Private Restaurant Allowed in Union Square Park

, New York Law Journal

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The pavilion at the north end of Union Square Park
The pavilion at the north end of Union Square Park
Editors' Note: This article has been updated to reflect a Correction.

 

ALBANY - The state does not need to approve a restaurant in Union Square Park, despite a rule requiring the Legislature to say when a public park can be used for private purposes, the Court of Appeals determined Thursday.

The unanimous court held that New York City's agreement with food vendor Chef Driven Market to run a restaurant in the Manhattan park's recently-renovated pavilion does not violate the so-called public trust doctrine.

"While we leave open the possibility that a particular restaurant might not serve a park purpose in a future case, we conclude that the restaurant here does not run afoul of the public trust doctrine for lack of a park purpose," Judge Victoria Graffeo (See Profile) wrote for the court in Union Square Park Community Coalition v. New York City Department of Parks and Recreation, 17.

A coalition of community groups had contended that the restaurant would harm the character of the 3.6-acre park, which is designated as a national historic landmark, and is unnecessary because of the large number of restaurants nearby.

But Graffeo wrote that while the community groups and the Parks and Recreation Department may disagree over the best use of Union Square Park and its pavilion, the city's contract with Chef Driven Market is not illegal.

The court said its ruling was in line with its previous holdings on the public trust doctrine and restaurants in city parks in Friends of Van Cortlandt Park v. City of New York, 95 NY2d 623 (2001), and 795 Fifth Ave. Corp. v. City of New York, 15 NY2d 221 (1965).

In 795 Fifth Ave., the court held that New York City's park commissioner is "vested by law with broad powers for the maintenance and improvement of the city's parks" and judicial interference is only justified when a "total lack of power is shown."

Graffeo wrote that while 795 Fifth Ave. concerned objections to private uses of Central Park instead of the far-smaller Union Square Park, the principles are the same.

"Although it is for the courts to determine what is and is not a park purpose, we recognized that the Commissioner enjoys broad discretion to choose among alternative valid park purposes," Graffeo wrote, adding "we perceive no meaningful distinction between 795 Fifth Ave. and the case before us in the application of the public trust doctrine."

The court also rejected the plaintiffs' contention that the city's 15-year contract with Chef Driven Market represents a "lease" with a binding, long-term commitment that must be approved by the Legislature under the public trust doctrine rather than a "license" authorizing use of public property that may be revoked at any time by the city.

Chief Judge Jonathan Lippman (See Profile) and Judges Susan Phillips Read (See Profile), Eugene Pigott Jr. (See Profile), Robert Smith (See Profile), Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile) joined in Graffeo's opinion.

Chef Driven Market would run the restaurant and a fast-food kiosk through its licensing agreement with the city. In return, the city would gain the right to approve the restaurants' menus and prices, to restrict the kinds of events held at the eateries and to terminate the agreement at any time.

The city would initially collect $300,000 a year through the license, increasing to $453,777 annually by the deal's final year.

The menu at the restaurant calls for breakfast items of between $1.95 to $15.95 and lunch and dinner options of between $8.95 to $33.95.

Chef Driven Market is run by the same company that owns Five Napkin Burgers.

Assistant Corporation Counsel Deborah Brenner argued for the city.

"This is a win for the community," Brenner said in a statement released by the corporation counsel's office. "The café will offer affordable, high-quality food for park-goers, including breakfast for as low as $1.95. And prices may not be increased without the city's consent."

Sanford Weisburst, a Quinn Emanuel Urquhart & Sullivan attorney who represented the plaintiffs, said, "Although we are disappointed by the outcome, we appreciate the court's consideration of our arguments."

The plaintiffs included Richard Gottfried, a 43-year veteran state assemblyman whose district includes Union Square Park.

In an amicus curiae brief in support of the plaintiffs' position, Manhattan Borough President Gale Brewer said the contract with Chef Driven Market would "fundamentally transform one of New York City's most iconic parks."

Thursday's ruling affirmed a determination by the Appellate Division, First Department supporting the city's contract in Union Square Park Community Coalition v. New York City Department of Parks and Recreation, 107 AD3d 525 (2013).

Acting Supreme Court Justice Arthur Engoron had ruled in the plaintiffs' favor, finding that the restaurant project would be an impermissible use of parkland for non-park purposes.

Grand Jury Testimony

In another ruling Thursday, the court upheld the conviction of Paul Thompson for murder despite his stringent objections that prosecutors refused to call a woman to testify before a grand jury who witnessed the crime and could have bolstered his defense.

In a 4-3 ruling in People v. Thompson, 10, the majority said the prosecutor was not "motivated by bias or a desire to deceive the grand jury" when he tried to discourage grand jurors from calling the alleged witness to Rasheem Williams' 2003 slaying in Staten Island.

"At most, the prosecutors made isolated missteps that could not have affected the outcome of the grand jury proceedings," the majority said in a decision written by Abdus-Salaam. "We do not endorse the prosecutors' actions as the preferred way to present a case to the grand jury, but we decline to dispose of the well-founded prosecution here as a result of their handling of the matter."

Graffeo, Read and Pigott joined in the majority ruling.

According to briefs in the case, a prosecutor presenting the matter to grand jurors declined Thompson's request to call the woman and, later, strongly urged the grand jury not to do so when pressed by one juror.

"It's up to you whether to have that witness, but I'm telling you that it is not relevant to this proceeding," the prosecutor said. "You have to take our advice, as your legal advisors, that it is not relevant to the situation at hand."

Asked by the juror why Thompson was so insistent that the woman be called, the prosecutor responded that it was not necessary for the grand jury to hear from "every witness known to mankind relevant to this proceeding" or "everybody in society that was on the face of the planet that day."

The grand jury voted against calling the woman and indicted Thompson for second-degree murder and on a related weapons possession charge.

After his first trial ended in mistrial, Thompson was convicted at his second trial and sentenced to 25 years to life in prison.

Lippman said in his dissent that it is the grand jury—not the prosecution—that has the "broad and autonomous" power to decide what witnesses it hears from under CPL 190.50[3].

"Here, the presenting prosecutors lost sight of these limitations and, in so doing, impermissibly substituted their discretion for that legally committed to the grand jury," Lippman wrote.

He added that the prosecution's attitude toward calling the female witness "deprived the grand jury of potentially outcome-determinative information essential to the discharge of its core constitutional obligation."

Lippman and his fellow dissenters, Smith and Rivera, said the indictment should have been dismissed, with leave for the prosecution to re-present.

Assistant Staten Island District Attorney Anne Grady argued for the prosecution.

Warren Landau of Appellate Advocates argued for Thompson.

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