(6) defines a "display stand." 56 R.C.NY § 1–05(b)(7) defines "street or park furniture" among the park areas or features from which the stands must maintain a distance. Finally, 56 R.C.NY § 1–05(b)(8) authorizes park employees or police to move a vendor from a location temporarily under exigent circumstances and defines exigent circumstances.
B. Free Expression
Plaintiffs contend that the regulations impose a restraint on the fundamental constitutional right to free expression. Defendants maintain that the regulations are valid restrictions on the time, place, and manner of the exercise of that right. New York Constitution Article I, § 8, provides that:
Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.
Walton v. New York State Dept. of Correctional Servs. , 13 N.Y.3d 475, 490, 893 N.Y.S.2d 453, 921 N.E.2d 145 (2009). New York's Constitution thus defines a broader scope of protection for freedom of expression than the United States Constitution. People v. Pavone , 26 N.Y.3d 629, 639, 26 N.Y.S.3d 728, 47 N.E.3d 56 (2015) ; Children of Bedford v. Petromelis , 77 N.Y.2d 713, 731, 570 N.Y.S.2d 453, 573 N.E.2d 541 (1991) ; Immuno AG. v. Moor–Jankowski , 77 N.Y.2d 235, 249, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (1991) ; People ex rel. Arcara v. Cloud Books , 68 N.Y.2d 553, 557– 558, 510 N.Y.S.2d 844, 503 N.E.2d 492 (1986). See Town of Islip v. Caviglia , 73 N.Y.2d 544, 556, 542 N.Y.S.2d 139, 540 N.E.2d 215 (1989).
The EMV regulations are silent regarding the particular content of the expressive matter they govern, consistent with the parties' stipulation; only incidentally affect particular expressive matter; and expressly authorize the sale of expressive matter at designated locations. People v. Barton , 8 N.Y.3d 70, 77, 828 N.Y.S.2d 260, 861 N.E.2d 75 (2006) ; Town of Islip v. Caviglia , 73 N.Y.2d at 557–58, 542 N.Y.S.2d 139, 540 N.E.2d 215. Content neutral regulations of free speech are constitutional if they serve a substantial governmental interest, allow alternative means of communication, City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) ; Town of Islip v. Caviglia , 73 N.Y.2d at 552, 542 N.Y.S.2d 139, 540 N.E.2d 215, and are narrowly tailored to serve that governmental interest. People v. Barton , 8 N.Y.3d at 76, 828 N.Y.S.2d 260, 861 N.E.2d 75 ; Rogers v. New York City Tr. Auth. , 89 N.Y.2d 692, 698, 657 N.Y.S.2d 871, 680 N.E.2d 142 (1997) ; Uhlfelder v. Weinshall , 47 A.D.3d 169, 178, 845 N.Y.S.2d 41 (1st Dep't 2007).
The Appellate Division, ruling on plaintiffs' motion for a preliminary injunction, already found that:
The City has a significant interest in preserving and promoting the scenic beauty of its parks, providing sufficient areas for recreational uses, and preventing congestion in park areas and on perimeter sidewalks.
Dua v. New York City Dept. of Parks & Recreation , 84 A.D.3d 596, 597, 924 N.Y.S.2d 47 (1st Dep't 2011). That finding, however, does not end the analysis here, as defendants, to obtain summary judgment in their favor and, depending on plaintiffs' evidence, to withstand summary judgment in plaintiffs' favor, must support a significant governmental interest with admissible evidence. See Anonymous v. City of Rochester , 13 N.Y.3d 35, 48, 886 N.Y.S.2d 648, 915 N.E.2d 593 (2009).
While defendants contend that the EMV regulations address concerns about congestion, aesthetics, and competing park uses, defendants present no evidence that EMVs impacted those concerns to justify regulation, see Town of Islip v. Caviglia , 73 N.Y.2d at 553, 542 N.Y.S.2d 139, 540 N.E.2d 215, and thus fail to establish the nexus between the purposes defendants cite and the regulations. Anonymous v. City of Rochester , 13 N.Y.3d at 48–49, 886 N.Y.S.2d 648, 915 N.E.2d 593. Jack Linn, former Department of Parks and Recreation Assistant Commissioner and Senior Counselor, attested in a declaration dated September 7, 2011, that he had observed an increase in the popularity of art vending in Central Park in recent years. He authenticated photographs he took May 15 and 16, 2010, of Central Park, High Line Park, Union Square Park, and Battery Park that depict varying concentrations of persons in the parks with and without EMVs. Defendants also present charts prepared by Linn that portray an increase in EMVs in areas of Central Park from 2002 to 2010. Finally, Linn attested that the Department promulgated its EMV regulations because it lacked the authority to enforce the City's regulations applicable to vendors throughout the city and beyond the Department of Parks and Recreation's jurisdiction in the parks and on their perimeters.
Michael Dockett, Department of Parks and Recreation Assistant Commissioner of Urban Park Services, attests in an affidavit dated February 1, 2012, that he oversees the Parks Enforcement Patrol (PEP), which counted the unused designated EMV spots in Central Park, High Line Park, Union Square Park, and Battery Park and found one or more unused designated spots in July and August 2010. Doug Blonsky of the Central Park Conservancy testified at his deposition June 22, 2011, that he received complaints about congestion and vendors at the south end of Central Park, but no complaints about the east or west sides of the park. He never complained to the Department about EMVs and observed PEP officers asking EMVs to remove their personal property from park benches. Blonsky also testified that after the EMV regulations became effective congestion decreased at the south end of Central Park, but increased in other areas of the park. Jennifer Falk of the Union Square Partnership in deposition testimony June 21, 2011, simply concluded that there was inadequate enforcement of restrictions on vendors in Union Square Park and that vendors increased in warmer weather.
Linn's photographs depicting crowds on a single day fail to establish any regular, frequent, or even occasional congestion in the park. See Robert Lee Realty Co. v. Village of Spring Val. , 61 N.Y.2d 892, 894, 474 N.Y.S.2d 475, 462 N.E.2d 1193 (1984). Even accepting the accounts of Linn and Blonsky regarding increased congestion, neither witness attributes it to EMVs. Dockett's report of open EMV spots undermines any conclusion of excessive congestion. Blonsky's observation of PEP officers requesting EMVs to remove personal property from benches undermines any conclusion that enforcement of restrictions against EMVs was hampered. Defendants present no evidence of EMVs' impact on park aesthetics or interference with conflicting uses of park space. Although Linn attests that he selected the designated spaces to avoid blocking park features, no evidence demonstrates any interference with those features before promulgation and implementation of the EMV regulations. As plaintiffs maintain, municipal defendants bear the burden to demonstrate that their regulations affecting free speech are not broader than necessary to achieve their legitimate purpose. People ex rel. Arcara v. Cloud Books , 68 N.Y.2d at 558, 510 N.Y.S.2d 844, 503 N.E.2d 492. Contrary to plaintiffs' contention, however, that rule does not shift the burden of proof away from plaintiffs upon their cross-motion for summary judgment. See id. at 559, 510 N.Y.S.2d 844, 503 N.E.2d 492. The affidavits of plaintiffs Dua, Kaye, and Diamond and plaintiffs' witness EMV Mitchell Balmuth simply conclude that EMVs have not caused congestion or interfered with park aesthetics. Collectively, the affidavits address conditions only in Central Park and in Union Square Park and so fail to demonstrate the absence of congestion, of impact on aesthetics, or of interference with other park uses caused by EMVs at the two other parks where the designated spots apply or at any other park under defendants' control. Therefore plaintiffs fail to meet their burden for purposes of their cross-motion to establish defendants' lack of a substantial interest in implementing their EMV regulations.
C. Equal Protection
Plaintiffs claim that the EMV regulations constitute a facial violation of constitutional equal protection guarantees because they limit the number of EMVs and target only EMVs and not other vendors. New York Constitution Article I, § 11, provides that:
No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.
The Equal Protection Clauses of both the federal and the state Constitutions require all similarly situated persons to be treated alike. Walton v. New York State Dept. of Correctional Servs. , 13 N.Y.3d at 492, 893 N.Y.S.2d 453, 921 N.E.2d 145 ; CMSG Rest. Group, LLC v. State of New York , 145 A.D.3d 136, 148, 40 N.Y.S.3d 412 (1st Dep't 2016).
While defendants contend that the EMV regulations are rationally related to legitimate park purposes, that standard applies only when neither a suspect classification nor an impairment of a fundamental right is involved. Golden v. Clark , 76 N.Y.2d 618, 624, 626, 563 N.Y.S.2d 1, 564 N.E.2d 611 (1990) ; Doe v. Coughlin , 71 N.Y.2d 48, 56, 523 N.Y.S.2d 782, 518 N.E.2d 536 (1987) ; Bertoldi v. State of New York , 275 A.D.2d 227, 229, 712 N.Y.S.2d 113 (1st Dep't 2000). See Walton v. New York State Dept. of Correctional Servs. , 13 N.Y.3d at 492, 893 N.Y.S.2d 453, 921 N.E.2d 145 ; CMSG Rest. Group, LLC v. State of New York , 145 A.D.3d at 148, 40 N.Y.S.3d 412. Plaintiffs as a group of EMVs are not members of a suspect class because they show no history of purposeful inequitable treatment or extreme political powerlessness mandating extraordinary protection. Maron v. Silver , 58 A.D.3d 102, 124, 871 N.Y.S.2d 404 (3d Dep't 2008) ; aff'd , 14 N.Y.3d 230, 250, 899 N.Y.S.2d 97, 925 N.E.2d 899 (2010). Nevertheless, free expression is a fundamental right requiring application of the strict scrutiny standard. Golden v. Clark , 76 N.Y.2d at 623–24, 563 N.Y.S.2d 1, 564 N.E.2d 611 ; People v. P.J. Video , 68 N.Y.2d 296, 303, 508 N.Y.S.2d 907, 501 N.E.2d 556 (1986) ; CMSG Rest. Group, LLC v. State of New York , 145 A.D.3d at 148, 40 N.Y.S.3d 412.
Even if the EMV regulations' application to only EMVs and not other vendors does not impair free expression, however, the regulations' classification of this group is still impermissible if the classification does not further a legitimate, articulated governmental purpose. Doe v. Coughlin , 71 N.Y.2d at 56, 523 N.Y.S.2d 782, 518 N.E.2d 536 ; C/S 12th Ave. LLC v. City of New York , 32 A.D.3d 1, 9, 815 N.Y.S.2d 516 (1st Dep't 2006). See CMSG Rest. Group, LLC v. State of New York , 145 A.D.3d at 144–45, 40 N.Y.S.3d 412. As discussed above, defendants' evidence does not support their concerns regarding EMVs. Therefore no legitimate governmental purpose, let alone compelling governmental interest achieved by the least restrictive practicable means were strict scrutiny to apply, supports the numerical limitation on EMVs allowed to vend in four parks, the other regulations restricting EMVs differently than other vendors, and this selective treatment regulating only EMVs. Kharpunskiy v. Doar , 12 N.Y.3d 478, 487, 881 N.Y.S.2d 377, 909 N.E.2d 70 (2009) ; Doe v. Coughlin , 71 N.Y.2d at 56, 58, 523 N.Y.S.2d 782, 518 N.E.2d 536. As also discussed above, plaintiffs' evidence fails to establish, on the other hand, defendants' lack of a substantial governmental interest in the parks other than Central and Union Square Parks. Plaintiffs' evidence likewise fails to establish defendants' lack of a legitimate or compelling governmental interest.
D. Vagueness
The Appellate Division already held that the EMV regulations are not void due to vagueness. Dua v. New York City Dept. of Parks & Recreation , 84 A.D.3d at 598, 924 N.Y.S.2d 47. While this holding supported the denial of plaintiffs' prior motion for a preliminary injunction, which was not an adjudication of the ultimate merits and therefore lacks preclusive effect, Town of Concord v. Duwe , 4 N.Y.3d 870, 875, 799 N.Y.S.2d 167, 832 N.E.2d 23 (2005), the holding is still controlling precedent where applied to the same factual record. Coinmach Corp. v. Fordham Hill Owners Corp. , 3 A.D.3d 312, 314, 770 N.Y.S.2d 310 (1st Dep't 2004). Plaintiffs do not show that the regulations' text or implementation has changed since the motion for a preliminary injunction was litigated.
Yet, even were the court to disregard that precedent regarding the meaning of the regulations' terms, due process requires only a reasonable certainty regarding their meaning so that the public need not guess at the meaning. Pringle v. Wolfe , 88 N.Y.2d 426, 435, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996). See Dua v. New York City Dept. of Parks & Recreation , 84 A.D.3d at 598, 924 N.Y.S.2d 47 ; Food Parade, Inc. v. Office of Consumer Affairs of County of Nassau , 19 A.D.3d 593, 595, 799 N.Y.S.2d 55 (2d Dep't 2005), aff'd , 7 N.Y.3d 568, 572, 825 N.Y.S.2d 667, 859 N.E.2d 473 (2006). The "first come, first serve" regulation that plaintiffs challenge as vague, 56 R.C.NY § 1–05(b)(2) and (3), is readily understandable as meaning that a designated spot is to be used by the first expressive matter vendor to be situated for vending at the spot and thus delineates a standard with which EMVs easily may comply.
E. Violation of the Administrative Code
Plaintiffs claim the EMV regulations violate the New York City Administrative Code provision governing vending on grounds similar to plaintiffs' grounds for the constitutional violations: because the regulations restrict expressive matter vending, limit the number of EMVs at four major parks, and are unjustified by evidence of a threat to public health, safety, or welfare. New York City Administrative Code § 20–465(j) provides that:
No general vendor shall vend within geographical areas under the jurisdiction of the department of parks and recreation unless written authorization therefor has been obtained from the commissioner of such department ....
Vendors of written material, which include EMVs, are exempt. N.Y.C. Admin. Code § 20–473.
Contrary to plaintiffs' contention, the EMV regulations do not require EMVs to obtain a license for vending, in violation of Administrative Code § 20–473. A license is a revocable privilege that allows temporary conduct on land without conferring an interest in the land. Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation , 22 N.Y.3d 648, 656, 985 N.Y.S.2d 422, 8 N.E.3d 797 (2014). As also held by the Appellate Division, the limited number of designated spots set by the EMV regulations does not render the regulations' designated spots licenses. Dua v. New York City Dept. of Parks & Recreation , 84 A.D.3d at 598, 924 N.Y.S.2d 47. Again, plaintiffs do not show that the text, implementation, or effect of the regulations' limited designated spots provisions has changed from the record on which this issue previously was determined. Coinmach Corp. v. Fordham Hill Owners Corp. , 3 A.D.3d at 314, 770 N.Y.S.2d 310.
Nor has the Department of Parks and Recreation, except temporarily in defined "exigent circumstances," 56 R.C.NY § 1–05(b)(8), maintained control over the EMVs in the designated spots. Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation , 22 N.Y.3d at 657, 985 N.Y.S.2d 422, 8 N.E.3d 797. Once an EMV has secured a designated spot, it excludes other park uses, the EMV may engage in vending without economic constraints, and the Department may not terminate the EMV's use at will. Id.
Nevertheless, the Commissioner of the Department must regulate vending consistent with the "declared legislative intent of this subchapter." N.Y.C. Admin. Code § 20–473. See People v. Balmuth , 178 Misc. 2d 958, 968, 681 N.Y.S.2d 439 (Crim. Ct. N.Y. Co. 1998), aff'd , 189 Misc. 2d 243, 731 N.Y.S.2d 314 (App. Term 1st Dep't 2001). Thus the EMV regulations must comply with the legislative intent. The New York City Council found that:
it is consistent with the principles of free speech and freedom of the press to eliminate as many restrictions on the vending of written matter as is consistent with the public health, safety and welfare.
Local Laws, 1982, No. 33 of City of New York § 1; People v. Balmuth , 178 Misc. 2d at 967, 681 N.Y.S.2d 439, aff'd , 189 Misc. 2d 243, 731 N.Y.S.2d 314. Defendants neither establish nor even claim that the regulations were intended to promote health, safety, or welfare. Also inconsistent with the legislature's declared policy, the regulations add restrictions on vending of expressive matter rather than eliminating them. Since these two facts are evident from the current record and undisputed, plaintiffs are entitled to summary judgment on their claim that the EMV regulations violate New York City Administrative Code § 20–473.
F. Violation of Human Rights Laws
Plaintiffs' cross-motion for summary judgment in their favor presents no support, however, for their claims that defendants have violated the State and City Human Rights laws. NY Exec. Law § 296(2) ; N.Y.C. Admin. Code § 8–107(4)(a) and (9). Therefore the court denies plaintiffs summary judgment on that claim. Ruiz v. RHQ Assoc., LLC , 92 A.D.3d 410, 937 N.Y.S.2d 587 (1st Dep't 2012) ; Jones v. 550 Realty Hgts., LLC , 89 A.D.3d 609, 932 N.Y.S.2d 778 (1st Dep't 2011) ; Ruth B. v. Whitehall Apt. Co., LLC , 56 A.D.3d 273, 274, 866 N.Y.S.2d 668 (1st Dep't 2008) ; Perez v. Hilarion , 36 A.D.3d 536, 537, 828 N.Y.S.2d 376 (1st Dep't 2007).
Although plaintiffs also did not offer any opposition to defendants' motion for summary judgment dismissing these claims, defendants fail to demonstrate entitlement to dismissal. To eliminate these claims, defendants must show that plaintiffs have not been denied a public accommodation for discriminatory reasons. See Boureima v. New York City Human Resources Admin. , 128 A.D.3d 532, 533, 10 N.Y.S.3d 199 (1st Dep't 2015) ; D'Amico v. Commodities Exch. , 235 A.D.2d 313, 314, 652 N.Y.S.2d 294 (1st Dep't 1997). Park space, even if owned by a governmental entity, is a public accommodation. NY Exec. Law § 292(9). See Carmelengo v. Phoenix Houses of NY, Inc. , 54 A.D.3d 652, 652–53, 865 N.Y.S.2d 43 (1st Dep't 2008) ; Gifford v. McCarthy , 137 A.D.3d 30, 35–36, 23 N.Y.S.3d 422 (3d Dep't 2016).
Although plaintiffs conceded at oral argument July 14, 2015, that no plaintiff was disabled, the record nonetheless shows that at least one plaintiff is over age 40 and several are women. Defendants' reliance on the affidavit by Dockett that he was unaware of persons sleeping overnight to secure designated spots or of altercations over them fails to show the absence of designated spots being denied to plaintiffs due to their age or gender. Plaintiffs' claim under Administrative Code § 8–107(9) that plaintiffs have been denied licenses for discriminatory reasons, however, does fail because, as discussed above, the EMV regulations do not create a licensing scheme for EMVs.
IV. PLAINTIFFS' CROSS–MOTION TO AMEND THEIR COMPLAINT
Amendment of the complaint is to be permitted upon plaintiffs' showing of their proposed amendments' merits, as long as the amendments will not surprise or otherwise prejudice defendants. C.P.L.R. § 3025(b) ; Fairpoint Cos., LLC v. Vella , 134 A.D.3d 645, 645, 22 N.Y.S.3d 49 (1st Dep't 2015) ; A.L. Eastmond & Sons, Inc. v. Keevily, Spero–Whitelaw, Inc. , 107 A.D.3d 503, 503, 968 N.Y.S.2d 436 (1st Dep't 2013) ; Kocourek v. Booz Allen Hamilton Inc. , 85 A.D.3d 502, 504, 925 N.Y.S.2d 51 (1st Dep't 2011). Plaintiffs bear the burden to demonstrate the merits of their proposed claims through admissible evidence. JPMorgan Chase Bank, N.A. v. Low Cost Bearings NY Inc. , 107 A.D.3d 643, 644, 969 N.Y.S.2d 19 (1st Dep't 2013) ; Greentech Research LLC v. Wissman , 104 A.D.3d 540, 541, 961 N.Y.S.2d 406 (1st Dep't 2013) ; Yuko Ito v. Suzuki , 57 A.D.3d 205, 208, 869 N.Y.S.2d 28 (1st Dep't 2008) ; Zaid Theatre Corp. v. Sona Realty Co. , 18 A.D.3d 352, 355, 797 N.Y.S.2d 434 (1st Dep't 2005). See Sepulveda v. Dayal , 70 A.D.3d 420, 421, 893 N.Y.S.2d 549 (1st Dep't 2010). Plaintiffs seek to amend their complaint to add a claim that defendants' promulgation of the EMV regulations violates separation of powers because the Department of Parks and Recreation exceeded the authority that the New York City Council granted to the Department when it based the EMV regulations on concerns of congestion, aesthetics, and competing park uses.
An executive agency violates separation of powers by usurping the legislature's authority to make policy decisions. Garcia v. New York City Dept. of Health & Mental Hygiene , 144 A.D.3d 59, 67–68, 38 N.Y.S.3d 880 (1st Dep't 2016). See NYC C.L.A.S.H., Inc. v. New York State Off. of Parks, Recreation & Historic Preserv. , 27 N.Y.3d 174, 178, 32 N.Y.S.3d 1, 51 N.E.3d 512 (2016) ; Greater NY Taxi Assn. v. New York City Taxi & Limousine Commn. , 25 N.Y.3d 600, 608–609, 15 N.Y.S.3d 725, 36 N.E.3d 632 (2015). An agency may adopt regulations to fill in details of legislation, as long as the legislature provides safeguards and guidelines to the agency. Greater NY Taxi Assn. v. New York City Taxi & Limousine Commn. , 25 N.Y.3d at 608, 15 N.Y.S.3d 725, 36 N.E.3d 632 ; Boreali v. Axelrod , 71 N.Y.2d 1, 10, 523 N.Y.S.2d 464, 517 N.E.2d 1350 (1987). In determining whether an agency exceeded its authority, the relevant basic considerations are the scope of the statute authorizing the regulations and their consistency with the statute's policy. Boreali v. Axelrod , 71 N.Y.2d at 15, 523 N.Y.S.2d 464, 517 N.E.2d 1350.
These basic concepts break down into four more specific factors to be considered in determining whether the Department of Parks and Recreation exceeded its authority here. Boreali v. Axelrod , 71 N.Y.2d at 12–13, 523 N.Y.S.2d 464, 517 N.E.2d 1350. First, while defendants emphasized that they weighed unregulated EMVs against the benefits of preventing congestion, promoting aesthetics, and allowing other park activities, defendants failed to establish they did so according to legislative guidelines instead of on their own authority. New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene , 23 N.Y.3d 681, 699, 992 N.Y.S.2d 480, 16 N.E.3d 538 (2014) ; Boreali v. Axelrod , 71 N.Y.2d at 12, 523 N.Y.S.2d 464, 517 N.E.2d 1350 ; Garcia v. New York City Dept. of Health & Mental Hygiene , 144 A.D.3d at 69, 38 N.Y.S.3d 880. See Greater NY Taxi Assn. v. New York City Taxi & Limousine Commn. , 25 N.Y.3d at 611, 15 N.Y.S.3d 725, 36 N.E.3d 632.
Second, while the Department Commissioner retains the power "to establish and enforce rules and regulations for the use, government and protection of public parks and all property under the charge or control of the department," N.Y.C. Charter § 533(a)(9), the City Council only exempted EMVs from licensing requirements, N.Y.C. Admin. Code § 20–473, and did not otherwise enact legislation governing EMVs. Thus there is no legislation within which the Department may fill in the details. New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene , 23 N.Y.3d at 700, 992 N.Y.S.2d 480, 16 N.E.3d 538 ; Boreali v. Axelrod , 71 N.Y.2d at 13, 523 N.Y.S.2d 464, 517 N.E.2d 1350. See NYC C.L.A.S.H., Inc. v. New York State Off. of Parks, Recreation & Historic Preserv. , 27 N.Y.3d at 182–83, 32 N.Y.S.3d 1, 51 N.E.3d 512 ; Greater NY Taxi Assn. v. New York City Taxi & Limousine Commn. , 25 N.Y.3d at 611, 15 N.Y.S.3d 725, 36 N.E.3d 632 ; Garcia v. New York City Dept. of Health & Mental Hygiene , 144 A.D.3d at 70, 38 N.Y.S.3d 880.
Regarding the third factor, plaintiffs contend that the City Council's failure to agree on legislation regulating EMVs in prior attempts prevents defendants from addressing EMVs by adopting the agency's own regulations. New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene , 23 N.Y.3d at 700, 992 N.Y.S.2d 480, 16 N.E.3d 538 ; Boreali v. Axelrod , 71 N.Y.2d at 13, 523 N.Y.S.2d 464, 517 N.E.2d 1350. See NYC C.L.A.S.H., Inc. v. New York State Off. of Parks, Recreation & Historic Preserv. , 27 N.Y.3d at 183–84, 32 N.Y.S.3d 1, 51 N.E.3d 512 ; Greater NY Taxi Assn. v. New York City Taxi & Limousine Commn. , 25 N.Y.3d at 612, 15 N.Y.S.3d 725, 36 N.E.3d 632. Plaintiffs show that the City Council rejected legislation proposed in 2002 to regulate sales of written material on Department of Parks and Recreation property with permits. Defendants present a report that the City Council rejected similar legislation proposed in 2004. Moreover, since the City Council limited the Department's authority to, at most, adopting regulations to promote public health, safety, and welfare, legislative silence may not be viewed as authorizing the Department to adopt the EMV regulations to promote other parks purposes. See Town of Concord v. Duwe , 4 N.Y.3d at 873–74, 799 N.Y.S.2d 167, 832 N.E.2d 23.
The fourth factor, whether development of the regulations required use if the agency's expert or technical competence, does not apply, as defendants do not show their use of any expertise in managing or caring for the parks when they developed the regulations. See Greater NY Taxi Assn. v. New York City Taxi & Limousine Commn. , 25 N.Y.3d at 612, 15 N.Y.S.3d 725, 36 N.E.3d 632. Linn expressly disavowed the use of scientific or technical expertise to determine the placement of the designated spots.
Plaintiffs, by demonstrating the legislation applicable to regulating EMVs and the failed proposed legislation attempting to authorize such regulation, adequately establish the merit of plaintiffs' separation of powers claim for purposes of amending their complaint. JPMorgan Chase Bank, N.A. v. Low Cost Bearings NY Inc. , 107 A.D.3d at 644, 969 N.Y.S.2d 19 ; Yuko Ito v. Suzuki , 57 A.D.3d at 208, 869 N.Y.S.2d 28 ; Zaid Theatre Corp. v. Sona Realty Co. , 18 A.D.3d at 355, 797 N.Y.S.2d 434. See Empire Purveyors, Inc. v. Weinberg , 66 A.D.3d 508, 509, 885 N.Y.S.2d 905 (1st Dep't 2009). Defendants complain only of delay and do not demonstrate prejudice by showing that the delay hindered them in preparing their defenses or supporting their position. McGhee v. Odell , 96 A.D.3d 449, 450, 946 N.Y.S.2d 134 (1st Dep't 2012) ; Kocourek v. Booz Allen Hamilton Inc. , 85 A.D.3d at 504, 925 N.Y.S.2d 51 ; Cherebin v. Empress Ambulance Serv., Inc. , 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 (1st Dep't 2007). Defendants expressly disclaim that the amendment to the complaint will necessitate their pursuit of further disclosure. Because issue has not yet been joined on the amended complaint, however, summary judgment on the separation of powers claim is premature. C.P.L.R. § 3212(a) ; City of Rochester v. Chiarella , 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174, 479 N.E.2d 810 (1985) ; Drezin v. New Yankee Stadium Community Benefits Fund, Inc. , 94 A.D.3d 542, 543, 944 N.Y.S.2d 17 (1st Dep't 2012) ; Manhattan Real Estate Equities Group LLC v. Pine Equity NY, Inc. , 27 A.D.3d 323, 323, 815 N.Y.S.2d 28 (1st Dep't 2006) ; Alexandru v. Pappas , 68 A.D.3d 690, 691, 890 N.Y.S.2d 593 (2d Dep't 2009). See Ruotolo v. Mussman & Northey , 105 A.D.3d 591, 593, 963 N.Y.S.2d 222 (1st Dep't 2013) ; Stephanie R. Cooper, P.C. v. Robert , 78 A.D.3d 572, 573, 911 N.Y.S.2d 63 (1st Dep't 2010).
V. CONCLUSION
In sum, for the reasons explained above, the court grants defendants' motion for summary judgment to the limited extent of dismissing plaintiffs' claim based on New York City Administrative Code § 8–107(9). C.P.L.R. § 3212(b) and (e). The court grants plaintiffs' cross-motion for summary judgment to the following extent. C.P.L.R. § 3212(b) and (e). The court declares that 56 R.C.NY § 1–05(b)(2)-(8) violates New York City Administrative Code § 20–473, because the regulations add restrictions on the vending of expressive material without any intent to promote public health, safety, or welfare. C.P.L.R. § 3001. The court therefore enjoins defendants' enforcement of 56 R.C.NY § 1–05(b)(2)-(3) and enforcement of 56 R.C.NY § 1–05(b)(4)-(8) against expressive matter vendors. The court also grants plaintiffs' cross-motion insofar as it seeks to file and serve an amended complaint in the form attached to their cross-motion as Exhibit 11. C.P.L.R. § 3025(b). The court otherwise denies defendants' motion for summary judgment and denies plaintiffs' cross-motion for summary judgment. C.P.L.R. § 3212(b). This decision constitutes the court's order and judgment dismissing plaintiffs' claim based on New York City Administrative Code § 8–107(9) ; declaring the extent to which 56 R.C.NY § 1–05(b)(2)-(8) violates New York City Administrative Code § 20–473, C.P.L.R. § 3001 ; and enjoining defendants' enforcement of those regulations against expressive matter vendors. C.P.L.R. § 3212(b) and (e).