Village of Nassau, NY Nuisance Abatement

[HISTORY: Adopted by the Board of Trustees of the Village of Nassau 9-9-1998 by L.L. No. 1-1998. Amendments noted where applicable.]

§ 79-1 Legislative declaration.

The Village Board of the Village of Nassau finds that public nuisances exist in the Village of Nassau in the operation of certain commercial establishments and the use or alteration of property in flagrant violation of the building code, zoning resolution, health laws, Multiple Dwelling Law and Penal Law regulating obscenity and related conduct, all of which interfere with the interest of the public in the quality of life and total community environment, the tone of commerce in the village, further property values and the public health, safety and welfare; the Village Board further finds that the continued occurrence of such activities and violations is detrimental to the health, safety and welfare of the people of the Village of Nassau and the businesses thereof. It is the purpose of the village to create one standardized procedure for securing legal and equitable remedies relating to the subject matter encompassed by this chapter, without prejudice to the use of procedures available under existing and subsequently enacted laws, and to strengthen existing laws on the subject.

§ 79-2 Short title.

This chapter shall be known as the "Nuisance Abatement Law."

§ 79-3 Public nuisances enumerated.

The following are declared to be public nuisances:

Any building, erection or place, including one- or two-family dwellings, used for the purpose of obscene performances. The term "obscene" shall have the same meaning as that term is defined in Subdivision 1 of § 235.00 of the Penal Law. The term "performance" shall have the same meaning as that term is defined in Subdivision 3 of § 235.00 of the Penal Law. Two or more convictions, as defined in Subdivision 13 of § 1.20 of the Criminal Procedure Law, of persons for production, presentation or direction of an obscene performance or for participation in such performance, in the building, erection or place, including one- or two-family dwellings, within the one-year period preceding the commencement of an action under this chapter, shall be presumptive evidence that the building, erection or place, including one- or two-family dwellings, is a public nuisance.

Any building, erection or place, including one- or two-family dwellings, used for the purpose of promotion of obscene material. The term "obscene" shall have the same meaning as that term is defined in Subdivision 1 of § 235.00 of the Penal Law. The term "material" shall have the same meaning as that term is defined in Subdivision 2 of § 235.00 of the Penal Law. Two or more convictions, as defined in Subdivision 13 of § 1.20 of the Criminal Procedure Law, of persons for promotion of or possession with intent to promote obscene material in the building, erection or place, including one- or two-family dwellings, within the one-year period preceding the commencement of an action under this chapter, shall be presumptive evidence that the building, erection or place, including one- or two-family dwellings, is a public nuisance.

Any building, erection or place, including one- or two-family dwellings, used for the purpose of a business, activity or enterprise which is not licensed as required by law.

Any building, erection or place, including one- or two-family dwellings, wherein there exists or is occurring a violation of the Zoning Law.

Any building, erection or place, including one- or two-family dwellings, wherein there is occurring a criminal nuisance as defined in § 240.45 of the Penal Law.

§ 79-4 Remedies.

The Village Attorney shall bring and maintain a civil proceeding in the name of the village in the Supreme Court of the county in which the building, erection or place is located to permanently enjoin the public nuisances, defined in Subsections A, B, D and E of § 79-3 of this chapter, in the manner provided in this chapter.

The Village Attorney shall bring and maintain a civil proceeding in the name of the village, in the Supreme Court of the county in which the building, erection or place is located to recover a civil penalty in relation to the public nuisances defined in Subsections A and B of § 79-3 of this chapter, in the manner provided in this chapter.

§ 79-5 Applicability.

This subchapter shall be applicable to the public nuisances defined in Subsections C, D and E of § 79-3 of this chapter.

§ 79-6 Action for permanent injunction.

Generally. Upon the direction of the Mayor, or at the request of the Village Board with respect to the public nuisances defined in Subsections A, B, C, G and H and § 79-3 of this chapter, or upon his or her own initiative, the Village Attorney may bring and maintain a civil proceeding in the name of the village in the Supreme Court to permanently enjoin a public nuisance within the scope of this chapter, and the person or persons conducting, maintaining or permitting the public nuisance from further conducting, maintaining or permitting the public nuisance. The owner, lessor and lessee of a building, erection or place wherein the public nuisance is being conducted, maintained or permitted shall be made defendants in the action. The venue of such action shall be in the county where the public nuisance is being conducted, maintained or permitted. The existence of an adequate remedy at law shall not prevent the granting of temporary or permanent relief pursuant to this chapter.

The summons; the caption; naming the building, erection or place as defendant. The Village Attorney shall name as defendants the building, erection or place wherein the public nuisance is being conducted, maintained or permitted, by describing it by block, lot number and street address and at least one of the owners of some part of or interest in the property.

In rem jurisdiction over building, erection or place. In rem jurisdiction shall be complete over the building, erection or place wherein the public nuisance is being conducted, maintained or permitted by affixing the summons to the door of the building, erection or place and by mailing the summons by certified or registered mail, return receipt requested, to one of the owners of some part of or interest in the property. Proof of service shall be filed within five days thereafter with the Clerk of the court designated in the summons. Service shall be complete upon such filing.

Service of summons on other defendants. Defendants, other than the building, erection or place wherein the public nuisance is being conducted, maintained or permitted, shall be served with the summons as provided in the Civil Practice Law and Rules.

Notice of pendency. With respect to any action commenced or to be commenced by him or her pursuant to this chapter, the Village Attorney may file a notice of pendency pursuant to the provisions of Article 65 of the Civil Practice Law and Rules.

Presumption of ownership. The person in whose name the real estate affected by the action is recorded in the office of the Rensselaer County Clerk shall be presumed to be the owner thereof.

Presumption of employment or agency. Whenever there is evidence that a person was the manager, operator, supervisor or, in any other way, in charge of the premises, at the time a public nuisance was being conducted, maintained or permitted, such evidence shall be presumptive that he or she was an agent or employee of the owner or lessee of the building, erection or place.

Penalty. If, upon the trial of an action under this chapter or, upon a motion for summary judgment in an action under this chapter, a finding is made that the defendant has intentionally conducted, maintained or permitted a public nuisance defined in this chapter, a penalty, to be included in the judgment, may be awarded in an amount not to exceed $1,000 for each day it is found that the defendant intentionally conducted, maintained or permitted the public nuisance. Upon recovery, such penalty shall be paid into the general fund of the village.

§ 79-7 Preliminary injunction.

Generally. Pending an action for a permanent injunction as provided in § 79-6 of this chapter, the court may grant a preliminary injunction enjoining a public nuisance within the scope of this chapter and the person or persons conducting, maintaining or permitting the public nuisance from further conducting, maintaining or permitting the public nuisance. An order granting a preliminary injunction shall direct a trial of the issues within three business days after joinder of issue or, if issue has already been joined, within three business days after the entry of the order. Where a preliminary injunction has been granted, the court shall render a decision with respect to a permanent injunction within three business days after the conclusion of the trial. A temporary closing order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained or permitted and that the public health, safety or welfare immediately requires the granting of a temporary closing order. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained or permitted.

Enforcement of preliminary injunction. A preliminary injunction shall be enforced by the village. The Police Department shall, upon the direction of the Mayor, assist in the enforcement of the preliminary injunction.

§ 79-8 Motion papers for preliminary injunction.

The Village Attorney shall show, by affidavit and such other evidence as may be submitted, that there is a cause of action for the permanent injunction abating a public nuisance within the scope of this chapter.

§ 79-9 Temporary closing order.

Generally. If, on a motion for a preliminary injunction pursuant to § 79-7 of this chapter, the Village Attorney shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained or permitted and that the public health, safety or welfare immediately requires a temporary closing order, a temporary order closing such part of the building, erection or place wherein the public nuisance is being conducted, maintained or permitted may be granted without notice, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Upon granting a temporary closing order, the court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time but in no event later than three business days from the granting of such order; a decision on the motion for a preliminary injunction shall be rendered by the court within three business days after the conclusion of the hearing.

Service of temporary closing order. Unless the court orders otherwise, a temporary closing order together with the papers upon which it was based and a notice of hearing for the preliminary injunction shall be personally served, in the same manner as a summons as provided in the Civil Practice Law and Rules.

§ 79-10 Temporary restraining order.

Generally. If, on a motion for a preliminary injunction pursuant to § 79-7 of this chapter, the Village Attorney shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained or permitted and that the public health, safety or welfare immediately requires a temporary restraining order, such temporary restraining order may be granted without notice restraining the defendants and all persons from removing or in any manner interfering with the furniture, fixtures and movable property used in conducting, maintaining or permitting the public nuisance and from further conducting, maintaining or permitting the public nuisance, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Upon granting a temporary restraining order, the court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time but in no event later than three business days from the granting of such order; a decision on the motion for a preliminary injunction shall be rendered by the court within three business days after the conclusion of the hearing.

Service of temporary restraining order. Unless the court orders otherwise, a temporary restraining order and the papers upon which it was based and a notice of hearing for the preliminary injunction shall be personally served, in the same manner as a summons as provided in the Civil Practice Law and Rules.

§ 79-11 Permanent injunction.

A judgment awarding a permanent injunction pursuant to this chapter may direct the sheriff to seize and remove from the building, erection or place all material, equipment and instrumentalities used in the creation and maintenance of the public nuisance and shall direct the sale, by the sheriff, of such property in the manner provided for the sale of personal property under execution pursuant to the provisions of the Civil Practice Law and Rules. The net proceeds of any such sale, after deduction of the lawful expenses involved, shall be paid into the general fund of the village.

A judgment awarding a permanent injunction pursuant to this chapter may authorize agents of the village to forthwith remove and correct construction and structural alterations.

A judgment rendered awarding a permanent injunction pursuant to this chapter shall be and become a lien upon the building, erection or place named in the compliant in such action, such lien to date from the time of filing a notice of lis pendens in the office of the Clerk of the county wherein the building, erection or place is located. Every such lien shall have priority before any mortgage or other lien that exists prior to such filing, except tax and assessment liens.

A judgment awarding a permanent injunction pursuant to this chapter shall provide, in addition to the costs and disbursements allowed by the Civil Practice Law and Rules, upon satisfactory proof by affidavit or such other evidence as may be submitted, the actual costs, expenses and disbursements of the village in investigating, bringing and maintaining the action.