The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Kapnick, determined that the restrictions placed on expressive matter vendors’ (EMV’s) use of public parks were valid and enforceable. “Expressive matter is defined as ‘materials or objects with expressive content, such as newspapers, books or writings, or visual art such as paintings, prints, photography, sculpture, or entertainment’ …”.
… DPR [NYC Department of Parks and Recreation] published proposed revisions to the rules applicable to EMVs. It held a public hearing, and based on comments at the hearing as well as written comments, revised the proposed rules. … Under the revised EMV Rules, while EMVs may sell in almost all City parks if they comply with certain requirements, they are restricted in Union Square Park, Battery Park, High Line Park, and portions of Central Park below 86th Street, where they may only sell their items, on a first-come, first-serve basis, in certain designated areas, and only one vendor is allowed to sell at each spot. The EMVs may always sell in the nonenumerated areas, including other City parks and sidewalks. * * *
I. The EMV Rules do not conflict with the City Council’s legislative intent, as expressed in Local Law No. 33 of 1982. * * *
II. The EMV Rules do not violate vendors’ rights under the New York Constitution. * * *
III. Defendants are entitled to summary judgment dismissing the discrimination claims under the State and City Human Rights Law. * * *
IV. Supreme Court erred in granting plaintiffs leave to amend to add a separation of powers claim. * * * Dua v New York City Dept. of Parks & Recreation, 2019 NY Slip Op 06154, First Dept 8-20-19