§ 16-A — Emergency relief

New York § 16-A

• Jurisdiction: New York
• Law CAN: Cannabis
• Art. 2: New York State Cannabis Control Board

Text

* § 16-a. Emergency relief. Following service of an order issued by\nthe office of cannabis management requiring immediate cessation of\nunlicensed activity under this chapter, by a local government pursuant\nto a local law authorized by section one hundred thirty-one of this\nchapter or pursuant to an order issued under section 7-552 of the\nadministrative code of the city of New York, the office of cannabis\nmanagement, or the attorney general, at the request of and on behalf of\nthe office, or any county attorney, corporation counsel, or local\ngovernment authorized pursuant to subdivision eight of this section to\nbring and maintain a civil proceeding in accordance with the procedures\nset forth in this section, may bring and maintain a civil proceeding in\nthe supreme court of the county in which the building or premises is\nlocated to permanently enjoin such unlicensed activity when conducted,\nmaintained, or permitted in such building or premises, occupied as a\nplace of business as described in subdivision eight of section ten of\nthis chapter, in violation of subdivision one or one-a of section one\nhundred twenty-five of this chapter or subdivision eight of section one\nhundred thirty-two of this chapter, which shall constitute an unlicensed\nactivity that presents a danger to the public health, safety, and\nwelfare, and shall also enjoin the person or persons conducting or\nmaintaining such unlicensed activity, in accordance with the following\nprocedures:\n 1. Proceeding for permanent injunction. (a) To the extent known, the\nowner, lessor, and lessee of a building or premises wherein the\nunlicensed activity is being conducted, maintained, or permitted shall\nbe made defendants in the proceeding. The venue of such proceeding shall\nbe in the county where the unlicensed activity is being conducted,\nmaintained, or permitted or in any venue where a respondent is located.\nThe existence of an adequate remedy at law shall not prevent the\ngranting of temporary or permanent relief pursuant to this section.\n (b) The proceeding shall name as defendants the building or premises\nwherein the unlicensed activity is being conducted, maintained, or\npermitted, by describing it by tax lot and street address and at least\none of the owners of some part of or interest in the property.\n (c) In rem jurisdiction shall be complete over the building or\npremises wherein the unlicensed activity is being conducted, maintained,\nor permitted by affixing the notice of petition or order to show cause\nto the door of the building or premises and by mailing the notice of\npetition or order to show cause by certified or registered mail, return\nreceipt requested, to one of the owners of some part of or interest in\nthe property. Proof of service shall be filed within two days thereafter\nwith the clerk of the court designated in the notice of petition or as\nset by the court in the order to show cause. In any county where\ne-filing is unavailable, proof of service may be mailed to the clerk.\nService shall be complete upon such filing or mailing.\n (d) Defendants, other than the building or premises wherein the\nunlicensed activity is being conducted, maintained, or permitted, shall\nbe served with the notice of petition or order to show cause as provided\nin the civil practice law and rules or pursuant to court order. No more\nthan thirty days prior to such service, the office shall mail a copy, by\ncertified mail, of any order to cease and desist relating to the\nunlicensed activity at the building or premises to the person in whose\nname the real estate affected by the proceeding is recorded in the\noffice of the city register or the county clerk, as the case may be, who\nshall be presumed to be the owner thereof. Such mailing shall constitute\nnotice to the owner and shall be deemed to be complete upon such mailing\nby the office as provided above. No more than fifteen days prior to such\nservice, the office, the attorney general, at the request of and on\nbehalf of the office of cannabis management, or any local government\nauthorized pursuant to subdivision eight of this section shall verify\nthe ongoing occupancy of any natural person who is a tenant of record\nand alleged to have caused or permitted the unlicensed activity in the\nbuilding or premises wherein the unlicensed activity is alleged to have\nbeen conducted, maintained, or permitted.\n (e) With respect to any proceeding commenced or to be commenced\npursuant to this section by the office of cannabis management or the\nattorney general, at the request of and on behalf of the office, may\nfile a notice of pendency pursuant to the provisions of article\nsixty-five of the civil practice law and rules.\n (f) The person in whose name the real estate affected by the\nproceeding is recorded in the office of the city register or the county\nclerk, as the case may be, shall be presumed to be the owner thereof.\nUpon being served in a proceeding under this section, such owner shall,\nto the extent known, provide to the office of cannabis management,\nwithin three days, the names of any other owners, lessors and lessees of\nthe building or premises that is the subject of the proceeding.\nThereafter, such owners, lessors and lessees may be made parties to the\nproceeding.\n (g) Whenever there is evidence that a person was the manager,\noperator, supervisor or, in any other way, in charge of the premises, at\nthe time the unlicensed activity was being conducted, maintained, or\npermitted, such evidence shall be presumptive that they were an agent or\nemployee of the owner or lessee of the building or premises.\n (h) A defendant shall furnish to any other party, within five days\nafter a demand, a verified statement identifying:\n (i) If the responding party is a natural person, such party's: (1)\nfull legal name; (2) date of birth; (3) current home or business street\naddress; and (4) a unique identifying number from: (A) an unexpired\npassport; (B) an unexpired state driver's license; or (C) an unexpired\nidentification card or document issued by a state or local government\nagency or tribal authority for the purpose of identification of that\nindividual;\n (ii) If the responding party is a partnership, limited liability\npartnership, limited liability company, or other unincorporated\nassociation, including a for profit or not-for-profit membership\norganization or club, the information required pursuant to subparagraph\n(i) of this paragraph for each of its partners or members, as well as\nthe state or other jurisdiction of its formation;\n (iii) If the responding party is a corporation, its state or other\njurisdiction of incorporation, principal place of business, and any\nstate or other jurisdiction of which that party is a citizen;\n (iv) If the responding party is not an individual, in addition to any\ninformation provided pursuant to subparagraphs (ii) and (iii) of this\nparagraph, and to the extent not previously provided, each beneficial\nowner of the responding party by: (1) full legal name; (2) date of\nbirth; (3) current home or business street address; and (4) a unique\nidentifying number from: (A) an unexpired passport; (B) an unexpired\nstate driver's license; or (C) an unexpired identification card or\ndocument issued by a state or local government agency or tribal\nauthority for the purpose of identification of that individual. As used\nin this subparagraph, the term "beneficial owner" shall have the same\nmeaning as defined in 31 U.S.C. § 5336(a)(3), as amended, and any\nregulations promulgated thereunder.\n (i) If a finding is made that the defendant has conducted, maintained,\nor permitted the unlicensed activity a penalty, to be included in the\njudgment, may be awarded in an amount not to exceed ten thousand dollars\nfor each day it is found that the defendant intentionally conducted,\nmaintained or permitted the unlicensed activity. With regard to any\ndefendant conducting the referenced unlicensed activity, any such\npenalties may be awarded in addition to any penalties that may be\nimposed pursuant to section one hundred thirty-two of this chapter. Upon\nrecovery, such penalty shall be paid to the office of cannabis\nmanagement, or to the county attorney, corporation counsel, or local\ngovernment that has been authorized pursuant to subdivision eight of\nthis section to bring and maintain a civil proceeding in accordance with\nthe procedures set forth in this section.\n 2. Preliminary injunction. (a) Pending a proceeding for a permanent\ninjunction pursuant to this section the court may grant a preliminary\ninjunction enjoining the unlicensed activity and the person or persons\nconducting, maintaining, or permitting the unlicensed activity from\nfurther conducting, maintaining, or permitting the unlicensed activity,\nwhere the public health, safety or welfare immediately requires the\ngranting of such injunction. A temporary closing order may be granted\npending a hearing for a preliminary injunction where it appears by clear\nand convincing evidence that unlicensed activity within the scope of\nthis section is being conducted, maintained, or permitted and that the\npublic health, safety or welfare immediately requires the granting of a\ntemporary closing order. A temporary restraining order may be granted\npending a hearing for a preliminary injunction.\n (b) A preliminary injunction shall be enforced by the office or, at\nthe request of the office, the attorney general. At the request of the\noffice, a police officer or peace officer with jurisdiction may also\nenforce the preliminary injunction.\n (c) The office or the attorney general shall show, by affidavit and\nsuch other evidence as may be submitted, that there is a cause of action\nfor a permanent injunction abating unlicensed activity.\n 3. Temporary closing order. (a) If, on a motion for a preliminary\ninjunction alleging unlicensed activity as described in this section in\na building or premises used for commercial purposes only, the office or\nthe attorney general demonstrates by clear and convincing evidence that\nsuch unlicensed activity is being conducted, maintained, or permitted\nand that the public health, safety, or welfare immediately requires a\ntemporary closing order, a temporary order closing such part of the\nbuilding or premises wherein such unlicensed activity is being\nconducted, maintained, or permitted may be granted without notice,\npending order of the court granting or refusing the preliminary\ninjunction and until further order of the court. Any such closing order\nmay also include a preservation order authorizing issuance of subpoenas\nto third parties to preserve all off site electronic business records.\nUpon granting a temporary closing order, the court shall direct the\nholding of a hearing for the preliminary injunction at the earliest\npossible time but no later than three business days from the granting of\nsuch order; a decision on the motion for a preliminary injunction shall\nbe rendered by the court within four business days after the conclusion\nof the hearing.\n (b) Unless the court orders otherwise, a temporary closing order\ntogether with the papers upon which it was based and a notice of hearing\nfor the preliminary injunction shall be personally served, in the same\nmanner as a summons as provided in the civil practice law and rules.\n (c) A temporary closing order shall only be issued prior to a hearing\non a preliminary injunction if the premises that is the subject of the\nclosure order is used for commercial purposes only.\n (d) No temporary closing order shall be issued against any building or\npremises where, in addition to the unlicensed activity which is alleged,\nactivity that is licensed or otherwise lawful remains in place, unless\nthe licensed or otherwise lawful activity is a de minimis part of the\nbusiness. In addition, no temporary closing order shall be issued\nagainst any building or premises which is used in part as residence and\npursuant to local law or ordinance is zoned and lawfully occupied as a\nresidence.\n 4. Temporary restraining order. (a) If, on a motion for a preliminary\ninjunction alleging unlicensed activity as described in this section in\na building or premises used for commercial purposes, the office or the\nattorney general demonstrates by clear and convincing evidence that such\nunlicensed activity is being conducted, maintained, or permitted and\nthat the public health, safety, or welfare immediately requires a\ntemporary restraining order, a temporary restraining order may be\ngranted without notice restraining the defendants and all persons from\nremoving or in any manner interfering with the furniture, fixtures and\nmovable property used in conducting, maintaining or permitting such\nunlicensed activity, including cannabis, cannabis product, cannabinoid\nhemp or hemp extract product, or any product marketed or labeled as such\nand from further conducting, maintaining or permitting such unlicensed\nactivity, pending order of the court granting or refusing the\npreliminary injunction and until further order of the court. Any such\ntemporary restraining order may also include a preservation order\nauthorizing issuance of subpoenas to third parties to preserve all off\nsite electronic business records. Upon granting a temporary restraining\norder, the court shall direct the holding of a hearing for the\npreliminary injunction at the earliest possible time but no later than\nthree business days from the granting of such order; a decision on the\nmotion for a preliminary injunction shall be rendered by the court\nwithin thirty calendar days after the conclusion of the hearing.\n (b) Unless the court orders otherwise, a temporary restraining order\nand the papers upon which it was based and a notice of hearing for the\npreliminary injunction shall be personally served, in the same manner as\na summons as provided in the civil practice law and rules, upon any\nagent, employee, or other representative of the defendant business\npresent at the time the temporary restraining order is effectuated.\n 5. Temporary closing order; temporary restraining order; additional\nenforcement procedures. (a) If on a motion for a preliminary injunction,\nthe office of cannabis management or the attorney general submits\nevidence warranting both a temporary closing order and a temporary\nrestraining order, the court shall grant both orders.\n (b) Upon the request of the office, any police officer or peace\nofficer with jurisdiction may assist in the enforcement of a temporary\nclosing order and temporary restraining order. Any reference to police\nofficer or peace officer in this subdivision and subdivisions six and\nseven of this section shall also include any investigator employed by\nthe office of the attorney general.\n (c) The police officer or peace officer serving a temporary closing\norder or a temporary restraining order shall forthwith make and return\nto the court an inventory of personal property situated in and used in\nconducting, maintaining, or permitting the unlicensed activity within\nthe scope of this chapter and shall enter upon the building or premises\nfor such purpose. Such inventory shall be taken in any manner which is\ndeemed likely to evidence a true and accurate representation of the\npersonal property subject to such inventory including, but not limited\nto photographing such personal property, except that any cash found on\nthe premises during such inventory shall be inventoried, seized, and\nsecured off premises pending further order of the court. Any police\nofficer or peace officer, or any representative of the office, shall be\npermitted to review and copy records.\n (d) The police officer or peace officer serving a temporary closing\norder shall, upon service of the order, command all persons present in\nthe building or premises to vacate the premises forthwith. Upon the\nbuilding or premises being vacated, the premises shall be securely\nlocked and all keys delivered to the officer serving the order who\nthereafter may deliver the keys to the fee owner, lessor, or lessee of\nthe building or premises involved. If the fee owner, lessor, or lessee\nis not at the building or premises when the order is being executed, the\nofficer shall securely padlock the premises and retain the keys until\nthe fee owner, lessor, or lessee of the building is ascertained, in\nwhich event, the officer may deliver the keys to such owner, lessor, or\nlessee or retain them pending further order of the court.\n (e) Upon service of a temporary closing order or a temporary\nrestraining order, the police officer or peace officer shall post a copy\nthereof in a conspicuous place or upon one or more of the principal\ndoors at entrances of such premises where the unlicensed activity is\nbeing conducted, maintained, or permitted. In addition, where a\ntemporary closing order has been granted, the officer shall affix, in a\nconspicuous place or upon one or more of the principal doors at\nentrances of such premises, a printed notice that the premises have been\nclosed by court order, which notice shall contain the legend "closed by\ncourt order" in block lettering of sufficient size to be observed by\nanyone intending or likely to enter the premises, the date of the order,\nthe court from which issued, and the name of the officer or agency\nposting the notice. In addition, where a temporary restraining order has\nbeen granted, the police officer or peace officer shall affix, in the\nsame manner, a notice similar to the notice provided for in relation to\na temporary closing order except that the notice shall state that\ncertain described activity is prohibited by court order and that removal\nof property is prohibited by court order. Mutilation or removal of such\na posted order or such a posted notice while it remains in force, in\naddition to any other punishment prescribed by law, shall be punishable,\non conviction, by a fine of not more than five thousand dollars or by\nimprisonment not exceeding ninety days, or by both, provided such order\nor notice contains therein a notice of such penalty. Any police officer\nor peace officer with jurisdiction may, upon the request of the office,\nassist in the enforcement of this section.\n 6. Temporary closing order; temporary restraining order; defendant's\nremedies. (a) A temporary closing order or a temporary restraining order\nmay be vacated, upon notice to the office and to any county attorney,\ncorporation counsel, or local government that may have been authorized\npursuant to subdivision eight of this section to bring and maintain the\nproceeding in accordance with the procedures set forth in this section,\nif a defendant who is the fee owner, lessor, or lessee of the building\nor premises shows by affidavit and such other proof as may be submitted\nthat the unlicensed activity within the scope of this chapter has been\nabated and that they are also not affiliated with the person who is\nconducting the unlicensed activity. An order vacating a temporary\nclosing order or a temporary restraining order shall include a provision\nauthorizing the office, or any county attorney, corporation counsel, or\nlocal government, as applicable, to inspect the building or premises\nwhich is the subject of a proceeding pursuant to this subdivision,\nperiodically without notice, during the pendency of the proceeding for\nthe purpose of ascertaining whether or not the unlicensed activity has\nbeen resumed. Any police officer or peace officer with jurisdiction may,\nupon the request of the office, assist in the enforcement of an\ninspection provision of an order vacating a temporary closing order or\ntemporary restraining order.\n (b) A temporary closing order or a temporary restraining order may be\nvacated by the court, upon notice to the office, or any county attorney,\ncorporation counsel, or local government, as applicable, when a\ndefendant entitled to request vacatur pursuant to paragraph (a) of this\nsubdivision gives an undertaking and the court is satisfied that the\npublic health, safety, or welfare will be protected adequately during\nthe pendency of the proceeding. The undertaking shall be in an amount\nequal to the assessed valuation of the building or premises where the\nunlicensed activity is being conducted, maintained, or permitted or in\nsuch other amount as may be fixed by the court. The defendant shall pay\nto the office and the attorney general, in the event a judgment of\npermanent injunction is obtained, their actual costs, expenses and\ndisbursements in bringing and maintaining the proceeding. In addition,\nthe defendant shall pay to the local government or law enforcement\nagency that provided assistance in enforcing any order of the court\nissued pursuant to a proceeding brought under this section, its actual\ncosts, expenses and disbursements in assisting with the enforcement of\nthe proceeding.\n 7. Permanent injunction. (a) A judgment awarding a permanent\ninjunction pursuant to this chapter shall direct that any illicit\ncannabis, cannabis product, cannabinoid hemp or hemp extract product, or\nany product marketed or labeled as such seized shall be turned over to\nthe office of cannabis management or their authorized representative.\nThe judgment may further direct any police officer or peace officer with\njurisdiction to seize and remove from the building or premises all\nmaterial, equipment, and instrumentalities used in the creation and\nmaintenance of the unlicensed activity and shall direct the sale by the\nsheriff of any such property in the manner provided for the sale of\npersonal property under execution pursuant to the provisions of the\ncivil practice law and rules, if the estimated value of the property\nexceeds the estimated lawful expenses of such sale, or the disposal of\nthe property if the estimated value of the property does not exceed the\nestimated lawful expenses of such sale. The net proceeds of any such\nsale, after deduction of the lawful expenses involved, shall be paid to\nthe general fund of the state.\n (b) A judgment awarding a permanent injunction pursuant to this\nchapter may direct the closing of the building or premises by any police\nofficer or peace officer with jurisdiction to the extent necessary to\nabate the unlicensed activity and shall direct any police officer or\npeace officer with jurisdiction to post a copy of the judgment and a\nprinted notice of such closing conforming to the requirements of this\nchapter. The closing directed by the judgment shall be for such period\nas the court may direct but in no event shall the closing be for a\nperiod of more than one year from the posting of the judgment provided\nfor in this section. If the owner shall file a bond in the value of the\nproperty ordered to be closed and submits proof to the court that the\nunlicensed activity has been abated and will not be created, maintained,\nor permitted for such period of time as the building or premises has\nbeen directed to be closed in the judgment, and also submits proof that\nthey are also not affiliated with the person who is conducting the\nunlicensed activity, the court may vacate the provisions of the judgment\nthat direct the closing of the building or premises. A closing by a\npolice officer or peace officer with jurisdiction pursuant to the\nprovisions of this section shall not constitute an act of possession,\nownership, or control by such police officer or peace officer of the\nclosed premises.\n (c) Upon the request of the office of cannabis management or its\nauthorized representative, or any county attorney, corporation counsel,\nor local government authorized pursuant to subdivision eight of this\nsection to bring and maintain a civil proceeding in accordance with the\nprocedures set forth in this section, any police officer or peace\nofficer with jurisdiction may assist in the enforcement of a judgment\nawarding a permanent injunction entered in a proceeding brought pursuant\nto this chapter.\n (d) A judgment rendered awarding a permanent injunction pursuant to\nthis chapter shall be and become a lien upon the building or premises\nnamed in the petition in such proceeding, such lien to date from the\ntime of filing a notice of lis pendens in the office of the clerk of the\ncounty wherein the building or premises is located. Every such lien\nshall have priority before any mortgage or other lien that exists prior\nto such filing except tax and assessment liens.\n (e) A judgment awarding a permanent injunction pursuant to this\nchapter shall provide, in addition to the costs and disbursements\nallowed by the civil practice law and rules, upon satisfactory proof by\naffidavit or such other evidence as may be submitted, the actual costs,\nexpenses and disbursements of the office and the attorney general, or of\nany county attorney, corporation counsel, or local government authorized\npursuant to subdivision eight of this section to bring and maintain a\ncivil proceeding in accordance with the procedures set forth in this\nsection, in bringing and maintaining the proceeding.\n 8. Civil proceedings. In addition to the authority granted in this\nsection to the office of cannabis management and the attorney general,\nany county attorney, corporation counsel, or local government in which\nsuch building or premises is located may, seven days or more after\nproviding notice to the office of cannabis management, bring and\nmaintain a civil proceeding in the supreme court of the county in which\nthe building or premises is located to permanently enjoin the unlicensed\nactivity described in this section and the person or persons conducting\nor maintaining such unlicensed activity, in accordance with the\nprocedures set forth in this section. The office shall be permitted to\nintervene as of right in any such proceeding. Any such governmental\nentity which obtains a permanent injunction pursuant to this chapter\nshall be awarded, in addition to the costs and disbursements allowed by\nthe civil practice law and rules, upon satisfactory proof by affidavit\nor such other evidence as may be submitted, any penalties awarded\npursuant to paragraph (i) of subdivision one or paragraph (e) of\nsubdivision five of this section and the actual costs, expenses and\ndisbursements in bringing and maintaining the proceeding. The authority\nprovided by this subdivision shall be in addition to, and shall not be\ndeemed to diminish or reduce, any rights of the parties described in\nthis section for any violation pursuant to this chapter or any other\nlaw.\n * NB Repealed May 1, 2028\n