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Union Square Park Community Coalition, Inc. v. New York City Department of Parks and Recreation

Supreme Court of New York, First Department

June 18, 2013

Union Square Park Community Coalition, Inc., et al., Plaintiffs-Respondents,
v.
New York City Department of Parks and Recreation, et al., Defendants-Appellants. Union Square Partnership, Friends of the Union Square Dog Run, Victoria Owners Corp., Rothman's Union Square, Susan Kramer, Gail Fox, Buchbinder & Warren, LLC, Union Square Eye Care, and Vineyard Theatre, Amici Curiae.

Michael A. Cardozo, Corporation Counsel, New York (Deborah A. Brenner of counsel), for New York City Department of Parks and Recreation, Adrian Benepe, The City of New York and Chef Driven Market, LLC, appellants.

Davis Wright Tremaine LLP, New York (Victor A. Kovner and Camille Calman of counsel), for Urban Space Holdings, Inc., appellant.

Super Law Group, LLC, New York (Reed W. Super of counsel), for respondents.

Friedman Kaplan Seiler & Adelman LLP, New York (Jeffrey R. Wang of counsel), for amici curiae.

Sweeny, J.P., Saxe, Gische, Clark, JJ.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 9, 2013, as amended on February 5, 2013, which granted plaintiffs' motion for a preliminary injunction restraining defendants from altering Union Square Park's Pavilion to accommodate a restaurant, granting any further approvals for the restaurant, implementing a license agreement and operating the restaurant, and denied defendants' cross motion to dismiss the complaint, or, in the alternative, for summary judgment, unanimously reversed, on the law, without costs, plaintiffs' motion for a preliminary injunction denied, and defendants' cross motion to dismiss the complaint granted. The Clerk is directed to enter judgment accordingly.

The seasonal restaurant and holiday market concessions at issue do not violate the public trust doctrine (see generally Friends of Van Cortlandt Park v City of New York, 95 N.Y.2d 623 [2001]), since they are permissible park uses (see 795 Fifth Ave. Corp. v City of New York, 15 N.Y.2d 221 [1965]) and the concession agreements are revocable licenses terminable at will, not leases (see Miller v City of New York, 15 N.Y.2d 34, 38 [1964]).


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