Supreme Court, New York County, September 20, 2017

Zachary W. Carter, Corporation Counsel, New York City (Sheryl R. Neufeld of counsel), for defendants.

Phillips Nizer LLP, New York City (Jon Schuyler Brooks and Jeffrey L. Shore of counsel), for plaintiffs.

I. Background

Plaintiffs sue for a judgment declaring defendant New York City Department of Parks and Recreation's Expressive Matter Vending (EMV) regulations (56 RCNY 1-05 [b] [2]-[8]), unconstitutional because they impose a prior restraint on expression, violate equal protection guarantees, and are vague. (NY Const, art I, §§ 8, 11.) Plaintiffs further claim that the regulations violate plaintiffs' statutory rights under Administrative Code of the City of New York § 20-473 and the New York State and City Human Rights Laws. (Executive Law § 296 [2]; Administrative Code § 8-107 [4], [9].) Defendants move for summary judgment dismissing the complaint. (CPLR 3212 [b].) Plaintiffs{**59 Misc 3d at 637} cross-move to amend their complaint to add a claim that the regulations violate the constitutional separation of powers (CPLR 3025 [b]), and for summary judgment in their favor on their various claims. (CPLR 3212 [b].) For the reasons explained below, the court grants defendants' motion in part and plaintiffs' cross motion in part.

II. Summary Judgment Standards

To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material [*2]issues of fact. (CPLR 3212 [b]; Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015]; Voss v Netherlands Ins. Co., 22 NY3d 728, 734 [2014]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012].) Only if the moving parties satisfy this standard, does the burden shift to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. (De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 49; Morales v D & A Food Serv., 10 NY3d 911, 913 [2008]; Hyman v Queens County Bancorp, Inc., 3 NY3d 743, 744 [2004].) If the moving parties fail to meet their initial burden, however, the court must deny them summary judgment despite any insufficiency in the opposition. (Voss v Netherlands Ins. Co., 22 NY3d at 734; Vega v Restani Constr. Corp., 18 NY3d at 503; Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005].)

In evaluating the evidence for purposes of the motion and cross motion for summary judgment, the court construes the evidence in the light most favorable to the opponents. (De Lourdes Torres v Jones, 26 NY3d at 763; Vega v Restani Constr. Corp., 18 NY3d at 503; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 [2004].) For purposes of determining the motion and cross motion for summary judgment, at the oral argument July 9, 2015, the parties stipulated that the regulations were neutral regarding the content of the expression to which they apply.

III. The Motion and Cross Motion for Summary Judgment

"Expressive matter" is "materials or objects with expressive content, such as newspapers, books, or writings, or visual art{**59 Misc 3d at 638} such as paintings, prints, photography, sculpture, or entertainment." (56 RCNY 1-02.) 56 RCNY 1-05 (b) (2) allows expressive matter vendors (EMVs) to sell expressive matter "on property under jurisdiction of the Department without a permit," but they "must comply with all applicable provisions of these rules." 56 RCNY 1-05 (b) (2) also limits EMVs to selling in specified parts of New York County's Central Park, High Line Park, Union Square Park, and Battery Park: "specifically designated spots for such vending on the accompanying maps" (56 RCNY 1-05 [b] [3]). The spots are "allocated upon a first come, first served basis" (56 RCNY 1-05 [b] [2]), as set forth in 56 RCNY 1-05 (b) (3).

56 RCNY 1-05 (b) (4) through (8) apply to all vendors. Subparagraph (4) prohibits placing anything on specified features of parks, blocking use of the parks, damaging park property, and vending from vehicles or specialized park areas. 56 RCNY 1-05 (b) (5) sets forth maximum dimensions of vending display stands and minimum required distances from specified areas or features of the parks. 56 RCNY 1-05 (b) (6) defines a "display stand." 56 RCNY 1-05 (b) (7) defines "street or park furniture" among the park areas or features from which the stands must maintain a distance. Finally, 56 RCNY 1-05 (b) (8) authorizes park employees or police to move a vendor from a location temporarily under exigent circumstances and defines exigent circumstances.

[1] Plaintiffs contend that the regulations impose a restraint on the fundamental constitutional right to free expression. Defendants maintain that the regulations are valid restrictions on the time, place, and manner of the exercise of that right. New York State Constitution, article I, § 8, provides that "[e]very citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." (Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475, 490 [2009].) New York's Constitution thus defines a broader scope of protection for freedom of expression than the United States Constitution. (People v Pavone, 26 NY3d 629, 639 [2015]; Matter of Children of Bedford v Petromelis, 77 NY2d 713, 731 [1991]; Immuno AG. v Moor-Jankowski, 77 NY2d 235, 249 [1991]; People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557-{**59 Misc 3d at 639}558 [1986]; see Matter of Town of Islip v Caviglia, 73 NY2d 544, 556 [1989].)

The EMV regulations are silent regarding the particular content of the expressive matter they govern, consistent with the parties' stipulation; only incidentally affect particular expressive matter; and expressly authorize the sale of expressive matter at designated locations. (People v Barton, 8 NY3d 70, 77 [2006]; Town of Islip v Caviglia, 73 NY2d at 557-558.) Content neutral regulations of free speech are constitutional if they serve a substantial governmental interest, allow alternative means of communication (Renton v Playtime Theatres, Inc., 475 US 41, 50 [1986]; Town of Islip v Caviglia, 73 NY2d at 552), and are narrowly tailored to serve that governmental interest. (People v Barton, 8 NY3d at 76; Matter of Rogers v New York City Tr. Auth., 89 NY2d 692, 698 [1997]; Uhlfelder v Weinshall, 47 AD3d 169, 178 [1st Dept 2007].)

The Appellate Division, ruling on plaintiffs' motion for a preliminary injunction, already found that "[t]he City has a significant interest in preserving and promoting the scenic beauty of its parks, providing sufficient areas for recreational uses, and preventing congestion in park areas and on perimeter sidewalks." (Dua v New York City Dept. of Parks & Recreation, 84 AD3d 596, 597 [1st Dept 2011].) That finding, however, does not end the analysis here, as defendants, to obtain summary judgment in their favor and, depending on plaintiffs' evidence, to withstand summary judgment in plaintiffs' favor, must support a significant governmental interest with admissible evidence. (See Anonymous v City of Rochester, 13 NY3d 35, 48 [2009].)

While defendants contend that the EMV regulations address concerns about congestion, aesthetics, and competing park uses, defendants present no evidence that EMVs impacted those concerns to justify regulation (see Town of Islip v Caviglia, 73 NY2d at 553), and thus fail to establish the nexus between the purposes defendants cite and the regulations. (Anonymous v City of Rochester, 13 NY3d at 48-49.) Jack Linn, former Department of Parks and Recreation Assistant Commissioner and Senior Counselor, attested in a declaration dated September 7, 2011, that he had observed an increase in the popularity of art vending in Central Park in recent years. He authenticated photographs he took May 15 and May 16, 2010, of Central Park, High Line Park, Union Square Park, and Battery Park that depict varying concentrations of persons in the parks with{**59 Misc 3d at 640} and without EMVs. Defendants also present charts prepared by Linn that portray an increase in EMVs in areas of Central Park from 2002 to 2010. Finally, Linn attested that the Department promulgated its EMV regulations because it lacked the authority to enforce the City's regulations applicable to vendors throughout the city and beyond the Department of Parks and Recreation's jurisdiction in the parks and on their perimeters.

Michael Dockett, Department of Parks and Recreation Assistant Commissioner of Urban Park Services, attests in an affidavit dated February 1, 2012, that he oversees the Parks Enforcement Patrol (PEP), which counted the unused designated EMV spots in Central Park, High Line Park, Union Square Park, and Battery Park, and found one or more unused designated spots in July and August 2010. Doug Blonsky of the Central Park Conservancy testified at his deposition on June 22, 2011, that he received complaints about congestion and vendors at the south end of Central Park, but no complaints about the east or west sides of the park. He never complained to the Department about EMVs and observed PEP officers asking EMVs to remove their personal property from park benches. Blonsky also testified that after the EMV regulations became effective congestion decreased at the south end of Central Park, but increased in other areas of the park. Jennifer Falk of the Union Square Partnership in deposition testimony June 21, 2011, simply concluded that there was inadequate enforcement of restrictions on vendors in Union Square Park and that vendors increased in warmer weather.

Linn's photographs depicting crowds on a single day fail to establish any regular, frequent, or even occasional congestion in the park. (See Matter of Robert Lee Realty Co. v Village of Spring Val., 61 NY2d 892, 894 [1984].) Even accepting the accounts of Linn and Blonsky regarding increased congestion, neither witness attributes it to EMVs. Dockett's report of open [*3]EMV spots undermines any conclusion of excessive congestion. Blonsky's observation of PEP officers requesting EMVs to remove personal property from benches undermines any conclusion that enforcement of restrictions against EMVs was hampered. Defendants present no evidence of EMVs' impact on park aesthetics or interference with conflicting uses of park space. Although Linn attests that he selected the designated spaces to avoid blocking park features, no evidence demonstrates any interference with those features before promulgation and implementation of the EMV regulations.{**59 Misc 3d at 641}

As plaintiffs maintain, municipal defendants bear the burden to demonstrate that their regulations affecting free speech are not broader than necessary to achieve their legitimate purpose. (People ex rel. Arcara v Cloud Books, 68 NY2d at 558.) Contrary to plaintiffs' contention, however, that rule does not shift the burden of proof away from plaintiffs upon their cross motion for summary judgment. (See id. at 559.) The affidavits of plaintiffs Dua, Kaye, and Diamond and plaintiffs' witness EMV Mitchell Balmuth simply conclude that EMVs have not caused congestion or interfered with park aesthetics. Collectively, the affidavits address conditions only in Central Park and in Union Square Park and so fail to demonstrate the absence of congestion, of impact on aesthetics, or of interference with other park uses caused by EMVs at the two other parks where the designated spots apply or at any other park under defendants' control. Therefore plaintiffs fail to meet their burden for purposes of their cross motion to establish defendants' lack of a substantial interest in implementing their EMV regulations.

[2] Plaintiffs claim that the EMV regulations constitute a facial violation of constitutional equal protection guarantees because they limit the number of EMVs and target only EMVs and not other vendors. New York State Constitution, article I, § 11, provides that

"[n]o person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state."

The Equal Protection Clauses of both the Federal and the State Constitutions require all similarly situated persons to be treated alike. (Walton v New York State Dept. of Correctional Servs., 13 NY3d at 492; CMSG Rest. Group, LLC v State of New York, 145 AD3d 136, 148 [1st Dept 2016].)

While defendants contend that the EMV regulations are rationally related to legitimate park purposes, that standard applies only when neither a suspect classification nor an impairment of a fundamental right is involved. (Golden v Clark, 76 NY2d 618, 624, 626 [1990]; Matter of Doe v Coughlin, 71 NY2d 48, 56 [1987]; Bertoldi v State of New York, 275 AD2d{**59 Misc 3d at 642} 227, 229 [1st Dept 2000]; see Walton v New York State Dept. of Correctional Servs., 13 NY3d at 492; CMSG Rest. Group, LLC v State of New York, 145 AD3d at 148.) Plaintiffs as a group of EMVs are not members of a suspect class because they show no history of purposeful inequitable treatment or extreme political powerlessness mandating extraordinary protection. (Matter of Maron v Silver, 58 AD3d 102, 124 [3d Dept 2008], affd as mod 14 NY3d 230, 250 [2010].) Nevertheless, free expression is a fundamental right requiring application of the strict scrutiny standard. (Golden v Clark, 76 NY2d at 623-624; People v P.J. Video, 68 NY2d 296, 303 [1986]; CMSG Rest. Group, LLC v State of New York, 145 AD3d at 148.)

Even if the EMV regulations' application to only EMVs and not other vendors does not impair free expression, however, the regulations' classification of this group is still impermissible if the classification does not further a legitimate, articulated governmental purpose. (Doe v Coughlin, 71 NY2d at 56; Matter of C/S 12th Ave. LLC v City of New York, 32 AD3d 1, 9 [1st Dept 2006]; see CMSG Rest. Group, LLC v State of New York, 145 AD3d at 144-145.) As discussed above, defendants' evidence does not support their concerns regarding EMVs. Therefore no legitimate governmental purpose, let alone compelling governmental interest achieved by the least restrictive practicable means were strict scrutiny to apply, supports the numerical limitation on EMVs allowed to vend in four parks, the other regulations restricting EMVs differently than [*4]other vendors, and this selective treatment regulating only EMVs. (Khrapunskiy v Doar, 12 NY3d 478, 487 [2009]; Doe v Coughlin, 71 NY2d at 56, 58.) As also discussed above, plaintiffs' evidence fails to establish, on the other hand, defendants' lack of a substantial governmental interest in the parks other than Central and Union Square Parks. Plaintiffs' evidence likewise fails to establish defendants' lack of a legitimate or compelling governmental interest.

[3] The Appellate Division already held that the EMV regulations are not void due to vagueness. (Dua v New York City Dept. of Parks & Recreation, 84 AD3d at 598.) While this holding supported the denial of plaintiffs' prior motion for a preliminary injunction, which was not an adjudication of the ultimate merits and therefore lacks preclusive effect (Town of Concord v Duwe, 4 NY3d 870, 875 [2005]), the holding is still controlling{**59 Misc 3d at 643} precedent where applied to the same factual record. (Coinmach Corp. v Fordham Hill Owners Corp., 3 AD3d 312, 314 [1st Dept 2004].) Plaintiffs do not show that the regulations' text or implementation has changed since the motion for a preliminary injunction was litigated.

Yet, even were the court to disregard that precedent regarding the meaning of the regulations' terms, due process requires only a reasonable certainty regarding their meaning so that the public need not guess at the meaning. (Pringle v Wolfe, 88 NY2d 426, 435 [1996]; see Dua v New York City Dept. of Parks & Recreation, 84 AD3d at 598; Matter of Food Parade, Inc. v Office of Consumer Affairs of County of Nassau, 19 AD3d 593, 595 [2d Dept 2005], affd 7 NY3d 568, 572 [2006].) The "first come, first served" regulation that plaintiffs challenge as vague, 56 RCNY 1-05 (b) (2) and (3), is readily understandable as meaning that a designated spot is to be used by the first expressive matter vendor to be situated for vending at the spot and thus delineates a standard with which EMVs easily may comply.

Plaintiffs claim the EMV regulations violate the Administrative Code provision governing vending on grounds similar to plaintiffs' grounds for the constitutional violations: because the regulations restrict expressive matter vending, limit the number of EMVs at four major parks, and are unjustified by evidence of a threat to public health, safety, or welfare. Administrative Code § 20-465 (j) provides that "[n]o general vendor shall vend within the geographical areas under the jurisdiction of the department of parks and recreation unless written authorization therefor has been obtained from the commissioner of such department . . . ." Vendors of written material, which include EMVs, are exempt. (Administrative Code § 20-473.)

Contrary to plaintiffs' contention, the EMV regulations do not require EMVs to obtain a license for vending, in violation of Administrative Code § 20-473. A license is a revocable privilege that allows temporary conduct on land without conferring an interest in the land. (Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d 648, 656 [2014].) As also held by the Appellate Division, the limited number of designated spots set by the EMV regulations does not render the regulations' designated spots licenses. (Dua {**59 Misc 3d at 644}v New York City Dept. of Parks & Recreation, 84 AD3d at 598.) Again, plaintiffs do not show that the text, implementation, or effect of the regulations' limited designated spots provisions has changed from the record on which this issue previously was determined. (Coinmach Corp. v Fordham Hill Owners Corp., 3 AD3d at 314.)

Nor has the Department of Parks and Recreation, except temporarily in defined "exigent circumstances" (56 RCNY 1-05 [b] [8]), maintained control over the EMVs in the designated spots. (Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d at 657.) Once an EMV has secured a designated spot, it excludes other park uses, the EMV may engage in vending without economic constraints, and the Department may not terminate the EMV's use at will. (Id.)

[4] Nevertheless, the Commissioner of the Department must regulate vending consistent with the "declared legislative intent of this subchapter." (Administrative Code § 20-473; see People v Balmuth, 178 Misc 2d 958, 968 [Crim Ct, NY County 1998], affd 189 Misc 2d 243 [App Term, [*5]1st Dept 2001].) Thus the EMV regulations must comply with the legislative intent. The New York City Council found that "it is consistent with the principles of free speech and freedom of the press to eliminate as many restrictions on the vending of written matter as is consistent with the public health, safety and welfare." (Local Law No. 33 [1982] of City of NY § 1; People v Balmuth, 178 Misc 2d at 967, affd 189 Misc 2d 243.) Defendants neither establish nor even claim that the regulations were intended to promote health, safety, or welfare. Also inconsistent with the legislature's declared policy, the regulations add restrictions on vending of expressive matter rather than eliminating them. Since these two facts are evident from the current record and undisputed, plaintiffs are entitled to summary judgment on their claim that the EMV regulations violate Administrative Code § 20-473.

Plaintiffs' cross motion for summary judgment in their favor presents no support, however, for their claims that defendants have violated the State and City Human Rights Laws. (Executive Law § 296 [2]; Administrative Code § 8-107 [4] [a]; [9].) Therefore the court denies plaintiffs summary judgment on that claim. (Ruiz v RHQ Assoc., LLC, 92 AD3d 410 [1st Dept{**59 Misc 3d at 645} 2012]; Jones v 550 Realty Hgts., LLC, 89 AD3d 609 [1st Dept 2011]; Ruth B. v Whitehall Apt. Co., LLC, 56 AD3d 273, 274 [1st Dept 2008]; Perez v Hilarion, 36 AD3d 536, 537 [1st Dept 2007].)

[5] Although plaintiffs also did not offer any opposition to defendants' motion for summary judgment dismissing these claims, defendants fail to demonstrate entitlement to dismissal. To eliminate these claims, defendants must show that plaintiffs have not been denied a public accommodation for discriminatory reasons. (See Boureima v New York City Human Resources Admin., 128 AD3d 532, 533 [1st Dept 2015]; D'Amico v Commodities Exch., 235 AD2d 313, 314 [1st Dept 1997].) Park space, even if owned by a governmental entity, is a public accommodation. (Executive Law § 292 [9]; see Carmelengo v Phoenix Houses of N.Y., Inc., 54 AD3d 652, 652-653 [1st Dept 2008]; Matter of Gifford v McCarthy, 137 AD3d 30, 35-36 [3d Dept 2016].)

Although plaintiffs conceded at oral argument July 14, 2015, that no plaintiff was disabled, the record nonetheless shows that at least one plaintiff is over age 40 and several are women. Defendants' reliance on the affidavit by Dockett that he was unaware of persons sleeping overnight to secure designated spots or of altercations over them fails to show the absence of designated spots being denied to plaintiffs due to their age or gender. Plaintiffs' claim under Administrative Code § 8-107 (9) that plaintiffs have been denied licenses for discriminatory reasons, however, does fail because, as discussed above, the EMV regulations do not create a licensing scheme for EMVs.

IV. Plaintiffs' Cross Motion to Amend Their Complaint

[6] Amendment of the complaint is to be permitted upon plaintiffs' showing of their proposed amendments' merits, as long as the amendments will not surprise or otherwise prejudice defendants. (CPLR 3025 [b]; Fairpoint Cos., LLC v Vella, 134 AD3d 645, 645 [1st Dept 2015]; A.L. Eastmond & Sons, Inc. v Keevily, Spero-Whitelaw, Inc., 107 AD3d 503, 503 [1st Dept 2013]; Kocourek v Booz Allen Hamilton Inc., 85 AD3d 502, 504 [1st Dept 2011].) Plaintiffs bear the burden to demonstrate the merits of their proposed claims through admissible evidence. (JPMorgan Chase Bank, N.A. v Low Cost Bearings NY Inc., 107 AD3d 643, 644 [1st Dept 2013]; Greentech Research LLC v Wissman, 104 AD3d 540, 541 [1st Dept 2013]; Yuko Ito v Suzuki, 57 AD3d 205, 208 [1st Dept 2008]; Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352, 355 [1st Dept{**59 Misc 3d at 646} 2005]; see Sepulveda v Dayal, 70 AD3d 420, 421 [1st Dept 2010].) Plaintiffs seek to amend their complaint to add a claim that defendants' promulgation of the EMV regulations violates separation of powers because the Department of Parks and Recreation exceeded the authority that the New York City Council granted to the Department when it based the EMV regulations on concerns of congestion, aesthetics, and competing park uses.

An executive agency violates separation of powers by usurping the legislature's authority [*6]to make policy decisions. (Garcia v New York City Dept. of Health & Mental Hygiene, 144 AD3d 59, 67-68 [1st Dept 2016]; see Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d 174, 178 [2016]; Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 25 NY3d 600, 608-609 [2015].) An agency may adopt regulations to fill in details of legislation, as long as the legislature provides safeguards and guidelines to the agency. (Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 25 NY3d at 608; Boreali v Axelrod, 71 NY2d 1, 10 [1987].) In determining whether an agency exceeded its authority, the relevant basic considerations are the scope of the statute authorizing the regulations and their consistency with the statute's policy. (Boreali v Axelrod, 71 NY2d at 15.)

These basic concepts break down into four more specific factors to be considered in determining whether the Department of Parks and Recreation exceeded its authority here. (Boreali v Axelrod, 71 NY2d at 12-13.) First, while defendants emphasized that they weighed unregulated EMVs against the benefits of preventing congestion, promoting aesthetics, and allowing other park activities, defendants failed to establish they did so according to legislative guidelines instead of on their own authority. (Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d 681, 699 [2014]; Boreali v Axelrod, 71 NY2d at 12; Garcia v New York City Dept. of Health & Mental Hygiene, 144 AD3d at 69; see Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 25 AD3d at 611.)

Second, while the Department Commissioner retains the power "to establish and enforce rules and regulations for the use, government and protection of public parks and of all property under the charge or control of the department" (NY City Charter § 533 [a] [9]), the City Council only exempted EMVs{**59 Misc 3d at 647} from licensing requirements (Administrative Code § 20-473), and did not otherwise enact legislation governing EMVs. Thus there is no legislation within which the Department may fill in the details. (New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d at 700; Boreali v Axelrod, 71 NY2d at 13; see NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d at 182-183; Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 25 NY3d at 611; Garcia v New York City Dept. of Health & Mental Hygiene, 144 AD3d at 70.)

Regarding the third factor, plaintiffs contend that the City Council's failure to agree on legislation regulating EMVs in prior attempts prevents defendants from addressing EMVs by adopting the agency's own regulations. (New York Statewide Coalition of Hispanic Chambers of Commerce v New York City Dept. of Health & Mental Hygiene, 23 NY3d at 700; Boreali v Axelrod, 71 NY2d at 13; see NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d at 183-184; Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 25 AD3d at 612.) Plaintiffs show that the City Council rejected legislation proposed in 2002 to regulate sales of written material on Department of Parks and Recreation property with permits. Defendants present a report that the City Council rejected similar legislation proposed in 2004. Moreover, since the City Council limited the Department's authority to, at most, adopting regulations to promote public health, safety, and welfare, legislative silence may not be viewed as authorizing the Department to adopt the EMV regulations to promote other parks purposes. (See Town of Concord v Duwe, 4 NY3d at 873-874.)

The fourth factor, whether development of the regulations required use of the agency's expert or technical competence, does not apply, as defendants do not show their use of any expertise in managing or caring for the parks when they developed the regulations. (See Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., 25 NY3d at 612.) Linn expressly disavowed the use of scientific or technical expertise to determine the placement of the designated spots.

Plaintiffs, by demonstrating the legislation applicable to regulating EMVs and the failed proposed legislation attempting to authorize such regulation, adequately establish the merit of [*7]plaintiffs' separation of powers claim for purposes of amending{**59 Misc 3d at 648} their complaint. (JPMorgan Chase Bank, N.A. v Low Cost Bearings NY Inc., 107 AD3d at 644; Yuko Ito v Suzuki, 57 AD3d at 208; Zaid Theatre Corp. v Sona Realty Co., 18 AD3d at 355; see Empire Purveyors, Inc. v Weinberg, 66 AD3d 508, 509 [1st Dept 2009].) Defendants complain only of delay and do not demonstrate prejudice by showing that the delay hindered them in preparing their defenses or supporting their position. (McGhee v Odell, 96 AD3d 449, 450 [1st Dept 2012]; Kocourek v Booz Allen Hamilton Inc., 85 AD3d at 504; Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept 2007].) Defendants expressly disclaim that the amendment to the complaint will necessitate their pursuit of further disclosure. Because issue has not yet been joined on the amended complaint, however, summary judgment on the separation of powers claim is premature. (CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]; Drezin v New Yankee Stadium Community Benefits Fund, Inc., 94 AD3d 542, 543 [1st Dept 2012]; Manhattan Real Estate Equities Group LLC v Pine Equity NY, Inc., 27 AD3d 323, 323 [1st Dept 2006]; Alexandru v Pappas, 68 AD3d 690, 691 [2d Dept 2009]; see Ruotolo v Mussman & Northey, 105 AD3d 591, 593 [1st Dept 2013]; Stephanie R. Cooper, P.C. v Robert, 78 AD3d 572, 573 [1st Dept 2010].)

V. Conclusion

In sum, for the reasons explained above, the court grants defendants' motion for summary judgment to the limited extent of dismissing plaintiffs' claim based on Administrative Code § 8-107 (9). (CPLR 3212 [b], [e].) The court grants plaintiffs' cross motion for summary judgment to the following extent. (CPLR 3212 [b], [e].) The court declares that 56 RCNY 1-05 (b) (2)-(8) violates Administrative Code § 20-473, because the regulations add restrictions on the vending of expressive material without any intent to promote public health, safety, or welfare. (CPLR 3001.) The court therefore enjoins defendants' enforcement of 56 RCNY 1-05 (b) (2)-(3) and enforcement of 56 RCNY 1-05 (b) (4)-(8) against expressive matter vendors. The court also grants plaintiffs' cross motion insofar as it seeks to file and serve an amended complaint in the form attached to their cross motion as exhibit 11. (CPLR 3025 [b].) The court otherwise denies defendants' motion for summary judgment and denies plaintiffs' cross motion for summary judgment. (CPLR 3212 [b].) This decision constitutes the court's order and judgment dismissing plaintiffs' claim based on Administrative {**59 Misc 3d at 649}Code § 8-107 (9); declaring the extent to which 56 RCNY 1-05 (b) (2)-(8) violates Administrative Code § 20-473 and CPLR 3001; and enjoining defendants' enforcement of those regulations against expressive matter vendors. (CPLR 3212 [b], [e].)