N.Y. Cannabis Law § 16-a: Emergency relief

* § 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. § 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