CHAPTER 2
HOUSING MAINTENANCE CODE

[table of contents]

SUBCHAPTER 5
LEGAL REMEDIES AND ENFORCEMENT

ARTICLE 5
Repairs by Department

[Section] Section
[D26-54.01] 27-2125 Power to Cause or Order Correction of Violations
[D26-54.02] 27-2126 Registration of Lead Paint Violations, Enforcement
[D26-54.03] 27-2127 Corrective Action Pursuant to Court Order
[D26-54.05] 27-2128 Recovery of Expenses
[D26-54.07] 27-2129 Statement of Account


Sec. [D26-54.01] 27-2125 Power to cause or order correction of violations

a. Whenever the department determines that because of any violation of this chapter or other applicable law, any dwelling or part of its premises is dangerous to human life and safety or detrimental to health, it may

(1) correct such conditions, or

(2) order the owner of the dwelling or other responsible party to correct such conditions.

b. Where the department determines that any violation of this chapter or other applicable law exists in any dwelling or part of its premises, it may order the owner of the dwelling or other responsible party to correct such conditions.

c. An order issued pursuant to the preceding subdivisions shall state the violations involved and the corrective action to be taken, and shall fix a time for compliance, which shall be not less than 21 days from the date of service of the order, except that where a condition dangerous to human life and safety or detrimental to health exists or is threatened, a shorter period for compliance may be fixed.

d. Any order not complied with within the stated time for compliance may be executed by the department. Where a multiple dwelling has been declared a public nuisance pursuant to Sec. 27 2114 of article one of this subchapter, and an order to correct the conditions constituting the nuisance has not been complied with, the department shall execute the order pursuant to this subdivision or institute proceedings pursuant to article 6 of this subchapter.

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Sec. [D26-54.02] 27-2126 Registration of lead paint violations; enforcement

a. The department shall maintain a register in each borough of all certifications of lead paint violations made to it by the department of health and such register shall also be open to the public. The department of health shall maintain a register in each borough for recording all complaints, inspections, examinations and laboratory tests with respect to lead paint levels in housing accommodations, which are determined to be violations. Such register shall indicate the date of the complaint, the address of the dwelling premises, the action taken pursuant thereto and shall be open for inspection to the public.

b. Whenever a complaint has been made with respect to lead paint levels in housing accommodations, which would constitute a violation or such condition has been otherwise determined to be possibly present, the department of health shall make an inspection to determine if the condition is at a level which constitutes a danger to life, health or safety. If the owner fails to comply with an order of the department of health to correct the violation, the department of health shall certify such conditions to the department. The procedure of certification shall be completed within sixteen days from receipt of complaint or inspection or examination, whichever occurs first. The conditions so certified shall be corrected within eighteen days of certification to the department. If such conditions are not corrected within the eighteen days after certification by the department of health to the department and continue to exist in excess of 72 hours thereafter and are also the subject of an Article 78 proceeding commenced by the tenants, the supreme court, after a hearing which shall be held under subdivision (h) of section seven thousand eight hundred four of the Civil Practice Law and Rules shall order and direct the department to correct such conditions within a period fixed by the court, which shall not exceed the minimum time reasonably required to remedy such conditions.

c. No court order shall be issued under this section unless all unpaid rents have been deposited with the court. Any such court order shall include a direction to the petitioning tenants to deposit all future rents with the court as they come due. All such rents shall be turned over to the department for payment of the reasonable cost of the remedial work until full reimbursement has been made for the work performed by it or under its supervision.

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Sec. [D26-54.03] 27-2127 Corrective action pursuant to court order

a. The department may elect to proceed to take action to correct violations under this article pursuant to a prior court order. If the department so elects, it may serve, with any order served pursuant to subdivision (a) or (b) of section 27-2125 of this article, a notice that upon failure to comply with the order within the stated time the department may apply for a court order directing it to execute the repair order.

b. Upon failure to comply with the repair order within the time fixed therein, the department may apply to a court of competent jurisdiction for an order directing the owner and any mortgagees or lienors of record to show cause why the department should not be directed to execute the order, and obtain a lien for the costs of such execution, which shall have priority over all other liens and encumbrances. The application shall identify the dwelling, describe the violations covered by the repair order, the work required to remedy such violations and an estimate or the cost thereof, and contain proof of service of the repair order as required by this section.

c. The order to show cause shall be served in the manner prescribed for service of an order to show cause in a receivership proceeding by subdivision (c) of section 27-2132 of article 6 of this subchapter.

d. On the return date of the order to show cause, determination thereof shall have precedence over every other business of the court unless the court shall find that some other pending proceeding having similar statutory preference, has priority. If the court finds that the facts stated in the application warrant the granting thereof, it shall issue an order directing the department to proceed to execute its repair order, or such part thereof as remains unexecuted.

e. If the owner or any mortgagee or lienor of record or other person having an interest in the property, shall apply to the court to be permitted to remove or remedy the violations specified in the repair order and shall (1) demonstrate the ability promptly to undertake the work required; and (2) post security for the performance thereof within the time, and in the amount and manner deemed necessary by the court, then the court in lieu of issuing an order as provided in subdivision d of this section, may issue an order permitting such person to perform the work within a time fixed by the court.

f. If, after issuance of an order pursuant to subdivision (e) of this section, but before the time fixed in such order for the completion of the work prescribed therein, it shall appear to the department that the person permitted to do the same is not proceeding with due diligence, the department may apply to the court on notice to those persons who have appeared in the hearing under subdivision d of this section for a hearing to determine whether an order should be rendered immediately as provided in subdivision g of this section.

g. If, upon a hearing authorized in subdivision (f) of this section, the court shall determine that such person is not proceeding with due diligence, or upon the failure of such person to complete the work in accordance with the provisions of said order, the court shall order the department to execute or complete the execution of said order. Such order shall direct the department to apply the security to the expenses incurred in the execution of the repair order. In the event that such security should exceed the amount required to remove or remedy such violations, such order shall direct the department to file with the court, upon completion of the work prescribed therein, a full accounting of the amount of such security and the expenditures made pursuant to such order, and to turn over such surplus to the person who posted such security together with a copy of such accounting.

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Sec. [D26-54.05] 27-2128 Recovery of expenses

All expenses incurred by the department pursuant to section 27-2125 or section 27-2127 of this article shall constitute a debt recoverable from the owner and a lien upon the building and lot, and upon the rents and other income thereof. The provisions of article 8 of this subchapter shall govern the effect and enforcement of such debt and lien.

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Sec. [D26-54.07] 27-2129 Statement of Account

Whenever the department has incurred expenses for the repair of a dwelling or for the elimination of any dangerous or unlawful conditions therein, pursuant to this article or any other provision of the administrative code, it may serve upon the owner in the manner provided in section 27-2095 of article one of subchapter 4 of this code a statement of the expense incurred and a demand for payment thereof. If the owner does not within thirty days of service of such statement, notify the department in writing of his or her objection to the statement of expenses or any individual item therein, such owner may not in any subsequent judicial or administrative proceeding contest any item contained in such statement.

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