CITY OF NEW YORK v. 365 (2005)

Appeals from three orders, Supreme Court, New York County (Louis B. York, J.), entered February 3, 2004, which, in three nuisance abatement actions (Administrative Code of City of N.Y., tit. 7) based on the sale of counterfeit merchandise in three booths of a flea market located in defendant landlord's building, after a hearing, denied plaintiff's requests for temporary closing orders (Administrative Code § 7-709), and simultaneously denied plaintiff's motions for preliminary injunctions (Administrative Code § 7-707), unanimously dismissed as moot, without costs.

We perceive no reason to decide whether the offending booths should be temporarily closed or defendants otherwise preliminarily restrained from conducting or permitting the alleged nuisance, where the offending tenants have vacated the premises, and the landlord has removed all of the booths, gutted the interior of the premises and sufficiently demonstrates that it will not be operating the premises as a flea market (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ).   Under the circumstances, there is no threat of a resumption of the alleged illegal activity in these premises prior to plaintiff's securing of any final injunctive remedies to which it may be entitled.   We emphasize that the actions have not been dismissed (compare City of New York v. Mor, 261 A.D.2d 185, 690 N.Y.S.2d 33 [1999], appeal dismissed 93 N.Y.2d 1041, 697 N.Y.S.2d 569, 719 N.E.2d 930 [1999] ), and that the finding of mootness applies only to plaintiff's requests for temporary/preliminary relief.