Filed: Dec. 07, 2018
Latest Update: Mar. 03, 2020
Summary: 18-0193 Mogul Media, Inc., et al. v. City of New York, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WI
Summary: 18-0193 Mogul Media, Inc., et al. v. City of New York, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WIT..
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18‐0193
Mogul Media, Inc., et al. v. City of New York, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 7th day of December, two thousand and eighteen.
Present:
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON
Circuit Judges.
GEOFFREY W. CRAWFORD
District Judge*
______________________
MOGUL MEDIA, INC., ET AL.,
Plaintiffs‐Appellants,
v. 18‐0193
CITY OF NEW YORK, ET AL.
Defendants‐Appellees.†
Chief Judge Geoffrey W. Crawford, of the United States District Court for the District of
*
Vermont, sitting by designation.
† The Clerk of the Court is directed to amend the caption as set forth above.
______________________
For Plaintiffs‐Appellants: RICHARD T. WALSH, Horing, Welikson & Rosen, P.C.,
Williston Park, NY.
For Defendants‐Appellees: JEREMY W. SHWEDER, Assistant Counsel (Richard
Dearing and Claude S. Platton, of counsel, on the brief),
for Zachary W. Carter, Corporation Counsel of the City
of New York, New York, NY.
Appeal from the United States District Court for the Southern District of New
York (Engelmayer, J.)
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED.
Plaintiffs, owners or lessees of property in the City of New York on which
billboards are or have been displayed, appeal from an Opinion and Order of the United
States District Court for the Southern District of New York (Engelmayer, J.) granting the
City of New York’s (“City”) Rule 12(b)(6) motion to dismiss for failure to state a claim
upon which relief can be granted. Plaintiffs appeal the district court’s judgment holding
that the City did not violate their First Amendment rights.1 We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues for review.
The standard of review is well known.2
1 Plaintiffs brought additional claims under federal law but do not challenge the dismissal of those
claims on appeal.
2 We review “the dismissal of a complaint under Rule 12(b)(6) de novo, taking as true the material
facts alleged in the complaint and drawing all reasonable inferences in favor of the plaintiff.” Pani
v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998). To survive a motion to dismiss under
2
Plaintiffs challenge the constitutionality of New York City Zoning Resolution
(“ZR”) §§ 42‐55 and 32‐662,3 as applied to their properties. They contend that because the
City “zon[ed] City owned parks and properties differently from other lands similarly
situated and owned by private owners,” J.A. 31–32, for the purpose of advancing “a
money making scheme,” Appellant Br. 24, the City violated their First Amendment
rights. Plaintiffs point to offsite advertising signs permitted at the New York
Metropolitans’ Citi Field ballpark, located within the City‐owned Flushing Meadows‐
Corona Park, to support their argument that ZR §§ 42‐55 and 32‐662 are
unconstitutionally underinclusive.
However, the City neither exempted Flushing Meadows‐Corona Park from ZR
§§ 42‐55 and 32‐662, nor deliberately zoned the parkland so as to avoid those regulations.
Flushing Meadows‐Corona Park is not zoned, a designation that has not changed since
at least 1961. City‐owned parkland is governed by the public trust doctrine, a state
common law theory under which “[o]nly the state legislature has the power to alienate
parkland.” Avella v. City of New York, 29 N.Y.3d 425, 431 (2017). “Even though a
municipality may own the land dedicated to public use, ‘ . . . the power to regulate those
rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is properly dismissed,
where, as a matter of law, “the allegations in a complaint, however true, could not raise a claim
of entitlement to relief.” Id. at 558.
3 ZR §§ 42‐55 and 32‐662 prohibit arterial highway “offsite” advertising signs in high‐density
commercial and manufacturing districts, respectively, but permit so‐called “onsite” signs.
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uses [is] vested solely in the [state] legislature.’” Id. at 431 (first brackets in original)
(quoting Potter v. Collis, 156 N.Y. 16, 30 (1898)). In 1961 the State authorized construction
of Shea Stadium (later replaced by Citi Field) and appurtenant structures at Flushing
Meadow Park (now Flushing Meadows‐Corona Park), codified in section 18‐118 of the
Administrative Code of the City of New York. See also id. at 432–35 (outlining grant of
alienation of Flushing Meadow Park).
Therefore, any challenge premised on the allegation that the City deliberately
zoned Plaintiffs’ property differently from its own parkland property has no basis in law
or fact. The City does not have the authority to regulate Flushing Meadows‐Corona Park.
At most, New York State allowed construction of Citi Field and appurtenant structures,
including the signs of which Plaintiffs complain.
We have considered Plaintiffs’ remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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