Helms Realty Corp. et al v. City of New York et al

Filing 49

ORDER AND OPINION DENYING MOTION TO DISMISS AND TO STAY re: 37 MOTION to Dismiss the First Amended Complaint. filed by Christian Klossner, Bill De Blasio, Mayor's Office of Special Enforcement, City of New York., For the re asons stated, Defendants' motion is denied. The Clerk shall terminate the motion (Dkt. No. 37). Oral argument scheduled for August 16, 2018 is cancelled. Defendants shall answer the Complaint by September 7, 2018. The parties shall appear for their initial case management conference on September 21, 2018, at 10:00 A.M. SO ORDERED. Initial Conference set for 9/21/2018 at 10:00 AM before Judge Alvin K. Hellerstein., City of New York answer due 9/7/2018; Christian Klossner answer due 9/7/2018; Mayor's Office of Special Enforcement answer due 9/7/2018. (Signed by Judge Alvin K. Hellerstein on 8/8/2018) (rj)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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HELMS REALTY CORP.,
Plaintiff,
-againstCITY OF NEW YORK, MAYO R'S OFFICE OF
SPECIAL ENFORCEMENT and CHRISTIAN
KLOSSNER, in his official capacity as Executive
Director of the Mayor's Office of Special
Enforcement,

ORDER AND OPINION
DENYING MOTION TO
DISMISS AND TO STAY
17 Civ. 4662 (AKH)

Defendant

--------------------------------------------------------------- X

ALVIN K. HELLERSTEIN, U.S.D.J.:

Plaintiff Helms Realty Corp. ("Helms") filed this action on June 20, 2017, challenging
the constitutionality of Section 121 of New York's Multiple Dwelling Law ("MDL"), 1 passed
into law on October 21, 2016 and colloquially referred to as the "Airbnb Law." Section
121
prohibits advertising the use of a class A multiple dwelling for non-permanent residence
purposes. The Complaint alleges that this provision is unconstitutionally vague, facially
and as
applied to Plaintiff, in violation of the First Amendment and the Due Process Clause of the
Fourteenth Amendment of the U.S. Constitution.
Defendants now move to dismiss the Complaint or in the alternative to stay the
proceedings pending the conclusion of state court proceedings. For the reasons stated below,
I
deny the motions.

1

The Complaint makes identical allegations against N.Y.C. Admin Code§ 27-287.1, which
contains the same
language as§ 121 of MDL. For convenience, I refer throughout this opinion to the provision
s of MDL.

1

STATUTORY FRAMEWORK

Two statutory provisions form the basis of the instant suit. Because of their importance
to understanding the Complaint, I begin with describing them.
The first provision is §4(8) of the New York Multiple Dwelling Law ("MDL"). This
provision defines the term "class A" dwelling, and prohibits using class A dwellings for nonpermanent residence purposes. § 4(8)(a) defines a "class A" dwelling as follows:
A "class A" multiple dwelling is a multiple dwelling that is occupied for permanent residence
purposes.
This class shall include tenements, flat houses, maisonette apartments, apartment houses,
apartment hotels .
. . and all other multiple dwellings except class B multiple dwellings. A class A multiple
dwelling shall
only be used for permanent residence purposes. For the purposes of this definition, "permane
nt residence
purposes" shall consist of occupancy of a dwelling unit by the same natural person or family
for thirty
consecutive days or more ....

Put simply, § 4(8) prohibits using a class A dwelling for non-permanent residence purpose
s.
Furthermore, a "class B" dwelling, as contrasted with "class A" dwelling, is defined as follows:
A "class B" multiple dwelling is a multiple dwelling which is occupied, as a rule transientl
y, as the more or
less temporary abode of individuals or families who are lodged with or without meals. This
class shall
include hotels, lodging houses, rooming houses, boarding houses, boarding schools, furnished
room houses,
lodgings, club houses, college and school dormitories and dwellings designed as private
dwellings but
occupied by one or two families with five or more transient boarders, roomers or lodgers
in one household.

§ 4(9). That is, whereas a class A building cannot be used for transient occupancy,
a class B

building can be.
The second relevant provision is§ 121 of the New York MDL. This provision prohibits
advertising class A dwellings for illegal uses, where such uses are illegal under§ 4(8). §
121(1)

incorporates by reference § 4(8) and states as follows:
It shall be unlawful to advertise occupancy or use of dwelling units in a class A multiple dwelling
for
occupancy that would violate subdivision eight of section four of this chapter defining a
"class A" multiple
dwelling as a multiple dwelling that is occupied for permanent residence purposes.

That is,§ 121(1) prohibits advertising class A dwellings for non-permanent residence occupan
cy.
Finally, § 121 also defines the term "advertise," as the term is used in§ 121(1). § 121(3)
defines term "advertise" to mean as follows:
2

For the purposes of this section, the term "advertise" shall mean any form of commun
ication for marketing
that is used to encourage, persuade or manipulate viewers, readers or listeners
into contracting for goods
and/or services as may be viewed through various media including, but not limited
to, newspapers,
magazines, flyers, handbills, television commercials, radio, signage, direct mail,
websites or text messages.

That is, the term "adver tise" refers to communications intended to encourage
persons into
contracting for goods or services.

COMPLAINT
Plainti ff
Plainti ff Helms owns and operates The Broadw ay Hotel and Hostel (the "Hotel"
), located
at 23 0 West IO I st Street in New York City, a hotel with 126 rooms and which
has been in use as
a hotel for the last 75 years. See First Amend ed Compl aint ("Com plaint" ),
Dkt. No. 34 at ,r 3. 2
The Hotel uses its 126 rooms for transient occupancy, or occupa ncy ofless
than 30 days, and
advertises room vacanc ies on online websites.
A short history of the hotel is useful. Before 1938, it was not legally require
d for
buildings to have certificates of occupancies, or CO' s, which describe what
is and is not
appropriate use of a building.

,r 20.

Prior to 1938, and in lieu of CO's, the Depart ment of

Buildings mainta ined what were called "I-Card s," which contained inform ation
relevant to the
proper use and categorization of buildings. The Hotel's I-Cards designate the
126 rooms as class
"B" single room occupa ncy units.

,r 22.

In 1942, the Depart ment of Buildings issued a CO to

the Hotel for the first time, and the CO permitted the Hotel to use its rooms
for transient
occupancy. The CO howev er did not designate the Hotel as a class "A" or
"B" building, but
instead as "Old Law Tenem ent, Single Room Occupa ncy." The parties dispute
the implications
of the I-Cards and CO to the current categorization of the Hotel as class A or
class B.

2

At this stage of the proceedings, I accept well-pleaded facts as true and construe
the complaint in a light most
favorable to the nonmoving party. See Patane v. Clark, 503 F.3d 106, 111 (2d
Cir. 2007).

3

Defendants
Defendants, the City of New York and its associated enforce ment entities, oppose
the
Hotel's use for transient occupancy. Accord ing to Defendants, it is illegal under
New York State
and City law for Helms to use its rooms for transient occupa ncy or to adverti
se use for transient
occupancy. Defend ants have attempted to sanction Helms for both of these
illegal activities, i.e.,
illegal use and illegal advertising.
First, regarding illegal use, Defendants issued Plainti ff citations on Decem ber
30, 2014,
under N.Y.C. Administrative Code§ 28-210.3, for illegally using the Hotel
for transient
occupancy. § 28-210.1 makes it "unlaw ful for any person or entity who owns
or occupies a ...
dwelling unit classified for perman ent residence purpos es to use or occupy
... such multiple
dwelling or dwelling unit for other than perman ent residence purpos es." The
City contended in
issuing its citation that Plainti ffs Hotel was a class A multiple dwelling and
that its use for
transient occupa ncy therefore violated § 4(8).
A hearing officer, however, dismissed these violations. Examin ing the history
of the
Hotel's occupa ncy and the langua ge of the CO, the hearing officer found that
the Hotel was not a
class A dwelling and therefore did not violate § 4(8). The City appealed and,
on Februa ry 2,
2017, the Enviro nmenta l Control Board ("ECB "), the administrative body hearing
the appeal,
denied the appeal and upheld the hearing officer 's dismissal.

~

26. See New York City v. Helms

Realty Corp., ECB Appeal No. 1601223 (Feb. 2, 2017) ("ECB Decision") (Annex
ed as Exhibi t
D to the Declar ation of Emily K. Stitelman, Dkt. No. 38, Ex. D).
The City nevertheless persisted. Follow ing the ECB decision, betwee n Februa
ry 10 and
April 12 of 2017, the City issued Plainti ff27 additional violations under N.Y.C.
Administrative

4

Code § 28-287.1 and MDL § 121, this time for unlawful advertising
of the use of transient
occupancy in a class A building.

,r,r 27-28 .

These violations form the basis of the instant action.

The Instant Action
The instant action, filed on June 20, 2017, alleges that the law under
which the
advertising violations were issued i.e., § 121, is unconstitutional, faciall
y and as applied to
Plaint iff (Count I). In particular, Plaint iff alleges that the term "class
A" dwelling and the term
"advertise" are vague and fail to provide a reasonable person with notice
of what conduct is
proscribed. Plaint iff also alleges that § 121 is unconstitutional as applie
d to Plaint iff since
Plaint iff has the legal right (as confirmed by the ECB decision) to use
the Broadway Hotel for
transient occupancy. According to Plaintiff, it cannot have violat ed§
121 's prohibition on
advertising illegal uses where it was already determined that Plaint iffs
underlying use was not
illegal under § 4(8).
In addition to its claims pursuant to the U.S. Constitution, the Comp
laint also (a) alleges
violations of Article I, §8 of the New York State Constitution (Coun
t II), 3 (b) seeks a
declaration, pursuant to 28 U.S.C. §§ 2201 and 2202, that the Airbnb
law is invalid and
unconstitutional (Count III), (c) seeks damages under 42 U.S.C. § 1983
(Count IV) and, finally,
(d) seeks attorneys' fees under 42 U.S.C. § 1988 (Count V). These Count
s rise and fall with the
success of Count I.
There are three state court proceedings relevant to this case. The first
case, filed on April
28, 2017, is Terrilee 97th Street LLC, v. City ofNew York, et al., Index
No. 652306/2017 (Sup.
Ct. N.Y. Co.) See Dkt. No. 38, Ex. A. This action, brought by Helms
and others against the

3 The
parties agree that identical standards apply to the claims under the U.S.
Constitution and the claims under the
New York State Constitution.

5

State and City of New York, alleges that§ 4(8) and other provisi ons are uncons
titution al, facially
and as applied.
The second case, filed on June 28, 2017, is City v. Freid. et al., Index No.
451883 /2017
(Sup. Ct. N.Y. Co.). See Dkt. No. 38, Ex. C. This action, brough t by the
City against Helms and
others, alleges violatio ns of§ 4(8) for using the Hotel for transie nt occupa
ncy.
The third case, filed on July 11, 2017, is Helms Realty Com. v. City ofNew
York, et al.,
Index No. 156224 /2017 (Sup. Ct. N.Y. Co.). See Dkt. No. 38, Ex. B. This
action, brough t by
Helms against the City, request s a declara tion that the ECB decisio n is binding
preced ent on all
City agencies.

DISCUSSION

1. Legal Standards for a Vagueness Challenge
"The Due Proces s Clause of the Fourtee nth Amend ment require s that laws
be crafted
with sufficie nt clarity to 'give the person of ordinar y intellig ence a reasona
ble opportu nity to
know what is prohibi ted' and to 'provid e explici t standar ds for those who
apply them." '

Betancourt v. Bloomberg, 448 F.3d 547, 552 (2d Cir. 2006) (quotin g Grayne d
v. City of
Rockford, 408 U.S. 104, 108 (1972)).
"A statute can be imp.ermissibly vague for either of two indepe ndent reasons
. First, if it
fails to provide people of ordinar y intellig ence a reasona ble opportu nity to
unders tand what
conduc t it prohibi ts. Second , if it authori zes or even encour ages arbitrar y
and discrim inatory
enforce ment." Hill v. Colorado, 530 U.S. 703, 732 (2000). "Thus, all vaguen
ess challe ngeswhethe r facial or as-app lied-re quire us to answer two separat e questio ns:
whethe r the statute
gives adequa te notice, and whethe r it creates a threat of arbitrar y enforce ment."
Farrell v.

Burke, 449 F.3d 470, 485 (2d Cir. 2006).

6

"These standards should not, of course, be mechanically applied. The
degree of
vagueness that the Constitution tolera tes-as well as the relative impor
tance of fair notice and
fair enforc ement -depe nds in part on the nature of the enactment. Thus,
economic regulation is
subject to a less strict vagueness test because its subject matter is often
more narrow, and
because businesses, which face economic demands to plan behavior
carefully, can be expected to
consult relevant legislation in advance of action." Vil!. of Hoffman Estate
s v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 498 (1982). However, if a law "threatens
to inhibit the exercise of
constitutionally protected rights .... [like] the right of free speech or
of association, a more
stringent vagueness test should apply." Id at 499.

2. Facial Vagueness Challenge
Helms first challenges § 121 on its face, arguing that it lacks sufficient
specificity and
that it "will have a substantial chilling effect" on constitutionally protec
ted speech. Farrell, 449
F.3d at 497. I hold, however, that§ 121 is not vague on its face, and
I therefore dismiss the
facial challenges.

a. Standards for Facial Vagueness Challenges
"Courts have looked with disfavor on facial vagueness challenges to
statutes that do not
implicate fundamental rights." Farrell, 449 F.3d at 495. "Panel opinio
ns of this Court have
repeatedly held that when ... the interpretation of a statute does not implic
ate First Amendment
rights, it is assessed for vagueness only 'as applied,' i.e., 'in light of the
specific facts of the case
at hand and not with regard to the statute's facial validi ty."' United States
v. Rybicki, 354 F.3d
124, 129 (2d Cir. 2003) (en bane) (quoting United States v. Nadi, 996
F.2d 548, 550 (2d Cir.
1993)).

7

Therefore, "[f]acial vagueness challenges may go forward only if the challenged
regulation 'reaches a substantial amount of constitutionally protected conduct ."' Farrell,
449
F.3d at 496 (quoting Ko/ende r v. Lawson, 461 U.S. 352,358 n.8 (1983)). "In determining
whether a regulation reaches substantial protected conduct, [the court] must consider everythi
ng
that falls within the ambiguous scope" of the statute or regulation. Id. at 497.
Whether Helms can mount a facial challenge to§ 121 depends, therefore, on whether it
reaches constitutionally protected speech, which in turn requires a Court to examine the
(ambiguous and unambiguous) scope of the statute. The analysis collapses into the question
of
whether § 121 is sufficiently clear and whether it covers constitutionally protected speech.

b. The Facial Vagueness Challenge to§ 121
§ 121 makes it unlawful to "advertise" certain uses of class A multiple dwellings where

such uses are deemed illegal by a second provision i.e.,§ 4(a). Helms argues that two terms
of
this regulatory scheme are facially vague: (1) the term "advertise," as it is used in§ 121(1)
and
defined in§ 121(3); and (2) the term "class A" as it is used in§ 121(1) and defined in§ 4(8).
I find nothing vague about these terms. First, the term "advertise" is sufficiently clear.
See Vill. of Hoffman Estates, 455 U.S. at 502 (holding that the term "marketed for use"
is not

vague). It is a word "of common usage that ha[s] plain and ordinary meaning[]," United
States
v. Gagliardi, 506 F.3d 140, 147 (2d Cir. 2007), and the Multiple Dwelling Law defines

"advertise" to mean (understandably) "any form of communication for marketing.that is
used to
encourage, persuade or manipulate viewers, readers or listeners into contracting for goods
and/or
services as may be viewed through various media." See§ 121(3). Helms' contention that§
121
would prohibit, for example, an article in a travel magazine detailing the writer's experien
ce in a
hotel lacks merit. The purpose of such a writing it to describe an experience. The purpose
of the

8

advertising that § 121 bans is to encourage readers into contracting for goods
or services with the
writer or with an entity the writer represents.
Second, the definition of "class A" found in§ 4(8) is also sufficiently clear.
That
provision defines "class A" as a dwelling for "perma nent residence purposes,"
and then further
defines "perma nent residence purpos es" as occupancy by the same natural person
or family for
thirty consecutive days. There is nothing ambiguous about this definition.
In short, the terms "advertise" and "class A" are sufficiently clear, and the resultin
g
statutory scheme is similarly clear. Read togethe r,§ 121(1) and§ 121(3) prohibi
t the advertising
of occupancy that would violate the provisions of§ 4(8), where § 4(8) defines
"class A." It
cannot be said that this statutory scheme fails "to provide people of ordinary
intelligence a
reasonable opportunity to understand what conduct it prohibits" or that "it authori
zes or even
encourages arbitrary and discriminatory enforcement." Hill, 530 U.S. at 732.
Furthermore, given the clear scope of§ 121, it is also clear that§ 121 does not
reach any
constitutionally protected speech. § 121 prohibits the advertisement of illegal
conduct, i.e., the
use of class A dwellings for uses prohibited by § 4(8). "The government may
ban forms of
communication more likely to deceive the public than to inform it, or comme
rcial speech related
to illegal activity." Central. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'
n of New York, 447
U.S. 557, 563-64 (1980) (internal citations omitted). "In commercial speech
cases [] a four-part
analysis has developed. At the outset, we must determine whether the express
ion is protected by
the First Amendment. For commercial speech to come within that provision,
it at least must
concern lawful activity and not be misleading. Next, we ask whether the asserte
d governmental
interest is substantial. If both inquiries yield positive answers, we must determ
ine whether the
regulation directly advances the governmental interest asserted, and whether
it is not more

9

extensive than is necessary to serve that interest." Central Hudson, 447 U.S. at 566 (1980). §
121 is by definition about speech concerning illegal activity, and such speech is not
constitutionally protected. A facial challenge to§ 121 therefore fails on the first step of the fourpart analysis articulated in Central Hudson.
Finally, Helms argues that§ 121 is facially vague, not that it is facially overbroad.
"Overbreadth and vagueness are different doctrines. A clear and precise enactment may
nevertheless be 'overbroad ' if in its reach it prohibits constitutionally protected conduct."

Farrell, 449 F.3d at 498-99 (internal quotations marks and citations omitted) (quoting Grayned
v. City of Rocliford, 408 U.S. 104, 114 (1972)). An overbreadth challenge fails as well. § 121 is
clear in that it prohibits only speech concerning illegal activity, which is not constitutionally
protected.

3. As Applied Vagueness and First-Amendment Challenge
Helms also mounts an as-applied vagueness challenge and an as-applied First
Amendment challenge to §121, arguing that enforcement of§ 121 against Helms violates the
First and Fourteenth Amendments. To state an as-applied vagueness challenge, Helms must
show that the law failed to give it adequate notice that the conduct it engaged in was illegal. See

Farrell, 449 F.3d at 484. To state an as-applied First Amendment challenge, Helms must show
that the (commercial) speech it engaged in was protected under the four-part test articulated in

Central Hudson.
At the heart of Helms' as-applied challenges is the fact that the City's ECB February 2
decision found that Helms did not violate § 4(8). Helms argues, relying on the ECB decision,
that the City could not have found that Helms violated§ 121 (i.e., illegal advertising), since
Helms was already found notto have violated§ 4(8) (i.e., the underlying illegal use). As Helms

10

portrays it, the City is attempting to have a second shot at preventin g Helms from operating its
hotel after the City lost its first shot in litigating the § 4(8) violation.
The as-applied challenge is best understood not as a vagueness challenge (the statute is
not in fact vague, as described above), but as a First Amendm ent challenge, the argument being
that the City cannot restrict Helms' speech where Helms' speech does not concern illegal
activity. Put differently, the challenge is that it is nonsensical for Helms to have been found to
have violated§ 121 since, by its own terms, §121 only restricts advertising uses that are illegal
under § 4(8), and the City found Helms not to be engaging in illegal uses under § 4(8).
Defendants do not challenge the sufficiency of the as-applied challenges. Instead,
Defendants move the court to abstain from adjudicating these challenges in light of state court
proceedings. Accordin g to Defendants, whether in fact Helms violated § 4(8) is a question
pending before the state courts not resolved by the ECB February 2 Decision. Helms disputes
this. I discuss the issue below.

4. Abstention under Younger
Defendants move to stay or dismiss the instant action pursuant to Younger v. Harris, 401
U.S. 37 (1971), arguing that the issue of whether Plaintiff violates§ 4(8) is the subject of three
state court proceedings. See supra. 4 Helms argues in response that the ECB February 2 decision
conclusively decided that issue in favor of Helms and precludes further litigation under res

Judicata.

4

The New York Appellate Division, in a decision issued two days after the ECB February 2 decision, Terrilee,
97th
St. LLC v. New York City Envtl. Control Ed., 146 A.D.3d 716, 716 (1st Dep't 2017), prohibited certain buildings
like
Helms' from using its rooms for transient occupancy. According to Defendants, "it is likely that the ECB's
decision
in Helms would have been different had the ECB had the benefit of reviewing the First Department's decision."
See
Motion at 11 n.13.

11

The question is whether Younger mandates abstention. The Younger abstention doctrine
is a limited exception to the general rule that, if the court has cognizance of a case or controversy
properly before it, it has a "virtually unflagging obligation" to decide the case, even if similar
litigation exists in state courts. See Colorado River Water Conservation Dist. v. United States,
424 U.S. 800,817 (1976). Defendants' argument stretches Younger and the line of cases
following it beyond their limits.

a. Legal Standards for Younger Abstention
"Younger exemplifies one class of cases in which federal-court abstention is required:
When there is a parallel, pending state criminal proceeding, federal courts must refrain from
enjoining the state prosecution." Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013).
In Younger, the plaintiff sought federal-court adjudication of the constitutionality of a state
statute, and requested an injunction against the statute's enforcement in a state proceeding where
the plaintiff was a criminal defendant. The Court held that federal courts "should not act to
restrain a criminal prosecution, when the moving party has an adequate remedy at law and will
not suffer irreparable injury if denied equitable relief." Younger, 401 U.S. at 43-44 (1971). The
Supreme Court "has extended Younger abstention to particular state civil proceedings that are
akin to criminal prosecutions." Sprint, 571 U.S. at 72. For example, in Huffman v. Pursue, Ltd,
420 U.S. 592 (1975), a state brought a civil action under a nuisance statue against a theater
showing obscene films. The theater was ordered to close, and subsequently sought and received
a declaration that the statute was unconstitutional and an injunction against the execution of the
state-court judgment. The Supreme Court vacated the lower court decision and held that

Younger abstention was appropriate in deference to the state's "efforts to protect the very
interests which underlie its criminal laws and to obtain compliance with precisely the standards

12

which are embod ied in its criminal laws." Huffman, 420 U.S. at 605. Younge
r abstention was
also found approp riate in a third instance, where the state procee ding implica
ted a state's interest
in enforci ng the orders and judgme nts of its courts. See Pennzoil Co. v. Texaco
Inc., 481 U.S. 1,
13 (1987) (requir ement for the posting of bond pendin g appeal).
Thus, the Younger abstent ion doctrine, as recentl y clarified by the Suprem e
Court in

Sprint, applies "only in three 'except ional circum stances ' involvi ng (1) 'ongoin
g state criminal
prosecu tions,' (2) 'certain civil enforce ment procee dings,' and (3) 'civil proceed
ings involving
certain orders unique ly in furtherance of the state courts' ability to perform
their judicia l
functio ns."' Falco v. Justices of the Matrimonial Parts ofSupreme Court of
Suffolk Cty., 805
F.3d 425, 427 (2d Cir. 2015) (quotin g Sprint, 571 U.S. at 77).
Where such excepti onal circum stances exist, a court should then go on to conside
r the
three conditi ons identifi ed in Middlesex County Ethics Committee v. Garden
State Bar

Association, 457 U.S. 423 (1982). The three Middlesex factors are whethe r "(l)
there is a
pendin g state procee ding, (2) that implicates an import ant state interest, and
(3) the state
procee ding affords the federal plainti ff an adequa te opportu nity for judicia
l review of his or her
federal constitutional claims. " Spargo v. New York State Comm'n on Judicia
l Conduct, 35 l F.3d
65, 75 (2d Cir. 2003).

b. Application
In the case at hand, Younger abstent ion is inapplicable to any of the three state
court
actions.
The first state court action, Terrilee 97th Street LLC, v. City ofNew York, et
al., Index
No. 652306 /2017 (Sup. Ct. N.Y. Co.), filed before the instant federal action,
was initiated by

Helms and alleges that § 4(8) is unconstitutional. This action is neither a crimina
l prosecu tion

13

nor a state civil proceeding s akin to a criminal prosecution, and it does not implicate a state's
interest in enforcing the orders and judgments of its courts. Similarly, the third state court
action, Helms Realty Com. v. City ofNew York, et al., Index No. 156224/201 7 (Sup. Ct. N.Y.
Co.), was also initiated by Helms. It was filed on July 11, 2017 5 and seeks a declaration that th~
ECB decision is binding precedent on all City agencies. This action too is neither a criminal
prosecution nor a state civil proceeding s akin to a criminal prosecution, and does not therefore
justify Younger abstention.
The complaint in the second state court action, City v. Freid et al., Index No.
451883/20 17 (Sup. Ct. N.Y. Co.), was filed on June 28, 2017 against three hotels (including that
of Plaintiff Helms) for allegedly using, operating, and advertising buildings for transient
occupancy and for maintainin g a building containing various fire safety and other violations
under the New York City Building Code and Fire Code. The complaint raises issues beyond the
27 notices of violations that Helms received for illegally advertising transient occupancy.
The complaint contains ten causes of action to enjoin a "public nuisance." See N. Y.
Admin. Code § 7-706(a). 6 "Public nuisance" includes a range of administrative violations
alleged in seven of the ten causes of action, see § 7-703(d), (k), (1), e.g., illegal conversion of
dwelling units from permanent residences, § 28-210.3 (Count I); making changes inconsistent

5
"Younger abstention is required ... only when state court proceedings are initiated 'before any proceedings of
substance on the merits have taken place in the federal court.'" Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238
(1984) (citing Hicks v. Miranda, 422 U.S. 332,349 (1975)). Here, although the second and third actions were filed
after the federal action, that fact alone does not preclude Younger since these actions were nonetheless filed before
any proceedings of substance on the merits had taken place in federal court. See Donohue v. Mangano, 886 F. Supp.
2d 126, 142 (E.D.N.Y. 2012).
6
"Upon the direction of the mayor, or at the request of the head of a department or agency of the city, or at the
request of a district attorney of any county within the city, or at the request of a member of the city council with
respect to the public nuisances defined in subdivisions (a), (g), and (h) of section 7-703, or upon his or her own
initiative, the corporation counsel may bring and maintain a civil proceeding in the name of the city in the supreme
court to permanently enjoin a public nuisance within the scope of this subchapter, and the person or persons
conducting, maintaining or permitting the public nuisance from further conducting, maintaining or permitting the
public nuisance." N.Y. Admin. Code§ 7-706(a).

14

with existing certificate of occupancy, § 28-118.3.2 (Count II); building without a permit, § 28105.1 (Count III); violation of the zoning resolution, Zoning Resolutio n§ 32-14 (Count IV);
failing to maintain a building in code compliance, § 28-301.1 (Count V); creating conditions
endangering the safety of considerable others, Penal Law§ 240.45(1) (Count VI); illegal change
of occupancy, § 28-118.3 .1 (Count VIII). The complain t also alleges deceptive trade practices,
Consume r Protection Law § 20-700 (Count IX), and common law public nuisance (Count X).
The allegations of Count VII come closest to the issues of this case that "defenda nts have
advertised, permitted, maintaine d and used, continue to advertise, permit, maintain, and use
dwelling units at the Five Subject Buildings for transient occupancies of less than thirty days, in
violation of the Multiple Dwelling Law." , 137.
The mere existence of parallel and related federal and state actions does not itselfjustify
abstention. Since Plaintiff does not in the federal action seek to enjoin or otherwise supervise the
state courts, the limited Younger abstention is inapplicable. 7

CONCLUSION
For the reasons stated, Defendan ts' motion is denied. The Clerk shall terminate the
motion (Dkt. No. 37). Oral argument scheduled for August 16, 2018 is cancelled. Defendants
shall answer the Complain t by Septembe r 7, 2018. The parties shall appear for their initial case
managem ent conference on Septembe r 21, 2018, at 10:00 A.M.
SO ORDERE D.
Dated:

Augus65 2018
New York, New York

~-~
United States District Judge

7

Defendants have not argued that abstention is appropriate under the doctrine first articulated in Railroad
Comm'n
a/Texas v. Pullman Co. Under this doctrine, abstention is appropriate "in cases presenting a federal constitution
al
issue which might be mooted or presented in a different posture by a state court determination of pertinent
state
law." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976) (citing Railroad
Comm 'n
of Texas v. Pullman Co., 312 U.S. 496 (1941 )). I decline to consider what the parties have not raised.

15