INDEX NO. 450959/2020

FILED: NEW YORK COUNTY CLERK 03/02/2020 10:32 AM
NYSCEF DOC. NO. 32

RECEIVED NYSCEF: 03/02/2020

SUPREME

OF THE

COURT

OF NEW YORK:
CIVIL
______________-------___________..--------

BRANCH

COUNTY
In the

Matter

THE

CITY

of the

Application

OF NEW

NEW YORK

OF

STATE

---

x

of

YORK,
Index

Petitioner,

No.

-against-

GUESTY,

INC.,

Respondent.
-----------------------------------==--------------

MEMORANDUM
THE

OF

YORK'S

AND

RECORDS

THE

OF

LAW.

NEW

OF

CITY

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

Enforcement

pcimanent

occupancies,

to support

of New

City

and

those

FROM

investigative

authority,

short-term

and

units

the

lack

away
City's

OSE

a company
stays

of fire

from

City

and

guests

deceive

in the

of the

and

Consistent

records

City,

units

and

use

transient

services

with

catering

("Guests")

and

offered,

negatively

communities.

1

1 of 26

Special

of

advertising

as part

than

30

day)

activities

of

OSE's

long-standing

Guesty,

to hosts

not

of

advertising

from

by

and

(less

OSE's

testimony

Office

Mayor's

"Investigation")

to be specifically

that

for

City

offering
(the

the

of illegal

York

work.

is seeking

protection

residents

neighborhoods

in New

occupancies

believed

in the

safety

an investigation

development

policy

SEEKING

INC.

GUESTY,

through

acting

operations

transient

illegal

and

("Guesty"),

business

OF

Statement

"City"),

units

dwelling

related

enforcement

(the

is conducting

("OSE"),

residential

York

SUPPORT

IN

FOR AN ORDER

PETITION

TESTIMONY

Preliminary

The

NEW YORK

OF

CITY

Inc.

("Hosts")

disclosing

take

permanent

disrupt

the

safety

offering
the

illegality

residential

and

livability

housing
of

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

RECEIVED NYSCEF: 03/02/2020

The

to Multiple

pursuant

Law

submits

City

-

procedures

relevant

of

in the

Law

Judiciary

to obtain

evidence

operations

Law

Dwelling

and

§ 715(5);

memorandum

this

records

these

of

-

illegal

or,

transient

forth

facts

in the

City's

and

"Petition"),

A.

in

supervising

combat

and

that

are

Proceedings

interstate

believed

and

advertising,

will

produce

related

business

of

are

application

verified

petition

set forth

briefly

and

City's

of the

herein

are

of Illegal

for

the

dated

relief

sought

28,

February

2020

set

(the

below.

Scheme

Concerning

Short-Term

Rentals

Stâtutcry

Facts

Illegal

Short-term

Rentals

and

OSE
Formed

OSE

support

accorspanying

Advertisements

and

Actions

City

Background

a.

assistance

through

Guesty

occupancies,

Statement

The

Court's

Property

alternatively,

from

testimony

the

seeking

Real

§ 303(1-a);

§ 2-b(3)

and

law

"as

adverse

umbrella

measures

established

was

the

agency

identified

to bring

by

Mayoral

conditions

that

Executive

can

impact

joint

overseeing
properties

Order

quality

No.

of

investigations,

into

compliance

96 of 2006

life,

including

joint

inspections

with

the

to "address

those

that

of the Mayor, Mayor Bloomberg
Creates the Office ofSpecial
Enforcement
to Expand
Initiatives
Across the City and Improve
ofLife
in
All
Five
Dec.
Boroughs,
Quality
available
at https://wwwl.nyc.gov/office-of-the-mayor/news/434-06/mayor-bloomberg-creates-office-

law,"I

issues

and

threaten

Office

Enforcement

14, 2006,

special-enforcement-expand-enforcement-initiatives-across
(last visited Feb. 24, 2020). See also People v.
15th St. Chelsea
156.West
6761, *6 (Crim. Ct., New York Co.), adopted in
LLC, 2019 N.Y. Misc. LEXIS
that "OSE is an executive
6760, *1 (Crim. Ct., New York Co. 2019) (finding
full, 2019 N.Y. Misc. LEXIS
Order 96 of 2006 to address quality of life issues such as illegal hotels, noisy
agency created by Executive
bazaars,"
in denying motion to dismiss fire code violation
or lawless clubs, and trademark
counterfeiting
issued by fire inspector

assigned

to OSE).

2

2 of 26

 INDEX NO. 450959/2020

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public

RECEIVED NYSCEF: 03/02/2020

and

safety,

community

Those

conditions

"have

have

converted

livability

and

values,

property

which

can

lead

to serious

with]

apartment

crime."

buildings

that

(2006).

Executive

enforce

"provisions

Code

Order

No.

Code

§ 1 (2016)

Orders").

officers,

proceedings.

the

City

consumer

result

goals

are

the

in civil

before

proceedings

of these

other

the

City's

before

enforcement

the

York

No.

to

Executive

96,

N.Y.C.

state

enforcing

OSE

Administrative

Mayoral

and

at 1

96,

direct

City

Order

§ 121(4);

for

analysts

of

work

state

the

Admin.

and

of Administrative

Court

seeking

local

laws

relief

compliance

violations.

3

3 of 26

inspectors,

from

whether

uncovering
of

and

notices

legal

bëldings

to housing,

relating

various

and

investigations,

issuance

Trials

injunctive

are to foster

law

fire

detailed

investigations

of the

consisting

investigators

is determining

local

OSE

and

building

inspections,

OSE

and

of

and

field

Office

actions

New

Executive

a number

regulations.

enforcement

to specifically

the

Law

No.

rentals).

to conduct

of

Order

occupâñcies."

as responsible

utilizes

principal

and

Mayoral

Dwelling

attorneys,

in violation

and

protection,

with

OSE

government

used

being

unlawful

short-term

powers,

Currently,

primarily

returnable

civil

City

of certain

OSE

sheriffs,

deputy

within

agencies

its

Law

alia,

Executive

amended

Dwelling

Multiple

illegal

of

In exercising
police

also

(designating

advertising

restricting

Multiple

Mayoral

subsequently

(collectively

See

§ 27-287.1(2)

96 was

[inter

associated

hotels,"

into

advertisement

the

22,

"Executive

No.

of the

prohibiting

Order

been

been

historically

in

safety,

illegality
of

violations

Hearings

("OATH")

and

monetary

penalties.

and

prevent

or deter

and

The

future

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

RECEIVED NYSCEF: 03/02/2020

b.

Both

the

dwellings

or two

the

the

transient

and

or more

responders.

into

on renting

permanent

protect

and

laws

barring

the

in place

have

been

them

in 2010

by

enactiñg

Laws

restrictions

unit

A"

in "Class
2010.2

of

Chapter

strengthened

of

enforcement

the

and

law's

a series

multiple

396

and

clarified

by

of life

of

residences

Chapter

New

of

the

clarifying

for

less

than

of

2016

-

225

-

the

with

enacted

one

only

visitors,

in

emphatically
the

prohibition

in Chapter

to aid

in

enforcing

OSE

charges

specifically

on

residences

days

thirty

City

multiple

Yorkers,

Legislature

amendments

Laws

both

of permanent

decades,

in

of restrictions

including

smaller

conversion

dwellings

of the

a number
-

City

quality

for

Rentals

enacted

the

units)

safety

hotels

Short-term

have

in

dwelling
the

Although

York

dwellings

ersatz

any

of the

of New

City

residential

-.to

Illegal

Concerning

the

of

units

dwelling

City

with

and

occupancy

strengthened

the

State

(three

first

225

Framework

Regulatory

restrictions.3

advertising

2

111 Misc. 620, 623 (App. Term, ISt Dept. 1920) (reversing
dismissal
of
See, e.g., Saportes v. Hayeck,
illegal rooming
against tenant operating
house in tenement in.violation
of
Bawdy House Law proceeding
then-Tenement
House Law § 109, which banned the use of any "tenement
house, or lot, or premises
thereof"
74"'
as a "lodging
and 47 East
Street Corp. v. Simon, 188 Misc. 885 (App. Term, 1st Dept.
house");
(lease
to
converted
to
illegal
1947)
dwelliiig,
boarding house void pursuant to Real Preperty Law § 231).
3

Chapter

287.1.

396 is codiEed

As Chapter
In 2010,
buildings

in relevant
sponsor

396's

part as Multiple

in the face of an explosion
in New

York

Law

Dwelling

§ 121 and N.Y.C.

Admin.

Code

explained:

City,

New

of illegal
York

hotel

operators

State clarified

in single

room

and strengthened

occupancy
the laws

in class A multiple
dwellings.
Now, with the proliferation
occupancy
platforms
that allow users to advertise their apartments
for use
sharing
hotels"
that directly
of
violates New York State's "illegal
the
purpose
the
"illegal
law,
hotels"
law is at risk of being undone.

regarding
of online

transient

home

it is already illegal to occupy a class A mddple
for less than 30 days, this
dwelling
would clarify that it also illegal to advertise units for occupancy
that would
still contain
violate New York law. However,
online home sharing platforms
advertisements
for use of units that would violate New York law. It rests with the city
While

legislation

and state to protect
advertisements
the prohibition,
New

York

(Sponsor's

State Senate
Memo)

Bill

and existing affõrdâble
housing stock by prohibiting
the law, creating a civil penalty structure for those who violate
and clarifying
activities
advertising.
that constitute
commuMEes

that violate

Memorandum
No.

in Support

of Legislation

S6340A)).

4 of 26

(A.

8704C,

239th

Leg. (N.Y.

2016

§

27-

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

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The

rentals

of permañeñt

m.atter

of

more

and

- the

catastrophe

equipmcñt

required

dwellings,

like

housing.

They

buildings

not

hotels,

inject

transient

guests

upon

for

short-term

bargain

unknown

Internet

*2

3d

(App.

character

Related

and

protection

laws

dangerous

accommodations

4 In the seminal

1st

residents

and

Dept.

they
drawn

reputation,

safety

to illegal

tenant"

by

made

to the

that

their

reasoning

that

case on the issue of ccrsmer

disclosing

protection

of

transient

residential

LLC

from

all

65

residents

transient

over

did

world

New

applied

Hosts

place

illegality

York's

their

Guests
hazards.4

and

laws and illegal

broad

in a deceptive

practice.
of their

transient

in unlawful

Even

rentals,

and for compliance
5

5 of 26

with

the strict

fire safety

and

if

the Court

that

and safe, and if they are not, the merchant has engaged
been held responsibb
Innkeepers
have long, and understandably,
are legal
guests,

of

consumer

or not, in our cynical age, most people would consider engaging
in illegal
know
or
the
right
to
whether
it
as
a
have
is or is
minus,
neutral,
plus,
they
activity
have held that a merchant
courts and commissions
represents
impliedly
not...[and]

for the fire safety

not

proceeding).

Whether

and services

3d

by

that:

its products

Misc.

strangers

the

of

her

offering

building

v.

effects

v. Jordaan,

with

homes

as transient

(recounting
from

LLC

other

"the

experience

Brookford,

2014)

Ave.

use

permañêñt

defendant

building

in eviction

not

Co.

Seaman

have

when

York

and

on past

forms

into

a

suppression

support

occupancy.

in enjoining

courts

issue,

Hosts,

New

fire

approved

people

transient

(noting

to

legally

intemperate

Ct.,

and

alarms,

As

guidance

- based

equipped

other

261/271

2019)

where

building

to the

(Sup.

fire

and

such

for

rentals);

placed

advertising

and

clearer

necessitating

sigñage,

and

houses,

727-728

723,

fire,

policy.

housing

require

guests

short-term.

restricting
and

safety

transient

for

intended

permanent

the

of

unknown

Term,

to share

types

or equipped

designed

two-fold:

from

buildings

boarding

also

that

scheme

regulatory

largely

found

in buildings

47 Misc.

141(A),

have

enhanced

Penraat,

apartment

are

evacuate

to safely

broad

York's

dwellings

experts

safety,

time

New

for

reasons

held

 INDEX NO. 450959/2020

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unintentionally

deceptive,

Hosts

decisions

about

eyes-wide-open

consumer's

false

of Consumer

Restatement

Yorkers.

an affordable

Emergency
(Lexis

also

Local

Ch.

249-A,

§ 2, codified

legislative

(Lexis

as N.Y.

was

to continued

economic

requiremcñts
tourists

Law

Ch.

affecting

the

is on the

at

of

midst

"acute

§ 1(2),

§ 2 (Lexis

Law

§ 1

249,

system).

as N.Y.

Unconsel.

See

Law

Seventy-

of Nineteen

2019)

identical

(making
That

strengthened

substantially
of

Ch.

control

systems).6

stabilization

has

emergency."

Unconsol.

Act

New

for

dwellings"

of

public

Protection

availability

a long-standing

shortage

codified

Notes,

126.5

housing

rent

make

Reporter's

permanent

249-B,

rent

emphasis

2019),

as N.Y.

protections

housing

18,

is a "serious

Tenant

successor

conditions

Act

Guests

deceive."

in establishing

Control

Unconsol.

and

re-ratified,

crisis

§ 1, codified

Emergency

in establishing

findings

emergency

2019);

City's

findings

Rent

Housing

Emergency

§ 1(2)

legislative

these

(making

Law

Apr.

affordable

the

such

to

is in the

City

of

that

and

crisis

Control

Rent

the

shortage

declared

has

housing

Housing

2019)

Four

Legislature

The

created

a critical

with

emergency,

housing

Ed.,

to ensure

as "[t]he

intent

business's

known,

obligation

safety,

(Tentative

Contracts

as is commonly

Moreover,

the

on

their

potential

their

not

perception,

escape

cannot

affordable

in response

housing,

by

the

definition
covers placing unwary
certainly
they are subject...this
of serious injury or death.
them to the possibility
and subjecting

to which

in firetraps

York v. Smart
City ofNew
(citations
omitted).

Apts.

LLC,

39 Misc.

3d 221, 225-226

(Sup.

Ct., New

York

Co.

2013)
5 Given

c0mplaiñts
the draft Restatement-including
the recent controversy
by the New York
surrounding
"does not adequately
General and twenty-two
other attorneys general that the Restatement
protect
Attorney
cõñsumers"
- the fact that the type of Host
falls below
the interests of
activity the City has ===+=éd
Monitor:
State AGs urge
Consumer Finance
Alan Kaplinsky,
even that arguably low standard is telling.
ofthe Law, Cmmmer
rejection
Contracts,
May 16, 2019,
of ALI's draft Restatement
https://www.cou-u-finañcemenitor.com/2019/05/16/state-ags-urge-rejection-of-alis-drait-restatementof-the-law-consumer-contracts/

(last visited

justifying

at

Feb. 24, 2020).

6 The Court
Temporary

available

clear finding as well. Bucho Holding
the Legislature's
Co. v.
of Appeals has followed
11 N.Y.2d
Rent Commn.,
State Housing
469, 473 (1962) ("The existence of an emergency
control of rents in the areas here involved
continued
may not, and indeed is not, denied").
6

6 of 26

 INDEX NO. 450959/2020

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Numerous

studies

New

York

harm

to an already

and

Guesty's

term

operational

itself

rentals,"

needs

that

to task

assigñment

began

period

of

a marked

and

Angeles,

other

authorization

in New

have

York.

York

a "Core

users

and

7

Success

The

with

exhorts

Petition,

site

tips

states

2)

Executive"

Account

Office."

and

also

on how

them

shows

to "streamline

to grow

their

on

business,

a daily

New

York

market

housing
in preventing

in

further

of New

efforts

property

contending

is actively

hiring

Ex. 7.

7

7 of 26

2013,

in New

York,

to

seek

Guesty

team

in

that

[Guesty's]

York,

in New

in

they

having

positions

sales

in New

management

presence

1) describes
for

Los

required

shows

driving

users

that:

in

website

website:

growing

complex

a substantial

the

to recruit

Airbnb

chosen

for

short-

guest

offices

not

for

in 2016.

Guesty's

be "responsible

[Guesty's]

from

it maintains

example,

the

Established

with

§ 1301(a)
For

-

operations

York,

platform

simplifies

basis

has

the.company

would

significant

solution

Guesty

York.

to "join

36.

have

management

corporation

Law

that

who

Manager"

its

State

in New

presence

office;

"Customer

in the

Ch.

3-5.

processing."7

Although

Corporation

Business

face

Delaware

centers.

to do business

a significant

a New

major

Exs.

"end-to-end

in

is an unauthorized

Guesty

affordable

interest

property

to payment

expansion

on the

a compelling

ultimate

managers

commrleation

Laws

City

offers

property

N.Y.

organizations

Petition,

York

as "the

that

effects

has

City

2019

non-goverñmentâl

market.

New

in

advertises

vacation

and

the

housing

Operations

of 2019,

deleterious

and

fragile

Act

and

rentals'

elsewhere,

Guesty

Protection

gover-mñtal

by

short-term

documented

B.

Tenant

and

Stability

Housing

such

NYC"

and

NY
and

York

provides
City"

as

a

 INDEX NO. 450959/2020

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New

a native

As
this

city

Airbnb

commercial

hosts

travel

multiple

in the

booking

City

manage

sites

like

Hosts

platform

City

can

and

other

tools,"12

every

view

manage

and

online

8
9

commission

Ex.

Petition,

Ex. 7.

Petition,

feature

platforms

operation.

Petition,

l°

payment

for

each

all

business,"9

"grow

their

illegal

short-term

rental

of their

and

booking

short-term

dashboard,

In exchange

along

With

for

its

with

facilitating

services,

a one-time

("TripAdvisor"),
("VRBO").10

a full

rental

with

Hosts

in New

on

advertisemeñts

larger-scale

Guesty

Airbnb

York

Airbnb

and

"collects

onboarding

the

payment

fee

via

(determined

a

by

Ex. 9.

to Guesty, its "unified
Accerding
because "there aren't enough hours

inbox"

ecrrnications,"
feature provides
automated
"efficient,
cc--^a*a with guests and have a life."
in the day to
Petition,

tools"
antemanen
provide "top-notch
software
to Guesty, its "automation
According
business."
your
routine tasks so you can get back to growing
Petition, Ex. 11
12

Petition,

inbox,"ll

"unified

integration

Guesty,

Guesty

16.

11

3

from

www.Booking.com

services,

"has

services."13

illegal

in a single

advertisements

www.VRBO.com

processing,

of both

facilitates

www.TripAdvisor.com

communication

guest

your

Guesty

("Airbnb"),

and

24/7

city,

to grow

exceptional
hosting.8
standard
of

("Agoda"),

alia,

and

covering

commercialized

fixed

inter

with,

in which

that

other

your

("HomeAway");

know

an exceptional

www.Airbnb.com

www.Agoda.com

www.HomeAway.come

"automation

hosts

to help

with

to raise

aiming

goal

("Booking.com"),

provides

And,

you

convert,

with

environment

crowded

business,

businesses

stated

or recent

an exceptional

comes

With

Yorker

is exceptional.

Ex. 9.

8

8 of 26

take over your

Ex.

10

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

the

RECEIVED NYSCEF: 03/02/2020

size

length

and

tailored

to

commercial

on

cou1pany

listings

and

storing

their

been

operations

the

et. al.

on Airbnb

Guests

associated

support

Guesty
and

third-party
a guest's

in multiple

in dangerous

another

millions

and

unsafe

still-ongoing

the

of

its

"custom

models

pricing

its users

by

Hosts."16

them

services

for

on-the-ground

cleaning.17

For

their

ill-gotten

and

scores

both

the

listing

takes

manage

online

sùch

staffing,

these

short-term

rental

example,

several

defendants

illegal

income

Guesty

Group,

Property

short-term

from

rental

placing

accounts

as

services

illegal

v. Metropolitan

of

for

Guesty

Unfortunately,

and

City
of

majority

conditions,

to Guesty,

helping

case

of

it easy

"Professional

investigations.

dollars

to make

Guesty

Hosts,

or

stay

deception

manage

directs

commercialized

OSE

consumer

generate

with

offers

like

for

of

hands

increasingly

to help

even

partner

of the

identify

during

abatement

used

out

and

uncovered

nüisance

and

providers

and

as a software

belongings

to

software

its platform,

process"

bookings

used

with

to use

website

its

rental

entire

have

collaborates

Hosts

setup)""

profile

[a Host's]
business."15

[a Host's]

Airbnb

"the

of

accóüñts

unwary
have

been

investigation.18

14
is
16
17

Petition,

Ex. 20

Petition,

Exs.

petition,

Ex.

18In

12-13.
17.

OSE is constraiñêd
in the details it can share
of the Gñgciñg nature of that other investigation,
(1"
New
Matter
v.
York
Dept.
40 A.D.3d
Investigation,
See, e.g.,
531, 535
of Brasky
City of
of
Dept. 2007) (City investigative
withhold
interview
transcript
"to preserve the integrity
agency could rightly
of ongoing investigntions
subjects or possible witnesses to the full
alerting potential
by not preiñatarcly
Emup!nint
and New York City Civilian
scope and nature of those investigations");
Rev. Bd. v. Brookdale
NY
*1
(Sup. Ct., New York Co. 2015) (ordering
Univ. Hosp. & Med. Ctr., 2015
Slip Op 30221(U),
support"
in petition due to
with City investigailve
subpoena despite "little
compliance
evidentiary
restrict"
obligation
to
if
the
Court
so
"petitioner's
that information).
However,
directs, the City can provide
ad
· a details ex parte for the Court's in camera review.
New
York
v.
Airbnb, Inc., 2019 NY
City of
light

publicly.

*18 (Sup. Ct., New York Co. 2019), citing Hearn v. New York City Dept. of
Slip Op 31377(U),
2007 N.Y. Misc. LEXIS
9428 (Sup. Ct., New York Co. 2007) and Hearn v. New York City
Investigation,
9429 (Sup. Ct., New York Co. 2007) (peññitting
2007 N.Y. Misc. LEXIS
Dept. of Investigation,
OSE to
9

9 of 26

in

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addition

In

major

social

to new

manage

C.

in the

the

City,

in the

listings

success

platforms.20

networking

users

its

to lauding

of Guesty

detailed

Petition,

website,19

even

New

its

a one-on-one

live

Guesty's

using

service

on

demonstration

program

to

laws.21

York's

Transient

Illegal

Concerning

markets

Guesty

offers

of whom

majority

violating

Investigation

OSE's

its

Guesty

marked

are

City

via

Occupancies

and

Advertising
As

with

the

and

building

work

has

annual

all

and

6300

address

adequately
targets

whose

the

Investigation

on

a large-scale

submit
camera

21

Guesty,

illegal,

most

a proactive

-

to

create

and

and

take

of complaints

has

growing

urgently

warrant

examination

of

notice.

defraud

and

(as

and

OSE

transiêñt

fire

OSE's

detailed

and

-

its

industry,

City's

in

related

upon

public

evolved

problem

guests.

Building
the

Legislature

hazardous

protection,

enforcement,

illegal

in the

summonses

from

expanded

and

to

the

advertising

immediately

consumer

should

and

factor

and

dwellings,

abatement,

lucrative,

Mayor

occupancy

of administrative

OSE

the

by

that

previous

To

intelligently
has

occupancy

civil

over

including
efforts.

identify

incorporated

and

its

into

advertising

basis.

for subpacña

to protect

Guesty

See, e.g., Petition,
Petition,

can

Court

alone

operations

justiñcation
review

this

in permanent

thousands

in 2019

transient

emergency,

of nuisance

the

tasked

to be an aggravating

found

in thousands

received

complaints

illegal

housing

a host

of which

having

been

has

resulted

and

reports)

the

conditions

safety

already

litigation,

work,

which

City,

OSE has been

combating

statutorily-declared

oñgoing

20

and

investigating

afflicting

19

in the

ongoing

in the News,
Ex.

seeking transaction
investigations).

and advertising

https://www.guesty.com/press/

19.

Ex. 20

10

10 of 26

records

(last visited

from

Airbnb

Feb. 24, 2020)

ex parte

for in

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information

Using
believe

that

records

and

York

information

to seek

assistance

has

and

law,

from

as its

is targeting

Guesty

to New

contrary

developed

that

records

and

THE

COURT

hosts

that

in New

activity

has

substantial

illegal

operating

OSE

to

businesses

possesses

Guesty

York.

reason

relevant

now

asks

the

Court's

information.

Arimments

TO GRANT

AUTHORIZED

PLAINLY

IS

those

to believe

Legal

I.

OSE

sources,

customers

reason

regarding

those

other

THE

RELIEF

SOUGHT
A.

Court

The

Proposed

The

Suprcme

jurisdiction

make

in law

new

A.D.2d

Supreme

and

forms

of

empliasis

York

Co.

1980)

Co.

1979)

proper

and

complete

power

Jones

has

inherent

administration

essential

pursuant

to N.Y.

Court's

"inherent

of

(in

records

power

to their

Art.

plenary
People

error

in

of justice,

court

and

existence");

Matter

11

11 of 26

ex rel.

Doe

405,

court

which

in all

407

2d

any

of Kaminester

of

remedy
102

noted

transmittal

of

citation

omitted

(Sup.

Ct.,

New

justiciable

531

527,

is necessary

courts

Law

v. Beaudoin,

to resolve

Misc.

powers

Judiciary

to fashion

(iñtcñial

and

the

power

attorney)

is that

resident

effect

Court's

100

"devise

§ 7 and

VI,

Granting

original

to

into

remedies

v. Cirillo,

of the

power

doctrine,

2d

by

general

Supreme

Misc.

to fashion

People

power

Const.

105

Assistance

to carry

to district

v. Palermo,

OSE

that

of

the

has

to mootness

no

Assist

Seek

is a court

justice."

exception

rights);

inherent

York

necessary

in finding

citing

citizens'

("The

proceedings,

Court

Family

(court

Bronx

and

1984)

to

of record,

as a court

to

Authority

Authority

of New

administration

inherent

protect

it"

has

State

this

Dept.

added),

and

by

including

confidential

and

jurisdiction

and,

(3d

Court's

otherwise

disputes

equity

the proper

363

359,

the

and

2-b(3),

for

necessary

of

Inherent

OSE

and

Court

possessed

and

and

Statutory
Order,

process

and jurisdiction

§§ 2(5)

Has

the

(Sup.

for

Ct.,

the

superior

v. Foldes,

51

 INDEX NO. 450959/2020

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A.D.3d

(1st

529

528,

dismissed

app.

Dept.),

.(quoting

Doe

v. Beaudoin

in

See also

City

of New

v. NYC

New

Ct.,

York

issue

b(3),

Co.

of the

investigation

2d

work

on behalf

Children's

Servs.

6842

Ct.,

(Sup.

employee

Complaint

New

disciplinary

notice

to relevant

judicial

assistece

New

York

New

York,

York

2016

Bd,

state

2015

Slip

LEXIS

Misc.

73 A.D.2d

136

also

§

2-

contempt

v. Teicher,
(1st

include

held

City

Admin.

Corp.,

2012

N.Y.

Misc.

*2

in support

City

Rev.

Bd.

(Sup.

York

(Sup.

"CCRB

that

of its

Ct.,

Dept.

the

right

to

Examiner's

v. Office

of the

New

12

12 of 26

York.

conducting
for

LEXIS

surveillance

City

New
has

video

Civilian

York

the

Co.

2016)

Office

Comptroller

Co.

2015)

to

and

and

CCRB);

of the

(CCRB

(on

to seek

ability

investigations"

official

Medical

Ct.,

hospital

of

of New

finding

by

Op 32537(U)

York

Matter

4423,

in

agencies

of New

Hosps.

prosecutors,

information

Complaint

in

(Sup.

alleged

People

City

production

and

of records

NY

&

Health

City

to assist

Matter

e.g.,

investigation);

or federal

Civilian

See,

(ordering

N.Y.

Law

and

"powers

*1

2729,

of

records

proceeding);

inherent

invoked

routinely

2012)

to obtain

production

City

Co.

Court's

LEXIS

investigation

affd.,

Court).

Supreme

to Judiciary

to produce

1977),

(2008)

activity").

public.

York

pursuant

781

by

Misc.

in the

Law
Co.

held

N.Y.

may,

Airbnb

York

(the

(1981)

been

of the

v. New

Rev.

ordering

have

powers

New

powers

to assist

Abatement

criminal

of

Court

in ordering

Ct.,

638

in investigation

These

for

(Sup.

"the

11 N.Y.3d

denied,

2017

LLC,

be necessary

to a Nuisañce

lv.

inherent

Midtown

that

order,"

52 N.Y.2d

affd.,

assist

their

as may

644

638,

broad

affirming

(finding

Court's

related

90 Misc.

1980),

2017)

orders

such

violations

York

and

City
has

of

 INDEX NO. 450959/2020

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to

capacity
subpoena

seek

to

Court

the

agêñcies

121(4)

and

public

and

303(1-a)

(expressly

Misc.

's Office

York

Co.

N.Y.

Misc.

travel

LEXIS

and

LEXIS

N.Y.

Misc.

22 See

also Green

In

LEXIS

3005

OSE

non-judicial

the

attendance

OSE's

ability

(Sup.

(Sup.

York

Ct.,

to OSE);

(Sup.

Ct.,

records

§ 20(21)

20.19

City

New

Co.

York

Co.

N.Y.

of New

City

New

York

at such

Co.

2018);

of OSE

Office

of Special

York

2017)

107 (Ist Dept.

(ordering
s. Impact

(ordering

in

"to

and

the

to

York

(Sup.

City

Ct.,

production

of

records

2017

Tours,

production

New
2019

Enforcement,

Virtual

the

(Roomorama),

re New

1255

Real

through

including

LEXIS

§§

investigations").

through

In

Law

testimony

iñhabitants,

Misc.

2019)

and

or its

Application

local

Dwelling

empowered

Laws,

and

a court,

(City

information

Dwelling

Mayor's

York

city

and

enforcement

before

alia,

Kaminester,

state

(permitting

to compel

to seek

New

of

Multiple

investigations.

Ct.,

provisions

of witnesses

Multiple

and

documents

property);

to the

and

to provide

inter

Law

of concern

matters

OSE's

re New

5236

real

City

Enforcement,

platforms

booking

in

3689

of Special

2019);

all

Proceedings

use

demised

General

subpoena

for

assistance,

N.Y.

issue

v. Beaudoin

§ 715(5)

testimony,

empowering

recognized

and

Law

and

of

use

various

by

Proceedings

and

into

by

have

Actions

Mayor

by

inquire

witnesses

agencies

records

hearings);

enforce

Courts

2018

and

business

and

to

Doe

following

to compel

constituent

unlawful

and

Court's

its

Actions

private

investigate

Property

and

OSE to subpoena

like

powers

inherent

empowered

Property

concerning

require

OSE

to

Real

law.

Court's

is specifically

testimony

its power

concerning

Comptroller).22

City

Beyond

the

judgmeñt

declaratory

of

records

had implied
1998) (City Public Advocate
capacity to
sue for access to records); and Matter of Citizen Review Bd v. Syracuse Police Dept., 150 A.D.3d
121 (4di
in furtherance
Dept. 2017) (city review board had implied
of its
capacity to sue local police departiñêñt
v. Safir,

255 A.D.2d

duties).
13

13 of 26

 INDEX NO. 450959/2020

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and

RECEIVED NYSCEF: 03/02/2020

OSE

and

investigation);

Misc.

of Utah

assistance

requesting

2861

LEXIS

investigation

of New

City

(Sup.

Ct.,

to produce

authorities

New

v. New

York

York

transient

to interstate

pursuant

Co.

York

2017)

to OSE

2017

LLC,

subject

(ordering

records

booking

Midtown

City

for

rules

discovery

N.Y.

OSE

of

of contempt

as part

investigation).

through

Whether

conferred

should

the

by
order

Guesty's

B.

Do

the

Target

to

New

in

seek

to

express

the

Records

New

Yorkers,

powers

statutory

is clear,

the

and

Court

past.

Choices

Business

or the

powers

ability

in

as it has

Affirmative
and

Law.

OSE's

Legislature,

production

inherent

Court's

the

York

Constitute

New

Embrace

Acquiescence

to

York

New

Yorls

Jurisdiction

Companies

potential

carries

but

customers,

concomitant

A.D.2d

(4"'

516

512,

Dept.

that

it is everyman's

words

and

actions,

provisions

provide

safety

its user

in

services

laws.

to

to the

and

choose

affirmative

which

an investigation

of,

choices

do

alia,

so by

it for

New

have

a variety

of

to New

York

business

York's

activity

14

14 of 26

with

New

with

and

of law.").

including
Yorkers

Yorkers

remains

housing,

business

choice

of

of

and

rule

its

New

own

York

law

its business

and

building,

61

the

by

embraced

as part

Yorkers

lawful

Guesty,

the

as

v. Fiumano,

Perry

law

business,

flout

the

York.

to do

New

targeted

to

a court

York

and

New

to comply

at common

in

target

York

in New

rule

to New

is acquiescence

inter

the

evidence

to

and

an obligation

activity

was

to give

company

agreement,

that

("It

York

in New

business

do

business

come

actively

to those

Those

that

duty

to New

to come

including

1978)

among

consequences,

support

has

convenient

when

free

freedom

that

about

today,

law

course

responsibilities,

information

for

requests

of

are

to

fire

legal

jurisdiction

to

Guesty

is supporting

subpoena

to

in New

 INDEX NO. 450959/2020

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York.23

(1"

265

M Kingstone,

B &
Dept.

(S.D.N.Y.

2015),

2015)

business,"

in New

Co.

10 N.Y.2d

York,

113

York

(1961)

The

jurisdiction,

contacts

of a civil

that

suit,

this

of

when

a subpoena

198

it is our

were

Belle

(1961),

company

Martin

Act

has

historically

view

that

91

from

the

Creole

and

In

was

A.D.3d

570-571

561,

"comes

with

to comply

with

information

*9-11

Op 32454(U),

Slip

v. Attorney

to New

259,

of transacting

(Sup.

of New

General

re Attorney-General,

subject

10 N.Y.2d

York

jurisdiction

108,

and

investigation).24

taken

the

lesser

level

holding
to be less

it would

York

S.A.

Intl.,

3d

advantages

bank

NY

2019

Inc.,

131

Co.,

F. Supp.

in New

business

the

considering

deemed

Bank

in directing

in an investigation,

State

to benefit

to do

La

subject

of Appeals

especially

with

and

stay

Court

of Cuba,

v. iFinex

citing

193

temporary

dissolving

to sustain

2019),

(finding

v. Republic

decision

of James

192,

Commercial

responsibilities,"

Matter

and

Intl.

order

"[i]n

the

reciprocal

subpoena);

New

that

York,

v. Mega

Vera

quoting

(noting

commensurate,

Ct.,

LLC

still

that

than

broadest

of New

"even

if

necessary

be amenable

view

to

to New

York

[a]

foreign

to justify

[a]

contact

York's

necessary

company's

the

subpoena."

maintenance

La

Belle

23 That

authorization
to do business in New York
chosen not to seek the required
Guesty has apparently
York
staff
in
New
New
businesses
and mandathg
while eùñelt2ñ5õüsly
that its
York, targeting
hiring
users'
New
York
law
be
with
be
subject
to
but
does not
may
hdepedently
üñlawful,
Guesty
relationsMp
Business Corporation
Law §§ 1301(a) and 1314.
excuse Guesty from New York jurisdiction.
24 But see Amelius

v. Grand Imperial
LLC, 57 Misc. 835, 848, n. 4 (Sup. Ct., New York Co. 2017), rearg.
2096 (Sup. Ct., New York Co. 2018) (quashing
subpeena to
denied, 2018 N.Y. Misc. LEXIS
discovery
authorized
Delaware
and Kline v. Facebook,
Inc., 62 Misc. 3d 1207(A) (Sup. Ct., New York
cürpcraticñ);
in denying pre-action
Co. 2019) (same court and justice, citing itself in Amelius
subpoena).
This
discovery
in
that
there
are
questions
about
differs
from
Amelius
Guesty's
application
conduct
however,
substantially

the Court should instead follow the over
could be read to the contrary,
and the others that have done so
to follow Amelius,
declining
expressly
Office of Special
implicitly.
See, e.g Matter of the Application
of the New York City Mayor's
2018 N.Y. Misc. LEXIS
to follow
2430, *4 (Sup. Ct., New Yoi·k Co. 2018) (declining
Enforcement,
that authorized
foreign corporation
was subject to jurisdictics
to subpoena in barring
Amelius
and finding
and to the extent

two dozen

written

Amelius

or Kline

decisions

Matter of the Application
of OSE subpocña);
Office of Special
of the New York City Mayor's
N.Y.
Misc.
LEXIS
*3
(Sup.
New
York
Co.
2019
and Matter of the
4701,
Ct.,
(same);
Enforcement,
2019)
the
New
York
Mayor's
Office
Special
2018
N.Y.
Application
Misc.
LEXIS
Enforcement,
of
3662, *3
of
City
in New York)..
bank operating
(Sup. Ct., New York Co. 2018) (same, regarding
diselesse

15

15 of 26

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Creole,

at 193.

citizens

of the

State

653

(1950)

questioned,

the

643,

from

"the

great

fair

"citizens

harmful

state"

responders

dates

reaffirmed

2017

NY

in the

City

of New

cases

interest
City);26

services

in

and

addressed

of jurisdiction

and

citing

building

earliest

York's

in the

past.

(Sup.

v. Assa,

colonial

laws

regulations

How

here

- warranted

316,

331

such

first

Ct.,

Slip

against.short-term

Fire

the

plaintiffs

not

offend

an effort,

Disaster

itself

(because

(2016)

an issue

of

a greater

traditional

not

as a Dutch

The

notions

York

Co.),

stay
(1st

Amsterdam

rentals

Shaped

the

to protect

City's

visitors,

and

has

Midtown

Dept.

denied,

2017)

in finding
of permanent

Evolution

sadly

LLC,

app.

pending

the

specific

Yorkers,

colony,
v. NYC

York

just

New

Op 90169(U)

of then-New

been

a broad

system,

responders.

of New

New

U.S.

in protecting

banking

to protect

days

City

NY

2017

at issue

regulations

safety

*45-47

Shelhamer,

is just

and

has

might

proper).2s

was

visitors

residents,

assertion

interest

does

than

339

York's

here

the

is required

v. Virginia,

a broad

provide

suit

Investigation

to New

York

enforcing

Charles

all

of

Assn.

York's

courts

jurisdiction

tragedy

Op 31596(U),

25 Judge Garcia
assertion

through

Slip

(collecting
public

of the

fire

been

justice,"

but

York

maintenance

less

28 N.Y.3d

Cie,

of New

use

New

New
to that

&

v. Pictet

and

"the

purpose

in enforcing

first

nom.

and

- similar

fraudulent

State,

Health

such

that

is to protect

proceeding

consequences,

Where

found

activity

the

substantial

the

has

Rushaid

relief,"

of the

interest

sub

and

to the

and

play

Here,

and

Appeals

implicates

of

possibility
of

of

of the

Travelers

citing

J., concurring).

Court

importance

purpose

dangerous

at 198,

M,

of jurisdiction.

complaint

the

potentially

(Douglas,

fraudulent

assertion

from

case."

be the

otherwise

"[w]here

put,

Simply

compelling
dwellings

of the New

the issue more bluntly
in concurring
in Reheid,
broad
noting that if New York's
effect on foreign brinesses
coming to New York and previding
it."
at 339 (Garcia, J. concurring).
Rushaid,
laws, "[s]o be

had a chilling
to those breaking
New York

26 N.Y.C.

Dept. of Records & Info. Servs., Ordinances
https://www.archives.ñyc/ñcwamsterdam/dutchordinances

of New Amsterdam,
(last visited Feb. 24, 2020).
16

16 of 26

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

York

RECEIVED NYSCEF: 03/02/2020

City

(Dec.

Vol

Code,

Building

14, 2010)

No.

VIII,

incidents

(collecting

Code

6 Intl.

and

Council

subsequent

Building

amendmeñts

J. Online

Safety
to

City

safety

regulations).27

Courts

permanent

have

Act

Slip

-

allegations

City

of New

"the

use

peññañêñt

Bucho

as the

of the

in the

"in

stays

areas

asserting

for

which

has

("The

supra.

here

involved

jurisdiction

transient

additional

without

NY

Slip

occupancy

repercussions

existence

of

may

and

not,

merits

public

in the

of

at *47

residents

real

estate

fire

this

2016

denied.").

safety

State");

that

(noting
of the

market");

continued

justifying

is not,

Tenant

LLC,

of

policy

Op 31596(U),
deprives

and

preliminary

reaching
the

public

Imperial

(granting

an emergency
indeed

protecting

Stability

v. Grand

2016)

violate

2017

LLC,

Housing

Co.
-

activity

and

"serious

Amelius

York

of themselves,

illegal

in promoting

compelling.

See also

New

rental

and

interest

-

City

Ct.,

Midtown

properties

Co.,

(Sup.

City's

a legislatively-declared

§ 1.

D,

short-term

v. NYC

York

Holding

for

§ 1, Pt.
*13

of

housing,

of rents

basis

2019

on basis

in the

housing

32330(U),

Op

injunction

of

the

during

especially

affecting

Protection

NY

-

housing

emergency"

found

routinely

Combined,

of

City
and

control

the

is clear.

27

See also City of New York v. Pavlenok,
injunction
preliminary
barring
(grañtiñg
state and local regelâtiGñs
are "designed

2019 NY Slip Op 31938(U),
rental of permanent

short-term

*17 (Sup.
dwellings

Ct., New York Co. 2019)
and noting that relevant

to protect the health, safety, and welfare -of the public");
City of
York v. Baldeo, 2019 NY Slip Op 30485(U),
*13 (Sup. Ct., New York Co. 2019) (same); City of New
York v. Big Apple Mgmt., 2019 NY Slip Op 31046(U),
*7 (Sup. Ct., New York Co. 2019) (same, noting
"the public's compelling
and fire safety codes are followed");
interest in ensuring that be"dkg
City of New
York v. Tominovic,
2020 NY Slip Op 30158(U),
*10 (Sup. Ct., Queens Co. Jan. 17, 2020) (same, citing

New

and Smart Apts. in noting that operators of illegal short-term
accom2nedations
had
Baldeo, Pavlenok
of others");
"eñgaged in conduct that endangers the lives, health, safety and well-being
and City of New
York v. Freid, 2019 N.Y. Misc. LEXIS
injunction
and lv.
5146, *1 (Sup. Ct., New York Co.), appellate
(1"
short2019
NY
Dept.
order
denied,
2019) (denying temporary
Slip Op 84374(U)
restraining
barring
buildings
provide
term rental operation
inter
subject
appropriate
fire
alia,
because,
"apparently
safety
protections

to transient

tenants

for buildings

of their

respective

17

17 of 26

dates of construction").

 INDEX NO. 450959/2020

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II.

RECEIVED NYSCEF: 03/02/2020

THE

Sought

That

records

regarding

busiñéss

activity
Misc.

N.Y.

subpoena

and

of New

and

cases

for

should

legitimate

2009),

. With

and

other

Guesty,

all

functions,

of their

online

rendered

can

New

York

business

OSE requests,

and

services.

Impact

company

regarding

view

City

a single

As

such,

utility

question.

Multiple

Virtual

virtual

production,

Tours,

tour

supra.

of

short-term

subject

York

courts

records

for

City

have

(ordering

production

building

in short-term

18

18 of 26

to

Dept.

(1988).

in

certain

on

larger-scale

transient

providing

rental

of

services

and

occupancy

considered

of records

Airbnb

and
- records

sought

companies

anything
irrelevant

advertisements

specifically

from

for

(3d

automation

illegal

including

1170

of

to obtain

ability

is utterly

331-332

facilitating

records

to uncover

1169,

rental

of the

(collecting

demand

sought

327,

dwelling);

at *15

process

including

dashboard,

permanent

a broad

67 A.D.3d

manage,

illegal

in New

ordered

information

Vilensky,

to quash

transactional

of the

futility

v.

4, Inc.

agency's

an investigative

the

of

established

long

71 N.Y.2d

and

the

rental

regarding

motion

(denying

seeking

v. Cuomo,

operations

- is beyond

advertising

in

operation.

and

or where

Sec.

Op 31377(U),

Slip

has

the

v. Abrams,

Hosts

platforms

commercialized

"unless

of Roemer

Matter

Anheuser-Busch

quoting

York

in an investigation

Vill.

2017)

subpoenas

that

or obvious

inquiry."

proper

New

Investigation

Trump
Co.

NY

OSE

with

the

short-term

2019

Inc.,

be quashed

is inevitable

Kings

regarding

recognizing

not

MANIFESTLY

relevant

debated.

Ct.,

action

York).

investigations,

information

any

in New

rentals

records

(Sup.

compliance

ordering

short-term

5198

to

are

activity

be seriously

v. Airbnb.

York

Relevant

Plainly

business

in fraud

to Airbnb

City

are

cannot

LEXIS

ARE

INVESTIGATION

Records

2017

SOUGHT

TESTIMONY

TO THE

The

A.

that

AND

RECORDS

RELEVANT

from

similar

ancillary

photography

investigation);

and

 INDEX NO. 450959/2020

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of New

City
York

Co.

Yorkv.NYC

2016)

Vill.

Trump
B.

The

Sec.

Court

4, and

Will

Testimony

to

quash

of New

Provide

N.Y.

Misc.

path

the

York

laid

v. Airbnb,

4569

for

before

and

Relevant

Invaluably

LEXIS

subpoena

discovery

follow

should

City

2016

LLC,

motion

(denying

litigation).28

OSE

Midtown

New

Ct.,

in

records

booking

it by

direct

(Sup.

Matter

of Roemer,

production.

Evidence

and

Context

for

the

Investigation

of

Investigators

important

most

the

admissions

of alleged

States

v. Rutherford,

Internal

Revenue

similar

LEXIS

investigation

of

Like

and

York

28

the

may

The Court

other

be subpoenaed

provided

supra.

rental

more

has

v. New

York

to testify

of

obtain

of

the

leads,

witnesses

and

investigations.

(E.D.

value

to

testimony

Mich.

of witness

the

used

resolving"

*16

value

York

are

is one

2007)

of witness

and

considering
in

testimony

Midtown

City

(quoting

in

testimony

United

produce

2017

LLC,

documents

in

activity).

speaks

Guesty
held

plainly

information

interview

"[t]he

in

42351,

witness

(ordering

entity,

to testify

factors

recognized

of New

City

corporate

of Appeals

major

of the

has

that

and

LEXIS

Dist.

Court

before.

short-term

are

discussion

The

2861,

any

Court

U.S.

Manual's

investigations

Misc.

violators

in-depth

as "[i]nterviews

evidence,"

establish

"[a]n

that

an investigation,

2007

motion).29

suppression

N.Y.

and

recognize

walks

of,"

aspects

information,

develop

all

that

"a corporation

as a witness

about

through

about

the failed

motion

its

doing

a corporate

officers

and

employees,

business

in New

transaction

through

to quash at 2016 N.Y.

Misc.

LEXIS

its

4568

Even where courts have taken a narrower
(Sup. Ct., New York Co. 2016).
view, there has been no question
in or targeting
in an inquiry regarding
that records pertaining
to activity
New York would be iclciañt
in or affecting
New York.
See generally,
44 Misc. 3d 351 (Sup. Ct.,
e.g., Airbnb v. Schneiderman,
activity
Co. 2014) (rpeshh·g
nonjudicid
subpoena on breadth grõüads for seeking information
Albany
regardirag
York v. Tominovic,
Queens Co. Index No. 710662/2019,
beyond New York City) and City ofNew
activity
(Sup.
Co.
in quashing discovery
op.
at
4-5
Queens
Jan.
subpoena
Ct.,
21,
(Kerrigan,
(same,
2020)
J.)
slip
civil action without prejudice
to City serving a narrowed
subpoena).
29
Reversed on other grounds,
(6*
Cir. 2009).

555 F.3d

190

(66

Cir.),

rehg.

en banc denied,

19

19 of 26

2009 U.S. App.

LEXIS

in

12986

 INDEX NO. 450959/2020

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officers

and

employees

Co.

Steamship
Whether

v. Waterfront

as "it

jurisdiction."

Matter

*5

Op 30452(U),
supra.

is no

The

sole

records

from

matter,

the

New

Ct.,

then

issue

are

answer

Investigation

is plainly

Misc.

2861,

should

The

Court

its

and

be called

should

Prods.

should

York

as it has

do

NY

&

employees

the

same

that

in this

of

LLC,

2017

and

before,

-

support

Midtown

City

Co.,

reason

be produced

in

Slip

Steamship

and

to testify

done

the

2018

Fruit

For

is

within

Co.,

officers

upon

v. New

York

is not

an interview.

15 (1977).

or otherwise

Standard

through

Investigation

of New

City

-

Water

&

Fruit

11,

York

or employee

citing

during

to the

New

Smith

2018),

Guesty

Guesty

yes.

supra.

Co.

to provide

to whether

officer

Standard

43 N.Y.2d

Harbor,

within

v. A.O.

York

relevant

the

that

is whether

information

York

is located

of Murphy-Clagett

Guesty

LEXIS

to say

transaction."

of the

of New

employee

excuse

(Sup.

relevant

possesses

knowledge

Commn.

Imewicdgeabic

that

iñññaterial,

have

who

order

the

N.Y.

Guesty

to testify.

THE

III.ALTERNATIVELY,

TO INTERSTATE
The

A.

May

Court

from

COURT

COULD

AN ORDER

ISSUE

PURSUANT

LAWS
Issue

New

Beyond

Orders

York's

to

Facilitate

Records

Obtaining
for

Jurisdiction

Use

by

and

OSE.

and
Has

Testimony
Done

So

Before

Quite

York

when

the

all

Court's

that

Dept.

(2d

Dept.

the

Court

it is "necessary

or

simply,

"judicial

Dept.

1970)

Matter

Wiseman

citing

Corona

(finding

that

orders

convenient"

a party

to

to do

secure

so.

be necessary
60 RMBS

of Part

also

See

1984),

issue

imprimatur...will

is required.

2017).

can

Hair

need

Net

CPLR
or

Put-Back

v. American

Motor

Corp.

20

20 of 26

that

A
in

155

Litig.,

Sales

Corp.,

"it

from

3108.

helpful,"

v. Chemaco,

show

merely

evidence

Ltd.,

will

mere

securing
A.D.3d

103

New

outside

evidence

482,

484

A.D.2d

230,

33 A.D.2d

1001

be convenient

that

showing

for

is
(1st

236
(1st

[the

 INDEX NO. 450959/2020

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its

to have

party]

com±ilissioñ

not

out-of-state

for

be dismissed

Dembitzer

2005)

the

that

(noting

movant

Mgmt.

"lawyers

6 Misc.

Corp.,

a cautious

are

than

first

3d

proceeding
*5

instances

his

(Civ.

Ct.,

'belt

and

of

"should

designee

and

notice");

by

of

issuance

a conmsission

of having

1035(A),

and

lot,

to justify

for

precaution

the

rather

court''

the

by

an application

is taking

a commissioner

v. Broadwell

that

and

testimony

because

denominated

formally

a commissioner

appointed

designee

New

York

Co.

suspenders'

abound").

has

Society
in matters

Social

Schuyler

social

that

investigation

intervention"

and

York

City

Mayor's

(Sup.

Ct.,

New

York

swift

and

in

have

New

of New

of City
York

Co.

2019)

pursuant

preference

Recognizing

delay,

courts

York

v. NYC

prophylactic

have

Midtown

letter

in

cases

within

Inc.,

(OSE

subpoena

enforcement

granted

LLC,

rogatory

OSE
2017

Code

public

compelling
this

NY

in addition

very

Slip
to

its

public

N.Y.

to OSE

Slip

Misc.

Ct.,

"OSE

has

and

entitled

In

re

6553,

*3

a compelling

mandate).

investigative

and

swift

LEXIS

Courts

proceedings.

*4

Op 33806(U),

proceeding

of

safety);

investigative

of

investigation

importance

that

finding

NY

2019

v. Airbnb,

the

the

Dept.

(Sup.

protective

the

preferences

granting

Admin.

and

Co.

252-253

250,

child

2019

particularly

Schuyler

emphasizes

York

to N.Y.C.

for

affecting

investigatioils"

issue

very

2d

Enforcenient,

(collecting

investigations,

safety.

Misc.

records

"properly

of Special

2019)

accurate

this

recognized

Matter

Co.

144

Inc.,

in investigations

Office

accurate

and

or public

of

department

services

New

interest

Hosp.,

production

(directing

1989)

swift

in

operations

v. Schuyler

by Bach

Co.

noting

government

concerning

Servs.

interest

a compelling

(Sup.

Ct.,

to calendar

§ 28-205.1.1).
interest

in

of

relief

type

avoiding
when

Op 31596(U),
open

commission

21

21 of 26

investigative

unnecessary
sought

at *4,

before.

City

of New

n. 6 (granting

to facilitate

trial

testimony

a

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

from

In

RECEIVED NYSCEF: 03/02/2020

United

re New

Kingdom

York

supra.

Misc.

LEXIS

Office

of Special

of

B.

those

all

three

Misc.

922

Statoil

Mktg.

LEXIS

4973

and

Civ.

&

Ct.,

Super.

the

Court

the

courts

May

re New

City

N.Y.

Mayor

's

records

by

(granting

production

ordering

LEXIS

2019

York

supra.

5236,

Court

like

have,

Procedure

§ 2029.100

New

Ct.,

York

Inc.

New

honor

Co.

v.

Sought

do

of

as it has

done

OSE

prior

Pursuant

is Oualified

Act

and

should

considering

Be

Discovery

(US),

Trading

(Del.

while

Misc.

Enforcement,

In

LEXIS

N.Y.

before:

favor

requests,

application.

California

issue

routinely
(Sup.

Misc.

multiple

OSE's

and

and

of

and

2019);

rogatory

Testimony

Law,

Code

states

2d

grant

Delaware

Cal.

Co.

interests,

and

and

Depositions

§ 4311;

letters

of Special

supra.

(Roomorama),

2019

Enforcement,

Of)ìce

N.Y.

OSE

of

to OSE).

and

California

Interstate

York

2019

Dembitzer

Records

Both

New

compelling

caution,

The

Mayor's

and

platforms

Wiseman,

side

City

Enforcement,

commissions

Given

the

Ct.,

Application

of Special

Office

York

(Sup.

4149

booking

follow

re New

; In

prophylactic

travel

Mayor's

City

1255,

videoconference);³°

by

(the

letters

1982)

New

"UIDDA")
et seq.;

rogatory.

2009)

enacted

the

part.

CPLR

3.119.

See,

e.g.,

In

Yorktown,

(granting

10 Del.

Code

Additionally,

re Levine,.116

letter

Inc.,

letter

Issues

Uniform

in relevant

and

and

Related

Argentinian

Refining

Co.

Adjudicate

York,

(enforcing

Western

Castle

to

to Delaware

2009

rogatory);

rogatory);

Del.

Super.

and

30 The issue of
from outside New York in NYC Midtown
was heavily litigated
before the
seeking testimony
as well, resulting
in a nuinber of decisions upholding
the Court's ability to grant such
First Department
55th p
relief before and after the Court granted the relevant orders.
City of New York v. 15 West
(1"
6102
Dept. 2017) (Sweeny,
2017 N.Y. App. Div. LEXIS
J., in chambers)
(denying
emergency
stay of
for writ of prohibition
to halt contempt
trial pending petition
hearing),
stay pending petition for writ of
2017 N.Y. App. Div. LEXIS
prohibition
5990 (1"
denied, sub nom. City of New York v. NYC Midtown,
55*
sub
nom.
Matter
15
petition
for
prohibition
denied
and
West
writ
St.
Prop. LLC
dismissed,
Dept.),
of
of
561 (1" Dept. 2017); and City of New York v. Assa, 2017 NY Slip Op 90169(U)
148 A.D.3d
v. d'Auguste,
(1" Dept.
decision and order following
contempt
2017) (denying
stay pending appeal of the Court's
hearing).

That the orders

any concerns

in NYC Midtown

about the relief

sought

survived

such collateral

here.
22

22 of 26

and appellate

scrutiny

should

assuage

;

 INDEX NO. 450959/2020

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Volkswageñwerk

3d Dist.

1973)

alternative

and

Aktiéñgesellschaft

order

state

court

faith

and

Ct.,

New

York

777

903

and

New

Universal

courts'

"would

role

be more

subpoena).

affidavit

also

57

that

noting

"[s]ome

is itself

Judge"

Co.,

Md.

App.

States

sufficient

absence

804,

have

of

New

York

the

(Cal.

Ct.

App.,

Germany).

issues

an

As

at play

here

found

that

809

held

(Md.

Ct.

that

such

that

the

(1978)
York

of

discretion

(1st

County

Spec.

App.

a certification

witness

and

Dept.

subpoena

887

is

of Los

(certificate

witness

&

Ayliffe

that

and

issued

Angele

when

Cos.

(finding

that

1984)

be delivered

45 N.Y.2d

"limited,"

court"

(Sup.

of

"is

or evidence

1990)

v.

New

the

Jury

cases

supported

of

objections

Grand

(collecting

to the

to

63

Jersey,

786

an abuse

entitled

886,

v. Jascalevich,

New

California

for

of New

from

courts);31

are

2d

sought

civil

to the

Misc.

Ct.

Times

- have

demands

45 N.Y.2d

224

223,

of California

to require

503

example

94

re Superior

York

California

addressed

re State

In

New

nom.

A.D.2d

domesticating

In

West

evidence

v. Farber,

Jersey
nom.

from

166

from

York's

interstate

of testimony

in the

appropriately

See

Investigation,

issuing

New

v Jascalevich,

Jersey

credit

Ins.

in

sub

relevance

and

the

sub

denied,

of New

finding

faith

by

Canadian

York

Ct.

3d

consider

should

following

of New

dismissed,

lv.

Dept.),

court

to full

arbitrariness

app.

Court

concerning
Ct.

materials

App.

procedures.

others

Superior

Co.)

(1st

interstate

judgmerits

credit.

Superior

Jersey

entitled

and

the

33 Cal.

Ct.,

seeking

sought,

- and

courts

orders

full

A.D.2d

under

York

rogatory

relief

primary

production

New

letter

(addressing

to the

v. Superior

by

and

an

requesting

State").

31

Although

court
Trial

the First Department
dismissed the appeal as seeking review of an unappealicle
noted that "[h]ad we not dismicced this appeal, we would have affirmed
on the opinion
Term."
In re Superior
Ct. ofNew Jersey, at 903.

23

23 of 26

order, the
of the court

at

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

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Delaware

courts

in considering

binding

2017

LLC,

UIDDA

Del.

Hawaii

proceeding

recognized

Negro

the

and

cert.

collateral

challenge

uriderlying

action

efficient

resources

and

in New

in the

York).

of

and

issues

in New

v. Hyatt,

parties

(Sup.

S. Ct.

from

and

that

in advance

York

1485

hailing

New

subpoena

&

Cas.

York

New

York

deference

states

into

another

the

[of]

such

above

toward

adjudicating

of New

York's

sovereignty.

state's

24

24 of 26

sovereign

courts

absent

is the

most

judicial

result

in

NY

2019

from

litigation

are

implicates

in

in New

plaintiffs

further

state

court

League,

that

which

part,

court

potentially

(enjoining

noted

péñdiñg

has

pending

waste

directing

Court

this

in matters

Football

concerns

that

(holding

court).

v. Natl.

activity,

militate

to Florida

and

and

as well.

stay

Florida

expenses,

2019)

requests

from

before

[and]

Co.

Co.

in recognition

(2019)

issues,"

of

in relevant

states,

motions

litigation,

enforcement

only

the

(quasliiiig

has

2014),

order

objections

throughout

unnecessary

Property

Ct.,

other

and

Dist.

(dismissing,

upon

based

discovery

to incur

law

issues

order

the

outside

government

2015)

duplicative

efficiency

immunity

139

parties

subpoeiias

Those

context

prevent

*4-5

(Cal.

issues

to resolve

Discover

discovery

interest

private

the

cause

580

2017)

interstate

6*

App.,

Holdings,

California

in

as

transcript

quoting

jurisdictions

Ct.

relevance

Co.

discovery).

(Cal.

production

"[1]itigating

process

so would

Op 33025(U),

litigating

LEXIS

subpoena

that

rulings."

inconsistent

Slip

diffuse

orderly

as "doing

York,

Bd.

than

and

Cal.

Castle

action,

879

courts

v. Prommis

New

Ct.,

third-party

4*

App.

deferring

recognized

previously

Cal.

Greenspon

court

state

out-of-state

underlying

Super.

to requesting

deferring

to interstate

and

(Del.

Hawaii

support

2015

from

issues.

permissible

230

Ct.,

denied,

Rather

to

of

utility

*2

542,

restricting

v. Superior

cert.

LEXIS

issued

decisions

production

interstate

Super.

subpoena

taken

have

only

occur

amplified

sovereign

immunity
consent).

any

production

Franchise

barred

Tax

 INDEX NO. 450959/2020

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NYSCEF DOC. NO. 32

RECEIVED NYSCEF: 03/02/2020

that

Noting
vindicate

public

have

recognized

the

often

arise

OSE

from

these

addressing
*3

(N.D.

Fla.

policies

of

Wisconsin

Georgia"

from

and

interests,

32

public

To the extent

subpoena
Court's
Second
entitled

in New

Ga.

raised

was

not

Indian

"is
court).32

state

and

fully

York.

Fla.

(finding

for

the

of enforcement

types

New

(nuisance

subject

The

abatement

603

Court

adjudicate

from

F. Supp.

an exercise

should

these

action

of

428,

state

state

429

issues

removal,"

&
"to

Dist.

Assocs.,

courts

in

LEXIS

64485,

622

the

court).

See

(W.D.

Wis,

and

also

1985)
was

compelling

that

interest

Inc.,

vindicate

those

to

proceedings

U.S.

sovereignty"

recognize

of

penalties

compelling

2006

v. Fleck

to removal

Tribe,

purely

Slaton

purposes

York's

v. Sibley,

Bar

ex rel.

F.

Supp.

public

Wisconsin

v.

(civil

not

subject

government

here.

decision to scrutinize
Department's
the merits of a California
investigative
v. State of Cal. Franchise
Tax Bd is still good law following
the United States Supreme
Tax Bd, the pre-issuance
review sought here is exactly the type of review the
holding in Franchise
Department
had found missing,
and which the Second Department
indicated
would have been
to full faith and credit.
105 A.D.3d
is also the precise type
186, 198 (2d Dept. 2013). This petition
the Second

in Hyatt

of pre-issuance
American

by

to impose

seeking

in nature

amplifying

Georgia

1985)

proceeding

to removal

issues

citing

Winnebago

enforcement

civil

deemed

investigations,

issues

(N.D.

not

unique

2006),

258-259

256,

are

policy

proceedings

speaking,

"[g]enerally

in support of an investigation
proceeding
Express Co. v. United States Virgin Is. Dept.

that while

pending litightion,
a state court clerk

an out-of-state

investigative

sought

out by the First Department
in Matter of
(1St
178
A.D.3d
427
Dept.
426,
of Justice,
2019)
subpoene "need not have been issued in connection
with a

there must have been some court
or signature

of the subpoena

such as the issuance of a commission
involvement,
by
judge"
in order to be domesticated
pursuant
by a state court

to the UIDDA).

25

25 of 26

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Conclusion

For

the

petition

City's

grant

Dated:

and

set forth

issue

short-term

coñcerñiñg
and

reasons

New

York,

further

other,

New
28,

February

an order

transient

whatever

herein,

the

directing

City

to produce

Guesty
and

occupancy
or different

urges

respectfully

records

operations

advertising

relief

the

at the

Court

deems

Court

and

to

and

York

proper.

York

2020

submitted,

Respectfully

JOHNSON

JAMES
Corporation

Counsel

of New

City

York

for

Attorney

the

Petit

By:

BRIAN

KRIST

Mayor's

Office

of New

City
22

Reade

New
(646)

York,

Christian

Klossner

Hsiao-Hsiang
Special
Aisha
Student

Assistant

(Catherine)

Wan
Counsels

Corporation

Watson
Legal

Specialist,

under

Street,

NY

576-3460

Of Counsel

supervision

26

26 of 26

of

Special

York
4th

FlOOr

10007

the

testimóny

in New

just

grant

Enforcement

City,