Albany

The question of whether the Wandering Dago will find a home on property controlled by the state might end up being settled in federal court.

The owners of the Schenectady-based food truck — as controversial for its name as it is beloved for its pulled-pork sandwiches — filed suit Tuesday against the New York Racing Association and the state Office of General Services. Brandon Snooks and Andrea Loguidice say they were unfairly bounced from a spot at Saratoga Race Course in July, two months after being denied a chance to sell their wares on Empire State Plaza.

The lawsuit, filed in U.S. District Court in Albany, names among its defendants NYRA's new president and CEO, Christopher Kay; OGS Commissioner RoAnn Destito; and Destito's deputy, Joseph Rabito. The suit also names "John Does 1-5" — slots that could end up being occupied by high-ranking but so far anonymous state officials whom the suit describes as the real source of the Wandering Dago's troubles.

Snooks and Loguidice insist they intended the truck's name to be a tribute to the hardworking Italian-Americans of previous generations who toiled as day laborers. A recent online poll they conducted found clear majority support for retaining the name. Their critics, however, see "dago" as an unreconstructed ethnic slur.

The owners are represented by Albany attorney George Carpinello of the high-profile firm Boies, Schiller & Flexner — and yes, he's of Italian descent ("on both sides").

"We live in a society with robust speech," Carpinello said, "and you're going down a slippery slope when you allow public officials to say 'I'm going to ban this because a certain segment of society finds it offensive.'"

Carpinello, a former Albany Law School professor who in 2008 was shortlisted as a candidate to become the state's chief judge, has handled similar cases involving businesses that pushed the boundaries of good taste. He represented a brewer that had run afoul of New York state regulators for marketing Bad Frog Beer, which bore a label showing an amphibian giving a familiar one-fingered salute. A similar case in Massachusetts involved a distributor that was selling Bad Elf Beer and Santa's Butt Winter Porter.

In those cases and many others, Carpinello said, courts have determined that absent an overriding public interest, government officials lack the legal power to ban advertising simply because they find it offensive.

The narrative laid out in the court documents details how OGS officials denied the Wandering Dago's application for a permit to join the caravan of other lunch carts operating around West Capitol Park and on Empire State Plaza during the warm months.

According to an affidavit from Loguidice, OGS officials had agreed to take a late application from the Wandering Dago to take part in its Summer Outdoor Lunch Program, and had said that the truck's anticipated seven-week absence during the Saratoga race meeting wouldn't be a problem.

But in late May, Loguidice was told by OGS attorney William Bruso — also named as a defendant — that the application had been denied, in part because the truck's name had been deemed offensive. OGS spokeswoman Heather Groll subsequently told the website All Over Albany that "the name of the business was found to be an offensive ethnic slur by any standard."

On Tuesday, Groll said that OGS was reviewing the suit, and would not comment on pending litigation.

Two months after OGS' rejection, NYRA officials banished the Wandering Dago from the Saratoga track on the evening of July 19, the first day of the summer meet. According to the suit, NYRA Vice President Stephen Travers, another defendant, told owners that a high-ranking state official had complained to the association about the truck's name.

Travers said that the Wandering Dago would be towed if it wasn't removed before 10 a.m. the following morning.

Just after their ouster, Loguidice told the Times Union the truck's contract for the duration of the racing season required a 30-day written notice of cancellation. The court documents note that the owners had purchased extensive new equipment in preparation for the track.

The suit notes that no concerns over the name were raised during six months of negotiations with NYRA, which manages the racetrack, and with Centerplate, the company that supervises food service at the race course. Indeed, the truck had been listed in a Centerplate press release as "one of the country's top barbecue fusion trucks" only days before being exiled.

NYRA spokesman Eric Wing declined comment.

The suit seeks monetary damages for lost business at the two sites — estimated by court documents at $300,000 at Saratoga and $42,900 for the time it would have spent at the Capitol — as well as punitive damages and attorney's fees, plus an injunction preventing government officials from taking similar action against the Wandering Dago in the future.

Carpinello said that while the Saratoga racing season is almost over and the lunch cart season at the Capitol winds down in a few weeks, the legal action was also meant to send a message to other public officials who might seek to interfere with the Wandering Dago's business. He said the discovery process would include his attempts to find out who the currently unnamed state officials might be.

The attorney said he isn't insulted by the truck's name. "If someone shouted it at me on the street in a menacing way ... I would consider it to be offensive," Carpinello said. "But not in this context."

cseiler@timesunion.com • 518-454-5619 • @CaseySeiler