Wandering Dago prevails in federal court
Food truck was barred from Empire State Plaza by state
ALBANY — A Capital Region food truck as notable for its controversial name as for its fusion barbecue fare scored a significant victory at the end of a years-long legal battle with Gov. Andrew Cuomo's administration, which had banned the Wandering Dago from serving its offerings on the Empire State Plaza.
A Wednesday decision from the U.S. Court of Appeals for the Second Circuit concluded that a lower court erred in granting summary judgment to the defendants, including several top officials at the state Office of General Services, which oversees the program that licenses food vendors to park on the Plaza during the warm months.
Instead, the three-judge panel said summary judgment should have gone to the Wandering Dago.
"It is undisputed that defendants denied WD's applications solely because of its ethnic‐slur branding," the court said in a 32-page decision that called the state's action unconstitutional "viewpoint discrimination."
The owners of the Wandering Dago, run at the time by Andrea Loguidice and Brendan Snooks, filed suit in August 2013 against employees and leaders of OGS, including Commissioner RoAnn Destito and Executive Deputy Commissioner Joe Rabito, as well as the New York Racing Association, which ejected the truck from the Saratoga Race Course in July of that year. NYRA, which at the time of the Wandering Dago's ouster was under state control, quietly reached a $68,500 settlement with the truck's owners in January 2015.
While "dago" is generally understood to be a slur on Italians, Loguidice insists it is nothing more than a tribute to her ancestors, laborers who were paid "as the day goes."
A spokeswoman for OGS said the agency was reviewing the decision.
As predicted by plaintiffs' attorney George Carpinello of Boies Schiller Flexner, the Second Circuit's decision was based in large part on the U.S. Supreme Court's June 2017 decision in Matal v. Tam, in which the leader of an Asian-American rock group called The Slants was initially denied the chance to register the band's name with the U.S. Trademark Office due to its ironic use of an offensive epithet.
The top court, however, concluded that the federal office's decision similarly amounted to unconstitutional viewpoint discrimination.
"We thought we had a winner even without the (Matal) decision," said Carpinello on Wednesday. " ... We really feel vindicated."
While the plaintiffs dropped their claim seeking damages from the state, Carpinello said they would seek attorneys' fees from the official defendants.
The Second Circuit reversed a March 2016 decision by U.S. District Judge Mae D'Agostino, who concluded that OGS officials had imposed appropriate limits on speech when they twice rejected the Wandering Dago's application.
"Given the nature of the Summer Outdoor Lunch Program and the fact that it is sponsored and promoted by OGS, it is reasonable for the State to want to avoid the perception that it condones the use of racial epithets," D'Agostino wrote.
Loguidice, who is now the sole operator of the truck, filed a separate lawsuit in late 2014, claiming that she was fired from her job as an attorney for the state Department of Environmental Conservation due to her connection to the truck.
DEC officials dismissed her after it came to light that the truck had been hired by a General Electric contractor to cater an event on GE's Niskayuna campus; agency officials said DEC's work on GE's PCB dredging project on the Hudson should have raised a red flag for Loguidice.
The DEC-Loguidice suit is currently bogged down in legal wrangling about the scope of the questions state attorneys are obligated to answer in depositions.
Carpinello said he didn't know if Loguidice would apply to do business on the Plaza this summer.
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