2023 New York Laws › ABC - Alcoholic Beverage Control › Article 8 - General Provisions › 123 - Injunction for Unlawful Manufacturing, Sale or Consumption of Liquor, Wine or Beer.

§ 123. Injunction  for  unlawful manufacturing, sale or consumption of
liquor, wine or beer. 1. (a) If any person shall engage  or  participate
or  be  about  to  engage or participate in the manufacturing or sale of
liquor, wine or beer in this state  without  obtaining  the  appropriate
license  therefor,  or shall traffic in liquor, wine or beer contrary to
any provision of this chapter, or otherwise unlawfully, or shall traffic
in illegal liquor, wine or beer, or, operating a  place  for  profit  or
pecuniary  gain,  with  a  capacity for the assemblage of twenty or more
persons, shall permit a person or persons  to  come  to  such  place  of
assembly for the purpose of consuming alcoholic beverages without having
the  appropriate  license  therefor  pursuant to section sixty-four-b of
this chapter, the liquor authority or any taxpayer residing in the city,
village or town in which such activity is or is about to be  engaged  or
participated in or such traffic is being conducted, or the city, town or
village,  may  present  a verified petition or complaint to a justice of
the supreme court at a special term of the supreme court of the judicial
district in which such city, village or town is situated, for  an  order
enjoining such person engaging or participating in such activity or from
carrying  on  such business.  Such petition or complaint shall state the
facts upon which such application is based. Upon the presentation of the
petition or complaint,  the  justice  or  court  shall  grant  an  order
requiring  such  person  to  appear  before  such justice or court at or
before a special term of the supreme court in such judicial district  on
the  day  specified  therein,  not more than ten days after the granting
thereof, to show  cause  why  such  person  should  not  be  permanently
enjoined  from  engaging  or  participating  in  such  activity  or from
carrying on such business, or why such person  should  not  be  enjoined
from  carrying  on  such  business  contrary  to  the provisions of this
chapter. A copy of such petition or complaint and order shall be  served
upon  the  person,  in  the manner directed by such order, not less than
three days before the return day thereof.  On the day specified in  such
order,  the  justice  or  court before whom the same is returnable shall
hear the proofs of the parties and may, if deemed necessary  or  proper,
take  testimony  in  relation  to  the  allegations  of  the petition or
complaint. If the justice or court is  satisfied  that  such  person  is
about  to  engage  or  participate  in the unlawful traffic in alcoholic
beverages or has unlawfully manufactured or sold liquor,  wine  or  beer
without  having obtained a license or contrary to the provisions of this
chapter, or has trafficked in illegal  liquor,  wine  or  beer,  or,  is
operating  or  is  about  to  operate such place for profit or pecuniary
gain, with such capacity, and has permitted or  is  about  to  permit  a
person  or  persons to come to such place of assembly for the purpose of
consuming alcoholic beverages without having such  appropriate  license,
an order shall be granted enjoining such person from thereafter engaging
or  participating in or carrying on such activity or business. If, after
the entry of such an order in the county clerk's office of the county in
which  the  principal  place  of  business   of   the   corporation   or
copartnership is located, or in which the individual so enjoined resides
or  conducts  such business, and the service of a copy thereof upon such
person, or such substituted  service  as  the  court  may  direct,  such
person,  copartnership or corporation shall, in violation of such order,
manufacture or sell liquor, wine or beer, or illegal  liquor,  wine,  or
beer,  or  permit  a person or persons to come to such place of assembly
for the purpose of consuming alcoholic beverages, such activity shall be
deemed a contempt of court and be punishable in the manner  provided  by
the  judiciary law, and, in addition to any such punishment, the justice
or court before whom or which the petition or complaint is  heard,  may,
in  his  or  its  discretion,  order  the  seizure and forfeiture of any

liquor, wine or beer and any fixtures, equipment and  supplies  used  in
the  operation or promotion of such illegal activity, including any bar,
bar or refrigeration equipment, vending machines,  gaming  machines  and
jukeboxes,  and such property shall be subject to forfeiture pursuant to
the provisions of subdivision two of  this  section.    Costs  upon  the
application  for  such injunction may be awarded in favor of and against
the parties thereto in such sums as in the discretion of the justice  or
court  before  whom or which the petition or complaint is heard may seem
proper.
(b) The owner, lessor and lessee of  a  building,  erection  or  place
where alcoholic beverages are unlawfully manufactured, sold, consumed or
permitted  to  be  unlawfully manufactured, sold or consumed may be made
respondents or defendants in the proceeding or action.
2. (a) This seized property shall be delivered by the  peace  officer,
acting  pursuant to his special duties or police officer having made the
seizure to the custody of the authority or the district attorney of  the
county  wherein  the  seizure  was made as may be directed by the court,
except that in the cities of New York and Buffalo, the  seized  property
shall  be  delivered  to  the  custody of the authority or of the police
department of such cities, together with a report of all the  facts  and
circumstances of the seizure.
(b)  It  shall  be the duty of the authority or such district attorney
or, if the seizure was made in the cities of New York or Buffalo, of the
authority or corporation counsel of such city, as the case  may  be,  to
inquire  into  the  facts  of  the seizure so reported and if it appears
probable that a forfeiture has been incurred, for the  determination  of
which  the institution of proceedings in the supreme court is necessary,
to cause the proper proceedings to be commenced and prosecuted,  at  any
time  after  thirty  days  from  the  date  of  seizure, to declare such
forfeiture, unless, upon inquiry and examination the authority  or  such
person,  as  the  case  may  be,  decides  that such proceedings can not
probably be sustained or that the ends of public justice do not  require
that  they  should  be  instituted  or  prosecuted,  in  which case, the
authority or such person shall cause such seized property to be returned
to the owner thereof.
(c) Notice of the institution of the forfeiture  proceeding  shall  be
served  either  (i)  personally  on the owners of the seized property or
(ii) by registered mail  to  the  owners'  last  known  address  and  by
publication  of  the  notice  once  a week for two successive weeks in a
newspaper published or circulated in the county wherein the seizure  was
made.
(d)  Forfeiture  shall not be adjudged where the owners established by
preponderance of the evidence that (i) the use of such  seized  property
was  not  intentional  on  the  part  of  any owner, or (ii) said seized
property was used by any person other than an owner thereof, while  such
seized  property  was  unlawfully  in  the  possession  of  a person who
acquired possession thereof in violation of the  criminal  laws  of  the
United States, or of any state.
(e)  The  authority  or  such  person  having  custody  of  the seized
property, after such judicial determination of forfeiture, shall,  by  a
public  notice  of  at  least five days, sell such forfeited property at
public sale. The net proceeds of any such sale, after deduction  of  the
lawful  expenses  incurred,  shall  be paid into the general fund of the
county wherein the seizure was made except that the net proceeds of  the
sale  of  property seized in the cities of New York and Buffalo shall be
paid into the respective general funds of such cities.
(f) Whenever any person interested in any property which is seized and
declared forfeited under the provisions of this  section  files  with  a

justice  of  the  supreme  court  a  petition  for  the recovery of such
forfeited property, the justice of the supreme court  may  restore  said
forfeited property upon such terms and conditions as he deems reasonable
and  just,  if  the  petitioner  establishes  either  of the affirmative
defenses set forth in paragraph (d) of subdivision two of  this  section
and  that the petitioner was without personal or actual knowledge of the
forfeiture proceeding. If the petition be filed after the  sale  of  the
forfeited  property,  any  judgment  in favor of the petitioner shall be
limited to the net proceeds of such sale, after deduction of the  lawful
expenses and costs incurred by the seizing party.
(g) No suit or action under this section for wrongful seizure shall be
instituted  unless  such  suit  or  action is commenced within two years
after the time when the property was seized.