The Casbar, a sex club in the Gowanus/Sunset Park area that was profiled by the New York Times in February, has been temporarily closed by a Brooklyn judge after three undercover inspectors witnessed more than 150 incidents of prohibited sexual activity. According to a case summary, "The alleged sex acts violated Sanitary Code §24-2.2, which states, "No establishment shall make facilities available for the purpose of sexual activities in which ... high risk sexual activity takes place." The statute defines 'high risk sexual activity' as anal intercourse and fellatio. Sadly, the closure means that the Casbar had to cancel its planned sex-themed Passover seder run by the social club Kinky Jews. [NY Law Journal]
The full summary and link to the case are available after the jump.
Citing the testimony of three undercover inspectors who witnessed more than "150 incidents of prohibited sexual activity," a Brooklyn judge has granted a motion for a preliminary injunction temporarily closing Casbar, a Brooklyn sex club.
Despite the club's billing as "New York's newest and cleanest swing club," Supreme Court Justice Robert J. Miller held that the proof of the club's repeated violations of the state's Sanitary Code was sufficient to grant relief without considering the standard three-prong test for preliminary injunctions.
Even so, Justice Miller wrote, the detectives' testimony would have easily established the test's requirement of "irreparable injury."
"[T]he evidence submitted in the record and at the hearing is sufficient to entitle the City to a preliminary injunction under the more rigorous standard required under CPLR Section 6301," Justice Miller wrote in City of New York v. Casbar, 7819/09. "There is substantial undisputed evidence that the defendants have engaged in illegal activities."
Casbar, located on the industrial fringes of Sunset Park, Brooklyn, is an "erotic and dimly lit Fantasyland," according to its Web site.
The New York City Department of Health initiated an undercover investigation of the club and, on April 1, successfully petitioned for an ex parte closing order. (The closing resulted in the cancellation of a sex-themed Passover seder run by the social club Kinky Jews.)
On April 13, Justice Miller held a hearing of the city's request for a preliminary injunction.
The Department of Health's investigators testified regarding the 150-plus acts of fellatio and intercourse they had witnessed. The alleged sex acts violated Sanitary Code §24-2.2, which states, "No establishment shall make facilities available for the purpose of sexual activities in which ... high risk sexual activity takes place." The statute defines "high risk sexual activity" as anal intercourse and fellatio.
The defense offered the testimony of the building's owner and a "boothman" who was charged with collecting entry fees.
"Neither witness had personal knowledge of whether the alleged activities occurred in the Casbar," Justice Miller wrote. "As such, the record establishes a continued pattern of violation of law by the defendants which was not disputed by any credible witness."
The judge granted the city's petition without requiring the city to satisfy the three-pronged test for injunctive relief.
In order to obtain a preliminary injunction, a plaintiff usually must demonstrate a likelihood of both success on the merits and irreparable injury absent the injunction, as well as a balancing of the equities favoring the plaintiff.
"It is clear that where, as here, there is repeated illegal activities at an establishment and that such conduct violates a statutory scheme designed to protect the public health, that the conduct constitutes a violation and may be considered a public nuisance subject to the Administrative Code," Justice Miller concluded.
"In these circumstances, the City is entitled to injunctive relief since there is a prima facie showing that City laws are being violated."
Long Island solo practitioner William C. McCulloh represented Casbar. He did not return calls for comment.
Stacey Mondschein appeared on behalf of the city's corporation counsel.
Gabriel Taussig, the chief of the city's administrative law division, called the case "part of the ongoing effort to combat HIV by addressing high-risk sexual activities."