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The Bordello Tenant – MICHELLE’S MONDAY MANDAMUS!

August 7, 2017:  This Q&A post originally appeared on the LandlordsNY blog, where Michelle Maratto Itkowitz is the "Legal Expert".

Hi, Michelle here. I am the LandlordsNY “Legal Expert”. My goal is to post in the blog all of the questions I get from LandlordsNY members (keeping the member anonymous) and my answers thereto, when I think that such questions and answers would be of interest to other people. Let me know if this is helpful. These questions are excellent, keep them coming.

Question:

“Hi, we have a spa that seems to only give men 'happy endings'. They advertise suggestively on a website. We actually have no proof of what they do but we have suspicions. I have complained to the police several times and they raided the place in the past, but did nothing. We thought a large obvious sign warning of cameras would be a disincentive to their operation, but it hasn't been. Any ideas of how to get rid of these tenants?”

Answer:

A landlord may evict a tenant who utilizes leased premises for purposes of prostitution. See, e.g., City of New York by Redlich v. Goldman, 78 Misc. 2d 693 (N.Y. City Civ. Ct. 1974). Real Property Actions and Proceedings Law § 711(5) states:

“A special proceeding may be maintained under this article upon the following grounds:  … 5. The premises, or any part thereof, are used or occupied as a bawdy-house, or house or place of assignation for lewd persons, or for purposes of prostitution, or for any illegal trade or manufacture, or other illegal business.”

Your problem is one of PROOF. All landlord and tenant cases ultimately come down to proof. You seem very sure about the “happy endings”. How do you KNOW that? Answering how you know something can help us figure out how to prove what you know. Did someone tell you? Who? Will they testify?

You mentioned you had a sign warning of surveillance cameras. But…do you actually have surveillance cameras? A picture (or a video) is worth a thousand words, or a thousand guesses and speculations about the volume and type of traffic in and out of the store. Cameras are cheaper than legal fees.

You mentioned that you were working with a private investigator. Have you considered having the investigator go in wearing a hidden button camera to obtain evidence? Again, you need an experienced operative for this type of work. I recently had a case like this. My investigator was very clever. His operative waited outside of the premises and asked an emerging customer if this was a “happy ending” place. The happy customer answered “yes” and actually gave the operative a card with the right phone number to call for this specific type of appointment!

Frankly, it was difficult for me to watch the tape. I am not one of those people who considers prostitution to be a victimless crime. By the way, the operatives do not engage in any illegal activity. They just lead up to it. The licensed investigator can take the evidence to the proper vice squad at the proper precinct and perhaps get an operation underway that will lead to arrests. Arrests obviously would greatly strengthen your case.

Therefore, I am very concerned that there was an NYPD raid and no action was taken. The tenant might use that as proof that there is no illegal activity going on.

Finally, I must caution you that a lawyer may not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter. In re Gelman, 230 A.D. 524 (1st Dep't 1930). Therefore, when your lawyer obtains knowledge that crimes are being committed, she actually must turn her evidence over to the precinct. You can’t sit on the information as leverage for getting the tenant to surrender. You can’t bargain with such evidence.

On a practical note, when does their lease end?  Maybe you can just wait them out and not renew?



Thank you for this question.  Finally, I am obligated to say that this answer is for general informational purposes only, does not constitute legal advice, and does not create an attorney and client relationship between us or between you and LandlordsNY. 

Let me know if you need anything else.

Michelle Maratto Itkowitz
Itkowitz PLLC
26 Broadway, 21st Floor
New York, New York 10004
(646) 822-1805



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