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BREAKING NEWS
!! PLAINTIFFS WIN APPEAL !!
Appeals Court Reverses Trial Court’s
Dismissal of Complaint against New Rochelle’s Ward Acres Ordinance and Allows Pre-Trial Discovery to Proceed
PRESS RELEASE
Westchester Dog Owners Win
Appeal
Appeals Court Reverses Trial Court’s Dismissal of Complaint
against New Rochelle’s Ward Acres Ordinance and Allows Pre-Trial Discovery to Proceed
Contact: Patricia
B. Wild, Attorney for Plaintiffs (914) 834-3969 or
Jeffrey P. Wiegand,
Press Contact (914) 374-8320
NEW ROCHELLE, New York, October 13, 2008:
On October 7, 2008, the Appellate Division Second Judicial Department reversed
Judge Donovan’s dismissal of plaintiff dog owners’ case against New Rochelle's Ward Acres ordinance (Local City
Ordinance 21-2007) and granted plaintiffs’ request for production of certain documents by the city. Oral argument
of the appeal took place on September 15, 2008 when, among other things, the Presiding Judge advised the city to try to settle
the case.
In its ruling, the court stated that in the absence of notice to the parties
and a motion by the defendant, it was error for the trial court to dismiss the complaint. The lower court further erred
in denying plaintiffs’ request for documents from the city, particularly those requests pertaining to calculation of
the costs of administering the Ward Acres ordinance. The case is remitted to the Supreme Court, Westchester County for
further proceedings on the complaint. Statutory costs of the appeal ($250) were also awarded to the plaintiffs.
The Ward Acres ordinance is unprecedented. It imposes a photo ID
and a per dog fee of $50 (residents) and $100 (non-residents – originally $250) on anyone who enters Ward Acres’
state and county-funded open and natural parkland with a dog.
Plaintiffs and the Dog Federation of NY (who joined the case as amicus
curiae “friend of the court” in support of plaintiffs’ appeal) claim the ordinance
* discriminates
against dog owners and non-residents,
* imposes an illegal dog tax and an impermissible public
park admission fee, and
* usurps the uniformity of state dog licensing.
Plaintiffs and DFNY further challenge the city’s use of police who
randomly stop law-abiding dog owners walking in the park to demand production of their special Ward Acres photo IDs.
The case was originally filed on April 16, 2007, Dennis C. During, Michael S. Friscia and Marci Malone vs The City of New Rochelle, New York in
New York State Supreme Court, Westchester Co., Hon. W.D. Donovan (Index No. 6561/07), dismissal appealed to the Appellate
Division 2nd Department (Docket No. 2007-09271) on October 4, 2007. On February 15, 2008, a statewide association of
dog owners, the Dog Federation of New York (Contact: Mahlon Goer 845-706-1116 www.dogfederationofnewyork.blogspot.com ), appeared in the case as amicus curiae (“friend of the court”) in support of plaintiffs’ appeal.
Download a copy of the appeals court decision and learn more about Ward
Acres, the Westchester dog-owning community and the real world impact of this unprecedented ordinance. Go to:
www.WeLoveWardAcres.net.
For more community discussion, join:
http://groups.yahoo.com/group/FriendsofWardAcresPark/
http://groups.google.com/group/FriendsofWardAcresPark
END
Download a PDF of the Press release HERE
CLICK HERE for the Appellate Division's decision
CLICK HERE for the Appellate Division Second Department Home Page
_______________________________________________
Whoever heard of charging $250 (per dog
- or even $100) to walk with your LEASHED dog in open & natural public parkland?
That's what they are doing in New
Rochelle, NY!
ILLEGAL DOG
TAX
BURDENSOME
LICENSING
DISCRIMINATION
POLICE STATE
TACTICS OF ENFORCEMENT & INTIMIDATION
STATEWIDE
DOG OWNERS ALARMED!
Westchester Dog Owners Welcome
Dog Federation of New York in Suit Against New Rochelle
Statewide Dog Owners Join as "Amicus Curiae" in
Appeal
Contact:
Patricia B. Wild, Attorney for Plaintiffs (914) 834-3969 or
Jeffrey P. Wiegand, Press Contact (914) 374-8320
NEW ROCHELLE,
New York, February 20, 2008:
On February 15, 2008, the Dog Federation of New
York, made its motion to appear as "amicus curiae" (“friend of the court”) in support of plaintiff dog owners'
appeal of the dismissal of their case against New Rochelle's
Ward Acres ordinance. Plaintiffs welcome the support of the Dog Federation of
New York who is represented by Paul Weiss, Rifkind, Wharton & Garrison LLP of New
York City.
Plaintiffs are confident that with the help of
the Dog Federation, the appeals court will come to understand the injustice and socially detrimental effects of the ordinance
along with the wider threat to statewide civil liberties that it represents.
As stated in the "amicus curiae" brief, “...dog walking clearly
benefits dog owners and society as a whole. It should be promoted, facilitated,
and celebrated – not penalized, bureaucratized, and stigmatized.”
The case was originally filed on April 16, 2007,
Dennis C. During, Michael S. Friscia and Marci Malone vs The City of New Rochelle, New York in New York State Supreme
Court, Westchester Co., Hon. W.D. Donovan (Index No. 6561/07), dismissal appealed to the Appellate Division 2nd
Department (Docket No. 2007-09271) on October 4, 2007.
To learn more about Ward Acres, the Westchester dog-owning community and the real world impact of this unprecedented ordinance go to:
www.WeLoveWardAcres.net. Copies of selected court filings for download are available at the site.
Press contact for the Dog Federation of New York: Mahlon Goer (845) 706-1116 and web site http://www.dogfederationofnewyork.org/
For more community discussion, join:
http://groups.yahoo.com/group/FriendsofWardAcresPark/
http://groups.google.com/group/FriendsofWardAcresPark
END
DOG FEDERATION OF NEW YORK PRESS RELEASE:
New Rochelle Law Forcing
Dog Owners From Park Challenged in Court
FOR IMMEDIATE RELEASE
MEDIA CONTACT: Mahlon Goer 845-706-1116
Dog Federation Of New York supports challenge
to unlawful, discriminatory public policies targeting law-abiding dog owners.
New York, NY – February 20, 2008 -The Dog Federation of New York (DFNY) made a motion to appear
as amicus curiae (“friend-of-the-court”) on February 15, 2008 in the case of During et. al v. The City of New
Rochelle, New York,. The papers delivered to the New York Supreme Court Appellate Division, Second Department, support a suit
previously brought by dog owners Dennis C. During, Michael S. Friscia and Marci Malone against the City of New Rochelle and
now under appeal. The dog owners seek nullification of New Rochelle’s illegal, unfair and punitive local ordinance requiring
them to obtain extra photo identifications and permits, and pay special additional fees, simply to walk a dog in a public
park.
Dog walkers with leashed dogs
in Ward Acres Park in New Rochelle are subject to a disturbing stop-andsearch policy in which police officers are instructed
to stop people walking their dogs and demand to see a special “Ward Acres Dog Permit” photo identification. Persons
unable to produce the special permits are asked to leave the park and, under the terms of the Ordinance, they are potentially
subject to fines and/or imprisonment.
"As a statewide
coalition of law-abiding dog owners, we are deeply concerned when a municipality illegally targets residents and tax-payers
whose only “crime” is walking a dog in a public place," stated DFNY spokesperson Mahlon Goer. “New Rochelle
residents and non-residents alike are not second class citizens, and state law protects them from unwarranted searches, special
permit requirements, extra dog taxes, and other infringements of their civil liberties.”
The law suit, brought by New Rochelle resident
and non-residents and supported by the Dog Federation of New York, points out numerous violations of state law in the ordinance.
New York State’s Constitution and laws protect all of its citizens from discrimination, including dog owners.
"Ward Acres
was the last park in New Rochelle open to people who want to walk their dogs, and now the City Council seems bent on forcing
them out of it. Close to half of all households in New York include at least one dog, and we are surprised and dismayed to
see that a better accommodation could not be worked out,” Goer continued. “Our goal is to promote dog-friendly
and dog-safe communities for all New Yorkers. We are confident that better solutions are available.”
Paul, Weiss, Rifkind, Wharton & Garrison LLP
in New York City represents the Dog Federation of New York in this matter. The case was originally filed on April 16, 2007,
Dennis C. During, Michael S. Friscia and Marci Malone v. The City of New Rochelle, New York in NY State Supreme Court, Westchester
Co., Hon. W. D. Donovan, Index No. 6561/07.
About the Dog Federation of New York
The Dog Federation of New York is a statewide coalition
of dog clubs, organizations and individuals that serves the public interest by educating citizens and legislators on responsible
dog ownership and advocating for strong, and humane dog-related legislation. The Dog Federation of New York welcomes all dog
owners and dog-related organizations in New York. Visit us on the web at http://www.dogfederationofnewyork.org/
####
BREAKING NEWS
Westchester Dog Owners File Brief in Appeal of Case Against the City of New Rochelle
Plaintiffs eager for appellate review
Contact: Patricia B. Wild, Attorney for Plaintiffs (914) 834-3969 or
Jeffrey P. Wiegand, Press Contact (914) 374-8320
NEW ROCHELLE, New York, January 28, 2008:
On January 24, 2008 plaintiffs Dennis C. During, Michael S. Friscia and Marci Malone filed their Brief for Plaintiffs-Appellants
in the New York Supreme Court Appellate Division, Second Department (Docket No. 2007-09271), in their case against the city
of New Rochelle and the Ward Acres ordinance.
Plaintiffs appeal Hon. W. Denis Donovan's order of dismissal of the case which was entered on September 10, 2007.
The order followed a conference held by the court on July 23, 2007, which had been ostensibly scheduled to discuss the defendant
city's failure to comply with plaintiffs' requests for pre-trial document production and depositions. With no notice to plaintiffs
and very little explanation, the court denied plaintiffs' discovery enforcement motions and dismissed the complaint on the
ground that it failed to state a cause of action.
Judge Donovan committed numerous reversible errors in handling both the procedures and merits of this case, plaintiffs
contend. Erroneously immunizing the city from routine pre-trial discovery, the court misapplied the speech and debate clause
of the New York state constitution. The court also failed to give any notice to plaintiffs that it was considering dismissal
whether on the pleadings (failure to state a cause of action) or on the merits (summary judgment). The court's final judgment
confused those two modes of dismissal and plainly erred when it relied solely on defendants' flawed affidavits which were
flatly contradicted by affidavits submitted by the plaintiffs.
Plaintiff Michael Friscia expressed dismay at Judge Donovan, "The court's perfunctory treatment of our case
appears not to have followed rules designed to assure plaintiffs' due process rights and I welcome this opportunity for review
by the Appellate Division."
As to the merits of the case, plaintiffs' appeal brief sets forth the law behind the eight causes of action in
the complaint. The heart of plaintiffs' appeal is that a municipality may not, under New York state law, impose a fee and
a photo ID on anyone who wishes to walk with their dog in a municipal park. It's simple - people freely walk their dogs in
public parks throughout New York state. If each town, village and city could issue its own dog license and impose a fee to
walk a dog in a particular park, and if non-residents were required to possess the license or face fines or imprisonment,
uniform statewide regulation of dogs would be undermined and the freedom of dog owners would be severely impaired.
Furthermore, if this ordinance is allowed to stand, what would prevent New Rochelle or other municipalities from
similarly burdening other everyday activities such as picnicking, Frisbee playing, biking or kite flying in a public park?
The Ordinance was amended on December 11, 2007 by the "lame duck" New Rochelle City Council to reduce
the non-resident fee to $100 per dog from $250 and eliminate all off-leash recreation outside a yet-to-be-built dog run.
But the amendment perpetuates the violations that are the subject of this appeal by continuing to impose fees and licensing
on dog walkers enjoying the park outside the proposed dog run.
Ironically, by amending the ordinance to eliminate the off-leash hours that were the supposed justification for
the fees and licensing to begin with, the city now has no remaining rationale for the Ward Acres dog tax. Plaintiffs urge
the city to do the right thing and only apply reasonable fees (and no licensing) to use of the dog run.
The city's new rule still requires a person to obtain a special license and pay a fee to walk a dog on a leash
in a public park.
The city must file its answering brief with the Appellate Division within 35 days after January 24th. The case
was originally filed on April 16, 2007. Dennis C. During, Michael S. Friscia and Marci Malone vs The City of New Rochelle,
New York in NY State Supreme Court, Westchester Co., Hon. W.D. Donovan, Index No. 6561/07.
To learn more about Ward Acres, the Westchester dog-owning community and the real world impact of this unprecedented
ordinance go to: www.WeLoveWardAcres.net. Copies of selected court filings for download are available at the site.
For more community discussion, join: http://groups..yahoo.com/group/FriendsofWardAcresPark/ http://groups.google.com/group/FriendsofWardAcresPark
END
Westchester Dog Owners File Appeal in Case Against the City of New Rochelle
Plaintiffs eager for appellate review
Contact: Patricia B. Wild, Attorney for Plaintiffs (914) 834-3969
or
Jeffrey P. Wiegand, Press Contact (914) 374-8320
NEW ROCHELLE, New York, October 4, 2007:
On October 4, 2007, plaintiffs Dennis C. During, Michael S.
Friscia and Marci Malone filed their Notice of Appeal and Request for Appellate Division Intervention (Second Judicial Department)
in their case against the city of New Rochelle and the Ward Acres ordinance.
Plaintiffs are appealing Hon. W. Denis Donovan's order of
dismissal of the case which was entered on September 10, 2007. The order followed a conference held by the court on
July 23, 2007, which had been ostensibly scheduled to discuss the defendant city's failure to comply with plaintiffs' requests
for pre-trial document production and depositions. With no notice to plaintiffs and very little explanation, the court
denied plaintiffs' discovery enforcement motions and dismissed the complaint on the ground that it failed to state a cause
of action.
Plaintiffs are confident the appeals court judges will seriously
reconsider this case. The case and the appeal are not about off-leash dog walking. Among other issues, the main
points of the appeal are:
1) The illegality of charging an access fee to a public park
in which there are no facilities such as a swimming pool or tennis court;
2) The municipal usurpation of New York state's exclusive
power to license dogs and the city's imposition of an illegal tax on dog owners;
3) Discrimination against non-residents by imposing an exorbitant
fee to exclude them from a public park purchased with New York state conservation funds and improved with county funds;
and
4) The deliberate use by the city of police state tactics
of enforcement and harassment of law-abiding citizens.
The city's Deputy Mayor (and councilman) wrote in a recent Journal News letter to the editor that plaintiffs' lawsuit
was “preposterous.” But plaintiffs believe it is preposterous that a municipality thinks it can legally
charge its residents and non-residents a fee and require a photo ID to walk a dog on a leash in open and natural public parkland.
“The court's dismissal of our claim was unfair;
the court glossed over important facts and neglected case law clearly pointing to the illegality of the ordinance,”
according to plaintiffs Marci Malone and Michael Friscia.
Plaintiffs expect the appellate court will understand the
danger of letting this ordinance stand – What's to keep New Rochelle from imposing another “dog tax” on
use of another park? What's to keep a municipality from imposing a license to picnic, throw a frisbee or fly a kite
in any of its public parks or to impose another tax without a fair hearing?
Plaintiff Dennis During adds, “I am dismayed that since
April 1st, I have been unable to enjoy the Ward Acres woodland with my dog and I continue to be outraged at my exclusion from
a public park for which I have been paying taxes since 1968.”
The case was originally filed on April 16, 2007. Dennis
C. During, Michael S. Friscia and Marci Malone vs The City of New Rochelle, New York in NY State Supreme Court, Westchester
Co., Hon. W.D. Donovan, Index No. 6561/07.
To learn more about Ward Acres, the Westchester dog-owning
community and the real world impact of this unprecedented ordinance go to: www.WeLoveWardAcres.net. Copies of
selected court filings for download are available at the site.
For more community discussion, join:
http://groups.yahoo.com/group/FriendsofWardAcresPark/
http://groups.google.com/group/FriendsofWardAcresPark
Ward Acres lawsuit is about licensing fees (Original publication:
August 3, 2007) Lawsuit is about
licensing fees The July 27 article "Judge
tosses lawsuit against Ward Acres dog rules; appeal expected" is misleading for focusing on off-leash regulations. The lawsuit
has nothing to do with off-leash dogs and, indeed, the city could have chosen merely to enforce such regulations at virtually
no cost and with no legal impediment. Instead,
the New Rochelle government chose to impose a cumbersome and expensive licensing requirement with fees prohibitive to occasional
use of Ward Acres by residents ($50 per dog) and astronomical for non-residents ($250) whether the dog is on- or off-leash.
This license flouts long-standing legislation and tradition ensuring that open parkland be free and accessible to the public.
(In contrast, constructed facilities such as a supervised beach, a parking lot or our new skateboard complex are allowed to
charge fees.) The result of the Ward Acres
regulation has been to empty a park that was once bustling with friends and families enjoying the outdoors and their pets.
There is simply not enough activity or interest in the park by the general New Rochelle populace to justify the draconian
measures designed to eliminate dogs. We dog owners plead for fairer access to our beloved park. What is the real agenda here? Kathryn D. Wiegand New Rochelle
Dogs & People Gone From Ward AcresIt has been over four months since the City of New Rochelle
enacted a ban of unleashed dogs in Ward Acres after 10 am. Dog owners must now purchase dog walking permits to use the park
with their dogs. For New Rochelle residents the fee is $50 per year; for non-residents, $250. The purpose of the new law was
to allow people without dogs a time to use the park. So I have been visiting Ward Acres after 10 am to see
who exactly was using the park at those times. Before the April 1st ban, Ward Acres was alive with people all the time. Ward
Acres was the most utilized park in lower Westchester. The nature trails were used by hundreds of people, people who happened
to own a dog. Now there is no one walking in the park after 10 am. The trails that were once so alive with friendly people
are silent. There is an eerie ghost-like atmosphere that permeates the air. For nine years I visited Ward Acres
several times a week. It was a magical and enchanting place. The people who used the park cared for it, keeping it clean,
grooming the trails, picking up any debris; we were a community. We formed a bond between ourselves. We celebrated together,
holiday dinners, luncheons, showers. We mourned together, funerals, illnesses, heartaches. Whenever we met outside the park
we would always end our encounters with “see you at the park.” Ward Acres connected us. 
Since school ended it is easy to see how many people are actually using the park from the number
of cars parked by Ward School. From dawn to 10am there are usually 8 to 12 cars parked outside. People are coming and going
constantly. After 10am when I arrive there are usually no cars parked outside. As I walk inside, the park is so quiet that
I feel frightened by the stillness and I leave quickly. I am told by one of the park’s constant users that someone with
a dog attempted to use the park in the afternoon but was confronted, fined and made to leave by the New Rochelle police. Word
of the encounter spreads fast and now no one goes there in the afternoon. 
It is unfortunate that Mayor Noam
Bramson and the City of New Rochelle Council imposed these restrictions on the very people who used the park and contributed
to its well being. What if a community had a soccer field that was used all day by youth soccer leagues and the local government
declared that children could only play until 10 because adults wanted to use the field. Then the adults only used the field
once a month and the rest of the time the field stood empty. That is exactly what is happening at Ward Acres. For the people
who formerly used the park all the time it is heartbreaking to know it sits empty for most of the day, every day. It is tragic
that this will be Mayor Bramson’s legacy. Christine Webler
Larchmont, NY August
9, 2007
THE PRESS (older links might roll into publisher's
archive):
Click HERE to read Journal News August 22, 2007 "ghost town." (commenter wants parks to be museums...)
Click HERE to read New Rochelle Sound Report August 3, 2007. (see p. 1 bottom)
Click HERE to read NY Times article August 5, 2007.
Click HERE to read Journal News article July 27, 2007.
Click HERE to read Journal News article June 10, 2007.
Click HERE to view CBS 11pm Local News Ward Acres Report
PLAINTIFFS' COURT FILINGS: |
