The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 38, 76, 77, 78 were read on this motion for INJUNCTION/RESTRAINING ORDER.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 79, 80 were read on this motion for CONTEMPT.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 42, 43, 44, 87, 88, 89, 90, 91 were read on this motion for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 96, 97, 98, 99, 100 were read on this motion for INJUNCTION/RESTRAINING ORDER.

This action arises from a commercial-lease dispute between plaintiff-landlord, 315 West [*2]55th Owners Corp., and defendant-tenants Rainbow Spa 23 Inc. and Spa 55 (corporate defendants) and defendant-guarantor You Li. The parties' lease provides that defendants may use the premises solely for the practice of acupuncture, acupressure, tuina, and foot reflexology. (NYSCEF No. 6 at 2.) The lease prohibits use of the premises as a "massage parlor." (Id. at 6.)

Plaintiff claims that defendants are operating the premises as an illicit massage parlor in violation of the lease and the certificate of occupancy. Plaintiff also claims that defendants did electrical and plumbing work to the premises in violation of the lease and applicable building codes and regulations. (NYSCEF No. 5 at 8.) Plaintiff has brought this action to halt defendants' alleged violations of the lease and the certificate of occupancy.

On motion sequence 001, plaintiff moves by order to show cause for a preliminary injunction barring defendants from a range of conduct on the premises that is not permitted by the certificate of occupancy and Department of Buildings (DOB) and Fire Department regulations. (NYSCEF No. 4 at 2 [proposed order to show cause].) As part of this motion, plaintiff also sought a temporary restraining order (TRO) to enjoin defendants "from utilizing the subject premises as a massage parlor or any use other than that set forth in the certificate of occupancy." (Id. at 3.) On July 21, 2023, this court granted a TRO barring defendants from using the premises "for any other use other than that set forth in the certificate of occupancy," striking the specific reference to use "as a massage parlor." (NYSCEF No. 29 at 2.) Plaintiff's underlying request for a preliminary injunction on this motion is granted.

On motion sequence 002, plaintiff moves to hold defendants in civil and criminal contempt for allegedly violating this court's TRO entered on motion sequence 001. (NYSCEF No. 47.) Plaintiff asserts that the property is still being used as a massage parlor in violation of the certificate of occupancy. (NYSCEF No. 46.) Plaintiff requests that the court find defendants in civil and criminal contempt, issue an order to imprison defendants until they discontinue their illegal use of the premises, and award plaintiff fees and costs associated with making this motion. (NYSCEF No. 46 at 6, 72 at 5.) The motion is granted in part and denied in part.

On motion sequence 003, defendants move to dismiss under CPLR 3211 (a) (4) and (a) (7). This motion is granted in part and denied in part.

On motion sequence 004, defendants move under CPLR 5015 (a) (2) and (3) to vacate the TRO this court entered on motion sequence 001 and to vacate the order to show cause that this court signed on motion sequence 002. This motion is denied.

A court may grant a request for a CPLR 6301 preliminary injunction when "the proponent demonstrates (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balance of equities tipping in its favor." (Harris v Patients Med., P.C., 169 AD3d 433, 434 [1st Dept 2019].) Plaintiff has satisfied these requirements.

1. Defendants contend that the court lacks personal jurisdiction over the corporate [*3]defendants because plaintiff failed to effect proper service under CPLR 308.^[FN1] The "valid commencement of an action is a condition precedent to the court's acquiring the jurisdiction even to entertain an application for a preliminary injunction." (Hart Island Committee v Koch, 150 AD2d 269, 272 [1st Dept 1989].) But defendants have waived their personal jurisdiction objection by not moving for judgment on that ground within 60 days after serving their answer on July 26, 2023. (See CPLR 3211 [e].)

2. Defendants also argue that this motion must be denied, and plaintiff's complaint must be dismissed pursuant to CPLR 3211 (a) (4), because another action between plaintiff and the corporate defendants is pending in the New York City Civil Court, New York County, Part 52. (NYSCEF No. 27 at 2.) CPLR 3211 (a) (4), however, applies only when the same cause of action is asserted in multiple courts. In the Civil Court proceeding, plaintiff seeks mainly to evict defendants. (See 315 W. 55th Owners Corp v Rainbow Spa 23 Inc.,Index No. LT-309735-23, NYSCEF No. 1 [petition].) Here, plaintiff primarily seeks injunctive relief to affect defendants' conduct while in possession of the premises (see NYSCEF No. 4)—relief plaintiff cannot obtain in Civil Court. (See Lew-Mark Cleaners Corp. v De Martini, 128 AD2d 758, 758 [2d Dept 1987] ["Civil Court does not have jurisdiction to grant injunctive relief."].)

In the Civil Court proceeding, the court granted plaintiff summary judgment, awarded a final judgment of possession, and issued a warrant of eviction against defendants. (Index No. LT-309735-23, NYSCEF No. 42, 138.) Civil Court later issued a stay to allow defendants to perfect their appeal of the Civil Court's decision. Thus, plaintiff is currently unable to evict defendants from the premises because of the stay. It therefore seeks injunctive relief here to limit how defendants use the premises while the stay is in place. The injunctive relief plaintiff seeks, limiting how defendants use the premises while the stay is in place, is thus not duplicative of the claims brought in the Civil Court proceeding on this additional ground.^[FN2]

3. Plaintiff argues that it is likely to succeed on the merits because use of the premises as a massage parlor is contrary to the certificate of occupancy, as shown by summonses from the Fire Department and Department of Buildings (DOB), and because the lease specifically prohibits use of the premises as a "massage parlor." (NYSCEF No. 5 at 8.)

Plaintiff proffers evidence that defendants use the premises as a massage parlor. Plaintiff's exhibits provide defendants' advertisements, website, and Yelp postings showing that massages are offered on the premises. (NYSCEF No. 17-19.) Plaintiff argues that under article 63 (A) of the lease, defendants may use the premises only for permitted services they are licensed to provide. And under article 37, the premises may not be used as a massage parlor. (NYSCEF No. 2 at 6.) Plaintiff refers to summonses from DOB alleging that defendants were unlawfully using the premises for massage services with unlicensed masseuses, in violation of the certificate of occupancy. (See NYSCEF No. 13-16.) Civil Court's decision granting plaintiff possession and issuing a warrant of eviction against defendants also tends to support defendants' [*4]continued noncompliance with the certificate of occupancy. (See Index No. LT-309735-23, NYSCEF No. 42.) Further, even though the lease allows defendants to provide tuina,^[FN3] the certificate of occupancy still limits the scope of any permitted use to "doctors' offices." And defendants do not contend that the massages they offer are part of any medical service.

Plaintiff also contends that defendants' plumbing and electrical changes to the premises are prohibited by law and by the lease because they were done without permits. (See NYSCEF No. 5 at 8 [affidavit].) Plaintiff further submits a summons from DOB alleging that defendants unlawfully erected partition walls, installed plumbing lines, and inserted new 220-electrical volts for a dryer without a permit. (NYSCEF No. 16.) Plaintiff thus asserts that defendants breached articles 6 and 51 of the lease, which, respectively, require them to comply with all federal, state, and local laws and prohibits defendants from using "any contractors or labor or materials" without plaintiff's written consent. (NYSCEF No. 2 at 2, 19.)

Defendants contend that the 220-volt outlet and other structural changes predated defendants' lease of the premises. (NYSCEF No. 27 at 5.) But they provide no evidence to substantiate this claim.^[FN4]

Based on the foregoing, plaintiff has established that it is likely to succeed on the merits.

Plaintiff alleges that it will be irreparably harmed by defendants' continued use of the premises as a massage parlor. The premises is on the ground floor of a residential cooperative apartment building. The president of plaintiff's board of directors contends that defendants' use poses a safety risk to building residents and the public and has damaged the building's reputation. (See NYSCEF No. 5 at 9, 24 at 9-10.) Plaintiff contends that defendants' renovations also pose a danger to the public, as they were done without permits to ensure conformity with the certificate of occupancy, building codes, and other permit requirements, as demonstrated by the Fire Department and DOB summonses.^[FN5] (NYSCEF No. 5 at 9, 24 at 10.)

In contrast, defendants contend that plaintiff will not be irreparably harmed, because plaintiff's own conduct "invited" inspection from the Fire Department and DOB. (NYSCEF No. 27 at 2.) But defendants do not suggest what plaintiff's "inviting" conduct was. Further, defendants contend that even if there are violations of the building and fire codes, there is no imminent harm to plaintiff, because the respective departments gave plaintiff sufficient time to remedy the violations and because a hearing concerning the violations will not occur for some time. (Id.) However, plaintiff need not prove imminent harm in seeking a preliminary injunction, only irreparable harm. In any event, plaintiff focuses on the dangers posed by defendants' [*5]conduct that violates the building and fire codes, not the harm to plaintiff from defending itself against administrative violations. (See NYSCEF No. 5 at 9, 24 at 9-10.)

On these bases, plaintiff has sufficiently shown it will be subject to irreparable harm absent a preliminary injunction.

Plaintiff contends that the equities balance in its favor because it is trying to protect its occupants and shareholders from the defendants' violations of the lease and the law. (NYSCEF No. 5 at 10.) Plaintiff also contends that although defendant would not suffer harm by using the premises properly, plaintiff may be subject to fines and administrative actions before the DOB and the Fire Department absent the injunction. (Id.) This court agrees.

Defendant contends that plaintiff should not be afforded a preliminary injunction because of its "unclean hands" in "inviting" investigation to the premises. But defendants to not provide evidence to support this suggestion.^[FN6] (NYSCEF No. 27 at 3-4, 76 at 1.) Nor do defendants contend that plaintiff's purported conduct was "immoral and unconscionable." (Levkoff v Soho Grand-West Broadway, Inc., 115 AD3d 536, 537 [1st Dept 2014].)

Defendants also request that if the preliminary injunction is granted, they should be permitted to submit rebuttal evidence showing how plaintiffs fraudulently accused the defendants of violating the building codes. (NYSCEF No. 76 at 2.) Yet defendants have not claimed that plaintiffs made any knowing false statement or that defendants, or anyone else, relied on those statements. (See Nottenberg v Walber 985 Co., 160 AD2d 574, 575 [1st Dept 1990] ["A cause of action for fraud requires an allegation of material fact, misrepresentation, scienter, reliance and damages."].)

Plaintiff has shown that the equities are in its favor.

On motion sequence 002, plaintiff moves to hold defendants in civil and criminal contempt for assertedly violating the TRO entered by this court on motion sequence 001. The motion is granted in part and denied in part.^[FN7]

Under Judiciary Law § 753, a court has the power to hold a person in civil contempt "for disobedience to a lawful mandate of the court." (Id.) Plaintiff's request for an order holding defendants in civil contempt is granted in part and denied in part.

To hold someone in civil contempt, the movant must establish by clear and convincing evidence (1) "that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect"; (2) "[i]t must appear, with reasonable certainty, that the order has been disobeyed"; (3) '"the party to be held in contempt must have had knowledge of the court's order"; and (4) "prejudice to the right of a party to the litigation must be demonstrated." (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015] [internal quotation marks omitted].)

This court's TRO unequivocally barred defendants from using the premises "for any use other than that set forth in the certificate of occupancy." (NYSCEF No. 29 at 3.) Plaintiff proffers evidence to demonstrate that Rainbow Spa and Spa 55 disobeyed the TRO. But plaintiff does not provide evidence that Li disobeyed the TRO. Therefore, the court denies the branch of the motion seeking to hold Li in civil contempt.

Plaintiff provides images of the spa website and signs outside the premises showing that Rainbow Spa and Spa 55 are still operating a massage parlor. (See NYSCEF No. 54-56, 69.) While the certificate of occupancy allows for use of the premises as doctors' offices, the advertisements do not appear to advertise that the massages are medical-treatment massages or performed by medical professionals. The advertisements are consistent with defendants' operations prior to this court's TRO—when the Department of Buildings and Fire Department issued the summonses for using the premises as a massage parlor. (NYSCEF No. 48-51.)

Plaintiff also provides numerous time-stamped photographs of men entering the premises late at night—well after normal working hours of a doctor's office providing outpatient treatment (or the physical-therapy or massage-therapy equivalent). (NYSCEF No. 57-68.) Defendants contend that plaintiff failed to show that the photographed individuals entering the premises were not patients seeking health services. (See NYSCEF No. 79 at 1.) The court agrees with plaintiff that it is unlikely for clients to attend medical appointments in the middle of the night.

Rainbow Spa and Spa 55 also had knowledge of this court's TRO. Plaintiff emailed the TRO to defendants' counsel, filed a notice of entry on NYSCEF, and sent copies of the TRO by Federal Express-overnight service to defendant Li and to defendants' counsel. (NYSCEF No. 47, 70.)

Finally, plaintiff claims that its rights are being prejudiced by continued use of the property as a massage parlor. Plaintiff claims that other residents are being disturbed and that plaintiff cannot remedy Fire and Buildings Department violations until defendants cease this use. (NYSCEF No. 72 at 5.)

This court concludes that Rainbow Spa and Spa 55 are in civil contempt of this court's prior interim order on motion sequence 001. Rainbow Spa and Spa 55 are ordered to pay $500 per week to plaintiff until they comply with this court's TRO. They may show compliance by application brought on by order to show cause.

Under Judiciary Law § 750, the court can hold a person in criminal contempt for [*7]"[willful] disobedience to its lawful mandate." (Judiciary Law § 750 [A] [3].) Plaintiff's request for an order holding defendants in criminal contempt is denied.

The party moving to hold someone in criminal contempt must prove beyond a reasonable doubt that the alleged contemnor willfully violated a clear court order. (Matter of Koeppel, 166 AD3d 473, 474 [1st Dept 2018].) Plaintiff has not proven beyond a reasonable doubt that defendants acted willfully in disobeying this court's TRO. The court thus declines to hold the defendants in criminal contempt.

Defendants move to dismiss plaintiff's complaint under CPLR 3211 (a) (4). They contend that plaintiff asserts the same causes of action and seeks the same relief before this court as it did in the Civil Court proceeding. (NYSCEF No. 43 at 1.) This branch of defendants' motion is granted in part and denied in part.

When "there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211 (a) (4) on the ground that there is another action pending." (Spicer v Spicer, 162 AD3d 886, 887 [2d Dept 2018].)

Although this action and the Civil Court proceeding arose from common events between the same parties, they largely involve different causes of action and different forms of requested relief. As a result, most of plaintiff's claims in this action are not subject to dismissal under CPLR 3211 (a) (4).

Plaintiff's first six causes of action seek injunctive relief. As discussed above in this court's analysis of motion sequence 001, these claims do not duplicate plaintiff's claims for eviction and unpaid rent in the Civil Court proceeding.

Plaintiff's causes of action seven through nine are claims for past due rent/use and occupancy. The seventh cause of action is asserted against defendant-tenant Rainbow Spa. The eighth cause of action is asserted against defendant-guarantor Li. The ninth cause of action is asserted against all defendants. This relief has been sought in the Civil Court proceeding—and indeed granted by Civil Court—as against defendants Rainbow Spa and Spa 55. (See Index No. LT-309735-23, NYSCEF No. 44, NYSCEF No. 13 at 10.) Therefore, the court dismisses causes of action seven and nine to the extent that plaintiff asserts them against Rainbow Spa and Spa 55. But plaintiff did not assert, and could not have asserted, claims in Civil Court for rent or use and occupancy as against Li, given his status as the lease guarantor. (See State Realty, LLC v Ger, 2017 NY Slip Op 50439[U], *1-2 [App Term, 2d Dept 2017] ["In a summary proceeding, [Civil Court] lacks subject matter jurisdiction to adjudicate a debt owed to the landlord by a guarantor of the rent."].) The court therefore denies dismissal of the eighth cause of action, and denies dismissal of the ninth cause of action as against Li.

Finally, plaintiff argues that the tenth cause of action, for legal fees, refers to fees incurred in this action as opposed to fees incurred in the Civil Court proceeding. (NYSCEF No. 83 at 5; see also NYSCEF No. 1 at 11.) This court agrees that this cause of action ought not be [*8]dismissed under CPLR 3211 (a) (4).^[FN8]

Defendants' motion is granted only to the extent that plaintiff's seventh cause of action is dismissed, and plaintiff's ninth cause of action is dismissed as to defendants Rainbow Spa and Spa 55, and otherwise denied. Given this determination, the court is unpersuaded by defendants' contention that plaintiff should be sanctioned on the ground that plaintiff has frivolously asserted claims subject to dismissal under CPLR 3211 (a) (4). (See NYSCEF No. 87 at 4.)

Defendants move to dismiss plaintiff's complaint under CPLR 3211 (a) (7). The motion is denied.

On a CPLR 3211 (a) (7) motion, "the allegations in the complaint are to be afforded liberal construction, and the facts alleged therein are to be accepted as true, according a plaintiff the benefit of every possible favorable inference and determining only whether the facts alleged fit within any cognizable legal theory." (M & E 73-75, LLC v 57 Fusion LLC, 189 AD3d 1, 5 [1st Dept 2020].) While "factual allegations set forth in a complaint should be accorded every favorable inference, bare legal conclusions and inherently incredible facts are not entitled to preferential consideration." (Id.)

Defendants contend that plaintiff does not allege a cognizable legal theory. Defendants argue that this court's deletion of the term "massage parlor" from its TRO had the effect of dismissing plaintiff's complaint under CPLR 3211 (a) (7). (NYSCEF No. 43 at 5.) But the court did not delete the TRO language barring defendants from using the premises for "any other use other than that set forth in the certificate of occupancy." (NYSCEF No. 29 at 3.) There is also no merit to defendants' assertion that plaintiff's complaint is conclusory and lacks supporting factual allegations as required by CPLR 3013 and CPLR 3014. (Compare NYSCEF No. 43 at 6 [mem. of law], with NYSCEF No. 1 at 2-6.)

Defendants also claim that the plaintiff's causes of action for rent due should be dismissed because plaintiff actually and constructively evicted the defendants from the premises. But defendants counterclaimed for constructive-eviction in Civil Court. Civil Court dismissed that counterclaim, holding that those defendants failed to allege that "the premises were vacated as a result of petitioner's alleged wrongdoing." (Index No. LT-309735-23, NYSCEF No. 42.) The constructive-eviction defense here is thus barred by issue preclusion.^[FN9] (See Simmons v Trans [*9]Express Inc., 37 NY3d 107, 112 [2021] ["Collateral estoppel prevents a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party," whether or not the "causes of action are the same"] [internal quotation marks omitted].)

Defendants alternatively argue that plaintiff's claims fail because the lease is void. According to defendants, the lease is void because plaintiff leased them an uninhabitable space that did not comply with applicable law. Defendants claim that plaintiff leased the premises to them when plaintiff knew it contained preexisting violations of the building and fire codes, knew it was illegally converted into a commercial space, and knew that defendants would be using the premises for tuina services. (NYSCEF No. 43.) But defendants do not allege how the premises were or are uninhabitable. And under article 74 of the lease, plaintiff explicitly made no representations about compliance with building codes and zoning laws. Defendants also agreed to hold plaintiff harmless from any claims or violations "incurred in connection with Tenant's use and/or manner of use of the Premises." (NYSCEF No. 2, ¶ 74.)

Finally, defendants claim that the court should award them legal fees because plaintiff's claims are frivolous. As described above, this court disagrees.

Defendants move under CPLR 5015 (a) (2) and (3) to vacate the TRO this court entered on motion sequence 001 (see NYSCEF No. 29) and to vacate the OSC this court signed on motion sequence 002. (See NYSCEF No. 73).^[FN10] The motion is denied.

Under CPLR 5015 (a) (2), the court may vacate its order if the movant produces "newly discovered evidence" that "would probably have produced a different result." Under CPLR 5015 (a) (3), the court may vacate its order if the movant demonstrates fraud by the adverse party.

With respect to the OSC, defendants have not shown why that order — which did nothing more than bring on the motion and set a return date and briefing schedule — should be vacated.

With respect to the TRO, defendants argue that there is newly discovered evidence showing that plaintiff acted fraudulently in concealing Building Code violations from defendants before defendants leased the premises. The new documents defendants provide are a translation of an advertisement and blueprints of the property purporting to show that the premises were not compliant with the certificate of occupancy prior to defendants' tenancy. (See NYSCEF No. 99 at 2 [Exhibit 1].) But the advertisement and blueprints are not necessarily inconsistent with the certificate of occupancy upon which the TRO is based. (Compare NYSCEF No. 99 at 2-5 [Exhibit 1], with id. at 18 [Exhibit 6].)

Further, plaintiff does not sufficiently allege fraud under CPLR 5015 (a) (3). The new evidence defendants submit does not support their contention that plaintiff concealed information on alterations made to the premises. Defendants possessed the advertisement and floor plan before they entered into the lease agreement. (See NYSCEF No. 98.) And even if one were to assume that some of the violations did predate defendants' tenancy, plaintiff explicitly made no representations regarding compliance with Department of Buildings regulations or any other ordinance governing use of the premises.^[FN11] (See NYSCEF No. 2, ¶ 74.)

Accordingly, it is

ORDERED that plaintiff's motion for a preliminary injunction (mot seq 001) is granted, and defendants and all those acting on their behalf (including but not limited to employees, agents, and contractors) are enjoined from (i) using the subject premises for any purpose other than that allowed by the certificate of occupancy; (ii) performing any construction or electrical work, alterations, renovations, or demolition at the building in which the subject premises are located; or (iii) using illegally installed wiring in the premises (as identified in violations issued by DOB and the Fire Department), including but not limited to the 220-volt outlet installed in the premises; and it is further

ORDERED that the branch of plaintiff's motion to hold defendants in civil contempt (mot seq 002) is granted with respect to defendants Rainbow Spa and Spa 55, and denied with respect to defendant Li; and it is further

ORDERED that defendants Rainbow Spa and Spa 55 shall pay $500 per week to plaintiff until they comply with the TRO issued by this court on motion sequence 001, and these defendants may seek to establish that they are now complying with the TRO through a motion brought on by order to show cause; and it is further

ORDERED that the branch of defendant's motion to hold defendants in criminal contempt (mot seq 003) is denied; and it is further

ORDERED that defendants' motion to dismiss (mot seq 003) is granted only to the extent that plaintiff's seventh cause of action is dismissed as against all defendants, and plaintiff's ninth cause of action is dismissed as against defendants Rainbow Spa and Spa 55, and the motion is otherwise denied; and it is further

ORDERED that defendants' motion to vacate the TRO previously entered by this court on mot seq 001, and the OSC signed by this court on mot seq 002 (mot seq 004) is denied.