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Village of Endicott, NY
Broome County
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Table of Contents
Table of Contents
This article shall be applicable to the public nuisances defined in Article I of this chapter.
A. 
The Village Attorney may bring and maintain a civil proceeding in the name of the Village of Endicott for the following types of relief:
(1) 
Permanent injunction.
(2) 
Temporary closing order.
(3) 
Temporary restraining order.
(4) 
Temporary injunction.
(5) 
Civil penalties.
B. 
The summons. The Village 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. 
The complaint.
(1) 
The Village Attorney shall bring and maintain a civil proceeding in the name of the Village of Endicott 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, § 190-3 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.
(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 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 of his or her agent has notice of the nuisance and has had an opportunity to abate the nuisance. The Village Attorney will give the owner, and any designated property manager, written notice of the nuisance and 10 business days to personally meet with and provide to Village 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 Village Attorney. 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. The complaint or affidavit shall describe the adverse impact associated with the property on the surrounding neighborhood.
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 two 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 Village Attorney 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 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 Village. Upon recovery, such penalty shall be paid into the general fund of the Village.
J. 
Enforcement. A judgment pursuant to this chapter shall be enforced by the Endicott Police Department and the office of Village Attorney.
A. 
A judgment awarding a permanent injunction, pursuant to this chapter, may direct the Endicott Police Department or its designee 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 Endicott Police Department or its designee 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 Village.
B. 
A judgment awarding a permanent injunction pursuant to this chapter may authorize agents of the Village of Endicott to forthwith remove and correct construction and structural alterations in violation of Chapter 160 Village Housing Standards Code. 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, place or part thereof by the Endicott Police Department or its designee, to the extent necessary to abate the nuisance, and shall direct the Endicott Police Department or its designee to post a copy of the judgment and a printed notice of such closing conforming to the requirements of § 190-8H 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 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 Endicott Police Department or its designee pursuant to this section shall not constitute an act of possession, ownership or control by the Endicott Police Department or its designee 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, or by imprisonment not exceeding six months, or by both.
H. 
Upon the request of the Village Attorney or the Board of Trustees, the Endicott Police Department or its designee 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 Village 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 Village Attorney and the Endicott Police Department or its designee.
(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 Village 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 Village Attorney 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 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 Village 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 Village Attorney and the Endicott Police Department or its designee.
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 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. 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 such order or notice contains therein a notice of such penalty. The Endicott Police Department or its designee shall, upon the request of the Village Attorney or the Board of Trustees, assist in the enforcement of this subsection.
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 $5,000, 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 may be vacated by the court, upon notice to the Village Attorney, 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 Village, in the event a judgment of permanent injunction is obtained, its actual costs, expenses and disbursements in investigating, bringing and maintaining the action.
(2) 
An order vacating a temporary closing order, or a temporary restraining order, shall include a provision authorizing agencies of the Village of Endicott 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, no conviction, by a fine of not more than $5,000, or by imprisonment not exceeding six months, or by both. The Endicott Police Department or its designee shall, upon the request of the Village Attorney or the Board of Trustees, assist in the enforcement of an inspection provision of an order vacating a temporary restraining order.
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 Village Attorney, 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 Village Attorney 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 article, 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 § 190-9 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 Village Attorney and the Endicott Police Department or its designee.
E. 
Preliminary injunction; inventory. If the court grants a preliminary injunction, the provisions of the § 190-8 of this article shall be applicable.
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 Village of Endicott.