Advisory NoticeSubject: Nuisance Abatement CasesOverview of Nuisance Abatement
The Nuisance Abatement Law is a powerful tool that allows the police to use civilremedies to ght crime. It allows the police acting under designation of the New York Cit Corporation Counsel! to bring actions in "tate "upreme Court seeking the #udicial closing of locations where criminal activities occur.
The NY%& uses theseactions to combat drug dealing! prostitution! and other illegal activit. The New York Cit Administrative Code denes a public nuisance as! among otherthings! a building where there have been three or more violations of the %enal Lawrelated to controlled substance o'enses! marihuana o'enses! and gamblingo'enses in the course of a ear.
Nuisance abatement actions do not need to bepredicated upon arrests and convictions. The statute allows actions to becommenced upon a showing that a public nuisance e)ists.
Tpicall! after observing three or more violations under the %enal Law +%.L. ((,!(($! ((-! the police commence a nuisance abatement action b submitting asummons and veried complaint. The law permits the police to commence such anaction with an
ex parte
motion for a preliminar in#unction! temporar closing order!or temporar restraining order.
0nce the #udge signs the order to show cause! theparties are directed to appear within das for a hearing regarding wh the premisesshould not be closed. 0ftentimes! the defendants do not appear and do not answerthe complaint. The Cit ma then le a motion for summar #udgment! and onceclosure of the premises is granted! the sheri' ma remove all the occupants fromthe premises. In other instances! defendants ma reach a settlement with the Cit.
Concerns Related to Nuisance Abatement Actions
1ecentl! there has been public concern that nuisance abatement actions havecreated unintended conse2uences! as individuals who are not involved in criminalactivit are evicted from their homes. 3hile nuisance abatement actions matarget bodegas! groceries! restaurants! and other premises! the actions that havetargeted apartments as drug sale locations have elicited the most concern. "ome of the concerns that have arisen include4 $ 3illiam 5. 6ratton! New York Cit %olice &epartment7s Civil 8nforcement of 9ualit:of:Life Crimes! * 5.L. ; %ol7 //<! /-( +$==-. ( N.Y. Admin. Code <:<,* +g.* 3illiam 5. 6ratton! New York Cit %olice &epartment7s Civil 8nforcement of 9ualit:of:Life Crimes! * 5.L. ; %ol7 //<! /-* +$==-./
Id.,
N.Y. Admin. Code <:<,<! <:<,=! <:<$,.$
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&ue to the
ex parte
nature of the proceeding! the occupants of the apartments and homes do not have notice that their dwelling place is being closed.
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The complaints attached to the 0rder to "how Cause are based on the personal knowledge of condential informants. The CIs rarel identif the individuals from whom the bought controlled substances. The a>davits are ver general and do not reference an individual defendant.
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?an cases are commenced against 5ohn &oe! so there are virtuall no claims in the a>davit of merit against individuals.
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Named defendants are the occupants of the propert! and ver few cases involve an direct criminal allegations against the named defendants.
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"ervice of the summons! complaint and order to show cause often is not veried. The a>davit of service is based on nail:and:mail! so there is no proof that defendants receive actual notice. The NY%& acts as the a>ant of service! which ma pose a con@ict of interest.
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If the named defendants do not reside on the propert! the hearing date ma have passed before the receive actual notice of it.
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0n the rare occasions when a defendant appears on the hearing date! virtuall ever time there is a stipulation of settlement where the defendants waive all of their rights! defendants hold NY%& harmless for an claims that the ma have against it! and defendants sign the stipulations without the benet of counsel. &ue to these fairness concerns! it is benecial to look at the courtroom procedures that some #udges have implemented when handling these matters.
Principles Governing a easured Approac! to Nuisance Abatement Actions
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Limit the grant of
ex parte
closures and T10s of homes 3hen a closure involves an apartment or other dwelling place! be careful when ordering closure because there ma be other famil members or residents who are innocent of an crime who will su'er the conse2uences of the closure. Limit the grant of
ex parte
relief when evidence is old : In cases where apartments are claimed to be drug sale locations and the evidence ma be stale! some #udges do not issue Temporar 1estraining 0rders or order closure. The individuals responsible for the drug violations ma no longer be residing at the address! and closure ma a'ect innocent parties.
It is not necessaril benecial to en#oin legal activit without ordering closure In those cases! the Cit ma still post notices on the premises! saing that the premises is now en#oined. "ome #udges also refrain from ordering the en#oinment of illegal activit on an
ex parte
motion.
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Brant closures where the evidence of criminal activit is based on rsthand knowledge ?an of the a>davits submitted b the police are based on statements with multiple laers of hearsa and with unidentied condential informants. 3hen the evidence of criminal activit can be recounted b a person with direct knowledge! it is considered much more reliable. Look for an ongoing criminal enterprise with recent activit and where the evidence is clear and convincing.D
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3hen negotiating a settlement in court! put it on the record before a court reporter and hold an allocution. "ometimes stipulations of settlement are (
