DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT OF the CITY OF NEW YORK, Petitioners, v. Ahmed HIMED, Mulbrook Realty Landlord, Respondents.
Upon the foregoing citing papers, the Decision and Order after conference is as follows:
Petitioner DHPD brings this case by Notice of Petition seeking civil penalties for failure to provide heat and hot water. At a conference on the first appearance on February 5, 2019, despite an offer from DHPD to settle the matter for civil penalties for $ 750.00 the parties were unable to reach a settlement and the Court conferenced the matter. DHPD asserted and the owner did not dispute that this was a “second season” violation.
An owner 1 is required to provide sufficient heat and hot water in the buildings they own or manage. If heat and/or hot water are interrupted the Housing Maintenance Code (HMC) encourages immediate repair and restoration by limiting an owner's exposure to fines. HMC § 27-2115 (k) (ii) requires that the owner meet a two pronged test. First, the heat or hot water must be restored within 24 hours of the affixing of the Notice of Violation (NOV). Second, a payment of $ 250.00 must be received by the Department of Housing Preservation and Development (DHPD) within ten days of affixing the notice of violation.
In reviewing the Notice of Violation 2 for heat and/or hot water the court finds that the notice provisions do not meet the requirements of HMC § 27-2115 (k) (ii). Below the header in the center of the NOV a preamble begins “This condition(s) must be corrected immediately ․”. The language “must be corrected immediately” does not suffice to provide notice that the heat and/or hot water must be restored within 24 hours. Immediately is a subjective concept that absent any other qualification deprives the respondent that restoration of services in 24 hours may substantially limit liability.
Further qualifications in the language of the preamble indicate that a payment of $ 250.00 may be tendered in possible satisfaction but requires the owner to await “mailed instructions”. It is obvious that the language of HMC § 27-2115 (k) (ii)evidences a legislative or administrative intent to motivate the owner to quickly restore services and limit their exposure to fines on their own volition. This NOV fails to clearly put the owner on notice as to the timeframe to restore services so as to limit their exposure to fines.
However, HMC § 27-2115 (k) (ii) does provide note that the prompt repair and submission of the $ 250.00 is not available for a “second season” violation. Given that the petitioner asserted this is a “second season” violation and the respondent did not contest this assertion, the Court Orders civil penalties in the amount of $ 750.00 to be paid within 45 days from the date of this decision.
This is the decision of the Court and copies will be mailed to the attorneys for the petitioner, the respondents and made available in the Courtroom.
FOOTNOTES
1. Owner is defined at HMC § 27-2004 (45) and includes “mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling.”
2. Form ENS IV-IC (Rev: 8/14).
David J. Bryan, J.
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