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State Response to Wandering Dago

State Response to Wandering Dago

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Published by David Lombardo
Lawyers for new York State respond to a lawsuit from the Wandering Dago.
Lawyers for new York State respond to a lawsuit from the Wandering Dago.

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Published by: David Lombardo on Sep 17, 2013
Copyright:Attribution Non-commercial

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02/18/2014

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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF
NEW
YORKWANDERING DAGO INC.Plaintiff,v.AFFIDAVITCivil Action No.1:13-cv-01053-MAD-RFT
NEW
YORK STATE OFFICE OF GENERAL SERVICES,ROANN M. DESTITO, JOSEPH
1.
RABITO, WILLIAM F.BRUSO, JR., AARON WALTERS,
NEW
YORK RACINGASSOCIATION, INC., CHRISTOPHER
K.
KAY, STEPHENTRAVERS, JOHN DOES 1-5, and THE STATE OF
NEW
YORKDefendantsState
of
New
Yark )) ss.:County
of
Albany )William F. Bruso, Jr., being duly sworn deposes and says under penalties
of
perjury thefollowing:
1.
I am an Associate Attorney at the
New
York State Office
of
General Services("OGS") and in that capacity I work closely with the OGS Convention and CulturalEvents Office. I am fully aware
ofthe
facts and circumstances
of
this matter. Isubmit this Affidavit in opposition to the Order to Show Cause for a PreliminaryInjunction filed by Plaintiff, Wandering Dago, Inc.
("Wandering
Dago"
or
"Plaintiff'), seeking to direct OGS to grant Wandering Dago a permit to participatein the 2013 Summer Food Vending Program at the Empire State Plaza ("the SummerFood Vendor Program").
1
Case 1:13-cv-01053-MAD-RFT Document 29 Filed 09/11/13 Page 1 of 28
 
2.
Plaintiff seeks to overturn OGS' determination denying Wandering Dago a permit toparticipate in the Summer Food Vendor Program. The Summer Food VendorProgram invites food vendors from throughout the Capital Region to apply for apermit to provide lunchtime food service from vending trucks on the Plaza Level
of
the Empire State Plaza ("Plaza") and the Harriman State Office Building Complex.3.OGS operates the Summer Food Vending Program pursuant to its statutory andregulatory responsibilities with respect to the custody and control
of
State propertyunder its jurisdiction. OGS' general statutory authority with respect to statebuildings and state property is set forth in Executive Law §200, Public BuildingsLaw §§2 and 3 and Public Lands Law §3.
4.
OGS' regulatory authority with respect to the use
of
the Empire State Plaza iscontained in 9 NYCRR Parts 300 and 301.
The Empire State Plaza
5.
The State
of
New
York, through OGS, operates and manages various State officesand parking facilities located throughout the State. In addition to being a workplacefor portions
of
the State workforce, certain OGS-operated State properties are opento commercial vendors and made available to the public for specific, limitedpurposes.
6.
The specific purpose
of
the Summer Food Vendor Program is to provide a variety
of
lunchtime food options on the Plaza to State workers and visitors to the Empire StatePlaza. The Plaza is surrounded by the Coming Tower, four Agency Buildings, theLegislative Office Building, the Robert Abrams Justice Building and the Capitol,that house state employees, as well as the Egg Center for the Performing Arts andthe State Museum, which provide cultural events that draw thousands
of
residents
2
Case 1:13-cv-01053-MAD-RFT Document 29 Filed 09/11/13 Page 2 of 28
 
and visitors to the Capital Region throughout the year. The State EducationBuilding, the Swan Street Building and the Alfred
E.
Smith State Office Building arealso located in the immediate vicinity
ofthe
Plaza.
7.
I am thoroughly familiar with past and present uses
ofthe
Plaza, as well as thesurrounding grounds and other state facilities. I have responsibility for reviewing orsupervising legal issues with respect to permit applications
of
vendors seeking toparticipate in cultural events at the Empire State Plaza including concerts, familyevents days, food festivals, the farmer's market, the winter food program, the July 4
th
NYS Celebration, the holiday tree lighting and various other programs sponsored bythe OGS Convention and Cultural Events Office. For the past ten years, I have beeninvolved in reviewing applications
of
groups and individuals seeking permits forvarious political events, protests and rallies on state property surrounding theCapitol.
8.
OGS issues permits for First Amendment expressive activities in West Capitol Park(located between the Alfred
E.
Smith State Office Building and the Capitol), and inEast Capitol Park (which lies directly east
of
the State Capitol Building). We havealso issued permits (on a few occasions) for expressive activities in Lafayette Parkwhich lies directly across the street from East Capitol Park.
9.
To the best
of
my recollection, the Plaza level
ofthe
Empire State Plaza hasgenerally not been made available or used for political events, protests, and/orpolitical speech except in a few limited instances. Instead, with the intent
of
"granting equal access to
...
all citizens" (9 NYCRR 300-1.1), the Plaza has beenreserved for the peaceful use and enjoyment by State employees and the public and
3
Case 1:13-cv-01053-MAD-RFT Document 29 Filed 09/11/13 Page 3 of 28

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