Village of Windsor NY
Home
Codes
Contact
Calendar
Organizations
Youth Programs
Board Minutes
DPW
 
  Village of Windsor

 

CHAPTER 68

PROPERTY AND BUILDING NUISANCE REFORM

[Amended 9-4-2001; Local Law #6-2001]

 

ARTICLE I

 Purpose, Terminology and Presumptions

 

§ 68-1.    Legislative findings and purpose.

§ 68-2.    Title. 

§ 68-3.    Definitions.

§ 68-4.    Evidence and presumptions.

 

ARTICLE II

Remedies

 

§ 68-5.    Applicability. 

§ 68-6.    Remedies enumerated. 

§ 68-7.    Procedure; presumptions; penalties for offenses; enforcement.

§ 68-8.    Judgment awarding permanent injunctions.

§ 68-9.    Preliminary injunctions, temporary closing orders and temporary restraining orders. 

§ 68-10.  Vacation of temporary restraining orders and preliminary injunctions.

§ 68-11.  Preliminary injunction of bulk transfer.

§ 68-12.  Temporary receiver.

§ 68-13.  No exclusive remedy.      

                                                                                      

[HISTORY: Adopted by the Board of Trustees of the Village of Windsor 4-9-2001 as L.L. No.6-2001]

  

§ 68-1. Legislative findings and purpose.

The Village Board of Trustees of the Village of Windsor finds that public nuisances exist in the Village of Windsor in the operation of certain commercial establishments and in the use or alteration of residential and commercial property in flagrant violation of the building code, zoning regulations, health laws, penal laws regulating obscenity, prostitution and related conduct, gambling, controlled substances and dangerous drugs, possession of stolen property and of licensing laws.  All of these interfere with the interest of the public in property values, public health, safety and welfare and the quality of life and the community environment.  The Board further finds that the continued occurrence of such activities and violations is detrimental to the health, safety and welfare of the people of the Village of Windsor and of the businesses thereof and visitors thereto.  It is the purpose of the Board of Trustees to create one standardized procedure for securing legal and equitable remedies relating to the subject matter encompassed by this chapter, without prejudice to the use of procedures available under existing and subsequently enacted laws, and to strengthen existing laws on the subject.

                        

§ 68-2     Title. 

This chapter shall be known as the “Property and Building Nuisance Reform Local Law.”

                       

§ 68-3     Definitions. 

              As used in this chapter, the following terms shall have the meanings indicated: 

              ADVERSE IMPACT — Includes, but is not limited to the following:

                      any search warrants served on the property where controlled substances and/or weapons were seized;

                      investigative purchases of controlled substances on or near the property by law enforcement agencies or their agents;

                      arrests for violations of the controlled substance law and/or possession of weapons;

                      loitering for the purposes of engaging in illegal activity;

                      an increase in the volume of traffic associated with property;

                      complaints made to law enforcement officials of illegal activity associated with the property;

                      finding of illegal weapons, as defined in Article 265 of the Penal Law, or controlled substances, as defined in Articles 220 and 221 of the Penal Law, on or near property by law enforcement officials and their agents. 

              BUILDINGS  A structure where space is partially or wholly 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.  

BUILDING, ACCESSORY  — 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.                                                                                      

BUSINESS —  An activity, occupation, employment or enterprise which requires time, attention, labor and material and wherein merchandise is exhibited or sold or services offered.

BUSINESS OFFICE — A building or portion thereof utilized to accommodate the activities of a business.

CONVICTION    The entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument or to one or more counts of such instrument.

KNOWLEDGE OF PUBLIC NUISANCE  — The presumption of knowledge provided by Subdivision one of 235.10 of the Penal Law shall be applicable to the Property and Building Nuisance Reform Law.  Notice, by mail or personal service, of activities entailing a public nuisance, to the property owner of record shall be evidence of knowledge of the public nuisance. 

LOT  — A parcel of land with or without buildings or structures, delineated by lot lines and having access to a street as defined in this chapter.

PENAL LAW  — New York State Penal Law

PUBLIC NUISANCE  — Shall include but not be limited to:

            A.        Any building, accessory building, business office, lot or yard used for the purpose of illegal drug use, possession, distribution and/or loitering for the purpose of unlawfully using or possessing controlled substances as defined in Articles 220 and 221 and 240.36 of the Penal Law.                

            B.        Any building, accessory building, business office, lot or yard used for the purposes of prostitution as defined in 230.00 of the Penal Law and loitering for the purposes set forth in 240.37 of the Penal Law.            

  C.                 Any building, accessory building, business office, lot or yard used for the purposes of loitering as defined in 240.35 of the Penal Law.             

            D.        Any building, accessory building, business office, lot or yard used for the purposes of obscene performance and/or the promotion of obscene material as defined in Article 235 of the Penal Law.                          

   E.             Any building, accessory building, business office, lot or yard used for the purposes of a business, activity or enterprise which is not licensed as required by federal, state or local law and/or ordinance. 

            F.         Any building, accessory building, business office, lot or yard used for the purposes of unlawful activities described in 123 of the Alcoholic Beverage Control Law (unlawful sale, manufacture or consumption).      

            G.        Any building, accessory building, business office, lot or yard used for the purposes of gambling activities described in Article 225 of the Penal Law.

            H.        Any building, accessory building, business office, lot or yard wherein there exists or is occurring a violation of the zoning ordinances of the Village of Windsor.    

            I.          Any building, accessory building, business office, lot or yard wherein there is or has occurred a criminal nuisance as defined in 240.45 and 240.46 of the Penal law.         

            J.         Any building, accessory building, business office, lot or yard wherein there is or has occurred a violation of the provisions of 165.40, 164.45, 165.50 (Criminal possession of stolen property), 170.65 (Forgery of a vehicle identification number), 170.70 (Illegal possession of a vehicle identification number) or 175.10 (Falsifying business records) of the Penal Law or 415-a (Vehicle dismantlers) of the Vehicle and Traffic Law. 

            K.        Any building, accessory building, business office, lot or yard used for the purpose of, or to aid in, the commission of a violation of Article 265 of the Penal law (Firearms and other Dangerous Weapons). 

            L.         Any building, structure or place which is in violation of the Code of the Village of Windsor, Chapter 67 (Building Construction and Fire Prevention); Chapter 107 (Garbage, Rubbish and Refuse); and Chapter 200 (Zoning). 

            M.       Any building, accessory building, business office, lot or yard used for the purpose of animal fighting as defined in 351 of the Agriculture and Markets Law of the State of New York.                                                 

            N.        Any building, structure of place wherein there is occurring a violation of the New York State Multiple Residence Law or failure to comply with an order issued pursuant to that section.                       

            O.        Any building, structure or place wherein there is occurring a violation of the New York State Uniform Fire Prevention and Building Code or failure to comply with an order issued pursuant to that section. 

TESTIMONY  — Oral, written or other documented evidence tending to show or prove the truth of the matter asserted  

VIOLATION  — Conduct, or evidence of conduct, prohibited under the Property and Building Nuisance Reform Law.  A violation does not require criminal prosecution and conviction but only a preponderance of evidence that the prohibited conduct occurred and may include, but is not limited to: police reports, investigative reports, orders of remedy, execution of search warrants, results of police surveillance, arrest and/or conviction of local, state or federal laws, activities associated with trafficking of controlled substances, a finding of weapons and/or controlled substances on or near the property or increased volume of traffic associated with the property.                               

YARD  — 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 the Zoning Ordinance for the Village of Windsor.

 

§ 68-4     Evidence and presumptions.

             A.        Evidence.  In any action under this section, evidence of the common fame and general reputation of the building, structure or place, of the inhabitants or occupants thereof or of those resorting thereto, shall be competent evidence to prove the existence of a property or building nuisance.                                

            B.        Scienter.  If evidence of the general reputation of the building, structure or place or the inhabitants or occupants thereof, is sufficient to establish the existence of the nuisance, it shall be prima facie evidence of knowledge thereof and acquiescence and participation therein and responsibility for the nuisance on the part of the owners, lessors, lessees and all those in possession of or having charge of, as agent 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.               

            C.        Presumption.                                    

                        (1)       Any building, accessory building, business office, lot or yard, wherein within the period of one year prior to the commencement of an action under this chapter, there have occurred two or more convictions, as defined § 68-3, on the part of the lessees, owners, operators or occupants, of the provisions of the Property and Building Nuisance Reform Law as defined in § 68-3 of this article, shall be prima facie evidence that a public nuisance exists at said location.

                        (2)       Any building, accessory building, business office, lot or yard, wherein within a one-year period prior to the commencement of an action under this chapter, there have occurred three or more violations on the part of the lessees, owners, operators or occupants, of the provisions of the Property and Building Nuisance Reform Law as defined § 68-3 of this article, shall be prima facie evidence that a public nuisance exists at said location.  

                        (3)       Any building, accessory building, business office, lot or yard, wherein within the period of one year prior to the commencement of an action under this chapter, there has been presented a preponderance of evidence of repeated criminal activity which has an adverse impact, as defined in 68-3 of this article, on such property or neighborhood, shall be prima facie evidence that a public nuisance exists at said location.

                                                                                                           

 

ARTICLE II

 Remedies

 

§ 68-5     Applicability. 

This article shall be applicable to the public nuisances defined in Article I of this chapter.

                                                                      

§ 68-6     Remedies enumerated. 

The Village Attorney shall bring and maintain a civil proceeding in the name of the Village for the following types of relief:

            A.        Permanent injunction.                        

            B.        Temporary closing order. 

            C.        Temporary restraining order.                      

            D.        Temporary injunction.                       

            E.         Civil penalties.

                                                                                                            

§ 68-7     Procedure; presumptions; penalties for offenses; enforcement. 

A.            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 an interest in the property. 

            B.        The complaint.                                                                                  

                        (1)       The Village Attorney shall bring and maintain a civil proceeding in the name of the Village of Windsor 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 Article 1, 68-3 of this chapter, from further conducting, maintaining or permitting the public nuisance in the manner provide in Article 11 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 civil action shall be commenced by the filing of a summons and complaint alleging the facts constituting the nuisance.

                        (4)       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 an interest in the property. 

                        (5)       Any complaint filed under this chapter shall be verified or accompanied by an affidavit(s) for the purpose of showing that the owner or his/her agent has notice of the nuisance and has had an opportunity to abate the nuisance. 

                        (6)       The complaint or affidavit shall contain a description of the attempts by the applicant to serve notice on and to locate the owner of the property and/or the owner’s agent.

                        (7)       The complaint or affidavit shall describe the adverse impact associated with the property on the surrounding neighborhood.                               

            C.        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 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.            

            D.        Service of summons on other defendants.  Defendants, 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.                       

            E.         Notice 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. 

            F.         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 Windsor Assessor and/or the office of the Clerk of the  County of Broome.                         

            G.        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.                       

            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 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 on which 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.                       

I.               Enforcement.  A judgment pursuant to this chapter shall be enforced by the Broome County Sheriff’s Department and the Village Attorney.

                                      

§ 68-8     Judgment awarding permanent injunctions.

A.                 A judgment awarding a permanent injunction pursuant to this chapter, may direct the closing of the building, structure or place to the extent necessary to abate the nuisance and shall direct the Broome County Sheriff’s Department to post a copy of the judgment and a printed notice of such closing conforming to the requirements of 68-9H of Article II 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 that such judgment contains therein a notice of such penalty.                      

            B.        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.   

            C.        If the owner shall file a bond in the value of the property ordered to be closed and shall submit 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.                  

            D.        A closing by the Broome County Sheriff’s Department pursuant to this section shall not constitute an act of possession, ownership or control by the Broome County Sheriff’s Department of the closed premises. 

            E.         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 $1,000, or by imprisonment not exceeding six months, or by both.                    

            F.         Upon the request of the Village Attorney, or the Mayor, the Broome County Sheriff’s Department may assist in the enforcement of a judgment awarding a permanent injunction entered in an action brought pursuant to this chapter.                       

            G.        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 of a notice of pendency 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.                  

            H.        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.                 

                                              

§ 68-9     Preliminary injunctions, temporary closing orders and temporary restraining orders. 

            A.        In general. 

                        (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 enjoining 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 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. 

                                    (a)        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.

                                    (b)       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 Mayor and the Broome County Sheriff’s Department.

                        (3)       If the court grants a preliminary injunction, the provisions of this article regarding preliminary injunctions, inventory, the closing of premises, the posting of orders and notices and offenses shall be applicable.

            B.        Motion papers for preliminary injunction.  The Mayor, or other Village representative, 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 orders.                       

                        (1)       If, on a motion for a preliminary injunction pursuant to 9 of this article, the Mayor, or other Village representative, 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 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.  A decision on the motion for a preliminary injunction shall be rendered by the court at the earliest possible time. 

                        (2)       Service of a 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 orders.                       

                        (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, 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.  

              E.      Granting of temporary closing and temporary restraining orders; enforcement.

                        (1)       If, on motion for a preliminary injunction, the Mayor, or other Village representative, 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 Mayor and the Broome County Sheriff’s Department.

            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 closing order or 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

            H.        Posting of temporary closing orders and temporary restraining orders.  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 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 the order 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 that such order or notice contains therein a notice of such penalty.  The Police Department shall, upon the request of the Village Attorney, or upon the direction of the Mayor, assist in the enforcement of this subsection.  

            I.        Intentional disobedience of or resistance to a temporary restraining order.  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 $1,000 per day 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.

                       

§ 68-10   Vacation of temporary restraining orders and preliminary injunctions.      

A.            A temporary restraining order shall be vacated, upon notice to the Village Attorney, if the defendant shows by affidavit and such other proof as may be submitted that the public nuisance within the scope of this chapter has been abated.  An order vacating a temporary closing order, or a temporary restraining order, shall include a provision authorizing agencies of the Village 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, on conviction, by a fine of not more than $1,000 per day or by imprisonment not exceeding six months, or by both.  The Police Department shall, upon the request of the Village Attorney, or upon the direction of the Mayor, assist in the enforcement of an inspection provision of an order vacating a temporary restraining order.  

            B.        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 that a judgment of permanent injunction is obtained, its actual costs, expenses and disbursements in investigating, bringing and maintaining the action.       

C.      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.

                                                                        

§ 68-11   Preliminary injunction of bulk transfer 

            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 an 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 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 a preliminary injunction.  A preliminary injunction shall be enforced by the Village Attorney, the Mayor or by the Broome County Sheriff’s Department.             

            E.         If the court grants a preliminary injunction, the provisions of 9 of this article regarding inventory shall be applicable.


§ 68-12   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 a 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 safe and proper operation of a dwelling, prosecuting or defending suits flowing from his or her management of the property and retaining counsel therefore, 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, 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 a 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, direct or limit inspection or require the presentation of a temporary receiver’s accounts.  Notice of a 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.

                        

§ 68-13   No exclusive remedy.

              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 Windsor.

 

 



<< Back to Code List Page - Email this Page Download PropertyandBuilding.pdf