City of New York v. Steam Heat, Inc.

230 A.D.2d 761, 646 N.Y.S.2d 540, 1996 N.Y. App. Div. LEXIS 8394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 12, 1996
• Status: Published

Opinion

—In an action to permanently enjoin the operation of an adult entertainment establishment at certain premises, the appeal is from an order of the Supreme Court, Kings County (Dowd, J.), dated February 29,1996, which granted the motion of the City of New York for a preliminary injunction enjoining the appellants from operating an adult entertainment establishment.

Ordered that the order is affirmed, with costs.

It was not an improvident exercise of discretion for the Supreme Court to grant the motion of the City of New York for a preliminary injunction and "closing order” in light of the Supreme Court’s determination in a related proceeding entitled Matter of Steam Heat v Silva. In that proceeding, the Supreme Court (Barasch, J.) held that a determination made by the Board of Standards and Appeals, after a public hearing, that Steam Heat had failed to obtain valid construction permits pursuant to New York City Zoning Resolution § 11-332, was supported by substantial evidence. Thus, the Supreme Court concluded that Steam Heat was. operating an adult entertainment establishment in violation of existing zoning regulations. This Court has affirmed Justice Barasch’s holding (see Matter of Steam Heat v Silva, 230 AD2d 800 [decided herewith]).

Under the circumstances, the City demonstrated, inter alia, its likelihood of ultimate success on the merits, and it was entitled to the preliminary injunction (see, CPLR 6301; see, Aetna Ins. Co. v Capasso, 75 NY2d 860; see also, Merrill Lynch Realty Assocs. v Burr, 140 AD2d 589).

The appellants’ remaining contention is without merit.

Bracken, J. P., Copertino, Pizzuto and Goldstein, JJ., concur.