115 v. SMOKE ZONE CONVENIENCE ABC CORP (2026)

After trial and considering the parties' post-trial submissions, the Court finds that petitioner has not met its burden of proof in this proceeding seeking respondent's eviction pursuant to the Bawdy House Law, codified in relevant part as Real Property Law § 231(1) and RPAPL §§ 711(5) and 715. As such, and in the manner for and the reasons set forth below, the Court directs the Clerk to enter judgment in favor of respondents and dismissing this proceeding.

Petitioner established, through evidence of enforcement activity by the Office of Cannabis Management, that respondent offered illicit cannabis products for sale for at most 48 hours at the premises at issue. Where the parties strongly diverge is whether that offering was intentional and, even if it was, whether it was customary or habitual for purposes of the Bawdy House Law. See, e.g., Solow Bldg. Co., II, LLC. v. Bank of Am. Sec., LLC, 13 Misc 3d 55, 56 (App. Term, 1st Dept. 2006) (noting broadness of Bawdy House Law tempered by requirement for customary or habitual use); and Brian Krist, Sealing the Bawdy House Door Open, 48 NYRPLJ 27 (2020) (citing Solow and others). While petitioner has carried its burden in establishing a singular instance of illegal offering for sale, they have not established that the incident at issue here is anything more than the type of "mere[ ] one-off incidents of criminal activity," that the Bawdy House Law does not reach. Sealing the Bawdy House Door Open, at 27 n. 50 (collecting authorities and distinguishing between isolated activity subject to cure or habitual activity subject to termination). Even where, as here, the Court has a broader leave to consider reputational evidence, the evidence here is insufficient to support such a drastic remedy. See, e.g., Paragon Realty Corp. v. Kelly, 1996 NYLJ 8812, *19 (Civ. Ct., Bronx Co. 1996) (court may consider reputational evidence to impute knowledge of illegal activity). Although evidence of enforcement activity is relevant, it is not itself dispositive absent more evidence of a further stash of illegal products. Id. (distinguishing cases); and compare, 51 East 34th Street LLC v. 34 Green Olive Deli Corp., Index No. LT-303808-24/NY, slip op., at 1-2 (Civ Ct., New York Co. Feb. 13, 2026 (finding customary and habitual use from two undercover enforcement actions and other evidence).

The Court is keenly aware of the "expansion of quality-of-life enforcement," underpinning this proceeding, and the importance of that to the community at large. However, that does not extinguish petitioner's burden. The evidence presented is that resulting from one day of enforcement.¹ Petitioner's cited reliance on Solow is misplaced for the reasons set forth above. The Legislature has had multiple opportunities to amend the Bawdy House Law, and has not diminished the requirement for customary or habitual illegal activity even with the knowledge that it may require "additional time and resource commitments by law enforcement agencies however, cutting against the brutal efficiency that has been the Bawdy House Law's primary charm." Sealing the Bawdy House Door Open, at 27. That said, nothing in this decision should be read to constrain petitioner from seeking other remedies against respondent should subsequent factual developments support them. But, for now, in a claim premised solely upon the Bawdy House law, this proceeding should be dismissed.

Accordingly, the Clerk is directed to enter judgment in favor of respondent dismissing this proceeding.

This constitutes the Decision and Order of the Court.

DATED: March 30, 2026

New York, NY

Hon. Jeffrey S. Zellan, A.J.S.C.

FOOTNOTES

1.   "[L]aw enforcement agencies have a broad and unique power to issue subpoenas and seek court orders for records and testimony under threat of prosecution through a 1978 Bawdy House Law amendment," which could have perhaps developed such evidence. Sealing the Bawdy House Door Open, supra. See also, 1978 NY Laws ch. 627 (amending Bawdy House Law to add investigative tools). However, evidence of such investigation is not before the Court, and the Court cannot presume it.

Jeffrey S. Zellan, J.