13‐4606 Vosse v. City of New York

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 27th day of February , two thousand fifteen.

PRESENT: RICHARD C. WESLEY, PETER W. HALL, GERARD E. LYNCH, Circuit Judges. ____________________________________________

BRIGITTE VOSSE,

Plaintiff ‐ Appellant,

‐v.‐ No. 13‐4606

THE CITY OF NEW YORK, COMMISSIONER ROBERT D. LIMANDRI, of the New York City Department of Buildings,

Defendants ‐ Appellees. ____________________________________________

1 FOR APPELLANT: TIMOTHY L. COLLINS (Gideon Orion Oliver, on the brief), Collins, Dobkin & Miller LLP, New York, NY.

FOR APPELLEES: ELIZABETH S. NATRELLA (Pamela Seider Dolgow, on the brief), for Zachary W. Carter, Corporation Counsel, New York, NY. ____________________________________________

Appeal from the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the petition for rehearing is GRANTED and

the judgment of the district court is AFFIRMED in part and REMANDED in

part.

Plaintiff‐Appellant Brigitte Vosse brought this action against The City of

New York and the Commissioner of the New York City Department of

Buildings. Vosse alleged that the City infringed her right to free speech by fining

her, pursuant to zoning regulations, for hanging an illuminated peace symbol

outside her 17th‐story condo window. The district court dismissed for lack of

standing in a memorandum and order dated November 8, 2013. Vosse now

appeals.

For substantially the same reasons stated in the district court’s

memorandum and order, we AFFIRM the district court’s decision as to Vosse’s

2 lack of standing to raise a claim of content‐based discrimination. However,

Vosse also raised an argument, both in the district court and on appeal, that

irrespective of content, the City’s zoning regulations constituted an unduly

restrictive time, place, manner restriction on speech, in violation of the Supreme

Court’s decision in City of Ladue v. Gilleo,

(1994). Because the district

court did not address this argument, we REMAND for the district court to

address it in the first instance.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

3