The opinion
S&L Ludlow Realty Inc. v Bridgeview Gallery
2024 NY Slip Op 33057(U)
August 30, 2024
Supreme Court, New York County
Docket Number: Index No. 160364/2021
Judge: Paul A. Goetz
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.
INDEX NO. 160364/2021
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 08/30/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. PAUL A. GOETZ PART 47
Justice
---------------------------------------------------------------------------------X INDEX NO. 160364/2021
S&L LUDLOW REALTY INC.,
MOTION DATE 11/15/2021
Plaintiff,
MOTION SEQ. NO. 001
-v-
BRIDGEVIEW GALLERY, ROBERT RAND, SHLOMO
DECISION + ORDER ON
WEPRIN
MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 31, 32, 33, 34, 36,
39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52
were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR .
Plaintiff moves pursuant to CPLR § 6301 for a preliminary injunction and temporary
restraining order to enjoin defendants from soliciting, advertising, taking reservations, booking
and renting the 4th Floor of the building at 83 Essex Street a/k/a 90 Ludlow Street, New York,
New York on Airbnb or any similar short term rental sites. It also seeks an order enjoining
defendants from utilizing the premises in any way as a hotel or boarding house and from granting
access to the premises from people other than lawful occupants. Defendant Shlomo Weprin
cross-moves to dismiss the action as against him, for failure to state a claim, arguing that since
he is not in a landlord-tenant relationship with plaintiff because he is a subtenant, plaintiff cannot
maintain this action against him.
CPLR § 6301 states:
A preliminary injunction may be granted in any action where it
appears that the defendant threatens or is about to do, or is doing or
procuring or suffering to be done, an act in violation of the plaintiff's
rights respecting the subject of the action, and tending to render the
judgment ineffectual, or in any action where the plaintiff has
demanded and would be entitled to a judgment restraining the
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NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 08/30/2024
defendant from the commission or continuance of an act, which, if
committed or continued during the pendency of the action, would
produce injury to the plaintiff. A temporary restraining order may
be granted pending a hearing for a preliminary injunction where it
appears that immediate and irreparable injury, loss or damage will
result unless the defendant is restrained before the hearing can be
had.
To be entitled to a preliminary injunction plaintiff must show a “probability of success,
danger of irreparable injury in the absence of an injunction, and a balance of the equities in their
favor” (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]). Here, plaintiff has shown a high
probability of success since it has provided evidence of defendants’ listings on Airbnb and
Renthop (NYSCEF Doc Nos 8-13). Plaintiff has also shown that the use of the premises for short
term rentals is in violation of the Certificate of Occupancy, the Zoning Resolution and the Use
Group for the Building and Premises (NYSCEF Doc Nos 14-16). It has also established
irreparable injury because allowing the operation of accommodations in violation of New York
City Fire Codes and Zoning Resolutions could result in significant liability to plaintiff and could
also result in the cancelling of plaintiff’s insurance coverage (See City of New York v Smart
Apartments LLC, 39 Misc 3d 221 [Sup Ct 2013]). Finally, “equities lie in favor of shutting down
an illegal, unsafe, deceptive business, rather than in allowing said business to continue to operate
(to defendants' presumed financial advantage)” (id. at 233). Accordingly, plaintiff’s motion for a
preliminary injunction and temporary restraining order will be granted.
Turning to defendant Weprin’s cross-motion, when assessing a motion for dismissal
based on a “failure to state a cause of action, the court must afford the pleading a liberal
construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of
every possible inference, and determine only whether the facts as alleged fit within any
cognizable legal theory” (V. Groppa Pools, Inc. v Massello, 106 AD3d 722, 722 [2d Dept
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2013]). Here, the second cause of action seeks a permanent injunction preventing defendants
from continuing to operate the premises as a short-term rental unit. “To sufficiently plead a cause
of action for a permanent injunction, a plaintiff must allege that there was a ‘violation of a right
presently occurring, or threatened and imminent,’ that he or she has no adequate remedy at law,
that serious and irreparable harm will result absent the injunction, and that the equities are
balanced in his or her favor” (Caruso v Bumgarner, 120 AD3d 1174, 1175 [2d Dept 2014]).
While Weprin is correct that “[b]ecause there is no privity of contract between them, a subtenant
incurs no liability directly to a paramount lessor for performance of covenants contained in the
original lease” (Tefft v Apex Pawnbroking & Jewelry Co., Inc., 75 AD2d 891, [2d Dept 1980])
there is no need for Weprin to be in privity with plaintiff to obtain the equitable relief sought in
that cause of action. Therefore, the cross-motion will be denied.
Accordingly it is,
ORDERED that the motion for a preliminary injunction is granted; and it is further
ORDERED that defendants, their agents, servants, employees, affiliates, partners,
successors and assigns, and all others acting on behalf of or in concert with defendants,
collectively or individually are enjoined from:
1. Utilizing the 4th Floor (the “Premises”) of the building 83 Essex Street a/k/a 90
Ludlow Street, New York, New York (the “Building”) for occupancy by transient
visitors, tourists and others (collectively “Transients”) for residential use on a daily or
weekly basis, or otherwise utilizing the Premises or any portion thereof as an illegal
hotel or boarding house;
2. Soliciting, advertising, taking reservations, booking and renting the Premises, in
whole or part, to Transients through internet websites, such as www.Airbnb.com,
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www.Airbnb.co.uk, www.renthop.com or any other service engaging in booking
short term rentals;
3. Soliciting, advertising, taking reservations, booking and renting the Premises, in
whole or part, to Transients through any other means for short term rentals; and
4. Permitting, allowing or providing access to, from and within the Building to
Transients or others who are not lawful occupants of the Premises; and it is further
ORDERED that defendant Weprin’s cross-motion to dismiss the claims against him is
denied; and it is further
ORDERED that the parties are directed to attend a preliminary conference on September
26, 2024, at 9:30 am.
8/30/2024
DATE PAUL A. GOETZ, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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