Sec.
[D26-51.01] 27-2115 Imposition of civil penalty.
a. A person who
violates any law relating to housing standards shall be subject to a civil penalty
of not less than ten dollars nor more than fifty dollars for each non-hazardous
violation, not less than twenty-five dollars nor more than one hundred dollars
and ten dollars per day for each hazardous violation, fifty dollars per day
for each immediately hazardous violation, occurring in a multiple dwelling containing
five or fewer dwelling units, from the date set for correction in the notice
of violation until the violation is corrected, and not less than fifty dollars
nor more than one hundred fifty dollars and, in addition, one hundred twenty-five
dollars per day for each immediately hazardous violation, occurring in a multiple
dwelling containing more than five dwelling units, from the date set for correction
in the notice of violation until the violation is corrected. A person willfully
making a false certification of correction of a violation shall be subject to
a civil penalty of not less than fifty dollars nor more than two hundred fifty
dollars for each violation falsely certified, in addition to the other penalties
herein provided.
b. The department
shall serve a notice of violation upon the owner, his or her agent or other
person responsible for its correction. The notice shall identify the condition
constituting the violation, the provision of law applicable thereto, the department's
order number, the classification of the violation according to its degree of
hazard, the time for certifying the correction of such violation and the amount
of the possible penalty. It shall also advise that the department will, if requested,
confer with the owner or his or her representative concerning the nature and
extent of the work to be done to insure compliance and the methods of financing
such work. In any case where the provisions of this section authorize the service
of such notice by mail, the statement of any officer, clerk, or agent of the
department, or of anyone authorized by the department to mail such notice of
violation, subscribed and affirmed by such person as true under the penalties
of perjury, which describes the mailing procedure used by the department or
by the department's mailing vendor, or which states that these procedure were
in operation during the course of mailing a particular cycle of notices of violations,
shall be admitted into evidence as presumptive evidence that a regular and systematic
mailing procedure is followed by the department for the mailing of its notices
of violation. Where the department introduces into evidence the business records
which correspond to the various stages of the mailing of a particular cycle
of notices of violation pursuant to subdivision (c) of rule forty-five hundred
eighteen of the civil practice law and rules, then a presumption shall have
been established that the mailing procedure was followed in the case of such
cycle, and that such notice of violation has been duly served.
c. The said notice
of violation shall also specify the date by which each violation shall be corrected.
Such date shall be:
(1) Ninety days
from the date of mailing of the notice in the case of non-hazardous violations;
(2) thirty
days from the date of mailing of the notice in the case of hazardous violations;
and (3)
Twenty four hours in the case of immediately hazardous violations in which
case the notice shall be served by personal delivery to a person in charge
of the premises or to the person last registered with the city as the owner
or agent, or, by registered or certified mail, return receipt requested, to
the person in charge of the premises or to the person last registered with
the department as the owner or agent; provided that where a managing agent
has registered with the department, such notice shall be served on the managing
agent. Service of the notice shall be deemed completed five days from the
date of mailing. The department may postpone the date by which a violation
shall be corrected upon a showing made within the time set for correction
in the notice that prompt action to correct the violation has been taken but
that full correction cannot be completed within the time provided because
of technical difficulties, inability to obtain necessary materials, funds,
or labor, or inability to gain access to the dwelling unit wherein the violation
occurs or such other part of the building as may be necessary to make the
required repair. In the case of immediately hazardous violations such showing
must be made prior to the close of business on the next full day the department
is open following the period set for correction. The department may condition
such postponement upon the applicant's written agreement to correct all violations
placed against the premises by the department or other appropriate governmental
agency and to satisfy within an appropriate period or time, all sums owing
to the department for repairs made to said premises. The department may require
such other conditions as are deemed necessary to insure correction of the
violations within the time set by the postponement. The department shall prepare
a written statement signed and dated by the person making such decision setting
forth the reasons for the postponement of the date by which a violation shall
be corrected or the reason for the denial of such application for postponement
and said written statement shall be part of the record of the department.
d. On or before
September first, nineteen hundred seventy-two the department shall classify
all violations of the multiple dwelling law, the housing maintenance code and
other applicable state and local laws as non-hazardous, hazardous and immediately
hazardous, secure the approval thereof by the advisory council to the housing
part of the civil court of the city of New York and publish such classification
in The City Record. Such classification shall be based on the effect of the
violation upon the life, health or safety of the occupants of the building and
upon the public. After October first, nineteen-seventy-two and prior to October
fifteenth nineteen hundred seventy two, the department shall hold a public hearing
on the proposed classifications. Notice of such public hearing shall be published
in The City Record not less than thirty days prior to the hearing. Within fifteen
days after the conclusion of the said hearing, the department shall forward
to the advisory council the list with such proposed changes as it may recommend
for their approval. Within ten days of the receipt of such list, the advisory
council shall advise the department as to which changes they have approved.
The department shall thereupon, within five days, cause the list, together with
such changes as have been approved to be published once each week for two successive
weeks in The City Record. Any person who may be aggrieved as an owner or tenant
may, within thirty days of such first publication seek a review of the department's
action, provided that no such review shall stay the effectiveness of such list
or the operation of the housing part of the civil court of the city of New York.
Thereafter, and from time to time, the department may modify the list with the
approval of the advisory council after publication, and public hearing as provided
for the original list.
e. In the event
the department fails to promulgate such list as above provided, or to take any
step in connection therewith within the time provided, the administrative judge
of the civil court and the judicial conference may take such action as the deem
necessary to insure the establishment of the housing part of the New York city
civil court and its operation on April first, nineteen hundred seventy-three,
as provided by law.
f. (1) The notice
of violation shall direct that when any violations of a particular class have
been corrected, they shall be certified at one time to the department. Such
certification shall be made in writing, under oath by the registered owner,
a registered officer or director of a corporate owner or by the registered managing
agent. Such certification shall be delivered to the department and acknowledgment
of receipt therefor obtained or shall be mailed to the department by certified
or registered mail, return receipt requested, no later than fourteen days after
the date set for correction in the case of non-hazardous and hazardous violations,
and no later than five days after the date set for correction in the case of
immediately hazardous violations, and shall include the date when each violation
was corrected. Such certification of correction shall be supported by a sworn
statement by the person who performed the work if performed by an employee or
agent of the owner.
(2) A copy of
such certification shall then be mailed not more than twelve calendar days
from the date of receipt of notification to any complainant by the department.
(3) Such violation
shall be deemed corrected seventy days from the date of receipt of such certification
by the department unless the department has determined by a re-inspection
made within such period that the violation still has not been corrected and
has recorded such determination upon its records and has notified the person
who executed the certification by registered or certified mail to the address
stated in the certification that it has been set aside and the reasons therefore,
a copy of such notice shall be sent to the complainant.
(4) If the department
does not inspect the premises after notification by the complainant that a
violation has not been corrected, any tenant affected by such false certification
shall have the right to apply to the court for a determination of violation
as provided in subdivision (h) of this section, at which time the court shall
assess appropriate penalties as provided in this section for any willfully
false certification it finds.
(5) Upon receipt
of notice that the certification has been set aside the owner or his or her
agent shall then have a right to apply to the court for a determination that
such violation was corrected. Notice of such right shall appear on each notice
that a certification has been set aside.
(6) Notwithstanding
the foregoing, in the event an owner files with his or her certification a
copy of a contract of sale or letter of commitment for a mortgage or refinancing
of a mortgage covering the premises and further certifies that such sale or
mortgage transaction is to occur within one hundred days of such certification,
such violation shall be deemed corrected thirty days from the date of receipt
of such certification by the department, unless the department has determined
by re-inspection made within such period that the violation still has not
been corrected, has recorded such determination upon its records and has given
notice of such determination to the owner, and has thereafter brought an action
within thirty days to set aside such certification, to impose a penalty for
false certification and to collect such other penalties as have accrued, provided
that in all such cases, the department shall make such reinspection.
(7) Failure
to file such certification of compliance shall establish a prima facie case
that such violation has not been corrected.
g. When there
are a number of separate instances of a single condition which violates any
housing standard established by law, such separate instances shall be treated
collectively as a single violation with respect to any one dwelling unit, or
with respect to the public area of a building, but nothing contained in this
subdivision shall limit the number of violations for which a penalty under this
section may be collected with respect to each dwelling unit or the public area
of a building.
h. Should the
department fail to issue a notice of violation upon the request of a tenant
or group of tenants within thirty days of the date of such request, of if there
is a notice of violation outstanding respecting the premises in which the tenant
or group of tenants reside, the tenant or any group of tenants, may individually
or jointly apply to the housing part for an order directing the owner and the
department to appear before the court. Such order shall be issued at the discretion
of the court for good cause shown, and shall be served as the court may direct.
If the court finds a condition constituting a violation exists, it shall direct
the owner to correct the violation and upon failure to do so within the time
set for certifying the correction of such violation pursuant to subdivision
(c) of this section, it shall impose a penalty in accordance with subdivision
(a) of this section.
i. In the event
an owner fails to correct a violation within the time specified in a notice
of violation sent to the owner, his or her agent or other person responsible
for its correction pursuant to subdivision (b) of this section, or within any
additional time granted pursuant to subdivision (c) of this section, and no
certification of correction with respect to such violation has been filed by
the owner or his or her registered managing agent in accordance with the provisions
of subdivision (f) hereof, then at any time after thirty days have elapsed from
the date such violation was to be corrected, any tenant or group of tenants
who requested that the violation be issued may apply individually or jointly,
to the housing part for an order directing the owner and the department to appear
before the court. Where the violation is hazardous or immediately hazardous,
the thirty-day requirement shall be waived. Said order shall be issued by the
court for good cause shown. If the court finds that the violation has not been
corrected, that more than thirty days have elapsed since the time to correct
has expired, where a violation is non-hazardous and that no certification of
correction has been filed in accordance with the provisions of subdivision (f)
hereof, then it shall direct the owner to correct the violation and shall assess
penalties as provided in subdivision (a) of this section.
j. If a tenant
seeks an order directing the owner and department to appear before the court
pursuant to subdivision (h) or (i) of this section, the court may allow service
of the order by the tenant by certified or registered mail, return receipt requested.
k. (1) Notwithstanding
any other provision of law, a person who violates section 27-2028, subdivision
a of section 27-2029, 27-2030, 27-2031 or 27-2032 of article 8 of subchapter
2 of this chapter shall be subject to a civil penalty of two hundred fifty dollars
per day for each violation from and including the date the notice is affixed
pursuant to paragraph two until the date the violation is corrected and a person
who violates subdivision b of section 27-2029 of article eight of subchapter
two of this chapter shall be subject to a civil penalty of twenty-five dollars
per day from and including the date the notice is affixed pursuant to paragraph
two until the date the violation is corrected but no less than one thousand
dollars. There shall be a presumption that the condition constituting a violation
continues after the affixing of the notice.
(2) Notwithstanding
any other provision of law, the department shall serve a notice upon the owner,
his or her agent or other person responsible for the correction of violations
by affixing such notice in a conspicuous place on the premises. This notice
shall identify the condition constituting the violation, the provision of
the law applicable thereto the date the violation was reported and set the
penalty attendant thereto.
(3) Notwithstanding
any other provision of law, the owner shall be responsible for the correction
of all violations placed pursuant to article eight of subchapter two this
code, but in an action for civil penalties pursuant to this article may in
defense or mitigation of his liability for civil penalties show:
(i) That the
condition which constitutes the violation did not exist at the time the
violation was placed; or
(ii) That
he or she began to correct the condition which constitutes the violation
promptly upon discovering it but that full correction could not be completed
expeditiously because of technical difficulties, inability to obtain necessary
materials, funds or labor, or inability to gain access to the dwelling unit
wherein the violation occurs, or such other portion of the building as might
be necessary to make the repair; or
(iii) That
he or she was unable to obtain a permit or license necessary to correct
the violation, provided that diligent and prompt application was made therefore,
or
(iv) That
the violation giving rise to the action was caused by the act or negligence,
neglect or abuse of another not in the employ or subject to the direction
of the owner. Where the aforesaid allegations are made by way of mitigation
of penalties, the owner shall show, by competent proof, pertinent financial
data, and efforts made to obtain necessary materials, funds or labor or
to gain access, or to obtain a permit or license and such other evidence
as the court may require. If the court finds that sufficient mitigating
circumstances exist, it may remit all or part of any penalties arising from
the violation, but may condition such remission upon a correction of the
violation within a time period fixed by the court.
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Sec.
[D26-51.03] 27-2116 Enforcement or civil penalties;
powers of housing part of the civil court, collection of judgment
(a) The department
may bring an action in the housing part of the New York City civil court for
the recovery of civil penalties, together with costs and disbursements. Leave
of court, obtained by motion to the housing part thereof, shall be required
for disclosure or for bill of particulars, except for a notice under section
3123 of the Civil Practice Law and Rules, which shall be granted only upon a
showing that such disclosure or bill of particulars is necessary to the prosecution
defense of the action. If it is so noted on the summons, any motion for disclosure
or a bill of particulars must be made in writing and on notice and must be filed
with the clerk with proof of service no later than thirty days after Joinder
of issue
(b) The owner
shall be responsible for the correction of all violations, but in an action
for civil penalties may in defense or mitigation of such owner's liability for
civil penalties show:
(1) That the
violation or violations were corrected within the time specified in the notice
of violation and the certificate of compliance was duly filed; or
(2) That the
violation did not exist at the time the notice of violation was served; or
in mitigation or remission of his or her liability for civil penalties show:
(i) That he or
she began to correct the violation promptly upon receipt of the notice of violation,
but that its full correction could not be completed within the time provided
because of technical difficulties, inability to obtain necessary materials,
funds or labor, or inability to gain access to the dwelling unit wherein the
violation occurs, or such other portion of the building as might be necessary
to make the repair, or
(ii) That he
or she was unable to obtain a permit or license necessary to correct the violation,
provided that diligent and prompt application was made therefor, or
(iii) That the
violation giving rise to the action was caused by the act or negligence, neglect
or abuse of another not in the employ or subject to the direction of the defendant.
Where the aforesaid
allegations are made by way of mitigation of penalties, the owner shall show,
by competent proof, pertinent financial data, and efforts made to obtain necessary
materials, funds or labor or to gain access, or to obtain a permit or license
and such other evidence as the court may require.
If the court finds
that sufficient mitigating circumstances exist, it may remit all or part of
any penalties arising from the violation, but may condition such remission upon
a correction of the violation within a time period fixed by the court.
(c) A defendant
in an action for civil penalties who asserts that a violation was caused by
the act negligence, neglect or abuse of a third party that has commenced an
action against such third party and may request the court to permit consolidation
of defendant's action for the reasonable cost of such correction against such
third party with the pending action for penalties, or if no other action is
then pending against such third party, defendant may make application to implead
the party alleged to have caused the act, negligence, neglects or abuse. Upon
a finding that the violation in issue was caused by such third party, a judgment
shall be entered against such third party in favor of the defendant for the
reasonable cost of such correction.
(d) When the department
obtains a determination in an action under this article against an owner, judgment
may be entered against the premises which shall constitute a lien when a transcript
of such judgment is filed in the office of the county clerk in the manner prescribed
for the filing or judgments and may be enforced against the premises, and, if
such judgment remains unsatisfied for ninety days, as a levy upon the rents,
pursuant to section D27-2148 of article eight of this subchapter.
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Sec.
[D26-51.05] 27-2117 Stay of accumulation of per
diem penalties during pendency of action
(a) In any action
for penalties under this article, the defendant may move at any time before
the trial of the case for an order to stay the further accumulation of the per
diem penalty from the day the action is commenced until the same is finally
terminated by judgment or otherwise, including the time necessary for judicial
review. The housing part of the civil court shall grant the motion if the defendant
shows to the satisfaction of the court that there is a substantial and real
issue of fact or law concerning the existence of the violation charged. The
court may impose such conditions on the granting of the motion as justice may
require.
(b) Nothing in
this article shall prevent an owner from contesting the finding of a violation
by the department, in advance of the department's action for the collection
of penalties in the housing part of the civil court of the city of New York
or by any other means provided by law. In any such action or proceeding, the
court may stay the further accumulation of the per diem penalty in the same
manner and under the same conditions as provided in subdivision a of this section.
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