This article shall be applicable to the public nuisances defined in Article I of this chapter.
The Corporation Counsel may bring and maintain
a civil proceeding in the name of the City for the following types
of relief:
A.
Permanent injunction.
B.
Temporary closing order.
C.
Temporary restraining order.
D.
Temporary injunction.
E.
Civil penalties.
(1)
The summons. The Corporation Counsel shall name as
defendants the building, structure or place wherein the public nuisance
is being conducted, maintained or permitted, by describing it by tax
map number and/or street address, and at least one of the owners of
some part of or interest in the property.
(2)
The complaint.
(a)
The Corporation Counsel shall bring and maintain a civil proceeding in the name of the City of Peekskill in the Supreme Court of Westchester County, or any other court of competent jurisdiction, to permanently enjoin the public nuisance and the persons conducting, maintaining or permitting the public nuisance, as defined in Article I, § 428-3 of this chapter, from further conducting, maintaining, or permitting the public nuisance in the manner provided in Article II of this chapter. The owner, operator and/or lessee of a building, structure or place wherein the public nuisance is being conducted, maintained or permitted may be made defendants in the action.
(b)
The venue of such action shall be in the county
where the public nuisance is being conducted, maintained or permitted.
(c)
The existence of an adequate remedy at law shall
not prevent the granting of temporary or permanent relief pursuant
to this chapter.
(d)
The civil action shall be commenced by the filing
of a summons and complaint alleging the facts constituting the nuisance.
(e)
The complaint shall name as defendants the building,
structure or place wherein the nuisance is being conducted, maintained
or permitted, by describing it by tax map number and/or street address,
and at least one of the owners who possesses some part of or an interest
in the property.
(f)
Any complaint filed under this chapter shall
be verified or accompanied by an affidavit(s) for purposes of showing
that the owner or his/her agent has notice of the nuisance and has
had an opportunity to abate the nuisance.
(g)
The complaint or affidavit shall contain a description
of the attempts by the applicant to notify and locate the owner of
the property and/or the owner's agent.
(h)
The complaint or affidavit shall describe the
adverse impact associated with the property on the surrounding neighborhood.
(3)
In rem jurisdiction over building, structure, or place.
In rem jurisdiction shall be complete over the building, structure
or place wherein the public nuisance is being conducted, maintained
or permitted by affixing the summons to the door of the building,
structure or place and by mailing the summons by certified or registered
mail, return receipt requested, to one of the owners who possesses
some part of or an 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.
(4)
Service of summons on other defendants. The defendant(s),
other than the building, structure 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.
(5)
Notice of pendency. With respect to any action commenced
or to be commenced pursuant to this chapter, the Corporation Counsel
may file a notice of pendency pursuant to the provisions of Article
65 of the Civil Practice Law and Rules.
(6)
Presumption of ownership. The owner of the real estate
affected by the action shall be presumed to be the person in whose
name the real estate is recorded in the office of the City of Peekskill
Assessor and/or the office of the Clerk of the County of Westchester.
(7)
Presumption of employment or agency. Whenever there
is testimony 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, structure or place considered to
be a nuisance.
(8)
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 conducted,
maintained or permitted a public nuisance defined in this chapter,
a penalty may be awarded in an amount not to exceed $1,000 for each
day it is found that the defendant conducted, maintained or permitted
the public nuisance after notice to abate has been given by the City.
Upon recovery, such penalty shall be paid into the general fund of
the City.
(9)
Enforcement. A judgment pursuant to this chapter shall
be enforced by the City of Peekskill Police Department and the office
of Corporation Counsel.
A.
A judgment awarding a permanent injunction, pursuant
to this chapter, may direct the Sheriff to seize and remove from the
building, structure 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 City.
B.
A judgment awarding a permanent injunction pursuant
to this chapter may authorize agents of the City to forthwith remove
and correct construction and structural alterations in violation of
the City Housing Code. [1] Any and all costs associated with these repairs or alterations
shall become a lien against said property and shall have priority
before any mortgage or other lien that exists prior to such filing
except tax and assessment liens and any nuisance abatement lien.
C.
A judgment awarding a permanent injunction, pursuant to this chapter, may direct the closing of the building, structure, individual single dwelling unit or place 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 § 428-8H of this chapter. 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 $500 or by imprisonment not exceeding 15 days, or by both, provided that such judgment contains therein a notice of such penalty.
D.
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 section.
E.
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 building, structure or place
has been directed to be closed in the judgment, the court may vacate
the provisions of the judgment that direct the closing of the building,
structure or place.
F.
A closing by the Sheriff pursuant to this section
shall not constitute an act of possession, ownership or control by
the Sheriff of the closed premises.
G.
Intentional disobedience or resistance to any provision
of a judgment awarding a permanent injunction pursuant to this chapter,
in addition to any other punishment prescribed by law, shall be punishable
by a fine of not more than $1,000 or by imprisonment not exceeding
six months, or by both.
H.
Upon the request of the Corporation Counsel or the
City Manager, the City of Peekskill Police Department shall assist
in the enforcement of a judgment awarding a permanent injunction entered
in an action brought pursuant to this chapter.
I.
A judgment rendered awarding a permanent injunction
pursuant to this chapter shall be and become a lien upon the building,
structure or place named in the complaint in such action, such lien
to date from the time of filing a notice of liens pending in the office
of the clerk of the county wherein the building, structure or place
is located. Every such nuisance abatement lien shall have priority
before any mortgage or other lien that exists prior to such filing,
except tax and assessment liens.
J.
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 City in investigating, bringing
and maintaining the action.
A.
Generally.
(1)
Pending an action for a permanent injunction as provided
for in this article, 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 the preliminary injunction shall direct
a trial of the issues at the earliest possible time. Where preliminary
injunction has been granted, the court shall render a decision with
respect to a permanent injunction at its earliest convenience 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 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 nuisance within the scope
of this chapter is being conducted, maintained or permitted.
(2)
Enforcement of preliminary injunction. A preliminary
injunction shall be enforced by the Corporation Counsel and the City
of Peekskill Police Department.
(3)
Preliminary injunctions; inventory; closing of premises;
posting of order and notices; offenses. If the court grants a preliminary
injunction, the provisions of this article shall be applicable.
B.
Motion papers for 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 nuisance within the scope of this chapter.
C.
Temporary closing order.
(1)
If, on a motion for a preliminary injunction pursuant
to this section, the Corporation Counsel shall show by clear and convincing
evidence that a 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, structure, individual dwelling
unit or place wherein the 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; a decision on the motion for a preliminary
injunction shall be rendered by the court at the earliest possible
time.
(2)
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.
D.
Temporary restraining order.
(1)
A temporary restraining order may be granted pending
a hearing for 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 restraining order. This order shall restrain the defendants
and all persons from removing or transferring off the property or
in any manner interfering with the fixtures and movable property used
in conducting, maintaining or permitting the public nuisance and from
further conducting, maintaining or permitting the public nuisance.
A temporary restraining order 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 restraining
order, the court shall direct the holding of a hearing for the preliminary
injunction.
(2)
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.
E.
Temporary closing order; temporary restraining order.
(1)
If, on 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.
(2)
Enforcement of temporary closing orders and temporary
restraining orders. Temporary closing orders and temporary restraining
orders shall be enforced by the Corporation Counsel and the City of
Peekskill Police Department.
F.
Inventory upon service of temporary closing orders
and temporary restraining orders. The officers serving 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
chapter and shall enter upon the building, structure or place 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.
G.
Closing of premises pursuant to temporary closing
orders and temporary restraining orders. The officers serving a temporary
restraining order shall, upon service of the order, command all persons
present in the building, structure or place to vacate the premises
forthwith. Upon the building, structure or place 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 building, structure or place involved.
If the fee owner, lessor or lessee is not at the building, structure
or place 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 building is ascertained, at which time the officers
shall deliver the keys to such owner, lessor or lessee, if such individual
resides within Westchester County.
H.
Posting of temporary closing orders and temporary
restraining orders. Upon service of 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 restraining 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 shall state that certain described activity is prohibited by
court order and that removal of property is prohibited by court order.
If the temporary restraining order directs that the premises are to
be closed by court order, the 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. 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 $1,000 or by imprisonment not exceeding
90 days, or by both, provided that such order or notice contains therein
a notice of such penalty. The Police Department shall, upon the request
of the office of Corporation Counsel, or upon the direction of the
City Manager, assist in the enforcement of this section.
I.
Intentional disobedience of or resistance to temporary
restraining order and permanent injunction. Intentional disobedience
of, or resistance to, 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.
J.
Temporary restraining order or preliminary injunction
bond required. A temporary restraining order or preliminary injunction
shall not issue under this chapter, except upon the giving of a bond
or security by the applicant, in the amount of $1,000, for the payment
of such costs and damages as may be incurred or suffered by any party
who is found to be wrongfully restrained or enjoined. A bond or security
shall not be required of the State of New York, municipal corporations,
or political subdivisions of the State of New York.
A.
Temporary restraining order to be vacated; inspection
provision.
(1)
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 chapter 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 building,
structure or place 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 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. The Police Department
shall, upon the request of the office of Corporation Counsel, or upon
the direction of the City Manager, assist in the enforcement of an
inspection provision of an order vacating a temporary restraining
order.
(2)
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 building, structure or place 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.
B.
Vacating a temporary injunction or a temporary restraining
order. When the defendant gives an undertaking in the amount of the
civil penalty demanded in the complaint together with costs, disbursements
and the projected annual costs of the prosecution of the action to
be determined by the court, upon a motion on notice to the Corporation
Counsel, a temporary injunction or a temporary restraining order shall
be vacated by the court. The provisions of the Civil Practice Law
and Rules governing undertakings shall be applicable to this chapter.
A.
Generally, pending an action pursuant to this chapter,
the court may grant a preliminary injunction enjoining a defendant
from making a bulk transfer, as defined in this section.
B.
If on a motion for a preliminary injunction of a bulk transfer the Corporation Counsel shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained, or permitted, a temporary restraining order may be granted, without notice, restraining the defendants and all persons from making or permitting a bulk transfer, as defined in this section, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Application for a temporary restraining order shall be made pursuant to § 428-8 of this article.
C.
Bulk transfer defined. A bulk transfer is any transfer
of a major part of the materials, supplies, merchandise or other inventory
or equipment of the transferor in the building, structure or place
where the public nuisance is being conducted, maintained or permitted
that is not in the ordinary course of the transferor's business.
D.
Enforcement of preliminary injunction. A preliminary
injunction shall be enforced by the office of the Corporation Counsel
or by the City of Peekskill Police Department.
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 building or structure or portion
thereof which are 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 building or structure, 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 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.
This chapter shall not be construed to exclude
any other remedy provided by law for the protection of the health,
safety and welfare of the people of the City of Peekskill.
