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Alhovsky v. New York City Department of Parks and Recreation

United States District Court, S.D. New York

August 19, 2014


Robert K. Erlanger, Esq., Erlanger Law Firm PLLC, New York, NY, Attorney for Plaintiffs.

Rachel K. Moston, Esq., Sheryl R. Neufeld, Esq., Melanie V. Sadok, Esq., Office of the Corporation Counsel, City of New York, Law Department, New York, NY, Attorneys for Defendants.



Plaintiffs Alexander Alhovsky and Oksana Goncharenko, a married couple who were "expressive matter vendors" in Central Park, have brought this action against the City of New York, the New York City Department of Parks and Recreation, the Department's former Commissioner Adrian Benepe, Assistant Commissioner Jack Linn, General Counsel Alessandro Olivieri, and Park Enforcement Patrol Officers Bene McCants and Bruce Langston. Of the eight separate causes of action pled in plaintiffs' initial complaint, only two remain following a November 2013 stipulation - a claim alleging the violation of the equal protection clause premised on selective enforcement of park vending rules, brought pursuant to 42 U.S.C. § 1983, and a claim for gross negligence brought pursuant to New York state law.

Now pending before the Court is defendants' motion for summary judgment. For the reasons stated herein, this Court grants defendants' motion with respect to the claim brought pursuant to § 1983 and dismisses without prejudice the state negligence claim.


I. The Parties

Plaintiffs Alhovsky and Goncharenko are "expressive matter vendors" who paint faces and make balloon animals for children in Central Park in exchange for optional donations. Defs. R. 56.1 ¶¶ 9-10. See also Alhovsky v. New York City Dept. of Parks and Recreation, No. 11 Civ. 3669 (NRB), Memorandum & Order, August 16, 2012 (holding that plaintiffs were "expressive matter vendors" within the meaning of Park Regulation 56 R.C.N.Y. § 1-05(b)(1)). Between 2010 and 2012, the time period relevant to this action, plaintiffs vended almost exclusively on Wien Walk, a pathway in Central Park running from the southeast entrance to Central Park at Fifth Avenue and 60th Street to the south gates of the Central Park Zoo. Defs. Mem. at 2; Defs. R. 56.1 ¶ 9.

Defendant New York City Department of Parks and Recreation, acting on behalf of the City of New York, has promulgated certain rules and regulations of "expressive matter vending" - i.e., the sale or offering in exchange for donation any materials with expressive content, including newspapers, visual art, or entertainment. Defs. R. 56.1 ¶¶ 2-5. As relevant here, these rules limit expressive matter vending to one of two permissible options - vending from specifically designated "green spots, " which are allocated on a first come, first serve basis, or, in the alternative, fully mobile vending without the use of a cart, display stand or other device. Defs. Mem. at 2-3; Defs. R. 56.1 ¶¶ 3-7. The park rules further prohibit vendors from storing or leaving unattended personal belongings. Defs. R. 56.1 ¶ 8. The individual defendants who are parties to the instant action are members or former members of the Parks Department tasked, inter alia, with enforcement of park vending rules. Defs. Mem. at 2; Pls. Opp. at 1; Defs. R. 56.1 ¶¶ 11-21.

Plaintiffs generally vended on a mobile basis from their Wien Walk location, though they occasionally made efforts to claim a designated "green spot, " as discussed infra. On a typical day, plaintiffs Alhovsky and Goncharenko were two of approximately five mobile vendors on Wien Walk. Dep. of Bruce Langston, Erlanger Decl. Ex. 8 at 46-50.

II. Enforcement Actions against Plaintiffs

The principal facts underlying plaintiffs' selective enforcement claim involve certain enforcement actions undertaken by defendants against plaintiffs for violation of Park rules. Between 2010 and 2012, defendants issued plaintiff Alhovsky three Notices of Violation ("NOVs") and one related criminal summons for vending in an unlawful location, and defendants issued plaintiff Goncharenko one NOV for storing unattended property in Central Park. Defs. Mem. at 3-4; Pls. Opp. at 1-2.

More specifically, on July 30, 2010, defendant PEP Officer Langston issued Alhovsky, then vending on Wien Walk, the first NOV pertinent to this action for failure to comply with the Park's mobility rule for non-green spot vendors. Pls. Opp. at 1-2. Plaintiffs allege that Sergeant Langston acted at the direction of his supervisor, defendant McCants. Id.

The next day, July 31, 2010, Sergeant Langston issued Alhovsky an NOV for failure to remain mobile, again allegedly at the direction of Captain McCants. Id .; Defs. R. 56.1 ¶ 14. At that time, according to Alhovsky's deposition testimony, PEP officers requested that Alhovsky comply with the park's mobility regulations. Dep. of Alexander Alhovsky, Erlanger Decl. Ex. 3 at 29. Shortly thereafter, Sergeant Langston issued plaintiff Alhovsky a Criminal Court Summons for failure to comply with the directives of an officer in violation of Park Rules. Defs. R. 56.1 ¶ 15. After issuing the summons, PEP Officers took plaintiff Alhovsky into custody, transported him to the precinct for processing and fingerprinting, and released him approximately two hours later. Erlanger Decl. Ex. 3 at 29. However, no criminal charges were pursued, and, according to Alhovsky, the summons was removed from the system. Id. at 30.

According to plaintiff's own deposition testimony, the July 31, 2010 arrest came as no surprise to Alhovsky. Sergeant Langston had warned him the previous week "that they were going to arrest me next time they see me doing what I do." Id. at 26. In response, Alhovsky decided to invite media personnel to the Park, and apparently further decided to provoke an arrest. At his deposition, Alhovsky testified that after receiving the prior day's NOV, he "decided to come out and get arrested the next day." Id. at 56. To publicize his anticipated arrest in advance, he "specifically called the media, newspapers and magazines[;] I made sure the cameras are all set up." Id. at 26. After receiving defendants' initial warning that he was vending in violation of park mobility rules, Alhovsky testified that "[a]ll I wanted is just to see if [an arrest was] really going to happen." Id. at 27. According to Alhovsky, the PEP officers were "reluctant" to arrest him on July 31, 2010. Id.

The third enforcement action against plaintiff Alhovsky occurred nearly two years later. On June 16, 2012, Parks Commissioner Benepe, whose office overlooked Wien Walk, summoned Sergeant Langston and pointed out that Alhovsky was "always in violation at this location, " and that he was "tired of this guy being in this location in violation." Pl. Opp. at 2; Erlanger Decl. Ex. 8 at 69-71. Thereafter, Sergeant Langston issued Alhovsky an NOV for violating park mobility rules once again. Defs. R. 56.1 ¶ 14; Moston Decl. Ex. B.

During the relevant two-year time period, plaintiff Goncharenko received only one NOV for violation of the rule prohibiting unattended property. That ticket was issued by PEP Officer Knowles on July 27, 2012, shortly after McCants and Langston had observed an unattended hamper filled with balloons in a tree near the zoo's south gate. Defs. R. 56.1 ¶ 18; Pls. Opp. at 2. At the time, Goncharenko was on the opposite side of the gate. ...

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