A.
The Corporation Counsel may bring and maintain a civil proceeding in the name of the City in the Supreme Court of the county in which the premises is located to permanently enjoin the public nuisances, defined in Subsections A through N of § 199-3 of this chapter, in the manner provided in Article IV of this chapter.
B.
The Corporation Counsel may bring and maintain a civil proceeding in the name of the City, in the Supreme Court of the county in which the premises is located to recover a civil penalty in relation to the public nuisances defined in Subsections N and O of § 199-3 of this chapter, in the manner provided in Article V of this chapter.
A.
Generally. Upon the direction of the Mayor, or at
the request of the head of a department or agency of the City, the
District Attorney, a member of the Common Council, or upon his or
her own initiative, the Corporation Counsel may bring and maintain
a civil proceeding in the name of the City in the Supreme Court to
permanently enjoin a public nuisance within the scope of this article,
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 premises 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 subchapter.
B.
The summons; the caption; naming the premises as defendant.
The Corporation Counsel may name as defendants the premises 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.
C.
In rem jurisdiction over premises. In rem jurisdiction
shall be complete over the premises wherein the public nuisance is
being conducted, maintained or permitted by affixing the summons to
the door of the premises 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 two days thereafter with the clerk of the court designated
in the summons. Service shall be complete upon such filing.
D.
Service of summons on other defendants. Defendants,
other than the premises 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.
E.
Notice of pendency. With respect to any action commenced
or to be commenced by him or her pursuant to this article, the Corporation
Counsel may file a notice of pendency pursuant to the provisions of
Article 65 of the Civil Practice Law and Rules.
F.
Presumption of ownership. The person in whose name
the real estate affected by the action is recorded in the office of
the City Register or the County Clerk, as the case may be, shall be
presumed to be the owner thereof.
G.
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 premises.
H.
Penalty. If, upon the trial of an action under this
article or, upon a motion for summary judgment in an action under
this article, a finding is made that the defendant has intentionally
conducted, maintained or permitted a public nuisance as 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 City.
A.
Generally. Pending an action for a permanent injunction as provided for in § 199-12 of this article, the court may grant a preliminary injunction enjoining a public nuisance within the scope of this article 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 article 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 article is being conducted, maintained or permitted.
B.
Enforcement of preliminary injunction. A preliminary
injunction shall be enforced by the City agency at whose request the
underlying action is being brought. In the event the underlying action
is being brought at the direction of the Mayor, or at the request
of several City agencies or by the Corporation Counsel, on his or
her own initiative, or upon the request of a District Attorney, or
a member of the Common Council, the order shall be enforced by the
agency designated by the Mayor. The Police Department and/or Sheriff
shall, upon the request of the agency involved or upon the direction
of the Mayor, assist in the enforcement of the preliminary injunction.
The Corporation Counsel shall show, by affidavit
and such other evidence as may be submitted, that there is a cause
of action for a permanent injunction abating a public nuisance within
the scope of this article.
A.
Generally. If, on a motion for a preliminary injunction pursuant to § 199-13 of this article, the Corporation Counsel shall show by clear and convincing evidence that a public nuisance within the scope of this article 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 premises 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.
B.
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.
A.
Generally. If, on a motion for a preliminary injunction pursuant to § 199-13 of this article, the Corporation Counsel shall show by clear and convincing evidence that a public nuisance within the scope of this article 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.
B.
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.
A.
Generally. If, on a motion for a preliminary injunction,
the Corporation Counsel submits evidence warranting both a temporary
closing order and a temporary restraining order, the court shall grant
both orders.
B.
Enforcement of temporary closing orders and temporary
restraining orders. Temporary closing orders shall be enforced by
the agency at whose request the underlying action is being brought.
In the event the underlying action is being brought at the direction
of the Mayor, or at the request of several City agencies or by the
Corporation Counsel, on his or her own initiative, or upon the request
of a District Attorney, or a member of the Common Council, the order
shall be enforced by the City agency designated by the Mayor. The
Police Department and/or Sheriff shall, upon the request of the agency
involved or upon the direction of the Mayor, assist in the enforcement
of a temporary closing order or a temporary restraining order.
C.
Inventory upon service of temporary closing orders
and temporary restraining orders. The officers serving a temporary
closing order or a temporary restraining order shall forthwith make
and return to the court an inventory of personal property situated
in and used in conducting, maintaining or permitting a public nuisance
within the scope of this article and shall enter upon the premises
for such purpose. Such inventory shall be taken in any manner which
is deemed likely to evidence a true and accurate representation of
the personal property subject to such inventory, including, but not
limited to, photographing such personal property.
D.
Closing of premises pursuant to temporary closing
order. The officers serving a temporary closing order shall, upon
service of the order, command all persons present in the premises
to vacate the premises forthwith. Upon the premises being vacated,
the premises shall be securely locked and all keys delivered to the
officers serving the order who thereafter shall deliver the keys to
the fee owner, lessor or lessee of the premises involved. If the fee
owner, lessor or lessee is not at the premises when the order is being
executed, the officers shall securely padlock the premises and retain
the keys until the fee owner, lessor or lessee of the premises is
ascertained, in which event, the officers shall deliver the keys to
such owner, lessor or lessee.
E.
Posting of temporary closing order and temporary restraining
order; posting of notices; offenses. Upon service of a temporary closing
order or a temporary restraining order, the officer shall post a copy
thereof in a conspicuous place or upon one or more of the principal
doors at entrances of such premises where the public nuisance is being
conducted, maintained or permitted. In addition, where a temporary
closing order has been granted, the officers shall affix, in a conspicuous
place or upon one or more of the principal doors at entrances of such
premises, a printed notice that the premises has been closed by court
order, which notice shall contain the legend "Closed by Court Order"
in block lettering of sufficient size to be observed by anyone intending
or likely to enter the premises, the date of the order, the court
from which issued and the name of the office or agency posting the
notice. In addition, where a temporary restraining order has been
granted, the officers shall affix, in the same manner, a notice similar
to the notice provided for in relation to a temporary closing order,
except that the notice shall state that certain described activity
is prohibited by court order and that removal of property is prohibited
by court order. Mutilation or removal of such a posted order or such
a posted notice while it remains in force, in addition to any other
punishment prescribed by law, shall be punishable, on conviction,
by a fine of not more than $500 or by imprisonment not exceeding 90
days, or by both, provided such order or notice contains therein a
notice of such penalty. The Police Department and/or Sheriff shall,
upon the request of the agency involved or upon the direction of the
Mayor, assist in the enforcement of this subsection.
F.
Intentional disobedience of or resistance to temporary
closing order or temporary restraining order. Intentional disobedience
of or resistance to a temporary closing order or a temporary restraining
order, in addition to any other punishment prescribed by law, shall
be punishable, on conviction, by a fine of not more than $1,000 or
by imprisonment not exceeding six months, or by both.
A.
A temporary closing order or a temporary restraining
order shall be vacated, upon notice to the Corporation Counsel, if
the defendant shows by affidavit and such other proof as may be submitted
that the public nuisance within the scope of this article has been
abated. An order vacating a temporary closing order or a temporary
restraining order shall include a provision authorizing agencies of
the City to inspect the premises which is the subject of an action
pursuant to this chapter, periodically without notice, during the
pendency of the action for the purpose of ascertaining whether or
not the public nuisance has been resumed. Intentional disobedience
of or resistance to an inspection provision of an order vacating a
temporary closing order or a temporary restraining order, in addition
to any other punishment prescribed by law, shall be punishable, on
conviction, by a fine of not more than $500 or by imprisonment not
exceeding six months, or by both. The Police Department and/or Sheriff
shall, upon the request of the agency involved or upon the direction
of the Mayor, assist in the enforcement of an inspection provision
of an order vacating a temporary closing order or temporary restraining
order.
B.
A temporary closing order or a temporary restraining
order may be vacated by the court, upon notice to the Corporation
Counsel, when the defendant gives an undertaking and the court is
satisfied that the public health, safety or welfare will be protected
adequately during the pendency of the action. The undertaking shall
be in an amount equal to the assessed valuation of the premises where
the public nuisance is being conducted, maintained or permitted or
in such other amount as may be fixed by the court. The defendant shall
pay to the City, in the event a judgment of permanent injunction is
obtained, its actual costs, expenses and disbursements in investigating,
bringing and maintaining the action.
A.
Appointment, duration and removal. In any action wherein
the complaint alleges that the nuisance is being conducted or maintained
in the residential portions of any premises which is occupied in whole
or in part as the home, residence or sleeping place of one or more
human beings, the court may, upon motion on notice by the plaintiff,
appoint a temporary receiver to manage and operate the property during
the pendency of the action in lieu of a temporary closing order. A
temporary receivership shall not continue after final judgment unless
otherwise directed by the court. Upon the motion of any party, including
the temporary receiver, or on its own initiative, the appointing court
may remove a temporary receiver at any time.
B.
Powers and duties. The temporary receiver shall have
such powers and duties as the court shall direct, including, but not
limited to, collecting and holding all rents due from all tenants,
leasing or renting portions of the premises, making or authorizing
other persons to make necessary repairs or to maintain the property,
hiring security or other personnel necessary for the safe and proper
operation of a dwelling, prosecuting or defending suits flowing from
his or her management of the property and retaining counsel therefor,
and expending funds from the collected rents in furtherance of the
foregoing powers.
C.
Oath. A temporary receiver, before entering upon his
or her duties, shall be sworn or shall affirm faithfully and fairly
to discharge the trust committed to such receiver. The oath or affirmation
may be administered by any person authorized to take acknowledgements
of deeds by the Real Property Law. The oath or affirmation may be
waived upon consent of all parties.
D.
Undertaking. A temporary receiver shall give an undertaking,
in an amount to be fixed by the court making the appointment, that
such receiver will faithfully discharge his or her duties.
E.
Accounts. A temporary receiver shall keep written
accounts, itemizing receipts and expenditures and describing the property
and naming the depository of receivership funds, which shall be open
to inspection by any person having an apparent interest in the property.
Upon motion of the temporary receiver or of any person having an apparent
interest in the property, the court may require the keeping of particular
records or direct or limit inspection or require presentation of a
temporary receiver's accounts. Notice of motion for the presentation
of a temporary receiver's accounts shall be served upon the sureties
on the temporary receiver's undertaking as well as upon each party.
A.
A judgment awarding a permanent injunction pursuant
to this article may direct the Sheriff to seize and remove from the
premises 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 City.
B.
C.
A judgment awarding a permanent injunction pursuant to this article may direct the closing of the premises by the Sheriff, to the extent necessary to abate the nuisance, and shall direct the Sheriff to post a copy of the judgment and a printed notice of such closing conforming to the requirements of § 199-17E of this article. Mutilation or removal of such a posted judgment or notice while it remains in force, in addition to any other punishment prescribed by law, shall be punishable, on conviction, by a fine of not more than $250 or by imprisonment not exceeding 15 days, or by both, provided such judgment contains therein a notice of such penalty. The closing directed by the judgment shall be for such period as the court may direct, but in no event shall the closing be for a period of more than one year from the posting of the judgment provided for in this subsection. If the owner shall file a bond in the value of the property ordered to be closed and submits proof to the court that the nuisance has been abated and will not be created, maintained or permitted for such period of time as the premises has been directed to be closed in the judgment, the court may vacate the provisions of the judgment that direct the closing of the premises. A closing by the Sheriff pursuant to the provisions of this subsection shall not constitute an act of possession, ownership or control by the Sheriff of the closed premises.
D.
Intentional disobedience or resistance to any provision
of a judgment awarding a permanent injunction pursuant to this article,
in addition to any other punishment prescribed by law, shall be punishable
by a fine of not more than $500 or by imprisonment not exceeding six
months, or by both.
E.
Upon the request of the agency involved or upon the
direction of the Mayor, the Police Department shall assist in the
enforcement of a judgment awarding a permanent injunction entered
in an action brought pursuant to this article.
F.
A judgment rendered awarding a permanent injunction
pursuant to this article shall be and become a lien upon the premises
named in the complaint 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 premises 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.
G.
A judgment awarding a permanent injunction pursuant
to this article 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 City in investigating, bringing
and maintaining the action.
