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THE CITY’S COMPLAINT ALLEGED A CAUSE OF ACTION FOR PUBLIC NUISANCE BASED UPON DEFENDANT’S SALE OF UNSTAMPED, UNTAXED CIGARETTES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff-city’s complaint stated a cause of action for public nuisance against defendant City Tobacco House for selling unstamped, untaxed cigarettes:

… [T]he complaint alleged that City Tobacco House was a commercial establishment where several violations of Tax Law § 1814(b) and Administrative Code § 11-4012(b) had occurred during the six-month period preceding the commencement of this action. On one occasion, law enforcement officers allegedly recovered 8.4 cartons of untaxed cigarettes at the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On another occasion, 28 packs of untaxed cigarettes allegedly were recovered from the subject premises, and one person was arrested and charged with violating Tax Law § 1814. On two other occasions, an undercover police officer allegedly purchased one pack of untaxed cigarettes from an employee in the subject premises. On another occasion, the execution of a search warrant at the subject premises allegedly resulted in the seizure of 64 packs of untaxed cigarettes and the arrest of one person. * * *

The allegations of unlawful conduct … , along with the allegation in the complaint that City Tobacco House knowingly conducted or maintained the subject premises as a place where persons gathered for purposes of engaging in conduct that violated Tax Law § 1814 and Administrative Code § 11-4012(b), were sufficient to allege the commission of criminal nuisance in the second degree, as defined in Penal Law § 240.45. Thus, having alleged facts supporting the proposition that City Tobacco House was a place “wherein there is occurring a criminal nuisance as defined in section 240.45 of the penal law” (Administrative Code § 7-703[l]), the complaint validly alleged the existence of a public nuisance at the subject premises. City of New York v Land & Bldg. Known as 4802 4th Ave., 2022 NY Slip Op 05988, Second Dept 10-26-22

Practice Point: Here the city’s allegation defendant sold unstamped, untaxed cigarettes stated a cause of action for public nuisance.

 

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