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Phillips Nizer Press Release

September 17, 2010

Kevin B. McGrath
(212) 841-0743

Hearing on artists' motion for a preliminary injunction continues on September 20;
TRO remains in effect

New York, NY – A New York State appeals court dealt yet another blow to the City of New York, denying summarily their motion to vacate the August 25, 2010 temporary restraining order (TRO) that prohibits the City and its Parks Department from enforcing recently adopted rules that restrict artists from displaying and selling their artwork in and adjacent to four city parks.  In a terse decision issued September 16, 2010, the Appellate Division of the New York State Supreme Court denied the motion. 

“[There has been] no change warranting a different decision than previously rendered,” wrote Justice Rosalyn Richter, referring to her August 26, 2010 decision denying the Mayor’s and Commissioner’s prior attempt to get out from under the TRO.  “Application to reconsider vacating stay denied.”

The motion papers filed by the City and the Parks Department assert “the TRO, already in effect for an unacceptable three weeks, cannot be tolerated any longer.”  Those same papers complain that a hearing in the trial court on the artists’ motion to continue the TRO’s prohibitions during the pendency of the lawsuit – a hearing that first started only on September 13, 2010, and is scheduled to resume next Monday afternoon, September 20, 2010 – has gone on too long.  “[E]ven if it is concluded on Monday, Justice Tingling has not indicated how long he will take to decide the motion,” referring to Supreme Court Justice Milton A. Tingling, Jr. who is presiding over the hearing.

In response to the motion to vacate the TRO, Phillips Nizer, the New York law firm representing the artists, filed a cross motion to recover costs from, and impose sanctions upon, the Mayor and his co-defendants.  A full panel of the Appellate Division will hear that cross-motion the weeks to come.

The defendants, the City of New York, the Department of Parks and Recreation, Mayor Michael Bloomberg and Parks Commissioner Adrien Benepe, seek to limit and restrict vending in Central Park, Union Square Park, Battery Park and the High Line and sidewalks adjacent to them.  The artists contend the new rules infringe on their rights to free speech 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.

The new Parks Department rules went into effect on July 19, 2010.  Phillips Nizer commenced a lawsuit on August 4, 2010, and filed the 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 Schonfeld, 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 Tingling.   

The Phillips Nizer team representing the artists includes real estate/government relations partner Kevin B. McGrath 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: