Armando Crescenzi, James Kennedy, Albert Simmons, Howard Dalton, Oral Fields, Plaintiffs-Appellees,
The City of New York, Veronica M. White, Chairman of the New York City Department of Parks and Recreation, individually and in her official capacity, Bruce Langston, Asha Harris, John Does # 1-10, Defendants-Appellants, Raymond Kelly, individually and in his official capacity, Defendant.
Argued: February 28, 2019
the City of New York ("the City") appeals from a
judgment of the United States District Court for the Southern
District of New York (Daniels, J.), granting
judgment to Plaintiffs-Appellees on their 42 U.S.C. §
1983 false-arrest claim. On appeal, the City argues that the
district court erred in determining that New York General
Business Law § 35-a(7)(i) does not require curbside
vending. We agree with the City. Accordingly, the judgment of
the district court is REVERSED.
PLAINTIFFS-APPELLEES: JOSHUA P. FITCH, Cohen & Fitch LLP,
New York, NY.
DEFENDANTS-APPELLANTS: DEVIN SLACK (Richard Dearing, on the
brief), for Zachary W. Carter, Corporation Counsel of the
City of New York, New York, NY.
Before: Katzmann, Chief Judge, and Livingston and Droney,
ANN LIVINGSTON, Circuit Judge
the City of New York ("the City") appeals from a
March 29, 2018 judgment of the United States District Court
for the Southern District of New York (Daniels, J.),
granting judgment to Plaintiffs-Appellees on their 42 U.S.C.
§ 1983 false-arrest claim. On appeal, the City argues
that the district court erred in determining that New York
General Business Law ("GBL") § 35- a(7)(i)
does not require curbside vending. We agree and conclude that
§ 35-a(7)(i) does require curbside vending.
Accordingly, we reverse the judgment of the district court.
City is a bustling metropolis in which walking is the primary
means of getting around for many of the 8.5 million people
who call the City home (not to mention the City's 60
million annual visitors). See Winnie Hu, New
York's Sidewalks Are So Packed, Pedestrians Are Taking to
the Streets, N.Y. Times, June 30, 2016,
http://nyti.ms/2je0h4J. Much of this pedestrian
traffic takes place on sidewalks. Congestion and blockages on
these busy sidewalks, then, can create frustrating challenges
and real dangers for people simply trying to get to work,
school, or the grocery store. The City, cognizant of the
sometimes-difficult circumstances of its pedestrians,
regulates its sidewalks with a complex patchwork of laws and
regulations in order to ensure a steady-and safe-flow of foot
traffic. See, e.g., N.Y. City Admin. Code §
19-125(d) (regulating ornamental lamppost placement);
id. § 19-128.1(b)(5) (newsracks); N.Y. City
Zoning Resolution §§ 26-23, 26-42 (planting strips
and trees); 34 R.C.N.Y. § 2-20(q)(4) (street poles).
such regulatory scheme governs disabled veteran vendors, who
can be seen on sidewalks across the City selling hot dogs,
pretzels, ice cream, and more. The longstanding exemption
from municipal limitations on sidewalk vending for disabled
veterans, codified in GBL § 35, entitles "any
honorably discharged member of the armed forces of the United
States who is physically disabled as a result of injuries
received while in the service of said armed forces" to
vend in "any street, avenue, alley, lane or park"
of the City, so long as he or she has been issued a license
to do so. But this entitlement comes with several
restrictions, set forth in GBL § 35-a, as to where,
when, and how vendors may vend. Cf. Matter of Rossi
v. N.Y.C. Dep't of Parks & Recreation,
127 A.D.3d 463, 465 (1st Dep't 2015) (noting that the
restrictions in § 35-a are designed to "combat
sidewalk congestion and promote public safety"). At
issue in this case is the restriction described in § 35-
a(7)(i), which provides that no disabled veteran vendor
shall occupy more than eight linear feet of public space
parallel to the curb in the operation of a vending business
and, in addition, no [disabled veteran vendor] operating any
vending business on any sidewalk shall occupy more than three
linear feet to be measured from the curb toward the property
GBL § 35-a(7)(i).
Crescenzi, James Kennedy, Albert Simmons, Howard Dalton, and
Oral Fields (collectively, "Plaintiffs-Appellees")
are five disabled veterans who were issued, as relevant here,
298 summonses between 2011 and 2013 while vending in front of
the Metropolitan Museum of Art. The summonses were issued by
City Parks Enforcement Patrol ("PEP") officers for
Plaintiffs-Appellees' failure to comply with orders to
relocate their vending carts in violation of the City's
rule that no person shall "refuse to comply with the
lawful direction or command" of any PEP officer.
See 56 R.C.N.Y. § 1-03(c)(1). The stated
"lawful" basis for the relocation orders was that
Plaintiffs-Appellees were contravening § 35-a(7)(i) by
operating their carts more than three feet from the curb.
Each summons contained nearly identical language. To take one
I did observe the respondent vending food from a cart on
parks property that is under the jurisdiction of NYC Parks.
The respondent cart was approximately 20 feet from the curb.
I told the food vendor that according to GBL 35-a(7)(i) a
vendor must occupy no more than three (3) linear feet
measured from the curb. When asked to move to the curb the
respondent failed to comply with my directives.
February 5, 2013, Plaintiffs-Appellees filed the instant
action against the City under 42 U.S.C. § 1983 in the
United States District Court for the Southern District of New
York. The complaint alleged a claim of false
arrest, on the theory that Plaintiffs-Appellees were in
compliance with § 35-a(7)(i)-if properly interpreted-at
the time of the officers' relocation orders, so that