| City of New York v Untitled LLC |
| 2008 NY Slip Op 04434 [51 AD3d 509] |
| May 15, 2008 |
| Appellate Division, First Department |
| City of New York, Appellant, v Untitled LLC, Respondent,et al., Defendants. |
—[*1] Ravi Ivan Sharma, New York, for respondent.
Order, Supreme Court, New York County (Louis B. York, J.), entered May 30, 2007, whichdenied plaintiff's motion for a preliminary injunction, unanimously reversed, on the law, withoutcosts, and the matter remanded for an evidentiary hearing to determine whether plaintiff hasmade a prima facie showing of a public nuisance and satisfied the requirements for preliminaryinjunctive relief.
In this action pursuant to the Nuisance Abatement Law (Administrative Code of City of NY§ 7-701 et seq.), the City seeks to permanently enjoin defendants from operatingcertain premises known as "Sutra," based on three separate sales of alcohol to underage auxiliarypolice officers within a 15-month period in violation of Alcoholic Beverage Control Law §65 (1) and § 123. The City's complaint alleges that the incidents in question constitute apublic nuisance under both Administrative Code § 7-703 (h) (defining a public nuisance as"[a]ny building, erection or place . . . used for any of the unlawful activitiesdescribed in section [123] of the alcoholic beverage control law"), and Administrative Code§ 7-703 (l) (defining public nuisance as "[a]ny building . . . wherein there isoccurring a criminal nuisance as defined in section 240.45 of the penal law").
The City also moved for a preliminary injunction, as well as temporary restraining andclosure orders (see Administrative Code of City of NY §§ 7-707, 7-709,7-710, 7-711). Defendants opposed, arguing that there was no pattern of illegal sales to minorssufficient to constitute a public nuisance and that the affidavits of the police witnesses allegingthe sales were based, in part, on incompetent hearsay.
Supreme Court granted the temporary restraining order but denied temporary closure. As tothe preliminary injunction, the court denied the City's motion primarily on the ground that threeinstances of underage sales in the time period alleged were insufficient to constitute a pattern ofillegal activities giving rise to a public nuisance. The court further noted that there was noevidence of "trafficking" in alcohol or any proof that the summonses for underage sales led to[*2]convictions.
Supreme Court erred in summarily denying the City's motion for preliminary injunctive reliefwithout a hearing. The City correctly notes that, unlike other types of public nuisances listed inAdministrative Code § 7-703 that specifically require a minimum number of violationsbefore a nuisance is established (see e.g. § 7-703 [g] [requiring "three or more"violations of penal statutes pertaining to controlled substances, marijuana and gambling withinthe year preceding commencement of an action]), section 7-703 (h) does not expressly requiremultiple violations of the Alcoholic Beverage Control Law ("any of the unlawfulactivities described in section [123] of the alcoholic beverage control law" [emphasis added]).Whether this discrepancy is the product of legislative design or oversight is debatable (seeCity of New York v Dorrian, NYLJ, Nov. 3, 2006, at 22, col 1 [Sup Ct, NY County] [itappears "anomalous" for city council to have intended that a single sale of alcohol to a minorconstitutes a public nuisance, while a different subdivision of the same section requires threeconvictions for selling narcotics within one year]), but what is clear from the statutory scheme isthat a hearing is required prior to any determination on a motion for preliminary injunctive relief.Under Administrative Code § 7-710 (a), where, as here, a court grants a temporaryrestraining order, "the court shall direct the holding of a hearing for the preliminaryinjunction at the earliest possible time but in no event later than three business days from thegranting of such order" (emphasis added).
In this case, the court granted a temporary restraining order but never held the hearing on thepreliminary injunction required by section 7-710. Instead, it simply denied the preliminaryinjunction based upon the parties' written submissions, essentially rejecting the City's entirenuisance complaint on the merits. By proceeding in this manner, the court deprived the City of afair opportunity to demonstrate that the three alleged sales to underage persons in this caseconstitute a public nuisance within the meaning of section 7-703 (h). The court's precipitousaction also prejudiced defendants, who were denied an opportunity to contest the factualallegations underlying the three summonses, which, according to the record, have all beendismissed.
Even if, as the City maintains, no pattern of violations is required to demonstrate a publicnuisance under the express wording of section 7-703 (h), the motion court's summary denial gaveinadequate consideration to the three-prong test for preliminary injunctive relief, which isapplicable in cases under the Nuisance Abatement Law (City of New York v Love Shack,286 AD2d 240, 242 [2001]; but see City of New York v Bilynn Realty Corp., 118 AD2d511, 512-513 [1986] [municipality need not satisfy three-prong test for injunctive relief in actionto abate nuisance in form of zoning violation]).
To obtain a preliminary injunction, the City was required to demonstrate a likelihood ofsuccess on the merits of its public nuisance claim, irreparable harm in the absence of theinjunctive relief, and a balancing of the equities in its favor (Love Shack at 242; City of New York v West WindsConvertibles Intl., Inc., 16 Misc 3d 646, 652-654 [Sup Ct, Kings County 2007,Battaglia, J.] [applying three-prong test for injunctive relief in statutory nuisance abatementaction]). Such a showing was especially important in this case, given the limited number ofalleged violations over a fairly lengthy period of time (cf. City of New York v Castro,160 AD2d 651, 652 [preliminary injunction warranted by evidence of six separate gamblingviolations]; City of New York v Partnership 91, 277 AD2d 164, 164 [2000] [grantingpreliminary injunction based on City's "proof of illegal operations at the premises over anextended period"]). Accordingly, a remand is necessary for the [*3]court to hold a hearing on the request for a preliminary injunctioncontemplated by section 7-710 of the Nuisance Abatement Law. Concur—Lippman, P.J.,Tom, Gonzalez and Buckley, JJ.