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New York Nuisance Abatement Laws Upheld by State High Court

New York City’s nuisance abatement law has been upheld by a decision from the New York Supreme Court, following a request from a business owner to lift an injunction and declare aspects of the law and the city’s application of it unconstitutional.

Our New York City restaurant lawyers realize that city officials tend to be heavy-handed in their use of nuisance abatement laws, sometimes taking a hard line to close businesses with occasional violations when the original intention of the law was simply to empower the city to shutter illegal establishments.

The case of City of New York v. Tokyo Pop LLC however did not serve to end the city’s practice of meting out substantial penalties to those establishments that do occasionally run afoul of City Hall. Businesses must take the threat seriously, and be proactive from the beginning. An experienced New York restaurant lawyer can assert your rights and can also thoroughly review overall business practices and policies.

The decision in this case, issued Jan. 25, 2013, was with regard to the defendant’s challenge of the city’s Nuisance Abatement law, as defined in New York city Administrative code 7-707, 7-709, 7-710 and 7-711.

Tokyo Pop LLC is the company that owns Papasito Midtown Corp. Inc., which runs Papasito Mexican Grill and Avave Bar on Broadway. According to court documents, some in the community had complained about noise, public intoxication and brawling at the restaurant.

In response, the police department sent undercover, underage auxiliary officers inside to buy alcohol, and in four instances they reportedly were successful. Police cited the restaurant for this and was able to obtain a temporary restraining order to allow the city to shutter the business for three days – a move that reportedly cost the restaurant about $30,000. The city had hoped to close the business for 1 year, using the nuisance abatement laws.

In the past, these civil lawsuits have been used to close nightclubs, bars and retail locations. In some cases, police have used nuisance laws (passed in 1977) as a way to rid neighborhoods of seemingly “illicit” businesses, such as porn shops, strip clubs or establishments that catered to gays and lesbians.

The law change in 1977 actually made it easier for police and the city to bring a nuisance case, requiring only that it show a negative “common fame or general reputation” of a business.

The number of nuisance abatement cases in New York City has shot up in recent years, particularly after the police department founded its own legal unit back in the early 1990s. In 1994, there were reportedly about 215 nuisance abatement cases. In 2011, there were more than 990.

Judges overwhelmingly grant these requests. Thus, successfully fighting abatement typically required experienced legal counsel.

In the case at hand, the defendant tried to argue that the city’s use of abatement laws with regard to alcohol sales to minors wasn’t necessary, as such laws are already regulated under the state’s ABC Law 123. Further, the defendant argued that the city was not entitled to injunctive relief in this form because isolated incidents of underage sales of alcohol don’t constitute¬† “trafficking” under the ABC Law. And secondly, that the city hadn’t suffered irreparable harm. The defendants additionally maintained that such an injunction would be punitive, when the nature of nusiance abatement laws is the pursuit of remedial relief.

The court, however, backed the city on this one. Disappointing, but not especially surprising. If you are seeking relief from a nuisance abatement lawsuit in New York City, don’t leave it to chance. Call us today.

The Wright Law Firm is a business law firm located in Midtown Manhattan. Call (212) 619-1500 for a confidential consultation.

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