Opinion
150242/2018
09-20-2018
Robert LEDERMAN, Plaintiff, v. NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION (as a municipal agency), Mitchell J. Silver (in his official capacity as the Parks Commissioner), City of New York (as a municipality), and William De Blasio (in his official capacity as the Mayor), Defendants.
Robert Lederman, Pro Se, Zachary Carter, Corporation Counsel, By Elizabeth Jun Kim, New York City Law Department, 100 Church St., New York, NY 10007
Robert Lederman, Pro Se, Zachary Carter, Corporation Counsel, By Elizabeth Jun Kim, New York City Law Department, 100 Church St., New York, NY 10007
Plaintiff Robert Lederman brings this action for declaratory, injunctive, and monetary relief against defendants New York City Department of Parks and Recreation (Parks), Parks Commissioner Mitchell J. Silver, the City of New York (the City), and New York City Mayor William De Blasio. Currently before the Court is defendants' collective pre-answer motion to dismiss the complaint on the grounds of res judicata and collateral estoppel. For the purposes of this decision, the Court accepts the allegations in the complaint as true, giving it a liberal construction and according to plaintiff every possible favorable inference ( Samuelson v. New York City Trans. Auth. , 101 AD3d 537, 540 [1st Dept 2012] ).
In June 2010, defendant the City, through defendant Parks, revised the rules governing the operation of vendors who sell their goods in City parks (the 2010 revisions). The revised rules were amended in 2013. Pursuant to the revised rules and the amendments, "expressive matter" is defined as "material or objects with expressive content, such as newspapers, books, or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment" (Rules of City of NY Dept of Parks and Recreation [56 RCNY] § 1-02). Under 56 RCNY § 1-05 (b) (1), vendors can sell their goods or services, including expressive material such as visual art, without a permit. Nevertheless, under Section 2 of 56 RCNY § 1-05, in the specific locations enumerated in paragraph (3) expressive matter vendors may only vend expressive matter at the specifically designated spots identified by the Commissioner in the accompanying maps and as marked by a Department decal, medallion, or other form of marking, on the specific location of the approved vending spot, unless they are only vending expressive matter without using a cart, display stand, or other device and without occupying a specific location for longer than necessary to conduct a transaction (56 RCNY § 1-05 [b] [2] ).
Subsection (b) (2) goes on to state that expressive matter vendors (EMVs) may take these spots "on a first, come, first served basis" and that vendors must center their display stands "directly behind" the identifying markings (id. ). Furthermore, only one EMV is permitted at each spot; if there are multiple vendors at any spot and Parks cannot determine which one arrived first, all the vendors at the spot shall be instructed to leave the site at once (id. ).
Section 3 of the Rule sets forth the parks which the provision regulates. They include certain areas of Central Park, all of Battery Park and Union Square Park, including their perimeter sidewalks, and the elevated section of High Line Park. Sections 4 and 5 include further regulations. Among other things, these sections regulate the placement of the display stands so as to prevent the stands from blocking or limiting access to the street or Park furniture, or from damaging Park property or impinging on a carriage, pedicab, taxi stand, pedestrian pathway. The remaining provisions are not pertinent to the motion, except as may be addressed below.
The stated purpose of the rule is to give EMVs "reasonable opportunities" to display and sell their materials on Park property while simultaneously addressing the concerns of park visitors, vendors, and others. According to the statement of purpose, in 2001 the Park ended its lottery system, which regulated the number of Park vendors, and since then there has been a "dramatic increase" in vendors at Union Square Park, Battery Park, and Central Park — which, in turn, has altered Park conditions. The rule includes High Line Park as well, because it is "the park most likely to also be significantly affected by expressive matter vendors due to its unique use and character" (56 RCNY [Statement of Basis and Purpose] ). It allows 68 EMVs in Central Park, 9 vendors in Battery Park, 5 vendors in High Line Park, 18 daily vendors, as well as 40 additional vendors on Tuesday, Thursday, and Sunday in Union Square Park.
Plaintiff is a visual artist, and, on alternate days, he sells his art in the parks that are regulated by 56 RCNY § 1-05. The money he receives as a vendor comprises his sole source of income. He describes himself as "a longtime advocate for artists" (Complaint, ¶ 20) and notes that he was the first artist to vend on the High Line. In addition, he points out that as an EMV, he is protected under the New York State Constitution and the Administrative Code.
Along with Jack Nesbitt, another visual artist, plaintiff challenged the 2010 revisions in federal court (Lederman v. New York City Parks & Recreation [Lederman and Nesbitt], SDNY, Sullivan, J., Index No 10 Civ. 4800 [RJS] ). The 2010 complaint asserted that the revisions to RCNY §§ 1-02 and 1-05 (b) violated federal law as well as Article I, §§ 8 and 11, of the New York State Constitution (Complaint, ¶ 1). It alleged that the asserted justification for the rule — that Parks had to ensure public safety by easing congestion — was pretextual and, in fact, the revision merely retaliated against the plaintiffs because they were vending in the parks. The complaint stated that the revisions violated the plaintiffs' right to free speech and expression, denied them equal protection, violated New York law, and violated several federal civil rights statutes. The plaintiffs sought declaratory judgment, monetary damages, and attorney's fees.
On September 30, 2012, the district court granted the defendants' motion for summary judgment and dismissed the case (Lederman , 901 F Supp 2d 464901 [SDNY 2012], aff'd , 731 F3d 199 [2d Cir 2013], cert denied , 561 US 1237 [2014] ). The district court noted that artists did not need a license to vend outside of the parks, and that due to Parks' attempts to regulate the vending of expressive matter within the parks, "the City and various expressive matter vendors have waged an ongoing battle with regard to the City's regulation of where and how those vendors may sell their wares" (id. at 467). The district court evaluated this litigious history, related court rulings, and the purpose and impact of the challenged regulations.
As is relevant here, the district court stated that although expressive matter is entitled to First Amendment protection, "the City may, within constitutional limits, regulate the time, place, and manner of activities in public parks" (id. at 472). The court stated that the City's goal of reducing congestion in the parks was significant (id. at 476), and that there was "significant evidence in the record that the influx of tangible art vendors — and tangible art vendors alone — was the driving impetus for the [r]evisions" (id. at 480). The court noted that the revisions were in conformance with guidelines set forth in Bery v. City of New York (97 F3d 689 [2d Cir 1996], cert denied , 520 US 1251 [1997] ). Moreover, the court determined that the regulations were content neutral, and therefore the court evaluated them subject to an intermediate level of scrutiny (see Lederman , 901 F Supp 2d at 475 ). The court rejected the plaintiffs' contention that EMVs were unduly restricted, noting that, in addition to the designated spots in the parks subject to the revised regulations, EMVs may sell their wares "in any of the hundreds of other parks in the City" as well as on public sidewalks throughout New York City ( id. at 479-80 ). The court rejected the plaintiffs' position that the City's asserted justification for the revised regulations was pretextual, as they clarified their scope after the Skyline decision.
Although the amendments to the revised regulations were not yet in effect, the district court considered the proposed amendments and plaintiffs' challenges to them (see id. at 471 ). Parks indicated that it had discontinued the enforcement of the revised regulations against performers in 2012. This allegedly was in response to the First Department's decision in Matter of New York Skyline, Inc. v. City of New York (94 AD3d 23 [1st Dept] [Skyline], lv denied , 19 NY3d 809 [2012] ), which concluded that because Administrative Code 20-453, which regulated vendors, did not expressly refer to "entertainers," that provision did not apply to them. Accordingly, Parks stated, it suspended the enforcement of the revised regulations against entertainers. It amended the revised regulations to clarify that they applied to entertainers and other performers who use display tables. As the regulations only restrict vendors who use display tables, Parks stated, most entertainers and performers would not be impacted. (see Lederman and Nesbitt , 901 F Supp 2d at 471 ).
In addition, the district court considered and rejected plaintiffs' arguments that few pathways in Central Park have a clearance of fifteen-feet or more and that there were no bona fide spots from which they could vend legally under the restrictions ( id. at 478-79 ). The district court stated that plaintiff did not support this statement ( id. at 479 ). Moreover, the court found plaintiffs' assertion that "the [r]evisions extend the required clearance to fifteen feet — three more than under the general vending restrictions" had no merit ( id. at 478 n 9 ).
Plaintiffs appealed the trial court's decision. On August 23, 2013 the United States Court of Appeals for the Second Circuit affirmed the trial court's order in Lederman and Nesbitt (731 F3d 199 [2d Cir 2013], cert denied , 561 US 1237 [2014] ). The Second Circuit agreed that the City's interests were "indisputably significant" and that the challenged regulations were narrowly tailored to achieve the City's goals because spot designations were only imposed where congestion was heaviest, and "all remaining park areas [were] open for vending" ( id. at 202 ). The court further affirmed the trial court's issuance of a protective order barring the depositions of the mayor and deputy mayor. The decision also referenced plaintiff' failure to preserve various of their arguments for appellate review, including the twelve points they purportedly raised in a letter to the district court. "To preserve arguments for appellate review, appellants must include in their briefs their ‘contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies" ( id. at 203 n 1 [citations and internal quotation marks omitted] [adding that issues that are not argued sufficiently are waived] ). Plaintiffs appealed this adverse decision as well, and the Supreme Court denied certification (Lederman and Nesbitt , 134 US 1237 [2014] ).
Around the same time as Lederman and Nesbitt , another lawsuit also was ongoing. On August 4, 2010, other artists, along with the group Artists United, filed a complaint in state court (Dua v. New York City Dept of Parks & Recreation , Sup Ct, NY County, Billings, J., Index No 110344/2010). As in the federal case, the Dua plaintiffs argued that the revised rules violated Article I, §§ 8 and 11, of the New York State Constitution. The case also asserted, inter alia, that the revised rules denied plaintiffs their statutory rights under Title 20, Chapter 2, Subchapter 27 and Title 1, Chapter 8, § 8-107 of the city's Administrative Code as well as Executive Law § 296 of the State's Executive Law.
In the most recent order issued in Dua , Justice Lucy Billings considered the defendants' motion for summary judgment as well as the plaintiffs' cross motion for leave to amend the complaint and to grant summary judgment on their claims ( Dua v. New York City Dept of Parks & Recreation , 59 Misc 3d 633 [Sup Ct NY County 2017] ). The court noted that in a prior ruling the First Department acknowledged that the City has a significant interest in regulating the city's parks so as to preserve and promote their beauty, to provide sufficient recreational areas for visitors in the parks, and to prevent congestion within and immediately outside of the parks ( id. at 639 [citing Dua v. New York City Dept of Parks & Recreation , 84 AD3d 596, 597 (1st Dept 2011) ] ). The court denied summary judgment to both parties on the issue of whether the regulations violated the New York State Constitution's guarantee of free expression, due to their respective failures to satisfy their burdens of proof ( id. at 639-41 ). For the same reason, the court denied summary judgment to both parties as to plaintiffs' equal protection claims ( id. at 641-42 ). The court also found that the revised regulations were not void for vagueness ( id. at 642-43 ). In addition, the court denied the plaintiffs' cross-motion as it pertained to their claims that the revised regulations violated the city and state's human rights laws. The state court case was commenced after the discontinuance of the parties' federal lawsuit.
Because the decisions in Lederman and Nesbit only addressed the constitutionality of the revised regulations under the United States Constitution, the state court was not precluded from considering the state law challenges (see People v. Southall , 156 AD3d 111, 122 [1st Dept 2017] [federal law "sets the floor and not the ceiling on protections under New York law"], lv denied 30 NY3d 1120 [2018] ; see also Dua , 59 Misc 3d at 638 ).
The Dua Court granted summary judgment as to some of the other claims, however. Parks, the decision stated, had an obligation to regulate vending " ‘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’ " (id. at 643 [quoting Local Laws, 1982, No. 33 of City of New York § 1; additional citations omitted] ). The decision found that the revised regulations are violative of this law and that therefore, summary judgment was appropriate. The decision also granted the defendants' motion to dismiss plaintiff's claim that the revised regulations violated Administrative Code 8-107 (9), as there was no evidence the plaintiffs were denied licenses due to discrimination against them ( Dua , 59 Misc 3d at 645 ).
In light of the above, Dua "declare[d] 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" ( Dua , 59 Misc 3d at 648 ). Based on this declaration, the court enjoined enforcement of the revised regulations (id. ). Defendants immediately filed a notice of appeal, and along with this filing there was an automatic stay of Justice Billings' order. Subsequently, the stay was extended by the First Department. After numerous adjournments, the appeal currently is scheduled for argument on the First Department's November 2018 calendar.
On October 21, 2017, while plaintiff vended his art in High Line Park, six Parks Enforcement Patrol (PEP) officers ordered him to relocate to one of the designated medallion spots. On that date, however, only three of the five medallion spots were available to vendors, and all three were in use. Plaintiff informed the PEP officers of Justice Billings' order, and he stated that he was in conformance with the park rules that were in effect before the 2010 revision. The PEP officers issued two summonses to him. Plaintiff filed a notice of claim related to this incident.
Subsequently, plaintiff commenced the action/proceeding currently before this Court. As in Lederman and Nesbitt , plaintiff asserts that the revisions to RCNY §§ 1-02 and 1-05 (b) violate the New York Constitution, Article I, §§ 8 and 11, which guarantees the right to free speech and expression, the state constitution's guarantee of equal protection, and Administrative Code § 20-452. Also, as in Lederman and Nesbitt , plaintiff seeks monetary damages and attorney's fees. As in the Dua lawsuit, plaintiff here alleges violations of Local Law 33, challenges other provisions of chapter 20 of the Administrative Code, and argues that the law is void for vagueness. For the most part, then, the current complaint combines the state law issues plaintiff raised in Lederman and Nesbitt with other challenges that were asserted by the plaintiffs in Dua .
Plaintiff refers generally to Administrative Code §§ 20-462 through 20-474.3, but cites only to subsections 453 and 465, which also are the bases of the Dua challenges.
In addition to the above, plaintiff discusses the amendments which were issued by Parks on May 8, 2013 — which are not specifically addressed in Lederman and Nesbitt , as they post-date the complaint in that lawsuit, and are not part of the complaint in Dua for the same reason. Plaintiff argues that the amendments arbitrarily distinguish between visual artists and performers, allowing performers who seek donations or sell CDs but do not use a table to vend without restrictions, and that this raises additional equal protection concerns. He states that the amendments increase the amount of sidewalk space a vendor must leave, from "a 12 foot wide pedestrian clearance from the outside edge of an art vendors 3 foot wide stand to the opposite curb" to "12 feet of pedestrian clearance after a standard 3 foot wide table is set up" (Complaint, at ¶ 39). He states that, because of this restriction, "the vast majority of all NYC parkland [is] off limits to expressive matter vendors selling visual art" (id. , at ¶ 42).
Defendants responded with this pre-answer motion to dismiss. In their motion, defendants discussed Lederman and Nesbitt at length. They note that the federal court denied injunctive relief in Lederman and Nesbitt as well as in the federal Dua action, and that Justice Billings' decision in the state Dua action is currently stayed. They stress that Lederman and Nesbitt granted summary judgment to the defendants and dismissed the complaint, that the Second Circuit affirmed the trial court's decision, and that the United States Supreme Court denied certiorari.
Citing Paramount Pictures Corp. v. Allianz Risk Transfer AG (31 NY3d 64, 69 [2018] ), defendants argue that "[t]he preclusive effect of a federal-court judgment on a subsequent state court action is determined by the federal common law" (citations and internal quotation marks omitted). They point out that res judicata includes issues that a plaintiff raises in the first action, and that it also extends to those issues the plaintiff could have raised. It notes that res judicata requires that the previous action 1) was an adjudication on the merits, and 2) involved the same parties or parties in privity with them. It also requires that the current action 1) includes claims that were or could have been raised in the previous action. They stress that only claims which were not in existence at the time of the original lawsuit were not barred (citing St. Pierre v. Dyer , 208 F3d 394, 400 [2d Cir 2000] ).
According to defendants, all three requirements have been satisfied, as Lederman and Nesbitt (1) was decided on the merits (citing Jacobson v. Firemen's Fund Ins. Co. , 111 F3d 261, 265 [2nd Cir 1997] ), (2) involved Mr. Lederman and the same defendants — with the exception that the identity of the mayor and the Parks commissioner have changed. Moreover, they state, the current action includes claims which were or could have been raised in the federal case (see Malcolm v. Board of Educ. of Honeoye Falls-Lima Cent. School Dist. , 506 Fed Appx 65, 67-68 [2d Cir 2012] ] ). Under res judicata, they allege, even the inclusion of additional facts — such as the issuance of two tickets to plaintiff in 2017 — does not alter this principle, as the arguments and challenges are the same (citing Waldman v. Village of Kiryas Joel , 39 F Supp 2d 370, 377 [SDNY 1999], aff'd , 207 F3d 105 [2d Cir 2000] ). Defendants assert that the inclusion of additional arguments, such as that the amended revised regulations violate the separation of powers principle, are vague, and are invalid under Administrative Code 20-473, also does not alter the applicability of res judicata, as those arguments could have been raised in Lederman and Nesbitt (citing St. Pierre , 208 F3d at 400 ). In addition, they state that although the decisions in Lederman and Nesbitt relied on federal law, the federal courts did not decline to exercise pendant jurisdiction over the state claims. Moreover, none of the federal courts' decisions dismissed the federal case without prejudice to renewal of the state law claims in state court. Instead, they note, the trial court dismissed the complaint Lederman and Nesbitt in its entirety. Therefore, they state, the dismissal applies to the state claims as well.
Furthermore, defendants state, collateral estoppel bars plaintiff's second, fourth, and fifth causes of action, which relate to plaintiff's challenges under the New York State Constitution, as well. In support, they cite Parker v. Blauvelt Volunteer Fire Co. (93 NY2d 343 [1999] ). Parker involved a plaintiff who had lost in his Article 78 proceeding, which sought relief related to the plaintiff's dismissal from the Blauvelt Volunteer Fire Company, Inc. Plaintiff brought the second action, under 42 USC § 1983, because the New York State Supreme Court had severed and dismissed the claims from the Article 78 proceeding. The Court of Appeals held that res judicata did not bar the proceeding because the claims at issue had been severed, but that collateral estoppel applied because under that doctrine, a party cannot relitigate an issue — such as, in Parker , the legitimacy of his termination — once it has been decided against him or her in a judicial or administrative forum. The same principle applies here, defendants state, because the Lederman and Nesbitt decision rejected the legitimacy of plaintiff's challenges.
Defendants further state that the free speech clause of the New York State Constitution and of the First Amendment of the United States Constitution are identical and that the same analytical framework applies under challenges to both. They acknowledge that New York's free speech clause provides more expansive protection. They state that this is irrelevant because "it does not automatically follow that it will be interpreted to confer any greater rights than those conferred by the First Amendment" (Mem. of Law, p 24 fn 7).
In opposition, plaintiff first asserts that res judicata and collateral estoppel are inapplicable. He states the Justice Billings' decision in Dua and the two summonses which were issued to him the date after that ruling constitute new facts which enable him to assert new claims. He points out that because he did not assert the separation of powers argument in Lederman and Nesbitt , he may bring it in the current action. Plaintiff states that defendants misrepresented the effective date of the amended revised regulations, as defendants began enforcing the amendments prior to their enactment, and that they significantly altered the revised rules as they related to performers. Thus, he argues, the federal court determination of his equal protection and first amendment claims was based on inaccurate information. He accuses defendants of falsely alleging the amendment was in response to Skyline as, according to plaintiff, performers had been exempted from certain of the restrictions imposed on visual artists before Skyline . Because of the above, he states, he did not receive a full, fair chance to litigate (citing Ryan v. NY Tel. Co. , 62 NY2d 494 [1984] ).
Furthermore, plaintiff states, the relaxation of regulations on performers who do not use tables is irrational because they often attract large crowds and are a bigger obstruction than a vendor at a table. He states the different treatment accorded to EMVs who sell their wares at tables violates equal protection due to the more lenient rules relating to performers who operate without tables. According to plaintiff, the United States District Court for the Southern District of New York's decision in Lederman v. Giuliani (2001 US Dist LEXIS 11567 [SDNY 2001], aff'd , 70 Fed Appx 39 [2d Cir 2003] ) — which found, inter alia, that the permit requirement applicable to visual artists violated the artists' equal protection right because book vendors did not need a permit — is directly applicable to the issues before this Court.
In addition, plaintiff states that the federal court in Lederman and Nesbitt was unable to consider his argument about the excessiveness of the restriction related to the mandatory sidewalk length because defendants did not create a diagram supporting his position until after the federal trial court decision. According to plaintiff, the restriction requires a sidewalk length of 15 feet, rather than 12 feet as defendants represented, and this essentially precludes visual artists from vending in the four parks covered by the challenged rules. Furthermore, plaintiff argues that his arguments relating to the Administrative Code are new, and they are supported by Justice Billings' decision in Dua . He cites a 1995 decision by the Environmental Control Board in New York City v. Harry Bouras (Appeal No. 18815), which, in considering a regulation relating to non-expressive matter vendors who operate on city sidewalks, noted that the clear 12-foot path requirement should be measured from curb to building line, and not from the vendor to the building line.
Moreover, plaintiff argues that res judicata and collateral estoppel cannot be asserted here. For one thing, he states, defendants did not raise these arguments in Dua and Justice Billings' decision does not address them. For another, plaintiff states, the former Parks commissioner, Adrian Benepe, and the former mayor, Mike Bloomberg, were in the federal case, whereas the current Parks commissioner and mayor are in the current lawsuit. Similarly, plaintiff argues that Mr. Nesbitt's absence from this lawsuit defeats defendants' argument. He argues, in addition, that he does not assert certain claims that were part of Lederman and Nesbitt , and he does not accuse the current mayor and Parks commissioner of retaliatory conduct towards him. He argues that the regulation violates the legislative purpose, in Administrative Code § 473, to impose as few restrictions on expressive matter vendors as possible. He cites to prior litigation over the city's attempts to impose restrictions, alleging that this demonstrates a history of flagrant violation of the administrative code provision.
In reply, defendants reiterate that res judicata and collateral estoppel apply here. They argue that plaintiff's reliance on Ryan is misguided, both because federal rather than state principles govern, and because Ryan supports defendants' rather than plaintiff's position. Moreover, they argue that plaintiff had a full and fair opportunity to present his current arguments in the federal lawsuit, where he was represented by counsel. They stress that the inclusion of new legal theories in this new complaint do not entitle plaintiff to bring a new lawsuit, as he could have asserted his separation of powers and Administrative Law contentions in the federal action, and that the two summonses plaintiff received after the Dua decision also do not bar the application of res judicata or collateral estoppel. Instead, defendants state, plaintiff's proper recourse would have been to challenge the summonses before the Environmental Control Board, not to bring a second lawsuit challenging the revised regulations. As for the 2013 amendments to the revised rules, defendants contend that plaintiff has mischaracterized the scope of the amendments. It quotes both the pre-2013 and post-2013 revised regulations — which show that the 2013 amendments added that restrictions applied to vendors who sell items "including, but not limited to goods, services, or entertainment, or provide or offer to provide services, items, or entertainment" (56 RCNY § 1-05 (b) (1). According to defendants, the statement of purpose for the amendment — that the regulation applies to entertainers as well as artists — is accurate. Therefore, they assert, the amendment ensures that no equal protection problem exists. Defendants suggest that plaintiff has the portion of the amendment which requires a 12-foot-wide pedestrian path is not changed by the 2013 amendment. In further support, they note that plaintiff raised the argument about the width of the path in federal court, and they quote language in the federal court decision which makes it clear the federal judge rejected this argument as it related to the identical language in the regulation before him. They argue that Mr. Nesbitt's absence from this lawsuit does not impact their res judicata and collateral estoppel arguments, and that the substitution of Mayor De Blasio and Parks Commissioner Silver for the prior mayor and Parks commissioner does not defeat their motion.
The Court does not address plaintiff's letter request for sanctions against defendants or the letters which followed. The Court does not allow litigation by letter. Even if it did, it would deny the request because a party cannot request the affirmative relief of sanctions by letter.
Discussion
In general, "[t]he doctrine of res judicata precludes a party from litigating ‘a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter’ " (Matter of Josey v. Goord , 9 NY3d 386, 389 [2007] [Josey] [quoting Matter of Hunter , 4 NY3d 260, 269 (2002) ] ). Even if the new complaint alleges a new theory of liability or seeks a different remedy, all claims which arise out of the original lawsuit are barred ( Josey , 9 NY3d at at 389-90 ). "[R]es judicata ... holds that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action" ( Monahan v. New York City Dept of Corrections , 214 F3d 275, 284-85 [2d Cir] [citation and internal quotation marks omitted], cert denied , 531 US 1035 [2000] ). Thus, res judicata bars "not only every matter which was offered and received to sustain or defeat the claim or demand, but also any other admissible matter which might have been offered for that purpose" ( Paramount , 31 NY3d at 73 [citation and internal quotation marks omitted] ). Furthermore, this principle applies where a plaintiff commences a state court action after a federal court has issued a decision on the merits (see id. at 85-86 ). A contrary rule would enable a litigant to "escape the consequences" of prior tactical decisions, ignore the New York courts' obligation to respect the determinations of the federal courts, "would encourage simultaneous litigation in two jurisdictions and promote forum shopping," and would run counter to principles of judicial economy ( id. at 85-86 ).
Based on these principles, and after careful consideration of the parties' arguments, the Court determines that res judicata bars this lawsuit. As defendants note, several of the claims were raised in the federal lawsuit. The federal complaint also challenged 56 RCNY § 1-05. Further, it alleged violations of Article I, §§ 8 and 11 of the New York State Constitution. The particular violations, the complaint asserted, were to the plaintiffs' freedom of expression and their right to equal protection under the law. The federal court's determinations that the regulations are content-neutral and that the City has a substantial interest in reducing congestion and promoting park safety and maintenance bind this Court and preclude plaintiff from relitigating the issues in this action.
Although New York's transactional "approach to res judicata is arguably broader than the principles adopted by the federal courts" (Insurance Co. of the State of Pennsylvania v. HSBC Bank USA , 10 NY3d 32, 38 n 3 [2008] ), any distinction is not critical for the purposes of this decision.
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The Court notes that Lederman and Nesbitt relied solely on the United States Constitution, and that federal law "sets the floor and not the ceiling on protections under New York law" ( People v. Southall , 156 AD3d 111, 122 [1st Dept 2017], lv denied 30 NY3d 1120 [2018] ). Furthermore, the Court rejects defendants' argument that the free speech clause of the New York State Constitution and of the First Amendment of the United States Constitution are identical and courts apply the same analytical framework when considering challenges to either one. As defendants acknowledge, New York's free speech clause provides more expansive protection than that provided in the First Amendment.
Despite this, plaintiff's claims under the New York State Constitution are barred. Plaintiff and Mr. Nesbit asserted their equal protection and free speech arguments under the New York State Constitution in the federal court action. It was their responsibility to pursue those arguments in their papers before the federal district court, and to preserve those issues during the appeals process. Similarly, plaintiff fully litigated the question of the impact of the Skyline decision in federal court Lederman and Nesbitt , 901 F Supp 2d at 479-80 ). The argument that the regulation's requirement that there be 12 feet of pedestrian pathway plus 3 feet due to the table's extension also was decided in federal court and is precluded here ( id. at 478-79 ).
Next, the Court must reject plaintiff's argument that he is entitled to assert causes of action which were not part of his federal lawsuit, as this argument overlooks the purpose and the application of res judicata. The purpose of res judicata is "to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication" ( Insurance Co. of the State of Pennsylvania v. HSBC Bank USA , 10 NY3d 32, 38 [2008] [citation and internal quotation marks omitted] ). Thus, under res judicata, not only those arguments that a party asserted previously, but "all other claims arising out of the same transaction or series of transactions ... even if based upon different theories or if seeking a different remedy" are barred ( Josey , 9 NY3d at 389-90 ; see Waldman , 39 F Supp 2d at 378 [SDNY 1999] ). This prevents a plaintiff from suing based on the same issue in a piecemeal fashion, bringing new arguments in subsequent lawsuits as they occur to him or her (see Waldman , 39 F Supp 2d at 379 ] ). Plaintiff and Mr. Nesbitt were represented by counsel in federal court, and had a full and fair opportunity to assert violations of the separation of powers doctrine, arguments related to the regulations' purported inconsistency with prior court decisions and laws, and challenges based on the Administrative Code, among others.
In addition, plaintiff's argument that the issuance of two summonses constitute new facts sufficient to allow plaintiff to reassert his challenges has no merit. Plaintiff is correct that res judicata does not preempt subsequent lawsuits which could not have been anticipated during the pendency of the original lawsuit (see TechnoMarine SA v. Giftports, Inc. , 758 F3d 493, 499 [2d Cir 2014] ). As defendants note, however, the fact that plaintiff received two summonses does not include the type of new or continued conduct contemplated by this rule. Moreover, under the law as it existed on the date plaintiff received the summonses, it was lawful to issue them. Further, plaintiff's does not assert any challenges based on the summonses so their inclusion in the lawsuit is not legally significant. Finally, as defendants argue, plaintiff's recourse was to challenge the summonses administratively. Based on plaintiff's notice of claim in response to the summons, it appears that he may have done so. Justice Billings' decision also does not constitute a new fact sufficient to enable plaintiff to commence a new action, as plaintiff still could have raised the legal arguments asserted in Dua in his earlier case. In addition, because the Dua case fully addresses the additional legal issues, there is no reason to commence a new lawsuit based on the arguments asserted in the Dua action.
Plaintiff's argument that there is no privity also lacks merit. "A privity analysis for res judicata purposes is broader than a traditional privity analysis. So whether privity exists is a functional inquiry" ( Waldman, 39 F Supp 2d at 380 ). Applying this principle, courts have found that "government officials sued in their official capacities are generally considered to be in privity with the governmental entity that they serve" ( Smith v. City of New York, 130 F Supp 3d 819, 828 [SDNY 2015] [citation and internal quotation marks omitted], aff'd , 664 Fed Appx 45 [2d Cir 2016] ). In federal court, plaintiff and Mr. Nesbitt sued Mayor Bloomberg in his official capacity as mayor of New York City, and they sued Adrian Benepe in both his individual capacity and his official capacity as Parks Commissioner. Currently, plaintiff sues William de Blasio in his official capacity as mayor of New York City, and he sues Mitchell J. Silver in his official capacity as Parks Commissioner. Therefore, he is suing them in their capacities as administrators of the challenged regulations. This was the same basis on which he previously sued Benepe and Bloomberg in their official capacities. Accordingly, privity exists. Further, the omission of Mr. Nesbitt from this lawsuit does not negate privity. The concern is whether the parties in the subsequent action were part of the original action. The reverse question is inapplicable.
Furthermore, plaintiff's arguments relating to the amendments to the revised regulations are not sufficient to entitle him to bring a second lawsuit. As this Court already explained in detail, plaintiff had a full opportunity to argue the pertinent issues relating to the amendment in the federal action. Moreover, as suggested earlier, there is no logical reason for plaintiff to assert a challenge to the amended revised regulations while Dua is pending. Justice Billings' decision struck the very regulations in dispute here, and her decision is going to be reviewed by the First Department. This Court is bound by the determinations of the First Department and the Court of Appeals (see People v. Cortes , 80 NY2d 201, 211 [1992] ). Therefore, the appellate court's ultimate decision in Dua will be binding precedent in this case, either in favor of plaintiff or of defendants. Any decision issued in this lawsuit, therefore, will be affirmed or denied based on the First Department's order in Dua . Under the government operations rule, defendants will be obliged to comply with that order with respect to all EMVs (see Jamie B. v. Hernandez , 274 AD2d 335, 336 [1st Dept 2000] ).
When it considered this motion, the Court reviewed all the parties' arguments as well as the documents submitted in support of and in opposition to this motion. The Court finds it unnecessary to reach the issue of collateral estoppel, as the case is dismissed based on res judicata. Accordingly, it is
ORDERED that the motion is granted, and this case is dismissed; and it is further
ORDERED and ADJUDGED that the Clerk shall enter a judgment of dismissal.