Section 27-2115
§ 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 wilfully 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
procedures were in operation during the course of mailing a particular
cycle of notices of violation, 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 of 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 hundred
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 they 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 may be certified at one
time to the department or, in the alternative, each violation may be
separately and independently certified. 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 except
that, in the alternative, such certification may be submitted in an
electronic form in accordance with the rules of the department which
shall provide a mechanism for authenticating the source of the
electronic submission; the department shall be required to accept such
electronic submissions if submitted in accordance with such rules on and
after the effective date of the local law that added these provisions
authorizing such electronic submissions. Such certification shall be
delivered to the department in person or electronically and
acknowledgement 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, which may be submitted in an electronic form in
accordance with the rules of the department, 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 reinspection 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
therefor; 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 wilfully 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
reinspection 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) (1) 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, or if there is a notice of violation outstanding
respecting the premises in which the tenant or group of tenants resides,
or, if there is a claim of harassment pursuant to subdivision d of
section 27-2005 of this chapter, 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. Nothing in this section shall preclude
any person from seeking relief pursuant to any other applicable
provision of law.
(2)(i) Notwithstanding the provisions of paragraph one of this
subdivision, where one or more allegations of harassment pursuant to
subparagraphs b, c and g of paragraph 48 of subdivision a of section
27-2004 of this chapter is made, to the extent that any such allegation
is based on physical conditions of a dwelling or dwelling unit, such
allegation must be based at least in part on one or more violations of
record issued by the department or any other agency. Where any
allegation of harassment is based on more than one physical condition,
the existence of at least one violation of record with respect to any
such physical condition shall be deemed sufficient to meet the
requirements of this paragraph.
(ii) The provisions of subparagraph i of this paragraph shall apply to
any counterclaim or defense presented by a tenant in any proceeding in
the housing part of the civil court if such counterclaim or defense is
based on one or more allegations of harassment. In the event there is no
violation of record with respect to at least one physical condition
alleged by such tenant such counterclaim or defense shall be dismissed
without prejudice.
(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 same 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 the 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) (i) Notwithstanding any other provision of law, a person who
violates section 27-2028, subdivision a of section 27-2029, section
27-2031 or section 27-2032 of this chapter shall be subject to a civil
penalty of not less than two hundred fifty nor more than five hundred
dollars per day for each violation from and including the date the
notice is affixed pursuant to paragraph two of this subdivision until
the date the violation is corrected and not less than five hundred nor
more than one thousand dollars per day for each subsequent violation of
such sections at the same dwelling or multiple dwelling that occurs
within two consecutive calendar years or, in the case of subdivision a
of section 27-2029, during two consecutive periods of October first
through May thirty-first. A person who violates subdivision b of section
27-2029 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 of this subdivision until the date the
violation is corrected but not less than one thousand dollars. There
shall be a presumption that the condition constituting a violation
continues after the affixing of the notice.
(ii) Notwithstanding the provisions of subparagraph (i) of this
paragraph and section 27-2116 of this chapter, the civil penalties set
forth in subparagraph (i) of this paragraph shall be deemed satisfied
for a first violation of section 27-2028, subdivision a of section
27-2029, section 27-2031 or section 27-2032 of this chapter if a notice,
in a form prescribed by the department, that such violation has been
corrected by the owner or an agent or employee of the owner within
twenty-four hours of the affixing of the notice of such violation
pursuant to paragraph two of this subdivision, and a payment of two
hundred fifty dollars, are submitted to the department within ten days
of affixing the notice of such violation. A person who submits a false
notice of correction shall be subject to a civil penalty of not less
than two hundred fifty dollars for each false notice of correction, in
addition to the other penalties herein provided. If the notice of
correction and payment are not received within such ten-day period then
the penalties set forth in subparagraph (i) of this paragraph shall be
applicable to such violations and the department may commence a
proceeding for an order to correct and to recover such penalties in
accordance with this section and section 27-2116 of this chapter. A
person who has violated section 27-2028, subdivision a of section
27-2029, section 27-2031 or section 27-2032 of this chapter may allege
as a defense or in mitigation of liability for civil penalties,
compliance with the notice of correction and payment requirements of
this subparagraph in any proceeding brought by the department seeking
civil penalties under this subdivision. The process for submission of
the notice of correction and payment set forth in this subparagraph
shall not be available if a violation of section 27-2028, section
27-2031 or section 27-2032 of this chapter occurred at the same dwelling
or multiple dwelling during the prior calendar year or, in the case of
subdivision a of section 27-2029 of this chapter, if a violation of such
subdivision occurred at the same dwelling or multiple dwelling during
the prior period of October first through May thirty-first.
(iii) Notwithstanding any other provision of law, within five business
days from the date of receipt of the notice of correction by the
department, the department shall mail to the occupant of any dwelling
unit for which such violation was issued notification that the owner has
submitted a notice of correction for such violation. The notification to
the occupant shall include information on when the violation was
reportedly corrected and how the occupant may object to such notice of
correction. In addition, the provisions of paragraphs 4 and 5 of
subdivision f of this section shall also be applicable to a notice of
correction submitted in compliance with subparagraph (ii) of this
paragraph.
(iv) Notwithstanding any other provision of law, a person who, after
inspection by the department, is issued an immediately hazardous
violation for a third or any subsequent violation of section 27-2028,
section 27-2031 or section 27-2032 of this chapter at the same dwelling
or multiple dwelling within the same calendar year or, in the case of
subdivision a of section 27-2029 of this chapter, at the same dwelling
or multiple dwelling within the same period of October first through May
thirty-first, shall be subject to a fee of two hundred dollars for each
inspection that results in the issuance of such violation as well as any
civil penalties that may be due and payable for the violation, provided,
however, that such fee shall not be applicable to inspections performed
in a multiple dwelling that is included in the alternative enforcement
program pursuant to article ten of subchapter five of this chapter. All
fees that remain unpaid shall constitute a debt recoverable from the
owner and a lien upon the premises, and upon the rents and other income
thereof. The provisions of article eight of subchapter five of this
chapter shall govern the effect and enforcement of such debt and lien.
(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. The notice shall identify the
condition constituting the violation, the provision of 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 of this code, but in an action for civil
penalties pursuant to this article may in defense or mitigation of such
owner's 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 therefor; 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; or
(v) That in addition to any other defense or mitigation set forth in
subparagraphs (i) through (iv) of this paragraph, with respect to an
owner who may be subject to the penalty of not less than five hundred
nor more than one thousand dollars per day with respect to a subsequent
violation pursuant to paragraph one of this subdivision, documentation
of prompt and diligent efforts to correct the conditions that gave rise
to an initial violation and that such conditions were corrected. Where
demonstrated, such subsequent violation shall be treated as though it
was an initial violation. However, this defense or mitigation may not be
asserted or demonstrated where the initial and subsequent violations
occurred in the same calendar year or, in the case of violations of
subdivision a of section 27-2029, during the same period of October
first through May thirty-first.
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.
(l)(1) Notwithstanding any other provision of law, when the department
serves a notice of violation to correct and certify a condition that
constitutes a violation of article fourteen of subchapter two of this
chapter, the notice of violation shall specify the date by which the
violation shall be corrected, which shall be twenty-one days after
service of the notice of violation, and the procedure by which the
owner, for good cause shown pursuant to this subdivision, may request a
postponement. The notice of violation shall further specify that the
violation shall be corrected in accordance with the work practices
established in accordance with section 27-2056.11 of this code. The
notice of violation shall be served by personal delivery to a person in
charge of the premises or to the person last registered with the
department as the owner or agent, or by registered or certified mail,
return receipt requested, or by certified mail with proof of delivery,
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 of
violation shall be served on the managing agent. Service of the notice
of violation shall be deemed completed three days from the date of
mailing. Notification, in a form to be determined by the department, of
the issuance of such violation shall be sent simultaneously by regular
mail to the occupant at the dwelling unit that is the subject of such
notice of violation. 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 serious technical difficulties,
inability to obtain necessary materials, funds or labor, inability to
gain access to the dwelling unit wherein the violation exists, or such
other portion of the building as may be necessary to make the required
repair. Such postponement shall not exceed fourteen days from the date
of correction set forth in the notice of violation. The department may
require such other conditions as are deemed necessary to insure
correction of the violations within the time set for the postponement.
The department may grant one additional postponement of no more than
fourteen days for the reasons authorized by this section so long as the
paint or other condition which is the subject of the violation has been
stabilized. The department is also authorized to promulgate rules
establishing criteria for a postponement of the time to correct for a
longer period of time where such postponement is requested because of
one or more substantial capital improvements will be made that will,
when completed, significantly reduce the presence of lead-based paint in
such multiple dwelling or dwelling unit including, but not limited to, a
requirement that the paint which is the subject of the violation is
stabilized. The department shall provide to the owner and the occupant a
written statement signed and dated by the person making such decision
setting forth the reasons for each postponement of the date by which a
violation shall be corrected or the reason for the denial of such
application for a postponement. Said written statement shall be part of
the records of the department.
(2) Notwithstanding any other provision of law, the notice of
violation shall direct that the correction of each violation cited
therein shall be certified 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 include a statement that the violation
was corrected in compliance with paragraph one of subdivision a of
section 27-2056.11 of this code and shall include a copy of the
lead-contaminated dust clearance test results. All certifications 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 five days after the date
set for correction, 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. A copy of such certification shall be
mailed to the complainant by the department not more than twelve full
calendar days from the date of receipt of such certification by the
department. Failure to file such certification shall establish a prima
facie case that such violation has not been corrected.
(3) Whenever the department shall issue a notice of violation to
correct a condition that constitutes a violation of section 27-2056.6 of
article fourteen of subchapter two of this chapter, the department shall
within fourteen days after the date set for the correction of such
violation conduct a final inspection to verify that the violation has
been corrected. Where, upon conducting an inspection, the department
determines that a violation has not been corrected, the department shall
correct such violation within forty-five additional days of such
inspection or in such shorter time as is practicable.
(4) Notwithstanding any other provision of law, the department shall
not remove a violation from its records nor shall it be deemed that such
violation has been corrected unless the records of the department
contain written verification that the department has conducted a final
inspection of the premises and that such inspection verifies that the
violation has been corrected, and copies of lead-contaminated dust
clearance test results whenever such tests are required by applicable
law, rule or regulation. A copy of the report of the final inspection of
a dwelling unit and the status of the violation shall be mailed or
delivered to the occupant and the owner.
(5) Notwithstanding any other provision of law, a person making a
false certification of correction of a violation issued pursuant to
article 14 of subchapter 2 of this chapter, in addition to any other
civil penalty, shall be subject to a civil penalty of not less than one
thousand dollars nor more than three thousand dollars for each false
certification made, recoverable by the department in a civil action
brought in a court of competent jurisdiction. If the person making such
false certification is an employee of the owner then such owner shall be
responsible for such civil penalty. In addition, any such person making
a false certification of correction shall be guilty of a misdemeanor
punishable by a fine of up to one thousand dollars or imprisonment for
up to one year or both.
(6) Notwithstanding any other provision of law, a person who violates
article fourteen of subchapter two of this chapter by failing to correct
such violation in accordance with paragraph one of subdivision a of
section 27-2056.11 of this code shall be subject to a civil penalty of
two hundred fifty dollars per day for each violation to a maximum of ten
thousand dollars from the initial date set for correction in the notice
of violation until the date the violation is corrected and certified to
the department, and in addition to any civil penalty shall, whenever
appropriate, be punished under the provisions of article three of
subchapter five of this code. There shall be a presumption that the
condition constituting a violation continues after the service of the
notice of violation. The owner shall be responsible for the correction
of all violations noticed pursuant to article fourteen of subchapter two
of this chapter, but in an action for civil penalties pursuant to this
subdivision may in defense or mitigation of such owner's 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 serious technical
difficulties, inability to obtain necessary materials, funds or labor,
or inability to gain access to the dwelling unit wherein the violation
exists, or such other portion of the building as might be necessary to
make the repair, provided that a postponement was granted pursuant to
this subdivision; 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 therefor; or
(iv) That the violation giving rise to the action was caused by the
act of negligence, neglect or abuse of another not in the employ or
subject to the direction of the owner, except that the owner shall be
precluded from showing in defense or mitigation of such owner's
liability for civil penalties evidence of any acts occurring,
undertaken, or performed by any predecessor in title prior to the owner
taking control of the premises. 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 violations, but
may condition such remission upon a correction of the violation within a
time period fixed by the court.
(7) Notwithstanding any other provision of law, failure by the
department to comply with any time period provided in this section
relating to responsibilities of the department shall not render null and
void any notice of violation issued by the department or the department
of health and mental hygiene pursuant to such article or section, and
shall not provide a basis for defense or mitigation of an owner's
liability for civil penalties for violation of such article.
(m)(1) Notwithstanding any other provision of law, a violation of
subdivision d of section 27-2005 of this code shall be a class c
immediately hazardous violation and a penalty shall be imposed in
accordance with this section, provided, however, that such violation
shall not be deemed a continuing class c violation of record beyond the
time that the conduct constituting such violation occurred.
(2) If a court of competent jurisdiction finds that conduct in
violation of subdivision d of section 27-2005 of this chapter has
occurred, it may determine that a class c violation existed at the time
that such conduct occurred. Notwithstanding the foregoing, such court
may also issue an order restraining the owner of the property from
violating such subdivision and direct the owner to ensure that no
further violation occurs, in accordance with section 27-2121 of this
chapter. Such court shall impose a civil penalty in an amount not less
than one thousand dollars and not more than five thousand dollars for
each dwelling unit in which a tenant or any person lawfully entitled to
occupancy of such unit has been the subject of such violation, and such
other relief as the court deems appropriate. It shall be an affirmative
defense to an allegation by a tenant of the kind described in
subparagraphs b, c and g of paragraph forty-eight of subdivision a of
section 27-2004 of this chapter that (i) such condition or service
interruption was not intended to cause any lawful occupant to vacate a
dwelling unit or waive or surrender any rights in relation to such
occupancy, and (ii) the owner acted in good faith in a reasonable manner
to promptly correct such condition or service interruption, including
providing notice to all affected lawful occupants of such efforts, where
appropriate.
(3) An owner may seek an order by the court enjoining a tenant from
initiating any further judicial proceedings against such owner pursuant
to this section claiming harassment without prior leave of the court if
(i) within a ten-year period such tenant has initiated two judicial
proceedings pursuant to this section against such owner claiming
harassment that have been dismissed on the merits and (ii) a third or
subsequent proceeding initiated by such tenant against such owner
pursuant to this section claiming harassment during such ten-year period
is determined at the time of its adjudication to be frivolous. Except
for an order on consent such order may be sought by such owner
simultaneously with the adjudication of such third or subsequent
judicial proceeding.
(4) Where the court determines that a claim of harassment by a tenant
against an owner is so lacking in merit as to be frivolous, the court
may award attorneys fees to such owner in an amount to be determined by
the court.
(5) Nothing in paragraphs three or four of this subdivision shall be
construed to affect or limit any other claims or rights of the parties.
n. The provisions of subdivision d of section 27-2005 of this chapter,
subdivision m of this section and subdivision b of section 27-2120 of
this chapter shall not apply where a shareholder of record on a
proprietary lease for a dwelling unit, the owner of record of a dwelling
unit owned as a condominium, or those lawfully entitled to reside with
such shareholder or record owner, resides in the dwelling unit for which
the proprietary lease authorizes residency or in such condominium unit,
as is applicable, or to private dwellings.
Section 27-2116
§ 27-2116 Enforcement of civil penalty; 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 a bill of particulars, except for a
notice under section three thousand one hundred twenty-three 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 or 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 who 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, neglect 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 of 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 27-2148 of article eight of
this subchapter.
Section 27-2117
§ 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.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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