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Court Upholds Power to Close Gay Bathhouses - New York v. New St. Mark's Baths, 168 A.D.2d 311, 562 N.Y.S.2d 642 (N.Y. App. Div. 1st Dep't 1990)

Earlier history - City of New York v New St. Mark's Baths, 130 Misc. 2d 911, 497 N.Y.S.2d 979 (1986)

[Editor's note: footnotes (if any) trail the opinion]

[1] SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

[2] The City of New York, et al., Plaintiffs-Respondents, and

[3] David Axelrod, M.D., etc., et al.,

[4] Plaintiffs-Intervenors-Respondents,

v.

[5] The New St. Mark's Baths, et al., Defendants-Appellants,

[6] and Paul Corrigan, et al., Defendants-Intervenors

[7] No. 41847

[8] 562 N.Y.S.2d 642, 168 A.D.2d 311

[9] December 13, 1990

[10] Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered on March 28, 1990, which, inter alia, permanently enjoins defendants from maintaining a public nuisance on the premises of The New Saint Mark's Baths, unanimously affirmed, without costs.

BLUE BOOK CITATION FORM: 1990.NY.6027 (http://www.versuslaw.com)

[11] APPELLATE PANEL:

[12] Kupferman, J.P., Sullivan, Ross, Ellerin, Rubin, JJ.

[13] Previously, in this action to permanently enjoin high risk sexual activity in a gay bathhouse, we affirmed orders which preliminarily enjoined such activity (130 Misc. 2d 911, affirmed, 122 A.D.2d 747, appeal dismissed, 70 N.Y.2d 693) and which directed closure of the premises (139 A.D.2d 977). Defendants eventually sought to resolve this action by waiving their right to a hearing and consenting to the entry of a permanent injunction. Both plaintiffs and defendants submitted proposed orders. Justice Nardelli signed plaintiffs' proposed order which provided that the New St. Mark's Baths could reopen a year from the effective date of the order (September 29, 1989), prohibited defendants from maintaining private rooms which are not continuously open to visual inspection, and imposed penalties totaling $29,000.

[14] Defendants now argue that a right to privacy prohibits regulation of gay sexual activity in private rooms on the premises. People v. Onofre, (51 N.Y.2d 476, cert denied, 451 U.S. 987) on which defendants rely, clearly applies only to private conduct in a non-commercial setting (see Stratton v. Drumm, 445 FSupp. 1305, 1309 [1978, D.C. Conn.]), and affords no support for the proposition that privacy rights extend to sexual activity occurring on these premises (see Garaci v. City of Memphis, 379 FSupp. 1393).

[15] The fines and costs imposed are appropriate under the circumstances. We have considered the remaining arguments and find them to be without merit.

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]

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1990.NY.6027