Case 1:13-cv-01053-MAD-DJS Document 165 Filed 03/01/16 Page 1 of 64
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
`____________________________________________
`
`WANDERING DAGO, INC.,
`
`Plaintiff,
`
`vs.
`
`ROANN M. DESTITO; JOSEPH J. RABITO;
`WILLIAM F. BRUSO, JR.; AARON
`WALTERS; and JOHN DOES 1-5,
`
`Defendants.
`____________________________________________
`
`1:13-cv-1053
`(MAD/DJS)
`
`APPEARANCES:
`
`OF COUNSEL:
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`BOIES, SCHILLER & FLEXNER, LLP
`30 South Pearl Street
`Albany, New York 12207
`Attorneys for Plaintiff
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`ISEMAN, CUNNINGHAM, RIESTER &
`HYDE, LLP
`9 Thurlow Terrace
`Albany, New York 12203
`Attorneys for Plaintiff
`
`OFFICE OF THE NEW YORK
`STATE ATTORNEY GENERAL
`The Capitol
`Albany, New York 12224
`Attorneys for Defendants
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`Mae A. D'Agostino, U.S. District Judge:
`
`GEORGE F. CARPINELLO, ESQ.
`JOHN F. DEW, ESQ.
`
`MICHAEL Y. HAWRYLCHAK, ESQ.
`
`COLLEEN D. GALLIGAN, AAG
`LOUIS JIM, AAG
`
`MEMORANDUM-DECISION AND ORDER
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`I. INTRODUCTION
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`On August 27, 2013, Plaintiff commenced this civil rights action seeking damages, and
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`injunctive and declaratory relief arising from the denial by the New York State Office of
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`Case 1:13-cv-01053-MAD-DJS Document 165 Filed 03/01/16 Page 2 of 64
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`General Services ("OGS"), RoAnn M. Destito, Joseph J. Rabito, William F. Bruso, Jr., and
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`Aaron Walters of Plaintiff's application to participate as a food vendor in the 2013 Empire State
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`Plaza Summer Outdoor Lunch Program, and the subsequent termination of Plaintiff's status as
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`a vendor at the Saratoga Race Course by the New York State Racing Association ("NYRA"),
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`Christopher K. Kay, and Stephen Travers. See Dkt. No. 1. Plaintiff alleges that Defendants
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`took these actions under pressure from, or at the direction of, various New York State officials.
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`See id.
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`In a January 15, 2014 Memorandum-Decision and Order, the Court granted in part and
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`denied in part Defendants' motions to dismiss. See Dkt. No. 54. Specifically, the Court
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`dismissed without prejudice Plaintiff's federal and state Equal Protection claims against the
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`NYRA Defendants. Further, the Court dismissed with prejudice Plaintiff's claims against
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`OGS, as well as Plaintiff's claims for damages against the State Defendants in their official
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`capacities. See id.
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`On May 24, 2015, Plaintiff filed a motion to amend the complaint, in which it sought to
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`add the following: (1) four additional defendants; (2) allegations pertinent to the Equal
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`Protection causes of action which were dismissed without prejudice; (3) facts to identify the
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`type of forum conceivably relevant to the First Amendment causes of action; (4) "factual
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`context" in support of the original claims; and (5) allegations concerning the denial of
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`Plaintiff's application for the 2014 Empire State Plaza Summer Outdoor Lunch Program. See
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`Dkt. No. 73-1. In a July 28, 2014 Memorandum-Decision and Order, Magistrate Judge
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`Treece1 granted in part and denied in part Plaintiff's motion to amend. Specifically, Magistrate
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`1 The Court notes that, upon Magistrate Judge Treece's retirement in September of 2015,
`(continued...)
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`2
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`Judge Treece permitted Plaintiff to add additional facts to provide some context on the
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`"characteristics and the nature of the fora in which its speech took place," and "to more
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`accurately reflect the manner in which the First Amendment claims have developed in the
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`course of the litigation." Id. at 31. Moreover, Plaintiff was permitted to add facts to the
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`complaint regarding the denial of their application for the 2014 Empire State Plaza Summer
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`Outdoor Lunch Program. See id. at 32.
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`In a stipulation dated January 13, 2015, Plaintiff and the NYRA Defendants indicated
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`that they had entered into a settlement agreement and, therefore, stipulated to the dismissal of
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`all claims brought against the NYRA Defendants pursuant to Rule 41 of the Federal Rules of
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`Civil Procedure. See Dkt. No. 140. Thereafter, in a letter dated January 15, 2015, Plaintiff
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`informed the remaining Defendants that it "has elected to drop its claims for damages" but
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`"continues to pursue its claims for declaratory and injunctive relief as well as attorneys' fees
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`and costs." Dkt. No. 143-1 at 1.
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`On July 31, 2015, the parties cross moved for summary judgment on the remaining
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`claims, which are currently pending before the Court. See Dkt. Nos. 155 & 156.
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`A.
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`The parties
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`II. BACKGROUND
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`Plaintiff Wandering Dago, Inc. ("Plaintiff" or "Wandering Dago") is a New York
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`Corporation. See Dkt. No. 156-2 at ¶ 1. Wandering Dago is owned and operated by Andrea
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`Loguidice and Brandon Snooks, with Ms. Loguidice serving as the corporation's president.
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`1(...continued)
`this case was reassigned to Magistrate Judge Daniel J. Stewart.
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`See id. at ¶ 2. Through Wandering Dago, Inc., Ms. Loguidice and Mr. Snooks operate a food
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`truck using the "Wandering Dago" brand from which they serve a variety of foods cooked and
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`prepared on-site in the truck's mobile kitchen. See id. at ¶ 3; see also Dkt. No. 86 at ¶ 5.
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`Wandering Dago serves food for a variety of types of functions, including catering events, fairs
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`and festivals, and street-side lunch service. See id. at ¶ 3. Ms. Loguidice and Mr. Snooks
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`work as the business' co-chefs, with Mr. Snooks also serving as the driver. See Dkt. No. 86 at
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`¶ 5.
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`Defendant RoAnn M. Desito is the Commissioner of OGS. See Dkt. No. 156-2 at ¶ 4.
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`Defendant Joseph J. Rabito is the Deputy Commissioner of OGS. See id. at ¶ 5. Defendant
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`William F. Bruso, Jr. is an Associate Attorney working for OGS and Defendant Aaron Walters
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`is employed as a promotions and public affairs agent for OGS. See id. at ¶¶ 6-7.
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`B.
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`The Empire State Plaza
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`The Empire State Plaza is a facility owned by the State of New York and operated by
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`the Office of General Services. See Dkt. No. 156-2 at ¶ 8. The Empire State Plaza includes
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`multiple state buildings, including the Corning Tower, four agency buildings, the Swan Street
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`Building, the Legislative Office Building, the Robert Abrams Justice Building, the Egg Center
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`for Performing Arts, the Cultural Education Center (which contains the State Museum and the
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`State Library), and the New York State Capitol Building, all of which are connected by an
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`underground Concourse. See Dkt. No. 157-1 at ¶ 9. The Plaza level of the Empire State Plaza
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`(the "Plaza") is an outdoor space bounded on the North by State Street, on the South by
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`Madison Avenue, on the West by Swan Street, and on the East by a multi-story bulkhead wall.
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`See Dkt. No. 156-2 at ¶ 10.
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`The Plaza is the site of a Farmer's Market on certain weekdays during the summer. See
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`id. at ¶ 11. Moreover, several special events are held annually on the Plaza. See id. at ¶ 12;
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`Dkt. No. 157-1 at ¶ 12. Some examples include the African American Family Day, Hispanic
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`Heritage Month, the Food Festival, and the Fourth of July Festival. See id. Further, the Plaza
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`is occasionally used by various private groups as a site for political rallies, marches, and
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`protests. See Dkt. No. 156-2 at ¶ 13; Dkt. No. 157-1 at ¶ 13. According to Defendants,
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`although "OGS may issue demonstration permits for individuals or organizations that apply to
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`use the Plaza for political rallies, marches, and protests, the issuance of a demonstration permit
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`does not equate to OGS sponsorship of the event." Dkt. No. 157-1 at ¶ 13 (citing Rabito Dep.
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`at 86). The potential offensiveness of a political event is not a basis for the denial of an
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`application for a political event permit, and signs and speeches are not reviewed in advance.
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`See Dkt. No. 156-2 at ¶ 14.
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`Although OGS issues permits to individuals or organizations that apply for a permit to
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`demonstrate on OGS-controlled property, such demonstrations sometimes occur without the
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`individual or group first obtaining a permit. See id. at ¶ 15; Dkt. No. 157-1 at ¶ 15. According
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`to Defendants, the purpose of the permit "is to provide OGS with notice of the likely size and
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`location of the demonstration so that OGS can provide adequate services and operational
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`management. . . ." Dkt. No. 157-1 at ¶ 15. Moreover, both permitted and unpermitted
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`demonstrations also occur on the Concourse beneath the Plaza. See Dkt. No. 156-2 at ¶ 16.
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`Unpermitted demonstrations are allowed to continue unless they create a health or safety issue,
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`or excess noise that disrupts the workplace. See id. When OGS issues a permit for a political
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`demonstration to use state property, it does not mean that the State has sponsored the event.
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`See id. at ¶ 18; Dkt. No. 157-1 at ¶ 18.
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`C.
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`The Empire State Plaza Summer Outdoor Lunch Program
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`In the Spring of 2013, OGS began planning a program that would allow a limited
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`number of vendors to sell food items at designated spots on the East Roadway, located on the
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`east side of the Plaza, between the reflecting pool and the Egg. See Dkt. No. 155-1 at ¶ 1.
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`Although an outdoor lunch program had been operated in prior years by Sodexo, a private
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`company which had a contract to provide food services for the Empire State Plaza, Sodexo's
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`contract was not renewed for 2013, and OGS decided to run its own summer outdoor lunch
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`program. See id. at ¶ 2; see also Dkt. No. 158-1 at ¶ 2.2 OGS operates the Summer Outdoor
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`Lunch Program and permits only qualified food vendors to participate in providing food during
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`lunchtime hours to the State employees and visitors who come to the Capitol and adjacent State
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`buildings and parks during the summer and early fall months. See Dkt. No. 155-1 at ¶ 3.
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`Vendors who seek to participate in the Summer Outdoor Lunch Program must apply
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`with OGS for a permit, and OGS determines the applicant's eligibility for such participation.
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`See id. at ¶ 4. The Program was developed and administered by OGS' Special Events Office.
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`See id. at ¶ 5. The 2013 Summer Outdoor Lunch Program's application states, in pertinent part,
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`as follows:
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`2 The Court notes that Defendants contend that OGS sponsored the 2013 Empire State
`Plaza Summer Outdoor Lunch Program, while Plaintiff insist that no such sponsorship existed.
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`•
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`•
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`•
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`•
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`•
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`Vendor participation must be confirmed by the New York State Office of
`General Services.
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`The Office of General Services is soliciting food vendors for the 2013
`Empire State Plaza (ESP) Summer Outdoor Lunch Program to be held
`daily on the Plaza at the Empire State Plaza in Albany, New York. The
`20 week season will run from Monday, May 20th through Friday,
`October 4th.
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`The Summer Outdoor Lunch Program Package includes: [among other
`things] 20 feet of vending space which includes electrical hookup and
`access to water . . .
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`The cost for full participation, 5 days a week for 20 weeks, is $1,500.00;
`participation on Wednesdays and Fridays only, for 20 weeks, is
`$1,000.00. All fees are due with your completed application no later
`than May 10, 2013. Interested parties must apply for a vending permit
`and meet all insurance and financial requirements in order to participate
`in the 2013 ESP Outdoor Lunch Program.
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`Vendors will not be allowed to provide vending services at the Empire
`State Plaza until they are in receipt of written approval of their
`application to participate in the Outdoor Lunch Program.
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`Dkt. No. 155-1 at ¶ 6. Moreover, Appendix "A" of the application form, which is entitled
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`"Rules for the Empire State Plaza Vendor Participation," includes, among other things, the
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`following language:
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`•
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`•
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`•
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`•
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`•
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`Unless prior arrangements have been made with OGS, all vendors are
`expected to complete the entire season.
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`Vending hours are from 9:00 a.m. – 2:00 p.m. Vendors will not be
`allowed to sell prior to or after these hours.
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`Each vendor will be assigned a specific vending location; all space
`assigned will be at the discretion of OGS.
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`The sale or distribution of products other than food or beverage items is
`prohibited.
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`Vendors may only sell menu items approved by the Albany County
`Department of Health and permitted per the Vendor's vending permit for
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`the ESP Outdoor Lunch Program. Vendors wishing to add additional
`items to their menu must request approval from the Albany County
`Department of Health and provide OGS' Bureau of Food Services with a
`copy of the revised permit. OGS reserves the right to prohibit the sale,
`display or distribution of certain items if, in its sole opinion, these items
`may reasonably cause concern such as public safety.
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`All vendors are expected to conduct themselves with courtesy and in an
`orderly manner. Arguments, harassment, sexual harassment,
`name-calling, profane language, or fighting are grounds for revocation of
`the vendor permit.
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`OGS reserves the right to change the location, dates, hours, or to
`terminate entirely the operation of the program at any time and without
`prior notice to the vendor.
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`Vendors will not refer to themselves as "sponsor," "co-sponsor" or other
`terms conferring status other than of a participant.
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`•
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`•
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`•
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`Dkt. No. 155-1 at ¶ 7.
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`The "Plaza Vendor Permit Agreement for Empire State Plaza Vendors," which was part
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`of the application for the Summer Outdoor Lunch Program, provides the following language:
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`WHEREAS, OGS has management supervision over the
`general domain of the food service operations at the Empire State
`Plaza (hereinafter referred to as "Plaza"),
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`WHEREAS, the State is interested in having food vendors
`take part in a lunchtime food vending program for the sale and
`distribution of food/beverage products and services[,]
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`WHEREAS, OGS will be operating such a food vending
`program, by subcontracting some or all of the responsibilities
`therefore to various independent food vendors, and
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`WHEREAS, the Vendor wishes to sell these products in
`those areas and during those times OGS hereinafter designates.
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`
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`Dkt. No. 155-3 at 16.
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`The Summer Outdoor Lunch Program was created by OGS for the purpose of providing
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`lunch options to State employees and visitors to the Empire State Plaza. See id. at ¶ 8.
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`According to Defendants, the Summer Outdoor Lunch Program "was created as an extension
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`of the cafeteria services at the ESP in order to meet the practical need to provide summer
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`outdoor lunch options, to the approximately 11,000 State employees who work at ESP, as well
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`as visitors to the Capitol, State Museum, performing arts center (The Egg), and the various
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`monuments and memorial[s] at ESP." Id. at ¶ 9. Plaintiff, however, contends that the Summer
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`Outdoor Lunch Program is not "an extension of the cafeteria services at the ESP." Dkt. No.
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`158-1 at ¶ 9.
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`According to Heather Flynn, who is OGS' Director of Convention and Cultural Events,
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`to promote the Summer Outdoor Lunch Program, OGS informed the public about the Program
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`in several different ways. See Dkt. No. 152-4 at 3, 27-31. For example, OGS utilized "blast
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`email advertising" which involved OGS' "sponsorship department" sending emails to a list of
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`recipients who provided their email addresses so that they could be informed of upcoming
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`events and programs at the Empire State Plaza. See id. Moreover, the Summer Outdoor Lunch
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`Program was advertised on the Empire State Plaza's closed-circuit television system, which is
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`located throughout the Concourse. See id. at 30. Also, OGS promoted the Program on its
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`Facebook page and other social media websites. See id. at 31. Further, in an effort to attract
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`vendors to the Summer Outdoor Lunch Program, OGS engaged in a "Vendor Outreach
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`Program." Id. at 33. Some such outreach activities included posting on Steve Barnes' blog3 in
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`3 Steve Barnes is a Senior Writer and restaurant critic with the Times Union, and posts
`regularly in his blog entitled "Table Hopping," which is featured in the Times Union.
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`the primary newspaper serving the Capital District and through advertising the opportunity on
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`social media websites. See id. at 33-36.
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`D.
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`Plaintiff's application for the 2013 Summer Outdoor Lunch Program
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`On February 27, 2013, Ms. Loguidice contacted OGS on behalf of Wandering Dago
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`and inquired about participating in the 2013 Summer Outdoor Lunch Program. See Dkt. No.
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`158-1 at ¶ 31. Wandering Dago was planning to be a food vendor at the Saratoga Race Track
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`for the 2013 race season, which ran from mid-July through Labor Day. See id. at ¶ 32. Ms.
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`Loguidice inquired as to whether Wandering Dago could apply for a permit to participate in the
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`Summer Outdoor Lunch Program even though it would not be able to participate for
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`approximately six (6) weeks during the race season. See id. at ¶ 33. On Friday, May 10, 2013,
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`Aaron Walters of OGS' Special Events Office left a voicemail message for Ms. Loguidice
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`advising her that Wandering Dago could apply for the Program, even though it would not be
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`present during the track season. See id. at ¶ 34.
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`On Monday, May 13, 2013, Ms. Loguidice called Mr. Walters and asked whether
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`Wandering Dago could receive a discount on the permit fee because it would not be
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`participating in the entire Summer Outdoor Lunch Program. See id. at ¶ 35. Mr. Walters
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`advised that there would be no discount and Ms. Loguidice indicated that she would need to
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`speak with her investor before making a determination as to whether Wandering Dago would
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`apply for the Program. See id. at ¶ 36. At this point, Mr. Walters advised Ms. Loguidice that
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`Wandering Dago had until May 17, 2013 to apply. See id. at ¶ 37.
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`On May 15, 2013, Ms. Loguidice emailed Mr. Walters and stated that Wandering Dago
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`would submit an application to participate on Wednesdays and Fridays in the Summer Outdoor
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`Lunch Program. See id. at ¶ 38. On Friday, May 17, 2013, Ms. Loguidice faxed Wandering
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`Dago's application to OGS. See id. at ¶ 39. However, Appendix B of the application was not
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`included in the fax. See id. Appendix B includes, among other things, the vendor's contact
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`information and tax identification number, vending details such as whether the vendor will
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`participate five days a week or on Wednesdays and Fridays only, the type of vending
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`operation, the space required, and the applicant's electrical needs. See id. at ¶ 40. Ms.
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`Loguidice signed the Plaza Vendor Permit Agreement for Empire State Plaza Vendors as
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`president of Wandering Dago, Inc. See id. at ¶ 41. Wandering Dago's application included its
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`proposed menu, entitled "Wandering Dago Food Truck Spring Menu." Id. at ¶ 42. The menu
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`included sandwiches with the following names: "Dago," "Castro," "American Idiot," "Mick
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`and Cheese," "Goombah," "Guido," "Polack," "El Guapo," and "KaSchloppas." Id.
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`At some point after receiving Wandering Dago's application, OGS employee Jason
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`Rumpf provided OGS Director of Convention and Cultural Events Heather Flynn and OGS
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`Associate Commissioner for Operations Jason Cavazos with a list of the applicants. See Dkt.
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`No. 158-1 at ¶ 43. Mr. Cavazos and OGS Public Information Officer Heather Groll inquired of
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`OGS Executive Deputy Commissioner Joseph Rabito what he thought about a vendor named
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`"Wandering Dago" participating in the 2013 Summer Outdoor Lunch Program. See id. at ¶ 44.
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`Defendants contend that Defendant Rabito recognized the term "dago" as "a highly offensive
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`term for Italians and his initial reaction was that the application would not be approved." Dkt.
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`No. 155-1 at ¶ 45; Dkt. No. 158-1 at ¶ 45.4 Defendant Rabito decided to double-check his
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`understanding of the term to make sure that he was not mistaken as to its offensive meaning.
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`See id. at ¶ 46. Defendant Rabito conducted a computer search of the term "dago," which not
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`only confirmed that it is an offensive derogatory term, but also revealed that it has been used to
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`refer to people of Spanish and Portuguese descent, as well as Italians. See id. at ¶ 47.
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`Moreover, Defendant Rabito searched Wandering Dago's website and learned that its menu
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`items also had offensive names, such as "Polack" and "Mick and Cheese," which "are slurs
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`against people of Polish and Irish descent, respectively." Id. at ¶ 48. According to Defendants,
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`Mr. Rabito "denied Wandering Dago's application on the grounds that its name contains an
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`offensive ethnic slur and does not fit with OGS' policy of providing family-friendly
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`programming." Dkt. No. 155-1 at ¶ 49. Plaintiff, however, contends that Defendant Rabito
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`denied the application because he found the name to be offensive and argues that "he did not
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`refer to any statute[,] regulation, policy, or other source of guidance in making his decision."
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`Dkt. No. 158-1 at ¶ 49. Further, Plaintiff argues that there "is no evidence in the record to
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`support Defendants' claim that OGS had an overall policy that events at the ESP be 'family
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`friendly.'" Id. When Defendant Rabito made the decision to deny Wandering Dago's
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`application, he did not consider any other grounds upon which it could have been denied, such
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`as lateness or lack of completeness. See id. at ¶ 50. Defendant Rabito believed that the
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`offensive nature of Plaintiff's name alone was sufficient reason to not issue a permit, even if the
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`application had been acceptable in all other respects. See id.
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`4 The Court notes that Plaintiff does not dispute the statements contained in paragraphs
`forty five through forty eight of Defendants' statement of material facts "to the extent that the
`statement reflects Rabito's opinion and his personal reasons for denying Plaintiff's application."
`Dkt. No. 158-1 at ¶¶ 45-48.
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`Later in the day on May 17, 2013, Defendant Walters was directed to advise all
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`applicants, other than Wandering Dago, that they had been accepted into the 2013 Summer
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`Outdoor Lunch Program as vendors. See id. at ¶ 51; Dkt. No. 155-5 at ¶ 17. According to
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`Defendant Walters, at some point after May 17, 2013, he participated in a conversation with
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`Heather Flynn and Jason Rumpf, in which he learned that the name "Wandering Dago" was the
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`basis for the denial of the application. See id. at ¶ 18. Defendants claim that Plaintiff was the
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`only applicant to the 2013 Summer Outdoor Lunch Program that had a name which contained a
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`derogatory ethnic or offensive term as part of its name. See Dkt. No. 155-1 at ¶ 53. Plaintiff,
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`however, contends that the truck "Slidin' Dirty" was granted access to the program. See Dkt.
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`No. 158-1 at ¶ 53. According to Plaintiff, "Slidin' Dirty is an obvious riff using the word
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`'slider,' which means a small hamburger or sandwich, and the phrase 'ridin' dirty,' defined by
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`the Urban Dictionary as 'driving in an automobile while having at least a felony charge worth
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`of illegal drugs and[/]or unregistered firearms with you.'" Id. (quoting
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`URBANDICTIONARY.COM, Definition of "ridin dirty," available at
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`http://www.urbandictionary.com/define.php?term=ridin+dirty (last visited February 25, 2016)).
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`Further, Plaintiff argues that "Slidin' Dirty evokes the song "Ridin'," which repeats the phrase
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`"ridin' dirty" more than forty times in its chorus while describing a person driving under the
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`influence of alcohol while using drugs and carrying a handgun." Id. (quoting
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`METROLYRICS.COM, Lyrics to "Ridin'" by Chamillionaire featuring Krayzie Bone,
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`http://www.metrolyrics.com/ridin-lyrics-chamillionaire.html (last visited February 25, 2016)).
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`Defendant Bruso, an attorney in OGS Counsel's Office, was asked to draft or review
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`language advising Wandering Dago that its application had been denied. See Dkt. No. 158-1 at
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`¶ 55. Defendant Bruso obtained a copy of Wandering Dago's application and reviewed it for
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`additional grounds upon which it may have been denied. See id. at ¶ 56. According to
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`Defendants, Defendant Bruso determined that, in addition to the reason provided by Defendant
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`Rabito, the application could be denied on the grounds that it was late and incomplete. See id.
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`at ¶ 57.
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`On Monday, May 20, 2013, Ms. Loguidice emailed Defendant Walters and inquired as
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`to the status of Wandering Dago's application. See id. at ¶ 58. Defendant Walters responded
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`by stating that OGS "is unable to accommodate your application for space" in the 2013
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`Summer Outdoor Lunch Program. See id. at ¶ 59. Upon receiving Defendant Walters'
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`response, Ms. Loguidice contacted him for additional information regarding the denial and was
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`advised to contact Defendant Bruso in OGS Counsel's Office for further information. See id. at
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`¶¶ 60-61. On May 20, 2013, during a telephone conversation, Defendant Bruso advised Ms.
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`Loguidice that there were several reasons why the application was denied: it was late, it was
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`incomplete, and the name Wandering Dago was determined to be offensive. See id. at ¶ 62.
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`Thereafter, Ms. Loguidice asked Defendant Bruso to send her a letter regarding the denial of
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`Wandering Dago's application, which he declined to do at that time. See id. at ¶¶ 63-64.
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`On or about May 21, 2013, during a regularly scheduled morning meeting, Defendant
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`Rabito advised OGS Commissioner Defendant Desito of his decision to deny Wandering
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`Dago's application to the 2013 Summer Outdoor Lunch Program. See id. at ¶ 66. Although
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`Defendants contend that Defendant Desito was not involved in the decision to deny the
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`application, Plaintiff contends that, as the Commissioner of OGS, Defendant Desito had the
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`Case 1:13-cv-01053-MAD-DJS Document 165 Filed 03/01/16 Page 15 of 64
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`authority to overrule the decision, and declined to exercise her authority to do so. See Dkt. No.
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`155-1 at ¶ 67; Dkt. No. 158-1 at ¶ 67.
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`On or about May 31, 2013, Ms. Loguidice, acting as legal counsel to Wandering Dago,
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`sent Defendant Bruso a letter requesting a written explanation of the denial. See Dkt. No. 158-
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`1 at ¶ 68. On July 1, 2013, Defendant Bruso responded, stating that the grounds for the denial
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`had been explained on May 20, 2013. See id. at ¶ 69. Specifically, the letter sent by Defendant
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`Bruso provides as follows:
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`On May 20, 2013 you were advised by an email from Aaron
`Walters that your firm's application was denied. A copy of that
`email is enclosed herewith for your easy reference. In addition, I
`conveyed to you by telephone on May 20, 2013, OGS' several
`reasons for its denial of your firm's application. This denial was
`made pursuant to the terms of the Food Vendor Application
`packet, as well as OGS' Facility Use and Use of State Property
`regulations, which are located in Parts 300 and 301, respectively,
`of Title 9 of the New York Codes, Rules and Regulations.
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`Dkt. No. 156-2 at ¶ 43.
`
`
`
`E.
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`The 2014 Summer Outdoor Lunch Program
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`In the fall of 2013, the Special Events Office of OGS adopted new criteria for outside
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`vendors for events and programs. See Dkt. No. 156-2 at ¶ 60. Under the new procedure, each
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`event or program would have a set of explicit criteria by which applications would be scored,
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`and explicit cutoffs to determine who is or is not accepted. See id. at ¶ 61.
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`On May 5, 2014, Wandering Dago hand delivered an application for the 2014 Summer
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`Outdoor Lunch Program to the OGS Special Events Office. See id. at ¶ 62. Wandering Dago's
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`2014 application was complete and timely. See id. at ¶ 64.
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`Case 1:13-cv-01053-MAD-DJS Document 165 Filed 03/01/16 Page 16 of 64
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`Plaintiff's application was reviewed by OGS employees designated as the selection
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`committee, and was scored and received a passing score sufficient for acceptance into the
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`program. See id. at ¶ 64. Nevertheless, the decision was made to again deny the application.
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`See id. at ¶ 65. Wandering Dago received a letter from Defendant Bruso, dated May 16, 2014,
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`informing it that its application had been denied "due to your firm's name as previously
`
`described," which was consistent with the decision made by Defendant Rabito in 2013. See
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`id. at ¶ 66; see also Dkt. No. 155-1 at ¶ 73. Aside from Wandering Dago, every other
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`complete application was accepted into the 2014 Summer Outdoor Lunch Program. See Dkt.
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`No. 156-2 at ¶ 67. By the time that Wandering Dago's application for the 2014 Summer
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`Outdoor Lunch Program was submitted and denied, the parties were actively litigating this
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`case. See Dkt. No. 155-1 at ¶ 72.
`
`F.
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`The pending motions for summary judgment
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`1. Defendants' motion for summary judgment
`
`In their motion for summary judgment, Defendants first argue that the denial of
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`Plaintiff's application for a vendor permit did not violate its First Amendment right to free
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`speech. See Dkt. No. 155-9 at 11-20. Defendants contend that the Court has already identified
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`the relevant forum as the Empire State Plaza Summer Outdoor Lunch Program, and not the
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`greater Empire State Plaza upon which the Program is physically located. See id. at 16 (citing
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`Dkt. No. 54 at 2-3). In light of this finding, Defendants argue that the relevant forum is a
`
`nonpublic forum because it is not a park or a street, or similar space, which has been held in
`
`trust for the public for the purposes of assembly, communicating thoughts, or discussing public
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`Case 1:13-cv-01053-MAD-DJS Document 165 Filed 03/01/16 Page 17 of 64
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`questions. See id. Rather, the participation in the Program is not open to the public in general
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`and was created by OGS in 2013 "for the sole purpose of providing lunch options to State
`
`employees and visitors to the ESP." Id. According to Defendants, the forum is nonpublic
`
`because the government did not open the forum for expressive activity by members of the
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`public. See id. at 18. Instead, "the forum was created by the government acting not as rule
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`maker or legislator, but as property owner and employer and, as such, the government has wide
`
`discretion and control over the management of its workplace." Id. at 18 (citing Enquist, 553
`
`U.S. at 598). As such, Defendants argue that the restrictions on speech at issue were
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`"'reasonable in light of the purpose of the forum and all surrounding circumstances'" and,
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`therefore, permissible under the First Amendment. See id. (quoting Cornelius, 473 U.S. at
`
`809).
`
`As to Plaintiff's Fourteenth Amendment Equal Protection claim, Defendants argue that
`
`the claim fails as a matter of law. See id. at 21. First, Defendants contend that Plaintiff cannot
`
`establish that it was treated differently than any other similarly situated individual because no
`
`other applicant to the 2013 or 2014 Summer Outdoor Lunch Program had a name which
`
`contained a derogatory ethnic term, or any other offensive term in violation of OGS' family-
`
`friendly policy. See id. at 21-22. Second, even if Plaintiff could establish that it was treated
`
`differently than other similarly situated entities, Defendants argue that Plaintiff "cannot prove
`
`that such differential treatment was based on impermissible considerations such as race,
`
`religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad
`
`faith intent to injure a person." Id. at 22. Defendants assert that any argument that they acted
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`in bad faith is undercut by the fact that both Ms. Loguidice and Mr. Snooks "testified that, on
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`Case 1:13-cv-01053-MAD-DJS Document 165 Filed 03/01/16 Page 18 of 64
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`May 20, 2013, they understood that the application had been denied because of the offensive
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`nature of Wandering Dago's name." Id. at 22-23.
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`As to the New York State equal protection and freedom of speech claims, Defendants
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`contend that they are subject to the same analysis as their federal counterparts and, therefore,
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`subject to dismissal for the same reasons. See id. at 23. Finally, Defendants argue that the
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`claims against Defendant Destito should be dismissed for lack of personal involvement. See id.
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`at 23-24.
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`2. Plaintiff's motion for summary judgment
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`In its motion for summary judgment, Wandering Dago contends Def