City of New York v Tominovic

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City of New York v Tominovic 2020 NY Slip Op 31656(U) January 21, 2020 Supreme Court, Queens County Docket Number: 710662/19 Judge: Kevin J. Kerrigan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] QUEENS COUNTY CLERK 01/27/2020 11:39 AM NYSCEF DOC. NO. 171 INDEX NO. 710662/2019 RECEIVED NYSCEF: 01/27/2020 Short Forrn Order NE W YORK SUPREME COURT - QU EENS COUNTY Present : Justice HONORABLE KEVIN J. KERRIGAN x The City of New York, Part JJl INDEX N0. 7 10662119 Plai ntiffs, MOTION SEQ. NO. 2 - aga inst Elvis Tominovic, Romina Tominovic, Loreta Tominovic. Franko Tominovic, Sanj a(a/k/a Sanya) Colic. Suzana Colic. Dragan Mavra, Neo Panayiotou. Ress Services Inc .. 3 1-27 14 Street Realty LLC. 47- 15 28 Avenue Realty LLC. 47-15 28 Avenue Rea lty LLC. lstra Jazz Inc .. R&S Living Inc .. and .. John Doe·· and "Jane Doe.. et.al.. Defendants. MOTION DATE: I 1/25/19 FILED JAN 2 7 2020 COUNTY CLERK QUEENS COUNTY x The fo llowing papers EF numbered below read on this motion by defend ant Elvis Tominovic and related parties for an order qu ashin g a subpoena duces tecum directed to nonparty Airbnb Papers Numbered Notice of Motion - Affi davits - Exhibits ..... ...................................... .. Answering Affidavits - Exhibits ........................................................ .. Reply Affidavits ........ .. ................ ... ................................. .... ..... .. ..... ... .. 143- 148 150-1 54 169 Upon the foregoing papers. it is ordered that the motion is granted without prejudice to the service of another subpoena proper in scope and in form. 1 of 5 [*FILED: 2] QUEENS COUNTY CLERK 01/27/2020 11:39 AM NYSCEF DOC. NO. 171 INDEX NO. 710662/2019 RECEIVED NYSCEF: 01/27/2020 I. The Plaintiff City. Allegation The plaintiff city allege the fo llowing: Beginning in 20 15 or earli er. the eight individual and fi ve corporate de fendant have advertised about and rented accommodations for illegal. hort-term periods ( less than thirty days ). The defendants have conducted their illegal acti vities in 36 bui lding . 25 o r which are multiple dwe lli ngs. The defendants have created 28 separate Airbnb host account . have accepted over 20.000 illegal hort-term rental reservati ons. and have generated over $5.000.000 in revenue. From 20 15 through 20 19. the defend ant advertised illegal short-term renta ls through approx imately 2 11 Airbnb Ii ting . and these advertisement di close neither the illegality or the e tran ient accommodations nor thei r afet hazard . These advcrti ements make the accommodation eem de irable. and they do not di clo e that hundred of review from gue t complain about poor or hostile communicati on with th e de fend ants. a lack of hea t and hot water. unc leanliness. poor maintenance. and overcrowded and unsafe situation . The advertisements do not menti on that the dctcnd ants have charged as much a $95 in clean ing fees. Despite the city's enfo rcement efforts. the defendant ' illegal hort-term rent al tran action through Airbnb have increa cd significantly over time. The New York City Department of Building (DOB) and th e cw York City Fire Department (FDNY) have i ued dozen or violati on notice and admi ni trative order . including .... DOB peremptory vacate order on three of the building operated by the defendant . None or the twe l e ubject building u ed by the defendant for illegal short-term rental have required safet feature for hort -term rentals uch as fire alanns. automatic prinklers, and two mea ns or fire-proof egres on each fl oor. Despite 59 notices or violation and I I illegal tran ient adve rti ing summ on e , the city has fa iled to put a top to the defendant · illegal activity. Moreover. the illegal rentals have created problem for perm anent residents. and ince 20 15 DOB ha received approximately 3 1 citizen complaint of illegal transient use of twelve building operated by th e defend ants. 11 . The Complaint The first cau e of action is for iolation of the New York ity Consumer Protection La\ [Administrat i e Code of the City of New York §20-700 ct cq]. The ccond cau c of act ion i for violation of Multiple Dwelling La\\ §§4(8)(a) and 12 1. The third cau e of action i for an injunction pur uant to Genera l City La\ 920(22). The fourt h cause of act ion i for an injunction to prohibit a public nuisance. 2 2 of 5 [*FILED: 3] QUEENS COUNTY CLERK 01/27/2020 11:39 AM NYSCEF DOC. NO. 171 INDEX NO. 710662/2019 RECEIVED NYSCEF: 01/27/2020 III. The Challenged Subpoena The plain ti ff issued it fir t ubpoena to Airbnb on February 7, 20 19. and it concerned ho ts and/or building that the plaintiff identified as being within the City of Nc\v York. Airbnb complied \ ith the . ubpoena, about who e i suance the defendants were un aware. On Jul y 2, 2019 Airbnb ent a cease and desist letter to 58 /\irbnb hosts and disabled all of their accounts and listings for allegedly violating the company's terms o r servi ce. The plaintiff subsequentl y i sued a subpoena duces tecum to /\irbnb dated /\ugu t 8. 20 19. Defendant El i Tomi no ic and related partie ( collccti ely the Tominovic defendants) object to the cope of the subpoena on the ground that the whi le the plaintiff cau e of action concern ac ti itie occurring within the City of Ne\ York. the subpoena demands the production of document without regard to \ here the ho ts and Ii ting are located. For example. paragraph 2 of Part I demands record pertaining to ..all information upplied in connection with the creation or maintenance of each user identity. including but not limited to**** country. market, nati ve currency***." Paragraph 5 demands records related to cachiAirbnb reservati on. including the country. Paragraph 7 of Pan II demands records about ··all information suppli ed in connection with the creati on or maintenance of each u er identi ty, including ** country, market, native currency***:· IV. Di cus ion CPLR 3 10 1. ··Scope of di clo ure:· pro ides in rele ant part : ·'(a) encrall . There hall be full di clo ure of all matter material and nece ary in the pro ecution or defense of an acti on. rcgardle of the burden of proof. b : ***(4) any other per on. upon notice stating the circum lance or reason such di closure is sought or required." (See, TD Bank, NA . v. 126 Spruce St., l lC 143 AD3d 885 [2"d Dept. 20 16]. ) CPLR ~ 2304. ·'Motion to quash, fix conditions or modify," prov ides in relevant part : .. A motion to qua h. fi x condition or modify a subpoena shall be made promptly in th e court in which the ubpoena i returnable.·· (See. Klein Varble & Associates. P.C. v. DeCrescenzo. 11 9 J\D3d 655 [2"J Dept 20 14].) ·'A motion to qua h or vacate, of cour e. is the proper and exclu ive vehicle to challenge the validit of a subpoena or the juri diction of the i uing authority *** :·(Brunswick Hosp. enter. Inc. \'. Hynes. 52 Y2d 333. 339 [ 1981 j.) 3 3 of 5 [*FILED: 4] QUEENS COUNTY CLERK 01/27/2020 11:39 AM NYSCEF DOC. NO. 171 INDEX NO. 710662/2019 RECEIVED NYSCEF: 01/27/2020 ··An applicati on to qua h a ubpoena hould be granted [ojnly where the futility of the process to unco er anything legitimate is inevitable or ob ious or where the information ought is ·utterly irrelevant to any proper inquiry." (Anheuser-Busch, Inc. v. Abrams. 7 1 NY2d 327. 33 1- 32 [ 1988] [ internal quotation mark and citati on omitted] ; Tech. Multi Sources, S.A. v. Stack Glob. Holdings. Inc., 44 AD3d 93 1 [2"d Dept 2007].) In regard to depo ition subpoena . .. the witness. in moving to quash. must e tablish either that the discovery ought i 'utterly irrelevant · to the acti on· or that the · rutility of the process to uncover anything legitimate is inevitable or obvious.' Should the witnes meet this burden. the ubpoenaing party must then e tabli h that the di covery . ought is ·material and nece ary· to** the prosecuti on or defen e of an action. i.e .. th at it is relevanr.·· (Kapon v. Koch. 23 NY3d 32. 34: [20 14]: Ferolito v. Arizona Beverages USA. LLC. 119 AD3d 642 [211d Dept 20 14].) It is true that the alidit of the Augu t 8. 2019 ubpoena i to be te ted by the relevancy of the document ought. not their quanti ty. (See. Evergreen Ass 'n, Inc. v. Schneiderman. 153 AD3d 87 I 211J Dept . 20 171.) Unfortunately for the city. the challenged subpoena is not only sweeping in it cope. but overly broad as we ll . A the Tominovic defendants correctly argue, the cha llenged subpoen a seeks records pertaining to matters outside the bounds of New York City wh ile the complai nt alleges cause of action relating onl y to New York City. In the case at bar. as in Airbnb, Inc. v. Schneiderman. (44 Misc.3d 35 1[Sup. Ct. 20 14]). where petitioner Airbnb successfully made an application to quash a ubpoena served pur uant to an inve tigation by the Attorney General relating to petitioner" ew York State client-ren ter . the ubpoena mu t be qua hed. The court lated in Schneiderman : ..The Multiple D\ ell ing La\ provide that it applicati on is to 'cities with a population of three hundred twenty- ti e thousand or more' (though other citic . to' n or villages ** may adopt the pro i ion of the law) (Multiple Dwelling Law ~ 3 11 I). The ubpoena. ho' e er. i not limited to New York City hosts or tho e v ho re ide in cities. towns or village that have adopted the Multiple Dwelling Law. nor is it limited to rentals of less than 30 days." (Airbnb. Inc. v. Schneiderman. supra. 358.) [n the case at bar. by reading the subpoena in light of the relevant statutes and regul ati on , as the Schneiderman court did. it may be een that the subpoena is overly broad. In oppo it ion. the cit fa iled to estab lish that all of the record ought are material and necessary to the pro ecuti on or defen e of this action. (See. (Kapon v. Koch. supra: Ferolito v. Arizona Beverages USA. LLC. supra.) The Tominovic defendant al o correct ly argue that the ubpoena i defective because it fa il to state .. the circum lance or reason uch di clo ure is ought or required.'. (See. CPLR 3 10 I (a)( 4 ); Kapon v. Koch. supra 34. [··we conclude that the 4 4 of 5 [*FILED: 5] QUEENS COUNTY CLERK 01/27/2020 11:39 AM NYSCEF DOC. NO. 171 INDEX NO. 710662/2019 RECEIVED NYSCEF: 01/27/2020 subpoenaing party must first sufficiently state the ' circumstances or reasons· underl ying the subpoena (either on the face of the subpoena itself or in a notice accompanying it)'.] ;Gandham v. Gandham. 170 AD3d 964, 966 [2 11 d Dept. 20 19] [ subpoena quashed for fa ilure to comply with notice req ui rementl .) Accordingly, th e motion is granted to the extent that the challenged subpoena is quashed without prejudice to plainti ff serving. should it so choose, another subpoena proper in scope and form. ~ ~ Dated: January 2 1, 2020 KE FILED JAN 2 7 2020 c.ou111rr C:.Lt:~K QUffNS COUNTY 5 5 of 5 1. KERRI GAN. J. S.C.

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