N.Y. Agriculture & Markets Law § 258-e: Violations; remedies

§ 258-e. Violations; remedies. 1. The commissioner may institute such

action at law or in equity as may appear necessary to enforce compliance

with any provision of the statutes, rules and orders committed to his

administration, and in addition to any other remedy under article three

of this chapter or otherwise may apply for relief by injunction if

necessary to protect the public interest without being compelled to

allege or prove that an adequate remedy at law does not exist. Such

application may be made to the supreme court in any district or county

as provided in the civil practice law and rules, or to the supreme court

in the third judicial district.

2. In addition to remedies provided by subdivsion one of this section;

Whenever the commissioner has reason to believe that any person has

been or is engaged in conduct which violates any provision of this

article or of any regulation promulgated thereunder he may issue a

complaint specifying the charges and giving reasonable notice of a

hearing thereon.

Whenever the commissioner has reason to believe that any milk dealer,

whether licensed or subject to license under this article, has been or

is engaging in any conduct for which a license may be declined or

revoked pursuant to section two hundred fifty-eight-c, the commissioner

may issue a complaint specifying the charges and giving reasonable

notice of a hearing thereon.

The person so complained of shall appear and show cause why an order

should not be entered by the commissioner requiring such person to cease

and desist from the conduct charged, or to perform those acts which will

constitute a discontinuance of the conduct charged. After due notice and

opportunity of hearing or after default of such person to appear and

proceed, if the commissioner shall find such person to have violated any

provision of this article or any regulation promulgated thereunder or to

have engaged in conduct for which a license may be declined or revoked

pursuant to section two hundred fifty-eight-c, he shall enter an order

requiring such person to cease and desist from the acts, practices or

omissions so found or to perform acts as aforesaid, and imposing such

civil penalty as he deems appropriate within the limits of subdivision

four.

3. The order of the commissioner issued pursuant to subdivision two of

this section shall be final subject to review proceedings under

subdivision five of this section, and shall not be stayed by any court

except as provided in such subdivision five. Upon failure of such person

to obtain a stay as herein provided, the commissioner may apply to the

supreme court of Albany county for an order directing compliance, and if

such order is issued, any failure to obey such compliance order may be

punished as a contempt of court.

4. Any civil penalty imposed by an order issued pursuant to

subdivision two of this section shall be in an amount not less than one

hundred dollars, or more than one thousand dollars for each violation of

this article or any regulation promulgated thereunder. In determining

the amount of any penalty to be assessed under this subdivision, the

commissioner shall consider, but not be limited to consideration of: (i)

the seriousness of the violation for which the penalty is to be imposed

and (ii) the nature and extent of any previous violations for which

penalties have been assessed against the person. Each day's violation

may, in the discretion of the commissioner, be deemed to constitute a

separate offense. If, after the expiration of the thirty day review

period prescribed by subdivisions three and five of this section, such

order has not been stayed by the supreme court in a proceeding for

judicial review thereof, the commissioner may file with the clerk of any

county the original or a certified copy of the order directing payment

of a civil penalty, and thereupon the clerk shall enter in the judgment

docket, in the column for judgment debtors, the name of the person

against whom the penalty was assessed by such order, and in appropriate

columns the amount of such person's liability for such penalty, together

with interests and costs, and the date that such order is filed. Upon

such filing, the amount of the penalty so docketed shall become a lien

upon and bind the real and personal property of the person against whom

it is issued in the same manner as a judgment duly docketed in the

office of such clerk, and the commissioner shall have the same remedies

to enforce such liability as if a judgment in a court of record had been

recovered against such person.

5. Any person aggrieved by final order of the commissioner made

pursuant to this section may within thirty days after service of such

order upon him, institute a proceeding for a review thereof pursuant to

article seventy-eight of the civil practice law and rules; provided,

however, that no stay shall be issued, unless applied for within seven

days after the effective date and unless the applicant makes a clear and

convincing showing of present, substantial and irreparable injury,

clearly over-balancing the public interest in immediate compliance which

is hereby declared as the policy of this act.