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SUPREME COURT OF NEW YORK, SPECIAL TERM, QUEENS COUNTY 1968.NY.42961 <>; 293 N.Y.S.2d 812; 57 Misc. 2d 946 October 1, 1968 IN THE MATTER OF JAMES RUPP ET AL., PETITIONERS,v.JOHN V. LINDSAY, AS MAYOR OF THE CITY OF NEW YORK, ET AL., RESPONDENTS Frederick M. Reuss, Jr. for petitioners. J. Lee Rankin, Corporation Counsel, for respondents. Harold Tessler, J. Author: Tessler

Harold Tessler, J.

Author: Tessler

 This is an article 78 proceeding instituted by petitioner James Rupp, duly nominated candidate of the Courage party for the office of Elector of the President and Vice President of the United States, and petitioner Clifford A. Franklin, the field representative and New York director of the campaign of George C. Wallace for the Presidency of the United States. Petitioners seek an order

"1. Directing the respondents to enter into a formal contract, embodying the agreement made between the respondents, the petitioners and The Wallace Campaign for the renting of the William A. Shea Municipal Stadium to The Wallace Campaign on the 9th day of October, 1968; and

"2. Directing the respondents to rent the William A. Shea Municipal Stadium to The Wallace Campaign and to the petitioners for October 9, 1968, upon the same terms as were contained in the agreement made orally between the parties; and

"3. Directing that the respondents rent the said William A. Shea Municipal Stadium to the petitioners and to the Wallace Campaign on October 9, 1968; and

"4. Granting the petitioners such other and further relief as may be just and equitable".

Respondents now move pursuant to CPLR 7804 (subd. [f]) to dismiss the petition for legal insufficiency. The American Civil Liberties Union has appeared amicus curiae.

Petitioners allege that they have instituted this proceeding in their own behalf, on behalf of George C. Wallace, the presidential candidate, and on behalf of 43 other candidates for the office of Electors of the presidency and vice presidency of the United States. Petitioners further allege that on or about September 23, 1968 they communicated with the respondent George F. Niebling, who is the director of the William A. Shea Municipal Stadium, and sought to arrange with him a lease of that stadium on behalf of the "Wallace Campaign" in order that they might hold a rally in support of the candidacy of George C. Wallace and in order that he might, on the occasion of such rally, make a major statement as a presidential candidate. Petitioners allege on information and belief that thereafter Niebling communicated with August Heckscher, the Commissioner of Parks of the City of New York, and that the Commissioner approved the agreement for the rental of the stadium and that respondent Niebling communicated this approval to the petitioners.

Petitioners further allege that respondent Niebling prepared a formal written agreement for execution by the parties for the rental of the stadium and that the fee agreed upon was $10,000. Petitioners allege that they were and are ready, willing and able to enter into that agreement, but that respondent Heckscher has now stated that the contract could not be executed because the planned rally did not fit into the permitted purposes for which the stadium is maintained. Petitioners draw the court's attention to the fact that unless a decision is rendered by October 1, 1968 any remedy that might be afforded by the court would be useless since after that date it will be impossible to complete the arrangements that have to be made for Governor Wallace's appearance and "it will be almost impossible after that date to make arrangements for Secret Service protection, such as has been directed by the President of the United States to be provided, for the protection of Governor Wallace and all other candidates for the presidency." Respondents have also served an answer to the petition.

In support of the motion to dismiss, respondents contend that "Mandamus will not lie to compel the Park Commissioner to execute a lease of Shea Stadium for a specified date because the Park Commissioner has absolute discretion to decide whether Shea Stadium is to be utilized as a forum for partisan political activity" and he has promulgated the policy that no such activity shall be permitted within its confines. Respondents further contend that their action does not constitute an unconstitutional abridgement of petitioners' rights of free speech and assembly and, in support of this contention, the Assistant Corporation Counsel, who appeared on behalf of respondents, stated that he was authorized to offer to petitioners the use of another city-owned stadium, i.e., Downing Memorial Stadium located on Randall's Island.

In opposition to the motion to dismiss and in support of their motion for judgment, petitioners contend that (1) the action of respondents in refusing the requested rental is arbitrary and capricious as a matter of law and (2) the action complained of constitutes a prior restraint on speech and on the rights of free assembly in violation of both the Federal and State Constitutions.

The motion to dismiss the petition is denied and judgment is granted to petitioners to the extent indicated below, for the following reasons:

It is beyond dispute that a citizen does not have the right to use public property under a municipality's control at his will or on his own terms. Nor does a citizen have a constitutional or inalienable right to use the municipal facility irrespective of the municipality's right to regulate such facility for the best interests of the public.

In the instant case, the prescribed uses and the respondents' area of regulation are spelled out and delineated in subdivision a of section 532-15.0 of the Administrative Code of the City of New York, entitled "Renting of stadium in Flushing Meadow Park; exemption from down payment requirements" provides: "Notwithstanding any other provision of law, general, special or local, the city, acting by the commissioner, with the approval of the board of estimate, is hereby authorized and empowered from time to time to enter into contracts, leases or rental agreements with, or grant licenses, permits, concessions or other authorizations to, any person or persons, upon such terms and conditions, for such consideration, and for such term of duration ...

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