NY Appellate Court Holds That Premises Used For Selling Untaxed Cigarettes Constituted a Public Nuisance

This post was authored by Amy Lavine, Esq.

City of New York v Land & Bldg. Known as 4802 4th Ave. involved a public nuisance action brought by the City of New York against a business known as City Tobacco House, which was alleged to have possessed and repeatedly sold untaxed cigarettes in violation of state and city laws. The Appellate Division, Second Department reversed the order of the Supreme Court and held that the acts of selling and possessing untaxed cigarettes, as alleged in the complaint, constituted unlawful conduct that were sufficient to constitute a public nuisance under the city’s Nuisance Abatement Law. As the court explained, the city was authorized under the Nuisance Abatement Law to permanently enjoin public nuisances, which were defined in relevant part as “[a]ny building… wherein there is occurring a criminal nuisance as defined in section 240.45 of the penal law,” and under that law, a person commits the offense of criminal nuisance when he or she “knowingly conducts or maintains any premises, place or resort where persons gather for purposes of engaging in unlawful conduct.” In this case, the complaint alleged that City Tobacco House was a commercial establishment where several violations of state and city tax laws regarding the sale of cigarettes had occurred during the six-month period preceding the commencement of the nuisance action. The court reasoned that violating these tax laws qualified as “unlawful conduct” within the meaning of criminal nuisance statute and the Nuisance Abatement Law, and therefore the allegations of untaxed cigarettes being sold and possessed for the purpose of sale by City Tobacco House at the subject premises were sufficient to state a cause of action that City Tobacco House was a public nuisance subject to abatement under the Nuisance Abatement Law.

City of New York v Land & Bldg. Known as 4802 4th Ave., 209 A.D.3d 972 (2d Dept 10/26/22).