Bloomberg, Benepe, Parks Department And City Slapped With Temporary Restraining Order

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Phillips Nizer, acting as pro bono counsel for a group of visual artists, challenges constitutionality and validity of the City’s new regulations restricting the number of visual artists in City parks

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The State Supreme Court, and now the Appellate Division, have spoken, and recognized that the City’s regulations expose the artists to irreparable harm, specifically the loss of their right to freedom of expression

The New York State Supreme Court in Manhattan issued a temporary restraining order (“TRO”) Wednesday night, August 25, 2010, against Mayor Michael Bloomberg, Parks Commissioner Adrian Benepe, the City of New York and the Department of Parks & Recreation, prohibiting them from enforcing the City’s recently adopted regulations limiting the number of visual artists in four public parks: Central Park (including in front of the Metropolitan Museum of Art, Grand Army Plaza, and Columbus Circle), Battery Park, Union Square Park and The High Line (the “Restricted Parks”). The new regulations went into effect on July 19, 2010.

Overnight, the Mayor and the other City allegedly defendants tried to circumvent the TRO by invoking a procedural legal maneuver, but Phillips Nizer successfully parried that effort late in the day on August 26, 2010, convincing the Appellate Division, First Department, to reject City’s effort to “stay” the TRO.

The TRO, issued by State Supreme Court Justice Martin Schoenfeld, forbids the Mayor and the other defendants from using the new regulations to limit number of the visual artists and the locations from which they vend. The new regulations limited the total number of not only visual artists, but also booksellers and, according to the City, certain performance artists, by forcing them to vend at designated spots in the Restricted Parks, and limiting to 100 the number of the spots available on a daily basis. As a result of the Phillips Nizer victory, those restrictions are lifted. The United States Court of Appeals for the Second Circuit previously recognized that visual art is protected free speech, and that visual artists have a constitutional right to sell their artwork.

“The State Supreme Court, and now the Appellate Division, have spoken, and recognized that the City’s regulations expose the artists to irreparable harm, specifically the loss of their right to freedom of expression,” said Jon Schuyler Brooks, a Phillips Nizer litigation partner. “The regulations also violate New York State and New York City human rights law, and contradict the Local Laws and the Administrative Code of the City of New York.”

The parties will return to Court on Monday, August 30, 2010 to argue that artists’ motion that a preliminary injunction should be issued enjoining the enforcement of the regulations until the merits of the case are tried and determined.

The artists are being represented by Brooks and Phillips Nizer LLP government relations partner Kevin B. McGrath, senior counsel Paul A. Victor, and litigation counsel Jeffrey L. Shore.

New York State Supreme Court, Index # 110344/10

Diane I. Dua, Joel Kaye, Bryan Close, Tenzin Wangdu, Jack Diamond, Bayo Iribhogbe, Robyn Wohl, George Moran and Artists United,
New York City Department of Parks and Recreation (as a Municipal agency); Adrien Benepe (in 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),

About Phillips Nizer LLP:
Phillips Nizer LLP has been engaged in a wide-ranging practice of domestic and international law for over 80 years. Established by world-renowned trial attorney Louis Nizer, the firm consists of lawyers who are well-respected leaders in their fields. The firm’s principal office is in New York City, with additional offices in Garden City, Long Island and Hackensack, New Jersey. For more information about Phillips Nizer LLP, please visit:


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Jon Schuyler Brooks

Kevin B. McGrath

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