BY DUNCAN OSBORNE
Citing the complexity of a nuisance abatement lawsuit brought by New York City against Chi Chiz, a Christopher St. gay bar that serves a mainly African-American clientele, a judge put off hearing part of that case until November, and told the bar to move forward with its own lawsuit that charges that the city was motivated by racial and anti-gay animus when it sought to close the bar.
“I do think the defense here is offered in good faith,” said Judge Martin Schoenfeld on Aug. 26. “I can’t help but be concerned about the allegations of discrimination… . There is, at the very least, some basis for further investigation.”
The Police Department’s legal unit sued Chi Chiz in March after undercover officers in the Manhattan South Narcotics Division said they made three drug buys in the bar from the same person in 2009 and one buy from two people in 2010. Police also asserted that undercovers made three drug buys there in 2005 and 2006 and that there were two fights in the bar in 2009.
Police said their investigations were in response to community complaints.
However, in court documents, lawyers for Chi Chiz wrote that police steered the sellers into Chi Chiz to make the buys and that police targeted the bar for “selective enforcement and disparate treatment based upon the race and sexual orientation of the clientele.”
The bar filed a counterclaim against the city.
The Aug. 26 hearing was meant to be a summary proceeding, a type of mini-trial that does not involve discovery, exchanging witness lists or other steps used in regular trials. But Schoenfeld began the day by asking about the standards he should use to decide the case and related legal matters. Two hours later, it was clear that he was hoping the city and Chi Chiz would settle the case on their own. The parties have engaged in settlement talks, but could not reach an agreement.
“I have to say that I don’t think this case is settleable,” said Laura Mulle, an attorney in the Police Department’s legal unit, as the morning drew to a close.
Complicating the proceeding is that the person who allegedly made the 2009 drug sales has pleaded not guilty and is expected to go to trial in October. If called as a witness by Chi Chiz, she would undoubtedly invoke her Fifth Amendment right against self-incrimination. Having the undercover officer who allegedly bought drugs from her testify in the nuisance abatement case might have implications for her criminal trial as well.
Attorneys for Chi Chiz said that because summary proceedings did not include discovery, they were effectively barred from mounting an effective defense for their clients.
“We still don’t have any statements from the undercovers as to why they arranged multiple buys” with the 2009 seller, said Thomas D. Shanahan, an attorney who is representing Chi Chiz along with Yetta Kurland and Christopher Lynn. All three have long been active in the lesbian and gay community. Lynn was chairperson of the Taxi and Limousine Commission and Department of Transportation during the Giuliani administration.
Schoenfeld eventually adjourned for lunch, and when the parties returned he announced his decision. He turned the Chi Chiz counterclaim into a separate lawsuit, which will allow Chi Chiz’s lawyers to get discovery materials, and he scheduled the summary proceeding for Nov. 4.
In the meantime, Schoenfeld will issue an order, which the city can appeal, that will govern Chi Chiz’s operations. If the bar violates his order, the city can seek a contempt hearing.
Speaking to the bar owners, employees and patrons who attended the proceeding, Schoenfeld said, “I’m letting you know now, be very careful about who you let into the bar.”
The city, which wanted the summary proceeding to happen on Aug. 26 and had its witnesses ready, objected to Schoenfeld’s decision.
“The city is almost being punished for having entered into good-faith negotiation,” Mulle said.
Generally, the city quickly settles most nuisance abatement cases in contrast to its extended negotiations with Chi Chiz.
The bar, in making its case, points to both a community outcry that opposed the shuttering and the history of animus between the predominantly white West Village residents and the youth of color who enjoy hanging out in the neighborhood.
