2006 New York Code - Removal Or Abatement Of Public Nuisance.

 
    § 16-131.3 Removal or abatement of public nuisance. a. 1. Whenever the
  commissioner  finds  that  there  exists,  on  premises  required  to be
  permitted pursuant to  section  16-130  of  this  chapter,  a  condition
  hazardous  to public health or safety, the commissioner may declare such
  premises to be a public nuisance and order the permittee and/or owner to
  remove or abate such public nuisance as such  order  shall  specify.  It
  shall be the duty of such permittee and/or owner upon whom such an order
  has  been  served  to remove or abate such public nuisance in the manner
  and in the time provided by such order.
    2. For  the  purpose  of  this  subdivision,  the  finding  whether  a
  condition hazardous to the public health or safety exists shall be based
  on  factors  that  include  but  are not limited to: (i) the quantity of
  solid waste, or of material listed in subparagraph (b) of paragraph  one
  of  subdivision  a  of section 16-130 of this chapter, that may create a
  condition hazardous to the public health or safety; (ii)  the  types  of
  solid  waste,  or of such material listed in such subparagraph, that may
  create such a condition; and/or (iii) the risk of harm to the public  or
  the environment.
    b. 1. An order of the commissioner issued pursuant to subdivision a of
  this  section  shall  specify  the  work to be performed and shall fix a
  reasonable time for compliance which shall not be less than thirty  days
  from  the  date  of  service  of  such  order,  or twenty days after the
  commissioner's  determination  pursuant  to  paragraph  four   of   this
  subdivision,  whichever  is  later. Such order shall contain a statement
  that upon the failure of the permittee and/or owner of such premises  to
  comply  with  the  commissioner's  order  within  the  stated  time, the
  department may perform the work specified in the order or the department
  may apply for a court order directing such  permittee  and/or  owner  to
  comply  with  the  commissioner's  order  or directing the department to
  perform the work specified in the commissioner's order.  Such  statement
  shall   also  indicate  that  if  any  of  the  work  specified  in  the
  commissioner's order is performed by or on behalf of the department, the
  expense incurred in performing such work shall  be  a  debt  recoverable
  from  such  permittee and/or owner and a lien on the premises, including
  the land and buildings, with respect to which such order was issued.
    2. Service of such order shall be  made  upon  such  permittee  and/or
  owner  by  personal  service  or by certified mail addressed to the last
  known address of such permittee and/or owner or in any  manner  provided
  for  service  of  process by article three of the civil practice law and
  rules.  The commissioner may serve a copy of such order on any mortgagee
  or lienor of record in the same manner.
    3. A copy of such order shall be filed with the office of the register
  in the county in which the premises with respect to which such order was
  issued are situated, provided, that in the county of Richmond, such copy
  shall be filed with the county clerk.
    4. Within fifteen days after service of such order upon the  permittee
  and/or  owner, such permittee and/or owner or a mortgagee or lienor upon
  whom a copy of such order has been served may request  a  hearing.  Such
  hearing  shall be conducted by the department. The hearing officer shall
  submit recommended findings of fact and a recommended  decision  to  the
  commissioner,  who  shall  make the final findings of fact and the final
  determination.
    c.  If  the  permittee  and/or  owner  fails  to   comply   with   the
  commissioner's  order  within  the time fixed for compliance pursuant to
  subdivision b of this section,  the  department  may  perform  the  work
  specified in the order.
    d.  As an alternative to the remedy set forth in subdivision c of this
  section, if  the  permittee  and/or  owner  fails  to  comply  with  the


  commissioner's  order  within  the time fixed for compliance pursuant to
  subdivision b of this section, the commissioner may apply to  any  court
  of  competent  jurisdiction,  upon such notice and in such manner as the
  court shall direct, for an order directing the permittee and/or owner to
  comply  with  the  commissioner's  order  or directing the department to
  perform the work specified in the commissioner's order.
    e. 1. Whenever the commissioner finds that there  exists  on  premises
  declared  to  be  a  public  nuisance  pursuant to subdivision a of this
  section a condition that poses an imminent threat to the  public  health
  or  safety  which  requires  immediate remedial action, the commissioner
  may, in his or her discretion,  order  the  permittee  and/or  owner  to
  remove or abate such public nuisance, or direct the department to remove
  or  abate  such  public  nuisance, and, notwithstanding any provision of
  this section to the contrary, no hearing shall be required  to  be  held
  before  the  time  fixed  in  the  order  for  compliance, or before the
  department removes or abates such public  nuisance,  and  the  time  for
  compliance  provided  in  paragraph one of subdivision b of this section
  shall not apply to an order issued pursuant to this subdivision.  Notice
  of  an  order  or direction issued pursuant to this subdivision shall be
  served in the manner prescribed in paragraph two  of  subdivision  b  of
  this section, provided, that if the commissioner determines that service
  in such manner would result in delay prejudicial to the public health or
  safety,  then  the  commissioner  may  serve  such order or direction by
  delivery of a copy thereof to a person of suitable age and discretion in
  actual or apparent control of the premises to which it relates,  or,  if
  service  cannot be made in such manner, by copy posted upon the premises
  to which it  relates.  An  order  or  direction  served  in  the  manner
  prescribed  in this subdivision shall take effect when delivered or when
  posted. After such order or direction  takes  effect,  the  commissioner
  shall  serve  such  order  or  direction  in  the  manner  prescribed in
  paragraph two of subdivision b of this section. Such additional  service
  shall include notice of the earlier service of such order or direction.
    2. Notwithstanding any other provision of this section, if an order or
  direction  is  issued  pursuant  to paragraph one of this subdivision, a
  hearing shall be held within three business days of a request  for  such
  hearing  and a determination shall be rendered within four business days
  of the conclusion of such hearing. Such hearing shall  be  conducted  by
  the department. The hearing officer shall submit recommended findings of
  fact  and a recommended decision to the commissioner, who shall make the
  final findings of fact and the final determination.
    3. For the  purpose  of  this  subdivision,  the  finding  whether  an
  imminent  threat to the public health or safety exists shall be based on
  factors that include but are not limited to: (i) the quantity  of  solid
  waste,  or  of  material  listed in subparagraph (b) of paragraph one of
  subdivision a of section 16-130 of this chapter, that may pose a threat;
  (ii) the types of solid waste,  or  of  such  material  listed  in  such
  subparagraph,  that  may pose a threat; and/or (iii) the risk of harm to
  the public or the environment.
    f. The commissioner may request the assistance of  the  department  of
  health  or  any  city,  state  or  federal agency to perform work on its
  behalf pursuant to this section.
    g. 1. The expense of the department with respect to any work performed
  by or on behalf of the department pursuant to subdivisions c, d and e of
  this section shall be a debt recoverable from the permittee and/or owner
  and a lien upon the premises, including the  land  and  buildings,  with
  respect to which such work was performed.
    2.  The  department shall keep a record of all work performed by or on
  behalf of the department. Such records shall be accessible to the public


  during business hours. Within  thirty  days  after  the  issuance  of  a
  purchase or work order for such work, such order shall be entered on the
  records  of  the  department.  Such entry shall constitute notice to all
  parties.
    3.  All  such  expenses shall constitute a lien upon the premises when
  the amount thereof shall have been definitely computed as a statement of
  account by the department and the department shall cause to be filed  in
  the  office  of the city collector an entry of the account stated in the
  book in which such charges against the premises are to be entered.  Such
  lien  shall have a priority over all other liens and encumbrances on the
  premises except for the lien of taxes and assessments. However, no  lien
  created  pursuant to this section shall be enforced against a subsequent
  purchaser  in  good  faith  or  mortgagee  in  good  faith  unless  such
  transaction occurred after the date of entry of a purchase or work order
  on  the  records  of  the  department  pursuant to paragraph two of this
  subdivision.
    4. A notice thereof stating the amount  due  and  the  nature  of  the
  charge shall be mailed by the city collector within five days after such
  entry  to the last known address of the person whose name appears on the
  records in the office of the city collector as being the owner or  agent
  or  as the person designated by the owner to receive tax bills or, where
  no name appears, to the premises, addressed to either the owner  or  the
  agent.  Such notice shall have stamped or printed thereon a reference to
  this section.
    5. If such charge is not paid within thirty  days  from  the  date  of
  entry,  it  shall  be the duty of the city collector to receive interest
  thereon at the rate of  interest  applicable  to  such  property  for  a
  delinquent  tax on real property to be calculated to the date of payment
  from the date of entry.
    6. Such charge and the interest thereon shall continue  to  be,  until
  paid,  a lien on the premises. Such charge and interest may be collected
  and the lien thereof may be foreclosed in the manner provided by law for
  the collection and foreclosure of taxes, sewer rents,  sewer  surcharges
  and  water  charges  due  and  payable to the city and the provisions of
  chapter four of title eleven of the code shall apply to such charges and
  the interest thereon and the lien thereof.
    7. (a) In any proceedings  to  enforce  or  discharge  the  lien,  the
  validity  of the lien shall not be subject to challenge based on (i) the
  lawfulness of the work done; or (ii) the propriety and accuracy  of  the
  items  of  expenses  for  which a lien is claimed, except as provided in
  this paragraph.
    (b) No such challenge may be made except  by  (i)  the  owner  of  the
  property, or (ii) a mortgagee or lienor whose mortgage or lien would but
  for  the  provisions of this section have priority over the department's
  lien.
    (c) An issue specified in subparagraph (a) which was decided or  could
  have  been contested in a prior court proceeding to secure a court order
  pursuant to  subdivision  d  of  this  section  shall  not  be  open  to
  reexamination,  but  if any mortgagee or lienor of record was not served
  with  an  order  of  the  commissioner  pursuant  to  paragraph  two  of
  subdivision b and with notice of such proceeding, his or her mortgage or
  lien  shall  have the same priority over the lien of the department that
  it would have had but for the provisions of this section.
    8. In addition to establishing a lien, the department may recover such
  expenses and interest by bringing an action against the permittee and/or
  owner. The institution of such action shall not suspend or bar the right
  to pursue any other remedy provided by law  for  the  recovery  of  such
  debt.


    h.  Nothing  contained  in this section shall be construed to restrict
  authority to provide for the abatement of a  public  nuisance  conferred
  upon any agency of the city by any other provision of law.
    i.  For  purposes of this section, "owner" means a person having title
  to any premises or structure; a tenant, lessee or occupant; a  mortgagee
  or  vendee  in  possession;  a  trustee in bankruptcy; a receiver or any
  other person having legal  ownership  or  control  of  any  premises  or
  structure.