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EAST TIMOR ACTION NETWORK, INC. v. CITY OF NEW YORK

November 9, 1999

EAST TIMOR ACTION NETWORK, INC., PLAINTIFF,
v.
THE CITY OF NEW YORK; THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION; WILBUR CHAPMAN, COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION; AND ROBERT ADAMENKO, ASSISTANT COMMISSIONER OF THE OFFICE OF SPECIAL EVENTS OF THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

Plaintiff East Timor Action Network ("ETAN") has moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for partial summary judgment, seeking a declaration that defendants the City of New York ("the City"), the New York City Department of Transportation ("DOT"), Wilbur Chapman, Commissioner of DOT ("Chapman"), and Robert Adamenko, Assistant Commissioner of the Office of Special Events of DOT ("Adamenko"), violated the Civil Rights Acts of 1871, 42 U.S.C. § 1983, by refusing to grant an application for erection of temporary street signs stating "1991 Santa Cruz Massacre" and "Free East Timor." The Defendants have cross-moved for summary judgment, seeking dismissal of ETAN's complaint. Upon the facts and conclusions set forth below, ETAN's motion is granted in part, Defendants' motion is denied, and judgment will be entered granting certain of the relief sought in the complaint.

Prior Proceedings

ETAN filed suit against Defendants on May 19, 1999, and by order to show cause sought a preliminary injunction to compel the City to erect temporary street signs entitled "Free East Timor" at the southeast corner of 68th Street and Madison Avenue and the northwest corner of 68th Street and Fifth Avenue, in Manhattan, near the Indonesian Consulate. ETAN sought to have the signs erected prior to the 23rd anniversary of the annexation of East Timor on July 17, 1976, in connection with a planned demonstration for the anniversary date, and prior to the referendum on independence which was conducted in East Timor on August 30, 1999.

After an initial hearing, the parties on June 28, 1999, stipulated to the erection of temporary street signs at the requested locations stating "East Timor Way," thus mooting the motion for a preliminary injunction.

Discovery was undertaken, the parties agreed upon a stipulation of facts, and the instant motions were marked fully submitted on August 5, 1999.

Facts

ETAN is a not-for-profit corporation dedicated to human rights and self-determination for the people of East Timor, a territory situated 400 miles north of Australia in the Indonesian archipelago. East Timor was annexed by Indonesia on July 17, 1976. ETAN was founded in 1991 and incorporated under the laws of the State of New York as a not-for-profit corporation in 1998. Its primary activities include lobbying the United States Congress and the United Nations, offering public education programs, organizing demonstrations and rallies, and providing information to the media. ETAN has 24 chapters in the United States, including a significant New York chapter.

The City is a municipal corporation, and the individual defendants are the officers with responsibility for supervising the administration of street signs in the City.

The Requests By ETAN and the Denials by the City

By letter to DOT dated September 16, 1998, ETAN requested that two temporary street name signs, bearing the words "1991 Santa Cruz Massacre," be posted by November 8, 1998 at the southeast corner of 68th Street and Fifth Avenue and the northwest corner of 68th Street and Madison Avenue in Manhattan, to commemorate an unprovoked massacre of 271 people in Dili, East Timor by Indonesian soldiers. The Consulate of Indonesia is mid-block on 68th Street between Madison and Fifth. DOT denied ETAN's request by way of letter from Adamenko dated October 1, 1998, which stated:

  Due to the sensitive political nature of this
  request, I must deny your request for the two
  temporary street name signs. A street renaming to
  promote products, commercial entities, political
  parties and/or candidates is prohibited.

By letter dated March 19, 1999, ETAN requested that two temporary street name signs bearing the message "Free East Timor" be posted by July 17, 1999 at the same locations near the Indonesian Consulate — the southeast corner of 68th Street and Fifth Avenue and the northwest corner of 68th Street and Madison Avenue — to commemorate the 23rd anniversary of the annexation of East Timor by Indonesia. ETAN's letter further stated:

  For the past six years, ETAN has conducted a protest
  demonstration on the anniversary of the annexation of
  East Timor. This year, ETAN's rally will be held on
  July 17, 1999 in front of the Indonesian Consulate.
  ETAN would like to unveil the installed signs during
  the rally.

Adamenko informed ETAN, in telephone conversations followed by a letter dated May 11, 1999, that its request for temporary street name signs had been denied. In one of his telephone conversations with ETAN's representative, Adamenko stated that DOT would not grant ETAN's request because the proposed sign's message was "very political" and would "inflame the diplomatic community." Thereafter, Adamenko sent ETAN a letter stating that the request had been denied because "the renaming of a street to promote political parties is prohibited."

Thereafter, as set forth above, the City on June 28 agreed to erect a temporary street sign stating "East Timor Way," and ETAN withdrew its application for a preliminary injunction.

The Designation of Street Signs

DOT is the mayoral agency "responsible for all those functions and operations of the City relating to transportation." New York City Charter § 2903. As such, DOT is required to erect and maintain all traffic and highway signs in the City, including "signs . . . indicating the names of streets and other public places . . ." ("street name signs"). City Charter § 2903(a)(2).*fn1

DOT installs all traffic and highway signs, including street name signs, in accordance with the Manual on Uniform Traffic Control Devices adopted by the Federal Highway Administrator. Pursuant to that manual, street name signs have a white border, white lettering at least four inches high, and a green background. Made of reflectorized aluminum with lettering on both sides, street name signs are erected on metal street light and/or traffic light poles which are located on the sidewalk on diagonally opposite corners at each intersection.

The City makes its primary designation of its streets and street corners by way of local laws enacted by the City Council. In addition to enacting local laws changing the primary designation of a street, the City has given streets and street corners supplemental designations to honor various people, places, and events by legislative action of the City Council, Mayoral designation, or administrative grant of requests by entities not connected with the City. While a change in the primary designation of a street requires an amendment to the City map, a map change is not required when a street or street corner is given a supplemental designation to honor a person, place or event. See New York City Administrative Code § 25-102.1.

When the City Council enacts a local law naming a street or street corner, DOT installs a sign indicating the street's new name. In circumstances where the new designation by the City Council or the Mayor is supplemental and the City map is not changed, the sign bearing the street name added by the local law is "placed adjacent to or near" the sign bearing the name of the street indicated on the City map. In some instances, the City Council has enacted local laws naming streets or street corners to honor certain people, places, and events associated with political causes supported by Council members and their constituents. The Mayor has also directed supplemental signage.

In addition to installing supplemental street name signs pursuant to local law or Mayoral direction, DOT installs signs temporarily naming streets or street corners under certain circumstances at the request of private individuals or organizations not related to the City. Temporary street name signs have white lettering and a white border on a background of blue, the color designated for informational highway signs by the Manual on Uniform Traffic Control Devices; they are identical to local law street name signs in all other respects. Temporary street name signs are erected on metal poles at designated intersections in the same manner as local law street name signs. These signs are generally taken down within 30 days.

Private requests for temporary street or street corner designations are considered and determined by Adamenko, as head of DOT's Office of Special Events. There is no process of review of his determinations. In 1996, Adamenko's predecessor authorized DOT's Standard Operating Procedure 96-1 ("SOP 96-1"), which sets forth written guidelines for determining requests by private individuals and organizations for temporary street name designations to memorialize DOT's existing practices and procedures for dealing with such requests. SOP 96-1 is given to any applicant seeking a temporary street name.

SOP 96-1 states, in relevant part:

Purpose of Street Renaming

The Department of Transportation permits the temporary renaming of streets if the street name promotes or commemorates one or more of the following:

• a public event of a not-for-profit nature

• a cultural event

• an event or person of historic ...


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