Sec.
[D26-40.01] 27-2090 Power to make regulations
The department
shall have power to promulgate such regulations, as it may consider necessary
or convenient to interpret or carry out any of the provisions of this code.
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Sec.
[D26-40.03] 27-2091 Power to issue orders
a. The department
shall have power to issue notices and orders to secure compliance with the requirements
of this code, of the multiple dwelling law, and of other state and local laws
that impose requirements on dwellings.
b. The failure
to comply with a notice or order of the department issued pursuant to this code
within the time provided for such compliance in the order shall be dealt with
in accordance with the provision of this code. Nothing contained herein shall,
however, limit or render inapplicable other provisions of the administrative
code relating to the enforcement of orders of the department or commissioner
of the department under other applicable provisions of law.
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Sec.
[D26-40.05] 27-2092 Power to hold hearings; subpoena
power; production of documents
For the purpose
of enforcing the provisions of this code, considering the desirability or scope
of any proposed rule or regulation hereunder, and for the purpose of making
any determination required to be made by the department under this code, the
department shall have power to conduct inspections, to hold public or private
hearings, to subpoena witnesses, administer oaths and take testimony, and compel
the production of books, papers, records and documents. The commissioner may
designate himself or one or more of the members, officers or employees of the
department to act as a hearing board to exercise any one or more of the powers
listed, and the department may promulgate regulations to assure a lawful, orderly
and fair procedure before such hearing board. Every person who shall appear
before such a hearing board shall have the right to be represented by counsel
of his or her own choosing.
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Sec.
[D26-40.06] 27-2093 Certification of No Harassment
with Respect to Single Room Occupancy Multiple Dwellings.
a. For the purposes
of this section, "harassment" shall mean any conduct by or on behalf of an owner
of a single room occupancy multiple dwelling that includes:
(1) the use
of threatened use of force which causes or is intended to cause any person
lawfully entitled to occupancy of a dwelling unit in such multiple dwelling
to vacate such unit or to surrender or waive any rights in relation to such
occupancy;
(2) the interruption
or discontinuance of essential services which (i) interferes with or disturbs
or is intended to interfere with or disturb the comfort, repose, peace or
quiet of any person lawfully entitled to occupancy of a dwelling unit in the
use or occupancy of such dwelling unit and (ii) causes or is intended to cause
such person lawfully entitled to occupancy of such dwelling unit to vacate
such unit or to surrender or waive any rights in relation to such occupancy;
(3) the failure
to comply with the provisions of subdivision c of section 27-2140 of article
seven of subchapter five of this code which causes or is intended to cause
such person lawfully entitled to occupancy of such dwelling unit to vacate
such unit or to waive any rights in relation to such occupancy; or
(4) Any other
conduct which prevents or is intended to prevent any person from the lawful
occupancy of such dwelling unit or causes or is intended to cause such person
lawfully entitled to occupancy of such dwelling unit to vacate such unit or
to surrender or waive any rights in relation to such occupancy including but
not limited to removing the possessions of any occupant from the dwelling
unit; removing the door at the entrance to the dwelling unit; removing, plugging
or otherwise rendering the lock on such entrance door inoperable; or changing
the lock on such entrance door without supplying the occupant with a key.
b. For the purposes
of any hearing held pursuant to this section, any of the acts or omissions described
in paragraphs, one, two, three and four of subdivision a of this section which
are committed at a single room occupancy multiple dwelling shall be presumed
to be committed by or on behalf of the owner of such multiple dwelling and it
shall be presumed that such acts or omissions were committed with the intent
to cause a person lawfully entitled to occupancy of a dwelling unit in such
multiple dwelling to vacate such unit or to surrender or waive a right in relation
to such occupancy.
c. The commissioner
shall certify whether there has been no harassment of the lawful occupants of
a single room occupancy multiple dwelling, as such term is defined in section
27-198 of article nineteen of subchapter one of the building code, during the
thirty-six month period prior to the date of the submission of an application
for certification of no harassment by an owner of such multiple dwelling. With
respect to an application for a certification of no harassment which is submitted
pursuant to paragraph three of subdivision b of section 27-198 of article nineteen
of subchapter one of the building code, the date of submission of such application
shall be deemed to be the date of submission of an application for plan approval.
d. An application
for certification of no harassment of shall be in such form and shall contain
such information and provisions as shall be prescribed by the commissioner including,
but not limited to, consent by the applicant to access to the premises by governmental
agencies, and shall be determined in accordance with the following procedure:
(1) Upon receipt
of an application for a certification of no harassment, the commissioner shall
publish notice in such publication as the commissioner deems appropriate for
a period of seven consecutive days, shall mail notice to the owner of record,
such occupants as the department shall identify, such other interested persons
as the department shall identify, the local community board and appropriate
government agencies and shall post notice in a conspicuous place on the premises
of the multiple dwelling for which the certification is sought.
(2) The notice
shall be in such form as shall be prescribed by the commissioner and shall
state, in English and whatever other language the commissioner deems appropriate:
(a) the location
and general description of the multiple dwelling for which the certification
is sought;
(b) a description
of the certification procedure and its purpose;
(c) the period
of time for which certification is to be made;
(d) in plain
language, a description of conduct constituting harassment; and
(e) that any
occupants or former occupants of the multiple dwelling for which such certification
is sought and other interested persons, government agencies and the local
community board, are invited to submit their comments within thirty days
of the date of such notice in writing or orally at a designated location.
(3) Upon the
expiration of such thirty day comment period, the commissioner may (i) determine
that no harassment has occurred within the stated period of time and forthwith
grant such certification, (ii) determine that a waiver of certification may
be granted pursuant to subdivision e of this section and forthwith grant such
waiver, or (iii) deny such certification without a prior hearing if there
has been a finding by the office of rent control, the conciliation and appeals
board or any court having jurisdiction that there has been harassment, unlawful
eviction or arson by or on behalf of the owner at the multiple dwelling for
which certification is sought during the stated period of time: or (iv) where
there has been no prior determination of harassment, unlawful eviction or
arson by or on behalf of the owner, provide that a hearing be held in the
manner provided in section 27-2092 of this article if the commissioner has
reasonable cause to believe that harassment has occurred within such stated
period of time and that a waiver of certification may not be granted. At such
hearing, the owner of the multiple dwelling for which such certification is
sought, shall have the opportunity to be heard by the commissioner or a designee
prior to the granting or denial of certification or of a waiver thereof. Notice
of such hearing shall be given to the applicant and to other interested parties,
governmental agencies and local community board in the manner to be prescribed
by rules and regulations of the commissioner. Within forty-five days after
such hearing, the commissioner shall either grant or deny such certification
or waiver thereof.
(4) If certification
or a waiver thereof is denied, notice of such denial accompanied by written
findings indicating the grounds for such denial shall be mailed to the owner
of record and shall be filed in the office of the city register. Such determination
shall be subject to review pursuant to article seventy-eight of the civil
practice law and rules.
(5) Neither
such certification nor a waiver thereof shall be granted unless the applicant
submits a sworn statement, in such form as the commissioner shall prescribe,
by all the owners of the multiple dwelling representing that there will be
no harassment of the occupants of such multiple dwelling by or on behalf such
owners. The corporation counsel may institute any action or proceeding in
any court of competent jurisdiction that may be appropriate or necessary for
the enforcement of this representation and agreement. Nothing contained herein
shall preclude an occupant of such multiple dwelling from applying on his
or her own behalf for similar relief.
(6) The commissioner
shall promulgate rules and regulations to establish procedures relating to
applications for and the issuance of supplemental certifications as required
by paragraph nine of subdivision b of section 27-198 of the code.
e. The commissioner
may grant a waiver of certification of no harassment although the commissioner
determines that harassment has occurred at the multiple dwelling for which such
certification is sought during the thirty-six month period prior to the date
of the submission of an application for a certification of no harassment if
the commissioner finds that:
(1) (a) the
owner of record of the multiple dwelling with respect to which such certification
is sought was the owner of record of such multiple dwelling prior to May fifth,
nineteen hundred eighty-three or had entered into a contract of sale for the
purchase of such multiple dwelling which was recorded prior to such date or,
with respect to a certification proceeding where the alterations sought to
be performed are of the type prescribed by regulation of the commissioner
pursuant to subdivision b of section 27-198 of article nineteen of subchapter
one of the building code, the owner of record of such multiple dwelling was
the owner of record of such multiple dwelling prior to the date of the first
publication of the regulations requiring certification for such type of alterations
or had entered into a contract of sale for the purchase of such multiple dwelling
which was recorded prior to such date;
(b) Such owner
was not the owner of such multiple dwelling during any period of time in
which such harassment occurred and did not at such multiple dwelling (i)
otherwise engage or participate in such harassment; or (ii) with intent
that harassment be performed, agree with one or more persons to engage in
or cause the performance of harassment; or (iii) with intent that another
person engage in conduct constituting harassment, solicit, request, command,
importune or otherwise attempt to cause such person to engage in conduct
constituting harassment; and
(c) Such owner
acquired title pursuant to a bona fide transaction that is not intended
to evade the provisions of this section; or
(2) the owner
acquired the multiple dwelling by sale pursuant to foreclosure of a mortgage
or pursuant to a deed in lieu of foreclosure of a mortgage; provided, however,
that such conveyance was a bona fide transaction for the purpose of enforcing
the debt and not intended to evade the provisions of this section and either
(i) a certification
of no harassment or waiver thereof was granted with respect to such multiple
dwelling within a sixty day period prior to the date of the recording of
such mortgage and no suspension or rescission thereof was recorded prior
to such date; or
(ii) mortgage
was recorded prior to May fifth, nineteen hundred eighty-three, or, if such
owner is 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 bank 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, a commitment
for such mortgage was made prior to May fifth, Nineteen hundred eighty three.
(3) In determining
whether such transaction was bona fide, the commissioner may consider whether
at such multiple dwelling or any other such multiple dwelling such owner did
(i) otherwise engage or participate in harassment; or (ii) with intent that
harassment be performed, agree with one or more persons to engage in or cause
the performance of harassment; or (iii) with intent that another person engage
in conduct constituting harassment, solicit, request, command, importune or
otherwise attempt to cause such person to engage in conduct constituting harassment.
The commissioner may also consider the relationship between the parties to
the transaction.
(4) A waiver
of a certification pursuant to this subdivision shall state the findings of
the commissioner.
f. (1) The commissioner
may rescind a certification of no harassment or a waiver thereof granted with
respect to the alteration or demolition of a multiple dwelling if the commissioner
finds that harassment has occurred at the multiple dwelling with respect to
which such certification or waiver thereof was issued after the period of time
covered by such certification but prior to the commencement of substantial work
pursuant to an alteration permit or demolition permit issued on the basis of
such certification or waiver thereof.
(2) If the commissioner
has reasonable cause to believe that such harassment has occurred, the commissioner
shall suspend the certification of no harassment or waiver thereof and upon
the request of the commissioner, the commissioner of buildings shall not approve
any plans or issue an alteration or demolition permit with respect to the
alteration or demolition of such multiple dwelling or, if such plans have
been approved and an alteration or demolition permit has been issued with
respect to such alteration or demolition, issue a stop-work notice and order
pursuant to section 27-227 of article twenty-four of subchapter one of the
building code. Notice of such suspension shall be mailed to the owner of record
of such multiple dwelling and shall be filed with the city register.
(3) As soon
as reasonably possible, but not later than thirty days after such suspension,
the commissioner shall hold a hearing in the manner provided in section 27-2092
of this article upon appropriate notice and shall determine whether to rescind
such certification; provided, however, that if, prior to the commencement
of substantial work, the owner has been found by the office of rent control,
the conciliation and appeals board or any court having jurisdiction, to have
engaged in harassment, unlawful eviction or arson at the multiple dwelling,
the commissioner may rescind such certification without holding a hearing.
At such hearing the owner shall have an opportunity to be heard by the commissioner
or a designee of the commissioner.
(4) If the commissioner
determines not to rescind such certification, the commissioner shall notify
the commissioner of buildings of such determination and any stop-work notice
and order issued by the commissioner of buildings pursuant to paragraph two
of this subdivision shall be vacated immediately. Notice of such determination
shall be mailed to the owner of record of such multiple dwelling and filed
with the city register.
(5) If the commissioner
determines that such certification shall be rescinded, notice of such determination
accompanied by written findings indicating the grounds for such determination
shall be provided to the commissioner of buildings and shall be mailed to
the owner of record of such multiple dwelling and filed with the city register.
Such determination shall be subject to review pursuant to article seventy-eight
of the civil practice law and rules.
(g) For the purpose
of any subsequent certification proceeding with respect to such multiple dwelling
pursuant to this section the granting of a certification of no harassment or
a waiver thereof for any period of time shall be conclusive proof only for the
purposes of this section that either no harassment occurred within the time
period covered by such certification or that the waiver of such certification
for such period of time was appropriate.
(h) The commissioner
is authorized to established and collect reasonable fees and charges from applicants
for the administrative expenses incurred by the department for the certification
proceedings prescribed in this section, including costs for publication and
notices.
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Sec.
[D26-40.07] 27-2094 Inspection of one- and two-family
dwellings; voluntary registration of owner-occupant
a. Notwithstanding
any other provision of this title, the department, its officers or inspectors,
shall have no authority to inspect a one- or two-family dwelling, at least one
dwelling unit of which is owner-occupied, for violations of this code, unless
the department has received a signed complaint relating to conditions in such
dwelling or has a warrant for such inspection.
b. The owner of
a one- or two-family dwelling who occupies a dwelling unit in such dwelling,
may notify the department of such owner-occupancy, without payment of a fee,
by filing a form to be prescribed by the department including the following
information:
(1) an identification
of the premises by street number or by such other description as will enable
the department to locate the dwelling; and
(2) an identification of the owner by name, residence and business address;
and
(3) a statement
that he is the owner-occupant of the premises.
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Sec.
[D26-40.09] 27-2095 Service of notices and orders
a. Except as otherwise
expressly provided in this code, any notice of violation or other notice, or
any order authorized or required to be served by the department under the provisions
of this code, shall be served in the following manner on any person or corporation
to whom or which such notice or order is directed:
(1) by delivering
a copy of such notice or order to such person directly, or if it is directed
to a corporation by delivering a copy thereof to any officer or managing agent
of such corporation personally; or
(2) by delivering
a copy of such notice or order to any person of suitable age and discretion
at the residence or place of business of the person to whom it is directed,
or if it is directed to a corporation, at any office of such corporation;
or
(3) (i) if service
is to made on an owner of a dwelling, by mailing a copy of such notice to
the latest business or residence address of such owner as set forth in any
registration statement filed by such owner with the department under the applicable
provisions of article two of this subchapter;
(ii) if service
is to be made on a managing agent of any such dwelling designated under
the applicable provisions of article two of this subchapter, by mailing
a copy thereof to the latest business or residence address of such managing
agent set forth in any such registration statement or designation filed
by the owner of such dwelling;
(iii) if service
is to be made on an owner of a dwelling who has not filed such a registration
statement in relation to such dwelling, by posting a copy of such notice
in a conspicuous place in such dwelling, or by delivering a copy thereof
to any person of suitable age and discretion in charge of or apparently
in charge of such dwelling, or by mailing a copy thereof to such owner at
the last known business or residence address of such owner.
b. Any such notice
directed to an owner of a dwelling or tenant of any space therein need not designate
such owner or tenant by name, but shall refer to such dwelling or space by description
which shall be sufficient to identify same and shall state that it is directed
to the owner of such dwelling or tenant of such space, as the case may be.
c. Where a designation
of a managing agent under the applicable provisions of article two of this subchapter
is currently in effect as to any multiple dwelling, any notice mentioned in
subdivision (a) of this section which is directed to the owner of such multiple
dwelling shall also be directed to such managing agent, and shall be served
by the department on both such owner and managing agent.
d. If a mortgagee
or lienor has registered with the department pursuant to the provisions of section
27-2109 of article two of this subchapter, any notice of violation or other
notice, or any order authorized or required to be served by the department under
the provisions of this code on the owner of a dwelling may also be mailed to
such mortgagee or lienor no later than five days after the date upon which such
notice or order is served upon the owner, but the department's failure to mail
such notice or order to such mortgagee or lienor shall not in any way affect
the validity of service of such notice or order upon the owner.
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Sec.
[D26-40.11] 27-2096 False statements punishable
a. Any application
filed with the department for the granting of any relief or the taking of any
action by the commissioner or the department or for the granting of any permit
under the provisions of this code and any answer to such application filed with
the department, shall he signed by the person authorized or required to submit
such application or answer under the provisions of this chapter, or if such
application or answer is authorized or required to be submitted by a corporation,
by an officer thereof.
b. Any person
who signs any such application or answer, or any registration statement or designation
of a managing agent authorized or required under the provisions of this code
shall certify that all statements therein contained are true and correct.
c. Any person
signing any such application, answer, registration statement, or designation
of a managing agent, who makes any false statement therein as to any material
matter to which the certification provided for in subdivision (b) of this section
applies, shall be guilty of an offense punishable as provided in section 27-2118
of subchapter five this code.
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