City of New York v. 365 Canal Corp.

17 A.D.3d 246, 793 N.Y.S.2d 400, 2005 N.Y. App. Div. LEXIS 4206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2005
• Status: Published

Opinion

Appeals from three orders, Supreme Court, New York County (Louis B. York, J.), entered February 3, 2004, which, in three nuisance abatement actions (Administrative Code of City of NY, tit 7, ch 7) based on the sale of counterfeit merchandise in three booths of a flea market located in defendant landlord’s building, after a hearing, denied plaintiffs requests for temporary closing orders (Administrative Code § 7-709), and simultaneously denied plaintiffs motions for preliminary injunctions (Administrative Code § 7-707), unanimously dismissed as moot, without costs.

We perceive no reason to decide whether the offending booths should be temporarily closed or defendants otherwise preliminarily restrained from conducting or permitting the alleged nuisance, where the offending tenants have vacated the premises, and the landlord has removed all of the booths, gutted the interior of the premises and sufficiently demonstrated that it will not be operating the premises as a flea market (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Under the circumstances, there is no threat of a resumption of the alleged illegal activity in these premises prior to plaintiffs securing of any final injunctive remedies to which it may be entitled. We emphasize that the actions have not been dismissed (compare City of New York v Mor, 261 AD2d 185 [1999], appeal dismissed 93 NY2d 1041 [1999]) and that the finding of mootness applies only to plaintiffs requests for temporary/preliminary relief. Concur—Marlow, J.P., Ellerin, Nardelli, Williams and Sweeny, JJ.