[HISTORY: Adopted by the Board of Trustees of the Village
of Sleepy Hollow 1-21-1999 by L.L. No. 2-1999 (Ch. 37, Part 2, of
the 1965 Code). Amendments noted where applicable.]
A.
The Village Board of Trustees hereby finds that buildings and places
being employed for the illegal sale of controlled substances and for
the promotion of prostitution and other public nuisances exist within
the Village of Sleepy Hollow; and that real estate used for improper
purposes can have a devastating effect on the surrounding community;
that these public nuisances exist in occupied and vacant buildings
and on occupied and vacant developed and undeveloped real estate;
that these public nuisances exist as a result of the operation of
certain businesses, establishments and use of property in flagrant
violation of pertinent provisions of penal laws, health laws, licensing
laws, environmental laws and laws relating to the sale and consumption
of alcoholic beverages; and that all of these public nuisances interfere
with the interest of the public in the quality of life and total community
environment, the tone of commerce in the Village, property values
and the public health, safety and welfare of the residents of this
Village.
B.
The Board further finds and determines that the existence of real
estate with public nuisances that is sold in the Village, together
with other public nuisances, is detrimental to the health, safety
and welfare of the residents of the Village.
C.
Therefore, the purpose of this chapter is to create one standardized
procedure for securing legal and equitable remedies, without prejudice,
to the use of procedures available under existing and subsequently
enacted laws; to strengthen existing laws so as to assist the Westchester
County District Attorney, Westchester County Attorney's office,
Westchester County Executive, Westchester County and the Village of
Sleepy Hollow as well as all local police departments in preventing
buildings, residences, premises and real estate within the Village
of Sleepy Hollow from being used in such a way as to constitute a
public nuisance.
As used in this chapter, the following terms shall have the
meanings indicated:
First notice that prohibited conduct has occurred shall be given
to an owner of the affected real estate by means of certified or registered
mail, return receipt requested. Where there are multiple owners, said
notice shall be sent to at least one of the owner's addresses
as recorded with the Westchester County Clerk. If for any reason the
return receipt is not received by the Village of Sleepy Hollow, then
the notice requirement shall be fulfilled by affixing the notice to
the door of at least one of the owner's of the premises addresses
as recorded with the Westchester County Clerk. The notice must contain
a statement of the date or dates upon which prohibited conduct took
place on the property, the nature of the prohibited conduct and a
listing of all conduct or occurrences that are considered prohibited
conduct under this chapter. It must inform the owner of his or her
obligation to cause the prohibited conduct to cease and advise the
owner that upon the further occurrence of any prohibited conduct,
action pursuant to this Nuisance Abatement Law will be commenced by
the Village of Sleepy Hollow.
Final notice shall be sent to an owner when there is a further
occurrence of prohibited conduct within one year of the first notice
being given to an owner. The final notice must be sent by the authorized
methods for a first notice and must contain the same information as
contained in the first notice. It must further inform an owner of
the further occurrence of prohibited conduct and inform an owner that
he or she is required within five days to cause the prohibited conduct
to cease and, if necessary, to make an application to a court of appropriate
jurisdiction to accomplish the abatement of the prohibited conduct
by any and all nonowner occupants. The notice must further state that
if an owner does not take such action within five days of notice,
the Village of Sleepy Hollow, pursuant to the provisions of this chapter,
will bring necessary procedures for any remedies set forth in this
chapter as though the Village were the owner of the premises.
Any person, individual, association, entity or corporation
in whose name the affected real estate is recorded with the Westchester
County Clerk, Division of Land Records.
Any conduct or occurrence that is in violation of the following
articles or sections of the New York State Penal Law:
Article 220 (controlled substances).
Article 230 (prostitution).
Article 225 (gambling).
Sections 221.40, 221.45, 221.50 and 221.55 (criminal sale of
marijuana in the fourth degree through first degree).
Sections 165.45, 165.50, 165.52 and 165.54 (criminal possession
of stolen property in the fourth degree through first degree).
Sections 165.10 and 165.11 (auto stripping in the second and
first degrees).
Section 170.65 (forgery of a vehicle identification number).
Section 170.70 (illegal possession of a vehicle identification
number or plate).
Any conduct either unlawful in itself or unreasonable under
all the circumstances that creates or results in the maintaining of
a condition which endangers the safety or health of a considerable
number of persons or creates or results in the maintenance of any
premises or place where persons gather for the purpose of engaging
in unlawful conduct.
Any building, structure or place, used for the purposes of business
activity or enterprise, which is not licensed as required by law.
Any building, structure or place where an owner thereof has
been given first notice that prohibited conduct has occurred therein
or thereon and within a period of one year after said first notice
has been given there is an additional occurrence of any prohibited
conduct therein or thereon.
A.
Upon the request of the Mayor, the Board of Trustees or Chief of
Police, the Building Department is authorized to send notice that
the prohibited conduct has occurred.
B.
After first notice has been sent, the Mayor or Chief of Police shall
inform the Building Department of the recurrence of prohibited conduct
at the affected property. Thereafter, the Building Department shall
send final notice to an owner of the affected premises. If no corrective
measures are diligently pursued by the owner(s) within the five-day
time period provided therein, the Building Department is authorized
to bring and maintain a civil action or proceeding in the name of
the Village of Sleepy Hollow in any court of appropriate jurisdiction
to seek remedies as hereinafter provided.
The Building Department is authorized to bring and maintain
a civil action or special proceeding in the name of the Village in
a court of competent jurisdiction for necessary relief, including,
but not limited to, temporary, preliminary and/or permanent equitable
remedies, which may include orders to make improvements and/or alterations
to a premises; eviction of tenants, ejection of occupants and imposition
of civil penalties; and the recovery of the costs of the action, including,
but not limited to, investigation costs, litigation expenses and reasonable
attorneys fees, or for such other remedies as may be necessary to
prevent or enjoin any public nuisance from existing at any building,
residence, premises or place within the Village of Sleepy Hollow.
These remedies may be sought singly or in combination with each other
in a court of competent jurisdiction. The owner, lessor and lessee
of a building, residence, premises or place where a public nuisance
is being conducted, maintained or permitted shall be named as defendants
or respondents in the action special proceeding. The existence of
an adequate remedy at law shall not prevent the granting of temporary
or permanent relief pursuant to this chapter. The enforcement of all
remedies obtained pursuant to this chapter shall be carried out by
the Mayor, the Board of Trustees, the Building Inspector or the Chief
of Police.
A.
The summons or notice. The Building Department shall name as defendants
or respondents the building, residence, premises or place wherein
a public nuisance exists because prohibited conduct is being conducted,
maintained or permitted by describing it by block, lot number, street
address and at least one of the owners of some part of or interest
in the property.
B.
In rem jurisdiction. In rem jurisdiction shall be complete over the
building, residence, premises or place wherein a public nuisance exists
because prohibited conduct is being conducted, maintained or permitted
by affixing the summons or notice to the door of the building, residence,
premises or place and by mailing the summons or notice by certified
or registered mail, return receipt requested, to one of the owners
of some part of or interest in that property. Proof of service shall
be filed within two days thereafter with the Clerk of the Court designated
in the summons or notice. Service shall be complete upon such filing.
C.
Service of summons or notice on other defendants or respondents.
Defendants or respondents other than the building, residence, premises
or place wherein a public nuisance exists because prohibited conduct
is being conducted, maintained or permitted shall be served with the
summons or notice as provided in the New York Civil Practice Law and
Rules (hereinafter referred to as "CPLR").
D.
Notice of pendency. With respect to any action or proceeding commenced
or to be commenced pursuant to this section, the Building Department
may file a notice of pendency pursuant to the provisions of Article
65 of the CPLR.
E.
Presumption of ownership. The person or entity(ies) in whose name
the real estate affected by the action or special proceeding is recorded
in the office of the County Clerk shall be presumed to be the owner
thereof.
F.
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 exists because
prohibited conduct is 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, residence, premises or place.
G.
Penalty. If upon order or judgment in an action or special proceeding
under this chapter a finding is made that the defendant(s) has intentionally
conducted, maintained or permitted a public nuisance defined in this
chapter, a civil penalty, to be included in the judgment, may be awarded
in an amount not to exceed $350 for each day it is found that the
defendant or respondent intentionally conducted, maintained or permitted
prohibited conduct to exist at the building, residence, premises or
place. Upon recovery, such penalty shall be paid into the general
fund of the Village of Sleepy Hollow. Defendants or respondents are
jointly and severally liable for such penalty.
Pending request for any remedy as provided for under this chapter,
the Building Department may apply for and the court may grant a preliminary
injunction enjoining a public nuisance within the scope of this chapter
and the person or persons engaging in or permitting prohibited conduct.
A temporary closing order and/or 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 chapter exists because prohibited conduct is being
engaged in or conducted, maintained or permitted.
A.
If, on a motion for a preliminary injunction pursuant to § 280-6 of this chapter, the Building Department shall show by clear and convincing evidence that a public nuisance within the scope of this chapter exists because prohibited conduct 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, residence, premises or place wherein the public nuisance exists because prohibited conduct is being conducted, maintained or permitted may be granted without notice, pending an 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 CPLR.
A.
Generally. If, on a motion for preliminary injunction pursuant to § 280-6 of this chapter, the Building Department shall show by clear and convincing evidence that a public nuisance within the scope of this chapter exists because prohibited conduct 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 CPLR.
A.
Generally. If on a motion for a preliminary injunction the Building
Department submits evidence warranting both a temporary closing order
and a temporary restraining order, the court shall grant both orders.
B.
Inventory upon service of temporary closing order and temporary restraining
order. The officers serving a temporary closing order or 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, residence, premises 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.
C.
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, residence, premises or
place to vacate forthwith. Upon the building, residence, premises
or place being vacated, it shall be securely locked and all keys delivered
to the fee owner, lessor or lessee of the building, residence, premises
or place involved. If the fee owner, lessor or lessee is not at the
building, residence, premises 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.
D.
Posting of temporary closing order and temporary restraining order.
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 a public nuisance exists because prohibited conduct 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 floors at entrances of
such premises 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. Furthermore, 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 $350 or by imprisonment not exceeding six
months, or by both, provided that such order or notice contains therein
a notice of such penalty.
E.
Intentional disobedience of or resistance to a temporary closing
order or temporary restraining order, in addition to any other punishment
prescribed by law, shall be punishable, on conviction, as a violation
with a fine of not more than $350 or imprisonment not exceeding six
months, or by both.
A.
A temporary closing order or temporary restraining order shall be
vacated, upon notice to the Building Department, if the defendant
or respondent shows by affidavit or such other proofs as may be submitted
that the public nuisance within the scope of this chapter which existed
because prohibited conduct was being conducted, maintained or permitted
has been abated. An order vacating a temporary closing order shall
include a provision authorizing agencies of the Village to inspect
the building, residence, premises 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. It shall be the obligation
of the defendant or respondent applying to the court for an order
vacating a temporary closing order or temporary restraining order
to prove by affidavit or such other proof deemed appropriate by the
court that the intended occupants of the building have been advised
of and consent to a provision authorizing an agency of the Village
to inspect without notice as provided herein. 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, as a violation with a fine of not more than $350 or imprisonment
not exceeding six months, or by both.
B.
A temporary closing order or a temporary restraining order may be
vacated by the court, upon notice to the Building Department, when
the defendant or respondent gives an undertaking and the court is
satisfied that the public health, safety or general 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,
residence, premises or place where the public nuisance is being conducted,
maintained or permitted or in such other amount as may be fixed by
the court.
A.
Generally. In any action or special proceeding under this chapter,
the court may, upon motion on notice by the plaintiff or petitioner,
appoint a temporary receiver to manage and operate the property during
the pendency of the action or proceeding. 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. Any fees due and owing the receiver
for services rendered shall be chargeable to the defendant or respondent.
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 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 to maintain the premises safely,
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
party.
When the defendant or respondent gives an undertaking in an
amount fixed by the court, together with costs, disbursements and
the projected actual costs of the prosecution of the action to be
determined by the court, upon a motion on notice to the Building Department,
a preliminary injunction may be vacated by the court. The provisions
of the CPLR governing undertakings shall be applicable to this chapter.
A.
A judgment awarding a permanent injunction pursuant to this chapter
may direct the County Sheriff to seize and remove from the building,
residence, premises or place all material, equipment and instrumentalities
used in the creation and maintenance of the public nuisance and shall
direct the sale by the County Sheriff of such property in the manner
provided for the sale of personal property under execution pursuant
to the provisions of the CPLR. The net proceeds of any such sale,
after deduction of the lawful expenses involved, shall be paid into
the general fund of the Village of Sleepy Hollow.
B.
A judgment awarding a permanent injunction pursuant to this chapter may direct the closing of the building, residence, premises or place by the County Sheriff to the extent necessary to abate the nuisance and shall direct the County Sheriff to post a copy of the judgment and a printed notice of such closing conforming to the requirements of § 280-9D 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 $350 or by imprisonment not exceeding six months, 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, residence, premises 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, residence, premises or place. Any closing by the Sheriff pursuant to the provisions of this section shall not constitute an act of possession, ownership or control by the Sheriff of the closed premises.
C.
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 as
a violation with a fine of not more than $350 or by imprisonment not
exceeding six months, or both.
D.
A judgment rendered awarding a permanent injunction pursuant to this
chapter shall constitute a lien upon the building, residence, premises
or place named in the complaint in such action, such lien to date
from the time of filing a notice of its pendency in the office of
the Clerk of the County wherein the building, residence, premises
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.
E.
A judgment awarding a permanent injunction pursuant to this chapter
shall provide for the costs and disbursements allowed by the CPLR
and, in addition, the Village of Sleepy Hollow shall be entitled,
upon satisfactory proof by affidavit or such other evidence as may
be submitted, to its actual costs, expenses and disbursements in investigating,
bringing and maintaining the action. The defendants and/or respondents
are jointly and severally liable for any such costs, expenses and
disbursements.
A.
Pursuant to the provisions of this chapter, the Building Department
is authorized to send notice and, if necessary, to commence and maintain
an action or proceeding for the ejectment or eviction of the occupant(s)
or tenant(s) at any building, residence, premises or place where a
public nuisance exists.
B.
In any action or proceeding for ejectment or eviction, brought by
the Building Department pursuant to this section, at least one of
the owners, and any person(s) in possession, shall be named and served
as defendant or respondent.
C.
Before the Building Department may commence an action or proceeding pursuant to this section, the Building Department shall complete all notice requirements provided for in the definition of "notice" in § 280-2. Upon the failure of the owner or landlord to act pursuant to the requirements set forth in the notice, the Building Department is authorized to commence an action or proceeding in accordance with this chapter and as set forth in the notice. Such action or proceeding shall have precedence over any similar proceeding thereafter brought by such owner or landlord or to one theretofore brought by him and not prosecuted diligently and in good faith.
D.
A court granting an eviction or ejectment pursuant to this section
may, in addition to any other order provided by law, make an order
imposing and requiring the payment by the defendant or respondent
of a civil penalty not exceeding $350 for each day (after first notice
has been given) that the public nuisance was allowed to continue and
may also order the payment of the costs to the Village of Sleepy Hollow
in investigating, bringing and maintaining the action and the recovery
of reasonable attorneys' fees by the Village of Sleepy Hollow.
In any such case, multiple defendants or respondents shall be jointly
and severally liable for any payment so ordered, and the amounts of
such payments shall constitute a lien upon the subject building, residence,
premises or place. Any penalties or fees shall be payable to the Village
of Sleepy Hollow and shall become a part of the general fund of the
Village.
E.
The commencement of a proceeding under this section 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
Sleepy Hollow.
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 Sleepy Hollow.
