Opinion
December 13, 1990
Appeal from the Supreme Court, New York County (Eugene L. Nardelli, J.).
Previously, in this action to permanently enjoin high-risk sexual activity in a gay bathhouse, we affirmed orders which preliminarily enjoined such activity ( 130 Misc.2d 911, affd. 122 A.D.2d 747, appeal dismissed 70 N.Y.2d 693) and which directed closure of the premises ( 139 A.D.2d 977). Defendants eventually sought to resolve this action by waiving their right to a hearing and consenting to the entry of a permanent injunction. Both plaintiffs and defendants submitted proposed orders. Justice Nardelli signed plaintiffs' proposed order which provided that The New Saint Mark's Baths could reopen a year from the effective date of the order (Sept. 29, 1989), prohibited defendants from maintaining private rooms which are not continuously open to visual inspection, and imposed penalities totaling $29,000.
Defendants now argue that a right to privacy prohibits regulation of gay sexual activity in private rooms on the premises. People v. Onofre ( 52 N.Y.2d 476, cert. denied 451 U.S. 987), on which defendants rely, clearly applies only to private conduct in a noncommercial setting (see, Stratton v. Drumm, 445 F. Supp. 1305, 1309 [DC Conn 1978]), and affords no support for the proposition that privacy rights extend to sexual activity occurring on these premises (see, Garaci v. City of Memphis, 379 F. Supp. 1393).
The fines and costs imposed are appropriate under the circumstances. We have considered the remaining arguments and find them to be without merit.
Concur — Kupferman, J.P., Sullivan, Ross, Ellerin and Rubin, JJ.