City of New York v. 330 Continental LLC

18 Misc. 3d 381
CourtNew York Supreme Court
DecidedOctober 29, 2007
StatusPublished
Cited by2 cases

This text of 18 Misc. 3d 381 (City of New York v. 330 Continental LLC) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New York v. 330 Continental LLC, 18 Misc. 3d 381 (N.Y. Super. Ct. 2007).

Opinion

OPINION OF THE COURT

Michael D. Stallman, J.

In this action to abate a public nuisance, the City of New York seeks, among other things, to enjoin defendants, which are owners of apartment hotels on the Upper West Side, from renting to tourists or other transients. At issue is whether such use in a residential neighborhood is illegal, violative of the zoning laws, and constitutes a public nuisance.

The City of New York, the Department of Buildings (DOB) and the Department of Housing Preservation and Development (HPD) (collectively, the City) move, pursuant to Administrative Code of the City of New York §§ 7-707, 7-710, 26-120 (b); § 26-126 (c); § 26-246 (d) and § 27-2121, and pursuant to CPLR article 63, to preliminarily enjoin the defendants from permitting transient use and/or occupancy of any of the units in the defendant buildings, located at 315 West 94th Street (the Mont-royal), 316 West 95th Street (the Pennington) and 330 West 95th Street (the Continental) (collectively, the subject buildings), from performing renovations on the subject buildings without filing plans and obtaining the proper permits, and for an order directing defendants to abate any violations of the Building Code and Housing Maintenance Code. The City also seeks the appointment of a temporary receiver to oversee the subject buildings.

Pursuant to CPLR 3211 (a) (1) and (7), defendants cross-move to dismiss the first, second and fourth causes of action in the complaint.

Background

The three subject buildings are all located on the Upper West Side of Manhattan in a part of New York City that the New [383]*383York City Zoning Resolution designates as an R8 general residence zoning district. The certificates of occupancy for the Continental and Montroyal state that they are seven-story class A multiple dwelling single-room occupancy old law tenements (Sept. 5, 2007 Rand affidavit exhibits 1, 2); the certificate of occupancy for the Pennington describes it as a seven-story single-room occupancy new law tenement1 (Sept. 5, 2007 Rand affidavit exhibit 3).

In or about July and early August 2007, the City inspected each of the subject buildings and discovered that, although some permanent residential tenants occupy certain rooms, many rooms were being rented to transients and that the buildings were effectively used as transient hotels or hostels, allegedly in violation of both the certificates of occupancy for the buildings and the Zoning Resolution. Defendants do not dispute that they advertised the subject buildings on Internet travel sites such as Orbitz, Expedia, Hotels.com and Yahoo Travel as inexpensive transient accommodations available to tourists (Sept. 5, 2007 Rand affidavit exhibit A).

In addition, the inspectors discovered that extensive alterations, construction work and plumbing work had been completed, or was being performed, in each of the buildings without approved plans or permits. For example, the inspectors discovered, among other things, that the defendants had constructed a bridge connecting the Montroyal and the Pennington. Defendants had constructed a passageway through the load bearing walls of the Continental and Pennington, and as a result there was no structural fire division between those two buildings (Aug. 8, 2007 Mungin affidavit).

The City issued five violations to the Montroyal, eight violations to the Continental and five violations to the Pennington for improper occupancy and improper renovations and construction (Aug. 8, 2007 Mungin affidavit exhibits A-S). According to the complaint, the defendants failed to remedy any of the violations relating to either the alleged illegal occupancy or the renovations.

On September 6, 2007, the City commenced this action seeking a preliminary injunction and presented a proposed order to show cause seeking a temporary restraining order (TRO) to [384]*384enjoin the use of the subject buildings as transient hotels/hostels and to enjoin continued alteration/construction work until defendants filed plans and obtained permits for such work. The City also seeks an order directing defendants to remove all construction/alteration work performed without proper permits and an order appointing a temporary receiver.

Later on September 6, 2007, after a conference with counsel for each side, the court issued a TRO enjoining defendants, as of September 20, 2007,2 from permitting the transient occupancy of any rooms in the subject buildings, other than those so occupied on that date. Effective immediately, the court enjoined defendants from making reservations for transient occupancy at any of the subject buildings and from making alterations or changes in the legal configuration of the subject buildings without the proper permits and a certificate of no harassment. The court made the order to show cause returnable on September 20, 2007 and noted that “TRO may be revisited on the return date.”

On September 20, 2007 the court conducted a conference with counsel for the parties, and, on September 21, 2007, the court heard oral argument on the order to show cause. Based on that oral argument, and given the arcane legal issues, and the lack of an immediate danger to life, health or safety posed solely by the transient use, and to avoid harm and inconvenience to blameless, nonparty tourists, the court modified the TRO to vacate those portions of the TRO that prohibited defendants from renting rooms in the subject buildings on a transient basis or from making new reservations to rent the rooms on a transient basis. The remainder of the TRO was extended pending determination of the City’s motion for a preliminary injunction.

Contentions

In support of its motion for a preliminary injunction, the City asserts that all three of the buildings are class A buildings (which, pursuant to the Multiple Dwelling Law, may be occupied only as permanent residences) that are being used in violation of the certificates of occupancy. While the City considers the buildings to be apartment hotels (permitted by the Zoning Resolution in an R8 general residence district), it contends that [385]*385they are actually being operated as transient hotels (not permitted in an R8-zoned area).

The City also contends that defendants have not adequately addressed the Building Code violations, including, but not limited to, the installation of bathrooms and kitchens, reconfiguration of units, changes to plumbing, the installation of a bridge between two of the buildings and the destruction of the structural fire division between the bearing walls of two of the buildings.

In opposition to the order to show cause and in support of the cross motion to dismiss the first, second and fourth causes of action in the complaint which seek to enjoin the allegedly illegal occupancy and the unauthorized alterations and construction, defendants argue that, pursuant to the 1916 Zoning Resolution, hotels were permitted in residence districts; according to defendant HPD’s Initial Inspection Cards (I cards) for each of the subject buildings, the buildings have a long history of use as transient hotels/hostels; because this transient use predates the City’s 1961 Zoning Resolution, the transient use is a permitted nonconforming use that is grandfathered under section 52-11 of the Zoning Resolution.

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Related

345 West 70th Tenants Corp. v. New York City Environmental Control Board
2016 NY Slip Op 7099 (Appellate Division of the Supreme Court of New York, 2016)
City of New York v. 330 Continental
60 A.D.3d 226 (Appellate Division of the Supreme Court of New York, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
18 Misc. 3d 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-330-continental-llc-nysupct-2007.