687 NYS2d 523 | N.Y. Sup. Ct. | 1998
OPINION OF THE COURT
This action, brought under section 9-21 of the Charter of the
The City alleges in affidavits that, since The Eclipse obtained its liquor license in August, it “has become a focal point of police attention, requiring the Rochester Police Department to regularly deploy police officers to the Eclipse at closing time to, among other things, assist with the dispersal of large disorderly crowds of patrons.” According to the City, Eclipse patrons “persist in being loud and disorderly, loitering in the streets and sidewalks in the area in and around the club, discharging firearms, and fighting.” The City’s papers contain evidence of only two instances of disorderly conduct which began inside the club (Sept. 27, 1998, Dec. 6, 1998), but several instances of such conduct, including shots fired, outside the club and in nearby streets and sidewalks at closing time. Respondents do not dispute that these incidents, detailed in logs provided by both sides in this litigation, actually occurred, but they dispute the genuineness of the fights which simultaneously broke out on the night of December 5 through 6, 1998, shortly before this application was argued in court, and they believe that they cannot be held liable for incidents which occurred off premises.
The incidents involved quite large crowds and shots fired. The incident on December 6, 1998, which occurred after respondents were served with these motion papers, began with what is alleged to have been serious fighting inside the club. Participants exiting the club warned officers not to enter the club because of an expected “shoot out.” Streets in the area were temporarily closed. Respondents’ privately hired security guards were forced to spray mace inside to quell the fighting.
On prior occasions, three patrons were shot shortly after leaving the club, one resulting in death. The City maintains that the operation of the club thus results “in an unacceptable drain on police resources and the unacceptable risk to the public’s and police officers’ health and safety arising from the
Respondents insist, however, that all alleged nuisance activities have occurred a significant distance from the premises, and cannot be used as support for the City’s contention that The Eclipse is a public nuisance. Although respondents acknowledge that an altercation occurred within the premises on the night of December 5 through 6, which spilled out into the streets, they contend that this was a contrived “isolated incident” which cannot, without repeated such instances within or “at the premises”, alone establish a public nuisance. Indeed, respondents contend that the fights at the club that night were staged by individuals who told the owner or his employees that they were offered a reduction of criminal charges then pending against them if they created a serious problem at the club that night. The owner avers in an affidavit that, at approximately 1:25 a.m., about six fights broke out “simultaneously at different locations inside the club”, at least three of which were initiated by patrons who earlier tried without success to bring weapons into the club. According to the owner, prior to that night only two patrons had ever tried to secrete weapons into the club.
Finally, respondents contend that, prior to this, only two serious incidents occurred in front of the club. The first, on August 8, 1998, was instigated after closing time by two men who earlier were denied entrance to the club and who drove up in a mini-van and started a fight on the corner of South Washington and Main Streets. This fight led to a series of fights. The second incident in front of the club occurred on September 26, 1998, at closing time, when a fight broke out between several groups of men which “overwhelmed our club security, and police were forced to utilize pepper spray against several combative persons in order to control the situation.” According to the club owner, “[t]hese were the only incidents which occurred directly in front of our club. The remaining ‘nuisance activities’ alleged by the City all occurred after our security staff had successfully dispersed the crowd from the area in front of the nightclub.” The owner insists that he “obviously cannot control what occurs after patrons are a significant distance from the nightclub and/or are inside of their vehicles”.
DISCUSSION
Section 3-15 of the Charter of the City of Rochester, entitled “Abatement of nuisances”, authorizes the Mayor to order the closing of a building to the extent necessary to abate a public nuisance. Public nuisances, as defined in the Charter, exist whenever a sufficient number of violation points have accrued within a specific time period. Points are assessed for violations of the Penal Law and the Municipal Code. Points are also assessed for “permitting the premises to become disorderly, including suffering or permitting fighting or lewdness.” (Charter § 3-15 [B] [3] [d].) Here, the City is not alleging that The Eclipse is a public nuisance as defined in the Charter. Indeed, the City makes no allegation that respondents have violated liquor law statutes or City ordinances.
Instead, the City is alleging the existence of a common-law public nuisance. Section 9-21 of the Charter authorizes the City to maintain such an action. It reads: “Actions may be maintained by the city in courts of competent jurisdiction to restrain the threatened performance of any act contrary to orders, directions or decisions of the Police Chief and Fire Chief and to restrain and abate nuisances.” This provision invokes the common law of public nuisance, because the Charter does not otherwise define the term nuisance. The City is an appropriate party plaintiff (or petitioner) to bring an action to abate a common-law public nuisance. (Nassau Neuropsychiatric Socy. v Adelphi Univ., 18 NY2d 370, 375 [1966]; New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77, 84 [1949]; see also, New York State Natl. Org. for Women v Terry, 886 F2d 1339, 1361 [2d Cir 1989], cert denied 495 US 947 [1990].)
“A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency [citations omitted]. It consists of conduct or omissions which offend,
Whether conduct “constitutes a public nuisance must be determined as a question of fact under all the circumstances.” (New York Trap Rock Corp. v Town of Clarkstown, 299 NY, at 80, supra.) “Noise and other disturbances of the peace in a neighborhood have been found to be a public nuisance”. (Hoover v Durkee, 212 AD2d 839, 840 [3d Dept 1995], citing People v Rubenfeld, 254 NY 245 [1930]; see, Matter of Circus Disco v New York State Liq. Auth., 51 NY2d 24, 36 [1980]; State of New York v Waterloo Stock Car Raceway, 96 Misc 2d 350 [Sup Ct, Seneca County 1978]; Town of Mount Pleasant v Van Tassell, 7 Misc 2d 643 [Sup Ct, Westchester County 1957], affd 6 AD2d 880 [2d Dept 1958].) Of course, here, much more than mere noise is alleged to constitute a nuisance.
A review of the evidence submitted shows that the City has established, by clear and convincing evidence, the existence of a nuisance and the necessity for abatement. Congestion of public thoroughfares of the kind proven here, both by affidavit and videotape, coupled with disorderly behavior and frequent shooting of firearms and fighting, constitutes a public nuisance for which a landowner or night club operator may be held liable. (Shaw’s Jewelry Shop v New York Herald Co., 170 App Div 504, 507 [1st Dept 1915], affd 224 NY 731 [1918] [Per Curiam].)
Respondents’ contention that they cannot be held liable in nuisance for off-premises conduct of their (former) patrons is
“Courts of other states have indicated that one conducting a business or other activity on his premises may be liable for a nuisance if his patrons’ objectionable conduct is shown to have
To establish entitlement to a preliminary injunction, the moving party must demonstrate “ ‘(1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the preliminary injunction; and (3) that a balancing of equities favors [the movant’s] position’ ”. (Barone v Frie, 99 AD2d 129, 132 [2d Dept 1984], quoting Gambar Enters. v Kelly Servs., 69 AD2d 297, 306 [4th Dept 1979]; see, CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]; Doe v Axelrod, 73 NY2d 748, 750 [1988].)
Respondents’ contention that their business interests outweigh the need for nuisance abatement is without merit. As stated, fault is not a criterion on these facts. Such cases as People v Cuneo E. Press (257 NY 208 [1931]) and Haber v Paramount Ice Corp. (239 App Div 324 [2d Dept 1933]), which described a “general rule” of fault in cases involving the otherwise lawful conduct of business in a business district, and which rule in any event “varies with the circumstances of each particular case” (239 App Div, supra, at 327), do not compel a different result in a clear case of nuisance threatening the welfare and safety of innocent patrons and the public alike. (See also, People v Markovitz, 102 Misc 2d 575, 577 [Crim Ct, NY County 1979] [common-law “policy of great restraint in dealing with economic interests conducting on-going businesses” gives way when nuisances are “ ‘disorderly’ ” and offend “ ‘public
CONCLUSION
The City’s motion for a preliminary injunction is granted. This preliminary injunction does not reach the Erie Professional Building and is directed to The Eclipse and Daniel H. Mackey only.
. Although probably a private nuisance case, the Court was “clearly of the opinion that [the landowner’s] use was * * * an unreasonable interference with the public’s rights in the street”. (Shaw’s Jewelry Shop v New York Herald Co., 170 App Div, supra, at 507.) This is in accord with accepted New
. It has been held that the usual three-pronged test for injunctive relief does not apply where the City of New York seeks to establish a nuisance under the Administrative Code of the City of New York. (City of New York v 56-01 Queens Blvd., 172 Misc 2d 642 [Sup Ct, Queens County 1997] [The City “establishes its entitlement to the injunction simply by proving the illegal conduct during the relevant time period”]; see, City of New York v Bilynn Realty Corp., 118 AD2d 511, 512 [1st Dept 1986].) Here, the City is alleging a common-law nuisance, not a nuisance under the City Charter, and, thus, the three-pronged test does apply.