This action arises from alleged illegal short-term rentals of apartments in a residential building in Manhattan. Plaintiff, MMP 309 Owner LLC, owns the building. Defendants Pirina K. Dzhupanova, Robert Hofweber, and Dawidh Orlando leased apartments from plaintiff. [*2]Defendant Airbnb, Inc., operates a service through which customers can book short-term rentals.

According to plaintiff, defendant-tenants used co-defendant Airbnb's booking service to advertise and rent out their apartments, even though those apartments could not legally be used as short-term rentals.

Plaintiff asserts claims against tenant-defendants for permanent injunctions and indemnification based on breaches of their lease. Plaintiff asserts claims against Airbnb for indemnification, negligence, and gross negligence based on Airbnb's alleged violation of Local Law 18, a New York City ordinance governing short-term rentals. In particular, plaintiff wants Airbnb to reimburse plaintiff for fines it incurred due to Fire and Building Code violations, which plaintiff alleges stemmed through short-term rentals booked through Airbnb in violation of Local Law 18.

On motion sequence 001, plaintiff moves for a preliminary injunction to enjoin tenant-defendants from advertising and renting out their apartments as short-term rentals; and to enjoin Airbnb from posting the listing of any apartment in the building or completing any short-term rental booking in the building. The motion is denied.

On motion sequence 002, Airbnb moves to dismiss plaintiff's claims against it. The motion is granted.

I. Airbnb's Motion to Dismiss (Motion Sequence 002 ^[FN1] )

Plaintiff's claims against Airbnb derive from Local Law 18. (See Administrative Code of City of NY § 26-3101, et seq.; id. § 26-3201, et seq.). Local Law 18 regulates the booking of short-term rentals. A short-term rental is "a rental for fewer than 30 consecutive days of a dwelling unit within a private dwelling or class A multiple dwelling, or in the case of a mixed use building, a rental of a class A dwelling unit therein for fewer than 30 consecutive days." (Id. § 26-3101.) Those who occupy a class A dwelling and want to rent it out as a short-term rental may do so only after they register their dwelling unit with the Mayor's Office of Special Enforcement (OSE). (See id. § 26-3102 [a], [b], [c].) Certain class B dwelling units—on a list maintained by OSE (see id. § 26-2103)—are not subject to the registration requirement. (See id. § 26-3102 [a].)

The process of renting a short-term rental often occurs through booking services like Airbnb. Under Administrative Code § 26-3202, a booking service may not collect fees on a short-term rental unless it has used OSE's electronic verification system (1) to determine whether the proposed short-term rental is on OSE's list of class B multiple dwellings or (2) to verify that [*3]the information provided by the host about the short-term rental matches the information the OSE verification system already has about the premises.

Here, plaintiff alleges that Airbnb improperly accepted, without verifying using OSE's system, tenant-defendants' representations that their apartments were exempt from registration—that their units were Class B dwellings on OSE's list (NYSCEF No. 2 at ¶¶ 35, 63, 88, 167.) In other words, plaintiff alleges that Airbnb violated Local Law 18.

In moving to dismiss, Airbnb argues that Local Law 18 provides no private right of action permitting plaintiff to assert claims against Airbnb premised on Local Law 18. Airbnb further argues that, in any event, plaintiff lacks a cause of action under Local Law 18, because Airbnb complied with the ordinance. This court agrees with Airbnb's first argument; it therefore does not reach the second argument.

Local Law 18 undisputedly provides no express private right of action. The question is whether this court should recognize an implied private right of action. In determining whether a private right of action should be implied, a court considers "'(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme.'" (Ortiz v Ciox Health LLC, 37 NY3d 353, 360 [2021], quoting Sheehy v Big Flats Community Day, Inc., 73 NY2d 629, 633 [1989].) This court concludes that these factors tilt against implying a private right of action for landlords to enforce Local Law 18.

1. Legislative Purpose

The first question is whether implying a private right of action would further Local Law 18's legislative purpose. Airbnb argues that a private right of action for Local Law 18 "would not promote LL 18's public welfare objectives." (NYSCEF No. 41 at 9.) According to Airbnb, OSE is already tasked with enforcing Local Law 18. Also, it says, landlords can "support OSE's oversight, including by applying to have their buildings included on the [Prohibited Building List] PBL and by identifying suspected misconduct to OSE." (Id.) Airbnb further argues that implying a private right of action would allow landlord to bring meritless claims and drain judicial resources. (See id.)

Plaintiff argues that OSE has conceded that Local Law 18 has not been "very effective" and that allowing landlords to pursue private claims would serve Local Law 18's purpose.^[FN2] (NYSCEF No. 53 at 10.)

Allowing private entities to pursue claims under Local Law 18 will promote the ordinance's legislative purpose: to stop the unlawful use of short-term rentals, which will increase the availability of affordable housing in the city. (See 2021 City Council Meeting, Dec. 9, 2021, at 36-37, Local Law Bill Jacket, Introduction No. 2309-2021, Local Law No. 18 [2022].^[FN3] ) This court is unpersuaded by Airbnb's implied contention that its own compliance with Local Law 18 and its own identification of Local Law 18 violations to OSE would render a landlord's lawsuit unhelpful in achieving the City Council's legislative purpose.

2. Benefited Class of People

The question on the second factor is whether plaintiff falls within the class of people for whom Local Law 18 is intended to benefit. Airbnb argues that Local Law 18 was not enacted for the benefit of landlords. According to Airbnb, "LL 18 is meant to promote the 'health, safety and comfort' of 'tourists,' 'visitors,' and permanent and legal residents in residential buildings." (NYSCEF No. 41 at 8, quoting NYSCEF No. 9 at ¶ 3 [affirmation of OSE's executive director].) Plaintiff contends that "LL 18 is intended to prevent the creation of public nuisances in Class A buildings" owned by landlords like plaintiff."^[FN4] (NYSCEF No. 53 at 10.)

The court concludes that Local Law 18 was not enacted for the benefit of landlords, but rather to increase the availability of affordable housing. Protecting tourists, visitors, and legal residents is one of Local Law 18's goals. (See NYSCEF No. 9 at ¶ 12 [affirmation of OSE's executive director].) But Local Law 18's legislative history reflects that the primary reason the City Council sought to combat the proliferation of short-term rentals was to address the shortage of affordable housing in New York City. (See 2021 City Council Meeting Transcript, Dec. 9, 2021, at 36-37 [sponsor's testimony] ["By passing this legislation we actively respond to New York City's affordable housing crisis a little better by hopefully bringing as many as 20,000 apartments back onto the market, many of which might even be affordable."]; see also 2021 City Council Meeting Transcript, Sept. 13, 2021, at 11, Local Law Bill Jacket, Introduction No. 2309-2021, Local Law No. 18 [2022] [sponsor's testimony].) And that goal is for the benefit of would-[*4]be New York City renters, not their landlords.

Other justices of this court have found that landlords fall within the class of people for whose benefit the City Council passed Local Law 18. (See Columbus 69th, 2024 Slip Op 33016[U] at *3 [Adams, J.]; S&P Assoc. of New York LLC v Dewald, 2024 Slip Op 32187(U), *5 [Sup Ct, NY County 2024, Nock, J.].) But this court is not bound by those determinations. And, respectfully, this court finds the analysis in Columbus 69th unpersuasive. In that case, the court did not probe into why the City Council has sought through Local Law 18 to stop illegal short-term rentals—i.e., to ensure the availability of affordable housing.

This court is also not persuaded by S&P Associates's benefited-class analysis. In S&P Associates, the court held that because landlords can, and do, register their building on OSE's "prohibited buildings list" under the regulatory scheme, the plaintiff-landlord in that case was among the class that Local Law 18 was designed to benefit. (See S&P Assoc. of New York, 2024 Slip Op 32187(U), at *5, citing Administrative Code § 26-3102 [l].) But that the ordinance has provisions that will operate to landlords' benefit does not mean that the ordinance was passed for that purpose. (See Davis v Citibank, N.A., 116 AD3d 819, 822 [2d Dept 2014] [holding that a group's incidental benefit from a statute is insufficient to show that the statute was enacted for the particular benefit of that group of people].) Moreover, as discussed above, Local Law 18's legislative history does not reflect an intent to benefit landlords, but instead to benefit New York City's would-be renters.

3. Legislative Scheme

The third prong of the inquiry is whether implying a private right of action comports with Local Law 18's scheme. This factor is the "most important and typically turns on the legislature's choice to provide one particular enforcement mechanism to the exclusion of others" because that choice "demonstrates that the legislature considered and decided what avenues of relief were appropriate." (Konkur v Utica Academy of Science Charter Sch, 38 NY3d 38, 41 [2022].) This factor weighs against implying a private right of action for landlords to enforce Local Law 18.

i. Local Law 18's provisions reflect that the City Council intended for OSE to handle its enforcement. OSE is "authorized to conduct investigations, to issue subpoenas, to receive evidence, to hear complaints regarding activities subject to this section, to hold public hearings, to take testimony and to promulgate, amend and modify procedures and practices governing such proceedings." (Administrative Code §26-3203 [d].) Moreover, Local Law 18 allows OSE to recover civil penalties through suing the booking service. (See id. § 26-3203 [c].) When a legislative scheme makes an agency the primary enforcer of the legislation, the court should not imply a private right of action. (See Excess Line Assn. of NY (ELANY) v Waldorf & Assoc., 30 NY3d 119, 124 [2017]; see also McLean v City of New York, 12 NY3d 194, 200-201 [2009] [holding that a private right of action would not comport with the legislative scheme when the legislation gave an agency authority to handle registration, investigate violations, and impose civil penalties].)

ii. Local Law 18's penalty structure also weighs against finding a private right of action [*5]for landlords. Administrative Code § 26-3203 provides that if a booking service violates Local Law 18, then "[f]or each transaction in which a booking service charges, collects or receives a fee," it "shall be liable for a civil penalty of not more than $1,500; provided that if such booking service can establish the amount of such fee, such civil penalty shall be not more than three times such fee." Contrary to the relatively small civil penalty to which Airbnb could potentially be subject to under Local Law 18 (up to $1,500 per violation), plaintiff seeks to use Local Law 18 to recoup $250,000 worth of fines incurred due to violations of the Fire and Building Codes. (See NYSCEF No. 53 at 12 n 5; NYSCEF No. 1 at ¶¶ 132-133.) Recovering sums as large as plaintiff seeks is inconsistent with Local Law 18's current penalty framework.

iii. Finally, implying a private right of action would be inconsistent with Local Law 18's role in the City Council's ongoing efforts to regulate short-term rentals. The Council passed Local Law 18 to augment a related ordinance, Local Law 146. The purpose of Local Law 146 is to give OSE data from booking services, to help it locate apartments illegally rented out as short-term rentals (and thereby further the goal of ensuring affordable housing by limiting illegal short-term rentals). (2018 City Council Meeting Transcript, June 26, 2018, at 9, Local Law Bill Jacket, Introduction No. 0981-2018, Local Law No. 146 [2018].^[FN5] ) Local Law 146 contains no private right of action.

Local Law 18 bolsters Local Law 146 by requiring booking services to verify that a given host's unit is registered with OSE or listed on the list of prohibited Class B dwellings. (Administrative Code § 26-3202 [a].) Yet in passing this legislation to strengthen Local Law 146, the City Council opted to continue to omit an express private right of action. That choice cuts against the conclusion that implying a right of action now would be consistent with the legislative scheme intended by the City Council.^[FN6]

Because (1) plaintiff is not within the class of people intended to benefit from Local and 18 and (2) implying a private right of action would not comport with Local Law 18's scheme, this court declines to imply a private right of action.

Plaintiff asserts a claim against Airbnb for negligence, based on a duty assertedly imposed by Local Law 18. In its complaint, plaintiff alleges that "[u]nder LL 18, [Airbnb] owed Plaintiff a duty of care to verify that any short term listing for and/or rental of a dwelling unit within the Building through its booking service was either a Class B multiple dwelling unit or [*6]that said dwelling unit had a valid short term rental registration number obtained by the tenant of said dwelling unit." (NYSCEF No. 1 at ¶ 135.) Plaintiff further alleges that "[a]t common law, [Airbnb] had a duty to Plaintiff not to list the short term rentals of any apartments in the Building . . . that it knew, should have known, or could have readily discovered could not lawfully be so rented." (Id. at ¶ 139.) This court disagrees.

When a statute "designed to protect a particular class of persons against a particular type of harm is invoked by a member of the protected class, a court may, in furtherance of the statutory purpose, interpret the statute as creating an additional standard of care." (Dance v Town of Southampton, 95 AD2d 442, 445 [2d Dept 1983]; accord Taylor v Botnick Motor Corp., 146 AD2d 81, 84 [3d Dept 1989] [same].) A statute (or ordinance) that provides no private right of action may still give rise to a statutory standard of care, the breach of which could support a common-law negligence action. (See Gain v Eastern Reinforcing Serv., Inc., 193 AD2d 255, 258 [3d Dept 1993]; Signature Health Ctr., LLC v State, 28 Misc 3d 543, 553 [Ct Cl 2010], affd 92 AD3d 11 [3d Dept 2011].) Whether to impose standard of care "devolves into a question of legislative intent; more specifically, whether the underlying policy of the legislation is the protection of a certain class of individuals and whether judicial recognition of a statutory standard will further that policy of protection." (Gain, 193 AD2d at 258-259.)

Plaintiff argues that this court should find that Airbnb owes it a tort duty derived from Local Law 18 because Airbnb is the party in the best position to prevent customers from booking illegal short-term rentals. (NYSCEF No. 53 at 7.) The question, however, is not whether Airbnb is best placed to curb short-term-rental bookings, but rather whether Local Law 18 intended to protect landlords against collateral harms (such as DOB penalties for Building Code violations) stemming from short-term rentals. Moreover, the primary purpose of Local Law 18 is to ensure more affordable housing in New York City. Construing Local Law 18 to impose a tort duty on Airbnb in favor of landlords does not further the ordinance's legislative purpose.

Plaintiff's remaining claims against Airbnb are premised on its assertion that it has a private right of action or duty of care under Local Law 18. These claims are dismissed.

II. Plaintiff's Motion for a Preliminary Injunction (Motion Sequence 001)

On motion sequence 001, plaintiff moves for a preliminary injunction enjoining tenant-defendants from advertising and illegally renting out their apartments as short-term rentals; and to enjoin Airbnb from posting the listing of any apartments in landlord's building or completing any short-term rental booking in the building. (NYSCEF No. 34 at 2.)

Plaintiff withdrew the branch of its motion against tenant-defendants, because they surrendered their apartments to plaintiff and vacated. (NYSCEF No. 48 at 1.) That branch of the motion is denied as academic.

The branch of the preliminary-injunction motion against Airbnb is also denied as academic. Given that plaintiff's claims as against Airbnb are dismissed, no basis exists for this court to award a preliminary injunction against Airbnb.

Accordingly, it is

ORDERED that Airbnb's motion to dismiss plaintiff's claims against it (mot seq 002) is granted; and the action is dismissed against Airbnb, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff's motion for a preliminary injunction (mot seq 001) is denied; and it is further

ORDERED that the remaining claims in the action are severed and shall continue; and it is further

ORDERED that Airbnb shall serve notice of entry on plaintiff; and shall serve notice of entry on the office of the County Clerk (using the NYSCEF filing event "Notice to the County Clerk - CPLR § 8019 (c)"), which shall enter judgment accordingly.