Opinion
February 4, 1999
Appeal from the Supreme Court, New York County (Stephen Crane, J.).
This nuisance abatement action was brought to enjoin permanently defendants from operating an adult bookstore and theater in contravention of New York City Zoning Resolution § 12-10, as amended effective October 25, 1995, and sections 7-703 and 7-714 of the Administrative Code of the City of New York. Defendants, under the name "Les Hommes", had, for some 20 years prior to the 1995 amendment of Zoning Resolution § 12-10, operated an adult video and book store at premises situated on the second floor of 217 West 80th Street in Manhattan. Subsequent to the 1995 Zoning Resolution amendment, prohibiting adult business establishments such as Les Hommes in areas such as the one in which the store was located ( see, Stringfellow's of N Y v. City of New York, 91 N.Y.2d 382, 393), Les Hommes was forced to close, relocate or change the nature of its business to a conforming use. Ostensibly choosing the latter course, defendants increased the stock of non-adult videos offered for sale in the bookstore part of their premises and purported to discontinue the showing of adult videos in the theater portion of the establishment.
We agree with the IAS Court that plaintiff City met its burden of demonstrating by a preponderance of evidence that, notwithstanding defendants' efforts to recast their business so as to bring it into conformity with Zoning Resolution § 12-10, Les Hommes in its true aspect remains a non-conforming adult video establishment. In this regard we note, as did the trial court, that while defendants have indeed augmented their stock of non-adult videos so that it now constitutes more than 60 percent of the video stock offered for sale, they are not offered for rent. The store's business in video cassettes has been and remains predominantly a rental business in adult videos; the touted increase in the stock of non-adult videos for sale has done little to alter the essential nature of the business's pre-existing, non-conforming "stock in trade". Further, while we do not agree with the trial court that the sexual activities of Les Hommes patrons may be deemed "live performances" so as to bring the establishment within the Zoning Resolution definition of an "adult theater", we nevertheless conclude that a preponderance of the evidence supports the conclusion that the theater portion of the establishment has not, in fact, been completely converted to non-adult uses and that, despite the purported conversion, adult videos continue to be shown in the theater area's peep-show booths. Accordingly, as the bookstore and peep-show theater areas, as well as the corridor area necessary for access to those adult use areas, together occupy 625 of the store's 1,190 square feet of retail space, it is evident that approximately 53 percent — undeniably a "`substantial portion'" (N.Y. City Zoning Resolution § 12-10 [Adult establishment] [a]; see also, City of New York v. Show World, 178 Misc.2d 812) — of the store's floor space remains devoted to nonconforming adult uses and, thus, that Les Hommes was properly classified as an adult establishment under the amended Zoning Resolution. Finally, in light of defendants' failure, despite ample opportunity, to bring their business into conformity with the amended Zoning Resolution and their attempt instead to skirt its prohibition by means of superficial measures leaving the essentially non-conforming nature of their business intact, the trial court's grant of permanent injunctive relief represented the only means of assuring that the Zoning Resolution would not be flouted. We note that the court, even while permanently enjoining defendant's business in its present form, displayed appropriate concern for the First Amendment ramifications of its injunction ( see, People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553) by, at the same time, expressly permitting defendants, notwithstanding the ordered closure, yet a further opportunity to go forward with such steps as would eventually bring their business into true and lasting compliance with the subject Zoning Resolution.
Concur — Sullivan, J. P., Rosenberger, Nardelli and Saxe, JJ.