A man charged last year with violating East Hampton Town’s rental registry law has succeeded in having evidence from Airbnb suppressed, with Town Justice Lisa R. Rana ruling that it was improperly obtained.
The town attorney’s office and the town’s Ordinance Enforcement Office had conducted a joint investigation over three months before issuing 57 tickets to Harvey Elgart and 64 S. Elroy L.L.C. The town alleged that Mr. Elgart had rented his Montauk property more than 50 times over nine months, in violation of town code, which allows only two rentals shorter than two weeks in any six-month period.
According to a statement issued by the town in June 2022, “rental records from the online rental agency Airbnb, Inc., obtained by East Hampton Town through a subpoena, showed that the residential property at 64 South Elroy [Drive] in Montauk was rented at least 55 times during a nine-month period, with rents paid totaling more than $100,000.”
The town also requires that rental properties, whether seasonal or year-round, be registered with the Building Department on a town rental registry. Registry numbers are to be included in advertising.
When the charges became public, Lawrence Kelly, an attorney representing Mr. Elgart and the limited liability company, disputed them on multiple grounds. “The actual compound we’re talking about was the Pitts family fishing lodge,” he said last year, referring to a 1977 Montauk Almanac, which long predated the town’s rental registry law, and featured an advertisement for Capt. Fred Pitts’s charter boat including the provision “sleeping accommodations arranged.” Pitts began commercial fishing in 1915, according to the almanac.
In her Nov. 8 order, Judge Rana ruled that the subpoena was improperly issued, as “the law clearly states that subpoenas . . . are not to be used for investigative purposes. To that end, a judicial subpoena . . . can only be issued in connection to an actual court proceeding.”
She notes that David McMaster, then an assistant town attorney, wrote to Airbnb, which is based in San Francisco, stating that the subpoena could be complied with by delivering records of the property in question to the town attorney’s office, “with the notation that the records should be marked ‘attention A.T.A. David McMaster.’ “ Case law, she wrote, notes that “courts have held that it is improper for a prosecutor to direct subpoenaed records to be returned directly to the prosecutor’s offices rather than the court.” Mr. McMaster is no longer employed by the town.
Ms. Rana further wrote that “the conduct of the assistant town attorney to initiate, process, and serve what was clearly a purely investigatory subpoena where there was no pending court proceeding cannot be ignored. This court is particularly concerned with the fact that the charges brought against the defendants herein are supported, primarily, by the improperly subpoenaed documents.”
“Considering the above,” she wrote, “the court finds that suppression of the Airbnb records and evidence that stems from them is the most appropriate sanction.” She did, however, deny the defendants’ request that the case be dismissed.
Robert Connelly, the town attorney, did not reply to two calls or an email seeking comment.
Mr. Kelly said on Monday that even if the town continues to pursue legal action against his client, his initial defense should invalidate its argument. “What happened here is that my clients bought a property that had been used for rent or let for the last 60 years,” he said. “And then the town, ignorant of that history, or trying to say they were, tried to go and prosecute them.”