================================================================ THE CITY OF NEW YORK TITLE D* HOUSING MAINTENANCE CODE * Added by L. L. 1967, No. 56, July 14. Subsequent amendments indicated in text. Department of Housing Preservation and Development Office of Rent and Housing Maintenance ================================================================ ================================================================ SUBTITLE V. LEGAL REMEDIES AND ENFORCEMENT ARTICLE 50: Enforcement Actions and Proceedings in General Section D26-50.01 Style of Legal Actions by Department; Disposition of Moneys Collected D26-50.03 Moneys Collected by Department Payable to Special Repair Fund D26-50.05 Liability of the Department for Costs D26-50.07 Notice of Pendency of Action D26-50.09 Service of Civil Process (Repealed by L. 1973, ch. 701, June 11.) D26-50.11 Responsibility of Stockholders of Corporations Owning Multiple Dwellings Declared Nuisances ---------------------------------------------------------------- Sec. D26-50.01 Style of legal actions by department; disposition of moneys collected a. All actions or proceedings instituted to recover penalties imposed by this code, or to recover any costs, expenses and disbursements incurred by the department for the repair or rehabilitation of a dwelling that are reimbursable under the provisions of this code. shall he brought in the name of the department by the corporation counsel. b. All moneys recovered under this section shall be paid to the city officer who brings such actions and proceedings. Such officer shall pay the moneys to the director of finance each month. The officer, on the first of each month, shall report to the commissioner of the department on the amount collected under this section, if any, and the necessary disbursements incurred in the prosecution of such actions and proceedings, if any. D26-50.03 Moneys collected by department payable to special repair fund All penalties and all other moneys recovered for costs, expenses and disbursements that are reimbursable under this code for the repair or rehabilitation of a dwelling shall be paid into a separate fund in the treasury of the city. Such fund shall be available to the department for the purpose of meeting the costs, expenses and disbursements for the repair or rehabilitation of dwellings pursuant to the provisions of this code. D26-50.05 Liability of the department for costs Neither the city nor the department nor any officer or employee thereof shall be liable for costs in any action or proceeding brought under this code. D26-50.07 Notice of pendency of action a. In any action or proceeding brought by the department, it may file a notice of pendency in the county clerk's office in the county where the premises affected by the action or proceeding are located. The department may file such notice at any time after it serves the notice of violation or order to repair, or at the time it commences the action or proceeding, or any time thereafter, before final judgment or order. b. The corporation counsel shall designate in writing on such notice of pendency the name of each person against whom the notice is filed and the number of each block on the land map of the county which is affected by the notice. The county clerk in whose office a notice of pendency is filed shall record and index such notice against the names and blocks designated. c. A notice of pendency may be vacated by order of a judge of the court where such action or proceeding was brought or is pending, or by the written consent of the corporation counsel. The clerk of the county where such notice is filed shall cancel the notice upon receipt of such written consent or a certified copy of such order. Sec. D26-50.09 Service of civil process (Repealed by L. 1973, ch. 701, June 11.) Sec. D26-50.11 Responsibility of stockholders of corporations owning multiple dwellings declared nuisances a. The term "nuisance" shall be held to embrace public nuisance as known at common law or in equity jurisprudence. Whatever is dangerous to human life or detrimental to health, and whatever dwelling is overcrowded with occupants or is not provided with adequate ingress or egress or is not sufficiently supported, ventilated, sewered, drained, cleaned or lighted in reference to its intended or actual use, and whatever renders the air or human food or drink unwholesome, are also severally, in contemplation of this section, nuisances. All such nuisances are unlawful. b. Whenever the department shall certify that any multiple dwelling, or any part of its premises, or the plumbing, sewerage, drainage, lighting or ventilation thereof, is in a condition or in effect dangerous to life or detrimental to health, the department may, after giving notice to the owner and an opportunity to be heard at a hearing held for such purpose, declare the same, to the extent it may specify. a public nuisance. Such declaration shall be filed in the central violation file as provided by section 328 of the multiple dwelling law, if applicable, or as a public record in the department. The officers of a corporation upon which notice of such hearing has been served, other than a banking organization as defined in section two of the banking law, a national banking association, a federal savings and loan association, The Mortgage Facilities Corporation, Savings Banks Life Insurance Fund, The Savings Banks Retirement System, an authorized insurer as defined in section four of the insurance law, or a trust company or other corporation organized under the laws of this state all the capital stock of which is owned by at least twenty savings banks or by at least twenty savings and loan associations or a subsidiary corporation all of the capital stock of which is owned by such trust company or other corporations shall serve similar notice on all stockholders of record of the corporation and other persons known to be stockholders or beneficial owners of the stock of the corporation. A stockholder upon whom such notice has been served shall serve similar notice upon any persons holding a beneficial interest in his stock. (Subd. b amended by L. L. 1969, No. 18, May 12.) c. The department may order such nuisance to be removed in accordance with the provisions of article fifty-four of this code, and if any order of the department is not complied with, then, as an alternative to proceeding under the provisions of article fifty-four of this code, if the multiple dwelling involved shall have been declared to be a public nuisance pursuant to subsection (b) of this section, and such declaration shall have been filed as therein provided, the department or a receiver appointed pursuant to article fifty-five of this code or section 309 of the multiple dwelling law or any tenant of such multiple dwelling may institute and maintain an action in the Supreme Court or in the housing part of the New York City Civil Court in the county where the multiple dwelling is located against any owner or owners to whom the order was issued pursuant to section D26-54.01 of this code for an order compelling such owner or owners to comply with the department's order and, if such action be brought by such receiver or tenant, for payment of the costs and disbursements of the action including legal fees. Except as owners may have otherwise agreed, any owner who removes or remedies the nuisance in compliance with an order of the department or court shall be entitled to recover a proportionate share of the total expense of such compliance from all other owners to whom the department's order was issued or to whom such owner sent a copy of the department's order within thirty days of receipt of same by registered mail. (Subd. c amended by L. 1973, ch. 701, June 11.) d. Whenever a multiple dwelling shall have been declared a public nuisance to any extent pursuant to subsection (b) of this section and such declaration shall have been filed as therein provided, the term "owner" shall be deemed to include, in addition to persons mentioned in the definition of the term in section four of the multiple dwelling law, all the officers, directors and persons having an interest in more than 10 per cent of the issued and outstanding stock of the owner as herein defined, as holder or beneficial owner thereof, if such owner be a corporation other than a banking organization as defined in section two of the banking law, a national banking association, a federal savings and loan association, The Mortgage Facilities Corporation, Savings Banks Life Insurance Fund, The Savings Banks Retirement System, an authorized insurer as defined in section four of the insurance law, or a trust company or other corporation organized under the laws of this state all the capital stock of which is owned by at least twenty savings banks or by at least twenty savings and loan associations or a subsidiary corporation all of the capital stock of which is owned by such trust company or other corporation and thereupon any corporation which is included in the term "owner" as provided in this subsection (d) shall file an additional statement of registration within ten days which shall contain the name and residence and business address of each director and stockholder of the corporation and of each person known to have any beneficial interest in such stock. (Subd. d amended by L. L. 1969, No. 18, May 12) e. Whenever a multiple dwelling shall have been declared a public nuisance to any extent pursuant to subsection (b) of this section, and such declaration shall have been filed as therein provided, all officers, directors and persons having an interest, as holder or beneficial owner thereof, in more than ten per cent of the issued and outstanding stock of any corporation other than a banking organization as defined in section two of the banking law, a national banking association a federal savings and loan association, The Mortgage Facilities Corporation, Savings Banks Life Insurance Fund, The Savings Banks Retirement System, an authorized insurer as defined in section four of the insurance law, or a trust company or other corporation organized under the laws of this state all the capital stock of which is owned by at least twenty savings banks or by at least twenty savings and loan associations or a subsidiary corporation all of the capital stock of which is owned by such trust company or other corporation, then in operation and control of such multiple dwelling, shall, in addition to all other liabilities and penalties provided in this code and elsewhere, be jointly and severally liable for all injury to person or property thereafter sustained by any tenant of such multiple dwelling or any other person by reason of the condition constituting such public nuisance and for all costs and disbursements including attorney's fees of any suit brought by such tenant or other person (Subd. e amended by L. L. 1969, No. 18, May 12.) f. No civil or criminal liability or penalty shall attach to any person by reason of his ownership or beneficial ownership of stock in a corporation owning a multiple dwelling declared to be a public nuisance pursuant to subsection (b) of this section because of his failure to comply with any of the provisions of this code, whose interest in such corporation is less than 25 per cent of the issued and outstanding stock thereof, as owner or beneficial owner thereof, and who has sustained the burden of proving that he has not participated directly or indirectly in the management, operation or control of such multiple dwelling. g. No civil or criminal liability or penalty shall attach to any person by reason of his ownership beneficial ownership of stock in a corporation owning a multiple dwelling declared to be a public nuisance pursuant to subsection (b) of this section because of his failure to comply with any of the provisions of this code unless and until he has had a reasonable period of time to comply following his having become an owner as defined in this code. h. No civil or criminal liability or penalty shall attach to any person who shall by operation of law become an owner of a multiple dwelling then or thereafter certified and declared a public nuisance to any extent pursuant to subsection (b) of this section, or the holder or beneficial owner of stock in such owner, if a corporation, because of his failure to comply with any of the provisions of this code and of the multiple dwelling law for a period of six months after he acquired ownership of said multiple dwelling or the stock or beneficial interest in the stock of a corporation which is the owner. ---------------------------------------------------------------- ARTICLE 51: Civil Penalty* * Added by L. 1972, ch 982, June 8, 1972, eff April 19, 1973 except subdivisions (d) and (e) of Sec. D26-51.01 eff June 8, 1972. Subsequent amendments indicated in text. Section D26-51.01 Imposition of Civil Penalty D26-51.03 Enforcement of Civil Penalties, Powers of Housing Part of the Civil Court, Collection of Judgment D26-51.05 Stay of Accumulation of Per Diem Penalties During Pendency of Action ---------------------------------------------------------------- D26-51.01 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, and twenty-five dollars per day for each immediately hazardous violation 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 other penalties herein provided. b. The department shall serve a notice of violation upon the owner, his agent or other person responsible for its correction. The notice shall identify the condition constituting the violation, the provisions 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 violations and the amount of the possible penalty. It shall also advise that the department will, if requested, confer with the owner or his 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 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 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 violations 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. (Amended by L. 1976, ch. 825, July 26; L. 1981, ch. 839, July 31.) c. The said notice of violation shall also shall also specify the date by which each violation shall be corrected. Such date shall he: (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 should be deemed completed five days from the date of mailing. The department shall postpone the date by which a violation shall be corrected upon a showing 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 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 law 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-seven-two and prior to October fifteen 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 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 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 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 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. (Subd. amended by L. 1977, ch. 556 Aug. 1.) 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. (Subd. amended by L. 1977, ch. 849, Aug. 11, eff. Sept. 1; L. 1979, ch. 37, April 5) 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 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 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-days 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. (Subd. i added by L. 1974, ch. 865. June 10; L. 1979, ch. 37, April 5; L. 1979, ch. 43, April 6.) 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. (Subd. j added by L. 1980, ch. 526. Effective June 24, 1980.) k. (1) Notwithstanding any other provision of law, a person who violates section D26-17.01, subdivision a of section D26-17.03, D26-17.05, D26-17.07 or D26-17.09 shall be subject to a civil penalty of two hundred fifty dollars per day for each violation from the date the violation is placed until the date the violation is corrected and a person who violates subdivision b of section D26-17.03 shall be subject to a civil penalty of twenty-five dollars per day from the date the violation is placed until the date the violation is corrected but no less than one thousand dollars. (2) Notwithstanding any other provision of law, the department shall serve a notice upon the owner, his agent or other person responsible for the correction of violations by affixing such notice in a conspicuous place on the premises. This first notice shall identify the condition constituting the violation, the date the violation was reported and set the penalty attendant thereto. In addition, the department shall mail another notice 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. This second notice shall identify the condition constituting the violation, the provision of law applicable thereto, the department order number, the classification of the violation according to its degree of hazard and the amount of the penalty. It shall also advise that the department will, if requested, confer with the owner or his representative concerning the nature and extent of the work to be done to insure compliance and the methods of financing such work. (3) Notwithstanding any other provision of law, the owner shall be responsible for the correction of all violations placed pursuant to article seventeen of 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 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 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. (Subd. k added by L. L. 1981, No. 76, Oct. 1, 1981, eff. Oct. 31, 1981.) Sec. D26-51.03 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 a bill of particulars, except for a notice under section 3123 of the CPLR, 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. If there is no such notation, a party may demand that all motions for disclosure and bill of particulars be made within thirty days after service thereof or within such further time as the court may allow upon the basis of an application for further time made during such twenty day period. (Amended by L. 1977, ch. 491, Aug. 1.) (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 his 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 liability for civil penalties show: (i) That he 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 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 with 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 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 D26-57.11.* (Amended by L. 1973, ch. 701, June 11; L. 1973, ch. 703, June 11) Sec. D26-51.05 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). (Added by L. 1972, ch. 982, June 8, 1972, eff. April 19, 1973 except that subdivisions (d) and (e) of Sec. D26-5 1.01 shall take effect June 8, 1972.) ---------------------------------------------------------------- ARTICLE 52: Criminal Penalty Section D26-52.01 Penalties; Willful or Reckless Violations; False Statements D26-52.03 Penalties; Refusal to Admit and Interference with Inspection; Failure to Submit Reports ---------------------------------------------------------------- Sec. D26-52.01 Penalties; willful or reckless violations; false statements (a) Any person who (1) Willfully or recklessly violates any provisions of this title; or (2) Willfully or recklessly violates, or fails to comply with, any requirement of an order of the department, or (3) Willfully makes, or causes any other person to make, any false or misleading statement on any registration statement, notice or other document required to be filed pursuant to this title, or on any application, or any accompanying document, for the granting of any permit or any other action by the department pursuant to this title, shall be guilty of a misdemeanor punishable by a fine of not less than ten dollars nor more than one thousand dollars for each such violation, or by imprisonment up to one year, or by both such fine and imprisonment. (b) A person commits a willful violation when he intentionally acts, or intentionally fails to act, to cause a desired result that violates this title. A person commits a reckless violation when he acts, or fails to act with a conscious disregard of a substantial risk that the act or failure to act will result in a condition, constituting a violation of this code, which will endanger the life, health or safety of another person. (c) In a prosecution for a willful or reckless violation of a provision of this title evidence of prior service of civil process or of prior judgments for civil penalties arising from the same violation, and relating to the same dwelling, shall be admissible on the issue of the defendant's knowledge of the existence of the violation. (d) Evidence that the defendant had knowledge or notice of the violation and failed to correct the same for more than six months or take reasonable action to explain to the department this failure or inability to make the correction shall be relevant on the issue of the willfulness of defendant's action. This subdivision shall not be construed to prevent conviction for a willful violation on other grounds. (Amended by L. 1972, ch. 982, June 8, 1972, eff. April 19, 1973.) Sec. D26-52.03 Penalties; refusal to admit and interference with inspection; failure to submit reports Any person (1) who refuses entry, or access to an officer or inspector of the department to any premises or part thereof that the officer or inspector is lawfully authorized to inspect, or who unreasonably interferes with an authorized inspection; or (2) who fails to file any report or other paper which he is required to file, under this code, except a statement of registration or other paper under article 41, shall be guilty of an offense, punishable by a fine of not more than fifty dollars, or by imprisonment for not more than thirty days, or by both such fine and imprisonment. ---------------------------------------------------------------- ARTICLE 53: Injunctive Relief Section D26-53.01 Injunctions; Mandatory and Prohibitory D26-53.03 Injunctive Relief in Other Actions; Powers of the Court D26-53.05 Preliminary Injunctions D26-53.06 Court Order of Access to Inspect Premises D26-53.07 Failure to Comply with Judicial Order ---------------------------------------------------------------- Sec. D26-53.01 Injunctions; mandatory and prohibitory The department may institute an action in a court of competent jurisdiction for an order requiring the owner of property or other responsible person to abate or correct any violation of this code, or to comply with an order or notice of the department, or for such other relief as may he appropriate to secure continuing compliance with this code. An action for injunctive relief hereunder may be brought in addition to other sanctions and remedies for violations of the code, or may be joined with any action for such other sanctions and remedies except criminal prosecution. Sec. D26-53.03 Injunctive relief in other actions; powers of the court In any action or proceeding brought in the housing part of the New York city civil court, the court on motion of any party or on its own motion, may issue such preliminary, temporary or final orders requiring the owner of property or other responsible person to abate or correct violations of this code, or to comply with an order or notice of the department, or to take such other steps as the court may deem necessary to assure continuing compliance with the requirements of this code, including direction of correction of violations of this code by a contractor, materialman or municipal department and payment of rent or release of funds deposited with the court in an appropriate amount to (i) such contractor or materialman upon the proper presentation of bills for the correction of such conditions or (ii) such municipal department. (Amended by L. 1977, ch. 374, July 6.) Sec. D26-53.05 Preliminary injunctions Upon application by the department pursuant to CPLR section 6311 supported by affidavit setting forth the facts showing the reasons therefor, a court of competent jurisdiction, or any judge of such court, may issue a preliminary order to correct or abate violations of this code, or to comply with an order or notice of the department, as the court may deem necessary to protect the health and safety of the occupants of a building until the entry of a final judgment or order. D26-53.06 Court order of access to inspect premises a. A judge of any civil court of competent jurisdiction may, upon appropriate application by the department supported by an affidavit or affirmation, issue an order directing that access be provided to an officer or inspector of the department to any premises or part thereof, whenever an inspection of any premises or part thereof is required or authorized by any state or local law or regulation or entry to such area is necessary for correction of a condition violating such law or regulation. b. If the application is found appropriate, the court may issue an order to show cause why the order of access should not be issued. If the respondent cannot with due diligence be served personally within the time fixed in such order, service may be made on such person by posting a copy thereof in a conspicuous place in the premises to which access is sought and by sending a copy thereof by certified mail, return receipt requested, to such person at his last known address. c. The court shall set in the order of access specific dates and times for access. d. The person, officer or inspector gaining access shall, before entry, give notice of his authority and purpose to any occupant of the premises and show him the order or a copy thereof upon request. e. A person who does not provide access or refuses, after service of certified copy of the order upon him, to allow access to the person authorized to enter may be found guilty of contempt of court and may be required to pay a fine of a maximum of two hundred and fifty dollars for willfully failing to provide or refusing to allow access. Service of the order shall be as the court directs or by personal service but if such cannot be made with due diligence within five days, service may be made by posting a copy of the order in a conspicuous place in the premises which is the subject of the order, and by sending a copy thereof by certified mail, return receipt requested, to such person at his last known address. Such person shall not be in contempt of court or be required to pay a fine if he establishes good and sufficient reason for a failure to be present when access was demanded. f. Nothing herein shall be deemed to authorize an officer or inspector of the department to enter any premises or part thereof if a person to whom an order is directed does not provide or refuses access. g. Nothing herein shall affect the validity of inspections authorized and conducted under any other provision of law, rule or regulation without the issuance of an inspection warrant as provided in this article. (Added by L. 1977, ch 851, Aug. 11.) Sec. D26-53.07 Failure to comply with judicial order A person who fails to comply with an order issued pursuant to this article by a court of competent jurisdiction or by a judge of such a court shall be punished in accordance with section 5104 of the CPLR and article 19 of the judiciary law. ---------------------------------------------------------------- ARTICLE 54: Repairs by Department Section D26-54.01 Power to Cause or Order Correction of Violations D26-54.02 Registration of Lead Paint Violations, Enforcement D26-54.03 Corrective Action Pursuant to Court Order D26-54.05 Recovery of Expenses D26-54.07 Statement of Account ---------------------------------------------------------------- Sec. D26-54.01 Power to cause or order correction of violations a. Whenever the department determines that because of any violations of this title 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 title 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. D26-50.11 of this code, and an order to correct the conditions constituting the nuisance has not been complied with, the department shall execute the order pursuant to this subsection or institute proceedings pursuant to article 55 of this code. (Amended by L. L. 1971, No. 10, Jan. 22.) Sec. D26-54.02 Registration of lead paint violation; 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 he 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 section CPLR 7804(h), 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. (Added by L. L. 1972, No. 50, June 29.) Sec. D26-54.03 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 section D26-54.01 (a) or (b), 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 section D26-55.005(c). 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 or 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 (Amended by L. L. 1971, No 10, Jan. 22.) Sec. D26-54.05 Recovery of expenses All expenses incurred by the department pursuant to section D26- 54.01 or section D26-54.03 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 57 shall govern the effect and enforcement of such debt and lien (Amended by L. L. 1971, No 10, Jan 22.) Sec. D26-54.07 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 D26-40.09 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 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 (Amended by L. L. 1971, No 10, Jan 22.) ---------------------------------------------------------------- ARTICLE 55: Receivership Section D26-55.01 Grounds for Appointment of Receiver D26-55.03 Notice to Owner, Mortgagees and Lienors D26-55.05 Order to Show Cause D26-55.07 Temporary Appointment of Receiver D26-55.09 Proceedings on Return of Order to Show Cause D26.55.11 Powers and Duties of Receiver D26-55.13 Discharge of Receiver D26-55.15 Recovery of Expenses of Receivership; Lien of Receiver D26-55.l7 Obligations of Owner Not Affected ---------------------------------------------------------------- Sec. D26-55.01 Grounds for appointment of receiver Whenever the department certifies that any condition in violation of this title or other applicable law in any multiple dwelling or any part of its premises constitutes a serious fire hazard or is a serious threat to life, health or safety it may, upon failure of the owner to comply with an order to correct such conditions issued pursuant to section D26-54.01 of this code, apply for the appointment of a receiver to repair and correct the violations. Sec. D26-55.03 Notice to owner, mortgagees and lienors a. If the department intends to seek the appointment of a receiver to remove or remedy a condition described in the preceding section, it shall serve upon the owner, along with the order pursuant to section D26-54.01 of this code, a notice stating that in the event the violations covered by the order are not removed or remedied in the manner and within the time specified therein, the department may apply for the appointment of a receiver of the rents, issues and profits of the property with rights superior to those of the owner and any mortgagee or lienor. b. Within five days after service of the order and notice upon the owner, the department shall serve a copy of the order and notice upon every mortgagee and lienor of record, personally or by registered or certified mail, at the address set forth in the recorded mortgage or lien. If no address appears therein, a copy shall be sent by registered mail to the person at whose request the instrument was recorded. c. The department shall file a copy of the notice and order in the office of the county clerk in which mechanics liens affecting the property would be filed Sec. D26-55.05 Order to show cause a. The department upon failure of the owner to comply with an order under section D26-55.3 within the time provided therein may thereafter apply to a court of competent jurisdiction in the county where the property is situated for an order directing the owner and any mortgagees or lienors of record to show cause why the housing and development administrator should not be appointed receiver of the rents, issues and profits of the property and why the receiver should not remove or remedy such condition and obtain a lien in favor of the housing and development administration against the property having the priority provided in Article 57 of this code to secure repayment of the costs incurred by the receiver in removing such conditions. Such application shall contain (a) proof by affidavit that an order of the department has been issued, served on the owner, mortgagees and lienors, and filed, in accordance with section D26-55.03, (b) a statement that a serious fire hazard or a serious threat to life, health or safety continued to exist in said dwelling after the time fixed in the department order for correction of the condition and a description of the dwelling and conditions involved; (c) a brief description of the nature of the work required to remove or remedy the condition and an estimate as to the cost thereof (Subd. a amended by L. L. 1971 No. 10, Jan 22.) b. The order to show cause shall be returnable not less than five days after service is completed. c. A copy of the order to show cause, and the papers on which it is based, shall be served on the owner, mortgagee of record and lienors. If any such persons cannot with due diligence be served personally within the city within the time fixed in the order, then service may be made by posting a copy of the order in a conspicuous place on the premises, and by sending a copy thereof by registered mail to the owner at the last address, if any, registered by him with the department, or to his last address if any known to the department, or, in the case of a mortgagee or lienor to the address set forth in the recorded mortgage or lien, and by publication in a newspaper of general circulation in the county where such premises are located. Service shall he deemed complete on filing proof thereof in the office of the clerk of the court in which application for such order is made (Amended by L. 1977, ch. 74, April 12.) Sec. D26-55.07 Temporary appointment of receiver a. If the condition of the premises is such that unless immediately cured irreparable damage may be caused to the building or it constitutes an imminent danger to its occupants or the occupants of adjoining properties, then the order to show cause may be returnable in the discretion of the court in less than five days, and in such case, service may be made by posting a copy of the order in a conspicuous place on the premises and by mailing a copy to the owner at the address registered with the department and to the mortgagees and lienors at their respective addresses. But any appointment of a receiver without service pursuant to section D26-55.05(c) shall be temporary only and expire not more than 30 days thereafter unless, prior to the expiration of the 30 days, the department shall serve notice on the owner, mortgagee and lienors in the manner provided for in section D26-55.05(c) of intention to apply to the court at a date fixed in such notice and not less than five days after the service of such notice, for an extension of the receivership. Upon such service the period of the appointment of the temporary receiver shall be automatically extended for a further period of 15 days. The notice shall also contain, in addition to the order to show cause and the papers on which it is based, a statement of any expenditures made or obligations incurred by the receiver during the period of his temporary appointment. On the date fixed in the notice, the court shall determine whether or not to extend the period of receivership. Such determination shall be made as if the application were an original one for the appointment of a receiver. b. A temporary receiver shall have the powers and duties provided in section D26-55.11, except that he shall not, without express order of the court, make any repairs or improvements to the property or incur any expenses in the operation thereof during the period of his temporary appointment except such as may be necessary (1) to remedy or remove the immediate condition or conditions which called for his appointment, and (2) to the ordinary operation and maintenance of the property. For such specific purpose the receiver shall be entitled to let such contracts and undertake such expenses as may be necessary to accomplish the specific results without advertisements and without procuring competitive bids. Sec. D26-55.09 Proceedings on return of order to show cause a. On the return 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 a similar statutory preference, has priority. b. If the court finds that the facts stated in the application warrant the granting thereof, then it shall appoint the housing and development administrator receiver of the rents, issues and profits of the property. (Subd. b amended by L. L. 1971, No 10, Jan. 22.) c. Notwithstanding subsection (b), if, after determination of the issue, the owner, or any mortgagee or lienor or other person having an interest in the property, shall apply to the court to be permitted to remove or remedy the conditions set forth in the department's application 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 may in lieu of appointing a receiver issue an order permitting such person to perform the work within a time fixed by the court. If at the time fixed in the order the work has not been satisfactorily done, the court shall appoint such receiver. If after the granting of an order permitting a person to perform the work but before the time fixed by the court for the completion thereof it shall appear to the department that the person permitted to do the same is not proceeding with due diligence, then the department may apply to the court, on notice to those persons who have appeared in the proceeding, for a hearing to determine whether a receiver shall be appointed immediately. On the failure of any person to complete the work in accordance with the provisions of an order under this subsection, the department, or any receiver thereafter appointed shall be reimbursed for costs incurred by him in removing or remedying the condition and other charges herein provided for out of the security posted by such person. Sec. D26-55.11 Powers and duties of receiver a. A receiver appointed pursuant to this article shall have all of the powers and duties of a receiver appointed in an action to foreclose a mortgage on real property, together with such additional powers and duties as herein granted and imposed. He shall not be required to file any bond. b. The receiver shall with all reasonable speed remove violations in the dwelling and its premises, including those constituting a fire hazard or a threat to life, health or safety. He may also, in addition to ordinary repairs, maintenance and replacement, make other improvements to effect a rehabilitation of the property, in such fashion as is consistent with maintaining safe and habitable conditions over the remaining useful life of the dwelling. He shall have the power to let contracts or incur expenses therefor in accordance with the provisions of law applicable to contracts for public works except that advertisement shall not be required for each such contract. Notwithstanding any provision of law, the receiver may let contracts or incur expenses for individual items of repairs, improvements, or supplies without the procurement of competitive bids where the total amount of any such individual item does not exceed twenty-five hundred dollars. c. The receiver shall collect the accrued and accruing rents, issues and profits of the dwelling and apply the same to the cost of the repairs and improvements authorized in subdivision (b), to the payment of expenses reasonably necessary to the proper operation and management of the property, including insurance and the fees of the managing agent, and the necessary expenses of his office as receiver, the repayment of all monies advanced to the receiver by the housing and development administration to cover the costs incurred by the receiver and interest thereon; and then, if there be a surplus, to unpaid taxes, assessments, water rents, sewer rents, and penalties and interest thereon, and then to sums due to mortgagees or lienors. If the income of the property shall be insufficient to cover the cost of repairs and improvements, or the expenses reasonably necessary to the proper operation and management of the property and other necessary expenses of the receiver, the housing and development administration shall advance to the receiver any sums required to cover such cost and expense and thereupon shall have a lien against the property having the priority provided in Article 57 for any such sums so advanced with interest thereon. (Subd. c amended by L. L. 1971, No. 10, Jan. 22.) d. The receiver shall be entitled to the same fees, commissions and necessary expenses as receivers in actions to foreclose mortgages. Such fees and commissions shall be paid into the fund created pursuant to section D26-50.03 of this code. The receiver shall be liable only in his official capacity for injury to person and property by reason of conditions of the premises in a case where an owner would have been liable; he shall not have any liability in his personal capacity. The personnel and facilities of the housing and development administration and the corporation counsel shall be availed of by the receiver for the purpose of carrying out his duties as receiver, and the costs of such services shall be deemed a necessary expense of the receiver. (Subd. d amended by L. L. 1971, No. 10, Jan. 22.) Sec. D26-55 13 Discharge of receiver The receiver shall be discharged upon rendering a full and complete accounting to the court when the repairs and improvements herein authorized are completed and the cost thereof and all other costs authorized herein have been paid or reimbursed from the rents and income of the dwelling and the surplus money, if any, has been paid over to the owner or the mortgagee or lienor as the court may direct. However, at any time, the receiver may be discharged upon filing his account as receiver without affecting the right of the housing and development administration to its lien. Upon the completion of the repairs and improvements, the owner, the mortgagee or any lienor may apply for the discharge of the receiver upon payment to the receiver of all monies expended by him therefor and all other costs authorized by section D26-55.11 which have not been paid or reimbursed from the rents and income of the dwelling. (Amended by L. L. 1971, No. 10, Jan. 22.) Sec. D26-55.15 Recovery of expenses of receivership; lien of receiver a. The expenditures made by the receiver pursuant to section D26-55.11 shall, to the extent that they are not recovered from the rents and income of the property collected by the receiver, constitute a debt of the owner and a lien upon the building and lot, and upon the rents and income thereof. Except .as otherwise provided in this section, the provisions of section 57 shall govern the effect and enforcement of such debt and lien; references therein to the department shall, for purposes of this article be deemed to refer to the receiver and, after his discharge, the housing and development administration. b. Failure to serve a copy of the order and notice required in the manner specified by section D26-55.03, or failure to serve any mortgagee or lienor with a copy of the order to show cause as required by section D26-55.05(c), shall not affect the validity of the proceeding or the appointment of a receiver, but the rights of the housing and development administration or of the receiver shall not in such event be superior to the rights of any mortgagee or lienor who has not been served as provided therein. c. Any mortgagee or lienor who at his expense remedies or removes the conditions to the satisfaction of the court pursuant to the provisions of section D26-55.09(c) shall have and be entitled to enforce a lien equivalent to the lien granted to the receiver in favor of the housing and development administration hereunder. Any mortgagee or lienor who, following the appointment of a receiver by the court, shall reimburse the receiver and the housing and development administration for all costs and changes as hereinabove provided shall be entitled to an assignment of the lien granted to the receiver in favor of the housing and development administration. (Amended by L. L. 1971, No. 10, Jan. 22.) Sec. D26-55.17 Obligations of owner not affected Nothing herein contained shall be deemed to relieve the owner of any civil or criminal liability incurred or any duty imposed by law by reason of acts or omissions of the owner prior to the appointment of a receiver, nor shall anything contained herein be construed to suspend during the receivership any obligation of the owner for the payment of taxes or other operating and maintenance expenses of the dwelling nor of the owner or any other person for the payment of mortgages or liens. ---------------------------------------------------------------- ARTICLE 56: Vacate Orders Section D26-55.01 Power to Order Dwelling Vacated D26-56.03 Content and Effect of Vacate Order D26-56.05 Reoccupancy After Vacate Order ---------------------------------------------------------------- Sec. D26-56.01 Power to order dwelling vacated a. Any dwelling or part thereof; which, because of a structural or fire safety hazard, defects in plumbing, sewage, drainage, or cleanliness, or any other violation of this code or any other applicable law, constitutes a danger to the life, health, or safety of its occupants shall be deemed to be unfit for human habitation. b. The department may order or cause any dwelling or part thereof which is unfit for human habitation to be vacated. Sec. D26-56.03 Content and effect of vacate order. a. An order issued pursuant to section D26-56.01(b) shall set forth the conditions which render the dwelling or part thereof unfit for human habitation. b. The order shall require all persons occupying the dwelling or part affected to vacate it within a period of time, not less than 24 hours nor more than ten days, to be stated in the order. c. 1. The order shall require that the owner correct the conditions which render the dwelling or part thereof unfit for human habitation within a period time, not to exceed ten days, to be stated in the order. 2. If the department has not revoked or extended the order pursuant to subdivision b of section D26-56.05 herein, where such dwelling is a class B multiple dwelling or a class A multiple dwelling used for single room occupancy pursuant to section two hundred forty-eight of the multiple dwelling law, the owner of such dwelling shall he subject to a civil penalty of five thousand dollars for each dwelling unit which is included in said order. The fine shall be recoverable by the department by civil action in a court of appropriate jurisdiction. Such action must be commenced or notice of pendency filed within one year of the effective date of the vacate order (Subd. c. amended by L. 1981, ch. 2250, June 15.) d. If a vacate order is not complied with within the time specified the department may cause the dwelling or part thereof affected to be vacated. e. The filing of a vacate order in the office of the county clerk in the same manner as a notice of pendency shall be notice to any subsequent purchaser mortgagee or lienor that any lien resulting from such vacate order shall be enforceable against the superior to the rights of such purchaser, mortgagee or lienor. f. 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 mechanic's liens and may be enforced against the premises as such, except that such lien shall have a duration of ten years. (Subd. e. and f added by L. 1981, ch. 250, June 15) Sec. D26-56.04 Notice. a. The vacate order shall be served upon the owner by mailing a copy to the person last registered with the department as owner or agent by certified mail return receipt requested. The affidavit of an employee or agent of the department stating facts which show that the vacate order was duly addressed and mailed shall be presumptive evidence that such vacate order was duly served. b. The vacate order shall be served upon the occupants of the dwelling by affixing a copy prominently on the dwelling which is the subject of the vacate order. (Added by L. 1981, ch. 250 June 15.) Sec. D26-56.05 Reoccupancy after vacate order. a. No person shall occupy, or cause or permit to be occupied, any dwelling or part thereof while such dwelling or part is subject to a vacate order. b. If the department finds that the conditions rendering a building or part unfit for human habitation have been corrected, it may revoke a vacate order. If the department finds that the unlawful conditions are being corrected and that continued occupancy may be permitted consistent with health and safety, it may extend the time period for compliance fixed in the order. c. The department may by regulations set forth standards and provide for hearings to determine when such vacate order should be revoked or extended. d. The department may require as a condition for revocation of a vacate order that the owner make reasonable effort to notify any tenants who may have vacated dwelling pursuant to such order that said tenant has a right to re-occupy the dwelling. (Subd. c and d added by L. 1981. ch. 250, June 15) ---------------------------------------------------------------- ARTICLE 57: Recovery of Expenses Section D26-57.01 Action Against the Owner for Recovery of Expenses D26-57.03 Lien on Premises D26-57.05 Establishment of Lien D26-57.07 Validity of Lien; Grounds for Challenge D26-57.09 Levy on Rents D26-57.11 Appointment of Receiver * Section D26-57.11 was renumbered and amended by L. L. 1947, No. 48 and now appears as Section D26-57.09. ---------------------------------------------------------------- Sec. D26-57.01 Action against the owner for recovery of expenses The department may bring an action against the owner of a dwelling for the recovery of any costs expenses and disbursements incurred by it under any provision of the administrative code making such expenses a debt recoverable from the owner. The institution of any such action shall not suspend or bar the right to pursue any other remedy provided by law for the recovery of such expenses, and such action may, subject to jurisdictional limitations, be joined with the enforcement of any such other remedy or any other claim against the owner relating to the same premises. (Amended by L. L 1974, No. 48, Dec. 17.) Sec. D26-57.03 Lien on premises a. There shall be filed in the office of the department a record of all work caused to be performed by or on behalf of the department. Such records shall be kept on a building by building basis and shall be accessible to the public during business hours. Within thirty days after the issuance of a purchase or work order to cause a repair to be made by or on behalf of the department, entry of such order shall be made on the records of the department. Such entry shall constitute notice to all parties. b. All expenses incurred by the department for the repair or the elimination Of any dangerous or unlawful conditions therein, pursuant to this title or any other applicable provision of law, shall constitute a lien upon the premises when the amount thereof shall have been definitely computed as a statement of account by the department and the department shall cause to be filed in the office of the city collector an entry of the account stated in the book in which such charges against the premises are to be entered. Such lien shall have a priority over all other liens and encumbrances on the premises except for the lien of taxes and assessments. However, no lien created pursuant to this title shall be enforced against a subsequent purchaser in good faith or mortgagee in good faith unless the requirements of subdivision a of this section are satisfied; this limitation shall only apply to transactions occurring after the date such record should have been entered pursuant to subdivision a and the date such entry was made. c. A notice thereof, stating the amount due and the nature of the charge, shall be mailed by the city collector, within five days after such entry, to the last known address of the person whose name appears on the records in the office of the city collector as being the owner or agent or as the person designated by the owner to receive tax bills or, where no name appears, to the premises, addressed to either the owner or the agent. d. If such charge is not paid within thirty days from the date of entry, it shall be the duty of the city collector to receive interest thereon at the rate of seven per cent per annum, to be calculated to the date of payment from the date of entry. e. Such charge and the interest thereon shall continue to be, until paid, a lien on the premises. .Such lien shall be a tax lien within the meaning of sections 415(1)-23.0 and D17- 1.0 of the administrative code and may be sold, enforced or foreclosed in the manner provided in titles A and D of chapter seventeen of the administrative code or may be satisfied in accordance with the provisions of section thirteen hundred fifty-four of the real property actions and proceedings law. (Amended by L. 1977, ch. 854, Aug. 11.) f. Such notice mailed by the city collector pursuant to this section shall have stamped or printed thereon a reference to article fifty-seven of title D of chapter twenty-six of the administrative code. (Added by L. L. 1974, No. 48, Dec. 17, which repealed former Sec. D26-57.03.) Sec. D26-57.05 Establishment of lien Upon the completion of any repair, or other work giving rise to a lien, the department shall file among its records a certificate setting forth the work done and the expenses incurred and certifying that such expenses were necessary and proper in the exercise of its lawful powers. ( Amended by L. L. 1974, No. 48, Dec. 17.) Sec. D26-57.07 Duration of lien (Repealed by L. L. 1974, No. 48, Dec. 17.) Sec. D26-57.07 Validity of lien; grounds for challenge a. In any proceedings to enforce or discharge the lien, the validity of the lien shall not be subject to challenge based on: (1) The lawfulness of the repair or other work done; or (2) The propriety and accuracy of the items of expenses for which a lien is claimed, except as provided in this section. b. No such challenge may be made except by (1) the owner of the property, or (2) a mortgagee or lienor whose mortgage or lien would, but for the provisions of Section D26-57 03, have priority over the department's lien. c. An issue specified in subsection (a) which was decided, or could have been contested, in a prior court proceeding to secure a court order to repair under article 54 or to secure the appointment or the discharge of a receiver under article 55, shall not be open to re-examination, but if any mortgagee or lienor entitled to notice of such prior proceeding was not served and did not appear therein, his mortgage or lien shall have priority over the lien of the department. In addition to this limitation, an owner who has been served with a statement pursuant to section D26-54.07 of this title, or his successor in interest, may subsequently contest any item contained therein except as provided in such section. d. With respect to any issue specified in subsection (a) which is not subject to subsection (c), the certificate of the department filed pursuant to section D26-57.05 [(a)] shall be presumptive evidence of the facts stated therein. (Amended by L. L. 1971, No. 10, Jan. 22; formerly Sec. D26- 57.09 renumbered and amended by L. L. 1974, No. 48, Dec. 17.) Sec. D26-57 09 Levy on rents a. The department may serve upon any person liable for rent or other compensation for the occupancy of premises subject to this article a notice containing: (1) a statement of the contents of the certificate filed pursuant to section D26-57.05, or of a judgment in an action under section D26-51.03 or section D26-57.01 or in an action to enforce a lien under this article; (2) a statement of the amount remaining due under such certificate or judgment; and (3) a demand that rent thereafter be paid to the department as it comes due. Service of the notice shall be made by personal delivery of a copy thereof, or by certified mail. b. Upon receipt of such notice, the person to whom it is directed shall pay any rent due, and future rent as it comes due, to the department in the manner set forth in the demand. The department may, upon failure to pay, sue for rent due. In such suit, the validity of proceedings prior to the issuance of the notice under subdivision a of this section shall not be subject to question. c. The department shall issue a receipt for each sum paid under this section. Such payment and receipt shall for all purposes have the same legal effect as payment to or a receipt from the owner or other person authorized to collect rent. No person shall be subject to any proceedings for the recovery of possession or other relief, or any penalty or forfeiture, arising out or his failure to pay to any person any sum paid to the department under this section. d. The department shall, at the time of service of any notice under subdivision a, give the owner and agent notice by certified mail at their last registered address, or other address, if known, of such action. Unless within twelve days of such notice suit has been instituted by or on behalf of the owner to restrain such action or recover from the department any sums collected, the action of the department shall not be subject to challenge e. Upon collection of the total sum owing to the department, it shall forthwith serve upon each person served with a demand under subdivision a, a notice canceling such demand. (Formerly Sec. D26-59.11 renumbered Sec. D26-57.11 and amended by L. 1973, ch. 703, June 11; renumbered and amended by L. L. 1974, No 48, Dec. 17; L. 1976, ch 706, July 24.) Sec. D26-57.11 Appointment of receiver a. Whenever the sum of any lien or liens established by this title, plus any lien or liens established pursuant to any other section of the administrative code for the expenses of repairs made by the department, shall amount to five thousand dollars or more, the department may issue an order appointing the administrator of the housing and development administration receiver of the rent and profits of the premises. Such receiver may be appointed upon thirty days' notice to the owner, mortgagees and lienors or record of such premises. Such notice shall contain the amounts of such lien or liens and give the owner, mortgagees and lienors of record an opportunity to either pay the outstanding liens or to contract in writing with the department on terms satisfactory to the department for such payment. Any mortgagee or lienor who pays the department shall be assigned the department's lien. b. A receiver appointed pursuant to this section shall have all of the powers and duties of a receiver appointed in an action to foreclose a mortgage on real property. He shall not be required to file any bond. c. The receiver shall be entitled to the same fees, commissions and necessary expenses as receivers in actions to foreclose mortgages. Such fees and commissions shall be paid into the fund created pursuant to section D26-50.03 of this code. The receiver shall be liable only in his official capacity for injury to person and property by reason of conditions of the premises in a case where an owner would have been liable, he shall not have any liability in his personal capacity. d. Such receivership shall continue until the amount of such liens and the commissions have been fully paid. Upon the termination of such receivership, an accounting shall be given to the owner together with any monies collected in excess of the lien and commission and the department shall, within twenty-one days, file a satisfaction of any and all liens filed by the department against such premises. (Added by L. L. 1971, No. 10, Jan. 22; formerly Sec. D26-57.13 renumbered Sec. D26-57.11 by L. L. 1974, No. 48, Dec. 17.) ================================================================ ================================================================