[Ord. No. 36,[1] 4-3-2002]
The following words, terms and phrases, when used in this division,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
Includes, but shall not be limited to:
Any building, structure or real property used for the purpose
of illegal use, possession or distribution of a controlled substance
or marihuana (marijuana) as defined by the state Penal Law.
Any building, structure or real property used for the purposes
of prostitution as defined by the state Penal Law.
Any building, structure or real property used for purposes of
indecency, obscene performances and/or promotion of obscene material
as defined by the state Penal Law and this Code.
Any building, structure or real property used for purposes of
illegal gambling activity as defined in the state penal law.
Any building, structure or real property used for the purpose
of the commission of illegal possession, use or sale of firearms or
weapons as defined by the state Penal Law.
Any building, structure or real property used for the purpose
of illegal sale, manufacture or consumption of alcohol beverages as
defined by the state Alcohol Beverage Control Law.
Any building, structure or real property wherein there exists
or has occurred a criminal nuisance as defined by the state Penal
Law.
Any building, structure or real property used for purposes of
loitering as defined by the state Penal Law.
Any building, structure or real property wherein there exists
or has occurred a violation of this Code.
Any building, structure or real property wherein an occupant,
guest or business invitee commits criminal activities, including but
not limited to, assault, harassment or disorderly conduct, as said
criminal activities are defined by the state Penal Law.
[1]
Editor's Note: This ordinance also repealed former Art. I
on public nuisance abatement, adopted 11-20-1991 by Ord. No. 173.
[Ord. No. 36, 4-3-2002]
No owner, operator, manager, agent in control, tenant, lessee
or other occupier of a building, structure or real property shall
knowingly conduct, maintain, permit or allow the existence of a public
nuisance at the building, structure or real property.
[Ord. No. 36, 4-3-2002]
Notice by first class mail, or personal service, of activities
entailing a public nuisance to the property owner, operator, manager,
agent in control, tenant, lessee or other occupier of a building,
structure or real property shall be prima facie evidence of knowledge
of the public nuisance.
[Ord. No. 36, 4-3-2002]
The existence of two or more criminal convictions for any of the activities set forth in the definition of a public nuisance in Section 2-17-1 at any building, structure or real property within a two-year period prior to the commencement of a civil action shall be prima facie evidence of the existence of a public nuisance. A criminal conviction shall be defined as the entry of a plea of guilty to or a verdict of guilty for one or more counts set forth in an accusatory instrument.
[Ord. No. 36, 4-3-2002]
The existence of two or more incidents of the following activities
at any building, structure or real property within a one-year period
prior to the commencement of a civil action shall be prima facie evidence
of the existence of a public nuisance.
(1)
Conviction for any of the activities set forth in the definition of a "public nuisance" in Section 2-17-1 occurring on or near the property.
(2)
Arrest for any of the activities set forth in the definition of a "public nuisance" in Section 2-17-1 occurring on or near the property.
(3)
Service of an accusatory instrument charging any of the activities set forth in the definition of a "public nuisance" in Section 2-17-1 occurring on or near the property.
(4)
Service of a search warrant on the building, structure or real property
where controlled substances, marihuana (marijuana), and/or weapons
are seized.
(5)
Finding of illegal controlled substances or illegal firearms or weapons
on the building, structure or real property.
(6)
Investigative purchases of illegal controlled substances on the building,
structure or real property by law enforcement agencies or their agents.
[Ord. No. 36, 4-3-2002]
(a)
The Corporation Counsel may bring and maintain a civil action in
the name of the City to abate a public nuisance and shall commence
the civil action by the filing of a summons and complaint in the manner
required by state Civil Practice Laws and Rules or by special proceeding
pursuant to §§ 20(22) and (35) of the General City
Law.
(b)
The summons and complaint or petition shall name as defendants the
building, structure or real property by describing it by Tax Map Number
and/or street address and shall name as defendants at least one of
the owners of some portion of, or having some interest in the property.
(c)
Any owner, operator, manager, tenant, lessee or other occupier of
the building, structure or real property may also be named as a defendant.
(d)
The complaint shall allege the facts constituting the public nuisance.
(e)
The complaint shall be accompanied by affidavits for purposes of
showing that the owner or his agent had notice of the nuisance and
had an opportunity to abate the nuisance.
(f)
The venue of the action shall be in the county where the public nuisance
is being conducted, maintained, permitted or allowed.
(g)
In the case of a summons and complaint, in rem jurisdiction over
the building, structure or real property shall be completed by affixing
the summons to the building, structure or real property and by mailing
the summons and complaint by certified or registered mail, return
receipt requested, to the person in whose name the real property is
recorded at the office of the City Assessor.
(h)
Defendants other than the building, structure or real property shall
be served with the summons and complaint in the manner required by
the state Civil Practice Laws and Rules.
(i)
With respect to any action commenced or to be commenced, the Corporation
Counsel may file a notice of pendency pursuant to the state Civil
Practice Laws and Rules.
[Ord. No. 36, 4-3-2002]
If, upon the trial of an action for a public nuisance or upon
a motion for summary judgment, a finding is made that defendants have
conducted, maintained, permitted or allowed a public nuisance, a penalty
may be awarded in an amount not to exceed $1,000 for each day it is
found that defendants conducted, maintained, permitted or allowed
the public nuisance after notice to abate had been given by the City.
Upon recovery, such penalty shall be paid into the General City Fund.
[Ord. No. 36, 4-3-2002]
(a)
If, upon the trial of an action for a public nuisance or upon a motion
for summary judgment, a finding is made that defendants have conducted,
maintained, permitted or allowed a public nuisance, a permanent injunction
may be granted.
(b)
A permanent injunction may prohibit defendants from conducting, maintaining,
permitting or allowing the public nuisance.
(c)
A permanent injunction may authorize agents of the City to remove
and correct any conditions in violation of this Code. The judgment
may further order that the costs of removing and correcting the violations,
plus a charge of 50% as compensation to the City for administering,
supervising and handling such work, shall be charged against defendants
and awarded to the City. The judgment may further order that the costs
of removing and correcting the violations, plus a charge of 50% as
compensation to the City for administering, supervising and handling
such work, shall constitute a lien against the real property and shall
be collected in the same manner provided by law for the collection
of real property taxes within the City.
(d)
A judgment ordering a permanent injunction may direct the closing
of the building, structure or real property by the City Police Department,
to the extent necessary to abate the nuisance.
(e)
A judgment awarding a permanent injunction shall provide for all
costs and disbursements allowed by the state Civil Practice Laws and
Rules and for the actual costs, expenses and disbursements of the
City in investigating, bringing and maintaining the action.
[Ord. No. 36, 4-3-2002]
(a)
If the judgment directs the closing of the building, structure or
real property, the City Police Department shall serve the judgment
upon defendants in the manner required by the state Civil Practice
Laws and Rules and shall post a copy of the judgment upon one or more
of the doors at entrances of the building, structure or real property
or in another conspicuous place on the building, structure or real
property.
(b)
In addition, the City Police Department shall affix upon one or more
of the doors at entrances of the building, structure or real property
or in another conspicuous place on the building, structure or real
property, a printed notice stating "CLOSED BY COURT ORDER" in block
lettering of sufficient size to be observed by anyone intending to
enter the premises.
(c)
Mutilation or removal of such posted judgment or notice while it remains in force will be considered a separate violation and shall be punishable according to Section 2-1-7 of this Code.
(d)
The City Police Department may then command all persons present in
the building, structure or real property to vacate the property forthwith.
After the building, structure or real property has been vacated, the
City Police Department may secure the premises.
(e)
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 a year from the posting of the judgment.
(f)
A closing by the City Police Department shall not constitute an act
of possession, ownership or control by the City.
[Ord. No. 36, 4-3-2002]
Upon a motion or order to show cause from the Corporation Counsel
and pending an action for a permanent injunction, a preliminary injunction
enjoining the public nuisance may be granted for any of the relief
obtainable by a permanent injunction.
[Ord. No. 36, 4-3-2002]
Pending a motion or order to show cause for a preliminary injunction,
a temporary restraining order or a temporary closing order may be
granted, without notice to defendants, for any of the relief obtainable
by a permanent injunction.
[Ord. No. 36, 4-3-2002]
Whenever there is prima facie evidence of a public nuisance
at any building, structure or real property within the city, the Corporation
Counsel may initiate an administrative hearing.
(1)
Service of notice. A notice of the hearing shall be served on all
owners of the building structure or real property and may also be
served on any known tenants or lessees or other occupiers of the building.
The notice shall be served in the manner required by New York State
Civil Practice Laws and Rules.
(2)
Content of notice. The notice shall allege the facts constituting
the public nuisance. The notice shall further contain a time and place
for a hearing to be held before a panel.
(3)
Hearing panel. The panel shall consist of a member to be appointed
by the chief Code Enforcement Officer, a member to be appointed by
the Chief of Police and a member to be appointed by the Fire Chief.
Each appointing authority shall be authorized to appoint himself/herself
or any member of his/her staff to the hearing panel.
(4)
Hearing. At the time and place designated in the notice, the Corporation
Counsel or his/her designee shall present all relevant evidence as
to the existence of a public nuisance at the building, structure or
real property, and as to appropriate remedies. The owners of the building,
structure or real property, or their representatives, shall have the
right to cross-examine any witnesses presented by the Corporation
Counsel or his/her designee. The owners of the building, structure
or real property, or their representatives, may present any relevant
evidence in their defense. The Corporation Counsel, or his/her designee,
shall have the right to cross-examine any witnesses presented by the
owners of the building, structure or real property, or their representatives.
(5)
Panel's finding and recommendation: Within five days of the hearing,
the panel shall provide a finding of fact to the Commissioner of Public
Safety, or, if there is no Commissioner of Public Safety, to the Mayor
or the Mayor's designee. The finding of fact shall state whether there
is prima facie evidence of the existence of a public nuisance at the
building, structure or real property. The panel shall further provide
a written recommendation of remedies to abate the public nuisance.
[Ord. No. 36, 4-3-2002]
The Commissioner of Public Safety, or, if there is no Commissioner
of Public Safety, the Mayor or the Mayor's designee, upon receipt
of a finding of fact and recommendation from the panel, shall have
the following powers in regards to the abatement of public nuisances:
(1)
To suspend or revoke, for a period not to exceed one year, the certificate
of occupancy for the building, structure or real property.
