Department of Hous. Preserv. v Haywood

[*1] Department of Hous. Preserv. v Haywood 2007 NY Slip Op 51150(U) [15 Misc 3d 1145(A)] Decided on June 5, 2007 Civil Court Of The City Of New York, Kings County Gonzales, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 5, 2007
Civil Court of the City of New York, Kings County

Department of Housing Preservation and Development of the City of New York, Petitioner

against

Agnita Haywood, Respondent



HP 1217/06

Cheryl J. Gonzales, J.

Petitioner seeks an order granting reargument of respondent's motion to vacate the default judgment entered against her and upon reargument requests that the court modify the judgment or in the alternative set the matter down for a hearing. Petitioner commenced this proceeding seeking civil penalties based on heat and hot water violations issued on February 22, 2006. In a decision dated November 28, 2006, this court vacated the judgment of $21, 500.00 entered against respondent.

Petitioner contends that respondent failed to demonstrate excusable default or a meritorious defense. The fact that respondent received documentation from petitioner stating that the violations were dismissed does not constitute a reasonable excuse according to petitioner. Further, petitioner alleges that mere certification of correction of violations is insufficient to prove that the violations were corrected, and respondent bears the burden of proving that actual repairs were made to correct the violations.

Respondent argues that the certification of correction of the violations was timely submitted to petitioner. Petitioner then dismissed the violations. Further, respondent asserts that petitioner [*2]did not reinspect the violations within seventy days of the filing of the certification of correction and the violations are therefore deemed corrected pursuant to HMC §27-2115(f)(3). In addition, respondent claims that under HMC §27-2115(a) fines should accrue from the date set for correction in the notice of violation and since respondent timely certified correction no fines can be imposed.

In reply, petitioner points to HMC 27-2115(k) which provides that fines for heat and water violations can be imposed from the day the violation is affixed to the subject premises until the violation is corrected. Additionally, petitioner states that the notice of violation informs respondent that the correction date does not apply to heat and hot water violations. Petitioner avers that respondent was properly served with the pleadings in the instant proceeding and fails to meet the requirements for vacatur of the judgment.

Essentially, petitioner bases its motion on its claim that the court misapplied the law. Petitioner asserts that although the judgment was based on erroneous claims made by petitioner, the court should modify the judgment to reflect a judgment based on information that was within petitioner's knowledge at the time the proceeding was commenced, and at the time petitioner requested the judgment. Petitioner does not dispute the fact that it deemed the violations as dismissed on March 14, 2006, three weeks prior to the commencement of the proceeding.

Pursuant to HMC 27-2115(f)(3) violations are deemed corrected if respondent certifies correction of the violations, and petitioner fails to reinspect within seventy days. There is no requirement in the Housing Maintenance Code that petitioner dismiss violations at the time that they are certified as corrected. Petitioner states that the dismissal of the violation removes the violation from the agency's database. It is unclear why petitioner would elect to dispose of the violations by choosing to dismiss them and then seek civil penalties on violations that it has removed. These actions are inconsistent. Further, petitioner states no reason for essentially restoring the violation after it was dismissed making it nullity.

Petitioner's literature also contradicts HMC §27- 2115(k) and the information on the Notice of Violation which provide that fines can be imposed for heat and hot water violations from the date the violations are placed. Instruction Form CIV 194( attached as an exhibit in petitioner's reply papers) states in bold type " If the violations are for Heat, Hot Water, or Illegal Devices, you will be subject to civil penalties if you do not correct them by the date indicated on the Notice of Violation posted at your building." There is no date for correction stated on the notice of violation, only the date of the violation, and petitioner's instruction form is misleading at the very least.

There is nothing in petitioner's papers that qualifies its dismissal, and in ordinary usage it means to dispose of something. Moreover, petitioner cannot arbitrarily decide to dismiss the violation and seek enforcement of the violation at the same time. Petitioner concedes that the violation is removed from their database upon dismissal. Therefore, petitioner cannot seek enforcement of a violation which no longer exists. Petitioner's arguments are based on the premise that a violation [*3]of record exists.

Based on the foregoing, petitioner has not presented any grounds upon which reargument can be granted and the motion is denied.

This constitutes the decision and order of this court.

Dated: June 5, 2007

_________________________

Cheryl J. Gonzales, JHC