[Amended 9-24-2002 by Ord. No. 161-2002]
A.
Generally. Upon the direction of the City Manager or at the request of the head of a department of the City with respect to a nuisance stated in § 257-6 and set forth in § 257-4 of this chapter 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 of Westchester County to permanently enjoin a 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 nuisance. The owner, lessor or lessee of a building, structure or place wherein the nuisance is being conducted, maintained or permitted shall be made defendants in the action. The venue of such action shall be in Westchester County where the 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 article.
[Amended 9-24-2002 by Ord. No. 161-2002]
B.
Summons; caption; naming the building, structure or
place as defendant. The Corporation Counsel shall name as defendants
the building, structure or place wherein the nuisance is being conducted,
maintained or permitted by describing it by section, block, lot number
and street address and at least one of the owners who possesses some
part of or an interest in the property.
C.
In rem jurisdiction over building, structure or place.
In rem jurisdiction shall be complete over the building, structure
or place wherein the 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.
D.
Service of summons on other defendants. Defendants,
other than the building, structure or place wherein the 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 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 Department
of Finance of the City of New Rochelle or the Office of the Clerk
of the County of Westchester, 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 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.
H.
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 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 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 § 257-7 of this article, the court may grant a preliminary injunction enjoining a nuisance within the scope of this article and the person or persons conducting, maintaining or permitting the nuisance from further conducting, maintaining or permitting the 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 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 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 department at whose request
the underlying action is being brought. In the event that the underlying
action is being brought at the direction of the City Manager or at
the request of a City department or by the Corporation Counsel, the
order shall be enforced by the department designated by the City Manager.
The Police Department shall, upon the request of the department involved
or upon the direction of the City Manager, assist in the enforcement
of the preliminary injunction.
[Amended 9-24-2002 by Ord. No. 161-2002]
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 article.
A.
Generally. If, on a motion for a preliminary injunction pursuant to § 257-8 of this article, the Corporation Counsel shall show by clear and convincing evidence that a 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 building, structure 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, 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 § 257-8 of this article, the Corporation Counsel shall show by clear and convincing evidence that a 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 nuisance and from further conducting, maintaining or permitting the 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 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 department at whose request the underlying action is being brought.
In the event that the underlying action is being brought at the direction
of the City Manager or at the request of a City department or by the
Corporation Counsel, the order shall be enforced by the City department
designated by the City Manager. The Police Department shall, upon
the request of the department involved or upon the direction of the
City Manager, assist in the enforcement of a temporary closing order
or a temporary restraining order.
[Amended 9-24-2002 by Ord. No. 161-2002]
C.
Inventory upon service of temporary closing orders
and temporary restraining orders. The officers or inspectors 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 nuisance within
the scope of this article 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.
D.
Closing of premises pursuant to temporary closing
order. The officers or inspectors serving a temporary closing 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 or inspectors
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 or inspectors
shall securely padlock the premises and retain the keys until the
fee owner, lessor or lessee of the building is ascertained, in which
event, the officers or inspectors 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 or inspector 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 nuisance
is being conducted, maintained or permitted. In addition, where a
temporary closing order has been granted, the officers or inspectors
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
have 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
department posting the notice. In addition, where a temporary restraining
order has been granted, the officers or inspectors 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 that such order or notice
contains therein a notice of such penalty. The Police Department shall,
upon the request of the department involved or upon the direction
of the City Manager, 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 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 departments 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 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 shall, upon the request
of the department involved or upon the direction of the City Manager,
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 building, structure
or place where the 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 that 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 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 administered by any person authorized to take acknowledgments
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 other.
A.
A judgment awarding a permanent injunction pursuant
to this article 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 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 article may authorize agents of the City to forthwith remove
and correct construction and structural alterations.
C.
A judgment awarding a permanent injunction pursuant to this article may direct the closing of the building, structure 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 Subsection E of § 257-12 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 that 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 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. 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 or the closed premises.
D.
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 $500 or by imprisonment not exceeding six
months, or by both.
E.
Upon the request of the department involved or upon
the direction of the City Manager, the Police Department shall assist
in the enforcement of a judgment awarding a permanent injunction entered
in an action brought pursuant to this chapter.
F.
A judgment rendered awarding a permanent injunction
pursuant to this article 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 lis pendens in the Office
of the Clerk of the County of Westchester wherein the building, structure
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.
G.
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.
