258-E - Violations; remedies. - New York Statutes

§ 258-e. Violations; remedies. 1. The commissioner may institute such action at law or in equity as may appear necessary to enforce compliance with any provision of the statutes, rules and orders committed to his administration, and in addition to any other remedy under article three of this chapter or otherwise may apply for relief by injunction if necessary to protect the public interest without being compelled to allege or prove that an adequate remedy at law does not exist. Such application may be made to the supreme court in any district or county as provided in the civil practice law and rules, or to the supreme court in the third judicial district. 2. In addition to remedies provided by subdivsion one of this section; Whenever the commissioner has reason to believe that any person has been or is engaged in conduct which violates any provision of this article or of any regulation promulgated thereunder he may issue a complaint specifying the charges and giving reasonable notice of a hearing thereon. Whenever the commissioner has reason to believe that any milk dealer, whether licensed or subject to license under this article, has been or is engaging in any conduct for which a license may be declined or revoked pursuant to section two hundred fifty-eight-c, the commissioner may issue a complaint specifying the charges and giving reasonable notice of a hearing thereon. The person so complained of shall appear and show cause why an order should not be entered by the commissioner requiring such person to cease and desist from the conduct charged, or to perform those acts which will constitute a discontinuance of the conduct charged. After due notice and opportunity of hearing or after default of such person to appear and proceed, if the commissioner shall find such person to have violated any provision of this article or any regulation promulgated thereunder or to have engaged in conduct for which a license may be declined or revoked pursuant to section two hundred fifty-eight-c, he shall enter an order requiring such person to cease and desist from the acts, practices or omissions so found or to perform acts as aforesaid, and imposing such civil penalty as he deems appropriate within the limits of subdivision four. 3. The order of the commissioner issued pursuant to subdivision two of this section shall be final subject to review proceedings under subdivision five of this section, and shall not be stayed by any court except as provided in such subdivision five. Upon failure of such person to obtain a stay as herein provided, the commissioner may apply to the supreme court of Albany county for an order directing compliance, and if such order is issued, any failure to obey such compliance order may be punished as a contempt of court. 4. Any civil penalty imposed by an order issued pursuant to subdivision two of this section shall be in an amount not less than one hundred dollars, or more than one thousand dollars for each violation of this article or any regulation promulgated thereunder. In determining the amount of any penalty to be assessed under this subdivision, the commissioner shall consider, but not be limited to consideration of: (i) the seriousness of the violation for which the penalty is to be imposed and (ii) the nature and extent of any previous violations for which penalties have been assessed against the person. Each day's violation may, in the discretion of the commissioner, be deemed to constitute a separate offense. If, after the expiration of the thirty day review period prescribed by subdivisions three and five of this section, such order has not been stayed by the supreme court in a proceeding for judicial review thereof, the commissioner may file with the clerk of any county the original or a certified copy of the order directing paymentof a civil penalty, and thereupon the clerk shall enter in the judgment docket, in the column for judgment debtors, the name of the person against whom the penalty was assessed by such order, and in appropriate columns the amount of such person's liability for such penalty, together with interests and costs, and the date that such order is filed. Upon such filing, the amount of the penalty so docketed shall become a lien upon and bind the real and personal property of the person against whom it is issued in the same manner as a judgment duly docketed in the office of such clerk, and the commissioner shall have the same remedies to enforce such liability as if a judgment in a court of record had been recovered against such person. 5. Any person aggrieved by final order of the commissioner made pursuant to this section may within thirty days after service of such order upon him, institute a proceeding for a review thereof pursuant to article seventy-eight of the civil practice law and rules; provided, however, that no stay shall be issued, unless applied for within seven days after the effective date and unless the applicant makes a clear and convincing showing of present, substantial and irreparable injury, clearly over-balancing the public interest in immediate compliance which is hereby declared as the policy of this act.