Wandering Dago Defendants

Case 1:13-cv-01053-MAD-RFT Document 157 Filed 08/31/15 Page 1 of 15
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
WANDERING DAGO, INC.,

Plaintiff,
-against-
13-CV-1053
NEW YORK STATE OFFICE OF GENERAL

SERVICES, ROANN M. DESTITO, JOSEPH J. RABITO,
WILLIAM F. BRUSO, JR., AARON WALTERS, NEW
YORK RACING ASSOCIATION, INC., CHRISTOPHER
K. KAY, STEPHEN TRAVERS, JOHN DOES 1-5, and
THE STATE OF NEW YORK,
MAD/RFT
Defendants.
MEMORANDUM OF LAW OPPOSITION TO PLAINTIFF'S MOTION FOR

SUMMARY JUDGMENT
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants RoAnn M. Destito,
Joseph J. Rabito, William F. Bruso, Jr.,
and Aaron Walters
The Capitol
Albany, New York 12224-0341
Colleen D. Galligan and Louis Jim

Bar Roll Nos. 105167 and 517403
Assistant Attorneys General, of Counsel
Telephone: (518) 776-2613
Fax: (518) 473-1572 (Not for service of papers)
Date: August 31, 2015
Table of Contents
PRELIMINARY STATEMENT1
STATEMENT OF FACTS.2
ARGUMENT.2
POINT I..2
PLAINTIFF IGNORES THE LAW OF THE CASE AND IMPROPERLY
ATTEMPTS TO RELITIGATE MATTERS ALREADY DECIDED BY
THE COURT..2
A. Offensiveness of the Term Dago...2
B. Forum Defined as ESP Summer Outdoor Lunch Program........2
C. Plaintiffs Claims Should be Analyzed Under Traditional Forum Analysis.3
POINT II....3
DEFENDANTS DENIAL OF PLAINTIFFS APPLICATION DID
NOT VIOLATE PLAINTIFFS FIRST AMENDMENT RIGHTS..3
A. Rabitos Decision Was Not An Exercise of Unfettered Discretion..4
B. Defendants Have Not Engaged in Unconstitutional Viewpoint
Discrimination9
C. The Denial of Plaintiffs Application for a Vendor Permit was
Reasonable.......12
CONCLUSION13
PRELIMINARY STATEMENT
Plaintiff, Wandering Dago Inc. (Wandering Dago), commenced the instant action by
filing a complaint on August 27, 2013, alleging, inter alia, that Defendants William F. Bruso, Jr.,
RoAnn Destito, Joseph Rabito, and Aaron Walters (collectively Defendants) violated its right
to free speech under the First Amendment when Defendants denied Plaintiffs application for a
permit to participate as a vendor in the Empire State Plaza (ESP) Summer Outdoor Lunch
Program in 2013; and that Defendants violated Plaintiffs right to equal protection under the
Fourteenth Amendment by treating Plaintiff differently than similarly situated applicants. (Dkt.
No. 1.) On August 4, 2014, Plaintiff filed an amended complaint alleging, inter alia, that
Defendants violated its free speech and equal protection rights by denying its application to
participate in the ESP Summer Outdoor Lunch Program in 2014. (Dkt No. 86.) Defendants
denied these claims. (Dkt Nos. 57 and 90.)
Essentially, Plaintiff alleges that it was unconstitutional for Defendants to deny Plaintiff a
permit to sell food during the Office of General Services (OGS) sponsored ESP Summer
Outdoor Lunch Program (the Program) on the grounds that Plaintiffs name contains an
offensive ethnic slur. Plaintiffs instant motion for summary judgment must be denied on the
grounds that the forum is the Program, the Program is a nonpublic forum, and the denial of
Plaintiffs application for a vendor permit to participate in the 2013 Program was reasonable in
light of the purpose of the Program, and viewpoint neutral. The denial of Plaintiffs 2014
application on the same grounds was also reasonable and consistent with OGSs policy.
STATEMENT OF FACTS
Defendants adopt and incorporate herein Defendants Statement of Material Facts (Dkt.
No. 155-1); Memorandum of Law (Dkt No. 155-9); Declarations of RoAnn Destito (Dkt. No.
155-2), Joseph Rabito (Dkt. No. 155-3), William Bruso, Jr. (Dkt No. 155-4), and Aaron Walters
(Dkt. No. 155-5-7); and Affirmation of Colleen D. Galligan, submitted in support of Defendants
motion for summary judgment (Dkt. No. 155), as well as Defendants Response to Plaintiffs
Statement of Material Facts and the Declaration of Aaron Wwalters, dated August 28, 2015
(Second Walters Decl.), both of which are submitted herewith.
ARGUMENT
POINT I
PLAINTIFF IGNORES THE LAW OF THE CASE AND IMPROPERLY ATTEMPTS
TO RELITIGATE MATTERS ALREADY DECIDED BY THE COURT
A. Offensiveness of the Term Dago
The Court has already determined, as a matter of law, that the term dago is offensive.
(Dkt No. 54 pp. 2-3.) It takes neither complicated legal argument, nor complex legal research to
determine that the word dago is highly offensive to many. It simply takes common sense. For
certain, the term dago is not a playful or accepted word for most Italians. To the contrary, it is
hurtful and indeed painful to many. It conjures memories of a time not long ago when Italian
Americans were the subject of widespread discrimination. Wandering Dago, Inc. v.
N.Y.S.O.G.S., 992 F. Supp. 2d 102, 108 (N.D.N.Y. 2014). (Dkt No. 54, pp. 2-3.)
B. Forum Defined as ESP Summer Outdoor Lunch Program
Plaintiff erroneously asserts that the forum at issue is the Empire State Plaza despite the
fact that te Court has already defined the forum at issue as the Empire State Plaza Summer
Outdoor Lunch Program run by OGS. (Dkt No. 54, p. 26.) [T]he Court finds that the relevant
2
forum is not the Empire State Plaza in toto as the parties have assumed. Rather, the relevant
forum is the more limited Empire State Plaza Summer Lunch Program, which happens to take
place within the grounds that comprise the Empire State Plaza. Wandering Dago, 992 F.
Supp.2d at 120.
C. Plaintiffs Claims Should be Analyzed Under Traditional Forum Analysis
This Court has already rejected Plaintiffs argument that this case should be analyzed
under the test for restrictions on commercial speech established in Central Hudson Gas &
Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), and found that this case is
more properly a public forum case. Wandering Dago, 992 F. Supp 2d at 115, n. 4. (Dkt. No. 54,
p. 17.) Therefore, Plaintiffs reliance on Central Hudson and Bad Frog Brewing, Inc. v. New
York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998), is misplaced as those cases are not
applicable to the case at bar.
POINT II
DEFENDANTS DENIAL OF PLAINTIFFS APPLICATION DID
NOT VIOLATE PLAINTIFFS FIRST AMENDMENT RIGHTS
In the interest of economy, Defendants adopt and incorporate POINT I from their
Memorandum of Law in support of Defendants motion for summary judgment (Dkt. No. 155-9).
As explained more fully therein, the forum at issue, the Program, is a nonpublic forum where the
governments regulation on expressive activity need only be reasonable in light of the purpose
of the forum and all surrounding circumstances. Cornelius v. NAACP Legal Defense &
Education Fund, 473 U.S. 788 (1984). The purpose of the Program is to provide lunch options to
the State employees and visitors at the ESP. (Dkt. No. 152-4 pp. 11-12.) The standard imposed
upon the Program, and indeed all programs sponsored by OGS at ESP, is that it be familyfriendly and appropriate for persons of all ages. (Rabito Dec. 10.) OGSs family-friendly policy
3
prohibits speech and visual representations that are vulgar, profane, sexually explicit, or
derogatory. Id. The purpose of this policy is to create a workplace environment free from
harassment based upon race, ethnicity, or sex, and to foster an environment of respect where all
State employees and visitors to the ESP can be free to enjoy the programing sponsored by the
State through OGS. Id. The denial of Plaintiffs application for a vendor permit was reasonable
in light of the purpose of the Program and consistent with OGSs family-friendly policy.
A. Rabitos Decision Was Not An Exercise of Unfettered Discretion
Plaintiffs motion for summary judgment must be denied because Plaintiffs claim that
Joseph Rabito denied Plaintiffs application to participate in the Program based solely upon
Rabitos own personal opinion that the name is offensive and without reliance upon any rule or
regulation is not supported by the record. It is not simply Rabitos personal opinion that the term
dago is offensive. The Court has already found that the term dago is offensive as a matter of
law. Wandering Dago, Inc. v. N.Y.S.O.G.S., 992 F. Supp. 2d 102, 108 (N.D.N.Y. 2014). (Dkt No.
54, pp. 2-3.) Additionally, prior to making the decision to deny the application, Rabito confirmed
that his understanding of the offensive nature of the term was correct. (Rabito Dec. 27-28.)
Rabitos decision was also consistent with OGSs long standing policy that events at the Empire
State Plaza sponsored by OGS be family friendly and free from sexually explicit, insulting, or
profane language, or visual representations, such that they can be enjoyed by members of the
public, regardless of age and sensitivity. (Rabito Dec. 10-11.) OGSs policy was incorporated
into the 2013 Program Rules which expressly provided, 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.
(Rabito Dec. 9; Exhibit A.) The term dago is offensive on its face. (Dkt No. 54, pp. 2-3.)
Rabito understood that a significant number of people who saw the food truck on the Plaza
would recognize the name as a highly offensive term for Italians. (Rabito Dec. 25-26.) Rabito
also knew that State employees and visitors to the ESP would understand that the food truck was
on the Plaza as part of an OGS sponsored program. (Rabito Dec. 8.) State employees and
visitors to the Plaza would therefor believe that the State, acting through OGS, had sanctioned or
approved the name. (Id.) Because the term is so offensive on its face, Plaintiff could not have
provided an explanation for its use of the word that would ameliorate the understanding that
most people would have when reading the name on the side of the truck. Because Rabitos
decision was not based solely upon his own personal opinion with regard to the offensiveness of
Plaintiffs name, and was consistent with OGS well-established policy, it was not an exercise of
unfettered discretion.
Additionally, the cases cited by Plaintiff with regard to its allegation of unbridled
discretion are not applicable to the facts of the instant action. Those cases involve limits on
speech in traditional public fora, such as streets, parks, and public transportation. Forsyth County
v. Nationalist Movement, 505 U.S. 123, 133 (1992) (involving the restrictions on parades in
public roads); Southeastern Promotion, Ltd. v. Conrad, 420 U.S. 546 (1975) (involving a
restriction on a theatrical performance in a public theater); Shuttlesworth v. City of Burmingham,
394 U.S. 147 (1969) (involving an ordinance which made it an offense to participate in a
parade); City of Lakewood v. Plan Dealer Publishing Co., 486 U.S. 750 (1988) (involving
placement of a news rack on a public street); Coalition for Abortion Rights & Against
Sterilization Abuse v. Niagara Frontier Transportation, 584 F. Supp. 985 (W.D.N.Y. 1984)
(involving advertising space in public transportation); Million Youth March, Inc. v. Safir, placing
limits on assembly in public park); Davis v. Stratton, 575 F. Supp. 2d 410, revd 360 F. Appx
182 (2d Cir. 2010) (involving advertising on public buses).
Here, the Court has already defined the forum as the Program, and not the Empire State
Plaza in toto. Wandering Dago, 992 F. Supp.2d at 120. Application of forum analysis pursuant to
Cornelius v. NAACP Legal Defense & Educational Fund, 473 U.S. 788, 797 (1985), establishes
that the Program is a nonpublic Forum. (See POINT I of Defendants Memorandum of Law
submitted in support of Defendants motion for summary judgment.) (Dkt No. 155-9.) Therefore,
the cases relied upon by Plaintiff which involve statutes or regulations that vest government
officials with unbridled discretion to limit speech in traditional public fora are not applicable to
the case at bar.
Plaintiffs reliance on Children First Fund, Inc. v. Fiala, 790 F. 3d 328 (2015), revd by
790 F.3d 328 (2d Cir. 2015), vacated by 2015 U.S. App LEXIS 13633 (August 5, 2015), for
application of the unbridled discretion doctrine to nonpublic fora is likewise misplaced. Children
First involves the denial of a specialty license plate by the Department of Motor Vehicles on the
grounds that some people may find it offensive. Id. On May 22, 2015, the Second Circuit held
that speech on specialty license plates is private speech protected by the First Amendment.
However, on June 18, 2015, the Supreme Court issued a decision in Walker v. Texas Div., Sons
of Confederate Veterans, Inc., which found that speech on specialty license plates is government
speech not afforded the same protections. 135 S. Ct. 2239 (2015). The Walker case overturned
Children First, and thus, Children First and other similar cases relying on this same analysis are
no longer good law.
The record does not support Plaintiffs claims that the process for approving applications
for the 2013 Program was a black box or that Rabito made an ad hoc decision to deny the
application. In the spring of 2013, OGS decided to develop the Program. (Rabito Dec. 4.)
Applications were collected and reviewed for completeness by the Special Events Office. (Dkt
No. 152-2 pp. 16-17; Dkt No. 152-1 p. 9; Dkt No. 152-4 p. 11.) On May 17, 2013, after receipt
of Plaintiffs application, a list of all vendors that had applied for the program was provided to
OGS Director of Convention and Cultural Events Heather Flynn and to OGS Deputy
Commissioner for Operations Joe Cavazos. (Dkt No. 152-2 p. 38.) Heather Flynn was
responsible for supervision of the Program. (Dkt No. 152-4 pp. 7-8, 11-13, and 17.) Joe Cavazos,
who was Heather Flynns supervisor, was responsible for oversight of all programs run by the
Special Events Office, including the Program. (Dkt No. 152-9 pp. 9-10.) The name Wandering
Dago raised a red flag and Joe Cavazos, together with OGS Public Information Officer Heather
Groll, raised the issue with Cavazoss supervisor, Executive Deputy Commissioner Rabito.
(Rabito Dec. 24.) Plaintiffs assertion that its application was brought to the attention of Rabito
in an ad hoc manner by persons who were not responsible for the program is simply not
supported by the record.
Nor did Rabito make the decision to deny Plaintiffs application in an ad hoc manner.
Upon being advised that a vendor named Wandering Dago had applied for the Program, Rabito
immediately recognized dago as a high offensive ethnic slur. (Rabito Dec. 25-26.) Before
making the decision to deny Plaintiffs application, however, Rabito confirmed that his
understanding of the term was accurate. (Rabito Dec. 26-28.) Rabito also checked Plaintiffs
website and found that its menu contained several other ethnic slurs. (Rabito Dec. 29-30.)
Rabito made the decision to deny Plaintiffs application because he knew that the inclusion of a
food truck with dago in its name would violate OGSs policy to provide family-friendly
programing, free from sexually explicit, insulting, or profane language, or offensive visual
representations, that can be enjoyed by all. (Rabito Dec. 10.) Rabito understood that, as the
custodian of the State Capitol and the entire Empire State Plaza, OGS has the authority and
responsibility to issue permits to participate in OGS-sponsored events to only those vendors who
meet the various program requirements. (Rabito Dec. 8.) Because the Program is marketed by
OGS, State employees and visitors recognize that the Program is provided, sponsored, and
operated by the State. (Rabito Dec. 8.)
Rabitos decision was consistent with OGSs routine application of its family-friendly
policy. For example, OGS staff routinely review musical acts and movies proposed for public
viewing at OGS sponsored events on the Plaza for vulgarity, profane or sexually explicit
language, nudity, sexual innuendo, or disparaging ethnic or cultural references. (Rabito Dec.
12.) OGS staff advises performers before they are booked that such language and references may
not be used. (Rabito Dec. 13.) Where performers have violated these standards, they have been
asked to leave the stage. (Rabito Dec. 14-17.) OGS has directed vendors at OGS-sponsored
events to remove items from their stalls that violated OGSs family-friendly policy, including:
replica black face figurines, panties with Kiss Me Im Irish printed on them, fertility
pendants with a phallus that becomes erect when a chain is pulled, and marijuana leaf belt
buckles. (Rabito Dec. 18.)
Similarly, Plaintiffs assertion that it was not advised of the reason that its application
was denied is not supported by the record. On May 20, 2013, the same day Plaintiff was advised
that its application had been denied, OGS Attorney William Bruso, Jr. spoke with Andrea
Loguidice (Loguidice) and advised her that the application had been denied because the
business name contained a derogatory ethnic slur. (Bruso Dec. 20-21; Dkt. No. 152-14 p. 71.)
Bruso also advised Loguidice of additional reasons why the application may have been rejected.
(Bruso Dec. 20-21.) Both owners of Wandering Dago, Loguidice and Brandon Snooks
(Snooks), testified that as of May 20, 2013 they understood that Plaintiffs application had
been denied because the name of the food truck is offensive. (Dkt. No. 152-14 p. 71; Dkt No.
152-15 p. 98.) Defendants did not attempt to hide the reason for the denial from Plaintiff. Nor
have Defendants attempted to change the rational for the denial of the application over time.
Likewise, Plaintiffs claim that other vendors were allowed to submit portions of the
application late is not accurate. As explained by Walters in the attached declaration, OGS was
not correctly named as an additional insured on the certificates of liability insurance originally
provided by the vendors with their applications. (Second Walters Decl. 3-4.) Subsequently,
the Special Events Office asked the Program vendors to provide new certificates of insurance
with the corrected information and the new certificates were then placed in the Program file.
(Walters Dec. 4-6.) However, even if other vendors had been allowed to submit late
documentation, Plaintiffs denial would not have been affected because the offensive nature of
Plaintiffs name would have prevented it from participating in the program, even if its
application was acceptable in all other respects.
B. Defendants Have Not Engaged in Unconstitutional Viewpoint Discrimination
The Program application specifically states that, [a]ll 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.
(Rabito Dec 6 and Ex. A.) This language is consistent with OGSs family-friendly policy.
OGSs family-friendly policy is viewpoint neutral in that it does not favor one point of view or
opinion over another, and does not seek to prohibit certain derogatory terms, or ethnic slurs,
while allowing others. The appropriateness of OGSs policy must be viewed in light of the
purpose for which the Program was created. Cornelius, 473 U.S. 788. Here, the sole purpose of
the Program is to provide lunch options for State employees and visitors to the Empire State
Plaza. By creating the Program, OGS has not created a forum for expressive activities or invited
participants to express a point of view. Because of the very narrow purpose of the Program, and
the fact that it is presented and promoted by OGS as proprietor and employer on behalf of the
State, OGS has the right to require that its vendors refrain from harassment, profane language,
and name-calling. Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 598 (2008).
In attempting to assert a claim of viewpoint discrimination, Plaintiff mischaracterized
OGSs policy as prohibiting language deemed to be derogatory toward an ethnicity or
nationality, while allowing speech that references ethnicity in a neutral or positive way. (Dkt.
No. 156-1 p. 18.) The family-friendly policy, however, as articulated in the Program application
requires that all vendors refrain from harassment, profane language, and name-calling, regardless
of the viewpoint of the offensive language. The policy does not favor one viewpoint above
another, and the Program does not create a forum for expressive activity regarding ethnicity, or
any other subject. The only speech contemplated by the Program is that required to promote the
purpose of the Program, which is the sale of food. Plaintiffs name is a well-known and highly
offensive derogatory term for people of Italian and Spanish descent. As a property owner and
employer, OGS has a right to choose not to be associated with the highly offensive term. On the
other hand, Red Poppies A Polish Kitchen is a name that describes the type of food being
offered for sale. The description of the type of food offered for sale is consistent with the purpose
of the Program. It is also important to note that this vendor did not use a derogatory term for
those of Polish descent in its name.
10
In addition, Plaintiffs claim of view point discrimination must fail because both owners
of Wandering Dago, Loguidice and Snooks, have testified, that the name Wandering Dago is not
intended to express an opinion or communicate a point of view. (Dkt. No. 152-14 p. 114; Dkt
152-15 pp. 98-100.) In the absence of a point of view there can be no viewpoint discrimination.
Plaintiffs reliance on cases involving specialty license plates is also misplaced. These
cases, all decided prior to the recent Supreme Court decision in Walker, analyze restrictions in
the context of private speech. 1 Since the Supreme Court has now instructed that speech on
specialty license plates is government speech, which is not protected by the First Amendment,
these cases are no longer good law. Walker, U.S. 135 S. Ct. 2239 (2015). (See Point II-A, supra.)
But even if these license plate cases were still good law, they would not be applicable to
the case at bar. In the situation where a state creates a specialty license program, the state invites
individuals or organizations to apply for the creation of a plate which expresses a point of view
by advocating for a particular program, cause, or issue. Where the state invites public discourse
and debate via a program, it must then ensure that restrictions on expression are viewpoint
neutral. Here, however, the Program at issue was not created to encourage public discourse or
debate and the State did not invite vendors to engage in free expression. The permit to participate
in the Program limits the vendors participation to the sale of preapproved menu items on
specific days and times, at a specific location. The only speech contemplated by the Program is
that which is necessary for the advertisement and description of the approved menu items.
Sons of Confederate Veterans, Inc. v. Commn of Virginia Dept of Motor Vehicles, 288 F.3d
620 (4th Cir. 2002); Lewis v. Wilson, 253 F.3d 1077 (8th Cir. 2001); Matwyuk v. Johnson, 22 F.
Supp. 3d 812 (W.D. Mich. 2014).
11
C. The Denial of Plaintiffs Application for a Vendor Permit was Reasonable.

As explained more fully in Point I of Defendants Memorandum of Law in support of
their motion for summary judgment (Dkt No. 155.), the denial of Plaintiffs application for a
vendor permit was reasonable in light of the circumstances. Cornelius, 473 U.S. at 809. The
purpose of the Program is to provide lunch options to the State employees and visitors at the
ESP. The standard imposed upon the Program, and indeed all programs sponsored by OGS at
ESP, is that it be family-friendly and appropriate for persons of all ages. (Rabito Dec. 10.)
OGSs family-friendly policy prohibits speech and visual representations that are vulgar,
profane, sexually explicit, or derogatory. Id. The purpose of this policy is to create a workplace
environment free from harassment based upon race, ethnicity, or sex, and to foster an
environment of respect where all State employees and visitors to the ESP can be free to enjoy the
programing sponsored by the State through OGS. Id. The application for the Program
specifically states that, [a]ll 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. (Rabito Dec 6 and Ex. A.) These
restrictions were reasonable in light of OGSs position, on behalf of the State, as property owner
and employer, and in light of the purpose of the program to provide lunch options to State
employees and visitors to the ESP.
12
CONCLUSION
For the reasons stated herein and the statement of facts, declarations, and memorandum
of law submitted in support of Defendants Motion for Summary Judgment, Plaintiffs instant
motion for summary judgment should be denied as a matter of law.
Dated: Albany, New York
August 31, 2015
Attorney for Defendants RoAnn M. Destito,
Joseph J. Rabito, William F. Bruso and
Aaron Walters
The Capitol
By: s/ Colleen D. Galligan
Colleen D. Galligan
Assistant Attorney General, of Counsel
Bar Roll No. 105167
Telephone: (518) 776-2613
Fax: (518) 473-1572 (Not for service of papers)
Email: Colleen.Galligan@ag.ny.gov
TO:
George F. Carpinello, Esq.

Boies, Schiller Law Firm
30 South Pearl Street, 11th Floor
Albany, NY 12207
13
Case 1:13-cv-01053-MAD-RFT Document 157-1 Filed 08/31/15 Page 1 of 9
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
WANDERING DAGO, INC.,

Plaintiff,
13-CV-1053
MAD/RFT
-againstNEW YORK STATE OFFICE OF GENERAL

SERVICES, ROANN M. DESTITO, JOSEPH J. RABITO,
WILLIAM F. BRUSO, JR., AARON WALTERS, NEW
YORK RACING ASSOCIATION, INC., CHRISTOPHER
K. KAY, STEPHEN TRAVERS, JOHN DOES 1-5, and
THE STATE OF NEW YORK,
Defendants.
DEFENDANTS RESPONSE TO PLAINTIFFS

STATEMENT PURSUANT TO RULE 7.1(a)(3)
Pursuant to Rule 7.1(a)(3) of the Local Rules of this Court, Defendants RoAnn M.
Destito (Destito), Joseph J. Rabito (Rabito), William F. Bruso (Bruso) and Aaron Walters
(Walters) submit this response to plaintiffs Rule 7.1(a)(3) statement (Dkt. No. 156-2
(Plaintiffs 7.1 Statement)):
1.
Defendants ADMIT to paragraph 1 of Plaintiffs 7.1 Statement.
2.
3.
4.
5.
6.
7.
Defendants ADMIT to paragraph 7 of Plaintiffs 7. 1 Statement.
8.
9.
Defendants DENY paragraph 9 of Plaintiffs 7.1 Statement. The Empire State
Plaza includes multiple state buildings, including the Corning Tower, four agency buildings, the
Swan Street Building, the Legislative Office Building, the Robert Abrams Justice Building, the
Egg Center for Performing Arts, the Cultural Education Center, which contains the State
Museum and the State Library, and the New York State Capitol Building, all of which are
connected by an underground concourse. Affidavit of Joseph J. Rabito, dated September 6, 2013
(Dkt. No. 27-1) (Rabito Aff.).
10.
11.
12.
Defendants DENY paragraph 12 of Plaintiffs 7.1 Statement. Several special
events are held annually on the Empire State Plaza each year. Some examples include African
American Family Day, Hispanic Heritage Month, the Food Festival, and the Fourth of July
Festival. Rabito Dep. (Dkt. No. 152-12) at 59.
13.
Defendants DENY paragraph 13 of Plaintiffs 7.1 Statement to the extent that it
may imply that OGS may sponsor political rallies, marches, and protests. Although OGS may
issue demonstration permits for individuals or organizations that apply to use the Plaza for
political rallies, marches, and protests, the issuance of a demonstration permit does not equate to
OGS sponsorship of the event. Rabito Dep. at 86 (You you can approve a permit; that doesnt
make you a sponsor.).
14.
15.
alleges that Defendants individually or OGS approves some protests. Rather, OGS issues
demonstration permits to individuals or organizations that apply for a permit to demonstrate on
OGS-controlled property. Rabito Decl. 19. The purpose of the permit is to provide OGS with
notice of the likely size and location of the demonstration so that OGS can provide adequate
services and operational management. Id. Issuance of a demonstration permit does not equate to
OGS sponsorship of the event. Rabito Dep. at 86 (You you can approve a permit; that doesnt
make you a sponsor.).
16.
Defendants ADMIT to paragraph 16 of Plaintiffs 7.1.
17.
18.
mischaracterizes the cited portion of the deposition testimony. The context of the deposition
testimony makes it clear that the events being discussed are political demonstrations. Rabito
Dep. at 86-87 (discussing an exhibit that was an article about an education reform rally).
19.
Defendants DENY paragraph 19 of Plaintiffs 7.1 Statement. The Program
permits only qualified food vendors to participate in providing food during lunchtime hours to
the State employees and visitors who work or come to the Capitol and adjacent State buildings
and parks during the summer and early fall months. Rabito Decl. 5. Food vendors may apply to
be present from Monday through Friday or for Wednesdays and Fridays only. Rabito Decl. Ex. A
at 1 (OGS 000061). The participating food vendors would operate at designated spots located
between the reflecting pool and the Egg on the Empire State Plaza. Rabito Decl. 3. The hours
for the sale of food items by qualified vendors is also restricted by OGS. Rabito Decl. Ex. A at 2
(OGS 000062).
20.
21.
22.
Defendants DENY paragraph 22 of Plaintiffs 7.1 Statement. Aaron Walters, a
public affairs and promotions agent for OGS, advised Andrea Loguidice that plaintiff had until
May 17, 2013, to submit an application. Declaration of Aaron Walters, dated July 28, 2015 (Dkt.
No. 155-5) (Walters Decl.), 12.
23.
24.
Defendants ADMIT paragraph 24 of Plaintiffs 7.1 Statement.
25.
26.
27.
28.
Defendants DENY paragraph 28 of Plaintiffs 7.1 Statement. The cited portions
of the deposition transcripts cited in Plaintiffs 7.1 Statement actually state that Joe Cavazos
(Cavazos) did not make the decision concerning the denial of plaintiffs application, that
Cavazos had not personally reviewed plaintiffs 2013 Program Application when he brought it to
Rabitos attention, and that Heather Groll (Groll) was not aware of plaintiffs food truck prior
to plaintiffs application being denied in 2013.
29.
30.
31.
32.
33.
34.
Defendants DENY paragraph 34 of Plaintiffs 7.1 Statement. As set forth in the
2013 Program Rules: 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. Rabito Decl. 9. This requirement is
consistent with OGSs overall policy that OGS-sponsored events at the Empire State Plaza be
family friendly and free from sexually explicit, insulting, or profane language, or offensive
visual representations, so that the event can be enjoyed by all members of the public, regardless
of age and sensitivity. Id. 10. OGSs family friendly policy with regard to events that it
sponsors at the Empire State Plaza has been applied consistently in the past. Id. 11. Rabito
denied plaintiffs application because its business name and the names of its menu items violated
OGSs family friendly policy. Id. 34.
35.
Defendants DENY paragraph 35 of Plaintiffs 7.1 Statement because it
mischaracterizes the cited portion of the deposition transcript. As set forth expressly in the
transcript, Rabito was concerned that people would take offense to it and people would be hurt
by it . . . Rabito Dep. at 71. Although Rabito said that if someone would refer to me [i.e.
Rabito] as a Dago, I [i.e. Rabito] would punch them in the mouth, id., the context makes it clear
that Rabito was merely providing a hypothetical of a potential personal reaction.
36.
37.
implies the decision to accept the other applicants was made solely within the Special Events
Office. Gail Hammond and Cavazos also had decision-making authority. Rabito Dep. at 55-57.
38.
39.
40.
41.
42.
mischaracterizes the cited portion of the deposition transcript. Bruso advised plaintiff that the
application was denied because it was late, it was incomplete, and plaintiff would be unable to
attend some days of the program. Bruso Dep. at 26-27.
43.
44.
45.
46.
47.
48.
49.
Defendants DENY paragraph 49 of Plaintiffs 7.1 Statement because it incorrectly
states that the application for The Empanada Llama was missing a certificate of insurance. See
Declaration of Aaron Walters, dated August 28, 2015 (Second Walters Decl.), submitted
herewith, 4.
50.
Defendants DENY paragraph 50 of Plaintiffs 7.1 Statement because it incorrectly
states that the application for Red Poppies: A Polish Pantry was missing a certificate of
insurance. See Second Walters Decl. 4.
51.
Defendants DENY paragraph 51 of Plaintiffs 7.1 Statement. The certificates
received on May 28, 2013, from Mr. Ding-a-Ling were replacement certificates for those that
were received on May 9, 2013. See Second Walters Decl. 4-6.
52.
Defendants DENY paragraph 52 of Plaintiffs 7.1 Statement. The certificate
received on June 6, 2013, from Farm2Door was a replacement certificate for the one that was
received on May 15, 2013. See Second Walters Decl. 4-6.
53.
received on May 23, 2013, from Flavors of Lebanon was a replacement certificate for the one
that was received on May 17, 2013. See Second Walters Decl. 4-6.
54.
received on May 28, 2013, from My Linh was a replacement certificate for the one that was
received on May 10, 2013. See Second Walters Decl. 4-6.
55.
received on May 22, 2013, from Merican Bandwagan was likely a replacement certificate for the
one that was submitted with the original application. See Second Walters Decl. 4-6.
56.
57.
mischaracterizes the cited portions of the deposition transcript. Walters stated at his deposition
that [i]n general, if an application was missing information or had incorrect information, he
would send an e-mail requesting that [the applicant] make a change to the document. Walters
Dep. (Dkt. No. 152-1) at 111. When asked if missing information or a known issue with the
vendors application would have prevented the applicant from being accepted into the program,
Walters responded I am not sure, because I dont have responsibility of approving the vendor or
the application. So I wouldnt know, but possibly. Id. at 112.
58.
omits that Rabito testified that he would have provided the applicant with an opportunity to
remedy the problem of missing pages if the pages were missing due to an error in transmitting
the fax. Rabito Dep. at 21-22.
59.
Defendants DENY paragraph 59 of Plaintiffs 7.1 Statement. Walters testified that
although it would be fine for My Linh to apply to participate for only Tuesday through Thursday,
My Linh was not guaranteed acceptance into the program, but only that they wouldnt be
rejected because they would only be able to attend Tuesday through Thursday. Walters Dep. at
58.
60.
61.
62.
63.
64.
65.
66.
67.
Dated: Albany, New York

August 31, 2015
Attorney for Defendants RoAnn M. Destito, Joseph
J. Rabito, William F. Bruso and Aaron
Walters
The Capitol
By: s/ Colleen D. Galligan
Colleen D. Galligan
Assistant Attorney General, of Counsel
Bar Roll No. 105167
Telephone: (518) 776-2613
Fax: (518) 473-1572 (not for service of papers)
Email: Colleen.Galligan@ag.ny.gov

Wandering Dago Defendants

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Case 1:13-cv-01053-MAD-RFT Document 157 Filed 08/31/15 Page 1 of 15

UNITED STATES DISTRICT COURT

WANDERING DAGO, INC.,

NEW YORK STATE OFFICE OF GENERAL

MEMORANDUM OF LAW OPPOSITION TO PLAINTIFF'S MOTION FOR

Colleen D. Galligan and Louis Jim

Date: August 31, 2015

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Case 1:13-cv-01053-MAD-RFT Document 157 Filed 08/31/15 Page 14 of 15

C. The Denial of Plaintiffs Application for a Vendor Permit was Reasonable.

Case 1:13-cv-01053-MAD-RFT Document 157 Filed 08/31/15 Page 15 of 15

George F. Carpinello, Esq.

Case 1:13-cv-01053-MAD-RFT Document 157-1 Filed 08/31/15 Page 1 of 9

UNITED STATES DISTRICT COURT

WANDERING DAGO, INC.,

-againstNEW YORK STATE OFFICE OF GENERAL

DEFENDANTS RESPONSE TO PLAINTIFFS

Defendants ADMIT to paragraph 1 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 2 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 3 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 4 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 5 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 6 of Plaintiffs 7.1 Statement.

Case 1:13-cv-01053-MAD-RFT Document 157-1 Filed 08/31/15 Page 2 of 9

Defendants ADMIT to paragraph 7 of Plaintiffs 7. 1 Statement.

Defendants ADMIT to paragraph 8 of Plaintiffs 7.1 Statement.

Defendants DENY paragraph 9 of Plaintiffs 7.1 Statement. The Empire State

Defendants ADMIT to paragraph 10 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 11 of Plaintiffs 7.1 Statement.

Defendants DENY paragraph 12 of Plaintiffs 7.1 Statement. Several special

Defendants DENY paragraph 13 of Plaintiffs 7.1 Statement to the extent that it

Defendants ADMIT to paragraph 14 of Plaintiffs 7.1 Statement.

Case 1:13-cv-01053-MAD-RFT Document 157-1 Filed 08/31/15 Page 3 of 9

Defendants DENY paragraph 15 of Plaintiffs 7.1 Statement to the extent that it

Defendants ADMIT to paragraph 16 of Plaintiffs 7.1.

Defendants ADMIT to paragraph 17 of Plaintiffs 7.1 Statement.

Defendants DENY paragraph 18 of Plaintiffs 7.1 Statement to the extent that it

Defendants DENY paragraph 19 of Plaintiffs 7.1 Statement. The Program

Case 1:13-cv-01053-MAD-RFT Document 157-1 Filed 08/31/15 Page 4 of 9

Defendants ADMIT to paragraph 20 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 21 of Plaintiffs 7.1 Statement.

Defendants DENY paragraph 22 of Plaintiffs 7.1 Statement. Aaron Walters, a

Defendants ADMIT to paragraph 23 of Plaintiffs 7.1 Statement.

Defendants ADMIT paragraph 24 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 25 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 26 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 27 of Plaintiffs 7.1 Statement.

Defendants DENY paragraph 28 of Plaintiffs 7.1 Statement. The cited portions

Defendants ADMIT to paragraph 29 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 30 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 31 of Plaintiffs 7.1 Statement.

Defendants ADMIT to paragraph 32 of Plaintiffs 7.1 Statement.