Judge nixes East Hampton’s subpoena plan for illegal Airbnbs

East Hampton’s plan to root out illegal short-term rentals by leveling subpoenas at Airbnb didn’t pass a judge’s test.

East Hampton Town Justice Lisa Rana ruled last week that Airbnb records showing a Montauk property owner’s rental history can’t be used as evidence against him, 27East reported. The town had been trying to subpoena the San Francisco-based company for records, in order to uncover short-term rentals operating afoul of local rules.

Last summer, the town subpoenaed Airbnb for records of Harvey Elgart’s Montauk home after East Hampton found dozens of illegal rentals by the host, who racked up more than $100,000 in revenue. Airbnb complied with the subpoena, which confirmed that Elgart violated the town’s rule which allows only two 14-day-maximum stays per season.

Elgart’s attorney challenged the validity of the subpoena, claiming a town in New York can’t subpoena records from a business in California.

But Justice Rana’s main issue was with the use of a subpoena as a tactic, saying “the law clearly states that subpoenas…are not to be used for investigative purposes.” Otherwise, plaintiffs can only demand internal records “in connection to an actual court proceeding.”

Rana also mentioned procedural issues by the prosecutor, who resigned from the town attorney’s office last week. While the subpoenaed records can’t be used against Elgart, the town’s charges against him remain.

East Hampton would consider an appeal of the judge’s decision, according to town attorney Robert Connelly. 

If the town’s use of the subpoena was approved by the judge, it could have set a precedent. Town Supervisor Peter Van Scoyoc previously said the tactic could be an “important tool” in enforcing East Hampton’s rental policy.

Without subpoenas at their disposal, town inspectors knock on doors and quiz guests about the length of stays, leading hosts to instruct guests to claim they are family members instead of renters. Out of more than 300 hosts who used Airbnb in East Hampton this summer, only eight were cited.

— Holden Walter-Warner

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