City of New York v Smart Apts. LLC

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City of New York v Smart Apts. LLC 2013 NY Slip Op 30344(U) February 13, 2013 Sup Ct, New York County Docket Number: 402255/12 Judge: Arthur F. Engoron Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. - SCANNED ON 211512013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY -d PART PRESENT: 54 Justice -vMOTION SEQ. NO. e, )/ MOTION CAI.. NO. The following papers, numbered 1 to - were read on this motion tO/fOr I Dated: J,S. C. a HQN: ~~~~~~~ Fr ~~~~~~~ Check one: FINAL DISPOSITION W O N - F I N A L DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE a SUBMIT ORDER/ JUDG. a SETTLE ORDER/ JUDG. [* 2] Dcfendaiit s. Arthur F. Engoron, Justice In compliance with CPLR 22 19(a), this Court states that the following papers, numbered 1 to 6, werc used on this motion by plaintiff for a preliminary injunction and cross-n~otion defendants to by dismiss: Papers Nuinbcred: Moving Papers (Incl. Exhs. 1-24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Verified First Aincnded Complaint (dated 11/28/12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amended Notice of Cross-Motion and Supporting Papers (Incl, 12/11/12 Affirm. and Exhs.) . . . . . . Transcript of 12/12/12 Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Opposition to Cross-Motion and Reply in Support of Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reply in Support of Cross-Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 3 4 5 G Upon the foregoing papers, the instant motion is granted and the instant cross-motion is dcnied. Procedural Posture The complaint scts forth causes of action for deceptive trade practiccs under the consumer protection law and for public nuisance under the coiimon law. Plaintiff, The City olNcw York, now iiiovcs, pursuant to New Yorlc City hdmin. Code 5 20-703(d), CPLR 6301, and CPLR 63 1 I , to enjoin defendants, esscntially, and simply put. (a) from advertising, contracting lor, and/or allowing the transient occupancy of New York City Class A Multiple Dwellings, or any other buildings as to which transient occupancy is illegal; (13) to remow any such advertising from a11 Iiileriict websi tes and othcr media, wlicther or not directly controllcd or iiiaiiitained by defendants; and (c) from disposing or modifying the rccords maintained and uscd in the management and opcration of such propcrties. Thc above-namcd defendants now cross-movc, pursuant to CPLR 321 l(a)(7) and the doctriiie of selective enforcement, to dismiss. Pagc 1 of 8 [* 3] Plaintiffs C l a i m 1 According to plaintifr (iIartmian Af iirni. 1 59), wliosc factual allcgations arc cxcecdingly wclldocumented and not signiiicantly denied by defendants, Dcfendanls olxrnlc a multi-ticrcd business, advertising, booking, operating arid Iiiaiiitaining transiciit accommodations for short-tcnn stays of lcss than 30-days in as many as 50 or iiiorc Class A [&, non-transient] multiplc dwellings in New York City, as well as in otlicr buildings for which the legally pcrniissiblc occupancy prohibits transient occupa~cy.~ aencrallv, Bigolslci Moving Affid. The business includes (or, at least included) a See website ( smartapartmciits.com ), world-wide advertisements, onliiie photographs of apartments, reservation and bookiiig records, and cvcn laundry services for thc subjcct apartmcnts. Thc advei-tising (Hartzman touts tlic short stays, but fails to mention tlie illegality and fire safety hazards 86-92), iiiLich lcss tlic iiuiiicrous fire safcty code violation notices (Hartzman Moving Affirm. Moving Affirm. 11 80-83; see ,generally, Santiago Moving Affid.). According to plaintiff (and not 11 denied by dcfcndants), defciidants Smart Apartmcnts and I oshi nominally run thc busiiicss, and defendant C h i is a principal of them and is actively cngagcd in thcir maiiagcmcnt. (m) Plaintiff claims that defendants placeiiient of tourists and other visi tors to Ncw Yorlc i n rcsideiitial apartments for transient stays of less than 30 days is illegal, unsafc, a dcccptive business practice, a public nuisance, and annoys the heck out of thc non-transient residents ofthe building. In particular, plaintiff claims that defendants business practices are illegal bccause they violate Chapter 225 of the Laws of New York of2010, codified in Multiple Dwelling Law ( h ID1, ) 5 4.a.8(a), New York City Housing Maintenance Code ( NYCI-IMC ) 0 27-2004.a.S.(a), and New York City Building Code ( NYCBC ) 4 3 10.1.2 (sce generally, Colgate Moving Affid.); they are unsafe because the transient occupants awe denied the fire safety dcvices and protections, such as fire extinguishers, sprinklers, alarms, evacuation plans, etc. required of transient hotels; they are a deceptive business practicc because defendants customcrs are not told that their transient occupancy is illegal and unsafe; they constitute a public nuisance because they are depleting the City s stock of affordable, long-term housing and create sccuriiy risks and quality-of-life problems in the subject buildings; and they bother the non-transient residents of the buildings because the transient occupants host loud, late night parties; vomit, dump garbagc, and smoke i n the hallways; damage the elevators with all those bulky suitcases; and gencrally do not conduct tliemselves in the civilized, genteel manlier of tlie locals (see, ex., McGee Moving Affid. fi 12-13). Plaintiff claiins that defendants arc vjolnting (1) Chapter 225 oflhe Laws ofNew Yorlc of2010, effective May 1, 201 1, which anicnded thc MDL, NYCHMC, and the NYCBBC to provide that stays of less than 30 days in a residential building are illegal (indeed, a inisdemeanor undcr the MDL); (2) NYC Admin. Code ( NYCAC ) (i 28-1 18, which prohibits changing the USC of a building, such as from long-term to transient use, even in one apartment iii a building, without obtaining a building permit and new certificate of occupancy; and ( 3 ) NYCAC (j 20-700, which prohibits deceptive trade practices, including ($ 20-701) any f-alse . . . or misleading . , . statement made in connection with tlic .. . leasc [or] rental . . . of coiisuiiier goods or services . . , which has the capacity, tendelicy or effect o f deceiving or misleading consumers.) Pursuant to tj 20-701(c), L ~ o i i ~ ~goods or services are those ~iner which are primarily for personal, household or family purposes. Pursuant to tj 20-7 1O(d), a consumer ) is a purchaser or lessee or prospcctive purchaser or lessce o f . . , consuriicr goods or services (which seems rather obvious). Pursuant to Q 20-703(d), the Supreme Court may enjoin violations of @ 20-700; and, pursuant to $ 20-703(e), that is regardless of wlietlier consuiners are Page 2 of 8 [* 4] being or wcre actually injured. I:urthennorc, a transicilt resident is a cons~iii~cr CoiIsuiilcr goods oF and/or scrviccs. See 23 Realty Assocs. v I cigiman, 21; AD2d 306, 308 ( I h t Dcpt 199.5) (Consumor Protection 1,aw covcrs residential leases, which are, after all, a purchasc o f scrviccs l?om the landlord of (and, by extension, his [sic]agent.) ). Sufficc it to say that the p~-ovision Iransicnt rcsidcntial rcntals is covered by Consumcr Protection Law 9 20-700. Legal and Safe Whether or not, in our cynical agc, most people would consider engaging in illcgal activity as a plus, minus, or ncutral, thcy havc thc right to know whether it is or is not. As plaintiff notes (Hartzinan Moving Affirm. 71 39,4 1-42), courts and coinmissions have held that a merchant impliedly reprcsents 1 that its products and services are legal, Beiiik v Hatcher, 750 AD2d 10, 25 (Md ZOOO), and safe, a, Matter of Intl. Jlarvcstcr Co., 104 FTC 949, 1984 F TC LEXIS 2 at 241-42 (1 984), and if they are not, the merchant has engaged in a dcceptive practice, a, Federal Trade Coinmn. v World Media Brokers, 415 F3d 758 (2005) (illegal); Mattcr of Fimie hit]., Inc., 107 FTC 3 13 (1986), affcl817 F2d 102 (4 Cir 1987) (unsafe). Iiinlrcepcrs have long, and understandably, been Iicld responsible for the fire safcty o f their guests, s, Friedman v Shindler s Prairie I-Ionsc, Inc., 224 AD 232 (3d I k p t 1928), and for compliance with the strict firc safety requirements to which they arc subj cct, Rernucci v Marfrc Holding Corp., 171 Misc 997 (Sup Ct, NY County 1939). The New York City Fire and Building Codes require transient rcsideixes to obscrve significantly higher firc safcty standards than non-transicnt residences, see renerally, Jensen Moving Affidavit, 1 because, thc theory goes (Hartzinan Moving Aflirm. 1 48), the occupants of the foormcr are less familiar than the latter with their surroundings, with lire evacuation proccdures, etc. Whether this is justified, as plaintiff and this Court believc, or faintly ridiculous, as defendants argue, il is the law. These higher safety standards include fire extiiiguishcrs, sprinklcrs, alarms, evacuation plans, diagrams, fire safety directors, fire brigades, command centers, training, tlie whole nine yards. Plaintiff cogently argues (Hartzman Moving Affirm. 1ir[ 53-54) that such procedures and paraphernalia save lives. Public Nuisances New York State takes mi extremcly broad view of what constitutes a public nuisance: It consists of conduct or oniissions which offend, interferc with or cause damage to the public in the exercise of-rights coninion to all, in a manlier such as to offcnd public morals, interfere with the use by tlie public of a public place or endangcr or injure the property, health, safety or comfort of a considerable number of persons. Couart Jtidus. v Consolidated Edison Co., 41 NY2d 564, 568 (1977) (citations omiltcd). Tliis definition certainly covers placing unwary tourists in fire-traps and subjecting them to thc possibility of serious injury or death (tragic hotel fircs, not to inention garden-variely apartment IIOLISC conflagrations, are a staple of front-page news). See generally, NYCHMC 5 27-2 1 14(a) (defining to *Lnuisance include ( [wlhatcver is dangerous to liuman life ); NYCAC $ 15-227 ( Any building . . . perilous to life , . . in case of fire . . . by reason o f . . . its use [or] dcficiencies in tire alarm, fire extinguishing or fire escape equipment . .. is a public nuisance within the iiicaiiing of the codc and tlic Page 3 of 8 [* 5] penal law. ); NYCI3C 5 28-207.3 (buildings unsafe duc to iirc safety dcficicncics may bc declal-cd public nuisances ). Furtheriiiore, municipalities may bring actions to abate public nuisances. City o f Ncw Yol-k v SmokesSsirits.com, Tiic., 12 NY3d 6 16, 626 (ZOOC)), and may be awardcd iiijuiictivc I-elicflhel-cin, C i t v of Rochester v Premises 1,ocatcd at 10-12 S. Washin~ton 180 Misc 2d 17 (Sup Ct, Monroe County St., 1998). Defendants Defenses According to an old legal adage, with many variations, lftlie law is against you, pound thc facts; if the facts arc against you, pound thc law; if they both are against you, pound the lable. I-Icrc, plainti I I has defendants dead to rights. 111response to plaintift s overwhelming avalanche of- evidence that defendants acts violate thc Consumer Protection Law and constitute a public nuisance, defendants have opted to pound the table (they do not claim that they arc not doing what plaintiff alleges, and they do no more than quibble with plaintiff s interpretation of the law). Tkcir main contentions (this Court has considercd all the others and found them unavailing) are (1) that some of their operations are actually legal; (2) that they are changing their ways, laying the groundwork to be the future leader of the 30-day and over New York City apartment rental b~siiicss ; that plaintiff is using strong-arm, (3) Police-Stale, stop-at-nothing tactics (Cross-Moving Memo of Law, at 3-4) to rid New York City of Smart Apartments; (4) that they are not committing a public nuisance; ( 5 ) that dcferidaiit Robcrt Chan s acts are sliieldcd by the corporate veil; (6) that only the Commissioner of Consuincr Protection can bring an action for a violation of the Coiisuiner Protection Law; and (7) that plaintii f is ciigagcd in selective enforcement, inasmuch as an cnterprise called Airbnb (probably denoting air (travel) bed and breakfast ) operates on a much larger scale and heretoforc has not becn targeted because New York City Mayor Michael Bloomberg owns 88% ofB1ooinberg LP, which is a niajor financial investor in the venture capital fund Andreesscn Horowjtz, which, in turn, has an investment of approximately one hundred millim dollars in Airbnb, and that while Airbiib niarkcts its vast inventory of illegal short term rentals, the Mayor s Office is using all of its powcr to try and bully Smart Apartments occupants and coinplctely eliminate it as a possible coiiipetj tor (Cross-Moving Memo of Law at 6). Contentions 1-3 Contentions (1) to (3) are simply irrelevant. Contention 4 Contention (4), that defendants are iiot coininitling a public nuisance, is belied by their own formulation of tlic law (Cross-Moving Mcmo at 17): A public nuisancc consists of conduct or omissions which . . . cndanger . .. the .. .safety or comfort . . . o f a considerable number of persons at one time. The public clement of plaintill s nuisance cause of aclion is satisfied by the fire safctv hazards to defendants customers and the loss of comfort sustained by the noli-transient tciiants of buildings used by dcfendants (both groups numbering well into the thousands). Public nuisances should not be able to hide behind private property. Defcndants argue (Rcply Affirm. I[ 41) that a public nuisance is an unreasonable intcrferencc with a right coniinon to the gencral public. In this Court s view, the general public has a right iiot to be sold housing accommodations that are dangerous and illegal. Although defendants harp on the idea that the apartments at issuc are private property Page 4 of 8 [* 6] (G, Reply Affirm. 1\11 43, 46, 47) they arc available, indecd advertiscd to, tlie gcncral public, niorc 40, likc liotcl moiiis than privatc apartments. Coiitentioii 5 Contention (3, plaintiff cannot picrce the dcfendants (or defcndant Smart Apartmcnt s, as Toslii that appcars to be out of busincss) corporate veils, riiisscs the point. As this Court sees thc maltcr, plaintiff is not scelcing to picrce any corporate vcil; rather, it is seeking to hold defendant Chaii accountable [or his own actions. Corporations can only act through their employccs; but that docs not nicaii that any act done in furthcraiice of tlic corporation s busiiicss is shiclded by thc corporatc veil, which limits personal financial liability for a corporation s financial debts. For cxamplc, an einploycc who dunips a corporation s toxic waste is still liable for violating anti-pollution laws. To takc an cxtrcmc cxmiplc, an employee wlio murders tlic principal of a corporation s competitor, even if only donc to further tlic corporation s business (and not out of personal animosity), is still guilty of niurder. Plaintif[ allcgcs, and Chan docs not deny, that he [sic]is a principal of Sniarl Apartments and is activcly engagcd in its managcnient. Thus, lie is clearly subjcct to an injuiiction aimed at preventing Smart Apartments from violating the law and is not cntitled to dismissal of the complaint as against him. Scc generally, FTC v World Media Brokers, 41 5 F3d 758, 764 (7 Cir 2005) (individuals subject to liability for corporate acts that they %ad autliority to control, which may be demonstratcd by active participation in the corporate affairs, including assuiiiing duties as a corporate orficcr ). Contention 6 Contention (6) scctiis to have bccti abandoned. In any evctit, in Collier v Home Plus Assocs., Ltd., 18 Misc 3d 112 1A (SLIP Kings County 2007) (Consuimcr 1)rotection l,aw docs not crcatc privatc riglit Ct, of action), the court stated that a claim undcr [the Consumer Protection Law] limy only bc brought by the Commissioner of Consumer Affairs, Howcver, as argued by plaintiff (Rcply Afliriiiatioii 7116-8), this dictum is simply inaccurate; NYC Admin Code 5 20-703(d) expressly authorizes tlie City to apply for injunctive reliec and the City is thc, or at least a, propcr plaintiff here. Contention 7 No recitation of the doctrine of selectivc enforcement could compare with the cloquent, authoritativc disquisition by Judge Fuchsberg in 303 West 42 dSt. CoriD. v Klein, 46 NY2d 686,693-96 (1979) (landlord of adult entertainment establishment entitled to hearing on claim of content-based discrimination in application of fire-safety rcgulations), which deserves to be quoted, citations omittcd, empliasis addcd, at length lierc. The underlying right asscrted by petitioner is to equal protection of the laws as guaranteed by tlie 14th Amendment and thc New York State Constitution (art I, 8 1 l), one of the governing principles of our society. As enunciated more than a cctitury ago in Yick Wo v Hopkins (1 18 US 356, 373-374), it forbids a public authority from applying or enforcing an admittedly valid law with an evil eye aiid an uncqual hand, so as practically to makc unjust and illegal discriminations between pcrsons i n similar circuinstaiiccs . We have rccognizcd tlie principle in cases involving tlic ciiforccmcnt of thc criminal laws and the administrative rcgulation of public health, safety and morals. To invoke the right successfully, however, both tlic iineqiial hand and the evil cvc requirements must be proven40 wit, tliere must be not onlv a showing that Page 5 of 8 [* 7] the law was not applied to others similarly situated but also that tlic sclectivc application of the law was deliberately based upon an iniwriuissible staiidard such as race, relicion or soiiic other arbitrary classification. In par.ticular, in our Statc, the claim of unequal protcction is trcatcd not as an affirmativc dcfcnsc to criminal prosccutioii or thc imposition of a rcgulatory sanction but rathcr as a inotion to dismiss or quash the official action. And, in its considcration of the merits of such a claim, as it would on a suppression motion, a court iiiust conduct a hearing if, on the papers before it, a strong sliowinz of selcctivc cnforccmcnt, invidiously mo tivatcd. amears. The theory is that conscious discrimination by public authoritics taints thc intcgiity of the Icgal process to the degrec that no court should lend itself to adjudicate the mcrits of the eiiforccmcnt action. This, evcn tho~ighthc party raising thc uiiequnl protcction claim may well have been guilty of violating the law. The burden of proving a claim of discriiiiiiiatory enforcement is a weighty one. Common sciise and public imlicy dictate that it be so. The presumption is that thc enforceinent of laws is undertaken in good faith and without discrimination. Morcovel; latitude must be accordcd authorities charged with making decisions related to legitimate law enforcement interests, at times permitting them to proceed with an unequal hand. For examnle. it has bcen held that, in order to bring an appropriate case to test a new regulation or stalute, or bccause ol liinited manpower [sic]or othcr resourcc inadequacies, or for thc purpose o f deterring other potential transgressors, certain violators may be selected fbr prosecution out of thc class of all ltnown violators. Such an enforcement strategy may also permissibly bc directed at only serious violations or those occurring in a geographic area where the probability or rate of violations is high. The reasoning goes that these instances of legitimate law enforcemcnt should not be liampcrcd bv requiring that a hearing bc held eveiy tinic otic subiect to a regulatory or criminal penalty feels hc has been unfairly singled out. A mere showing of selective enibrccment is, therefore, not enough. As indicatcd, the disparate impact must be shown as well to have been the woduct of aii evil eye . When officials acknowledge uneven enforceinent against a class that has been sclccted lor somc reason apart from effective regulation, an impermissible aiiiiiius has been shown. Ordinarily, however, a strong inference of illicit inotivc will be all that can be cxpecied because admission of intentional discrimination is likely to be rare; law enforcement officials are unlikely to avow that their intent was to practice constitutionally proscribed discrimination. Proof of intent nevertheless iiiay appear from a convincing showing of a grossly disproportionate incidencc of iionenforceinent against others similarly situated in all relevant respects save for that which furnishes the basis of the claimed discrimination. For history teaches that it is by no means to bc assumed that motive and disproportionality have to be discrete. The more convincing is the demonstration ofthe Page 6 of 8 [* 8] unequal hatid --the grosscr the disparity of cnforcemcnt and thc grcatcr tlic similarity between tliose prosccutcd aiid those not prosecutcd--the stronger wi II be the in fcrcnce ol illicit motive, since conscious discrimiliation may then stand out as the oiily rcasonable explanation for the pattern of enforcement. Ncvcrtheless, as a practical matter, difficulties i n obtaining detailed knocvledgc o r uiiprosecutcd violators in order to meet the burden of demonstrating similarity are likely to be great. Thcrcfore, because the imporlance of the right to be frcc from iiiiperiiiissible selective enforcement inust bc of inore than theoretical valuc, the bnrdcn of demonstrating a violation, albeit heavy, must not be so hcavy as to prcclude any realistic opportunity for success. Latitudc should be allowed in this complex area of proof. Coiiscquently, the threshold showing needed to makc out ZI colorablc claim must mediate between our rcluctaiice to impugn legitimate law enfo~-ceiiicnt mcthods and our dcsire lo saf cguard constitutional rights. To establish enough of a casc to trimcr an evidentiary licaring as of right, a pctitioner must show, on the strciigfli of sworn affidavits aiid other proof supplying factual detail, that lie is more likely than not to succeed on the merits. In formulating this test we draw rough guidance from the principlcs governing the issuance of a prcliminary injunction, since, in cssence, the relief sought in pctitioiier s claim will enjoin the authorities froiii enforcing the comniissioncr s order against it. Only the ineaningful showing to which wc have alluded will enable a court to infer thc reasonable probability olsuccess. The interdcpcndcnce of evidciice relating to uneven enforcement and motivation, on which we have already commented, is a factor which, of course, is to be considered wlicn determining whether this standard has been met. After carcful considcration of the multitudiiious facts of this case and the multifarious factors to bc considered, this Court finds that defendants have not demonstrated entitlcmeiit to a hcariiig on selective enforcement. First, and perhaps forcmost, defendants are not actually claiming, or could not plausibly claim, selective enforcement ; rather, what they arc rcally claiming is sciective nom enforcement, that is, as against Airbnb. Selcctive non-enforcement may raisc criminal law or political issues, but this Court is not aware of any legal issucs it raises. Second, from its origins in Yick Wo v Hopkins (supra) to the language in 303 West (supra),the focus of the selectivc enforcement doctrine is unlawful, invidious discrimination. Here, dcfendants have not claimed discrimination bascd on racc, religion or soinc other arbitrary classification. Nor can this Court imagine Mayor Bloomberg, who doubtless has other political, legal, and economic matters on his mind, casting an cvil cyc against one of various competitors in the illegal market for transient occupancies in non-transicnt buildings because of an indetcrtninate but attenuated investment (alleged in an unsworn ineinorandum of law). Finally, plaintiffs explanation of how def eiidants were clioscn as the test case of the ncw law (Reply Affirm. fly 42-55), is compelling and convincing, and evinces a ginilet eye, not an evil cyc. I hus, this Court does not believe that it i s lending itself to a tainted legal process ; rathcr, it bclicvcs that it is lending itself to a well-thought-out attempt to quash illegal activity. Page 7 of 8 [* 9] In sum, dcfcndants havc failed to niakc tlie strong showing of solectivc cnt orccmcnt, invidiously motivated, that 303 West (supra) rcquircs lor a hearing to bc niandaled (asidc from thc h c t that the delay a Ilearing would cntail could jeopardizc the lives of transient rcsidcnts of iion-transicnt buildings). In j uiictivc I< el ie C The New York standard for granting a preliniinary iiijunctioii is well cstablishcd: a movant must show (1) the likelihood of success on the merits; (2) irreparable injury absent the granting of a prcliminary injunction; and (3) a balancing of the cquities that favors the movant s position. Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 (1990); W.T. Grant Co. v Srogi, 52 NY2d 496, 517 (1981). Plaiiitiffhcre satisfies this strict gcncral standard; but the standard in this particular case is much looser. [I] rreparab I c i njury is presumed from tli c continuing ex i s1eiicc of an unrcni cd ied pub I i c n LIi saiicc. City ofNew York v 330 Cont. I,T,C, 60 AD3d 226, 230 (1 l k p t 2009). In an analogous context, tlie First Dcpartnient stated as follows: A municipality has authority to obtain temporary restraining ordcrs strictly enforcing its zoning ordinanccs. The three-prongcd test for injunctive relief docs not apply; no special daiiiagc or injury to the public need be allegcd; and coniniission of the prohibited act is sufficient to sustain the iniunction. City of New York v Hilyiin Realty Corn., 1 18 AD2d 5 1 1, 5 13 (1 986) (emphasis addcd). Again, even using the strict general test, placing unsuspecting tourists in ilkgal, dangerous accommodations constitutes irreparable injury, cspecially if there is a tragic h e ; and the equities lie in favor of shutting down an illegal, unsafe, dcceptive business, rathcr than in allowing said business to continue to operate (to defcndants presumed finailcia1 advantage). Defendants request to havc the City post a bond pursuant to CPLR 63 I2 is denicd pursuant to CPLR 2512, Conclusion and Disposition For the rcasons set forth herein, the cross-niotion is deiiicd, the niotion is granted; and def endants and their employees, agents ctc. are hercby preliminarily ciijoined (a) from advertising, contracting far, and/or allowing the transient occupancy, k, than 30 days, ofNcw York City Class A Multiplc lcss Dwellings, or any other buildings as to which transient occupancy is illegal; (b) from advcrlising such and to remove whatever such occupancies on any and all Internet websites and other in ontrolled or maintained by defendants; advertising currently is on those sites, whcther or not dir d opcratc such - - .... * . Page 8 of 8

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