Preview
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------------x
In the Matter of the Application of
THE CITY OF NEW YORK AND THE NEW YORK
CITY DEPARTMENT OF HEALTH AND MENTAL
HYGIENE, VERIFIED
PETITION
Petitioners,
FOR A COURT ORDER TO ENTER UPON THE
PREMISES LOCATED AT BLOCK 1771, LOTS 69 AND
70, NEW YORK COUNTY, NEW YORK, FOR THE
PURPOSE OF INSPECTING AND ABATING THE
NUISANCE EXISTING THEREUPON IN VIOLATION
OF THE HEALTH AND SAFETY REQUIREMENTS OF
THE NEW YORK CITY HEALTH CODE
-----------------------------------------------------------------------------x
Petitioners, THE CITY OF NEW YORK and THE NEW YORK CITY
DEPARTMENT OF HEALTH AND MENTAL HYGIENE, by their attorney, HON. SYLVIA O.
HINDS-RADIX, Corporation Counsel of the City of New York, as and for their verified petition,
allege as follows upon information and belief:
INTRODUCTION
1. By this proceeding, petitioners seek an Access Order permitting
petitioners to enter the land located at Block 1771, Lots 69 and 70, adjacent to 108 East 123
Street, New York County, New York (the “subject premises” or “subject lots”). 1
1
City records show the addresses of the subject premises to be 106 East 123 St (Lot 69) and
104 East 123 Street (Lot 70), but there is no structure at that location bearing either of those
addresses and thus the subject lots cannot be found by looking for street addresses at the subject
premises. The most accurate way to identify the location of the subject lots is by their tax-block-
and-lot descriptions, which are used in the annexed Department of Sanitation documents. In the
absence of a structure at the subject lots bearing street addresses, the locator address “adjacent to
108 East 123 Street” provides an additional method for identifying the correct lots.
1 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
2. The purpose of the entry on an emergency basis is to inspect and abate any
conditions found to exist on the grounds of the subject lots that are in violation of the New York
City Health Code (“Health Code”) and that compromise the public health, safety, and welfare.
3. Based upon the annexed affidavit of Jerome Nabbie, an employee of the
Lot Cleaning Division of the New York City Department of Sanitation (“DSNY”) (hereinafter
the “Nabbie Affidavit”), the DSNY inspection reports annexed thereto as Exhibit A, and
photographs taken at the subject premises on September 14, 2022 (annexed hereto as Exhibit B),
the subject premises are currently in violation of the Health Code in that the conditions there are
conducive to rat harborage and/or rats exist on the subject premises.
4. As is set forth in the copy of the affidavit of Mario Merlino, Assistant
Commissioner of the New York City Department of Health and Mental Hygiene Bureau of
Veterinary and Pest Control Services (annexed hereto as Exhibit C), rats are a menace to public
health in that they are capable of transmitting certain diseases and biting people, thus constituting
a public nuisance.
5. Thus, it is necessary to gain access into the subject lots, on an emergency
basis, for the purposes of clean-up and/or extermination to abate the presence of rodents or any
condition conducive to rodents.
THE PARTIES
6. Petitioner THE CITY OF NEW YORK is a municipal corporation
incorporated under the laws of the State of New York.
7. Petitioner THE NEW YORK CITY DEPARTMENT OF HEALTH AND
MENTAL HYGIENE is an agency empowered under the New York City Charter to regulate all
matters affecting health in the City of New York.
-2-
2 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
8. The land that is the subject of this application is located at Block 1771,
Lots 69 and 70, adjacent to 108 East 123 Street, New York County, New York.
VENUE
9. Venue for this proceeding is in New York County, which is the county in
which the subject premises are located.
RELEVANT STATUTORY AND REGULATORY PROVISIONS
General Powers of the Department of Health and Mental Hygiene
10. New York City Charter (“City Charter”) § 556 provides that the functions,
powers, and duties of the Department of Health and Mental Hygiene (“DOHMH”) include the
control and supervision of the abatement of nuisances affecting or likely to affect public health,
as follows:
§ 556. Functions, powers and duties of the
department.
Except as otherwise provided by law, the
department shall have jurisdiction to regulate all
matters affecting health in the city of New York
and to perform all those functions and operations
performed by the city that relate to the health of
the people of the city, ….. The jurisdiction of the
department shall include but not be limited to the
following:
a. General functions. (1) Enforce all
provisions of law applicable in the area under the
jurisdiction of the department for the
preservation of human life, for the care,
promotion and protection of health...;
* * *
c. Supervision of matters affecting public
health...;
(2) supervise the reporting and control of
communicable and chronic diseases and
conditions hazardous to life and health; exercise
control over and supervise the abatement of
-3-
3 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
nuisances affecting or likely to affect the public
health …..
11. New York City Health Code § 3.01, which is codified as part of Title 24
of the Rules of the City of New York (“RCNY”), empowers DOHMH to inspect premises and to
take such action as is necessary to protect the public health, as follows:
§ 3.01 General powers of the Department.
(a) The Department may inspect any premises,
matter or thing within its jurisdiction, including but
not limited to any premises where an activity
regulated by this Code is carried on ....
* * *
(c) Subject to the provisions of this Code or
other applicable law, the Department may take such
action as may become necessary to assure the
maintenance of public health, the prevention of
disease, or the safety of the City and its residents.
Obligations of Property Owners to Keep Lots Clean and Sanitary
12. Health Code § 3.07 sets forth the general standards for all persons to
protect health and safety, as follows:
§ 3.07 General standards to protect health and
safety; prohibited acts; necessary acts and
precautions.
No person shall do or assist in any act which is or
may be detrimental to the public health or to the life
or health of any individual unless the act is
authorized by law. No person shall fail to do any
reasonable act or take any necessary precaution to
protect human life and health.
13. Administrative Code § 16-118 enumerates the duties of owners of vacant
lots and all others who are in charge of lots with regard to refuse on the lot, as follows:
§ 16-118 Littering prohibited.
***
(2)(b) … Every owner, lessee, tenant or person in
charge of any vacant lot shall keep and cause to be
kept said vacant lot free from garbage, refuse,
-4-
4 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
rubbish, litter, debris and other offensive
material….
The Control of Rodents and Insects
14. Health Code § 151.01 defines “harborage” as follows:
§ 151.01 Definitions.
When used in this article:
* * *
(b) Harborage means any condition that provides shelter or
protection for rodents, insects or other pests.
15. Health Code § 151.02 requires anyone in control of a building, lot, or
premises to prevent and control the harborage of rodents, insects, or other pests, as follows:
§151.02 Prevention and pest management
measures.
(a) Properties shall be free of pests. All premises
capable of attracting or supporting rodents, insects
and other pests shall be kept free from rodents,
insects and other pests, and from any conditions
conducive to pests. The person in control of such
premises shall take such measures as may be
necessary to prevent and control the harborage and
free movement of rodents, insects or other pests.
(b) Waste shall be managed to prevent pests. All
garbage and other waste and recyclable materials
shall be deposited in tightly covered, watertight
receptacles made of a material type and grade that is
resistant to rodents, insects and other pests until
such time that garbage and waste materials are
moved to an area for a scheduled pickup, at which
time they shall be placed in a suitable bag or other
container acceptable to the Department, and to the
City Departments of Sanitation and Housing
Preservation and Development. Receptacles used
for liquid waste shall be constructed to hold
contents without leakage.
16. Health Code § 151.02 further sets forth the authority of the Department of
Health and Mental Hygiene to order the person in control of any building, lot, or premises
-5-
5 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
infested with rodents or insects to take such eradication measures as DOHMH deems necessary,
as follows:
§ 151.02 Prevention and pest management
measures.
* * *
(d) Elimination of conditions conducive to pests and
to the presence of pests. When the Department
determines that a premises has pests or conditions
conducive to pest life, it may order person(s) in
control to take such action as be required by the
Department….
Nuisance Abatement
17. New York City Administrative Code (“Administrative Code”) § 17-142
defines a “nuisance,” in pertinent part, as follows:
§ 17-142 Definition of nuisance.
The word “nuisance”, [sic] shall be held to embrace
public nuisance, as known at common law or in
equity jurisprudence; whatever is dangerous to
human life or detrimental to health; whatever
building or erection, or part or cellar thereof ... is
not sufficiently ventilated, sewered, drained,
cleaned ... in reference to its intended or actual use
.... All such nuisances are hereby declared illegal.
18. Administrative Code § 17-145 authorizes DOHMH to declare a condition
that is dangerous to life or health to be a nuisance, and to issue an order that such nuisance be
removed, as follows:
§ 17-145 Dangerous buildings, places and
things; declaration as nuisance. Whenever any
building, erection, excavation, premises, ...or the
sewerage, drainage or ventilation thereof ... in the
opinion of the board ... shall be in a condition or in
effect dangerous to life or health, and whenever
there shall be growing on any property any ragweed
or other species of weed, plant or growth which is
noxious or detrimental to the public health ...the
board may take and file among its records what it
-6-
6 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
shall regard as sufficient proof to authorize its
declaration that the same ...is a public nuisance or
dangerous to life or health; and may thereupon enter
the same in its records as a nuisance, and order the
same to be removed, abated, suspended, altered or
otherwise improved or purified, as such order shall
specify ....
19. Health Code § 3.09 makes itunlawful for anyone to maintain a nuisance
on property he or she owns or controls, as follows:
§ 3.09 Abatement of nuisances. No person shall
commit or maintain a nuisance as defined in §17-
142 of the Administrative Code, and no person shall
allow such a nuisance to exist or to be created in
respect of any matter, thing, chattel or premises
which he owns or controls.
20. Administrative Code § 17-144 holds property owners responsible for
preventing nuisance conditions on their property, as follows:
§ 17-144 Nuisances; who is liable. It is hereby
declared to be the duty ...of every owner ...of, or
in, any place ...building, erection ...to keep, place
and preserve the same and every part, and the
sewerage, drainage and ventilation thereof in such
condition, and to conduct the same in such manner
that it shall not be dangerous or prejudicial to life or
health, subject to the health code and orders of the
department.
21. Administrative Code §§ 17-141 and 17-148 set forth the methods
generally to be employed to serve DOHMH orders, as follows:
§ 17-141 Service of orders.
a. Service of any order of the department or board shall be
deemed sufficient if made:
1. Upon a principal person interested in the
business, property, matter or thing, or the nuisance or abuse
to which such order relates; or
-7-
7 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
2. Upon a principal officer charged with a duty in
relation thereto; or
3. Upon a person, officer or department, or an
officer or employee of such a department, who may be
most interested in or affected by its execution.
b. If such order relate [sic] to any building or the …
cleaning … thereof, or of any lot or ground or in which
such building stands, used … as the residence … of several
persons … service of such order on the agent of any person
… for the renting or for the collecting of rent thereof, or of
the parts thereof to which such order may relate, shall be of
the same effect and validity as due service made upon the
principal of such agent or upon the owners, lessees, tenants
or occupants of such buildings, … or of the subject matter
to which such order relates.
§ 17-148 Substituted service; posting; service by
publication.
a. If personal service of any such order cannot be made by
reason of absence from the district, or inability to find one
or more of the owners, occupants, lessees or tenants of the
subject matter to which such order relates, or one or more
of the persons whose duty it was to have done what is
therein required to be done, as the case may render just and
proper in the opinion of the board, to be shown by the
official certificates of the officer having such order to
serve, then service may be made through the mail, or by
copy left at the residence or place of business of the person
sought to be served, with a person of suitable age and
discretion.
b. In any case where personal service of any such order
cannot be made for the reasons stated in subdivision a of
this section and service cannot be made as provided in such
subdivision through the mail or by leaving a copy with a
person of suitable age and discretion, because of inability to
obtain the name or address of the person sought to be
served, and such inability to effect service is shown by the
official certificate of the officer having such order to serve,
service may be made by conspicuously posting a copy of
such order upon the property to which it relates. The
posting of such order shall be sufficient notice of such
order and of the nuisance therein mentioned to all persons
-8-
8 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
having any duty or liability in relation thereto under the
provisions of this chapter.
22. Administrative Code § 17-147 provides that if the property owner fails to
remedy the condition within five days of service of the order, DOHMH or any agency of the City
acting as DOHMH’s agent may enter upon the premises for the purpose of abating the nuisance
and perform the work itself, as follows:
§ 17-147 Execution.
If such order is not complied with, or so far
complied with as the board may regard as
reasonable, within five days after service or
attempted service or within any shorter time, which,
in case of imminent peril to public health, the board
may have designated…[a]ny agency of the city…to
act as agent of the department in executing such
order. In the event that any agency shall so act, it
shall certify and transmit to the department its
expenses in the execution of such order…[and] such
expenses shall be reimbursed to such agency and
shall be chargeable and collectible as expenses of
the department in connection with the execution of
an order as referred to in this chapter.
23. Administrative Code § 17-114 states that “[t]he department shall have
within the city all common law rights to abate any nuisance without suit, which can or does in
this state belong to any person.”
24. Section 6-03 of Title 16 of the Rules of the City of New York (“RCNY”),
provides that the Department of Sanitation of the City of New York may act upon any request
made by the Commissioner of DOHMH pursuant to Administrative Code § 17-147.
Legal Authority for the Instant Application to This Court
25. General City Law § 20(22) authorizes the City of New York to regulate by
ordinance any matter within the powers of the City, and to maintain an action or special
-9-
9 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
proceeding in a court of competent jurisdiction to compel compliance with, or restrain by
injunction, the violation of any ordinance.
26. City Charter § 398 provides that the Office of the Corporation Counsel
may make an ex parte application to the court for an order directing the entry and inspection of
premises, as follows:
§ 398 Ex parte administrative warrants. If entry
to a location or premises to be inspected pursuant to
an agency’s powers and duties is not gained on
consent, or if circumstances call for entry without
prior notice the commissioner of such agency, or his
or her authorized representative, may request the
corporation counsel to make an application, ex
parte, in any court of competent jurisdiction for an
order directing the entry and inspection of such
premises or location….
Emphasis added.
27. Pursuant to Judiciary Law § 140-b, this Court is authorized to issue the
Access Order sought in the instant ex parte application, which is an administrative warrant
within the meaning of City Charter § 398.
RELEVANT FACTS ABOUT THE SUBJECT PREMISES
28. According to records maintained by the City of New York, PL. 123 Realty
Group, LLC is the owner of the subject premises. The owner’s address of record is 241 W. 37
Street 3rd Floor, New York, NY 10018.
29. Based upon the annexed Nabbie Affidavit, sworn to on November 25,
2022, and the DSNY inspection reports annexed thereto, the subject premises currently contain
conditions that are conducive to rat harborage and/or rats exist on the subject premises.
Specifically, employees of the Lot Cleaning Division inspected the subject premises on July 21,
2022 and September 14, 2022. On the most recent of those inspections, DSNY staff found the
- 10 -
10 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
following conditions at the subject premises: active rodent signs including active rat burrows
with smooth shiny compacted burrow hole openings. The Nabbie Affidavit and inspection
reports are jointly annexed hereto as Exhibit A.
30. Photographs taken at the subject premises on September 14, 2022 by an
employee of the Lot Cleaning Division are annexed hereto as Exhibit B.
31. A DOHMH Commissioner’s Order dated August 4, 2022 was mailed to
the owner of the subject premises, advising the owner that violations of the Health Code existed
at the subject premises and that DOHMH would remove all violations from the subject premises
if the conditions continued to exist five days after the owner’s receipt of the Order. Copies of the
Commissioner’s Order and proof of mailing are annexed as an exhibit to the Nabbie Affidavit
(Exhibit A).
LACK OF ACCESS FOR INSPECTION AND ABATEMENT
32. At the most recent DSNY inspection, DSNY employees verified that
conditions creating a public nuisance continue to exist at the subject premises. DSNY
employees were unable to gain access to the subject premises so as to abate the nuisance
condition because of a fence without a gate. See Nabbie Affidavit ¶¶ 4 and 8.
33. The owner of the premises has been notified of the violative conditions by
way of a DOHMH Commissioner’s Order. See Order and proof of mailing annexed to the
Nabbie Affidavit.
34. By letter dated October 21, 2022 (annexed as part of Exhibit A), the New
York City Department of Sanitation requested the owner’s consent to enter the subject premises
so as to inspect and abate the nuisance. The owner was warned that if the nuisance conditions
remained uncorrected and the owner did not give DSNY consent to abate the nuisance, DSNY
- 11 -
11 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
would make an application to this Court for an order allowing that abatement. Proof of the
mailing of that letter is annexed as part of Exhibit A.
35. As of the date of the signing of this petition, DSNY records reflect that
DSNY has not received consent from the owner to enter the subject premises to inspect and abate
the nuisance at either the email or postal addresses provided for that purpose in the letter. Thus
the City has not been given consent by the owner to enter and clean the subject lots.
36. To date, access to the subject premises has not been gained and it is
believed that conditions that constitute a nuisance continue to exist at the subject premises.
AS AND FOR A COMPLETE CAUSE OF ACTION
37. Petitioners repeat and reallege each and every allegation contained in the
preceding paragraphs as if fully set forth herein.
38. The above facts indicate the following: 1) a public nuisance exists at the
subject premises, 2) the owner of the subject premises has not complied with the August 4, 2022
DOHMH Commissioner’s Order, 3) DSNY has been unable to gain access to the subject
premises in order to further inspect the premises and to abate the nuisance thereat as needed; and
4) itis necessary for DOHMH to obtain an Access Order from this Court in order to enter the
subject premises and abate the nuisance.
39. Pursuant to Administrative Code §§ 17-114 and 17-147, the Department
of Health and Mental Hygiene has the right to “abate any nuisance without suit.”
40. Pursuant to City Charter § 398, the City is authorized to seek an access
order ex parte by demonstrating that entry has not been “gained on consent.” City Charter § 398
does not require the City to also demonstrate that the “circumstances call for entry without prior
notice.” However, the owner has in fact been given notice that the owner’s continued failure to
clean the subject lots may result in the City taking steps, without further notice, to enter the
- 12 -
12 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
subject lots and perform the abatement. See the Commissioner’s Order and the letter requesting
the owner’s consent to enter the subject lots (Exhibit A). Should this Court issue an order
allowing the City to abate the nuisance at the subject premises, as is set forth in the proposed
Access Order attached hereto, the owner will receive notice of the impending abatement
approximately one week prior to its commencement and will have the opportunity to contact the
City and ask for time in which to undertake the lot cleaning, which request is usually granted.
41. No prior application for the same or similar relief has been made by the
petitioners in this proceeding.
WHEREFORE, it is respectfully requested that this application for an Access
Order authorizing petitioners to enter the subject premises to perform a reinspection of the
subject premises and to abate the nuisance that exists thereat be granted.
Dated: New York, New York
November 29, 2022
HON. SYLVIA O. HINDS-RADIX
Corporation Counsel of the
City of New York
Attorney for Petitioners
By:
MARY O'SULLIVAN
Assistant Corporation Counsel
100 Church Street (Admin. Law Div.)
New York, New York 10007
(212) 356-2206
- 13 -
13 of 14
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022
VE,RIF'ICATION PURSUANT TO CPLR 3020(a) and (d)(2)
MICHELLE GOLDBERG-CAHN, ffiattorney admitted to practice before the
Courts of the State.of New York, hereby affirms the following to be true, under penalties of
perjury, pursuant to CPLR 2106:
I have been duly designated as Corporation Counsel of the City of New York and,
as such, I am an Officer of the City of New York, a petitioner in the within proceeding. The
reason why this verification is not made by the City of New York is that it is a corporation.
I have read the foregoing petition and know the contents thereof. I believe the
same to be true upon information and belief. My belief as to all matters is based upon books and
records maintained by various City governmental agencies, and upon statements made by City
personnel in their official capacity.
Dated: New York, New York
November 29,2022
(
Citv v. Block 1771. Lots 69 and 70
2022-071807
14 of 14
Preview
FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------x In the Matter of the Application of THE CITY OF NEW YORK AND THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, VERIFIED PETITION Petitioners, FOR A COURT ORDER TO ENTER UPON THE PREMISES LOCATED AT BLOCK 1771, LOTS 69 AND 70, NEW YORK COUNTY, NEW YORK, FOR THE PURPOSE OF INSPECTING AND ABATING THE NUISANCE EXISTING THEREUPON IN VIOLATION OF THE HEALTH AND SAFETY REQUIREMENTS OF THE NEW YORK CITY HEALTH CODE -----------------------------------------------------------------------------x Petitioners, THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE, by their attorney, HON. SYLVIA O. HINDS-RADIX, Corporation Counsel of the City of New York, as and for their verified petition, allege as follows upon information and belief: INTRODUCTION 1. By this proceeding, petitioners seek an Access Order permitting petitioners to enter the land located at Block 1771, Lots 69 and 70, adjacent to 108 East 123 Street, New York County, New York (the “subject premises” or “subject lots”). 1 1 City records show the addresses of the subject premises to be 106 East 123 St (Lot 69) and 104 East 123 Street (Lot 70), but there is no structure at that location bearing either of those addresses and thus the subject lots cannot be found by looking for street addresses at the subject premises. The most accurate way to identify the location of the subject lots is by their tax-block- and-lot descriptions, which are used in the annexed Department of Sanitation documents. In the absence of a structure at the subject lots bearing street addresses, the locator address “adjacent to 108 East 123 Street” provides an additional method for identifying the correct lots. 1 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 2. The purpose of the entry on an emergency basis is to inspect and abate any conditions found to exist on the grounds of the subject lots that are in violation of the New York City Health Code (“Health Code”) and that compromise the public health, safety, and welfare. 3. Based upon the annexed affidavit of Jerome Nabbie, an employee of the Lot Cleaning Division of the New York City Department of Sanitation (“DSNY”) (hereinafter the “Nabbie Affidavit”), the DSNY inspection reports annexed thereto as Exhibit A, and photographs taken at the subject premises on September 14, 2022 (annexed hereto as Exhibit B), the subject premises are currently in violation of the Health Code in that the conditions there are conducive to rat harborage and/or rats exist on the subject premises. 4. As is set forth in the copy of the affidavit of Mario Merlino, Assistant Commissioner of the New York City Department of Health and Mental Hygiene Bureau of Veterinary and Pest Control Services (annexed hereto as Exhibit C), rats are a menace to public health in that they are capable of transmitting certain diseases and biting people, thus constituting a public nuisance. 5. Thus, it is necessary to gain access into the subject lots, on an emergency basis, for the purposes of clean-up and/or extermination to abate the presence of rodents or any condition conducive to rodents. THE PARTIES 6. Petitioner THE CITY OF NEW YORK is a municipal corporation incorporated under the laws of the State of New York. 7. Petitioner THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE is an agency empowered under the New York City Charter to regulate all matters affecting health in the City of New York. -2- 2 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 8. The land that is the subject of this application is located at Block 1771, Lots 69 and 70, adjacent to 108 East 123 Street, New York County, New York. VENUE 9. Venue for this proceeding is in New York County, which is the county in which the subject premises are located. RELEVANT STATUTORY AND REGULATORY PROVISIONS General Powers of the Department of Health and Mental Hygiene 10. New York City Charter (“City Charter”) § 556 provides that the functions, powers, and duties of the Department of Health and Mental Hygiene (“DOHMH”) include the control and supervision of the abatement of nuisances affecting or likely to affect public health, as follows: § 556. Functions, powers and duties of the department. Except as otherwise provided by law, the department shall have jurisdiction to regulate all matters affecting health in the city of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city, ….. The jurisdiction of the department shall include but not be limited to the following: a. General functions. (1) Enforce all provisions of law applicable in the area under the jurisdiction of the department for the preservation of human life, for the care, promotion and protection of health...; * * * c. Supervision of matters affecting public health...; (2) supervise the reporting and control of communicable and chronic diseases and conditions hazardous to life and health; exercise control over and supervise the abatement of -3- 3 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 nuisances affecting or likely to affect the public health ….. 11. New York City Health Code § 3.01, which is codified as part of Title 24 of the Rules of the City of New York (“RCNY”), empowers DOHMH to inspect premises and to take such action as is necessary to protect the public health, as follows: § 3.01 General powers of the Department. (a) The Department may inspect any premises, matter or thing within its jurisdiction, including but not limited to any premises where an activity regulated by this Code is carried on .... * * * (c) Subject to the provisions of this Code or other applicable law, the Department may take such action as may become necessary to assure the maintenance of public health, the prevention of disease, or the safety of the City and its residents. Obligations of Property Owners to Keep Lots Clean and Sanitary 12. Health Code § 3.07 sets forth the general standards for all persons to protect health and safety, as follows: § 3.07 General standards to protect health and safety; prohibited acts; necessary acts and precautions. No person shall do or assist in any act which is or may be detrimental to the public health or to the life or health of any individual unless the act is authorized by law. No person shall fail to do any reasonable act or take any necessary precaution to protect human life and health. 13. Administrative Code § 16-118 enumerates the duties of owners of vacant lots and all others who are in charge of lots with regard to refuse on the lot, as follows: § 16-118 Littering prohibited. *** (2)(b) … Every owner, lessee, tenant or person in charge of any vacant lot shall keep and cause to be kept said vacant lot free from garbage, refuse, -4- 4 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 rubbish, litter, debris and other offensive material…. The Control of Rodents and Insects 14. Health Code § 151.01 defines “harborage” as follows: § 151.01 Definitions. When used in this article: * * * (b) Harborage means any condition that provides shelter or protection for rodents, insects or other pests. 15. Health Code § 151.02 requires anyone in control of a building, lot, or premises to prevent and control the harborage of rodents, insects, or other pests, as follows: §151.02 Prevention and pest management measures. (a) Properties shall be free of pests. All premises capable of attracting or supporting rodents, insects and other pests shall be kept free from rodents, insects and other pests, and from any conditions conducive to pests. The person in control of such premises shall take such measures as may be necessary to prevent and control the harborage and free movement of rodents, insects or other pests. (b) Waste shall be managed to prevent pests. All garbage and other waste and recyclable materials shall be deposited in tightly covered, watertight receptacles made of a material type and grade that is resistant to rodents, insects and other pests until such time that garbage and waste materials are moved to an area for a scheduled pickup, at which time they shall be placed in a suitable bag or other container acceptable to the Department, and to the City Departments of Sanitation and Housing Preservation and Development. Receptacles used for liquid waste shall be constructed to hold contents without leakage. 16. Health Code § 151.02 further sets forth the authority of the Department of Health and Mental Hygiene to order the person in control of any building, lot, or premises -5- 5 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 infested with rodents or insects to take such eradication measures as DOHMH deems necessary, as follows: § 151.02 Prevention and pest management measures. * * * (d) Elimination of conditions conducive to pests and to the presence of pests. When the Department determines that a premises has pests or conditions conducive to pest life, it may order person(s) in control to take such action as be required by the Department…. Nuisance Abatement 17. New York City Administrative Code (“Administrative Code”) § 17-142 defines a “nuisance,” in pertinent part, as follows: § 17-142 Definition of nuisance. The word “nuisance”, [sic] shall be held to embrace public nuisance, as known at common law or in equity jurisprudence; whatever is dangerous to human life or detrimental to health; whatever building or erection, or part or cellar thereof ... is not sufficiently ventilated, sewered, drained, cleaned ... in reference to its intended or actual use .... All such nuisances are hereby declared illegal. 18. Administrative Code § 17-145 authorizes DOHMH to declare a condition that is dangerous to life or health to be a nuisance, and to issue an order that such nuisance be removed, as follows: § 17-145 Dangerous buildings, places and things; declaration as nuisance. Whenever any building, erection, excavation, premises, ...or the sewerage, drainage or ventilation thereof ... in the opinion of the board ... shall be in a condition or in effect dangerous to life or health, and whenever there shall be growing on any property any ragweed or other species of weed, plant or growth which is noxious or detrimental to the public health ...the board may take and file among its records what it -6- 6 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 shall regard as sufficient proof to authorize its declaration that the same ...is a public nuisance or dangerous to life or health; and may thereupon enter the same in its records as a nuisance, and order the same to be removed, abated, suspended, altered or otherwise improved or purified, as such order shall specify .... 19. Health Code § 3.09 makes itunlawful for anyone to maintain a nuisance on property he or she owns or controls, as follows: § 3.09 Abatement of nuisances. No person shall commit or maintain a nuisance as defined in §17- 142 of the Administrative Code, and no person shall allow such a nuisance to exist or to be created in respect of any matter, thing, chattel or premises which he owns or controls. 20. Administrative Code § 17-144 holds property owners responsible for preventing nuisance conditions on their property, as follows: § 17-144 Nuisances; who is liable. It is hereby declared to be the duty ...of every owner ...of, or in, any place ...building, erection ...to keep, place and preserve the same and every part, and the sewerage, drainage and ventilation thereof in such condition, and to conduct the same in such manner that it shall not be dangerous or prejudicial to life or health, subject to the health code and orders of the department. 21. Administrative Code §§ 17-141 and 17-148 set forth the methods generally to be employed to serve DOHMH orders, as follows: § 17-141 Service of orders. a. Service of any order of the department or board shall be deemed sufficient if made: 1. Upon a principal person interested in the business, property, matter or thing, or the nuisance or abuse to which such order relates; or -7- 7 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 2. Upon a principal officer charged with a duty in relation thereto; or 3. Upon a person, officer or department, or an officer or employee of such a department, who may be most interested in or affected by its execution. b. If such order relate [sic] to any building or the … cleaning … thereof, or of any lot or ground or in which such building stands, used … as the residence … of several persons … service of such order on the agent of any person … for the renting or for the collecting of rent thereof, or of the parts thereof to which such order may relate, shall be of the same effect and validity as due service made upon the principal of such agent or upon the owners, lessees, tenants or occupants of such buildings, … or of the subject matter to which such order relates. § 17-148 Substituted service; posting; service by publication. a. If personal service of any such order cannot be made by reason of absence from the district, or inability to find one or more of the owners, occupants, lessees or tenants of the subject matter to which such order relates, or one or more of the persons whose duty it was to have done what is therein required to be done, as the case may render just and proper in the opinion of the board, to be shown by the official certificates of the officer having such order to serve, then service may be made through the mail, or by copy left at the residence or place of business of the person sought to be served, with a person of suitable age and discretion. b. In any case where personal service of any such order cannot be made for the reasons stated in subdivision a of this section and service cannot be made as provided in such subdivision through the mail or by leaving a copy with a person of suitable age and discretion, because of inability to obtain the name or address of the person sought to be served, and such inability to effect service is shown by the official certificate of the officer having such order to serve, service may be made by conspicuously posting a copy of such order upon the property to which it relates. The posting of such order shall be sufficient notice of such order and of the nuisance therein mentioned to all persons -8- 8 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 having any duty or liability in relation thereto under the provisions of this chapter. 22. Administrative Code § 17-147 provides that if the property owner fails to remedy the condition within five days of service of the order, DOHMH or any agency of the City acting as DOHMH’s agent may enter upon the premises for the purpose of abating the nuisance and perform the work itself, as follows: § 17-147 Execution. If such order is not complied with, or so far complied with as the board may regard as reasonable, within five days after service or attempted service or within any shorter time, which, in case of imminent peril to public health, the board may have designated…[a]ny agency of the city…to act as agent of the department in executing such order. In the event that any agency shall so act, it shall certify and transmit to the department its expenses in the execution of such order…[and] such expenses shall be reimbursed to such agency and shall be chargeable and collectible as expenses of the department in connection with the execution of an order as referred to in this chapter. 23. Administrative Code § 17-114 states that “[t]he department shall have within the city all common law rights to abate any nuisance without suit, which can or does in this state belong to any person.” 24. Section 6-03 of Title 16 of the Rules of the City of New York (“RCNY”), provides that the Department of Sanitation of the City of New York may act upon any request made by the Commissioner of DOHMH pursuant to Administrative Code § 17-147. Legal Authority for the Instant Application to This Court 25. General City Law § 20(22) authorizes the City of New York to regulate by ordinance any matter within the powers of the City, and to maintain an action or special -9- 9 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 proceeding in a court of competent jurisdiction to compel compliance with, or restrain by injunction, the violation of any ordinance. 26. City Charter § 398 provides that the Office of the Corporation Counsel may make an ex parte application to the court for an order directing the entry and inspection of premises, as follows: § 398 Ex parte administrative warrants. If entry to a location or premises to be inspected pursuant to an agency’s powers and duties is not gained on consent, or if circumstances call for entry without prior notice the commissioner of such agency, or his or her authorized representative, may request the corporation counsel to make an application, ex parte, in any court of competent jurisdiction for an order directing the entry and inspection of such premises or location…. Emphasis added. 27. Pursuant to Judiciary Law § 140-b, this Court is authorized to issue the Access Order sought in the instant ex parte application, which is an administrative warrant within the meaning of City Charter § 398. RELEVANT FACTS ABOUT THE SUBJECT PREMISES 28. According to records maintained by the City of New York, PL. 123 Realty Group, LLC is the owner of the subject premises. The owner’s address of record is 241 W. 37 Street 3rd Floor, New York, NY 10018. 29. Based upon the annexed Nabbie Affidavit, sworn to on November 25, 2022, and the DSNY inspection reports annexed thereto, the subject premises currently contain conditions that are conducive to rat harborage and/or rats exist on the subject premises. Specifically, employees of the Lot Cleaning Division inspected the subject premises on July 21, 2022 and September 14, 2022. On the most recent of those inspections, DSNY staff found the - 10 - 10 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 following conditions at the subject premises: active rodent signs including active rat burrows with smooth shiny compacted burrow hole openings. The Nabbie Affidavit and inspection reports are jointly annexed hereto as Exhibit A. 30. Photographs taken at the subject premises on September 14, 2022 by an employee of the Lot Cleaning Division are annexed hereto as Exhibit B. 31. A DOHMH Commissioner’s Order dated August 4, 2022 was mailed to the owner of the subject premises, advising the owner that violations of the Health Code existed at the subject premises and that DOHMH would remove all violations from the subject premises if the conditions continued to exist five days after the owner’s receipt of the Order. Copies of the Commissioner’s Order and proof of mailing are annexed as an exhibit to the Nabbie Affidavit (Exhibit A). LACK OF ACCESS FOR INSPECTION AND ABATEMENT 32. At the most recent DSNY inspection, DSNY employees verified that conditions creating a public nuisance continue to exist at the subject premises. DSNY employees were unable to gain access to the subject premises so as to abate the nuisance condition because of a fence without a gate. See Nabbie Affidavit ¶¶ 4 and 8. 33. The owner of the premises has been notified of the violative conditions by way of a DOHMH Commissioner’s Order. See Order and proof of mailing annexed to the Nabbie Affidavit. 34. By letter dated October 21, 2022 (annexed as part of Exhibit A), the New York City Department of Sanitation requested the owner’s consent to enter the subject premises so as to inspect and abate the nuisance. The owner was warned that if the nuisance conditions remained uncorrected and the owner did not give DSNY consent to abate the nuisance, DSNY - 11 - 11 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 would make an application to this Court for an order allowing that abatement. Proof of the mailing of that letter is annexed as part of Exhibit A. 35. As of the date of the signing of this petition, DSNY records reflect that DSNY has not received consent from the owner to enter the subject premises to inspect and abate the nuisance at either the email or postal addresses provided for that purpose in the letter. Thus the City has not been given consent by the owner to enter and clean the subject lots. 36. To date, access to the subject premises has not been gained and it is believed that conditions that constitute a nuisance continue to exist at the subject premises. AS AND FOR A COMPLETE CAUSE OF ACTION 37. Petitioners repeat and reallege each and every allegation contained in the preceding paragraphs as if fully set forth herein. 38. The above facts indicate the following: 1) a public nuisance exists at the subject premises, 2) the owner of the subject premises has not complied with the August 4, 2022 DOHMH Commissioner’s Order, 3) DSNY has been unable to gain access to the subject premises in order to further inspect the premises and to abate the nuisance thereat as needed; and 4) itis necessary for DOHMH to obtain an Access Order from this Court in order to enter the subject premises and abate the nuisance. 39. Pursuant to Administrative Code §§ 17-114 and 17-147, the Department of Health and Mental Hygiene has the right to “abate any nuisance without suit.” 40. Pursuant to City Charter § 398, the City is authorized to seek an access order ex parte by demonstrating that entry has not been “gained on consent.” City Charter § 398 does not require the City to also demonstrate that the “circumstances call for entry without prior notice.” However, the owner has in fact been given notice that the owner’s continued failure to clean the subject lots may result in the City taking steps, without further notice, to enter the - 12 - 12 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 subject lots and perform the abatement. See the Commissioner’s Order and the letter requesting the owner’s consent to enter the subject lots (Exhibit A). Should this Court issue an order allowing the City to abate the nuisance at the subject premises, as is set forth in the proposed Access Order attached hereto, the owner will receive notice of the impending abatement approximately one week prior to its commencement and will have the opportunity to contact the City and ask for time in which to undertake the lot cleaning, which request is usually granted. 41. No prior application for the same or similar relief has been made by the petitioners in this proceeding. WHEREFORE, it is respectfully requested that this application for an Access Order authorizing petitioners to enter the subject premises to perform a reinspection of the subject premises and to abate the nuisance that exists thereat be granted. Dated: New York, New York November 29, 2022 HON. SYLVIA O. HINDS-RADIX Corporation Counsel of the City of New York Attorney for Petitioners By: MARY O'SULLIVAN Assistant Corporation Counsel 100 Church Street (Admin. Law Div.) New York, New York 10007 (212) 356-2206 - 13 - 13 of 14 FILED: NEW YORK COUNTY CLERK 11/29/2022 02:20 PM INDEX NO. 453036/2022 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/29/2022 VE,RIF'ICATION PURSUANT TO CPLR 3020(a) and (d)(2) MICHELLE GOLDBERG-CAHN, ffiattorney admitted to practice before the Courts of the State.of New York, hereby affirms the following to be true, under penalties of perjury, pursuant to CPLR 2106: I have been duly designated as Corporation Counsel of the City of New York and, as such, I am an Officer of the City of New York, a petitioner in the within proceeding. The reason why this verification is not made by the City of New York is that it is a corporation. I have read the foregoing petition and know the contents thereof. I believe the same to be true upon information and belief. My belief as to all matters is based upon books and records maintained by various City governmental agencies, and upon statements made by City personnel in their official capacity. Dated: New York, New York November 29,2022 ( Citv v. Block 1771. Lots 69 and 70 2022-071807 14 of 14