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This entry was published on 2024-04-28
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SECTION 16-A
Emergency relief
Cannabis (CAN) CHAPTER 7-A, ARTICLE 2
* ³ 16-a. Emergency relief. Following service of an order issued by
the office of cannabis management requiring immediate cessation of
unlicensed activity under this chapter, by a local government pursuant
to a local law authorized by section one hundred thirty-one of this
chapter or pursuant to an order issued under section 7-552 of the
administrative code of the city of New York, the office of cannabis
management, or the attorney general, at the request of and on behalf of
the office, or any county attorney, corporation counsel, or local
government authorized pursuant to subdivision eight of this section to
bring and maintain a civil proceeding in accordance with the procedures
set forth in this section, may bring and maintain a civil proceeding in
the supreme court of the county in which the building or premises is
located to permanently enjoin such unlicensed activity when conducted,
maintained, or permitted in such building or premises, occupied as a
place of business as described in subdivision eight of section ten of
this chapter, in violation of subdivision one or one-a of section one
hundred twenty-five of this chapter or subdivision eight of section one
hundred thirty-two of this chapter, which shall constitute an unlicensed
activity that presents a danger to the public health, safety, and
welfare, and shall also enjoin the person or persons conducting or
maintaining such unlicensed activity, in accordance with the following
procedures:

1. Proceeding for permanent injunction. (a) To the extent known, the
owner, lessor, and lessee of a building or premises wherein the
unlicensed activity is being conducted, maintained, or permitted shall
be made defendants in the proceeding. The venue of such proceeding shall
be in the county where the unlicensed activity is being conducted,
maintained, or permitted or in any venue where a respondent is located.
The existence of an adequate remedy at law shall not prevent the
granting of temporary or permanent relief pursuant to this section.

(b) The proceeding shall name as defendants the building or premises
wherein the unlicensed activity is being conducted, maintained, or
permitted, by describing it by tax lot and street address and at least
one of the owners of some part of or interest in the property.

(c) In rem jurisdiction shall be complete over the building or
premises wherein the unlicensed activity is being conducted, maintained,
or permitted by affixing the notice of petition or order to show cause
to the door of the building or premises and by mailing the notice of
petition or order to show cause by certified or registered mail, return
receipt requested, to one of the owners of some part of or interest in
the property. Proof of service shall be filed within two days thereafter
with the clerk of the court designated in the notice of petition or as
set by the court in the order to show cause. In any county where
e-filing is unavailable, proof of service may be mailed to the clerk.
Service shall be complete upon such filing or mailing.

(d) Defendants, other than the building or premises wherein the
unlicensed activity is being conducted, maintained, or permitted, shall
be served with the notice of petition or order to show cause as provided
in the civil practice law and rules or pursuant to court order. No more
than thirty days prior to such service, the office shall mail a copy, by
certified mail, of any order to cease and desist relating to the
unlicensed activity at the building or premises to the person in whose
name the real estate affected by the proceeding is recorded in the
office of the city register or the county clerk, as the case may be, who
shall be presumed to be the owner thereof. Such mailing shall constitute
notice to the owner and shall be deemed to be complete upon such mailing
by the office as provided above. No more than fifteen days prior to such
service, the office, the attorney general, at the request of and on
behalf of the office of cannabis management, or any local government
authorized pursuant to subdivision eight of this section shall verify
the ongoing occupancy of any natural person who is a tenant of record
and alleged to have caused or permitted the unlicensed activity in the
building or premises wherein the unlicensed activity is alleged to have
been conducted, maintained, or permitted.

(e) With respect to any proceeding commenced or to be commenced
pursuant to this section by the office of cannabis management or the
attorney general, at the request of and on behalf of the office, may
file a notice of pendency pursuant to the provisions of article
sixty-five of the civil practice law and rules.

(f) The person in whose name the real estate affected by the
proceeding is recorded in the office of the city register or the county
clerk, as the case may be, shall be presumed to be the owner thereof.
Upon being served in a proceeding under this section, such owner shall,
to the extent known, provide to the office of cannabis management,
within three days, the names of any other owners, lessors and lessees of
the building or premises that is the subject of the proceeding.
Thereafter, such owners, lessors and lessees may be made parties to the
proceeding.

(g) 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 the unlicensed activity was being conducted, maintained, or
permitted, such evidence shall be presumptive that they were an agent or
employee of the owner or lessee of the building or premises.

(h) A defendant shall furnish to any other party, within five days
after a demand, a verified statement identifying:

(i) If the responding party is a natural person, such party's: (1)
full legal name; (2) date of birth; (3) current home or business street
address; and (4) a unique identifying number from: (A) an unexpired
passport; (B) an unexpired state driver's license; or (C) an unexpired
identification card or document issued by a state or local government
agency or tribal authority for the purpose of identification of that
individual;

(ii) If the responding party is a partnership, limited liability
partnership, limited liability company, or other unincorporated
association, including a for profit or not-for-profit membership
organization or club, the information required pursuant to subparagraph
(i) of this paragraph for each of its partners or members, as well as
the state or other jurisdiction of its formation;

(iii) If the responding party is a corporation, its state or other
jurisdiction of incorporation, principal place of business, and any
state or other jurisdiction of which that party is a citizen;

(iv) If the responding party is not an individual, in addition to any
information provided pursuant to subparagraphs (ii) and (iii) of this
paragraph, and to the extent not previously provided, each beneficial
owner of the responding party by: (1) full legal name; (2) date of
birth; (3) current home or business street address; and (4) a unique
identifying number from: (A) an unexpired passport; (B) an unexpired
state driver's license; or (C) an unexpired identification card or
document issued by a state or local government agency or tribal
authority for the purpose of identification of that individual. As used
in this subparagraph, the term "beneficial owner" shall have the same
meaning as defined in 31 U.S.C. ³ 5336(a)(3), as amended, and any
regulations promulgated thereunder.

(i) If a finding is made that the defendant has conducted, maintained,
or permitted the unlicensed activity a penalty, to be included in the
judgment, may be awarded in an amount not to exceed ten thousand dollars
for each day it is found that the defendant intentionally conducted,
maintained or permitted the unlicensed activity. With regard to any
defendant conducting the referenced unlicensed activity, any such
penalties may be awarded in addition to any penalties that may be
imposed pursuant to section one hundred thirty-two of this chapter. Upon
recovery, such penalty shall be paid to the office of cannabis
management, or to the county attorney, corporation counsel, or local
government that has been authorized pursuant to subdivision eight of
this section to bring and maintain a civil proceeding in accordance with
the procedures set forth in this section.

2. Preliminary injunction. (a) Pending a proceeding for a permanent
injunction pursuant to this section the court may grant a preliminary
injunction enjoining the unlicensed activity and the person or persons
conducting, maintaining, or permitting the unlicensed activity from
further conducting, maintaining, or permitting the unlicensed activity,
where the public health, safety or welfare immediately requires the
granting of such injunction. A temporary closing order may be granted
pending a hearing for a preliminary injunction where it appears by clear
and convincing evidence that unlicensed activity within the scope of
this section is being conducted, maintained, or permitted and that the
public health, safety or welfare immediately requires the granting of a
temporary closing order. A temporary restraining order may be granted
pending a hearing for a preliminary injunction.

(b) A preliminary injunction shall be enforced by the office or, at
the request of the office, the attorney general. At the request of the
office, a police officer or peace officer with jurisdiction may also
enforce the preliminary injunction.

(c) The office or the attorney general shall show, by affidavit and
such other evidence as may be submitted, that there is a cause of action
for a permanent injunction abating unlicensed activity.

3. Temporary closing order. (a) If, on a motion for a preliminary
injunction alleging unlicensed activity as described in this section in
a building or premises used for commercial purposes only, the office or
the attorney general demonstrates by clear and convincing evidence that
such unlicensed activity 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 or premises wherein such unlicensed activity is being
conducted, maintained, or permitted may be granted without notice,
pending order of the court granting or refusing the preliminary
injunction and until further order of the court. Any such closing order
may also include a preservation order authorizing issuance of subpoenas
to third parties to preserve all off site electronic business records.
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 no 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 four business days after the conclusion
of the hearing.

(b) 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.

(c) A temporary closing order shall only be issued prior to a hearing
on a preliminary injunction if the premises that is the subject of the
closure order is used for commercial purposes only.

(d) No temporary closing order shall be issued against any building or
premises where, in addition to the unlicensed activity which is alleged,
activity that is licensed or otherwise lawful remains in place, unless
the licensed or otherwise lawful activity is a de minimis part of the
business. In addition, no temporary closing order shall be issued
against any building or premises which is used in part as residence and
pursuant to local law or ordinance is zoned and lawfully occupied as a
residence.

4. Temporary restraining order. (a) If, on a motion for a preliminary
injunction alleging unlicensed activity as described in this section in
a building or premises used for commercial purposes, the office or the
attorney general demonstrates by clear and convincing evidence that such
unlicensed activity is being conducted, maintained, or permitted and
that the public health, safety, or welfare immediately requires a
temporary restraining order, a 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 such
unlicensed activity, including cannabis, cannabis product, cannabinoid
hemp or hemp extract product, or any product marketed or labeled as such
and from further conducting, maintaining or permitting such unlicensed
activity, pending order of the court granting or refusing the
preliminary injunction and until further order of the court. Any such
temporary restraining order may also include a preservation order
authorizing issuance of subpoenas to third parties to preserve all off
site electronic business records. 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 no 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 thirty calendar days after the conclusion of the hearing.

(b) 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 civil practice law and rules, upon any
agent, employee, or other representative of the defendant business
present at the time the temporary restraining order is effectuated.

5. Temporary closing order; temporary restraining order; additional
enforcement procedures. (a) If on a motion for a preliminary injunction,
the office of cannabis management or the attorney general submits
evidence warranting both a temporary closing order and a temporary
restraining order, the court shall grant both orders.

(b) Upon the request of the office, any police officer or peace
officer with jurisdiction may assist in the enforcement of a temporary
closing order and temporary restraining order. Any reference to police
officer or peace officer in this subdivision and subdivisions six and
seven of this section shall also include any investigator employed by
the office of the attorney general.

(c) The police officer or peace officer serving a temporary closing
order or 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 the unlicensed activity within
the scope of this chapter and shall enter upon the building or premises
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, except that any cash found on
the premises during such inventory shall be inventoried, seized, and
secured off premises pending further order of the court. Any police
officer or peace officer, or any representative of the office, shall be
permitted to review and copy records.

(d) The police officer or peace officer serving a temporary closing
order shall, upon service of the order, command all persons present in
the building or premises to vacate the premises forthwith. Upon the
building or premises being vacated, the premises shall be securely
locked and all keys delivered to the officer serving the order who
thereafter may deliver the keys to the fee owner, lessor, or lessee of
the building or premises involved. If the fee owner, lessor, or lessee
is not at the building or premises when the order is being executed, the
officer 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 officer may deliver the keys to such owner, lessor, or
lessee or retain them pending further order of the court.

(e) Upon service of a temporary closing order or a temporary
restraining order, the police officer or peace 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 unlicensed activity is
being conducted, maintained, or permitted. In addition, where a
temporary closing order has been granted, the officer shall affix, in a
conspicuous place or upon one or more of the principal doors at
entrances of such premises, a 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 officer or agency
posting the notice. In addition, where a temporary restraining order has
been granted, the police officer or peace officer 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 five thousand dollars or by
imprisonment not exceeding ninety days, or by both, provided such order
or notice contains therein a notice of such penalty. Any police officer
or peace officer with jurisdiction may, upon the request of the office,
assist in the enforcement of this section.

6. Temporary closing order; temporary restraining order; defendant's
remedies. (a) A temporary closing order or a temporary restraining order
may be vacated, upon notice to the office and to any county attorney,
corporation counsel, or local government that may have been authorized
pursuant to subdivision eight of this section to bring and maintain the
proceeding in accordance with the procedures set forth in this section,
if a defendant who is the fee owner, lessor, or lessee of the building
or premises shows by affidavit and such other proof as may be submitted
that the unlicensed activity within the scope of this chapter has been
abated and that they are also not affiliated with the person who is
conducting the unlicensed activity. An order vacating a temporary
closing order or a temporary restraining order shall include a provision
authorizing the office, or any county attorney, corporation counsel, or
local government, as applicable, to inspect the building or premises
which is the subject of a proceeding pursuant to this subdivision,
periodically without notice, during the pendency of the proceeding for
the purpose of ascertaining whether or not the unlicensed activity has
been resumed. Any police officer or peace officer with jurisdiction may,
upon the request of the office, assist in the enforcement of an
inspection provision of an order vacating a temporary closing order or
temporary restraining order.

(b) A temporary closing order or a temporary restraining order may be
vacated by the court, upon notice to the office, or any county attorney,
corporation counsel, or local government, as applicable, when a
defendant entitled to request vacatur pursuant to paragraph (a) of this
subdivision gives an undertaking and the court is satisfied that the
public health, safety, or welfare will be protected adequately during
the pendency of the proceeding. The undertaking shall be in an amount
equal to the assessed valuation of the building or premises where the
unlicensed activity is being conducted, maintained, or permitted or in
such other amount as may be fixed by the court. The defendant shall pay
to the office and the attorney general, in the event a judgment of
permanent injunction is obtained, their actual costs, expenses and
disbursements in bringing and maintaining the proceeding. In addition,
the defendant shall pay to the local government or law enforcement
agency that provided assistance in enforcing any order of the court
issued pursuant to a proceeding brought under this section, its actual
costs, expenses and disbursements in assisting with the enforcement of
the proceeding.

7. Permanent injunction. (a) A judgment awarding a permanent
injunction pursuant to this chapter shall direct that any illicit
cannabis, cannabis product, cannabinoid hemp or hemp extract product, or
any product marketed or labeled as such seized shall be turned over to
the office of cannabis management or their authorized representative.
The judgment may further direct any police officer or peace officer with
jurisdiction to seize and remove from the building or premises all
material, equipment, and instrumentalities used in the creation and
maintenance of the unlicensed activity and shall direct the sale by the
sheriff of any such property in the manner provided for the sale of
personal property under execution pursuant to the provisions of the
civil practice law and rules, if the estimated value of the property
exceeds the estimated lawful expenses of such sale, or the disposal of
the property if the estimated value of the property does not exceed the
estimated lawful expenses of such sale. The net proceeds of any such
sale, after deduction of the lawful expenses involved, shall be paid to
the general fund of the state.

(b) A judgment awarding a permanent injunction pursuant to this
chapter may direct the closing of the building or premises by any police
officer or peace officer with jurisdiction to the extent necessary to
abate the unlicensed activity and shall direct any police officer or
peace officer with jurisdiction to post a copy of the judgment and a
printed notice of such closing conforming to the requirements of this
chapter. 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. 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
unlicensed activity has been abated and will not be created, maintained,
or permitted for such period of time as the building or premises has
been directed to be closed in the judgment, and also submits proof that
they are also not affiliated with the person who is conducting the
unlicensed activity, the court may vacate the provisions of the judgment
that direct the closing of the building or premises. A closing by a
police officer or peace officer with jurisdiction pursuant to the
provisions of this section shall not constitute an act of possession,
ownership, or control by such police officer or peace officer of the
closed premises.

(c) Upon the request of the office of cannabis management or its
authorized representative, or any county attorney, corporation counsel,
or local government authorized pursuant to subdivision eight of this
section to bring and maintain a civil proceeding in accordance with the
procedures set forth in this section, any police officer or peace
officer with jurisdiction may assist in the enforcement of a judgment
awarding a permanent injunction entered in a proceeding brought pursuant
to this chapter.

(d) A judgment rendered awarding a permanent injunction pursuant to
this chapter shall be and become a lien upon the building or premises
named in the petition in such proceeding, such lien to date from the
time of filing a notice of lis pendens in the office of the clerk of the
county wherein the building or premises 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, 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 office and the attorney general, or of
any county attorney, corporation counsel, or local government authorized
pursuant to subdivision eight of this section to bring and maintain a
civil proceeding in accordance with the procedures set forth in this
section, in bringing and maintaining the proceeding.

8. Civil proceedings. In addition to the authority granted in this
section to the office of cannabis management and the attorney general,
any county attorney, corporation counsel, or local government in which
such building or premises is located may, seven days or more after
providing notice to the office of cannabis management, bring and
maintain a civil proceeding in the supreme court of the county in which
the building or premises is located to permanently enjoin the unlicensed
activity described in this section and the person or persons conducting
or maintaining such unlicensed activity, in accordance with the
procedures set forth in this section. The office shall be permitted to
intervene as of right in any such proceeding. Any such governmental
entity which obtains a permanent injunction pursuant to this chapter
shall be awarded, 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, any penalties awarded
pursuant to paragraph (i) of subdivision one or paragraph (e) of
subdivision five of this section and the actual costs, expenses and
disbursements in bringing and maintaining the proceeding. The authority
provided by this subdivision shall be in addition to, and shall not be
deemed to diminish or reduce, any rights of the parties described in
this section for any violation pursuant to this chapter or any other
law.

* NB Repealed May 1, 2028