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Dexter 345 Inc., Dexter Properties, LLC, and Esplanade 94 LLC v. andrew Cuomo

December 5, 2011

DEXTER 345 INC., DEXTER PROPERTIES, LLC, AND ESPLANADE 94 LLC, PLAINTIFFS-APPELLANTS,
v.
ANDREW CUOMO, AS GOVERNOR OF THE STATE OF NEW YORK, AND STATE OF NEW YORK, DEFENDANTS-APPELLEES, CITY OF NEW YORK, INTERVENOR-DEFENDANT-APPELLEE.



Appeal from the May 2, 2011, order of the United States District Court for the Southern District of New York (Richard J. Sullivan, District Judge), denying hotel owners' motion for a preliminary injunction to prevent enforcement of state law prohibiting rental of hotel rooms in certain types of buildings for less than 30 days.

The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.

11-1802-cv

Dexter 345 Inc. v. Cuomo

Heard: June 22, 2011

Before: NEWMAN, LEVAL, and POOLER, Circuit Judges.

Affirmed.

This appeal from the denial of a preliminary injunction challenges a provision of New York's Multiple Dwelling Law on the ground that it amounts to an unconstitutional regulatory taking of property. Dexter 345, Inc., Dexter Properties, LLC, and Esplanade 94 LLC (collectively "the Appellants") appeal from the May 2, 2011, order of the United States District Court for the Southern District of New York (Richard J. Sullivan, District Judge), denying their motion for a preliminary injunction to enjoin enforcement of Chapter 225 of the Laws of New York State of 2010 ("Chapter 225"). Chapter 225, which went into effect on May 1, 2011, prohibits renting any unit in Class A buildings under the New York Multiple Dwelling Law ("MDL") for less than 30 days. The Appellants alleged that Chapter 225 will destroy their budget hotel businesses, under which they rent out a large number of the units in their buildings on a temporary basis to tourists. The District Court denied relief for lack of a sufficient showing of irreparable injury. See Dexter 345 Inc. v. Cuomo, No. 11 Civ. 1319, 2011 WL 1795824 (S.D.N.Y. May 3, 2011). We agree that the Appellants have failed to make a sufficient showing of irreparable injury and therefore affirm.

Background

Before July 2010, New York's MDL provided that Class A multiple dwellings be "occupied, as a rule, for permanent residence purposes."

N.Y. Mult. Dwell. Law § 4(8) (McKinney 2009). In contrast, Class B multiple dwellings are "occupied, as a rule transiently, as the more or less temporary abode of individuals or families." N.Y. Mult. Dwell. Law § 4(9) (McKinney 2009). Class B accommodations "include hotels, lodging houses, rooming 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." Id. Class B dwelling units were required to comply with more stringent egress and fire safety requirements. At issue in this case are "single room occupancy" (SRO") buildings. The MDL

defines an SRO as the "occupancy by one or two persons of a single room, or of two or more rooms which are joined together, separated from all other rooms within an apartment in a multiple dwelling, so that the occupant or occupants thereof reside separately and independently of the other occupant or occupants of the same apartment. N.Y. Mult. Dwell. Law § 4(16) (McKinney 2011). It further provides that "when a class A multiple dwelling is used wholly or in part for single room occupancy, it remains a class A multiple dwelling." Id. Many owners of Class A SRO buildings interpreted the "as a rule" provisions to allow them to rent some portion of their buildings as "budget" hotel rooms, which would more typically be typed Class B accommodations. In January 2009, a state appellate court interpreted "as a rule" to mean that owners of Class A buildings could rent up to half of their rooms for "nonpermanent or transient occupancy," so long as the majority of the rooms were rented for longer than 30 days. See City of N.Y. v. 330 Continental LLC, 60 A.D.3d 226, 230-31, 873 N.Y.S.2d 9, 12-13 (1st Dept. 2009).

In July 2010, in response to this decision, Chapter 225 amended the MDL to prohibit the rental of any unit in a Class A building for less than 30 days. 2010 N.Y. Sess. Laws Ch. 225, § 1 (McKinney).

After a subsequent amendment, Chapter 225 became effective May 1, 2011. N.Y. Mult. Dwell. Law § 4(8) (McKinney 2011). The stated purposes of Chapter 225 were to (1) prevent building owners from circumventing the strict fire safety standards applicable to hotels; (2) prevent "unfair competition to legitimate hotels that have made substantial investments to comply" with building codes; (3) protect the rights of permanent occupants who "must endure the inconvenience of hotel occupancy in their buildings;" and (4) preserve the supply of affordable permanent housing. See New York State Assembly Memorandum in Support of Legislation (S. 6873-B, 233rd Leg. (N.Y. 2010 (Sponsor's Memo)Bill No. A10008).

The Dexter Appellants own and manage a 270-room Class A single- room occupancy ("SRO") building, Dexter House, at 345 West 86th Street in Manhattan. Before Chapter 225 became effective, they rented approximately 170 of their units to permanent residents and approximately 100 units to "[b]udget [h]otel" guests. The Complaint alleged that, when Dexter House was purchased in 1957, it "already operated" as a budget hotel, and Dexter Properties, LLC purchased it "with the expectation that it would continue to be operated as a [b]udget [h]otel." Appellant Esplanade 94 LLC ("Esplanade") owns a 240-room Class A SRO building, Hotel Alexander, at 306 and 308 West 94th Street in Manhattan. The Complaint alleged that Esplanade purchased ...


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