Round-Up of Recent Articles and Blog Posts on the Artists/City Standoff

 
"Union Square Showdown: Holiday Market Versus Art Vendors"
DNAinfo - December 21, 2010 - By Amy Zimmer

“Artists at Union Square say city is a portrait of hypocrisy with holiday market”
New York Daily News - December 19, 2010 - By Adam Lisberg
 
“City Blocked Again From Enforcing New Artist Vending Rules In Parks”
A Walk in the Park - December 20, 2010 by Geoffrey Croft
 
“Artists, City Duel on Rules”
Wall Street Journal - December 18, 2001 - By Pia Cottan

Breaking News: Appellate Judge Issues Interim Stay Blocking Enforcement of New Park Rules; Artists to Work Through the Holiday Season

In a dramatic turnaround, just one day after a New York State Supreme Court judge ended a Temporary Restraining Order and denied a motion for a Preliminary Injunction blocking the enforcement of new NYC Parks Department Rules, Justice Peter Tom of the Appellate Division, First Department, issued a new Interim Stay that will effectively allow artists to continue working in four key New York City parks through the holiday season. The decision came late yesterday evening, December 16, 2010, after arguments on an emergency motion filed by the artists’ attorneys, Phillips Nizer LLP.

Reached today by phone, attorney Jeffrey L. Shore, litigation counsel with the Phillips Nizer team, stated that the interim stay will be in effect at least through January 7th. Whether that stay is continued past that date will depend on Justice Tom’s full decision on the motion to block enforcement of the new park rules till the appeal of trial court’s December 15, 2010 denial of a preliminary injunction is settled, possibly sometime later in January. A Phillips Nizer press release dated today, December 17th, states that they believe that there are “at least six legal errors” in that decision.

Judge Denies Preliminary Injunction; New Park Rules To Be Enforced for Now

Judge Milton A. Tingling, Jr. of the New York State Supreme Court has ruled against a Preliminary Injunction in the Dua et al v. NYC Parks Department case. The judge also vacated the temporary restraining order against the city issued on August 25, 2010, almost four months ago. That means that the Parks Department's new rules dramatically restricting the ability of artists to work in four New York City Parks (Central Park, Union Square Park, Battery Park and the High Line) will go back in effect.

Although the ruling is clearly not a good sign for the artist plaintiffs, the judge, writing in an eleven page decision, did indicate areas still open to argument as the case moves forward. He called the City's assertions that the rules were created to prevent congestion and address issues of park aesthetics "somewhat specious" and stated that there was "insufficient evidence adduced at this time to confirm or deny" the artist plaintiffs' claim that congestion and aesthetics are "merely pretextual." The case will continue in February as will two other cases filed by artists in Federal court.

Robert Lederman, president of the street artists organization A.R.T.I.S.T., has provided the following link to the compete text of Judge Tingling's ruling:

http://www.scribd.com/doc/45350354/Dua-v-City-of-New-York-12-8-10-State-Court-De\ cision-Denynig-Preliminary-Injunction

More commentary to follow soon.

Assistant Commish Linn Grilled on the Stand In Artists' Hearing

New York City Parks Department Assistant Commissioner Jack Linn gave unexpected testimony today in Justice Milton A. Tingling, Jr.’s courtroom while under a vigorous cross-examination by artist plaintiffs’ attorney Jon Schuyler Brooks. That testimony is potentially favorable for the plaintiffs’ request for a preliminary injunction blocking enforcement of the revised park rules limiting artists’ ability to display and sell art in four New York City Parks.

Linn first testified on a large series of photos that he contended showed evidence of artists causing congestion in the parks and reducing the aesthetic experience of being in park space. He noted that Central Park is considered an artwork in its own right and that there are many permanent and temporary artworks and sculptures in the parks. He appeared to claim that artists working in the parks reduced the ability of the public to enjoy these large-scale artworks sited in the parks.

During voir dire for entering the photos as evidence and during cross-examination, Linn admitted that he had directed park staff to shoot particular photos but had only brought a small portion of those photos to court. Judge Tingling asked the city to give the artists’ attorneys access to the other photos. Linn suggested that what he had done was no different than what artists had done with testimony and videos during Monday’s hearing, but Brooks countered that Linn was attempting to claim his photos represented a general situation in the parks while the artists were presenting particular facts of specific moments. At one point Linn suggested that video shown in court on Monday (such as the video taken on Wien Walk by artist Peter Walsh) was staged. That comment was stuck from the record.

Linn was also grilled on the details of the revised park rules after he testified that he had a significant hand in drafting the rules. At one point he was given a copy of the rules while he searched in vain for an explanation of the process park officers should use in several situations that might arise implementing the first come first serve system.

Also of note, when pushed during questioning, Linn admitted that he did not know of any documented complaints against artist vendors by members of the public. This is in direct contradiction to the city’s published revised rules, which state that such complaints were the impetus for drafting the new rules.
The hearing continues on Monday, September 20th at 2pm at Judge Tingling’s courtroom at 60 Centre Street, Room 321.

(Image: Justice Milton A. Tingling, Jr. in court today. Drawing by Peter Walsh)

Artists Peter Walsh and Joel Kaye Testify, Hearing to Continue Wednesday

"It smells like a license, it walks like a license, it talks like a license," said plaintiffs' attorney Jon Schuyler Brooks as he described the Park Department's new medallion scheme today in Justice Milton A. Tingling Jr.'s courtroom at 60 Centre Street in Manhattan. New York City laws and multiple court rulings forbid the city from imposing a licensing system on artists working in city parks.

Brooks and fellow Phillips Nizer attorneys Kevin B. McGrath and Jeffrey L. Shore presented arguments in favor of converting the standing Temporary Restraining Order against the Revised Park Rules restricting artists' ability to show and sell art in NYC parks into a Preliminary Injunction that would be in effect pending a final court ruling. The city's attorneys argued against the TRO and the Injunction saying that the revised rules were "reasonable time, place and manner restrictions." Attorney Brooks countered that since the rules only place restrictions on the number of artists who can work in the park, that they aren't in fact time, place or manner restrictions at all.

Artist Peter Walsh testified first confirming that he had shot video of artists being forced to race for authorized spots in Central Park. The video was then shown to Justice Tingling and the courtroom.

Artist Joel Kaye then testified about several videos that he had shot at Union Square Park including footage explicitly showing that the city's "authorized spaces" place artists dangerously close to speeding cars and buses, that Greenmarket trucks cause far more congestion than artists, and that there are large open spaces in Union Square Park at even the busiest of times.

The hearing will continue this Wednesday, September 15 at 2pm at the New York County Supreme Court building at 60 Center Street, Room 321 in Manhattan.

(Image: The New York County Supreme Court building at 60 Centre Street in Manhattan. Photo by Peter Walsh.)

State Judge to Hear Artists' Testimony this Monday, September 13th

Justice Milton A. Tingling, Jr. of the New York State Supreme Court will hold a hearing this Monday, September 13^th at 2pm at 60 Center Street, Room 321 on the current Temporary Restraining Order blocking the enforcement of new park rules. Those rules restrict the ability of artists to work in New York City public parks. The hearing could result in a Preliminary Injunction that would block enforcement of the rules pending a final decision in the case filed against the city by artists Diane Dua, Joel Kaye, Artists United and others. That final decision may be many months away.

The artist plaintiffs are represented by Phillips Nizer lawyers Kevin B. McGrath, Jeffrey L. Shore and Jon Schuyler Brooks who will be calling witnesses to give evidence on the artists’ behalf. Artist Peter Walsh is scheduled to testify confirming that he shot video on Wien Walk documenting the degrading regulations created by the new park rules that force artists to race to designated artist locations at 6am every morning.