CITY OF NEW YORK v. LOVESHACK VIDEO (2001)

In an action for injunctive relief pursuant to the nuisance abatement provisions of the Administrative Code of the City of New York, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Lonschein, J.), dated March 6, 2000, which, after a hearing, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The International High School is a charter school located within the campus of LaGuardia Community College.   The College's Thomson Avenue entrance is located less than 500 feet away from Loveshack Video, an adult book and video store.

Pursuant to New York City Zoning Resolution § 42-01, adult establishments must be located at least 500 feet from a place of worship, school, or other adult establishment.   Here, the plaintiffs (hereinafter the City) sought a preliminary injunction to close Loveshack Video pursuant to the City's nuisance abatement provisions (see, Administrative Code of the City of New York §§ 7-707, 7-711), contending that it operated within 500 feet of the International High School.

Contrary to the City's contention, the 500-foot measurement should not be made from the Thomson Avenue entrance, but from the point where the International High School is located within the campus.   The high school's classrooms and administrative offices are located in the rear of the basement of the main building.   The closest classroom to the Thomson Avenue entrance is more than 500 feet from Loveshack Video.   Since the classrooms and administrative offices are located more than 500 feet away from Loveshack Video, the City failed to establish by clear and convincing evidence that the defendants are in violation of the City's Zoning Resolution (see, Matter of Storar v. Dillon, 52 N.Y.2d 363, 379, 438 N.Y.S.2d 266, 420 N.E.2d 64).

Accordingly, the Supreme Court properly dismissed the complaint.