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IRISH LESBIAN & GAY ORG. v. GIULIANI

December 18, 1996

THE IRISH LESBIAN AND GAY ORGANIZATION, Plaintiff, against RUDOLPH W. GIULIANI, in his official capacity as Mayor of the City of New York, WILLIAM J. BRATTON, in his official capacity as Police Commissioner of the City of New York, and THE CITY OF NEW YORK, Defendants, NEW YORK COUNTY BOARD OF THE ANCIENT ORDER OF HIBERNIANS, Defendant-Intervenor.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 Plaintiff Irish Lesbian and Gay Organization ("ILGO") brings this action against New York City, its Mayor, and its Police Commissioner (collectively, "the City") challenging the denial of ILGO's application for a permit to conduct a parade on March 16, 1996 prior to the annual St. Patrick's Day Parade (the "Parade") conducted by the New York County Board of the Ancient Order of Hibernians (the "AOH"). Specifically, ILGO's permit application sought approval for a group of 1,500 to 2,000 people to march north along Fifth Avenue from 42nd Street to 86th Street -- the same route as AOH's parade -- starting at 9:30 a.m. Judge John F. Keenan of this Court denied a similar challenge to the City's refusal to grant a substantially similar permit to ILGO last year. See Irish Lesbian & Gay Org. v. Bratton, 882 F. Supp. 315 (S.D.N.Y.) ("ILGO 1995 "), aff'd, 52 F.3d 311 (2d Cir. 1995) (table). On March 14, 1996, this Court denied ILGO's motion for a preliminary injunction to prevent the City from denying ILGO's permit application. See Irish Lesbian & Gay Org. v. Giuliani, 918 F. Supp. 732 (S.D.N.Y. 1996) ("ILGO 1996 ").

 The City now moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The City's motion is granted.

 I.

 On a motion to dismiss, the factual allegations of the complaint are to be accepted as true and all reasonable inferences are construed in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994). A court should dismiss a complaint under Fed. R. Civ. P. 12(b)(6) only "if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 When reviewing a Rule 12(c) motion for judgment on the pleadings, this Court "must view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party." Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994); Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989); see also National Ass'n of Pharmaceutical Mfrs., Inc. v. Ayerst Labs., 850 F.2d 904, 909 n.2 (2d Cir. 1988) (indicating that the Court treats a motion for judgment on the pleadings as if it were a motion to dismiss).

 II.

 There is no material dispute with respect to the following facts, which were set forth in the Court's opinion in ILGO 1996, 918 F. Supp. at 736-39, familiarity with which is assumed. ILGO describes itself as a group of lesbians and gay men of Irish descent who formed a group in 1990 to create "a safe and comfortable forum for Irish lesbians and gay men to discuss and address [their] social, cultural and political needs." Since its inception ILGO has made repeated efforts to participate in the St. Patrick's Day Parade, an annual event held in New York City for over two-hundred years. None of ILGO's legal challenges have met with success. See ILGO 1996, 918 F. Supp. 732; ILGO 1995, 882 F. Supp. 315; New York County Bd. of Ancient Order of Hibernians v. Dinkins, 814 F. Supp. 358 (S.D.N.Y. 1993) (Duffy, J.) ("ILGO 1993 "); Irish Lesbian & Gay Org. v. New York State Bd. of Ancient Order of Hibernians, 788 F. Supp. 172 (S.D.N.Y. 1992) (Leval, J.) ("ILGO 1992 ").

 In the 1992 and 1993 challenges, ILGO sought injunctive relief that would require the City to permit the group to march as a unit in the St. Patrick's Day Parade itself. Judges Leval and Duffy, respectively, denied ILGO's applications. The reasoning of the two decisions anticipated that of the Supreme Court in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 132 L. Ed. 2d 487, 115 S. Ct. 2338 (1995).

 In 1995, ILGO brought an Article 78 petition in New York State Supreme Court to compel the New York Police Department ("NYPD") to issue ILGO a permit to conduct its own parade at 8:30 a.m. on the same day, Friday, March 17, 1995, and along the same route as the 1995 St. Patrick's Day Parade. The petition was removed to federal court, and Judge Keenan denied the injunction and dismissed the complaint. See ILGO 1995, 882 F. Supp. at 321.

 This year, the St. Patrick's Day Parade was scheduled for Saturday, March 16, 1996, at 11:00 a.m. along its traditional route. On February 23, 1996, the AOH, the sponsor of the Parade, received a permit to conduct the Parade. On or about October 11, 1995, ILGO submitted to the City its application for a parade permit for a group of 1,500 to 2,000 people to march on the same day, along the same route, on the same street, and for the same distance as the St. Patrick's Day Parade. The only difference was that ILGO's parade would begin at 9:30 a.m., and the St. Patrick's Day Parade was scheduled to begin at 11:00 a.m. Nevertheless, the necessary preparations for the St. Patrick's Day Parade would have overlapped with the parade ILGO wanted to conduct in both time and location. The City denied ILGO's permit request on February 13, 1996, pursuant to authority granted to the Police Commissioner under the New York City Administrative Code ┬ž 10-110 and the Police Department's Administrative Guide Procedure 321-14 interpreting that provision. See ILGO 1996, 918 F. Supp. at 741-42. The City explains that the permit was denied because two parades cannot be conducted at the same location on the same day at the same time. The City maintained that allowing two simultaneous parades would have allowed unacceptable levels of traffic congestion and imposed unmanageable burdens on police, sanitation, and emergency medical services.

 III.

 ILGO challenges the facial constitutionality of Section 10-110 of the New York City Administrative Code, the permitting ordinance under which the Police Commissioner derives the authority to regulate parades. ILGO argues that the ordinance delegates unfettered discretion to city officials and is unconstitutionally overbroad. The City contends that ILGO's facial challenge to the City's permitting scheme should be dismissed because it was either raised or could have been raised in ILGO 1995 and therefore is barred by the doctrines of collateral estoppel and res judicata.

 Collateral estoppel and res judicata are designed to protect "litigants from the burden of relitigating an identical issue with the same party or his privy and [to promote] judicial economy by preventing needless litigation." Parklane Hosiery Co., Inc. v. ...


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