2006 New York Code - Imposition Of Civil Penalty.

 
    §  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 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  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 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) 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,
  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 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)  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 article eight of subchapter two 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
  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 during the
  same calendar year or, in the case of subdivision a of section  27-2029,
  during  the  same  period  of  October first through May thirty-first. 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.  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.
    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.