Appeals Court Extends Artists' Right to Display and Sell in New York City's Parks

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Phillips Nizer LLP persuades appeals court to continue injunction against new rules

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As a matter of law, the decision by the First Department means the artists demonstrated a likelihood of success on the merits of their appeal.

New York’s street artists have won the latest battle in the war being waged against them by the Parks Department. In a just-released decision, a full panel of the Appellate Division, First Department, granted the artists’ emergency motion to prohibit the City from enforcing new Parks Department rules that severely limit the rights of visual artists to display and sell their works. The prohibition will remain in effect until the Court hears and decides the artists’ appeal of the trial court’s order denying their request for a preliminary injunction. The appeal is expected to be heard in April or May this year. Consequently, the artists keep their right to display and sell their original artwork in and around the City’s parks well into Spring.

“The snow will melt. Spring will come. Crocuses – and canvases – will return to the City’s parks,” said Jon Schuyler Brooks, the litigation partner at Phillips Nizer who argued the artists’ emergency motion. “As a matter of law, the decision by the First Department means the artists demonstrated a likelihood of success on the merits of their appeal. Perhaps the City now will concede it has wasted enough tax-payer treasure on this effort to remove original artists from the sidewalks.”

In the emergency motion to the appeals court, Phillips Nizer identified six legal errors in the trial court’s order. Those errors will be the focus of the artists’ appeal.

The new Parks Department rules went into effect on July 19, 2010. They seek to limit and restrict “expressive matter” vending in Central Park, Union Square Park, Battery Park and the High Line, as well as on the sidewalks adjacent to them. The artists contend the new rules infringe on their rights to free expression and equal protection under the New York State Constitution; violate New York State and New York City human rights laws; and contradict New York City Local Laws and the Administrative Code.

Phillips Nizer commenced the lawsuit in State Supreme Court on August 4, 2010, then filed a preliminary injunction motion on August 25, 2010, and simultaneously applied for a temporary restraining order (“TRO”) to stop the defendants from enforcing the new rules. The TRO was granted the same day by Supreme Court Justice Martin Schoenfeld, and the government’s subsequent attempts to stay and vacate the TRO were rejected, respectively, by Justice Rosalyn Richter of the Appellate Division and Justice Milton Tingling, Jr., the trial court judge. On December 15, 2010, Justice Tingling denied the preliminary injunction motion and lifted the TRO. The very next day, Phillips Nizer filed a Notice of Appeal and the emergency motion.    

The Phillips Nizer team representing the artists includes litigation partner Jon Schuyler Brooks, real estate/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, 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.

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: http://www.phillipsnizer.com/

CONTACT:

Jon Schuyler Brooks
(212) 841-0780 | (516) 455-0215 (cell)
jbrooks(at)phillipsnizer(dot)com

Kevin B. McGrath
(212) 841-0743 | (646) 734-8228 (cell)
kmcgrath(at)phillipsnizer(dot)com

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