concurring and dissenting:
I concur with the majority that ILGO’s facial challenge to New York City’s parade-permitting ordinance was precluded by Judge Keenan’s decision denying the 1995 challenge by ILGO and Judge Koeltl’s decision denying the 1996 challenge on the basis of res judicata and collateral estoppel. • •
1. Constitutional Consideration
I dissent from the majority’s holding that the as-applied challenge is not barred. by collateral estoppel. Thé 1995 challenge was factually the same as the 1996 challenge as to application and denial of the parade permit. Judge Keenan’s decision denying the permit at the preliminary injunction stage, relied upon by Judge Koeltl in finding claim preclusion, included the following language:
... the Court finds that the decision to deny the second parade permit [was] content-neutral and narrowly tailored to serve a legitimate concern expressed by those charged with the public safety. The Court also finds that there are more than adequate other means for ILGO to communicate the same message on another day. ILGO has no First Amendment right to carry its message to the same audience that will gather to march in and watch the St. Patrick’s Day Parade.
Judge Keenan, faced with the sixth year that ILGO — from its formation — had sought to parade on the same day, on the same route, and at approximately the same time, very conscientiously considered the importance of First Amendment rights and the consequences of the deprivation of the expressive rights guaranteed by the First Amendment. The walls of Jericho will not fall when the trumpet is played with the same notes and volume again and again. Judge Koeltl’s seventh consideration of the same application concerning the same' parade, on the same day, on the same route and at approximately the same time, was properly dismissed on collateral estoppel and res judicata grounds.
2. Standing — Damages—Mootness
(a) Mootness
Mootness may result from two sources, either in the trial court or in the Court of Appeals. Here, it is my opinion that moot*652ness results from ILGO’s failure to appeal the denial of its motion for. preliminary injunction in the trial court. Judge Koeltl had found that because res judicata and collateral estoppel precluded the constitutional claim on the facts of same parade, same route and an immaterial minor difference in more intrusive time of the parade, the permanent injunction became moot. As this court now considers the claims of ILGO applying res judicata and collateral estoppel, those claims certainly are now moot. Although the district court dismissed the claims under Rule 12(c) of the Federal Rules of Civil Procedure, the hearing on the preliminary injunction met standard' sufficient to provide the facts necessary to join all issues alleged in the pleadings and make them then appealable to this Court.
(b) Standing
ILGO brought this action seeking “compensatory damages to redress the constitutional deprivations it has suffered.” ILGO’s prayer was only: “awarding plaintiff compensatory damages against all defendants, jointly and severally, in an amount....” No claim is made for nominal damages. Moreover, as the trial court relates, “ILGO argues affirmatively in its. brief that it does not claim nominal damages, but that its damages are substantial and predicated upon real and compensable injuries.” It is too late now in this Court “to breathe life into a moribund dispute.” McCabe v. Nassau County Medical Ctr., 453 F.2d 698, 702 (2d Cir.1971). There being no cognizable constitutional claim, there is no need to be concerned about ILGO’s standing to sue on behalf of its members. Moreover, the City has never denied ILGO the right to protest in the proper application of Section 10 — 110 of the City’s Administrative Code, the application of constitutional public safety concerns and reasonable time, place and manner restrictions. ILGO has not alleged that the St. Patrick’s Day Parade is the only method available to it for expression of the Lesbian and Gay philosophy. One hundred to one hundred and fifty large parades occur annually in Manhattan, 15 of which are normally accommodated on Fifth Avenue. All of these, professing some element of First Amendment rights. In this case, the city has committed no violation of the public safety concerns, reasonable time, place or manner required by Section 10-110 by its denial of the parade permit requested by ILGO.
ILGO has no standing to bring this action on behalf of its members because ILGO fails the third prong of the test set forth in Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343-45, 97 S.Ct. 2434, 2441-42, 53 L.Ed.2d 383 (1977). Each member of ILGO will have a different concern for which he or she would claim damages. Nothing in this lawsuit would permit these individuals to prove their individual claim without personal participation in an allegation of an individual denial of a First Amendment right and the damages flowing from a constitutional violation. Neither is present here.
(c) Damages
Since I do hot find any constitutional violation in the denial of the permit to ILGO, there can be no damage, either compensatory or nominal. Damages must be related to and result from a constitutional violation.
ILGO’s claim of damage is also defective on any pleading of causation. What ILGO pleads as damage in paragraph 48 of its complaint does not flow from an inability to parade in the St. Patrick’s Day Parade. The injury claimed is that “Members of ILGO have been subjected to family rejection and public ridicule, have been told they are not Irish, have been arrested and have lost their jobs.” None of these alleged injuries are caused by not being able to parade. Perhaps most significantly, “the exclusion of and related hostility toward ILGO have divided and isolated ILGO from the rest of the Irish Community.” This allegation makes it clear on the face of the complaint it supports mootness in the absence of any constitutional violation — or causation of the claimed damage.
The majority, if I understand its position, would remand even though there is a full record upon which all issues could be decided in the Court of Appeals. The cases cited by the majority in support of a claim for nomi*653nal damages involved violation as the predicate to a ruling that a § 1983 plaintiff could recover damages resulting front the violation. Judge Koeltl had a full hearing and denied the preliminary injunction on the grounds that Section 10-110 of the City Administrative Code was constitutional both facially and as applied.
The fertile minds of competent lawyers can always add nonsequiturs to continue interminably litigation that is claimed has not been decided or has not been decided property-
On the seventh orbit of Section 10-110 of the City Administrative Code by ILGO, this should be what is now the time to lay to rest what in the words of McCabe (supra) has become “moribund.” I would affirm the judgment of the trial court.