23.11 - Injunctions; modification or dissolution.
§ 23.11. Injunctions; modification or dissolution. 1. Whenever the attorney general shall believe from evidence satisfactory to him that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this article or any rule or regulation hereunder, he may in his discretion bring an action in the supreme court of the state of New York to enjoin the acts or practices and to enforce compliance with this article or any rule or regulation hereunder. Upon a proper showing a permanent or temporary injunction or restraining order shall be granted, which may include the appointment of a temporary or permanent receiver of all of the assets and affairs of a theatrical production, as defined herein, for the purpose of transacting the affairs or liquidating such production, upon conditions set by the court, whenever such relief is deemed by such court in the interest of the investor and the public generally. Upon a showing by the attorney general that a violation of this article or any rule or regulation thereunder has occurred, he may include in an action under this article an application to direct restitution of any moneys or property obtained directly or indirectly by such violation. Whenever the court shall determine that a violation of this article has occurred, the court may impose a civil penalty of not more than one thousand dollars for each such violation. 2. Any person against whom an injunction has been granted under the provisions of this article may apply to the supreme court at any time after five years from the date such permanent injunction became effective, upon at least sixty days' notice to the attorney general, for an order dissolving such injunction or modifying the same upon such terms and conditions as the court deems necessary or desirable. Such application for dissolution or modification of such injunction shall contain a recitation of the facts and circumstances which caused the granting of the injunction; the occupation and employment of the person making the application and his financial remuneration therefrom since the time the injunction was granted; his net worth at the time of the application and the sources thereof, together with any other facts bearing upon the reasonableness of the application and the character of the applicant, as may enable the court to issue an order that will properly dispose of such application in the interests of justice. A copy of such application, together with copies of any other papers in support thereof, shall be served upon the attorney general at least sixty days prior to the return date thereof. In addition thereto the applicant shall file with the court a good and sufficient surety bond in the sum of one thousand dollars guaranteeing that he will pay all costs and expenses of an investigation by the attorney general of such applicant and the statements and claims alleged in the application together with any further investigation which the attorney general may deem necessary or desirable to determine whether he should consent to the application, oppose the same or make such other recommendations to the court as in his opinion are desirable to be included in any modification of such injunction. Should it appear in the course of such investigation by the attorney general that said sum is not sufficient, the attorney general may apply to the court by usual notice of motion or order to show cause for an increase in the amount of security or further surety bond necessary to fully pay all of the costs of the investigation and the court may require such further bond as the situation requires to fully pay such costs and expenses. Upon the completion of such investigation, the attorney general may file an answer to such application setting forth such facts as are pertinent to the determination by the court of the matter before it and whether said injunction should be dissolved, modified or continued in whole or in part and what conditions, if any,shall be attached to any dissolution or modification of said injunction. After a hearing upon such application and after any further investigation, proof or testimony which the court may order, it may make a final order dissolving the permanent injunction or modifying the same upon such terms and conditions as in its opinion are just and desirable, or in its discretion, may deny the application. Such order shall contain a direction that the applicant pay to the attorney general the costs and expenses of the investigation in connection with the proceeding, and any judgment entered thereon may be enforced directly against the surety on the bond. The court shall grant no temporary or other relief from the injunction in force pending a final determination of such application. No application under this subdivision shall be entertained: (a) where the injunction was granted as an incident to a crime of which the applicant has been convicted, nor (b) in any case where the applicant has been convicted of a felony or a crime that would be a felony if committed in the state of New York since the issuance of the injunction, nor (c) convicted at any time of any crime involving stocks, bonds, investments, securities, or like instruments, nor (d) convicted at any time of any crime involving theatrical syndication interests, which are the subject matter of this article. Nor shall anything contained in this subdivision be construed to deny to or interfere with the power of the attorney general to bring any other action or proceeding, civil or criminal, against the applicant at any time.