City of New York v. Black Garter

• Decision Date: 01 February 1999
• Citation: 685 N.Y.S.2d 606,179 Misc.2d 597
• Parties: , 1999 N.Y. Slip Op. 99,059 CITY OF NEW YORK et al., Plaintiffs, v. BLACK GARTER et al., Defendants.
• Court: New York Supreme Court

Page 606

685 N.Y.S.2d 606

179 Misc.2d 597, 1999 N.Y. Slip Op. 99,059

CITY OF NEW YORK et al., Plaintiffs, v. BLACK GARTER et al., Defendants.

Supreme Court, Richmond County.

Feb. 1, 1999.

Michael D. Hess, Corporation Counsel of New York City (Mohamed D. Quhshi of counsel), for plaintiffs.

James P. Horan, Staten Island, for defendants.

PETER P. CUSICK, J.

The City's application, under the Nuisance Abatement Law (New York City Administrative Code § 7-701 et seq.), to close the subject premises based upon an alleged violation of the adult use provisions of the Amended Zoning Resolution is denied.

Although the "entertainment" provided by the subject premises involves erotica, there is no contention that it is legally obscene. This form of expression or "speech," therefore, is fully protected from unjustified governmental interference by the First and Fourteenth Amendments to the United States Constitution and by Article I, § 8 of the New York State Constitution (see, e.g., Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642; Matter of Town of Islip v. Caviglia, 73 N.Y.2d 544, 542 N.Y.S.2d 139, 540 N.E.2d 215). Since zoning laws, such as the Amended Zoning Resolution at issue here, target the secondary effects of "adult establishments" rather than the content of the "speech" involved, zoning laws are considered content-neutral restrictions and are constitutionally permissible so long as they are designed to serve a substantial governmental interest and do not unreasonably limit avenues of communication (Renton v. Playtime Theatres, 475 U.S. 41, 46, 106 S.Ct. 925, 89 L.Ed.2d 29).

At issue here is the application of New York City's Amended Zoning Resolution which restricts the location of adult establishments. In October of 1995 the New York City Council adopted Text Amendment N 950384 ZRY (the Amended Zoning Resolution) thereby adding special provisions to the Zoning Resolution to ameliorate the negative social consequences of proliferating "adult establishments ." The Amended Zoning Resolution did not ban "adult establishments" outright, but rather, limited the areas of the city in which they could be located.

There is no dispute that the subject premises is an "adult establishment" as defined in the Amended Zoning Resolution (see, definition at § 12-10) nor that the subject premises is located in Area "M" of the Special South Richmond zoning district, a special purpose district which is primarily an M1-1 light manufacturing district. The City contends that the subject premises violates Section 42-01(a) of the Amended Zoning Resolution. That section prohibits "adult establishments" from being located "in a manufacturing district in which residences... are, under the provisions of the Zoning Resolution, allowed as-of-right or by special permit or authorization." Since residential use is permitted in the Special South Richmond zoning district by authorization of the City Planning Commission pursuant to Section 107-69 of the Zoning Resolution, the City contends the subject premises violates that Amended Zoning Resolution.

In Stringfellow's v. City of New York, 171 Misc.2d 376, 390, 653 N.Y.S.2d 801, affd. 241 A.D.2d 360, 663 N.Y.S.2d 812, affd. 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407, cert. denied, sub nom. Amsterdam Video v. New York City, --- U.S. ----, 119 S.Ct. 795, 142 L.Ed.2d 658 the City Planning Commission, to meet the constitutional requirement of "reasonable alternative avenues of communication" (Renton v. Playtime Theatres, supra, at 50, 106 S.Ct. 925) and "ample space available for adult uses" (Matter of Town of Islip v. Caviglia, supra, at 555, 542 N.Y.S.2d 139, 540 N.E.2d 215), presented "five paradigm areas, one from each borough, where adult establishments presently exist and which will permit adult establishments under the Amended Zoning Resolution." In upholding the constitutionality of the Amended Zoning Resolution, the Court of Appeals (Stringfellow's at 91 N.Y.2d 382, 395, 671 N.Y.S.2d 406, 694 N.E.2d 407) noted the Supreme Court's view (Diamond, J.) that the City "had sufficiently demonstrated that the number of potential relocation sites under the Amended Zoning Resolution was more than adequate to accommodate the existing number of (adult use) businesses." It is undisputed that the subject premises is situated within "(t)he Staten Island paradigm district" (Stringfellow's at 171 Misc.2d 376, 391, 653 N.Y.S.2d 801), and because the subject premises is situated within an area previously identified by the City in a legal proceeding as an area in which "adult establishments" could operate under the Amended Zoning Resolution, defendants maintain that the City is judicially estopped from now assuming a contrary position.

The doctrine of judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken by that party in the same or some earlier legal proceeding. Judicial estoppel differs from equitable estoppel in that equitable estoppel focuses on the relationship between the parties, while judicial estoppel focuses on the relationship between a litigant and the judicial system. As the Appellate Division, Second Department, recently observed in Ford Motor Credit Co. v. Colonial Funding Corp., 215 A.D.2d 435, 436, 626 N.Y.S.2d 527:

Judicial estoppel, or the doctrine of inconsistent positions, precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed (see, Prudential Home Mtge. Co. v. Neildan Constr. Corp., 209 A.D.2d 394 ; Piedra v. Vanover, 174 A.D.2d 191 [197, 579 N.Y.S.2d 675]; Environmental Concern v. Larchwood Constr. Corp., 101 A.D.2d 591, 594 ). "The doctrine rests upon the principle that a litigant 'should not be permitted * * * to lead a court to find a fact one way and then contend in another judicial proceeding that the same...