[HISTORY: Adopted by the Town Board of the
Town of Union 12-3-1997 by L.L.
No. 2-1997; amended in its entirety 4-3-2019 by L.L. No. 4-2019.
Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Animals — See Ch. 71.
Brush, grass and weeds — See Ch. 83.
Building Code administration — See Ch. 86.
Unsafe buildings — See Ch. 88.
Drainage — See Ch. 102.
Flood damage prevention — See Ch. 121.
Graffiti — See Ch. 132.
Peddling, soliciting and transient merchants — See Ch. 151.
Property maintenance — See Ch. 155.
Sewers — See Ch. 165.
Solid waste — See Ch. 174.
Streets and sidewalks — See Ch. 178.
Inoperative vehicles — See Ch. 194.
Zoning — See Ch. 300.
The Town Board of the Town of Union finds that public nuisances
exist in the Town of Union in the operation of certain establishments
and the use of property in flagrant violation of certain Penal Law
and Municipal Code provisions, which nuisances substantially and seriously
interfere with public health, safety, welfare, quality of life and
total community environment, commerce in the Town and property values.
The Board further finds that the continued occurrence of such activities
and violations are detrimental to the health, safety and welfare of
the people of the Town of Union and of the businesses thereof and
the visitors thereto. It is the purpose of this chapter to authorize
and empower the Town Board to impose sanctions and penalties for such
public nuisances, which power may be exercised either in conjunction
with or apart from, and without prejudice to, any and all additional
powers and remedies conferred upon the Town Board by local, state
and federal laws and regulations. The Town Board further finds that
the sanctions and penalties imposed by the Town Board pursuant to
this chapter constitute an additional and appropriate method of law
enforcement in response to the proliferation of the above-described
public nuisances. The sanctions and penalties are reasonable and necessary
in order to protect the health and safety of the people of the Town
and to promote the general welfare.
This chapter shall be known as the "Property and Building Nuisance
Reform Law."
As used in this chapter, the following terms shall have the
meanings indicated:
A structure where space is covered or enclosed for the use,
shelter, storage or protection of persons, animals, chattel or property
of any kind, and which is permanently affixed to the land.
A building subordinate to the principal building on the lot
and used for purposes which are clearly related but incidental to
that of said principal building.
An activity, occupation, employment or enterprise which requires
time, attention, labor and material and wherein merchandise is exhibited
or sold, or services offered.
A building or portion thereof utilized to accommodate the
activities of a business.
A conviction for an offense in a court of competent jurisdiction
or in or by an administrative agency or bureau shall not be required
to prove a violation under this chapter. Instead, the Town's
burden of proof shall be by a preponderance of the evidence that the
violations have occurred. However, a conviction, as defined and applied
in accordance with the provisions of § 1.20 of the Criminal
Procedure Law, in any court of competent jurisdiction, or a plea of
guilty shall constitute conclusive proof of a violation. Conviction
of an attempt to commit a violation of any of the specified provisions
shall be considered a conviction for a violation of the specified
provision.
Notwithstanding the provisions of Subsection A above, under no circumstances shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a crime committed at the building, property or place in issue, and the crime was first reported by an owner or tenant of the property, place, building or, in the case of a multiunit building, the specific building unit where the crime occurred. Nor shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a domestic violence-related incident that occurred at the building unit, building, property or place in issue, which domestic violence incident was first reported by the victim thereof.
Actions, behavior, or conduct by person or persons at a particular
location that disturbs the peace.
The presumption of knowledge provided by Subdivision 1 of
§ 235.10 of the Penal Law shall be applicable to this chapter.
Notice, by mail or personal service of activities detailing a public
nuisance to the property owner of record shall be evidence of knowledge
of the public nuisance.
A parcel of land with or without buildings or structures
delineated by lot line and having access to a street as defined in
this chapter.
New York State Penal Law.
For the purposes of Article II of this chapter, a public nuisance shall be deemed to exist whenever, through violations of any of the laws or regulations, or commission of any of the business activity related offenses listed in Subsection C below, the building, property or place in issue, or immediately adjacent to the building, property or place in issue accumulates 12 or more points within a period of six months or 18 or more points within a period of 12 months in accordance with the point system described in the said Subsection C. Where more than one violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation. All references to statutes and codes in Subsection C below shall mean the statute or code provision in effect at the time this chapter is adopted and as may be amended from time-to-time.
Notwithstanding any contrary provisions of this chapter, under no circumstances shall points accumulate toward a public nuisance determination where violations are discovered during the course of an investigation by law enforcement or code enforcement personnel in response to a request for assistance by an owner or tenant of the property, place, building or, in the case of a multiunit building, the specific building unit where the violation occurred. Nor shall points accumulate toward a public nuisance determination where violations are discovered during the course of such an investigation in connection with a report of a domestic violence-related incident at the building unit, building, property or place in issue, where the victim of said domestic violence-related incident made the request for assistance. Notwithstanding the above, an owner, manager or tenant who participates in or persistently condones or allows such public nuisance to occur shall not be entitled to the protection of this Subsection B.
Violations are assigned point values as follows:
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of two points:
Sections 240.36 and 240.37 of the Penal Law - Loitering in the
First Degree.
Suffering or permitting the premises to become disorderly, including
suffering or permitting fighting or lewdness.
Chapter 130 of the Code of the Town of Union - Garbage, Rubbish, Refuse and Recyclables: three or more violations within a two-week period.
Article 1 of Chapter 71-5D of the Code of the Town of Union
regarding the regulation of dogs.
The Agriculture and Markets Law-dangerous dog: where a dog is
determined by a court to be a dangerous dog but no human was attacked
or injured.
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of four
points:
Disorderly conduct by an individual or individuals: three or
more violations within a two-week period.
Disturbances of the peace at a particular location: three or
more violations within a two-week period.
Article 225 of the Penal Law - Gambling Offenses.
The Alcoholic Beverage Control Law.
Section 415-a of the Vehicle and Traffic Law - Vehicle Dismantlers.
Sections 170.65 and 170.70 of the Penal Law - Forgery or Illegal
Possession of a Vehicle Identification Number.
Possession, use, sale or offer for sale of any alcoholic beverage in violation of Article 18 of the Tax Law, or of any cigarette or tobacco products in violation of Article 20 of the Tax Law.
The Agriculture and Markets Law-dangerous dog: where a dog is
determined by a court to be a dangerous dog and a human was attacked
or injured.
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of six points:
Article 178 of the Penal Law - Criminal Diversion of Prescription
Medications and Prescriptions.
Article 220 of the Penal Law - Controlled Substances Offenses,
including sale or distribution of the same.
Article 221 of the Penal Law - Offenses Involving Marijuana.
Sections 165.15, (6), (7), and (8), 165.40, 165.45, 165.50,
165.50, 165.52, 165.54, 165.71, 165.72 and 165.73 of the Penal Law
- Criminal Possession of Stolen Property.
Article 158 of the Penal Law - Welfare Fraud.
Section 147 of the Social Services Law - Food Stamp Program
Fraud.
Section 2024 of Title 7 of the United States Code - Illegal
Use of Food Stamps.
Allowing persons in/on the building, property or place in issue
in excess of occupancy limits established by the New York State Uniform
Building and Fire Prevention Code.
Section 3383 of the Public Health Law - Imitation Controlled
Substances.
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of 10 points:
Article 230 of the Penal Law - Prostitution Offenses.
Article 265 of the Penal Law - Firearms and other Dangerous
Weapons.
Sections 260.20 and 260.21 of the Penal Law - Unlawfully Dealing
with a Child.
Article 263 of the Penal Law - Sexual Performance by a Child.
Loitering for the purpose of engaging in a prostitution offense.
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of 12 points:
Penal Law violations considered to be more serious than those enumerated in Subsection C(4) of this section, including but not limited to murder, attempted murder, felony assault, felony attempted assault, felony arson, felony attempted arson, felony sex offenses, felony attempted sex offenses and felony crimes related to the unlawful manufacture of methamphetamine or other illegal drugs.
Oral, written or other documented evidence tending to show
or prove the truth of the matter asserted.
Conduct, or evidence of conduct, prohibited under this chapter.
A violation does not require criminal prosecution and conviction but
only a preponderance of evidence that the prohibited conduct is occurring
or has occurred. Evidence of prohibited conduct and/or illegal business
activity conduct may include, but is not limited to, police reports,
investigative reports, execution of search warrants, results of police
surveillance, arrest and/or conviction based on local and state and
federal laws, activities associated with trafficking of controlled
substances, finding of weapons and/or controlled substances on or
near the property, increased volume of traffic associated with the
business activities at the property. Notwithstanding the foregoing,
evidence obtained during the course of responding to a request for
assistance made by an owner or tenant of the at issue property, place,
building or, in the case of a multiunit building, the specific building
unit where the violation occurred, shall not constitute evidence of
prohibited conduct under this chapter, except an owner, manager or
tenant who participates in or persistently condones or allows such
public nuisance to occur shall not be entitled to the protection of
this paragraph.
An open area on a lot which is open to the sky and that is unoccupied by any land use or activity except as may otherwise be provided in Chapter 300, Zoning, of the Code of the Town of Union.
A.
Evidence. In any action under this chapter, evidence in admissible
form of the common fame and general reputation of the building, structure
or place, or of the inhabitants or occupants thereof, or of those
residing thereto, shall be competent evidence to prove the existence
of a property or building nuisance.
B.
Scienter. Admissible evidence of the general reputation of the building,
structure or place, or of the inhabitants or occupants thereof shall
be prima facie evidence of knowledge the nuisance and acquiescence
and participation therein and responsibility therefor, on the part
of the owners, lessors, lessees, and all those in possession of or
having charge of, as agent or manager or otherwise, or having any
interest in any form in the property, real or personal, used in conducting
or maintaining the property or building nuisance.
This article shall be applicable to all public nuisances as determined in accordance with the definitions contained in Article I of this chapter.
B.
Summons. The Town Attorney 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.
C.
Complaint.
(1)
The Town Attorney shall bring and maintain a civil proceeding in the name of the Town of Union in the Supreme Court of Broome 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 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, manager 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.
(2)
The venue of such action shall be in the county where the public
nuisance is being conducted, maintained or permitted.
(3)
The existence of an adequate remedy at law shall not prevent the
granting of temporary or permanent relief pursuant to this chapter.
(4)
The civil action shall be commenced by the filing of a summons and
complaint alleging the facts constituting the public nuisance.
(5)
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.
(6)
Any complaint filed under this chapter shall be verified or accompanied
by an affidavit(s) for purposes of showing that the owner or his or
her agent or manager has notice of the nuisance and has had an opportunity
to abate the nuisance. The Town Attorney will give the owner and any
designated property agent or manager written notice of the nuisance
and 10 business days to personally meet with and provide to Town Attorney
a written plan to abate the nuisance within 30 days. If part of the
plan to abate the nuisance is to evict a tenant, then the owner will
commence the eviction proceeding within 10 business days from the
meeting with Town Attorney, or on the earliest possible date allowed
by law, if such date is longer than 10 business days from the date
of said meeting. The complaint or affidavit shall contain a description
of the attempts by the Town Attorney to notify and locate the owner
of the property and/or the owner's agent. The complaint or affidavit
shall describe the factual circumstances giving rise to the determination
that the property constitutes a public nuisance.
D.
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 five days
thereafter with the Clerk of the court designated in the summons.
Service shall be complete upon such filing.
E.
Service of summons on other defendants. 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.
F.
Notice of pendency. With respect to any action commenced or to be commenced pursuant to this chapter, the Town may file a notice of pendency pursuant to the provisions of Article 65 of the Civil Practice Law and Rules.
G.
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 Town of Union Assessor and/or
the office of the Clerk of the County of Broome.
H.
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.
I.
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, condoned or permitted a public nuisance defined in Article I of 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 Town. Upon recovery, such penalty shall be paid into the general fund of the Town.
J.
Enforcement. A judgment pursuant to this chapter shall be enforced
by the Town of Union and the office of the Town Attorney.
A.
A judgment awarding a permanent injunction, pursuant to this chapter,
may direct the Town of Union through its departments or by third-party
contractors to seize and remove from the building, structure and/or
place all material, equipment and instrumentalities used in the creation
and maintenance of the public nuisance and shall direct the sale by
the Town of Union 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 Town.
B.
A judgment awarding a permanent injunction pursuant to this chapter
may authorize agents of the Town to remove and/or correct violations
of the Town Code. Any and all costs associated with said removal or
repairs shall become a lien against the property and shall have priority
over any prior mortgage or other lien that exists on said property,
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 or place by the Town of Union, to the extent necessary to abate the nuisance, and shall direct the Town of Union to post a copy of the judgment and a printed notice of such closing conforming to the requirements of § 141-8H of this chapter. Any person who defaces, destroys or removes such a posted judgment or notice while it remains in force, in addition to any other punishment prescribed by law, shall be guilty of a violation punishable 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.
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, condoned 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 Town of Union pursuant to a judgment providing for
the closing of a building shall not constitute an act of possession,
ownership or control by the Town of Union 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 $5,000, imprisonment not exceeding six months,
or both.
H.
Upon the request of the Town Attorney or the Town Board, the New
York State Police or the Broome County Sherriff's 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
Broome County Clerk being the county wherein the building, structure
or place is located. Every such nuisance abatement lien shall have
priority over 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 Town in investigating, bringing and maintaining
the action, including reasonable attorney's fees and court costs.
A.
Preliminary injunction.
(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 a preliminary injunction shall direct a trial of
the issues at the earliest possible time. Where a 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.
(2)
Enforcement of preliminary injunction. A preliminary injunction shall
be enforced by the Town Attorney and/or the New York State Police
or the Broome County Sherriff's 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 Town Attorney 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 Town Attorney shall show by clear and convincing evidence that
a public nuisance within the scope of this chapter is being conducted,
maintained, condoned or permitted and that the public health, safety
or welfare requires an immediate, temporary closing order, the court
may issue without notice a temporary order closing only so much of
the building, structure or place as is necessary to temporarily abate
the nuisance that is being conducted, maintained or permitted, pending
a subsequent order of the court granting or denying the preliminary
injunction. 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 thereafter.
(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 Town Attorney 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 Town Attorney and the New York State Police.
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 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 closing order
and/or a temporary restraining order shall, upon service of the order,
command all persons present in the portion of the building, property
or place that is subject to the order to vacate the premises forthwith.
Upon the vacation of the relevant portion of the building, property
or place, the portion of said building, property or place 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 Broome 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. Any person who defaces, destroys
or removes such a posted order 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 $1,000 or by imprisonment
not exceeding 90 days, or by both, provided such order or notice contains
therein a notice of such penalty. The New York State Police or Broome
County Sherriff's Department shall, upon the request of the Town
Attorney or the Town Board, assist in the enforcement of this subsection.
I.
Intentional disobedience of or resistance to temporary restraining
order or injunction. Intentional disobedience of, or resistance to,
a temporary restraining order, preliminary or permanent injunction
shall, in addition to any other punishment prescribed by law, be punishable,
on conviction by a fine of not more than $5,000 or by imprisonment
not exceeding six months or by both.
J.
Temporary restraining order or preliminary injunction bond may be
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 may be vacated by the court upon notice
to and right to object by the Town Attorney when a 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. In the event the court should
issue a permanent injunction against defendant(s), he/she/they shall
pay to the Town its actual costs, expenses and disbursements in investigating,
bringing and maintaining the action, including reasonable attorney's
fees and court costs.
(2)
An order vacating a temporary closing order or a temporary restraining
order shall include a provision authorizing the Town or its authorized
officers, agents or representatives to periodically inspect, without
notice, the subject building, structure or place, during the pendency
of the action, for the purpose of ascertaining whether or not the
public nuisance has been resumed.
(3)
Willful failure to cooperate with an inspection provision of an order
vacating a temporary restraining order or temporary closing order,
in addition to any other punishment prescribed by law, shall be punishable
on conviction by a fine of not more than $5,000, imprisonment not
exceeding six months, or both. The New York State Police or Broome
County Sherriff's Department shall, upon the request of the Town,
assist in the enforcement of an inspection provision of an order vacating
a temporary restraining order or temporary closing order.
B.
Vacating a preliminary 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, as
determined by the court, upon a motion on notice to the Town Attorney,
a temporary injunction or a temporary restraining order may 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 Town Attorney shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained, condoned 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 article pending order of the court granting or refusing the preliminary injunction and until further order of the court. Application for such a temporary restraining order shall be made pursuant to § 141-8 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 Town Attorney and the New York State Police.
A.
Appointment, duration and removal. In any action wherein the complaint
alleges that the public 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 faithful 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 Town of Union.
