Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.PapersNotice of Petition, Verified Petition, Exhibit 1Notice of Violation dated November 13, 2018 2DECISION/ORDER Upon the foregoing citing papers, the Decision and Order on this Motion are as follows:In this residential HP Action DHPD’s Notice of Petition moves for an Order requiring respondent to “provide the legally required heat and hot water, maintain the system free of any device that is capable of causing an otherwise operable system to provide less than the minimum legal requirements of heat and/or hot water, provide access to the boiler area and post proper notices relating to access to the boiler area”. In addition, petitioner seeks the costs and disbursements of this proceeding. The violations in question are noted in the Notice of Violation as having occurred November 13, 2018 at 10:50 am by “Badge” 3958 and signed by “T Riley”.In the Petition in addition to the abovementioned relief petitioner seeks civil penalties at a rate of “For the first violation issued, not less than $250 per day nor more than $500 per day from the date the notice of violation was affixed, until the date the violation is corrected; for each subsequent violation issued at the same dwelling or multiple dwelling, not less than $500 per day nor more than $1000 per day per violation from the date the notice(s) of violation(s) was/were affixed, until the date the violation(s) is (are) corrected”.The respondent has not answered the petition. However, during the conference at the bench respondent indicates that she cured the loss of heat in her building by the morning of November 14, 2018. Respondent’s position is that she cured the problem within 24 hours, that the interruption of heat was due to maintenance of the boiler, her tenants were given notice that the heat would be interrupted, and this is a rare event. Respondent shows receipts that would tend to substantiate the timeline of a short interruption of heat.On January 17, 2018 during a conference the parties were unable to reach a monetary settlement as to the civil penalties for this interruption of heat. The Court examined the court file and obtained the Notice of Violation upon request from DHPD.HMC §27-2115 (b) indicates the required content of the Notice of Violation (NOV). Most relevant to this matter, the statute requires “[T]he notice shall also advise that the department will, if requested, confer with the owner or his or her representative concerning the nature and extent of work to be done to insure compliance and the methods of financing such work.” Review of the Notice of Violation indicates that no such advise as to the availability of a conference is provided.Housing Maintenance Code (HMC) §27-2115 (k) (ii) provides that a respondent in a heat and hot water case can remedy their exposure to fines by complying with the following conditions. First, the violation must be cured within 24 hours of the “affixing of the notice of such violation pursuant to paragraph two of this subdivision.” Second, “a payment of two hundred fifty dollars, are submitted to the department within ten days of affixing the notice of such violation”. The regulation goes on to warn that severe penalties may be incurred for false certification of correction.Given the potential exposure of monetary penalties for the interruption of heat and hot water, DHPD and the respondent have mutual interests in clearing violations as soon as possible. The respondent reduces the exposure to substantial fines for their quick abatement of the condition and DHPD accomplishes its mission to ensure the sound management of the City’s affordable housing stock.The NOV contains language indicating that “This condition must be corrected immediately and notice of correction submitted to HPD within ten days, using online eCertification of the Notice of Correction that you will receive in the mail. Read the mailed instructions carefully to determine if you are eligible to make a $250 payment for the heat violation and/or $250 for the hot water violation in satisfaction of civil penalties.” During the conference of January 17, 2019 DHPD indicated this language would satisfy §27-2115 (k) (ii), the Court disagrees. DHPD includes information on heat and hot water violations on their own website in a frequently asked questions pamphlet located online at https://www1.nyc.gov/assets/hpd/downloads/pdf/Heat-hot-water-FAQ.pdf, which details provisions regarding the penalties for heat and hot water violations in the section entitled, “What is the penalty for a heat or hot water violation?”“If a heat violation is the first such violation issued during the current or prior heat season, or a hot water violation is the first such violation issued during the current or previous calendar year, an owner may be eligible to satisfy the penalty by submitting a $250 payment with a timely Notice of Correction. The Notice of Violation that the owner receives in the mail will clearly indicate whether the violation is eligible for payment in satisfaction of civil penalties An owner who chooses to submit a Notice of Correction and payment in satisfaction may do so by submitting a paper Notice of Correction or by using eCertification.”During the conference on the motion on January 17, 2019 DHPD indicated that since the respondent has not answered the petition, the Court was without capacity to determine the motion but must only resolve the matter of default. The Court disagrees. The Court retains the ability to determine if the motion is sufficient as a matter of law to convey the relief requested.The Notice of Violation is governed by HMC §27-2115 (b), and as the NOV fails to meet the requirement of the Housing Maintenance Code to provide adequate notice to the landlord, the petition must be dismissed. This is the decision of the Court and copies will be mailed to the attorneys for the petitioner, each of the respondents and made available in the Courtroom.Date: March 22, 2019
