City of New York v Casbar, Nicobel LLC

[*1] City of New York v Casbar, Nicobel LLC 2009 NY Slip Op 50710(U) [23 Misc 3d 1111(A)] Decided on April 15, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 15, 2009
Supreme Court, Kings County

The City of New York and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, Hon. Robert J. Miller, Plaintiff, Decision

against

Casbar, Nicobel LLC, S.R. CASBAR, INC., RUDOLPH CASSONE, THE LAND AND BUILDING KNOWN AS 117 25th STREET, TAX BLOCK No.644, TAX LOT # 106, County of Kings and State of New York, and "JOHN DOE" and "JANE DOE," fictitious names, true names unknown, the parties intended being any and all persons and/or entities claiming any right, title or interest in the premises which is the subject of this action, Defendant. (s)



7819/09



The plaintiffs are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Teresito v. Maggino, Esq., of counsel,

the defendants are represented by the law offices of William C. McCulloh Esq., by William C. McCulloh, Esq.

Robert J. Miller, J.

In this proceeding brought by the New York City Department of Health and Mental Hygiene (City) pursuant to New York City Administrative Code §7-706 and §7-714, the City moves for a preliminary injunction enjoining the defendants Casbar, Nicobel, LLC., Casbar Inc., and Rudolph Cassone (collectively the Casbar) from permitting the use or occupancy of Casbar as a public nuisance as defined by Section 17-142 of the New York City (Administrative Code) and Section 240-45 of the New York State Penal Law. The alleged activities which constitute the public nuisance are that the Casbar has allowed acts which constitute a danger and detriment to public health to take place at the Casbar including sexual activities consisting of fellatio, vaginal intercourse and anal intercourse as prohibited by the New York State Sanitary Code Section 24-2.2 (10 NY CRR 24-2.2).

On April 1, 2009, the court signed an ex parte closing order in light of the serious nature of the allegations set forth in three affidavits of New York City Department of Health undercover inspectors and the potential threat to public health outlined in the affidavit of Dr. Isaac Weisfuse, Deputy Commission of the New York Department of Health and Mental Hygiene (DOHMH).

The Wesifuse affidavit outlined the serious health threat posed by the spread of the HIV virus as the cause of AIDS. The affidavit recited the sober statistics of over 159,00 AIDS cases in New York City since the beginning of the AIDS epidemic with over 60,000 deaths. The crisis [*2]continues with over 300 new AIDS cases diagnosed each month and 21 deaths a week in New York City.

The affidavits of the undercover agents detailed over 150 incidents of prohibited sexual activity to wit -fellatio, vaginal intercourse and anal intercourse.The affidavits describe the Casbar as a large club including two floors with mattresses, couches and booths where the sexual activity occurred.

The Casbar website self describes it as "Brooklyn's newest and cleanest swing club... your next stop for hot and sexy swinging . We have over 5,000 square feet of plush and luxurious surroundings...

Here you will discover new levels of passion with glory holes, lockup/ tie up cage, voyeur rooms, and group areas. Whatever your desire, at the CASBAR , you can be assured of a comfortable and intimate

settings... At CASBAR, all your erotic fantasies and pleasures can be fulfilled... Cum join us."

Pursuant to the April 1, 2009 closing order, the Casbar was closed on April 2, 2009. The closing order had scheduled an April 6, 2009 hearing of the City's request for a preliminary injunction and continuation of the closing order. On April 6, 2009, the parties appeared. The City was ready to proceed but the defendants requested an adjournment. The closing order remained in effect and a hearing was scheduled and held on April 13, 2009.

At the hearing, three undercover agents of the DOHMH testified. Their testimony confirmed their earlier affidavits. The undercover agents each testified as to having observed numerous instances of patrons engaging in sexual activities including fellatio, vaginal and anal intercourse. There was no attempt by club "monitors" to stop the activities. The testimony and the affidavits established that the Casbar is an establishment as defined in 10 NYCRR Section 24-2.1 which was in violation of 10 NYCRR Section 24-2.2.

The record further established that the subject premises and the sexual activities observed at the Casbar constitute a public nuisance under New York City Administrative code § 7-701 and § 7-703.

In response, the defendants called two witnesses. The first was the "boothman", David Grcaves who testified that he was an employee of the Casbar, that he collected the "donation" entry fee and that he stayed in his booth except for a single visit each night into the club area.

The second witness was Theador Alatasas, who was the president of defendant Nicobel, LLC., the property owner. He testified that his lease barred "illegal activities" and that he had never been in the Casbar during business hours. The lease was not introduced into evidence.

Neither witness had personal knowledge of whether the alleged activities occurred in the Casbar. As such, the record establishes a continued pattern of violation of law by the defendants which was not disputed by any credible witness.

It is clear that where, as here, there is repeated illegal activities at an establishment and that such conduct violates a statutory scheme designed to protect the public health, that the conduct constitutes a

violation and may be considered a public nuisance subject to the Administrative Code. (City of New York v. Cincotta, 133 AD2d 244 [2d Dept 1987]; City of New York v 777-779 Eight Ave. Corp., 226 AD2d 651 [1st Dept, 1990]; City of New York v Dana, 165 Misc 2d 409 [NY County 1995]). [*3]

In these circumstances, the City is entitled to injunctive relief since there is a prima facie showing that City laws are being violated. The City is not required to meet the traditional three-pronged test for injunctive relief. Such relief may be granted pendente lite without a demonstration of special damages or injury to the public. The proof of the violation alone is sufficient grounds for the issuance of injunctive relief. People ex rel. Bennett v Lamann, 277 NY 368, [1938]; City of New York v Bilynn, 11 AD2d 511 [1st Dept 1986]; City of New York v Castro, 143 Misc 2 76, Aff'd 559 NYS2d 508 {160 AD2d 651} [1st Dept 1990]; Incorporated Village of Freeport v Jefferson Indoor Marina, Inc., 162 AD2d 434, [2d Dept 1990]). There is substantial undisputed evidence that the defendants have engaged in illegal activities and therefore the plaintiffs are entitled to a preliminary injunction.

Even if the Court were to apply the traditional three-pronged test for injunctive relief, the evidence submitted in the record and at the hearing is sufficient to entitle the City to a preliminary injunction under the more rigorous standard required under CPLR Section 6301. CPLR § 6301 provides that a preliminary injunction may be granted where the plaintiff would be entitled to a judgment restraining the defendant from the commission or continuance of an act that, if continued during the pendency of the action, would produce injury to plaintiff.

In order to obtain preliminary relief under CPLR § 6301, the City must demonstrate (1) a likelihood of success on the merits; (2) irreparable injury absent the granting of a preliminary injunction; and (3) that the balancing of the equities favors the City. Grant Co. V Srogi, 52 NY2d 496 [1981]; Bashien v Landau, 96 AD2d 479 [1st Dept 1983]). The proof submitted establishes that the granting of relief pendente lite under the traditional three-pronged test is warranted. The City has met its burden by uncontroverted testimony that it will likely prevail on the merits. The Wesifuse affidavit clearly sets forth irreparable harm because of the serious health risks caused by the activities at the Casbar. Finally, the equities clearly favor the City's interest in protecting the health of the public as opposed to defendants interest in profiting from illegal activity.

Accordingly, the Court grants the City's motion for a preliminary injunction. The Court is issuing a separate order herewith.

_______________________

Robert J. Miller

J.S.C.

April 15, 2009