NAVIGATING THE NYC VIOLATIONS PROCESS NEW YORK REAL ESTATE EXPO, 10/18/2012

Robert Hochman, Esq., Senior Partner Lindsay Garroway, Esq., Associate Attorney Cohen Hochman & Allen

80 Maiden Lane, Suite 507 New York, NY 10038 info@violationlawyers.com

P: (212) 566-7081 F: (212) 566-7406 www.violationlawyers.com

COHEN HOCHMAN & ALLEN

Located in downtown Manhattan, CHA is a leading Administrative law firm focusing on NYC regulatory law. CHA’s attorneys represent clients in violation hearings as well as a variety of other NYC property matters: Environmental Control Board, Health Department, Housing Court, Consumer Affairs, Office of Administrative Trials and Hearings and Criminal Court.  

The firm has more than 25 years of experience in challenging New York City violations. The attorneys include several former prosecutors from the Department of Buildings.

CHALLENGING THE CLASSIFICATIONS There are three classes of Department of Buildings’ ECB Violations:

  CLASS 1 (IMMEDIATELY HAZARDOUS VIOLATION) “Immediately hazardous violations are those …where the violating condition poses a threat that severely affects life, health, safety, property, the public interest, or a significant number of persons so as to warrant immediate corrective action…” (1 RCNY §102-01(b)(1))

  CLASS 2 (MAJOR VIOLATION) “Major violations are those …where the violating condition affects life, health, safety, property, or the public interest but does not require immediate correction action…” (1 RCNY §102-01(b)(2))

  CLASS 3 (LESSER VIOLATION) “Lesser violations are those where the violating condition has a lesser effect than an immediately hazardous or major violation on life, health, safety, property, or the public interest.” (1 RCNY §102-01(b)(3))

CERTIFICATES OF CORRECTION

  If your violation is eligible for a “cure,” a cure date will be written on the violation. If your certificate of correction is approved with this timeframe, you will avoid having a hearing, and no penalty will be imposed. However, a “cure” is an admission of the charge.

  Submitting a certificate of correction after the cure date is not an admission. Unlike a cure, submitting a certificate of correction does not prevent you from presenting a defense at the hearing.

  Certificate of Correction Forms and instructions can be found on DOB’s website: http://www.nyc.gov/html/dob/downloads/pdf/aeu2.pdf

CERTIFYING CORRECTION WITH DOB

Correct the violating condition, if possible.

Note: Many construction jobs require a licensed professional (plumber,

engineer, architect, etc.) to pull a permit before commencing work.

Complete the Certificate of Correction paperwork

and supporting documents, and deliver to DOB. In person delivery

will yield a faster response than mail submission.

To receive a zero penalty, the Certificate of

Correction must be approved by DOB by the Cure Date (class 2 & 3

only). If the cure submission is disapproved,

you may resubmit.

DOB CIVIL PENALTIES   A New York State Assembly law allows DOB to impose a

$1500 civil penalty for failure to certify correction on a class 1 violation within an “80 day period.”   “…whenever any person fails to submit certificates of

correction of an immediately hazardous violation that poses a threat of immediate danger to public safety or property, …a penalty shall be paid to the department in the amount of not less than one thousand five hundred dollars” NYCAC §28-217.1

  “80 days from service” is DOB’s policy, not specified in the law

  DOB’s position: Owners are responsible for payment of civil penalties in ALL scenarios.   For example, contractor violations, violations to prior owner

and tenants

ECB JUDGMENT LIABILITY

Letter from Ray Scanlon, former counsel to ECB

ECB JUDGMENT LIABILITY

ECB judgments are in personam, and can only be collected from the named Respondent.

  RAY SCANLON LETTER FROM ECB - 9/16/1996 “Our judgments are in personam, not in rem. They can act as liens ‘running with the property’ only in those instances where the judgment is in the name of the title holder.”

“ECB violations and/or judgments in the name of other entities who have or had no interest in the property, but rather may have been a previous tenant or contractor, do not encumber the property for the purposes of ECB.”

SUMMARY

  THROUGH ITS COLLECTION ACTION, NYC TREATS THE ECB JUDGMENTS AS IN REM AS OPPOSED TO IN PERSONAM.   This directly contradicts the law and the City’s own statements

(Scanlon letter and NYC law)

SUMMARY

  WHAT CAN YOU DO?   Whenever possible, challenge class 1 violations at ECB in order

to dismiss the violation or receive reduced penalties.   Monitor your properties for violations and complaints with an

email alert service, like www.SiteCompli.com This allows you to respond immediately to any issue at the property and sometimes prevent a violation before its issued.