Section 7-705
§ 7-705 Applicability. This subchapter shall be applicable to the
public nuisances defined in subdivisions (a), (d), (e), (f), (g), (h),
(i), (j), (k), (l), (m), (n) and (r) of section 7-703 of this chapter.
Section 7-706
§ 7-706 Action for permanent injunction. (a) Generally. Upon the
direction of the mayor, or at the request of the head of a department or
agency of the city, or at the request of a district attorney of any
county within the city, or at the request of a member of the city
council with respect to the public nuisances defined in subdivisions
(a), (b), (c), (g), and (h) and section 7-703 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
to permanently enjoin a public nuisance within the scope of this
subchapter, and the person or persons conducting, maintaining or
permitting the public nuisance from further conducting, maintaining or
permitting the public nuisance. The owner, lessor and lessee of a
building, erection or place wherein the public nuisance as being
conducted, maintained or permitted shall be made defendants in the
action. The venue of such action shall be in the county where the public
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 subchapter.
(b) The summons; the caption; naming the building, erection or place
as defendant. The corporation counsel shall name as defendants the
building, erection or place wherein the public nuisance is being
conducted, maintained or permitted, by describing it by block, lot
number and street address and at least one of the owners of some part of
or interest in the property.
(c) In rem jurisdiction over building, erection or place. In rem
jurisdiction shall be complete over the building, erection or place
wherein the public nuisance is being conducted, maintained or permitted
by affixing the summons to the door of the building, erection or place
and by mailing the summons by certified or registered mail, return
receipt requested, to one of the owners of some part of or 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, erection 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.
(e) Notice of pendency. With respect to any action commenced or to be
commenced by him or her pursuant to this subchapter, the corporation
counsel may file a notice of pendency pursuant to the provisions of
article sixty-five 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 office of the city register or
the county clerk, 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 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, erection or place.
(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 public nuisance defined in this chapter, a
penalty, to be included in the judgment, may be awarded in an amount not
to exceed one thousand dollars for each day it is found that the
defendant intentionally conducted, maintained or permitted the public
nuisance. Upon recovery, such penalty shall be paid into the general
fund of the city.
Section 7-707
§ 7-707 Preliminary injunction. (a) Generally. Pending an action for a
permanent injunction as provided for in section 7-706 of this
subchapter, the court may grant a preliminary injunction enjoining a
public nuisance within the scope of this subchapter 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 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
public nuisance within the scope of this subchapter 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 public nuisance within the scope of this subchapter is being
conducted, maintained or permitted.
(b) Enforcement of preliminary injunction. A preliminary injunction
shall be enforced by the city agency at whose request the underlying
action is being brought. In the event the underlying action is being
brought at the direction of the mayor, or at the request of several city
agencies or by the corporation counsel, on his or her own initiative, or
upon the request of a district attorney, or a member of the city
council, the order shall be enforced by the agency designated by the
mayor. The police department shall, upon the request of the agency
involved or upon the direction of the mayor, assist in the enforcement
of the preliminary injunction.
(c) Preliminary injunctions, inventory, closing of premises, posting
of orders and notices, offenses. If the court grants a preliminary
injunction, the provisions of section 7-711 of this subchapter shall be
applicable.
Section 7-708
§ 7-708 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 public nuisance within the scope of this subchapter.
Section 7-709
§ 7-709 Temporary closing order. (a) Generally. If, on a motion for a
preliminary injunction pursuant to section 7-707 of this subchapter, the
corporation counsel shall show by clear and convincing evidence that a
public nuisance within the scope of this subchapter 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, erection or place wherein the public
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.
Section 7-710
§ 7-710 Temporary restraining order. (a) Generally. If, on a motion
for a preliminary injunction pursuant to section 7-707 of this
subchapter, the corporation counsel shall show by clear and convincing
evidence that a public nuisance within the scope of this subchapter 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 public nuisance and
from further conducting, maintaining or permitting the public 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.
Section 7-711
§ 7-711 Temporary closing order; temporary restraining order.
(a) Generally. If on a 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 agency at
whose request the underlying action is being brought. In the event the
underlying action is being brought at the direction of the mayor, or at
the request of several city agencies or by the corporation counsel on
his or her own initiative, or upon the request of a district attorney,
or a member of the city council, the order shall be enforced by the city
agency designated by the mayor. The police department shall, upon the
request of the agency involved or upon the direction of the mayor,
assist in the enforcement of a temporary closing order or a temporary
restraining order.
(c) Inventory upon service of temporary closing orders and temporary
restraining orders. The officers 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 public nuisance within the scope of this
subchapter and shall enter upon the building, erection 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 serving a temporary closing order shall, upon service of the
order, command all persons present in the building, erection or place to
vacate the premises forthwith. Upon the building, erection 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, erection or
place involved. If the fee owner, lessor or lessee is not at the
building, erection 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, in which
event, the officers 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 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
closing 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 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 office or agency posting
the notice. In addition, where a temporary restraining order has been
granted, the officers 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 five hundred dollars or by imprisonment not
exceeding ninety days, or by both, provided such order or notice
contains therein a notice of such penalty. The police department shall,
upon the request of the agency involved or upon the direction of the
mayor, assist in the enforcement of this subdivision.
(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 one thousand
dollars or by imprisonment not exceeding six months or by both.
Section 7-712
§ 7-712 Temporary closing order; temporary restraining order;
defendant's remedies. (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 public nuisance within the scope of this
subchapter 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, erection 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 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 five hundred
dollars or by imprisonment not exceeding six months, or by both. The
police department shall, upon the request of the agency involved or upon
the direction of the mayor, 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, erection 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.
Section 7-713
§ 7-713 Temporary receiver. (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 acknowledgements 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
party.
Section 7-714
§ 7-714 Permanent injunction. (a) A judgment awarding a permanent
injunction pursuant to this subchapter may direct the sheriff to seize
and remove from the building, erection 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
subchapter may authorize agents of the city to forthwith remove and
correct construction and structural alterations as provided in section
26-246 of this code.
(c) A judgment awarding a permanent injunction pursuant to this
subchapter may direct the closing of the building, erection 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 subdivision (e) of
section 7-711 of this subchapter. 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 two hundred fifty dollars or by imprisonment not
exceeding fifteen days, or by both, provided 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 subdivision. 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,
erection 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, erection or place. A closing by the sheriff pursuant to
the provisions of this subdivision shall not constitute an act of
possession, ownership or control by the sheriff of 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 five hundred dollars, or by imprisonment not
exceeding six months, or by both.
(e) Upon the request of the agency involved or upon the direction of
the mayor, 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 subchapter shall be and become a lien upon the building, erection
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 wherein the building, erection 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.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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