Escolar Documentos
Profissional Documentos
Cultura Documentos
451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
Plaintiff,
SUMMONS
-against-
Defendants.
-------------------------------------------------------------------------X
YOU ARE HEREBY SUMMONED TO ANSWER the Verified Complaint in this action
and to serve a copy of your answer on the Plaintiff CITY OF NEW YORK within twenty (20) days
after the service of this Summons, exclusive of the day of service, or within thirty (30) days after
service is complete if this Summons is not personally delivered to you within the State of New
York. In case of your failure to appear or answer, judgment will be taken against you by default for
1 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
The basis ofthe venue designated is the residence of the Plaintiff and the county in which
the properties affected by this action are located. Plaintiff designates New York County as the place
of trial.
By:
MAR IN I. NAGEL
Special Assistant Corporation Counsel
Mayor's Office of Special Enforcement
4*
22 Reade Street, Floor
New York, NY 10007
Tel.: (646) 576-3533
Email: mnagel@ose.nyc.gov
TO:
2 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
RICHARD LAGANA
15165 Ventura Boulevard, Suite 140
Sherman Oaks, California 91403
RICHARD LAGANA
116 West 23rd Street
Suite 500
New York, NY 10011
THE LAND AND BUILDING KNOWN AS 410 WEST 46TH STREET, BLOCK 1055, LOT
40, COUNTY, CITY AND STATE OF NEW YORK
THE LAND AND BUILDING KNOWN AS 412 WEST 46TH STREET, BLOCK 1055, LOT
41, COUNTY, CITY AND STATE OF NEW YORK
THE LAND AND BUILDING KNOWN AS 452 WEST 36TH STREET, BLOCK 733, LOT 65,
COUNTY, CITY AND STATE OF NEW YORK
3 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
Plaintiff,
VERIFIED COMPLAINT
-against-
Defendants.
-------------------------------------------------------------------------X
Corporation Counsel of the City of New York, for its verified complaint against defendants,
alleges as follows:
1. Plaintiff THE CITY OF NEW YORK (the “CITY”) brings this action to shut
down the illegal transient (less than 30-day) rentals that Defendants have proven themselves
unwilling to prevent and stop despite multiple chances to do so over the past seven years, in three
walk-up, rent-stabilized buildings in Hell’s Kitchen. The CITY also brings this action to hold
Defendants responsible for their years of willful neglect by failing to comply with their duty to
4 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
keep their buildings in a safe and code-compliant manner, and for their persistent participation
form of illegal transient rentals in at least the following three buildings they own and/or manage
(collectively, the “Subject Buildings”), all five-story multiple dwellings that can only legally be
a. 410 WEST 46th STREET, BLOCK 1055, LOT 40, County, City and State of New
York (“410 West 46th Street”), a five-story Class “A” multiple dwelling with 15
permanent residential dwelling units;
b. 412 WEST 46th STREET, BLOCK 1055, LOT 41, County, City and State of New
York (“412 West 46th Street”), a five-story Class “A” multiple dwelling with 15
permanent residential dwelling units; and
c. 452 WEST 36th STREET, BLOCK 733, LOT 65, County, City and State of New
York (“452 West 36th Street”), a five-story Class “A” multiple dwelling with 20
permanent residential dwelling units.
3. To date, the CITY has identified and attempted to abate those public nuisances,
administrative code inspections since 2012, resulting in the New York City Department of
Buildings (“DOB”) issuing about 100 illegal transient occupancy related violations with more
than $250,000 penalties imposed thus far. Nevertheless, illegal, deceptive, and hazardous
transient occupancies have continued in at least 11 out of the 50 apartments (22%) in the Subject
Buildings during Defendants’ ownership and management despite the CITY’s extensive
administrative efforts to terminate such unlawful activities and their resulting adverse conditions.
4. For more than seven years, Defendants (absentee landlords of New York City
buildings and their oblivious managing agent, who has their main office and residence in Los
Angeles, California) could easily have properly monitored and prevented the nearly non-stop
unlawful short-term rentals occurring in the Subject Buildings but they have refused to do so.
5 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
5. Instead, Defendants have repeatedly treated the violations and civil monetary
penalties levied on them after administrative hearings as one cost of doing business, regularly
submitting certificates of correction to DOB after each violation and before first hearing dates in
order to mitigate penalties imposed, with those certificates containing only conclusory
statements, prepared and notarized each time in Los Angeles, California, almost invariably
swearing that the transient use in New York City has been personally “discontinued” by the
6. But Defendants’ repeated sworn statements of correction have not only been
contradicted by other statements and documents they have proffered, but they’ve also been
refuted by the illegal short-term rental activity the CITY has repeatedly found in the Subject
Landlord List” 1 more than once, and to this day, they are still failing to remediate 205 open
violations issued by the New York City Department of Housing Preservation & Development
(“HPD”) for specific repairs and maintenance in the Subject Buildings. Those unremediated
violations cover hazardous conditions such as “fire damage in the entire apartment,” “structural
defect consisting of large cracks extending from the 5th to 1st story at the rear exterior wall of
the building,” “broken or defective sloping floors at public hall,” “broken or defective eroded
1
In 2018, Defendant LAGANA is identified as no. 50 on the Public Advocate’s worst landlord list, with two of the
three Subject Buildings (410 West 46th Street and 412 West 46th Street) specifically identified.
https://landlordwatchlist.com/landlord-RICHARD%20LAGANA In 2016, Defendant LAGANA is identified as no.
80 on the Public Advocate’s worst landlord list, with a total of 346 open HPD violations and 36 open DOB
violations at the time. https://patch.com/new-york/new-york-city/nycs-100-worst-landlords-list-released-2016
Similarly, in 2015, Defendant HIGHPOINT Associates XII, LLC (“HIGHPOINT”) is identified as the worst
landlord on the Public Advocate’s list, specifically concerning that Defendant HIGHPOINT “has been fined more
than $50,000 in the last three years for illegally renting apartments there as hotel rooms and not installing fire alarm
systems, automatic sprinklers, and the required number of exits”
http://metcouncilonhousing.org/news_and_issues/tenant_newspaper/2015/february/letitia_james_releases_list_of_w
orst_illegal_hotels
6 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
brick and mortar joints at wall,” “unsafe electric wiring condition consisting of exposed wires at
ceiling,” and “inadequate lighting at or near the outside of the front entranceway of the
building.”
8. Defendants have been fully aware of the deleterious conditions existing in the
Subject Buildings because those conditions have been well-documented in various news articles,
tenants’ complaints, and the CITY’s enforcement actions. Yet, Defendants willfully continue to
turn a blind eye to their responsibilities in keeping the Subject Buildings in a safe and code-
compliant manner.
9. For example, as reported in the local media, there was a fire that took place on
December 5, 2014 in the Subject Building 410 West 46th Street, and another fire broke out in the
Subject Building 412 West 46th Street, with “a blaze ignited in the space between the ceiling and
the roof of the top floor apartment” on February 4, 2015. 2 According to another news report, the
Defendants made little effort to timely repair the resulting damages, and, for an extended period,
permanent residents suffered from a lack of gas supply, and structural and property damages to
their apartments directly resulting from the lack of an adequate roof on the building. In that
article, it was reported that one permanent resident for more than two decades in the Subject
Building 412 West 46th Street commented that Defendants wanted the permanent residents to
10. Defendants’ failure to keep the Subject Buildings in a safe and code-compliant
manner over the years also raises additional public safety concerns of uncontrolled access to the
permanent residences. Specifically, the CITY has received significant number of 911 calls for
2
See the February 5, 2015 news article: https://www.dnainfo.com/new-york/20150205/midtown/hells-kitchen-
apartment-that-caught-fire-owned-by-illegal-hotel-operator/
3
See the August 27, 2015 news article: https://www.dnainfo.com/new-york/20150827/hells-kitchen-clinton/illegal-
hotel-operator-leaves-tenants-without-gas-for-6-months-they-say/
7 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
police service in two of the three Subject Buildings (410 West 46th Street and 412 West 46th
Street), even though both are small walk-up buildings with 15 apartments each.
11. For example, between 2008 to 2019, the CITY received about 159 complaints (911
calls for police service) for the Subject Building 410 West 46th Street, and about 109 complaints
for the Subject Building 412 West 46th Street, while a similar residential building across the
street – 415 West 46th Street, a five-story multiple dwelling with total of 20 apartments –
received only 52 complaints during the same period, about 1/3 of the number of complaints for
the Subject Building 410 West 46th Street, and about 1/2 of the number of complaints for the
12. In addition, the number of 911 calls for police service has increased over the years
between 2015 and 2019 for the Subject Building 410 West 46th Street, rising from four
complaints in 2015 to 36 complaints in 2019 thus far. Some of the 911 calls for police service in
the past year show several reports of people “breaking in,” trespassing, “sleeping and urinating”
inside the building, and some other 2019 complaints reported burglary, the selling of narcotics,
and unknown individuals with firearm having a dispute within Subject Building 410 West 46th
Street.
13. Defendants’ own required reporting to the State Division of Housing and
fallen since at least 2011, when the CITY started receiving complaints of
illegal transient occupancy in the Subject Buildings. No more than five of the
50 total dwelling units (10%) across the Subject Buildings remain rent
8 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
stabilized today. Specifically, the Subject Building 410 West 46th Street has
b. The CITY’s inspections have found that at least 11 of the total 50 dwelling
units (22%) in the Subject Buildings have been converted to illegal short-term
rentals, when they should have been rent stabilized apartments. Specifically,
since around 2016, Apartments 2FW and 4FW of the Subject Building 452
West 36th Street were converted to illegal short-term rentals, and were delisted
from rent stabilization roll on the basis of “high rent vacancy,” which means
14. The illegal short-term rentals in the Subject Buildings have been advertised and
CITY has identified at least nine Airbnb listings advertising nightly short-term rentals within the
Subject Buildings, which were used to conduct over 300 short-term rental reservations, involving
over 700 transient guests, generating over $300,000 in revenue in three years.
15. Defendants have simultaneously rented to Sky Worldwide LLC a.k.a. New York
Travel Rentals a.k.a. Paramount Properties (“Sky Worldwide”), a company that “operates a
vacation rental business,” at least eight apartments within five Manhattan buildings they own and
manage, including two Subject Buildings 410 West 46th Street and 412 West 46th Street, 4 and
16. Specifically, instead of the generally used residential leases that require tenants to
first obtain landlords’ permission before subletting, Defendants’ leases have allowed Sky
4
See complaint filed on July 19, 2017 by Defendant HIGHPOINT against Sky Worldwide in the Supreme Court of
the State of New York, County of New York (Index No. 654906/2017).
9 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
Worldwide and other individuals and entities to sublet their apartments without seeking any
approval whatsoever, as long as tenants “would do so for a minimum of 30 days only” and would
17. Con Edison records also show that Defendants permitted five individuals to
control 23 apartments within six Manhattan buildings they own and manage, including the three
Subject Buildings. For example, Darren Lachar not only has a ConEd account in the Subject
Building 410 West 46th Street, Apt. 4C, he also simultaneously has two ConEd accounts in the
440 West 45th Street, Apts. 3R and 4W, and two ConEd accounts in 104 West 83rd Street, Apts.
2C and 5D. In 2014 and 2015, Darren Lachar also has had two ConEd accounts in the Subject
18. Similarly, Eran Suki, an illegal hotel operator defendant in another nuisance
abatement action involving four buildings across Midtown, 5 now appears to have three ConEd
accounts in the Subject Building 452 West 36th Street, Apts. 2FW, 2RR, and 3FLE. Likewise,
tenant Dongwu Xia, now appears to have a ConEd account in the Subject Building 452 West 36th
Street, Apt. 2RR, while simultaneously having three ConEd accounts in 190 East 3rd Street, Apts.
19. Hell’s Kitchen has been identified as one of five “macro-neighborhoods” where a
majority of all Airbnb listings in New York City are located, contributing to increased rental
5
On February 5, 2015, the CITY commenced a nuisance abatement action against the following four in rem
defendant buildings located within New York City that have been illegally advertised, managed, and operated by the
operator defendants [ERAN SUKI, BEN ZION SUKY, NYC MIDTOWN LLC, d/b/a “5th Avenue Suites” and “WEST
46TH STREET APARTMENTS” and NY CITY STAY LLC] for the purpose of providing illegal short-term transient
occupancies at the in rem defendant buildings located at: 15 West 55th Street, 19 West 55th Street, 334 West 46th
Street, and 336 West 46th Street, all in the County, City, and State of New York. City of New York v. NYC Midtown
LLC, et. al. (Sup. Ct. N.Y. Co., Index No. 450151/2015). On July 31, 2017, the Court denied operator defendants
Eran Suki and Ben Zion Suky’s motion to be dismissed from the case in their individual capacities, and granted the
CITY’s motion to compel discovery against operator defendants. Id., 2017 N.Y. Misc. LEXIS 2884 (Sup. Ct. N.Y.
Co., July 31, 2017).
10 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
housing prices and reduction in the housing supply. 6 A January 2018 report by Professor
Wachsmuth of McGill University entitled “The High Cost of Short-Term Rentals in New York
City” likewise found “Midtown,” where the Subject Buildings are located, to be among “10 New
York City neighborhoods with the highest total Airbnb host revenue.” 7
20. The illegal and hazardous hotel operation perpetrated by Defendants in the
Subject Buildings has continued for nearly seven years since 2012, notwithstanding the CITY’s
pre-litigation administrative enforcement efforts to enjoin such unlawful activities. Those efforts
have included the issuance to the Subject Buildings’ owners of one hundred fifty-four notices of
of all of the violating conditions in the Subject Buildings. Furthermore, Defendants continue
their illegal and hazardous hotel operation despite the “in violation” adjudications of almost fifty
NOVs/Summonses already heard by the New York City Office of Administrative Trials and
Hearings (“OATH”) [formerly known as New York City Environmental Control Board
21. The CITY brings this action first to abate the public nuisance and to terminate the
tenant harassment being conducted, maintained, and permitted by Defendants at the Subject
6
A June 2016 report from MFY Legal Services titled “Short Changing New York City – The Impact of Airbnb on
New York City’s Housing Market” specified Chelsea/Hell’s Kitchen as one of the “macro-neighborhoods” where
“53 percent of all Airbnb listings are located.”
http://www.hcc-nyc.org/documents/ShortchangingNYC2016FINALprotected_000.pdf at 5.
In its 2015 report titled “State of New York City’s Housing and Neighborhoods in 2015,” New York University’s
Furman Center for Real Estate and Urban Policy identified rapid increases in housing prices between 1990 and
2014, reduction in the supply of affordable housing, and changes in neighborhood composition.
http://furmancenter.org/research/sonychan/2015-report.
In a May 2018 report entitled “The Impact of Airbnb on NYC Rents,” the New York City Comptroller provides that
“Airbnb listings are particularly concentrated in Manhattan below 59th Street, including . . . Midtown Business
District,” where the Subject Buildings are located.
https://comptroller.nyc.gov/wp-content/uploads/documents/AirBnB_050318.pdf at 2.
7
https://mcgill.ca/newsroom/files/newsroom/channels/attach/airbnb-report.pdf at 16.
11 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
Buildings, including: (1) the illegal and hazardous rental of permanent residential dwelling units
to numerous transient occupants, without having the more stringent fire and safety features
required in buildings legally designed to serve transient occupants; (2) the creation of significant
risks in buildings not staffed to handle the security issues associated with transient occupancy,
and a degradation in the quiet enjoyment, safety, and comfort of permanent residents in the
Subject Buildings and in neighboring buildings caused by noise, filth, and the excessive traffic of
unknown and constantly changing individuals entering their places of abode; (3) engaging in acts
and/or omissions that are intended to cause permanent residents to vacate the Subject Buildings
or to surrender their rights as rent-stabilized tenants to occupy without disturbance in the Subject
Buildings; and (4) the unlawful reduction of the permanent housing stock available to the
residents of New York City at a time when there is a legislatively declared housing emergency.
The conditions created by Defendants’ illegal conduct in the Subject Buildings negatively affect
the health, safety, security, and general welfare of the residents of the City of New York and its
visitors.
22. The CITY brings this action pursuant to and by authority of section 20 of the New
York General City Law, section 394 of the New York City Charter, and Section 20-703 of the
Administrative Code of the City of New York (the “Admin. Code”), in order to enforce Section
306 of the New York Multiple Dwelling Law (“MDL”); Sections 7-704, 7-706, 27-2110, 27-
2115, 27-2120, and 28-205.1 of the Admin. Code; and pursuant to the common law doctrine of
public nuisance.
23. By this action, the CITY seeks preliminary and permanent injunctive relief and
the imposition of civil statutory penalties and compensatory and punitive damages against the
owners, managers, lessees, licensees, operators and agents of the Subject Buildings, and against
12 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
the Subject Buildings themselves, for violations under the MDL, the New York City Building
Code (“Building Code”), the New York City Housing Maintenance Code (“Housing
Maintenance Code”) for creating nuisances as defined in Section 7-701 et seq., of the Admin.
Code (the “Nuisance Abatement Law”), and for creating common law public nuisances and
tenant harassment.
BACKGROUND
established by Mayoral Executive Order No. 96 of 2006, to address quality of life issues
citywide, including illegal hotels, lawless clubs and adult establishments, and trademark
counterfeiting bazaars. To accomplish its duties, OSE oversees and conducts joint investigations
and inspections with various CITY agencies to bring unsafe conditions into compliance with the
law. When property owners fail to remedy violating conditions for an extended period of time
through administrative enforcement mechanisms, the CITY seeks remedies in courts pursuant to
the Nuisance Abatement Law and other statutes to compel compliance and halt flagrant
violations. Through Mayoral Executive Order No. 22 of 2016, OSE is also tasked with enforcing
25. Tourists and other visitors to New York City have been enticed by misleading
within buildings designed and constructed only for permanent residency. Many of these visitors
are unwittingly led to book accommodations which are not only illegal, but also pose a
heightened risk to their health and safety, as well as to the health and safety of the lawful tenants
of those buildings. A business that misleads consumers by purveying illegal and unsafe
consumer goods or services without any indication that they are not legal or safe commits a
10
13 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
deceptive trade practice prohibited by federal, state, and local consumer protection laws. See
buildings where such accommodations are illegal create a public nuisance under both the
Nuisance Abatement Law and the common law. The law has long recognized that the conditions
and practices complained of herein, which endanger or injure the property, health, safety or
both tourists and visitors to New York City, those who may lawfully reside in residential units in
the Subject Buildings and in neighboring buildings, as well as emergency personnel who would
27. The CITY continually receives complaints about unlawful short-term transient
occupancies from many sources – calls to “311,” letters and emails from the public,
communications from elected officials and community groups – regarding excessive noise from
tourists, overflowing trash, vomit in hallways, fires, loud fighting, drugs, prostitution, and the
like.
28. Despite occupancy and safety rules prohibiting such use, dwelling units in
permanent residential apartment buildings in New York City are increasingly being utilized as
transient, short-term occupancy units for tourists and other visitors rather than tenants who intend
to establish a permanent residence. This practice has been abetted by the phenomenal growth of
the internet travel industry, and comes at a time when affordable housing accommodations for
11
14 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
29. The spread of illegal transient occupancies, which some observers in New York
City have termed an “epidemic,” 8 creates a number of serious problems for the CITY:
30. Due to these deleterious effects on the housing market and the safety concerns for
residents, tourists, the general public and emergency response personnel, illegal hotel operations
are a point of particular concern to the City and State governments in protecting New Yorkers’
quality of life.
8
“Hey, Wanna Rent My Couch; Short-term rentals have officially become illegal – and sneaking around the law has
officially become epidemic,” by S. Jhoanna Robeldo, New York, November 27, 2011.
9
The CITY’s “acute shortage of dwellings” has created an affordable housing crisis that is a “serious public
emergency.” See Emergency Housing Rent Control Law § 1, codified as N.Y. Unconsol. Law Ch. 249, § 1 (Lexis
2016) (making these legislative findings in establishing rent control system). See also Local Emergency Housing
Rent Control Act § 1(2), codified as N.Y. Unconsol. Law Ch. 249-A, § 1(2) (Lexis 2016), Emergency Tenant
Protection Act of Nineteen Seventy-Four § 2, codified as N.Y. Unconsol. Law Ch. 249-B, § 2 (Lexis 2016) (making
identical legislative findings in establishing successor rent stabilization systems); and Bucho Holding Co. v.
Temporary State Housing Rent Comm., 11 N.Y.2d 469, 473 (1962) (“The existence of an emergency justifying
continued control of rents in the areas here involved may not [be], and indeed is not, denied.”).
12
15 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
31. To begin to address the illegal transient occupancy situation, the Legislature
enacted Chapter 225 of the Laws of New York State of 2010 (“Chapter 225”). Chapter 225,
which went into effect on May 1, 2011, prohibits renting units in Class “A” multiple dwellings,
as defined under the MDL 10 and the New York City Housing Maintenance Code (“HMC”), for
32. The Legislature enacted Chapter 225 in response to the First Department’s 2009
City of New York v. 330 Continental LLC decision (60 A.D.3d 226), amending the MDL and
other related laws to make clear, among other things, that the rental of any unit, including Class
“B” units, in a Class “A” building for less than 30 days is prohibited. The legislative
justification for Chapter 225 was explained by the law’s sponsor in this manner:
The Multiple Dwelling Law and local Building, Fire and Housing
Maintenance Codes establish stricter fire safety standards for
dwellings such as hotels that rent rooms on a day to day (transient)
basis than the standards for dwellings intended for month to month
(permanent) residence. There are substantial penalties for owners
who use dwellings constructed for permanent occupancy (Class A)
as illegal hotels. However, the economic incentive for this
unlawful and dangerous practice has increased, while it is easier
than ever to advertise illegal hotel rooms for rent to tourists over
the internet. This is especially so in New York City, which is
attracting visitors and tourists from around the world in record
numbers. In most cases tourists responding to such advertisements
are unaware that the rooms are being offered in violation of the
law. Not only does this practice offer unfair competition to
legitimate hotels that have made substantial investments to comply
with the law but it is unfair to the legitimate “permanent”
occupants of such dwellings who must endure the inconvenience
of hotel occupancy in their buildings and it decreases the supply of
affordable permanent housing. It endangers both the legal and
10
In 1929, the Legislature enacted MDL to “ensure the establishment and maintenance of proper housing standards
requiring sufficient light, air, sanitation and protection from fire hazards.” See MDL § 2. The 1929 MDL created
two distinct and mutually exclusive classifications of buildings that continue in the law today: “Class A” buildings
used for permanent residence use, and “Class B” housing intended for short-term transient use. The MDL defines
buildings used for permanent residence purposes, such as “tenements, flat houses, maisonette apartments, [and]
apartment houses,” as Class A. See MDL § 4(4) (now, § 4(8)(a)). Similarly, the MDL defines buildings typically
used for transient purposes, such as “hotels, lodging houses, rooming houses, [and] boarding houses,” as Class B.
See MDL § 4(4) (now, § 4(9)(a)).
13
16 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
New York State Assembly Memorandum in Support of Legislation (S. 6873-B, 233rd Leg. (N.Y.
33. The plain language of the law, supported by its legislative history, makes clear
that the Legislature intended to eliminate all transient use in “all Class A buildings in existence”
as of the bill’s enactment and all those constructed thereafter. See Ch. 225 of the Laws of 2010,
at § 8; Governor’s Bill Jacket, Ch. 225 of the Laws of 2010, at 6 -17. No Class A building was
34. Following the Legislature’s clear intent in Chapter 225, the First Department
unequivocally held that the Chapter 225 provisions applied to all buildings in existence on the
date of its enactment, and no dwelling unit in a Class A multiple dwelling can be used
transiently. Matter of Grand Imperial, LLC v. New York City Bd. of Stds. & Appeals,
137 A.D.3d 579 (1st Dep’t), lv. denied, 28 N.Y.3d 907 (2016) (“[I]n enacting the amendments,
the legislature’s intent that a 30-day minimum occupancy requirement would apply to all, with
only narrow, specified exceptions, was sufficiently clear that petitioner’s saving clause right to
continue renting for the shorter period was extinguished.”) (internal citation omitted); Matter of
Terrilee 97th Street LLC v. N.Y.C. Envtl. Control Bd., 146 A.D.3d 716 (1st Dep’t 2017), lv. to
reargue or appeal denied, 2017 N.Y. Slip. Op. 86314(U) (Sept. 19, 2017) (“Under the Multiple
Dwelling Law, as amended effective May 1, 2011, none of the units in petitioner’s Class A
multiple dwelling may be used for occupancy periods shorter than 30 days.”) (citations omitted).
for transient occupancy where such use is prohibited and unsafe deceives consumers and creates
14
17 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
a public nuisance endangering or injuring the property, health, safety and comfort of residents in
those buildings, residents in surrounding areas, and tourists and visitors to New York City.
36. Most recently in 2016, as a further step to address this issue, the Legislature
amended the MDL and Administrative Code to expressly prohibit advertising the use or
occupancy of dwelling units in Class A multiple dwellings for other than permanent residence
purposes (i.e., short-term rental for less than 30 days). The law’s sponsor explained the
justification for adding a new Section 121 to the MDL and a new Article 18 to subchapter three
of chapter one of title 27 of the Admin. Code (i.e., Admin. Code § 27-287.1) as follows:
New York State Senate Memorandum in Support of Legislation (A. 8704 C, 239th Leg. (N.Y.
PARTIES
37. Plaintiff the CITY is a municipal corporation incorporated under the laws of the
15
18 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
business corporation, organized under the laws of the State of New York, upon information and
belief, is and at all times relevant has been the property management company for the Subject
liability company organized under the laws of the State of New York is, and at all times relevant
has been, the owner of record of the Subject Buildings 410 West 46th Street and 412 West 46th
Street. According to the building registration reports submitted to HPD for Subject Buildings
410 West 46th Street and 412 West 46th Street, Defendant HIGHPOINT claims its address to be
company organized under the laws of the State of New York is, and at all times relevant has
been, the owner of record of Subject Building 452 West 36th St. The New York State
Department of State Division of Corporations Entity Information page lists the process service
address for Defendant SERENO as 15165 Ventura Blvd., Suite 140, Sherman Oaks, CA 91403.
a natural person, upon information and belief, is and at all times relevant has been a resident of
California, and upon information and belief, is and at all times relevant has been the president
42. In the mortgage dated March 8, 2002 in the total amount of $1,078,556.21 for the
Subject Buildings 410 West 46th Street and 412 West 46th Street, Defendant SHALOM executed
HIGHPOINT.
16
19 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
California, and the “president of [Defendant] KEYSTONE, which managed about 30 buildings,
about half in the city [of New York] and the other half in California.” Mendoza v. Highpoint
44. Defendant LAGANA, a natural person, upon information and belief, is and at all
times relevant has been a resident of California, and is and at all times has been the “managing
agent” registered with HPD for each one of the Subject Buildings.
and filed in Court on the same date, he has been employed as a “maintenance manager” for
Defendant KEYSTONE since March 6, 2012. Alyson Shatsky v. Highpoint Associates V, LLC, et
46. Defendant THE LAND AND BUILDING KNOWN AS 410 WEST 46TH
STREET, BLOCK 1055, LOT 40, COUNTY, CITY AND STATE OF NEW YORK, is the real
property where the activities complained of have taken place and continue to take place.
47. Defendant THE LAND AND BUILDING KNOWN AS 412 WEST 46TH
STREET, BLOCK 1055, LOT 41, COUNTY, CITY AND STATE OF NEW YORK, is the real
property where the activities complained of have taken place and continue to take place.
48. Defendant THE LAND AND BUILDING KNOWN AS 452 WEST 36TH
STREET, BLOCK 733, LOT 65, COUNTY, CITY AND STATE OF NEW YORK, is the real
property where the activities complained of have taken place and continue to take place.
49. Defendants “JOHN DOE” and “JANE DOE,” numbers 1 through 10, are
fictitiously named parties, true names unknown, the parties intended being the owners, managers
or operators of the business being carried on by Defendants at the Subject Buildings, and any
17
20 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
person claiming any right, title or interest in the real properties which are the subject of this
action.
STATEMENT OF FACTS
I. The Subject Buildings Where Defendants Have Illegally Conducted and Permitted
Hazardous Transient Accommodations and Where the Violating Conditions Were
Repeatedly Found during OSE’s Inspections
50. Prior to filing this action, DOB Building Inspectors and FDNY Fire Protection
Inspectors assigned to OSE (the “OSE Inspection Team”) performed a total of 17 administrative
code inspections at the Subject Buildings to determine whether each building was being operated
in compliance with applicable law and, if it was not, whether the unlawful use, occupancy and
arrangement of the building posed a danger to the health, welfare and safety of the occupants or
51. Since 2012, in light of the many illegal short-term rentals repeatedly found in the
Subject Buildings and their resulting building safety violations, the OSE Inspection Team issued
Owner Defendants a total of 100 NOVs/Summonses that have resulted in more than $250,000 in
DOB. For buildings constructed after 1938, the applicable record is called the certificate of
occupancy (“C/O”). Once a C/O is issued for a given building, it becomes the governing
document for the use and occupancy of that building. New York City Charter § 645(e). 11
11
New York City Charter § 645(e) provides that “every certificate of occupancy shall, unless and until set aside,
vacated or modified by the board of standards and appeals or a court of competent jurisdiction, be and remain
binding and conclusive upon all agencies and officers of the city … and no order, direction or requirement affecting
or at variance with any matter set forth in any certificate of occupancy shall be made or issued by any agency or
officer of the city … unless and until the certificate is set aside, vacated or modified by the board of standards and
18
21 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
53. The applicable DOB record that governs the legal use and occupancy of 410 West
46th Street is certificate of occupancy (“C/O”) No. 21126. According to C/O No. 21126, 410
West 46th Street is a five-story, Class “A” Multiple Dwelling, with a permissible use and
occupancy of 15 total Class “A” apartments, 12 all of which may only be occupied on a
54. Since 2012, the CITY has received, to date, about 13 different complaints
concerning illegal short-term rentals in various apartments in 410 West 46th Street. As early as
May 2012, the CITY received a complaint from the public stating that the residential building
was “being used as a hotel units” (sic). [BIS Complaint No. 1326102] Later that same year,
another complaint stated that the building owners had “converted apartments in buildings 410
and 412 West 46th Street into hotel rooms. . . ” [BIS Complaint No. 1338495] Thereafter, the
CITY received additional complaints contending that illegal hotel rooms were being offered and
occupied within 410 West 46th Street in 2013, 2014, 2015, 2016, 2018, and 2019.
investigations stemming therefrom, the OSE Inspection Team inspected 410 West 46th Street on
June 12, 2013, April 9, 2014, April 17, 2015, June 14, 2016, May 5, 2018, December 7, 2018,
February 9, 2019 and May 24, 2019, to determine whether this building was being operated in
compliance with applicable law, or whether it posed a danger to the health, welfare and safety of
56. During each of the eight inspections, the OSE Inspection Team found, among
other building violations, that at least five out of 15 Class “A” multiple dwelling units within 410
appeals or a court of competent jurisdiction upon application of the agency, department, commission, officer or
member thereof seeking to make or issue such order, direction or requirement.”
12
C/O No. 21126 also permits legal occupancy of the cellar for “Boilerroom and Storage”.
19
22 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
West 46th Street (1/3) were being rented and occupied on a transient basis for less than 30-day
stays, contrary to the C/O, and in violation of the MDL, the Building Code, and the New York
57. In addition, other serious immediately hazardous violations were also observed at
410 West 46th Street during each of the eight inspections – including violations involving the
more stringent fire safety requirements for transient occupancy. There were failures to provide a
fire alarm system, an automatic sprinkler system, and sufficient means of egress for each floor,
as required by the Building Code for transient use to ensure the safety of tourists and other
visitors unfamiliar with a building’s layout and emergency exits and/or the CITY’s fire safety
protocols.
of 410 West 46th Street, with about $82,175 penalties imposed by OATH thus far. Each
NOV/Summons issued by the CITY directed the defendant property owner to immediately
remediate the particular violating condition and to then timely certify such correction with DOB.
59. To date, 410 West 46th Street continues to be deceptively advertised and booked,
and hazardously and unlawfully used and occupied for short-term transient occupancy purposes,
in violation of the MDL, the Building Code, and the Fire Code.
a. June 12, 2013 OSE Inspection and Illegal Transient Use Found in 410 West 46th
Street, Apartment 4A
60. On June 12, 2013, an OSE Inspection Team encountered four people from England
who were about to depart from 410 West 46th Street, Apartment 4A, and had spent a total of five
20
23 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
61. A description of each violation issued by the DOB inspector against Defendant
62. Thereafter, by January 15, 2014, Defendant HIGHPOINT had failed to comply with
its statutory duty to timely certify its correction of the immediately hazardous conditions which led
to DOB’s issuance of the June 12, 2013 Class 1 ECB summonses [Summons Nos. 35007309H,
35007310P, 35007311R].14 Consequently, its failure to timely certify correction resulted in the
13
A Violation Classification depends on the severity of the hazardous conditions which gave rise to each violation
[i.e., Class 1, Class 2, or Class 3], and directs the particular remedy for the respondent building owner to address
each violation, which could be “Discontinue Illegal Occupancy.”
14
As part of the routine process for submitting a certificate of correction to DOB, a respondent is required to attach
a “sworn/affirmed statement describing the work done to correct the violating condition(s).” In addition, they are
also required to attach copies of “all permits, bills, receipts, photographs, and/or other documentary proof that the
violating condition(s) has/have been corrected, or [that they] have explained in [their] statement why such are not
available.”
Each respondent is also required to complete and submit a form affidavit provided by DOB: the “AEU2: Certificate
of Correction”. This form affidavit expressly states on its face, just above the bottom of the page where the affiant is
required to sign it, under oath and subject to the penalty of perjury: “I [the Affiant] have personal knowledge that
the violating condition(s) have been corrected as per this affidavit and statement(s) attached.” The form affidavit
further expressly states, at the very bottom of the page, below the affiant’s signature line: “False certification is a
criminal misdemeanor under sections 28-203.1.1 and 28-211.1 of the NYC Administrative Code, punishable by up
to 1 year imprisonment and/or a fine of up to $25,000. It is also punishable with a civil penalty of up to $25,000.”
After a certificate of correction is submitted by a respondent and received by DOB, due to the volume of such
certificates received by the CITY, they are routinely accepted and the DOB AEU then sends a “Certificate of
Correction Approval” letter to that respondent, notifying the respondent of its approval. However, that approval
letter expressly states, in pertinent part, that: “The Department of Buildings reserves the right to revoke its approval
if a subsequent review discloses any inaccuracy in submission; and, in addition, may re-inspect any premises in
order to monitor compliance.” In some cases, a certificate of correction can be disapproved after submission for
various reasons.
21
24 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
issuance by the Administrative Enforcement Unit (“AEU”) of an additional three DOB violations,
63. Defendant HIGHPOINT was found “in violation” of each one of the June 12,
2013 summonses by OATH in a decision, dated June 27, 2014, which imposed a total of $4,100
in civil penalties. To date, Defendant HIGHPOINT has failed to pay any amount that it owes to
the CITY from the monetary civil penalties imposed upon it by OATH.
64. It was not until June and July 2014, more than a full year following the issuance
of the three Class 1 (Immediately hazardous) and one Class 2 (Major) violations that Defendant
HIGHPOINT finally filed various certificates of correction with DOB attesting that it had
corrected all of the violating conditions which gave rise to the issuance of the June 12, 2013
Summonses. All of the certificates of correction that were filed on behalf of Defendant
notarized in Los Angeles, California, which stated, in pertinent part, that “. . . all conditions
described in the violation have been corrected, including but not limited to discontinuing any and
b. April 9, 2014 OSE Inspection and Illegal Transient Use Found in 410 West 46th
Street, Apartments 1A, 3A, & 4A
65. On April 9, 2014, an OSE Inspection Team interviewed a male guest from
Argentina travelling with three other guests staying in Apartment 1A from April 7, 2014 to April
66. OSE Inspection Team also observed another group of four guests from Atlanta,
Georgia, this time occupying Apartment 3A, from April 5, 2014 to April 12, 2014 for about
22
25 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
$1,269.00, that they had booked through VRBO. The guests also showed a two-page document
that they received from host “Lane Direct LLC (“Lane Direct”).” 15
67. Finally, OSE Inspection Team interviewed transient guests from Calgary, Canada
occupying Apartment 4A for five nights, having paid about $300 per night, booked through
Homeaway.
69. Defendant HIGHPOINT was found “in violation” of the four April 9, 2014
summonses by OATH in a decision, dated January 15, 2015, which imposed a total of $21,300 in
civil penalties. To date, Defendant HIGHPOINT has failed to pay any amount that it owes to the
70. On June 17, 2014, Defendant HIGHPOINT filed five certificates of correction
with DOB attesting that it had corrected all of the violating conditions which gave rise to the
15
According to Defendant HIGHPOINT’s complaint filed on July 19, 2017 in the Supreme Court of the State of
New York, County of New York (Index No. 654906/2017), “Lane Direct receives payments from customers of Sky
Worldwide’s ‘vacation rental’ business.”
23
26 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
issuance of the April 9, 2014 Summonses. All of the certificates of correction that were filed on
prepared and notarized in Los Angeles, California, which stated, in pertinent part, that “. . . all
conditions described in the violation have been corrected, including but not limited to
discontinuing any and all transient use in Apartments 1A, 3A, and 4A, as well as throughout the
building.”
c. April 17, 2015 OSE Inspection and Illegal Transient Use Found in 410 West 46th
Street, Apartment 5A
71. On April 17, 2015, an OSE Inspection Team found four transient guests from
Minnesota staying in Apartment 5A from April 16, 2015 to April 22, 2015, having paid about
$1,047 booked through VRBO. The transient guests also provided that they were coached by the
host Lane Direct to tell anybody who inquired that they were staying one month, when in fact
73. Defendant HIGHPOINT was found “in violation” of the April 17, 2015
summonses by OATH in a decision, dated October 16, 2015, which imposed a total of $17,500
24
27 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
in civil penalties. To date, Defendant HIGHPOINT has failed to pay any amount that it owes to
the CITY from the monetary civil penalties imposed upon it by OATH.
74. Between June 8 and 10, 2015, Defendant HIGHPOINT filed four certificates of
correction with DOB attesting that it had corrected all of the violating conditions which gave rise
to the issuance of the April 17, 2015 summonses. All of the certificates of correction that were
LAGANA prepared and notarized in Los Angeles, California, which stated, in pertinent part, that
“. . . all conditions described in the violation . . . have been corrected, including but not limited to
discontinuing any and all transient use in Apartment 5A, as well as throughout the building.”
75. In support of the certificate of correction that was filed regarding Defendant
HIGHPOINT’s purported correction of the illegal short-term transient conversion and use of
Apartment 5A, Defendant LAGANA, attached, inter alia, a copy of a lease purporting to be for
more than 30 days. The lease, however, is not only illegible, but also failed to adequately
establish that all of the transient use in the building itself had, in fact, been discontinued.
76. In each one of the four certificate of correction DOB-forms that Defendant
LAGANA prepared and signed and that Defendant HIGHPOINT submitted to DOB, they
asserted that the corrective work was completed on “02/26/2015” and that that corrective work
was completed by a “contractor” who they stated was “Faridj Ait (Tenant)” from the company
“Paramount Properties NY (Lane Direct LLC)”, having an address at “410 West 46th Street, #5A,
New York, NY 10036”. However, the date the corrective work allegedly was completed,
“2/26/2015”, was a little less than two full months prior to when the April 17, 2015 Summonses
were issued.
25
28 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
77. Moreover, the “contractor” i.e., “Lane Direct LLC” who allegedly completed the
work that corrected the transient use-related violations, was not only described in the certificates
of correction as a “tenant,” but it was also actually the “Host” that the transient guests identified
2017 in the Supreme Court of the State of New York, County of New York (Index No.
654906/2017), Faridj Ait a.k.a. Faridj Ait Abdelkader a.k.a. Abdelkader Faridj (“Ait”) is the
“principal of both Sky Worldwide and Lane Direct,” and with “Sky Worldwide operates a
‘vacation rental’ business through the trade names New York Travel Rentals and Paramount
Properties, listing New York City apartments for short-term rentals in violation of the New York
State Multiple Dwelling Law,” and “Lane Direct receives payments from customers of Sky
d. June 14, 2016 OSE Inspection and Illegal Transient Use Found in 410 West 46th
Street, Apartment 1B
79. On June 14, 2016, an OSE Inspection Team found a male who identified himself
as “Carlos Woodman,” and 3 guests from China in Apartment 1B. Mr. Woodman attempted to
stop the OSE Inspection Team from speaking to the Chinese guests. Despite Mr. Woodman’s
efforts, the Chinese guests told OSE Inspection that they were all staying in that apartment from
June 12, 2016 through June 15, 2016, for about $744.00, booked through Airbnb.
80. Airbnb subpoena response records show that the Airbnb host identification no.
565905, with name “Carlo Woodman,” offered and operated illegal short-term rental (through
Airbnb listing identification no. 109788) in the Subject Building 410 West 46th Street.
26
29 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
82. Defendant HIGHPOINT was found “in violation” of the June 14, 2016
summonses by OATH in a decision, dated May 19, 2017, which imposed a total of $11,400 in
civil penalties upon the Defendant HIGHPOINT. To date, Defendant HIGHPOINT has failed to
pay any amount that it owes to the CITY from the monetary civil penalties imposed upon it by
OATH.
83. On or about July 14, 2016, Defendant HIGHPOINT filed four certificates of
correction with DOB attesting that it had corrected all of the violating conditions which gave rise
to the issuance of the June 14, 2016 summonses. All of the certificates of correction that were
filed on behalf of Defendant HIGHPOINT included only conclusory affidavits, sworn to and
notarized on June 16, 2016, in Los Angeles, California by Defendant LAGANA, which stated, in
pertinent part, that all conditions cited in the respective violations had been corrected.
84. Specifically with regard to the summons 35169909N, the affidavit by Defendant
LAGANA expressly alleged, in that “. . . [A]ll conditions … have been corrected; including but
not limited to, ensuring that there isn’t any transient use in apartment 1B by vacating the
apartment, thereby complying with the existing certificate of occupancy, # 21126.” The
27
30 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
certificates of correction also included three illegible black and white copies of photographs,
e. October 24, 2017 Work Without a Permit Summons Issued For Apartments 1C
and 2A in 410 West 46th Street
85. On October 24, 2017, a DOB Inspector observed that work was being conducted
in the building without the necessary DOB work permit first having been obtained. Specifically,
DOB Inspector observed that two apartments [Apartments 1C and 2A] were undergoing
renovation with gutted plumbing and electrical work. In addition, the construction of new
partitions was noted in Apartment 1C. The inspector determined that such work without a permit
87. Based on the severity of the hazardous conditions that the inspector observed during
his October 24, 2017 inspection of 410 West 46th Street which resulted from Defendant
HIGHPOINT’s engagement of work without a required DOB permit, DOB Inspector Bishoy, in
addition to issuing the aforementioned summons No. 35294270Y, also issued a DOB Stop Work
Order.
88. Thereafter, Defendant HIGHPOINT failed to comply with its statutory duty to timely
certify its correction of the immediately hazardous conditions which led to the issuance of the
October 24, 2017 Class 1 ECB summons. Consequently, on January 24, 2018, its failure to timely
certify correction resulted in the issuance of an additional DOB AEU violation with a $1,500
automatic civil penalty imposed on the defendant property owner. To date, Defendant
28
31 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
HIGHPOINT has failed to pay the $1,500 monetary penalty to the CITY and the violation is still
89. Subsequently, by April 11, 2018, Defendant HIGHPOINT had still failed to comply
with the DOB Commissioner’s Order to certify its correction of the immediately hazardous
conditions which gave rise to the issuance of the October 24, 2017 Class 1 ECB summons No.
35294270Y. Consequently, DOB issued yet another summons [No. 35328800P] to Defendant
HIGHPOINT, this time for its failure to comply with the DOB Commissioner’s Order contained
within summons No. 35294270Y and to file a certificate of correction pursuant to Administrative
Code § 28-201.1 and 1 RCNY 102-01, another Class 1 Immediately Hazardous violation.
90. On June 4, 2018, DOB issued yet one more summons [No. 35339326K] to
Defendant HIGHPOINT, once again for its continued failure to comply with the DOB
Commissioner’s Order contained within summons No. 35294270Y and to file a certificate of
correction pursuant to Administrative Code § 28-201.1 and 1 RCNY 102-01. This ECB
summons was issued more than seven months after the initial issuance of summons No.
35294270Y to HIGHPOINT, more than four months after the January 24, 2018 issuance of DOB
unit, and an additional nearly two months of time after the April 11, 2018 issuance of yet another
ECB summons to HIGHPOINT, all resulting from its continuing failure to timely certify its
correction of the October 24, 2017 Class 1 summons issued for having conducted work without a
91. Defendant HIGHPOINT was found “in violation” of the October 24, 2017
summons [No. 35294270Y] by OATH in a decision, dated June 19, 2018, which imposed a civil
penalty in the amount of $1,600. To date, Defendant HIGHPOINT has still not complied with
29
32 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
the Commissioner’s Order to certify its correction of the conditions that led to the issuance of the
92. Defendant HIGHPOINT was also found “in violation” of the April 11, 2018
Summons [No. 35328800P] by OATH in a decision, dated August 9, 2018, which imposed a
civil penalty in the amount of $2,500. To date, Defendant HIGHPOINT has still not complied
with the Commissioner’s Order to certify its correction of the conditions that led to the issuance
of the summons and it has failed to pay the CITY any amount of the monetary penalty imposed
by OATH.
93. Yet again, Defendant HIGHPOINT was also found “in violation” of the June 4,
2018 Summons [No. 35339326K] by OATH in a decision, dated July 20, 2018, which imposed a
civil penalty in the amount of $1,250. To date, Defendant HIGHPOINT has still not complied
with the Commissioner’s Order to certify its correction of the conditions that led to the issuance
of the summons and it has failed to pay the CITY any amount of the monetary penalty imposed
by OATH.
94. To date, Defendant HIGHPOINT has yet to certify its correction of the hazardous
conditions which gave rise to the issuance of summons No. 35294270Y for work without a permit
conducted within 410 West 46th Street, more than a year-and-a-half after the issuance of the
f. May 5, 2018 OSE Inspection and Illegal Transient Use Found in 410 West 46th
Street, Apartment 4A
95. On May 5, 2018, the OSE Inspection Team found transient guests in Apartment
4A, staying from April 28, 2018 to May 5, 2018, having paid a total of €3223.55 (Euros), 16
16
Approximately $3,615.69 US Dollars.
30
33 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
96. Airbnb subpoena response records show that the Airbnb host identification no.
33697446, with name “Valentino J,” offered and operated illegal short-term rental (through
Airbnb listing identification no. 19520974) in the Subject Building 410 West 46th Street.
98. Defendant HIGHPOINT was found “in violation” of the four May 5, 2018
summonses by OATH in a decision, dated October 5, 2018, which imposed a total of $27,875 in
civil penalties. To date, Defendant HIGHPOINT has failed to pay any amount that it owes to the
correction with DOB attesting that it had corrected all of the violating conditions which gave rise
to the issuance of the May 5, 2018 summonses. All of the certificates of correction that were
LAGANA, sworn to and notarized, in Los Angeles, California, which stated in pertinent part,
that all conditions cited in the respective violations have been corrected.
[A]ll conditions cited in the violation have been corrected, including but not limited to ensuring
31
34 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
there is no transient use in apartment 4A by vacating the apartment until a lease for at least 30
days is implemented. There is no transient use throughout the entire building, thereby rendering
the requirement to provide [a system of automatic sprinklers/the required means of egress/a fire
101. Lastly, the affidavit, dated July 12, 2018, by Defendant LAGANA incredibly
contended that the corrective work he “personally” completed, essentially by “vacating the
apartment [4A]”, was completed on May 5, 2018 [the very same day that the four transient use-
related summonses were issued to Defendant HIGHPOINT], and submitted five black and white
copies of photographs, bearing a date of “06/05/2018” and a description that reads, in pertinent
part: “410 West 46 Street, Apt. 4A, New York, NY 10036 . . . Photos taken on June 5, 2018.
g. December 7, 2018 OSE Inspection and Illegal Transient Use Found in 410 West
46th Street, Apartment 3A
102. On December 7, 2018, an OSE Inspection Team found transient guests from
Michigan staying in Apartment 3A, from December 7 through December 9, 2018, having paid
$782.40, booked through Airbnb with their Airbnb host, “Alex”, telling them to pick up their
103. In addition to the information they provided during their interview, the guests also
showed the OSE Inspection Team a copy of a one page document they received from “Alex”
entitled “House Guide & Rules – Welcome to New York”. Within this document were
instructions that were provided to them by their Airbnb host. The document stated, in pertinent
parts, that:
First and foremost we want to thank you for staying in our home
during your visit! Please carefully review this information and let us
know if you have any questions or concerns.
32
35 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
104. Airbnb subpoena response records show that the Airbnb host identification no.
133005440, with name “Alex Choclin,” offered and operated illegal short-term rental (through
Airbnb listing identification no. 29851991) in the Subject Building 410 West 46th Street.
106. Between February 7 and 12, 2019, Defendant HIGHPOINT filed four certificates
of correction with DOB attesting that it had corrected all of the violating conditions which gave
rise to the issuance of the December 7, 2018 summonses. All of the certificates of correction
that were filed on behalf of Defendant HIGHPOINT included only conclusory affidavits by
Defendant LAGANA, sworn to and notarized, in Los Angeles, California, which stated, in
pertinent part, that all conditions cited in the respective violations have been corrected.
107. With regard to the summons No. 35374398N, the affidavit by Defendant
LAGANA expressly alleged, in pertinent part, that “. . . [A]ll conditions cited in the violation
33
36 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
have been corrected, including but not limited to, discontinuing transient use in Apartment #3A
on 12/8/2018 and ensuring its use as a long-term residence. The long-term lease for Apartment
#3A was signed on 11/1/2018. Transient use has been discontinued throughout the premises.”
Notably, the affidavit by Defendant LAGANA in Los Angeles, California contended that the
corrective work he personally completed to discontinue the transient use of the apartment was
completed on December 8, 2018, the day immediately following the issuance of the Summons
Apartment # 3A in support of the certificate of correction, but only submitted the first and last
pages of the seven page lease agreement, not the entire copy. In addition, the submission of that
‘lease’ failed to establish that the illegal short-term transient occupancy had, in fact, been
was evidently signed by the tenant [Emilio Choclin] on October 30, 2018 with the lease period
commencing on November 1, 2018, which was about five weeks prior to issuance of the
h. February 9, 2019 OSE Inspection and Illegal Transient Use Found in 410 West
46th Street, Apartment 3A
109. On February 9, 2019, the OSE Inspection Team spoke to three guests from China
staying within Apartment 3A from February 8, 2019 to February 13, 2019, for ¥9000 17 booked
17
Approximately $1,308.84 US Dollars.
34
37 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
111. Between April 3 and 4, 2019, Defendant HIGHPOINT filed four certificates of
correction with DOB attesting that it had corrected all of the violating conditions which gave rise
to the issuance of the February 9, 2019 summonses. All of the certificates of correction that
Defendant LAGANA prepared and notarized in Los Angeles, California, which stated, in
pertinent part, that all conditions cited in the respective violations have been corrected.
112. With regard to the summons No. 35383332P, the affidavit by Defendant
LAGANA expressly alleged, in pertinent part, that “. . . [A]ll conditions cited in the violation
have been corrected, including but not limited to discontinuing transient use in Apartment #3A
on 2/9/2019 and ensuring its use as a long-term residence. The long-term lease for Apartment
#3A was signed on 11/1/2018. Transient use has been discontinued throughout the premises.”
Notably, the affidavit by Defendant LAGANA contended that the corrective work he personally
completed to discontinue the transient use of the apartment was completed on February 9, 2019,
the very same day that the CITY issued the Summons.
Apartment 3A, and it attaches what purports to be a copy of that lease in support of the
35
38 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
certificate of correction. However, Defendant HIGHPOINT only submitted the same lease for
Apartment 3A signed by the tenant [Emilio Choclin] on October 30, 2018, which was previously
submitted as part of certificate of correction for the illegal short-term rental violation issued on
December 7, 2018.
i. May 24, 2019 OSE Inspection and Illegal Transient Use Found in 410 West 46th
Street, Apartment 3A
114. On May 24, 2019, the OSE Inspection Team interviewed three guests from
Japan, staying in Apartment 3A from May 20, 2019 to May 24, 2019, having paid approximately
$500 per night, booked through Airbnb, with their Airbnb host named “Valud.”
115. This is the third time in a year that OSE Inspection Team found illegal short-term
rental in the same apartment (3A), despite Defendants HIGHPOINT and LAGANA having
sworn repeatedly to DOB and the CITY that they had actually terminated all of the illegal short-
116. On May 24, 2019, the OSE Inspection Team, also interviewed a female who
identified herself as “Elizabeth,” and said that she was at 410 West 46th Street to clean up
36
39 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
118. To date, Defendant HIGHPOINT filed four certificates of correction that are
pending with DOB, attesting that it has corrected all of the violating conditions which gave rise
to the issuance of the May 24, 2019 Summonses for Class 1 Immediately hazardous conditions.
119. The applicable DOB record that governs the legal use and occupancy of 412 West
46th Street is C/O No. 21125. According to C/O No. 21125, 412 West 46th Street is a five-story,
Class “A” Multiple Dwelling, with a permissible use and occupancy of 15 total Class “A”
apartments. 18
120. Between May 2012 and September 2016, the CITY received 11 different
complaints concerning illegal short-term rentals in various apartments in 412 West 46th Street.
Specifically, on May 29, 2012, the CITY received a complaint [BIS Complaint No.1326101]
from the public claiming that the residential building was being rented as hotel units, identifying
investigations stemming therefrom, the CITY has inspected and found illegal short-term rentals
122. During those inspections, the OSE Inspection Team found, among other building
violations, that at least four out of the total 15 Class “A” multiple dwelling units (almost 1/3)
within 412 West 46th St. had been rented and occupied on a transient basis for less than 30-day
stays, contrary to the C/O, and in violation of the MDL, the Building Code, and the Fire Code.
123. In addition, other serious immediately hazardous violations were also observed
during each of the inspections, including violations involving the more stringent fire safety
18
C/O No. 21125 also permits legal occupancy of the cellar for “Storage”.
37
40 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
requirements under the Building Code for transient occupancy and use: failures to provide a fire
alarm system, an automatic sprinkler system, and sufficient means of egress for each floor.
of the building, resulting in about $159,500 penalties imposed thus far. Each NOV/Summons
issued by the CITY directed the defendant property owner to immediately remediate the
particular violating condition and to then timely certify such correction with DOB.
125. Upon information and belief, 412 West 46th Street continues to be deceptively
advertised and booked, and hazardously and unlawfully used and occupied for short-term
transient occupancy purposes, in violation of the MDL, the Building Code, and the Fire Code.
a. June 27, 2012 OSE Inspection And Illegal Transient Use Found in 412 West 46th
Street, Apartments 2B & 3A
126. On June 27, 2012, the OSE Inspection Team encountered guests from Puerto Rico
in Apartment 2B, staying for ten days. They also encountered guests from Canada, staying in
Apartment 3A for five days. Lastly, they observed a female cleaning staff in Apartment 1A, who
explained that she was cleaning that apartment for a company called “Casanova’s Condos.”
38
41 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
128. Thereafter, by October 3, 2012, Defendant HIGHPOINT had failed to comply with
its statutory duty to timely certify its correction of the immediately hazardous conditions which led
to DOB’s issuance of the four June 27, 2012 Class 1 ECB summonses. Consequently, its failure to
certify correction resulted in the issuance that day of an additional four DOB violations, each one
owner.
129. Defendant HIGHPOINT was found “in violation” of each one of the five June 27,
2012 Summonses by OATH in a decision, dated July 10, 2014, which imposed a total of $7,000
in civil penalties.
of correction with DOB attesting that it had corrected all of the violating conditions which gave
rise to the issuance of the five June 27, 2012 Summonses. Each one of the five certificates of
b. November 2, 2012 OSE Inspection and Illegal Transient Use Found in 412 West
46th Street, Apartments 4C & 5B
131. On November 2, 2012, OSE Inspection Team interviewed guests from Austria,
occupying Apartment 4C from October 22, 2012 to November 2, 2012, having booked and paid
19
Although one of those five certificates was eventually subsequently accepted by DOB [for the Class 2 violation
cited in NOV 34980243M], certificates of correction for the remaining four DOB Summonses remain outstanding,
more than seven years after the issuance of those four ECB Summonses for the Class 1 immediately hazardous
violating building conditions.
39
42 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
132. During their inspection that day, the OSE Inspection Team also interviewed
another guest from England in Apartment 5B, having paid to stay from October 23, 2012 to
134. Defendant HIGHPOINT was found “in violation” of six of the eight November 2,
2012 summonses by OATH in three separate decisions, dated March 11, 2013, March 25, 2013,
and June 21, 2013, which imposed a total of $7,000 in civil penalties. 20
135. On July 23, 2013, Defendant HIGHPOINT filed six certificates of correction with
DOB. However, instead of attesting that it had corrected all of the violating conditions which
gave rise to the issuance of the November 2, 2012 summonses, it claimed that no violations had,
20
The Summonses numbers 34980005R and 34980006Z were dismissed at OATH.
40
43 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
136. In addition, Defendant LAGANA claimed that “The building is not occupied as
transient use in Apts. 5B and 4C. Anything that could have been construed as transient use and/or
illegal occupancy has ceased. The current tenants have a one year lease.”
c. September 7, 2013 OSE Inspection and Illegal Transient Use Found in 412 West
46th Street, Apartment 5B
137. On September 7, 2013, the OSE Inspection Team found that Apartment 5B at 412
West 46th Street, which could only be legally used for permanent residential purposes was, in
fact, still illegally converted and was then being used for transient occupancy, once again,
supposed termination of such transient use in that building and more specifically within that
particular apartment.
41
44 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
139. Defendant HIGHPOINT defaulted on each one of the six summonses that were
issued to it on September 7, 2013. As a result, OATH imposed monetary civil penalties upon
Defendant HIGHPOINT in the total amount of $62,000. To date, Defendant HIGHPOINT has
failed to pay any amount that it owes to the CITY from the monetary civil penalties imposed
certificates of correction with DOB apparently attesting that it had corrected all of the violating
conditions which gave rise to the issuance of the ECB summonses to it on September 7, 2013.
141. For example, regarding the certificate of correction for NOV #35033609Z,
Defendant HIGHPOINT, through the affidavits submitted on its behalf by its Managing Agent,
142. A review of the lease included with the certificate of correction shows that “new
tenant” – Sky Worldwide – commenced its leasehold on January 15, 2013, approximately eight
months prior to the issuance of the NOV for unlawful transient occupancy.
42
45 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
144. Thereafter, Defendant HIGHPOINT failed to comply with its statutory duty to
timely certify its correction of the immediately hazardous conditions which led to the issuance of
each one of the five September 7, 2013 ECB Class 1 summonses referred to above. Consequently,
on January 15, 2014, its failure to timely certify correction resulted in the issuance of an additional
five DOB violations with a $1,500 automatic civil penalty imposed on the Respondent property
43
46 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
owner for each one of those five violations, for a total civil penalty imposed of $7,500. This civil
penalty was in addition to whatever penalties may subsequently have been assessed by the
ECB/OATH Court. To date, all five AEU-issued violations remain “Active” and none of their
civil monetary penalties have been paid by Defendant HIGHPOINT, although it has been five-and-
145. Subsequently, Defendant HIGHPOINT was found “in violation” of each one of
the above-referenced ten September 7, 2013 summonses by OATH after a hearing conducted on
April 24, 2014. A total of $28,000 in monetary civil penalties was imposed on Defendant
HIGHPOINT.
146. Between July 30 and August 13, 2014, Defendant HIGHPOINT filed ten
certificates of correction, one for each of the aforementioned ten summonses issued to it on
September 7, 2013, in which it had claimed, under oath and pursuant to the penalties of perjury,
that it had complied with the DOB Commissioner’s orders to remediate all of the hazardous
conditions which gave rise to the issuance of those ten summonses. Each and every one of those
ten purported certificates of correction was subsequently disapproved upon review by the DOB,
and the violations remains “Open”, nearly six years after the time that it was required to certify
d. June 1, 2015 OSE Inspection and Illegal Transient Use Found in 412 West 46th
Street, Apartment 2B
147. On June 1, 2015, the OSE Inspection Team encountered guests from England in
Apartment 2B, who were staying from May 28, 2015 through June 4, 2015, having paid about
21
Approximately $2,015.97 US Dollars.
44
47 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
149. Defendant HIGHPOINT was found “in violation” of the four June 1, 2015
summonses by OATH in a decision, dated October 23, 2015, which imposed a total of $20,500
in civil penalties upon the Defendant building owner. To date, Defendant HIGHPOINT has
failed to pay any amount that it owes to the CITY from the monetary civil penalties imposed
upon it by OATH.
150. On or about June 18, 2015, Defendant HIGHPOINT filed four certificates of
correction with DOB attesting that it had corrected all of the violating conditions which gave rise
to the issuance of the June 1, 2015 summonses. All of the certificates of correction that were
LAGANA prepared and notarized in Los Angeles, California, which stated, in pertinent part, that
HIGHPOINT, he swore that he had allegedly corrected the four violations by “ensuring that
there isn’t any transient use in Apartment 2B by having a lease for greater than 30 days”.
Defendant LAGANA also swore that he had performed the work on “2/16/2015” to ensure that
45
48 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
there was no more transient use in the Subject Building, even though each one of the four
violations arising out of the unlawful transient use of the building was not issued until June 1,
2015, three-and-a-half months prior to when Defendant LAGANA claimed to have corrected the
152. Furthermore, the lease for Apartment 2B that Defendant LAGANA submitted in
support of the four certificates of correction is one that Defendant HIGHPOINT entered into with
its tenant (Eran Arkin) on or about January 8, 2015, for the lease term beginning on February 16,
2015, three-and-a-half months prior to the issuance of the transient occupancy violations.
Interestingly, that lease also included an “Addendum to Lease” wherein Defendant HIGHPOINT
expressly gave its tenant the right “to sublet the apartment to numerous tenants”. Although the
addendum stated that the tenant may only sublet the apartment for a minimum of thirty days, it
specifically noted that “Any fines due to transient use will be the full responsibility of the tenant
and Guarantor.”
e. August 24, 2015 OSE Inspection and Illegal Transient Use Found in 412 West
46th Street, Apartment 2B
153. On August 24, 2015, an OSE Inspection Team encountered guests from Argentina
in Apartment 2B staying from August 22, 2015 to August 30, 2015, having paid $2,800, booked
through Airbnb.
46
49 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
155. Defendant HIGHPOINT was found “in violation” of the four August 24, 2015
summonses by OATH in a decision, dated January 22, 2016, which imposed a total of $21,500 in
civil penalties upon the Defendant building owner. To date, Defendant HIGHPOINT has failed
to pay any amount that it owes to the CITY from the monetary civil penalties imposed upon it by
OATH.
156. Between September 2 and 8, 2015 Defendant HIGHPOINT filed four certificates
of correction with DOB attesting that it had corrected all of the violating conditions which gave
rise to the issuance of the August 24, 2015 summonses. All of the certificates of correction that
Defendant LAGANA prepared and notarized in Los Angeles, California, which stated, in
pertinent part, that “all conditions cited [or “described”] in the violation has been corrected,
including but not limited to discontinuing any all occupancy of apartment 2B on the second floor
and ensuring that there is no known transient use within apartment 2B as well as throughout the
entire building”.
HIGHPOINT demonstrating that it had actually terminated the transient occupancy in Apartment
2B found on August 24, 2015 were mostly illegible copies of photographs allegedly depicting
158. In addition, the certificate of correction that was filed by Defendant LAGANA on
behalf of Defendant HIGHPOINT for summons number 35139081P swore that the work to
47
50 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
remediate the August 24, 2015 violation was personally completed by Defendant LAGANA on
February 28, 2015, nearly six months before the violation was even issued by the CITY.
f. February 14, 2019 Violations for Failure to Comply With DOB Commissioner’s
Orders to Certify Correction of Prior Illegal Transient Use-Related Violations
At 412 West 46th Street And Its Filing of False Certifications Containing
Materially False Statements
159. As noted above, at various times between June 2012 and August 2015, DOB
issued various violations to the Defendant HIGHPOINT, arising out of the unlawful short-term
160. Each one of those violation set forth an express notice to Defendant HIGHPOINT
that “The Commissioner orders that you timely correct these conditions and file a certificate of such
correction. Uncorrected violations are subject to additional violations and penalties.” A certificate
of correction is a DOB-specific form for correcting all classes of DOB-ECB violations. Certificates
of correction must be filed with DOB to prove compliance and close out all DOB-ECB violations.
161. On February 14, 2019, based on a review of applicable DOB records, a DOB
Inspector assigned to OSE issued 14 different new violations to Defendant HIGHPOINT based on
its multiple failures to comply with its duty to file certificates of correction with DOB for various
162. The applicable DOB record setting forth the legal use and occupancy of 452 West
36th Street is the relevant HPD I-Card. This is because that building does not have any
applicable C/O and, in such cases, relevant I-Cards should be consulted. According to the
applicable I-Card, 452 West 36th Street is an Old Law Tenement building with a total of 20 Class
48
51 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
163. Since 2013, the CITY has received, to date, about seven different complaints
concerning illegal short-term rentals in various apartments in 452 West 36th Street. As early as
December 2013, the CITY received a complaint from the public stating that the residential
building was “being used as a hotel room” with “different people going in & out once a week
…”. [BIS Complaint No. 1361720] Most recently in April 2019, the CITY received a complaint
from the public stating that “despicable, money-hungry, unethical persons running multiple
Airbnb accounts under fake names and with unsafe conditions” operated illegal short-term
rentals in apartments within 452 West 36th Street. [BIS Complaint No. 1506945]
164. Based on numerous complaints of illegal hotel activities, the OSE Inspection
Team inspected 328 West 47th St. on two occasions in 2016 and 2019, and on both occasions
165. During each inspection, the OSE Inspection Team found, among other building
violations, that at least two Class “A” multiple dwelling units within 452 West 36th Street were
being rented and occupied on a transient basis for less than 30-day stays, contrary to the C/O,
and in violation of the MDL, the Building Code, and the Fire Code.
166. In addition, other serious immediately hazardous violations were also observed
during each one of the inspections, including violations involving the more stringent fire safety
requirements under the Building Code for transient occupancy and use: failures to provide a fire
alarm system, an automatic sprinkler system, and sufficient means of egress for each floor.
Inspection Team issued eight ECB NOVs/Summonses to Defendant SERENO, as owner of the
building.
49
52 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
168. Upon information and belief, 452 West 36th Street continues to be deceptively
advertised and booked, and hazardously and unlawfully used and occupied for short-term
transient occupancy purposes, in violation of the MDL, the Building Code, and the Fire Code.
a. November 23, 2016 OSE Inspection and Illegal Transient Use Found in 452 West
36th Street, Apartment 2FW
169. On November 23, 2016, an OSE Inspection Team encountered guests from Sweden
staying from November 18, 2016 to November 24, 2016 in Apartment 2FW having paid about
$1,000, booked through Airbnb, with their Airbnb host named “David.”
50
53 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
171. Thereafter, Defendant SERENO failed to comply with its statutory duty to timely
certify its correction of the immediately hazardous conditions which led to DOB’s issuance of the
November 23, 2016 Class 1 ECB summonses for failure to provide fire alarm system for transient
use (Summons No. 35203495Z). Consequently, its failure to certify correction resulted in the
issuance of an additional DOB violation, resulting in a $1,500 automatic civil penalty imposed on
Defendant SERENO.
172. Defendant SERENO was found “in violation” of the other three November 23,
2016 Summonses by OATH in a decision, dated May 19, 2017, which imposed a total of $4,600
in civil penalties. To date, Defendant SERENO has failed to pay any amount that it owes to the
correction with DOB attesting that it had corrected all of the violating conditions which gave rise
to the issuance of the November 23, 2016 Summonses. All of the certificates of correction that
were filed on behalf of Defendant SERENO included only conclusory affidavits by Defendant
LAGANA prepared and notarized in Los Angeles, California, which stated, in pertinent part, that
“. . . all conditions described in the violation have been corrected, including but not limited to
signing a lease with the tenant of unit 2FW for a period longer than 30 days.”
174. However, the lease agreement with tenant Fabio Diaz that Defendant SERENO
provided, is an annual lease for the term of “12 months,” and the renewed lease agreement dated
October 1, 2016 with tenant Fabio Diaz is also for the term of “12 months.” As such, there is no
indication whatsoever as to any new lease agreement being entered as attested to in the
51
54 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
b. April 24, 2019 OSE Inspection and Illegal Transient Use Found in 452 West 36th
Street, Apartment 4FW
175. On April 24, 2019, an OSE Inspection Team encountered guests from Brazil
staying from April 24, 2019 to May 2, 2019 in Apartment 4FW having paid about $170/night.
The Brazilian guest also provided that the host was named “Nikki.”
177. Around May 7, 2019, Defendant SERENO filed various certificates of correction
with DOB attesting that it had corrected all of the violating conditions which gave rise to the
issuance of the April 24, 2019 Summonses. All of the certificates of correction that were filed
prepared and notarized in Los Angeles, California, which stated, in pertinent part, that “. . . all
conditions described in the violation have been corrected, including but not limited to
discontinuing transient use immediately on 4/24/2019 and restoring Apartment 2FW to long-
term occupancy. The long-term lease was signed on 7/1/2018. Transient use has been
52
55 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
178. However, on April 24, 2019, the illegal short-term rental was found in apartment
4FW not 2FW, and there is no indication whatsoever about transient use being discontinued
“immediately on 4/24/2019.”
179. Moreover, in the partial lease agreement Defendant SERENO provided, for a
leasehold running from July 1, 2018 to June 30, 2019 with tenant Joshua Clennon, it is an annual
lease for the term of “12 months.” As such, there is no indication whatsoever as to any new
II. Defendants’ Persistent Failure To Keep The Subject Buildings In A Safe And Code
Compliant Manner, And Engagement In Acts And/Or Omissions That Were Intended
To Cause Permanent Residents To Vacate The Subject Buildings Or To Surrender
Their Rights As Rent-Stabilized Tenants
180. Building Code § 28-301.1 specifies that “The owner shall be responsible at all
times to maintain the building and its facilities and all other structures regulated by this code in a
safe and code-compliant manner and shall comply with the inspection and maintenance
181. Housing Maintenance Code § 27-2005(d) provides that “The owner of a dwelling
shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling as set
53
56 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
54
57 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
A. The Deleterious And Unsafe Building Conditions In Subject Building 410 West 46th
Street Over The Years Have Constituted A Form Of Tenant Harassment
violations that have been committed by Defendant HIGHPOINT due to Defendants’ failure to
maintain 410 West 46th Street in a safe and code compliant manner, there were additional other
that location due to its failure to maintain that building in a safe and code compliant manner.
184. Specifically, based on records kept and maintained by HPD, there are presently
72 open HPD violations in the Subject Building 410 West 46th Street, as follows: 20 open HPD
violations are Class A (Non-hazardous); 46 open HPD violations are Class B (Hazardous); and 6
open HPD violations are Class C (Generally, Immediately Hazardous), including one issued to
185. Of the total 72 Open HPD Violations that have been issued to Defendant
HIGHPOINT, 43 of them are specifically based on the building owner’s violations of Admin.
Code § 27-2005 arising out of its failure to comply with its statutory duty to repair its premises:
12 are Class A Violations, 29 are Class B Violations, and 2 are Class C Violations.
186. Allergens are things in the environment that make indoor air quality worse, and
can cause asthma attacks or make asthma symptoms worse. Common indoor allergens, or
22
According to HPD online glossary, “The violation report will reflect information on three classes of housing code
violations:
A Non-hazardous, such as minor leaks, chipping or peeling paint when no children under the age of six live in
the home, or lack of signs designating floor numbers. An owner has 90 days to correct an "A" violation and two
weeks to certify repair to remove the violation).
B Hazardous, such as public area doors not self-closing, inadequate lighting in public areas, or vermin. An
owner has 30 days to correct a "B" violation and two weeks to certify the correction to remove the violation.
C Generally, Immediately hazardous, such as inadequate fire exits, rodents, lead-based paint, lack of heat, hot
water, electricity, or gas. Generally, an owner has 24 hours to correct a C violation and five days to certify
the correction to remove the violation. If the owner fails to comply with emergency C violations such as
lack of heat or hot water, HPD initiates corrective action through its Emergency Repair Program. Heat
and hot water violations must be corrected immediately. Lead-based paint and window guard violations have a
21 day correction period.”
55
58 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
triggers, include cockroaches and mice; mold and mildew; and chemicals with strong smells, like
some cleaning products. New York City law requires that landlords take steps to keep their
tenants’ homes free of pests and mold. This includes safely fixing the conditions that cause these
187. Prior to the adoption of Local Law 55 in 2018, a New York City landlord’s duty
to exterminate and eradicate rodents and other pests was found in Housing Maintenance Code §
188. In 2015 HPD violations were issued to Defendant HIGHPOINT for its failure to
adequately protect its residents by properly eradicating vermin within the premises at 410 West
189. Between 2008 to 2019, the CITY received about 159 complaints (911 calls) for
the Subject Building 410 West 46th Street, while a similar building across the street – 415 West
46th Street, a five-story multiple dwelling with total of 20 apartments – received only 52
190. Moreover, the Defendants’ continuing failure to properly maintain and safeguard
their buildings has had a seriously adverse effect on the quality of life for their legal residents
56
59 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
and for those persons legally residing in the surrounding buildings. For example, there has
been a noticeable increase in 911 calls placed to the CITY reporting unlawful activities
occurring in the Subject Building 410 West 46th Street and requesting police response over the
past five years that is particularly alarming. As demonstrated in the chart below, the number of
911 calls involving the Subject Building 410 West 46th Street received by the CITY have
191. In addition to the increase of 911 calls requesting police response to the Subject
Building 410 West 46th Street, some of the 911 calls in the past year arose out of several
incidents of people “breaking in,” trespassing, and “sleeping and urinating” inside the building.
In February 2019, there were several 911 calls placed reporting that there was a male who
appeared to be “homeless” and was “sleeping in the hallway” on the first floor and “has his
things all over.” In January 2019, there was another 911 call made reporting two non-residents
“loitering/standing” inside the building, while a similar 911 call was previously made in October
2018.
192. Moreover, in 2019, several 911 calls were received by the CITY specifically
alleging serious criminal activities were then occurring at the Subject Building 410 West 46th
Street. For example, in June 2019, there was one 911 call reporting unknown individuals with
firearm having a dispute at the Subject Building 410 West 46th Street. In March 2019, there was
a 911 call reporting a burglary at the Subject Building 410 West 46th Street. In February, March
57
60 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
and June 2019, there were separate 911 calls placed to the CITY reporting that narcotics were
being sold inside the Subject Building 410 West 46th Street.
B. The Deleterious And Unsafe Building Conditions In Subject Building 412 West 46th
Street Over The Years Have Constituted A Form Of Tenant Harassment
193. In addition to all of the transient occupancy-related building and fire-safety DOB
ECB/OATH violations that have been committed by Defendant HIGHPOINT due to their failure
to maintain the Subject Building at 412 West 46th Street in a code compliant manner, there are
additional other violations issued to it that confirm that there is, indeed, an ongoing statutory
public nuisance occurring at that location due to Defendants’ failure to maintain that building in
194. Specifically, based on HPD records, there are presently 79 open HPD violations
in 412 West 46th Street: 5 open HPD violations are Class A (Non-hazardous); 31 open HPD
violations are Class B (Hazardous); and 37 open HPD violations are Class C (Generally,
Immediately Hazardous).
195. Of the total 79 Open HPD Violations that have been issued to Defendant
HIGHPOINT, 54 of them are specifically based on the building owner’s violations of Housing
Maintenance Code § 27-2005 arising out of its failure to comply with its statutory duty to repair
its premises: 3 are Class A Violations, 22 are Class B Violations, and 29 are Class C Violations.
HIGHPOINT’s failures to remediate dozens of violations issued since 2015 and that are
associated with its presently open HPD violations include such dangers as “fire damage in the
entire apartment,” “structural defect consisting of large cracks extending from the 5th to 1st story
at the rear exterior wall of the building,” “defective crack glass at skylight at bulkhead at public
hall,” “broken or defective sloping floors at public hall,” “broken or defective eroded brick and
58
61 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
mortar joints at wall,” “broken or defective fire retardant material and paint at all walls and
ceilings throughout at public hall,” “the broken or defective wood decking and asphalt material
on roof,” “unsafe electric wiring condition consisting of exposed wires at ceiling,” and
“inadequate lighting at or near the outside of the front entranceway of the building.”
197. Despite the seriously destructive fire that occurred at 412 West 46th Street on
February 4, 2015, Defendants have evidently made little effort to timely repair the damages to
the detriment of permanent residents, who have long suffered from lack of gas supply and
structural and other property damages to their apartments because of the lack of a safely
198. Specifically, DOB has deemed the top two floors “uninhabitable” following the
fire. While the DOB Commissioner had issued a full vacate order covering the entire Subject
Building 412 West 46th Street on May 7, 2016, that order has been converted to a partial vacate
order on September 18, 2017, which is still in place till this day.
199. On March 6, 2015, HPD issued a vacate order [No. 121995] against 412 West 46th
23
Housing Maintenance Code § 27-2139 [Power to order dwelling vacated]:
a. Any dwelling or part thereof, which, because of a structural or fire safety hazard, defects in plumbing, sewage,
drainage, or cleanliness, or any other violation of this code or any other applicable law, constitutes a danger to the
life, health, or safety of its occupants, shall be deemed to be unfit for human habitation.
b. The department may order or cause any dwelling or part thereof which is unfit for human habitation to be vacated.
59
62 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
- § 27-2142 adm code apts have been vacated by this department and cannot
be reoccupied until so ordered after proof of compliance for apts fourth story first
apartment from north at east apartment number 4c. vacate order number 121995.
[2015/03/06].
200. On or about January 31st of each year, HPD designates severely distressed
multiple dwellings for participation in the Alternative Enforcement Program (“AEP”). Selection
criteria include the number of class B hazardous and class C immediately hazardous housing
maintenance code violations and the dollar value of emergency repair charges incurred as a result
of the work performed by HPD. Failure to correct the qualifying conditions may result in
emergency repair charges, liens, and significant fees. Owners of multiple dwellings can avoid
participation in AEP by properly maintaining their building, submitting a current and valid
201. Building owners and managers of buildings selected for AEP are notified and
informed on how to be discharged from the program. If the owner does not correct the
qualifying conditions within the first four months, HPD will issue an AEP Order to Correct that
lists the underlying conditions in need of fixing. The AEP Order to Correct is mailed to the
owner, posted at the building, and filed with the County Clerk. If the owner fails to comply,
HPD may hire a contractor to make the repairs at the owner's expense. An owner's failure to pay
the bill may result in a tax lien being placed against the property.
202. On or about February 1, 2016, Defendant HIGHPOINT was notified that 412
West 46th Street had been selected to participate in the AEP. In order to have their multiple
60
63 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
dwelling discharged from AEP within the first four months, a landlord must perform work to
correct:
- A minimum of 80% of all other Class “B” (hazardous) and Class “C”
(immediately hazardous) violations; additionally,
203. Besides not being discharged from the AEP within the first four months that it
was selected, on or about October 7, 2016, HPD served an Order to Repair/Vacate Order [Vacate
No. 133756] upon Subject Building 412 West 46th Street, which found that pursuant to Admin.
Code §§ 27-2127 (a) and 27-2141, the “dwelling is dangerous to life. and detrimental to the
health and safety of the occupants and others and is unfit for human habitation.”
204. Specifically, the HPD Vacate Order against 412 West 46th Street provided, in
61
64 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
205. To date, more than three-and-a-half years after 412 West 46th Street was first
selected for the AEP by the CITY, and almost three full years after the above-referenced Order
to Repair/ Vacate Order No. 133756 was issued directing it to correct the violating conditions
which gave rise to that Vacate Order, Defendants have still failed to correct those conditions.
206. Between 2008 and 2019, the CITY received about 109 calls via 911 reporting
unlawful activities and requesting police response at 412 West 46th Street, while a similar
building across the street – 415 West 46th Street, a five-story multiple dwelling with total of 20
apartments – was the subject of only 52 calls placed to the CITY via 911 during the same period,
which is about 1/2 of the number of 911 calls the CITY received requesting police response for
207. From 2014 to the end of July 2019, the CITY received about 35 requests for
police response via 911 calls reporting unlawful and dangerous activities occurring at the Subject
Building 412 West 46th Street. For example, a 911 call was made in July 2019 reporting that
individuals with knives were having a dispute at the Subject Building 412 West 46th Street and
another 911 call was made to the CITY reporting a burglary occurring at the Subject Building
412 West 46th Street. In February and July 2019, there were separate 911 calls placed and
received by the CITY reporting narcotics being sold inside the Subject Building 412 West 46th
Street.
208. Moreover, a 911 call was made to the CITY in May 2017 reporting someone
“climbing in the window of an apartment on the first floor” on the right side of the building,
while another 911 call was received by the CITY in May 2018 reporting that two people had
“broken into” the second floor of the building which was “under construction.”
62
65 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
C. The Deleterious And Unsafe Building Conditions In Subject Building 452 West 36th
Street Over The Years Have Constituted A Form Of Tenant Harassment
209. In addition to all of the transient occupancy-related building and fire-safety DOB
ECB/OATH violations that have been issued to Defendant SERENO due to their failure to
maintain 452 West 36th Street in a code compliant manner, there are additional other violations
that have been issued to it that confirm that there is, indeed, an ongoing statutory public
nuisance occurring at that location due to the Owner Defendant’s failure to maintain that
210. Specifically, there are 54 open HPD violations in 452 West 36th Street: 9 open
HPD violations are Class A [Non-hazardous]; 41 open HPD violations are Class B
[Hazardous]; and 4 open HPD violations are Class C [Generally, Immediately Hazardous].
211. Plaintiff repeats and realleges paragraphs “1” through “209” as if contained
herein.
212. In 1977, the City Council enacted the Nuisance Abatement Law (codified as
Public nuisances exist in the City of New York in the operation of certain
commercial establishments and the use or alteration of property in flagrant
violation of the building code, zoning resolution, … multiple dwelling law … all
of which interfere with the interest of the public in the quality of life and total
community environment, the tone of commerce in the city, property values and
the public health, safety, and welfare; the council further finds that the continued
occurrence of such activities and violations is detrimental to the health, safety,
and welfare of the people of the city of New York …
213. Under Admin. Code § 7-703(d), any premises which is in violation of Admin.
Code § 28-210.3 is deemed to be a public nuisance. Admin. Code § 28-210.3 states that:
63
66 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
It shall be unlawful for any person or entity who owns or occupies a multiple
dwelling or dwelling unit classified for permanent residence purposes to use or
occupy, offer or permit the use or occupancy or to convert for use or occupancy
such multiple dwelling or dwelling unit for other than permanent residence
purposes. For the purposes of this section a conversion in use of a dwelling unit
may occur irrespective of whether any physical changes have been made to such
dwelling unit.
214. As summarized above, the CITY has determined that Defendants have converted
permanent residential dwelling units in the Subject Buildings for another use, specifically, for
with notice of the illegality of the transient occupancies, as well as decisions and orders
sustaining and imposing civil penalties, Defendants continue to illegally operate and manage the
216. Pursuant to Admin. Code §§ 7-706(a) and 7-714, the CITY is entitled to a
judgment against the defendants, their agents, assigns, employees and all persons acting
218. Pursuant to Admin. Code § 7-706(h), the CITY is entitled to a judgment against
Defendants, their agents, assigns, employees and all persons acting individually or in concert
with them, permanently enjoining them from using or occupying, or maintaining, managing,
operating, or permitting the use or occupancy of any of the units in the Subject Buildings for
transient use and occupancy, and further ordering that they pay a separate penalty of $1,000 for
each day that Defendants intentionally conducted, maintained or permitted the public nuisances
64
67 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
219. Plaintiff repeats and realleges paragraphs “1” through “217” as if contained
herein.
220. Under Admin. Code § 7-703(d), any premises which is in violation of Admin.
Code § 28-118.3.2 is deemed to be a public nuisance. Admin. Code § 28-118.3.2 provides that
no change in use or occupancy which is inconsistent with the last issued certificate of occupancy
shall be made unless and until a new certificate of occupancy is first obtained from DOB
221. As summarized above, the CITY has determined that there has been a change in
use or occupancy at the Subject Buildings which is inconsistent with the last issued certificate of
occupancy or otherwise applicable DOB record, and that Defendants have altered such use and
occupancy in the Subject Buildings without first obtaining a permit or new certificate of
222. Pursuant to Admin. Code §§ 7-706(a) and 7-714, the CITY is entitled to a
judgment against Defendants, their agents, assigns, employees and all persons acting individually
224. Pursuant to Admin. Code § 7-706(h), the CITY is entitled to a judgment against
Defendants, their agents, assigns, employees and all persons acting individually or in concert
with them, permanently enjoining them from using or occupying, or maintaining, managing,
operating, or permitting the use or occupancy of any of the units in the Subject Buildings for
65
68 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
transient use and occupancy, and further ordering that they pay a separate penalty of $1,000 for
each day that Defendants intentionally conducted, maintained or permitted the public nuisances
225. Plaintiff repeats and realleges paragraphs “1” through “223” as if contained
herein.
226. Under Admin. Code § 7-703(d), any premises which is in violation of Admin.
Code § 28-105.1 is deemed to be a public nuisance. Admin. Code § 28-105.1 states that “[i]t
shall be unlawful to construct, enlarge, alter … or change the use or occupancy of any building ...
unless and until a written permit therefore shall have been issued by the commissioner in
227. Defendants altered the use and occupancy of the Subject Buildings from Class A
permanent occupancy to Class B transient use, and did so without approval or permit from DOB.
228. Pursuant to Admin. Code §§ 7-706(a) and 7-714, the CITY is entitled to a
judgment against Defendants, their agents, assigns, employees and all persons acting individually
230. Pursuant to Admin. Code § 7-706(h), the CITY is entitled to a judgment against
Defendants, their agents, assigns, employees and all persons acting individually or in concert
with them, permanently enjoining them from using or occupying, or maintaining, managing,
operating, or permitting the use or occupancy of any of the units in the Subject Buildings for
66
69 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
transient use and occupancy, and further ordering that they pay a separate penalty of $1,000 for
each day that Defendants intentionally conducted, maintained or permitted the public nuisances
231. Plaintiff repeats and realleges paragraphs “1” through “229” as if contained
herein.
232. Under the Nuisance Abatement Law, Admin. Code § 7-703(d), any premises in
violation of Admin. Code § 28-301.1 is deemed to be a public nuisance. Admin. Code § 28-
301.1 requires that all buildings and all parts thereof be “maintained in a safe condition,” and that
“[a]ll service equipment, means of egress, materials, devices, and safeguards that are required in
a building by the provisions of this code, the 1968 building code or other applicable laws or
rules, or that were required by law when the building was erected, altered, or repaired, shall be
233. At all relevant times of their inspections, OSE Inspection Teams have observed
234. As a result of the foregoing, there exist public nuisances at the Subject Buildings.
235. Pursuant to Admin. Code §§ 7-706(a) and 7-714, the CITY is entitled to a
judgment against Defendants, their agents, assigns, employees and all persons acting individually
67
70 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
237. Pursuant to Admin. Code § 7-706(h), the CITY is entitled to a judgment against
Defendants, their agents, assigns, employees and all persons acting individually or in concert
with them, permanently enjoining them from using or occupying, or maintaining, managing,
operating, or permitting the use or occupancy of any of the units in the Subject Buildings for
transient use and occupancy, and further ordering that they pay a separate penalty of $1,000 for
each day that Defendants intentionally conducted, maintained or permitted the public nuisances
238. Plaintiff repeats and realleges paragraphs “1” through “236” as if contained
herein.
239. Under Admin. Code § 7-703(l), any building, erection or place wherein there is
240. Pursuant to Penal Law § 240.45(1), a person has committed a criminal nuisance
when, “[b]y conduct either unlawful in itself or unreasonable under all the circumstances, he
knowingly or recklessly creates or maintains a condition which endangers the safety or health of
241. Defendants have unreasonably and unlawfully created and maintained conditions
which seriously endanger the life and safety of numerous persons, including both those who have
booked transient accommodations at the Subject Buildings and other persons who lawfully reside
in and around the Subject Buildings, in violation of their legal and permissible use and
by the ECB. These violations include a lack of fire safety measures required to be provided for
68
71 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
transient occupancies. Additional fire safety violations have led to the issuance of FDNY
242. The hazardous conditions at the Subject Buildings have continued uncorrected
over a substantial period of time, notwithstanding NOVs and orders from the DOB
244. As a result of the foregoing, there exists a public nuisance at the Subject
Buildings.
245. Pursuant to Admin. Code §§ 7-706(a) and 7-714, the CITY is entitled to a
judgment against Defendants, their agents, assigns, employees and all persons acting individually
246. Pursuant to Admin. Code § 7-706(h), the CITY is entitled to a judgment against
Defendants, their agents, assigns, employees and all persons acting individually or in concert
with them, permanently enjoining them from using or occupying, or maintaining, managing,
operating, or permitting the use or occupancy of any of the units in the Subject Buildings for
transient use and occupancy, and further ordering that they pay a separate penalty of $1,000 for
each day that Defendants intentionally conducted, maintained or permitted the public nuisances
247. Plaintiff repeats and realleges paragraphs “1” through “245” as if contained
herein.
69
72 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
248. MDL § (4)(8)(a) prohibits renting any unit in Class “A” multiple dwellings for
less than 30 consecutive days. The law provides that “[a] class A multiple dwelling shall only be
used for permanent residence purposes,” the term “permanent residence purposes” being defined
by the statute to “consist of occupancy of a dwelling unit by the same natural person or family
permitted, maintained and used, continue to advertise, permit, maintain, and use dwelling units at
the Subject Buildings for transient occupancies of less than 30 consecutive days, in violation of
the MDL. Based on the OSE’s inspections of the Subject Buildings on thirty separate occasions
from 2011 to 2018, multiple units are being so illegally used and occupied, and have been so
250. Pursuant to MDL § 306, the CITY is entitled to judgment against Defendants,
their agents, assigns, employees and all persons acting individually or in concert with them,
permitting the use or occupancy of any of the units in the Subject Buildings for transient use and
occupancy as prohibited by the MDL, and further directing them to restore the Subject Buildings
to use and occupancy as permanent residences, as required by the MDL for Class A multiple
dwellings.
251. Plaintiff repeats and realleges paragraphs “1” through “249” as if contained
herein.
occupancy of any building unless and until a written permit has been issued by DOB in
70
73 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
accordance with the requirements of the Building Code, and a certificate of occupancy issued for
254. Admin. Code § 28-118.3.2 provides that no change may be made in the
occupancy or use of an existing building which is inconsistent with the last issued certificate of
occupancy of such building or which would bring it under some special provision of the code or
255. Admin. Code § 28-118.3.4 provides that a building in existence prior to January
1, 1938, and legally used or occupied without a certificate of occupancy may continue to be so
256. Admin. Code § 28-118.3 provides that Admin. Code §§ 28-118.3.1 through 28-
257. The legally permissible residential use and occupancy of all of the Subject
258. Defendants have changed, or permitted to be changed, the use and occupancy of
the Subject Buildings contrary to their legally permissible use and occupancy, having done so
259. Thus, Defendants have permitted, directed and maintained the arrangement, use,
and occupancy of the Subject Buildings in violation of their legally permissible use and
occupancy.
260. Defendants are, therefore, in violation of Admin Code §§ 28-105.1, and 28-
71
74 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
261. Admin. Code §§ 28-205.1 and 28-202.1 provide that any person who shall violate
any provision of the building laws, rules or regulations enforceable by DOB shall be subject to
the payment of a civil penalty, to be recovered in a civil action brought in the name of the CITY
262. By reason of the foregoing, pursuant to Admin. Code § 28-205.1, the CITY is
entitled to judgment against Defendants, their agents, assigns, employees and all persons acting
individually or in concert with them, permanently enjoining them from using or occupying or
permitting the use or occupancy of any of the units in the Subject Buildings for short-term,
transient use or occupancy of less than thirty days, and further directing them to restore the
Subject Buildings to the arrangement and occupancy permitted for it, and to comply with all
263. Defendants have violated Admin. Code §§ 28-105.1 and 28-118.3.1 through 28-
264. Therefore, the CITY is entitled to a separate judgment against Defendants in the
amount set forth in Admin. Code § 28-202.1 for each violation of the laws referenced above,
265. Plaintiff repeats and realleges paragraphs “1” through “263” as if contained
herein.
2004(a)(48), in violation of Admin. Code § 27-2005 by engaging in acts and/or omissions that
are intended to cause permanent residents to vacate the Subject Buildings or to surrender their
72
75 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
rights in relation to their occupancy of the Subject Building, which contain rent-stabilized
apartments.
pursuant to Admin. Code § 27-2120 restraining Defendants from violating Admin. Code § 27-
268. Plaintiff repeats and realleges paragraphs “1” through “266” as if contained
herein.
269. Defendants have advertised, operated, and maintained permanent residential units
for short-term stays of less than 30 days, creating serious safety risks for the transient occupants
of those units, significant security risks in buildings not equipped to handle the security problems
associated with transient occupancy, and a degradation in the quality and comfort of the
surrounding residents and neighbors, created by noise, filth, and the excessive traffic of unknown
270. The unlawful activities committed by Defendants and the unsafe building
conditions allowed by Defendants are detrimental to the welfare, property, and safety of the
271. They offend, interfere with and cause damage to the public in the exercise of
rights common to all, in a manner which endangers the property, safety and well-being of a
272. Defendants are therefore maintaining a public nuisance as known at common law
73
76 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
273. Unless restrained by order of this Court, Defendants will continue their illegal
activities and will absorb the costs of any fines and penalties imposed upon them as routine
operating expenses. Meanwhile, the CITY will be forced to continue expending its limited
Defendants, their agents, assigns, employees and all persons acting individually or in concert
with them, permanently restraining the above described common law public nuisance going on
276. Defendants have acted willfully, wantonly, and with a recklessness indicating an
improper motive, and have engaged in intentional misconduct and recklessly and wantonly
disregarded the safety, welfare, and rights of others in permitting and maintaining the aforesaid
277. Defendants have continued to engage in their illegal business, unabated. They
actively permit rentals of permanent residence units to tourist and visitors to New York City for
stays of less than 30 days, knowing that this constitutes an illegal occupancy. Defendants have
maintained this activity despite being put on notice by the CITY through the issuance of repeated
violations by DOB, ordering that they immediately cease the transient occupancy violations.
278. The CITY is thus entitled to compensatory and punitive damages because of the
knowing and ongoing common law nuisance created, maintained, and continued by Defendants.
74
77 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
1. Declaring that Defendants and each of them had knowledge of the existence of
the unlawful acts complained of herein, and failed to take reasonable measures to abate such
unlawful activity;
2. Declaring that Defendants and each of them have managed, used, advertised,
booked, and operated numerous dwelling units at the Subject Buildings for illegal transient use
and occupancy though prohibited by State and local laws, and continue to manage, use,
advertise, book, and operate the Subject Buildings in a manner as to constitute deceptive trade
3. With respect to the FIRST, SECOND, THIRD, FOURTH, AND FIFTH CAUSES
a. Directing that each of the Subject Buildings shall be permanently and perpetually
them from in any way permitting the Subject Buildings to be used, advertised, or
occupied in any manner which violates the legally permitted use and occupancy
c. Directing Defendants and each of them to pay to the CITY a separate penalty of
$1,000 for each day that each of the Defendants intentionally conducted,
CAUSE OF ACTION, and for each day that each of the Defendants intentionally
75
78 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
SECOND CAUSE OF ACTION, and for each day that each of the Defendants
complained of in the THIRD CAUSE OF ACTION, and for each day that each of
nuisance complained of in the FOURTH CAUSE OF ACTION, and for each day
Law § 306:
them from in any way permitting the Subject Buildings to be used, advertised, or
occupied in any manner which violates the legal use and occupancy for the
them from in any way permitting the Subject Buildings to be used, advertised, or
occupied in any manner which violates the legal use and occupancy for the
premises, as permitted by the MDL and the Building Code, or which violates the
provisions of the Building Code, which prohibit a change in the use or occupancy
76
79 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
of a building without first having obtained a written permit from DOB and a
b. Directing that Defendants and each of them pay to the CITY the maximum
penalty set forth in Admin. Code §§ 28-202.1 and 28-202.2 for each violation of
and every person or entity acting individually or in concert with them, from
further engaging in acts and/or omissions that are intended to cause permanent
7. With respect to the NINTH CAUSE OF ACTION, pursuant to the common law
them, from conducting, maintaining or in any way permitting the common law
and punitive damages in the amount of $1,000,000 for the willful and wanton
77
80 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
disbursements allowed by the CPLR, the actual costs, expenses and disbursements of the CITY
in investigating, bringing and maintaining this action, and directing that the CITY have
execution therefor;
9. Taxing and allowing the costs and disbursements against Defendants and
10. Granting to the CITY such other and further relief as the Court may deem just,
Pursuant to section 130-1.1a of the Rules of the Chief Administrator, it is certified that, to the
best of my knowledge, information and belief, formed after a reasonable inquiry under the
circumstances, that the presentation of the papers attached hereto and the contentions contained
ZACHARY W. CARTER
Corporation Counsel of the City of New York
By:
MARTIN I. NAGEL
Special Assistant Corporation ounsel
Mayor's Office of Special Enforcement
4*
22 Reade Street, Floor
New York, NY 10007
Tel.: (646) 576-3533
Of counsel
78
81 of 82
FILED: NEW YORK COUNTY CLERK 08/13/2019 08:29 AM INDEX NO. 451285/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/13/2019
V E R I F I C A T I O N
New York, hereby affirms the following to be true, under the penalties of perj
C.P.L.R. 2106:
as such, I am an officer of the City of New York, plaintiff in the within proceeding
the
foregoing complaint and know the contents thereof; the same are true
except as to those matters therein alleged upon information and belief, and as
The reason why this verification is not made by the City of New Yo
to me by certain officers or agents of the City of New York, and from statements,