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NEW YORK STATE
MULTIPLE DWELLING LAW
Chapter 713 of the Laws of 1929, as amended
ARTICLE 8
REQUIREMENTS AND REMEDIES
Section 300. Permits.
301. Certificate of compliance or
occupancy.
302. Unlawful occupation.
302a Abatement of rent in the
case of serious violations.
302b Removal of violations by
mortgagees.
302c Right of tenant to offset
payments for heat failure; certain
cases.
303. Enforcement.
304. Penalties for violations.
305. Violation of local laws and
regulations.
306. Judicial procedure and orders.
307. Liens.
308. Notice of pendency of action.
309. Repairs, vacation and
demolition of buildings.
309a Multiple dwelling;
apartment prohibitions for certain
employees.
310. Board of appeals.
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Sec. 300. Permits.
1. It shall be unlawful to commence the construction or
alteration of a multiple dwelling or any part or section
thereof, or of any building or structure on the same lot
with such a dwelling, or the alteration or conversion of a
building for use as a multiple dwelling, or the moving of a
dwelling from one lot to another, until the issuance of a
permit by the department upon compliance with all of the
following requirements:
a. The owner, or a registered architect or licensed
professional engineer designated by the owner as his
agent, shall file with the department, upon a form
furnished by it, a detailed statement of the
specifications for the construction, alteration,
conversion or moving of such dwelling or structure and
for its use and occupancy, together with as many
complete copies of the plans of such work as may be
required by the department.
b. Such statement shall give the name and residence, by
street and number, of the owner of such dwelling or
structure. If such construction, alteration, conversion
or moving is proposed to be done by any other person
than the owner of the land in fee, such statement shall
also contain the name and residence, by street and
number, of every person interested in such land and
dwelling, either as owner, as lessee or in any
representative capacity.
c. Such statement shall be verified by an affidavit of the
person making it. Said affidavit shall allege that said
specifications and plans are true and contain a correct
description of such dwelling or structure, of the class
and kind thereof, of its occupancy of the lot and of
the proposed work. No architect or engineer shall be
recognized as the agent of the owner unless he shall
file with the department a written instrument, signed
by the owner, designating him as such agent. Any false
allegation in respect to a material point shall be
deemed perjury.
d. Such specifications, plans and statements shall be
filed in the department, which shall cause them to be
examined. If such plans and specifications conform to
the provisions of this chapter, to the building code
and regulations, and to all other applicable law, they
shall be approved by the department, and a written
certificate to that effect shall be issued to the
person entitled thereto.
2. The construction, alteration, conversion or moving of such
dwelling or structure or any section or part thereof shall
be in accordance with such approved specifications, plans
and statements. The department may approve changes in any
plans, specifications and statements previously approved by
it, provided that when so changed they are in conformity
with law and with the provision of subdivision four.
3. Nothing contained in this section shall prevent the
department from issuing a permit for the erection of the
foundation or cellar walls of a dwelling, provided plans
have been filed and approved in the department for the
erection of such walls, but no construction above the first
tier of beams shall be authorized under such permit.
4. Any permit or approval which may be issued by the
department, but under which no work has been done above the
foundation or cellar walls within two years from the time of
the issuance of such permit or approval, shall expire. The
department may reissue any permit or renew any approval that
has so expired, but shall require, except as otherwise
provided in subdivision one of section twenty-six, that the
plans be made to conform with any amendments to any laws
applicable thereto that may have been enacted after the
approval of the original application.
5. Any permit or approval issued for plans filed prior to
December fifteenth, nineteen hundred sixty-one, where such
plans do not comply with the provisions of paragraph d of
subdivision one of section twenty-six, shall expire on
December fifteenth, nineteen hundred sixty-seven.
6. No room in a cellar or basement shall be occupied for living
purposes unless the department shall issue a written permit
for such occupancy after all the applicable provisions of
law have been complied with. If such permit is refused or
revoked, the reason for such action shall be stated by the
department in writing and a copy of such statement shall be
recorded by the department and be accessible to the public.
In a tenement such permit shall be kept readily accessible
in the main living room of the apartment containing such
cellar or basement room.
7. The department shall have power to revoke or cancel any
permit or approval in case of any failure to comply with any
of the provisions of this chapter, or in case any false
allegation or representation is made in any specifications,
plans or statements submitted or filed for such permit or
approval.
8. All specifications, plans, permits and statements filed in
the department shall be public records and shall not be
removed from the department.
Sec. 301. Certificate of compliance or occupancy.
1. No multiple dwelling shall be occupied in whole or in part
until the issuance of a certificate by the department that
said dwelling conforms in all respects to the requirements
of this chapter, to the building code and rules and to all
other applicable law, except that no such certificate shall
be required in the case of:
a. Any class B multiple dwelling existing on April
eighteenth, nineteen hundred twenty-nine, for which a
certificate of occupancy was not required before such
date and in which no changes or alterations have been
made except in compliance with this chapter, and
b. Any old-law tenement, or any class A multiple dwelling
erected after April twelfth, nineteen hundred one,
which was occupied for two years immediately before
January first, nineteen hundred nine, and in which no
changes or alterations have been made except in
compliance with the tenement house law or this chapter,
or wherein:
(1) two or more apartments are combined creating
larger residential units, and
(2) the total legal number of families within the
building is being decreased, and
(3) the bulk of the buildings is not being increased
These exceptions shall not be deemed to relieve any
owner from the obligation to make every alteration
required in any old-law tenement or other multiple
dwelling in compliance with the applicable provisions
of this chapter.
2. Except as above provided, no dwelling constructed as or
altered or converted into a multiple dwelling after
April eighteenth, nineteen hundred twenty-nine, shall
be occupied in whole or in part until the issuance of a
certificate of compliance or occupancy.
3. Such certificate shall be issued within ten days after
written application therefor if the dwelling shall be
entitled thereto. The department shall, on request of
the owner or of his certified agent, issue a
certificate of compliance or occupancy for any existing
multiple dwelling not requiring such certificate,
provided that, after an inspection by the department,
no violations are found against such dwelling.
4. The head of the department may, on the request of the owner
or his certified agent, issue a temporary certificate of
compliance or occupancy for a multiple dwelling or a section
or a part thereof for a period of ninety days or less,
provided that such certificate shall bear the endorsement
that the dwelling has been inspected by the department and
complies with all the requirements of this chapter, and that
such temporary occupancy will not jeopardize life, health or
property. Such temporary certificate may be renewed at the
discretion of the head of the department for similar periods
but shall not extend, together with such renewals, beyond a
total period of two years from the date of its original
issuance.
5. A certificate, a record in the department, or a statement
signed by the head of the department that a certificate has
been issued, may be relied upon by every person who in good
faith purchases a multiple dwelling or who in good faith
lends money upon the security of a mortgage covering such a
dwelling. Whenever any person has so relied upon such a
certificate, no claim that such dwelling had not, prior to
the issuance of such certificate, conformed in all respects
to the provisions of this chapter shall be made against such
person or against the interest of such person in a multiple
dwelling to which such a certificate applies or concerning
which such a statement has been issued.
6. Notwithstanding any general or local law to the contrary, a
certificate issued for any multiple dwelling organized
pursuant to the provisions of article nine-B of the real
property law, shall be deemed issued for each dwelling unit
contained within such multiple dwelling in full compliance
with the requirements of this section.
Sec. 302. Unlawful occupation.
1. a. If any dwelling or structure be occupied in whole
or in part for human habitation in violation of section
three hundred one, during such unlawful occupation any
bond or note secured by a mortgage upon said dwelling
or structure, or the lot upon which it stands, may be
declared due at the option of the mortgagee.
b. No rent shall be recovered by the owner of such
premises for said period, and no action or special
proceeding shall be maintained therefor, or for
possession of said premises for nonpayment of such
rent.
c. During such period the department in charge of water
supply shall not permit water to be furnished in any
such dwelling or structure and said premises shall be
deemed unfit for human habitation, and the department
of health or the department charged with the
enforcement of this chapter shall cause them to be
vacated.
2. The department may cause to be vacated any dwelling or any
part thereof which contains a nuisance as defined in section
three hundred nine, or is occupied by more families or
persons than permitted in this chapter, or is erected,
altered or occupied contrary to law. Any such dwelling shall
not again be occupied until it or its occupancy, as the case
may be, has been made to conform to law.
Sec. 302-a. Abatement of rent in the case of serious
violations.
1. The provisions of this section shall apply to all cities
with a population of four hundred thousand or more.
2. a. A "rent impairing" violation within the meaning of
this section shall designate a condition in a multiple
dwelling which, in the opinion of the department,
constitutes, or if not promptly corrected, will
constitute, a fire hazard or a serious threat to the
life, health or safety of occupants thereof.
b. The determination as to which violations are "rent
impairing" shall be made in the following manner.
Within six months after the enactment of this section,
the department shall promulgate a list of conditions
constituting violations of the provisions of this
chapter and of any regulations promulgated pursuant to
the provisions of subdivision four of section three of
this chapter. Such list shall contain a brief
description of the condition constituting the
violation, the section of this chapter or regulation
violated, and the order number assigned thereto. The
department may from time to time change the number or
description of violations on such list, as may seem
appropriate to the department. Such list shall be
available at all times to the public.
c. At the time of the promulgation of the list of
violations, the department shall also designate, by
reference to the order number, those violations which
it proposes to classify as rent impairing as above
defined. Within thirty days thereafter, the department
shall hold a public hearing at which all persons
interested may be heard as to the propriety of the
classification of such violations as rent impairing. At
least twenty days' notice of such hearing shall be
given by publication in the city record or other
publication in which official notices of the city are
regularly published. Within a reasonable time after the
hearing, the department shall make and publish a list
of those violations which are classified as rent
impairing. Any person interested may, within four
months thereafter, seek a review by the supreme court
of the propriety of the classification of any of such
violations as "Rent Impairing" by a special proceeding
pursuant to article seventy-eight of the civil practice
law and rules. No other body or officer shall have the
power to review said classification.
d. The department may at any time change the number or
description of rent impairing violations but no such
change shall be made except in the manner above set
forth after notice and public hearing.
3. a. If (i) the official records of the department
shall note that a rent impairing violation exists in
respect to a multiple dwelling and that notice of such
violation has been given by the department, by mail, to
the owner last registered with the department and (ii)
such note of the violation is not canceled or removed
of record within six months after the date of such
notice of such violation, then for the period that such
violation remains uncorrected after the expiration of
said six months, no rent shall be recovered by any
owner for any premises in such multiple dwelling used
by a resident thereof for human habitation in which the
condition constituting such rent impairing violation
exists, provided, however, that if the violation is one
that requires approval of plans by the department for
the corrective work and if plans for such corrective
work shall have been duly filed within three months
from the date of notice of such violation by the
department to the owner last registered with the
department, the six-months period aforementioned shall
not begin to run until the date that plans for the
corrective work are approved by the department; if
plans are not filed within said three-months period or
if so filed, they are disapproved and amendments are
not duly filed within thirty days after the date of
notification of the disapproval by the department to
the person having filed the plans, the six-months
period shall be computed as if no plans whatever had
been filed under this proviso. If a condition
constituting a rent impairing violation exists in the
part of a multiple dwelling used in common by the
residents or in the part under the control of the owner
thereof, the violation shall be deemed to exist in the
respective premises of each resident of the multiple
dwelling.
b. The provisions of subparagraph a shall not apply if (i)
the condition referred to in the department's notice to
the owner last registered with the department did not
in fact exist, notwithstanding the notation thereof in
the records of the department; (ii) the condition which
is the subject of the violation has in fact been
corrected, though the note thereof in the department
has not been removed or canceled; (iii) the violation
has been caused by the resident from whom rent is
sought to be collected or by members of his family or
by his guests or by another resident of the multiple
dwelling or the members of the family of such other
resident or by his guests, or (iv) the resident
proceeded against for rent has refused entry to the
owner for the purpose of correcting the condition
giving rise to the violation.
c. To raise a defense under subparagraph a in any action
to recover rent or in any special proceeding for the
recovery of possession because of non-payment of rent,
the resident must affirmatively plead and prove the
material facts under subparagraph a, and must also
deposit with the clerk of the court in which the action
or proceeding is pending at the time of filing of the
resident's answer the amount of rent sought to be
recovered in the action or upon which the proceeding to
recover possession is based, to be held by the clerk of
the court until final disposition of the action or
proceeding at which time the rent deposited shall be
paid to the owner, if the owner prevails, or be
returned to the resident if the resident prevails. Such
deposit of rent shall vitiate any right on the part of
the owner to terminate the lease or rental agreement of
the resident because of nonpayment of rent.
d. If a resident voluntarily pays rent or an installment
of rent when he would be privileged to withhold the
same under subparagraph a, he shall not thereafter have
any claim or cause of action to recover back the rent
or installment of rent so paid. A voluntary payment
within the meaning hereof shall mean payment other than
one made pursuant to a judgment in an action or special
proceeding.
e. If upon the trial of any action to recover rent or any
special proceeding for the recovery of possession
because of non-payment of rent it shall appear that the
resident has raised a defense under this section in bad
faith, or has caused the violation or has refused entry
to the owner for the purpose of correcting the
condition giving rise to the violation, the court, in
its discretion, may impose upon the resident the
reasonable costs of the owner, including counsel fees,
in maintaining the action or proceeding not to exceed
one hundred dollars.
Sec. 302-b. Removal of violations by mortgagees.
1. Notwithstanding any other provision of law, where a receiver
has been appointed in foreclosure proceedings instituted by
a mortgagee with respect to any multiple dwelling, such
mortgagee may advance to such receiver funds necessary for
the operation of such multiple dwelling and for the making
of repairs therein necessary to remove conditions
constituting violations of this chapter. Such receiver
shall, to the extent possible, repay any and all such
advances from income received by him with respect to the
property and, if such income is insufficient to permit
complete repayment of such advances, any amounts which
cannot be so repaid, with interest, shall be added to the
amount of the lien of such mortgagee upon entry of a
foreclosure judgment, provided, however, that such amounts
shall not be the basis for any additional personal liability
on the part of the mortgagor.
2. Notwithstanding any other provisions of law, a mortgagee
advancing funds to a receiver pursuant to subdivision one of
this section shall be liable only for gross and willful
negligence with respect to any repair made at his direction
and with funds so advanced.
Sec. 302-c. Right of tenant to offset payments for heat
failure; certain cases.
1. Any tenant acting alone or together with other tenants of a
multiple dwelling employing an oil fired heating device for
which the owner is responsible and wherein there exists a
lack of heat due to the owner's failure to have oil supplied
to the premises, may contract and pay for the delivery of
such oil in accordance with the provisions of this section.
Any payment so made shall be deductible from rent providing
the following provisions have been substantially complied
with by the tenant or someone acting on his behalf:
a. Reasonable efforts were made to contact the owner or
his agent to inform the owner of such failure to supply
oil.
b. Reasonable efforts were made to have the normal fuel
supplier to the premises deliver the requested fuel.
c. Delivery of fuel oil to the premises was secured from a
fuel supplier regularly engaged in such business at a
price within the range of prices listed by the
department in the index provided for in subdivision
three of this section.
d. The fuel supplier from whom oil is secured provided a
written statement containing the following:
(1) The name of the person or persons who requested
the delivery; and
(2) The date, time of and premises to which delivery
was made; and
(3) The amount, grade and price of the oil
delivered; and
(4) A certification that the usable fuel supply
before the delivery was exhausted; and
(5) The charge, if any, for refiring the burner; and
(6) The amounts and from whom any payments were
received.
e. A tenant shall not be required to comply with the
provisions of paragraph a or b hereof unless the owner
has continuously kept posted in a conspicuous place at
the premises a notice containing his name, address and
telephone number or that of his agent and the name,
address and telephone number of the fuel supplier to
the premises.
f. For purposes of this section, a multiple dwelling shall
be considered to lack heat if, during the months
between October first and May thirty-first, while its
usable fuel supply was exhausted, the outdoor
temperature fell below fifty-five degrees Fahrenheit at
any time during the hours between six o'clock in the
morning and ten o'clock in the evening.
2. The deduction from rent allowed by this section shall also
include a reasonable charge, if any, made by the supplier
for refiring the oil burner at the premises.
3. The department charged with the enforcement of laws,
ordinances and regulations in relation to multiple dwellings
shall:
a. Maintain and, to the extent practicable, update at
least bi-weekly an index reflecting the range of prices
of fuel oil according to grade and quantity paid per
gallon on deliveries within the jurisdiction of the
department during the last two week period for which
statistics are available; and
b. Maintain and keep current and available a list of
suppliers which have agreed to make deliveries of fuel
oil in the circumstances, and to render such assistance
as is otherwise required hereby to enable tenants to
obtain the benefits, contemplated by this section.
4. The payment for fuel oil at a price within the range of
prices permitted by paragraph c of subdivision one of this
section shall be conclusively presumed to have been a
reasonable price.
5. The introduction into evidence in any action or proceeding
of any statement rendered in compliance with the provisions
of paragraph d of subdivision one of this section shall be
presumptive of the facts stated therein. Sufficient
foundation for the allowance into evidence of such statement
shall consist of the oral testimony of any person named as a
payer of all or part of the amount indicated thereon
relating the facts and circumstances in which the statement
was rendered.
6. Any tenant who has in good faith secured and paid for fuel
oil otherwise in conformance with the provisions of this
section and against whom an action or proceeding to recover
possession of the premises for nonpayment of rent or any
other action or proceeding attributable at least in part to
the tenant seeking or taking a deduction from rent as
allowed by this section shall, in addition to any other
amounts, be entitled to recover reasonable costs and
attorney's fees against an owner bringing such action or
proceeding.
7. No owner or agent shall be entitled to recover any amounts
in damages from any fuel oil supplier who attempts in good
faith and acts reasonably to carry out the intendment of
this section except damages arising out of gross negligence.
8. The remedy provided in this section shall not be exclusive
and a court may provide such other relief as may be just and
proper in the circumstances. Nothing in this section shall
be construed to limit or deny any existing constitutional,
statutory, administrative or common law right of a tenant to
contract and pay for the delivery of fuel oil for the
multiple dwelling in which he resides or to pay for the cost
of any other goods and services for such multiple dwelling.
This section shall not be construed to preclude any defense,
counterclaim or cause of action asserted by a tenant that
may otherwise exist with respect to an owner's failure to
provide heat or any other service.
9. Any agreement by a tenant of a dwelling waiving or modifying
his rights as set forth in this section shall be void as
contrary to public policy.
10. The provisions of this section shall be liberally construed
so as to give effect to the purposes set forth herein.
*11. Nothing contained in this section and no payment made
pursuant to this section shall be deemed to discharge the
liability of a renter with an interest in real property
pursuant to subdivision two of section three hundred four of
the real property tax law from taxes levied on such
interest.
* NB (Effective pending ruling by Commissioner of Internal
Revenue)
Sec. 303. Enforcement.
1. Except as herein otherwise provided, the provisions of this
chapter shall be enforced by the department charged with the
enforcement of laws, ordinances and regulations in relation
to multiple dwellings.
1-a. For the purpose of enforcing the provisions of this chapter,
the department shall have the power to subpoena witnesses,
administer oaths and take testimony, compel the production
of books, papers, records and documents and to hold public
or private hearings, subject to the right of any person who
shall appear hereunder to be represented by counsel of his
own choosing, at any such hearing. The department may
designate one or more of its members, officers or employees
to exercise any one or more of such powers.
2. Nothing in this chapter shall be construed to abrogate or
impair the powers of any department or of the courts to
enforce the provisions of any local law, ordinance, rule,
regulation or charter not inconsistent with this chapter, or
to prevent violations or punish violators thereof.
Sec. 304. Penalties for violations.
1. Except as otherwise in this section specifically provided,
every person who shall violate or assist in the violation of
any provision of this chapter shall be guilty of a
misdemeanor punishable, for a first offense, by a fine of
not exceeding five hundred dollars or by imprisonment for a
period of not exceeding thirty days, or by both such fine
and imprisonment; for the second and any subsequent offense
arising from the failure to remove the violation upon which
the first offense was based, by a fine of not exceeding one
thousand dollars or by imprisonment for a period of not
exceeding six months, or by both such fine and imprisonment.
1-a. Every person who shall violate or assist in the violation of
any provision of sections twenty-nine, thirty-seven, sixty-
two, eighty eighty-one, eighty-three or three hundred twenty-
five of this chapter shall be guilty of an offense. The
maximum fine for a first violation of any provision of such
sections hereinbefore in this subdivision set forth, with
respect to a particular dwelling, shall be fifty dollars;
the maximum fine for the second offense arising from the
failure to remove the violation upon which the first offense
was based shall be two hundred fifty dollars; the maximum
fine for the third or any subsequent offense arising from
the failure to remove the violation upon which the first and
second offenses were based shall be five hundred dollars.
Such a violation under this subdivision shall not be a crime
and the penalty or punishment imposed therefor shall not be
deemed for any purpose a penal or criminal penalty or
punishment, and shall not impose any disability upon or
affect or impair the credibility as a witness, or otherwise,
of any person convicted thereof.
2. Any person who, having been served with a notice or order to
remove any nuisance or violation, shall fail to comply
therewith within five days after such service, or shall
continue to violate any provision or requirement of this
chapter in the respect named in such notice or order, shall
also be subject to a civil penalty of two hundred fifty
dollars. Such persons shall also be liable for all costs,
expenses and disbursements incurred by any such department
or its agent or contractor in the removal of any such
nuisance or violation.
3. In case the notice required by section three hundred twenty-
five is not filed, or the owner of a dwelling does not
reside within the state or cannot after diligent effort be
served with process therein, the existence of a nuisance or
of any other violation of this chapter or of an order or a
notice made by the department, shall subject the dwelling
and lot to a penalty of two hundred fifty dollars.
4. An action may be brought in any court of competent civil
jurisdiction for the recovery of any such penalties, costs
and disbursements.
5. All penalties collected shall be paid into the treasury of
the city, but no provision of this chapter shall prohibit
the city from creating and maintaining out of such penalties
a separate fund not in excess of twenty-five thousand
dollars, out of which payment may be made for repairs made
by any department charged with the enforcement of this
chapter or its agents or contractors, as provided in section
three hundred nine.
6. No civil or criminal liability or penalty shall attach to
any person who has acquired or shall acquire any tenement or
converted dwelling by foreclosure of a mortgage or deed in
lieu of foreclosure of a mortgage, because of his failure
for a period of six months after the delivery of the
referee's deed in foreclosure or the delivery of such deed
in lieu of foreclosure, to comply with the provisions of
this chapter in reference to such tenement or converted
dwelling, provided he remains the owner thereof. Upon the
transfer of title by such person prior to the termination of
the said six months, and in any event upon the termination
of such period, such penalties shall apply as provided in
this section.
6-a. No civil or criminal liability or penalty shall attach to
any person who has, by an order of a court, been appointed
as a receiver in a foreclosure action to collect rents,
because of his failure for a period of six (6) months after
he qualifies as such receiver, to comply with any of the
provisions of this chapter.
Upon the receiver's discharge by the court prior to the
termination of such period, and in any event upon the
termination of such period, the penalties provided in this
section shall thereafter apply.
6-b. 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
paragraph b of subdivision one of section three hundred nine
of this chapter, 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 chapter for a
period of six months after he acquires ownership of said
multiple dwelling or the stock or beneficial interest in the
stock of a corporation which is the owner.
7. None of the civil or criminal penalties provided in this
section shall apply to any person because of his failure to
comply with the provisions of section two hundred thirty-
three, subdivision four of section two hundred thirty-eight,
subdivision three of section two hundred forty or
subdivisions two and three of section two hundred fifty in
reference to any old-law tenement, if he agrees in writing
with the department to comply with such provisions or to
vacate or demolish such tenement, within a period not
exceeding six months fixed by the department. Such agreement
shall be in form satisfactory to the department, and shall
contain provisions to secure the performance thereof and
such other terms as may be mutually agreed upon. The
transfer of title or control by such person, or the
termination of such period by limitation, shall subject the
person then directly or indirectly in control of such
tenement to the penalties prescribed by this section, if
violations of such provisions then exist.
8. Whenever a multiple dwelling shall have been declared a
public nuisance to any extent pursuant to paragraph b of
subdivision one of section three hundred nine of this
chapter 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 one hundred seven
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 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 chapter 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 attorneys' fees of any suit brought by such tenant
or other person.
9. 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
paragraph b of subdivision one of section three hundred nine
of this chapter because of his failure to comply with any of
the provisions of this chapter, whose interest in such
corporation is less than twenty-five 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.
10. No 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 paragraph b of subdivision one
of section three hundred nine of this chapter because of his
failure to comply with any of the provisions of this chapter
unless and until he has had a reasonable period of time to
comply following his having become an owner as defined in
this chapter.
11. The term "person" as used in this section shall include the
owner, 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 or part thereof. Whenever a multiple
dwelling shall have been declared a public nuisance to any
extent pursuant to paragraph b of subdivision one of section
three hundred nine of this chapter and such declaration
shall have been filed as therein provided, the term "person"
shall be deemed to include, in addition to those mentioned
hereinabove, all the officers, directors and persons having
an interest in more than ten percent of the issued and
outstanding stock of the owner as herein defined, as holder
or beneficial owner thereof, if such person 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 one hundred seven 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 a subsidiary
corporation all of the capital stock of which is owned by
such trust company or other corporation.
Sec. 305. Violation of local laws and regulations.
Any owner, architect, builder, contractor, sub-contractor,
construction superintendent or their agents who shall, in the
construction or alteration of any building or structure intended
to be occupied as a multiple dwelling, knowingly violate any of
the provisions of local laws, ordinances, rules or regulations
shall be guilty of a misdemeanor.
Sec. 306. Judicial procedure and orders.
1. In case any multiple dwelling or structure or any part
thereof or the lot on which it is situated is constructed,
altered, converted or maintained in violation of any
provision of this chapter or of any order or notice of the
department, or in case a nuisance exists in any such
dwelling or structure or part thereof or upon the lot on
which it is situated, the department may institute any
appropriate action or proceeding to prevent such unlawful
construction, alteration, conversion or maintenance, to
restrain, correct or abate such violation or nuisance, to
prevent the occupation of said dwelling or structure or any
part thereof, or to prevent any illegal act, conduct or
business in or about such dwelling, structure or lot.
2. In any such action or proceeding the department may, by
affidavit setting forth the facts, apply to the supreme
court, or to any justice thereof, or, if the premises in
respect to which the action is brought are situated in the
city of New York, to the New York city civil court, for:
a. An order granting the relief for which said action or
proceeding is brought, or enjoining all persons from
doing or permitting to be done any work in or about
such dwelling, structure or lot or any part thereof, or
from occupying or using the same for any purpose, until
the entry of final judgment or order.
b. An order authorizing the department to execute and
carry out the provisions of any notice or order which
is issued by the department and not complied with, to
remove any violation specified in such notice or order,
or to abate any nuisance in or about such dwelling,
structure or lot.
3. In an action to establish a lien under this chapter, the
service and procedure, except as otherwise provided in
section three hundred nine, shall be as set forth in
sections three hundred twenty-six and three hundred fifty-
six to three hundred sixty, both inclusive.
4. The judgment in any such action may provide for the sale at
public auction of the property affected, and for such other
remedies to secure the enforcement thereof as the court may
deem proper.
5. The court or any justice thereof is authorized to make any
order specified in this section.
6. In no case shall the city, or the department or any officer
or employee thereof, be liable for costs in any action or
proceeding that may be commenced pursuant to this chapter.
Sec. 307. Liens.
Every fine imposed by judgment under section three hundred four
upon an owner shall be a lien upon the premises in relation to
which the fine is imposed from the time of the filing of a
certified copy of said judgment in the office of the clerk of the
county in which such premises are situated, subject only to
taxes, assessments and water rates and to such mortgage and
mechanics' liens as may exist thereon prior to such filing; and
it shall be the duty of the department upon the entry of said
judgment to file such certified copy forthwith, and such copy
shall be forthwith indexed by such clerk in the index of
mechanics' liens.
Sec. 308. Notice of pendency of action.
1. In any action or proceeding instituted by the department the
plaintiff or petitioner may file in the county clerk's
office of the county where the premises affected by such
action or proceeding are situated, a notice of the pendency
of such action or proceeding. Such notice may be filed at
any time after the service of any notice or order issued by
the department, at the time of the commencement of the
action or proceeding, or at any time afterwards, before
final judgment or order.
2. Each county clerk with whom such a notice is filed shall
record and index it to the name of each person specified in
a direction subscribed by the corporation counsel or other
legal officer of the city.
3. Any such notice may be vacated upon the order of a judge or
justice of the court in which such action or proceeding was
instituted or is pending, or upon the consent in writing of
the corporation counsel or other legal officer of the city.
The clerk of the county where such notice is filed shall
mark such notice and any record or docket thereof as
canceled of record upon the presentation and filing of such
consent or of a certified copy of such order.
Sec. 309. Repairs, vacation and demolition of buildings.
1. 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 and 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 law, 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
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 as provided by section three hundred twenty-eight
of this chapter, 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 one hundred seven 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 a subsidiary corporation all of the capital
stock of which is owned by such trust company or other
corporation, 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.
c. The department may order or cause such nuisance to be
removed, abated, suspended, purified, altered, repaired
or otherwise improved as the order shall specify.
d. The department may order or cause any multiple dwelling
or any part of its premises, or any excavation,
structure, sewer, plumbing, pipe, passage, matter or
thing in or about such premises to be purified,
cleansed, disinfected, removed, altered, repaired or
improved.
e. Whenever the department shall certify that a nuisance
exists in a multiple dwelling, or any part of its
premises, which constitutes a serious fire hazard or is
a serious threat to life, health or safety, the
department may issue a written order to the owner
directing the removal or remedying of such nuisance in
the manner and within the time specified in such order
which shall be not less than twenty-one days after the
service thereof on the owner in the manner specified in
subdivision one of section three hundred twenty-six of
this chapter except that if the department shall
determine that the condition is such that a delay of
twenty-one days in remedying or removing the same may
cause irreparable harm to the building or constitutes
an imminent danger to its occupants, or the occupants
of adjoining property or the general public, then the
time specified for such remedy or removal may be less
than twenty-one days.
f. If any order of the department is not complied with or
not so far complied with as the department may regard
as reasonable, within the time therein designated, then
such order may be executed by the department, its
agents or contractors, or, as an alternative, if the
multiple dwelling involved shall have been declared to
be a public nuisance pursuant to paragraph b of
subdivision one of section three hundred nine of this
chapter and such declaration shall have been filed as
therein provided, the department or a receiver
appointed pursuant to subdivision five of this section
or any tenant of such multiple dwelling may institute
and maintain an action in the supreme court in the
county where the multiple dwelling is located, or in
the housing part of the New York city civil court, if
the multiple dwelling is located in the city of New
York, against any owner or owners to whom the order was
issued pursuant to paragraph e of subdivision one of
this section for an order compelling such owner of
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 de 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.
g. The department may in its discretion let out contracts
for the repairs to be done pursuant to this section in
accordance with the provisions of local laws,
ordinances, rules and regulations of the city
applicable to the letting of contracts for public
works.
2. a. An "untenanted hazard" is a multiple dwelling or
any part thereof, or any structure on the same premises
with a multiple dwelling, which has been untenanted for
a period of sixty days or more and either is not
guarded continuously by a resident caretaker or has any
exterior openings which are not sealed in a manner
approved by the department and is a fire hazard or in a
condition dangerous or detrimental to human life,
health or morals.
b. Whenever an officer of the department shall certify
that any multiple dwelling or part thereof is an
untenanted hazard, the department shall so notify the
owner by attaching a notice in a conspicuous place on
the premises to such effect, and sending by registered
mail a copy of such notice to such owner, at the
address or addresses registered with the department,
or, if no address is registered with the department and
such owner cannot with due diligence be served
personally, by sending a copy of such notice by
registered mail to the last known address of such
owner. The department shall also send a copy of such
notice by registered mail to every owner of record of a
mortgage upon such premises, at the address of such
owner appearing in the record of such mortgage in the
office in which mortgages are registered in the county
in which such premises are located or, if no address
appear therein, by sending such notice by registered
mail to the person at whose request such instrument was
recorded.
c. Such notice shall contain a description of the
dwelling, and a statement of the particulars in which
the dwelling is deemed to be an untenanted hazard, and
the order that the dwelling or part thereof be
demolished. Such notice and order shall require the
person thus served to certify within ten days
thereafter to the department his assent or refusal to
demolish the same.
d. If such demolition is not commenced within twenty-one
days after the mailing and posting of such notice and
order, such department shall then serve all such
aforementioned persons further notice to the effect
that on a certain day it will apply to the special term
of the supreme court for the hearing of motions for the
county in which such premises are located, or to the
housing part of the New York city civil court, if the
premises are located in the city of New York, for an
order declaring such untenanted hazard to exist and
directing the demolition of such premises or part
thereof.
e. Such court shall, if it finds the statements in the
notice to be true, direct that, if within five days
after the order is entered it is not complied with, the
department may proceed with the execution of such order
through contractors in accordance with the provisions
of local laws, ordinances, rules and regulations of the
city applicable to the letting of contracts for public
works, or through its own officers, agents or
employees.
f. The expenses and disbursements incurred by the
department in carrying out such orders shall be met
from any appropriation for such purpose or, to the
extent that no such appropriation has been made or that
any such appropriation is insufficient, from the
proceeds of the sale of obligations pursuant to the
local finance law.
3. Whenever the department has incurred any expense for which
payment is due under the provisions of this section, the
department may institute and maintain a suit against the
owner of the dwelling in respect to which such expense shall
have been incurred and may recover the amount of such
expense as in this section provided. In any case where
expenditures made or obligations incurred by a receiver
appointed pursuant to subdivision five of this section in
remedying a nuisance are not paid or reimbursed from the
rents and income of the dwelling or where the receivership
expenses, fees and commissions are not paid or reimbursed
from the rents and income of the dwelling, the receiver may
institute and maintain a suit against the owner of the
dwelling to recover such deficiency.
4. a. The department or a receiver appointed pursuant to
subdivision five of this section shall have a lien, for
the expenses necessarily incurred in the execution of
an order, upon the premises upon or in respect of which
the work required by said order has been done or
expenses incurred, which lien shall have priority over
all other mortgages, liens and encumbrances of record,
except taxes and assessments levied pursuant to law. In
the event that a receiver having a lien, in favor of
the department of real estate, is discharged and such
lien is in effect at the time of such discharge, such
lien shall continue to vest in the department of real
estate.
b. No such lien shall be valid for any purpose until the
department or receiver, as the case may be, shall file
where notices of mechanics' liens are required to be
filed, a notice containing the same particulars as
required to be stated with reference to mechanics'
liens, with the further statement that the expense has
been incurred in pursuance of the order of the
department, and giving the date of the order, or in
performance by the receiver of the work required to
remedy a condition pursuant to an order of the court
establishing the receivership and giving the date of
the order, or that a deficiency has accrued with
respect to the receivership established pursuant to an
order of the court and giving the date of the order, as
the case may be. Such notice shall be filed at any time
during the progress of the work required by such order
or undertaken by the receiver, or within four months
after the completion of the contract, or the final
performance of the work or the final furnishing of the
materials, dating from the last item of work performed
or materials furnished or, in the case of a deficiency,
at any time before the discharge of the receiver.
c. The officer with whom such notice is filed shall make
the same entry on the book or index in which mechanics'
liens are entered as he is required to enter in cases
of mechanics' liens, together with a reference to such
order by date; and thereafter such lien shall, except
as herein otherwise provided, have the same effect in
all respects as to all persons as a mechanics' lien;
and all proceedings with reference to such lien, its
enforcement and discharge, shall be carried on in the
same manner as similar proceedings with reference to
other mechanics' liens.
d. Unless, within six months after actual notice of such
filing, proceedings are taken by the party against whom
or whose premises a lien is claimed, to discharge such
lien, the filing shall, as to all persons having such
actual notice, become conclusive evidence that the
amount claimed in the notice of lien, with interest, is
due, and is a just lien upon the premises.
e. Such lien shall continue to be a lien for a period of
one year from the time of its filing unless proceedings
are in the meantime taken to enforce or discharge it,
which may be done at any time during its continuance.
In case proceedings are so taken, the lien shall remain
in effect until the final termination of such
proceedings; and if such proceedings shall result in a
judgment for the amount claimed or any portion thereof,
such judgment shall, to such extent, be a lien in the
same manner and from the same time as the original
lien.
5. a. If the department shall desire that a receiver be
appointed as hereinafter provided to remove or remedy a
nuisance described in paragraph e of subdivision one of
this section and that such receiver shall obtain a lien
for cost incurred in connection therewith in favor of
the department of real estate, which shall have the
priority with respect to existing mortgages or liens
provided in paragraph e of this subdivision, it shall
within five days after the service of the order upon
the owner serve a copy of such order upon every
mortgagee and lienor of record personally or by
registered mail, return receipt requested, at the
address set forth in the recorded mortgage or lien.
Appended to the copy of such order shall be a notice
addressed to such mortgagee and lienor stating that in
the event the nuisance is not removed or remedied in
the manner and within the time specified in the order,
the department may apply to the supreme court, or to
the housing part of the New York city civil court, if
the premises are located in the city of New York, for
an order to show cause why a receiver of the rents,
issues and profits of the property shall not be
appointed with rights therein superior to those of such
owner, mortgagee or lienor.
b. The department shall file a copy of such notice and
order in the office of the county clerk in which
mechanics liens affecting the property would be filed.
c. 1. The department may thereafter apply to the
supreme court in the county where the property
is situated, or to the housing part of the civil
court of the city of New York, if the property
is situated in the city of New York, by verified
petition for an order directing the owner and
any mortgagees or lienors of record to show
cause why the commissioner or chief executive of
the bureau or department of real estate of the
municipality should not be appointed receiver of
the rents, issues and profits of the property
and why said receiver should not remove or
remedy such condition and obtain a lien in favor
of the department of real estate against the
property having the priority provided in
paragraph e of this subdivision to secure
repayment of the costs incurred by the receiver
in removing or remedying such condition. Such
application shall contain (a) proof by affidavit
that an order of the department has been issued
and served on the owner, mortgagees and lienors
in accordance with and within the periods
specified in paragraph e of subdivision one of
this section and paragraph a of this subdivision
and filed in accordance with the provisions of
paragraph b of this subdivision; (b) a statement
that a nuisance which constitutes a serious fire
hazard or is a serious threat to life, health,
or safety continued to exist in said property
after the time fixed for the removal thereof in
the department order and a description of the
property and conditions constituting such
nuisance; (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. Such order to show cause shall be
returnable not less than five days after service
is completed and shall provide for personal
service of a copy thereof and the papers on
which it is based on the owners and mortgagees
of record and lienors. If any such owner,
mortgagee or lienor cannot with due diligence be
served personally within the city where the
property is located and within the time fixed in
such order, then service may be made on such
persons by posting a copy thereof in a
conspicuous place on the premises where the
nuisance exists, and by sending a copy thereof
by registered mail, return receipt requested, to
the owner at the last address registered by him
with the department, or in the absence of such
registration, to the address set forth in the
last recorded deed with respect to said
premises, 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, which
newspaper, if there is an official law paper for
such county, shall be such official law paper.
Service shall be deemed complete on filing proof
of service thereof in the office of the clerk of
the court in which such application is made.
2. If the condition constituting the nuisance 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 on the
owner, mortgagee and lienor by posting a copy
thereof in a conspicuous place on the premises
where the nuisance exists and by mailing a copy
in the case of the owner to the address filed
with the department and in the case of the
mortgagee and lienor to the address recorded. If
a receiver be appointed as hereinafter provided,
and service shall not have been made in
accordance with subparagraph one, then his
appointment shall be temporary only and expire
not more than thirty days thereafter unless,
prior to the expiration of such thirty days, the
department shall serve notice on the owner,
mortgagees and lienors in the manner provided
for in subparagraph one hereof 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 said
receivership. In such event the period of the
appointment of the temporary receiver shall be
deemed to be extended for a further period of
fifteen days. In addition to the requirements
set forth in subparagraph one, such notice shall
also contain a statement of any expenditures
made or obligations incurred by the receiver
during the period of his temporary appointment.
On the date fixed in such notice, the court
shall determine whether or not to extend the
period of receivership and such determination
shall be made as if the application were an
original one for the appointment of a receiver,
pursuant to subparagraph one.
3. On the return of said order to show cause,
determination shall have precedence over every
other business of the court unless the court
shall find that some other pending proceeding,
having a similar statutory precedence, shall
have priority. If the court shall find that the
facts stated in such application warrant the
granting thereof, then the commissioner or chief
executive of the bureau or department of real
estate of the municipality shall be appointed
receiver of the rents, issues and profits of the
property. However after determination of the
issue if 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 constituting the
nuisance 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 such 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 conditions constituting
the nuisance have not been satisfactorily
remedied or removed, then 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
such receiver shall be appointed immediately. On
the failure of any such owner, mortgagee, lienor
or other person having an interest in the
property to complete the work in accordance with
the provisions of said order, the department, or
any such 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 such security.
d. 1. Any receiver appointed pursuant to this
subdivision 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. The receiver shall with all
reasonable speed remedy the nuisance and remove
all the delinquent matters and deficiencies in
the dwelling including those constituting a fire
hazard or a threat to life, health or safety and
may, 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 therefor
or incur expenses in accordance with the
provisions of local laws, ordinances, rules and
regulations applicable to contracts for public
works except that advertisement shall not be
required for each such contract. Notwithstanding
any such laws, ordinances, rules or regulations,
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. The receiver shall not be
required to file any bond. He shall collect the
accrued and accruing rents, issues and profits
of the dwelling and apply the same to the cost
of removing or remedying such nuisance, to the
making of such other improvements as
aforestated, 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 department of real estate 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 remedying or
removing such nuisance, or to making of such
other improvements as aforestated, or of the
expenses reasonably necessary to the proper
operation and management of the property and
other necessary expenses of the receiver, the
department of real estate shall advance to the
receiver any sums required to cover such cost
and expenses and thereupon shall have a lien
against the property having the priority
provided in paragraph e for any such sums so
advanced with interest thereon.
2. Nothing herein contained shall be deemed to
relieve the owner of any civil or criminal
liability incurred or any duty imposed by this
chapter by reason of acts or omissions of the
owner prior to the appointment of any receiver
hereunder, 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.
3. 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 subdivision nine of this section.
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
bureau or department of real estate and the
corporation counsel shall be availed of by the
receiver for the purpose of carrying out his
duties as such receiver and the cost of such
services shall be deemed a necessary expense of
the receiver.
4. The receiver shall be discharged upon rendering
a full and complete accounting to the court when
such condition has been removed and the cost
thereof and all other costs authorized by this
paragraph 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
department of real estate to its lien. Upon the
removal of such condition, the owner, the
mortgagee or any lienor may apply for the
discharge of the receiver upon payment to the
receiver of all moneys expended by the receiver
for removal of such condition and all other
costs authorized by this paragraph which have
not been paid or reimbursed from the rents and
income of the dwelling.
5. Anything herein contained to the contrary
notwithstanding, a temporary receiver appointed
on the return of an order to show cause served
only in accordance with subparagraph two of
paragraph c of this subdivision 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 to remedy or remove the
immediate condition which called for his
appointment and 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.
e. Any lien of a receiver, in favor of the department of
real estate, arising under this section shall have
priority over all other mortgages, liens and
encumbrances of record except taxes and assessments
levied pursuant to law.
f. Failure to serve a copy of the order and notice
required in the manner specified by paragraph e of
subdivision one and paragraph a of this subdivision, or
failure to serve any mortgagee or lienor with a copy of
the order to show cause as required by subparagraph one
of paragraph c of this subdivision shall not affect the
validity of the proceeding or the appointment of a
receiver, but the rights of the department of real
estate or of the receiver shall not in such event be
superior in any way to the rights of any mortgagee or
lienor who shall not have been served as provided
herein.
g. Any mortgagee or lienor who at his expense remedies or
removes the nuisance to the satisfaction of the court
pursuant to the provisions of subparagraph three of
paragraph c of this subdivision shall have and be
entitled to enforce a lien equivalent to the lien
granted to the receiver in favor of the department of
real estate hereunder. Any mortgagee or lienor who,
following the appointment of a receiver by the court,
shall reimburse the receiver and the department of real
estate for all costs and charges as hereinabove
provided shall be entitled to an assignment of the lien
granted to the receiver in favor of the department of
real estate.
6. When the department shall have executed any order so far as
it may require, the department shall file among its records
such order and an affidavit stating with fairness and
accuracy in general terms the items of expense and the date
of execution of such order. When it shall appear that such
execution, or the expenses thereof, related to several
premises belonging to different persons, such affidavit
shall state what part belongs to or arose in respect to each
of the premises as the department may direct. The department
may revise the correctness of such apportionment of expenses
as truth and justice may require.
7. a. Whenever the department shall sue for the expenses
involved in the execution of any order, it may join in
the same suit any claim for any penalty for the
violation of any provisions of this chapter. Joint or
several judgments may be had against one or more of the
defendants in the suit, as they or any of them may be
liable in respect of all or any of such claims. The
expenses of executing such an order, and any judgment
in any abatement suit provided for in this chapter, and
the several judgments that may be recovered for any
such penalties and expenses, until the same are paid or
discharged shall be a lien like other judgments, and
also a lien and charge upon rent and compensation due
or then maturing from any tenant or occupant of the
dwelling and premises or parts thereof to which any
such order or judgment relates, or in respect of which
any such expenses were incurred.
b. The department may serve a copy of an order or a
transcript of a judgment and any affidavit showing the
expense of execution upon any person who owes or is
about to owe any rent or compensation for the occupancy
of any premises to which such order or judgment
relates, and in respect of which such expenses were
incurred. The department may, at any time after such
service, demand in writing that such rent or
compensation to the extent of such claim shall, when
such rent or compensation becomes due and payable, be
paid to the department and such person shall thereupon
become obligated to pay the same. A receipt shall be
given for each such payment stating on account of what
order or judgment and expenses it has been received.
The amount so received shall be deposited wherever
other funds of the department are kept. If a special
fund has been created and maintained, as provided in
section three hundred four, such payments shall be
deposited to the credit of such fund.
c. Any person refusing or omitting to make such a payment
after such service and demand may be sued therefor by
the department. Such person shall not in such suit
dispute the authority of the department to incur or
order such expenses or the validity or correctness of
such expenses or judgment in any particular, or the
right of the department to have the same paid from such
rent or compensation. The receipt of the department for
any sum so paid shall, in all suits and proceedings and
for every purpose, be as effectual in favor of any
person holding the same as actual payment of the amount
thereof to the owner or other person or persons who
would, but for the provisions of this section and of
such demand, have been entitled to receive the sum so
paid. No tenant or occupant of any premises shall be
dispossessed or disturbed, nor shall any lease or
contract or rights be forfeited or impaired, nor any
forfeiture or liability be incurred, by reason of any
omission to pay to any owner, contractor or other
person any sum so paid to the department.
8. The department shall retain any money so paid until twelve
days after it has received evidence by satisfactory
affidavit that the party or parties, or his or their agent,
who but for the provisions hereof would have been entitled
to receive the same, has had written notice of such payment
being made, which notice shall be served in the manner
provided by this chapter for the service of an order. If at
the end of such twelve days the party or parties so notified
have not instituted suit to recover such money the
department shall pay it to the fiscal officer of the city.
If a special fund has been created and maintained as
provided in section three hundred four, the fiscal officer
shall deposit such money to the credit of such fund.
9. The expenses incurred by the receiver in removing or
remedying a condition pursuant to the provisions of this
section shall be met from a fund to be known as the multiple
dwelling section three hundred nine operating fund. Such
fund shall consist of such amounts as may be appropriated by
the board of estimate or other analogous appropriating body
of the city. Such fund shall be maintained in a separate
account by the department of real estate and expenditures
therefrom may be made by the receiver to meet the costs of
removing or remedying such conditions, subject to audit by
the comptroller or chief fiscal officer of the city. The
receiver shall repay the amounts so expended to such fund
from the proceeds of any amounts recovered pursuant to the
provisions of this section. In the event that the amount in
such fund is insufficient for such purposes and if no
appropriation or an insufficient appropriation has been made
therefor, the expenses incurred by the receiver in removing
or remedying such conditions may be met from the proceeds of
the sale of bonds issued in accordance with the provisions
of the local finance law.
In the event that the amounts from time to time in such fund
exceed two hundred thousand dollars ($200,000), such excess
may be applied to the payment of the principal and interest
due upon any bonds issued pursuant to this subdivision, or,
if no such bonds are outstanding, any such excess may be
transferred to the general fund of the city.
10. Reference in this section to a bureau or department of real
estate or to a commissioner or chief executive of a bureau
or department of real estate of a municipality, when used in
connection with or affecting either a receiver or a multiple
dwelling in the city of New York, shall be construed to mean
the department or commissioner of housing preservation and
development or the department or commissioner of buildings,
or both such departments or commissioners, as the case may
be, of the city of New York.
11. a. Notwithstanding any other provision of law, where
a repair has been made by the department pursuant to
this section, or any other law, to abate a hazardous
condition or correct any violation of this chapter, or
any other state or local law, which arises from the
existence of lead based paint, the department may, in
whole or in part, waive its right to a lien on the
affected premises and repayment of such expenses and
disbursements as were necessary to abate such hazardous
conditions or correct such violation of law. The
department shall promulgate rules setting forth the
standards for such waivers.
b. Notwithstanding any other provision of law, where there
is a hazardous condition or violation of this chapter
or other state or local law which arises from the
existence of lead based paint, the department may make
grants or loans to owners for the expenses, in whole or
in part, of abating such hazardous condition or
correcting such violation of law. The department shall
promulgate rules setting forth the standards for such
grants or loans.
Sec. 309-a. Multiple dwelling; apartment prohibitions for
certain employees.
1. No janitor, superintendent, manager, custodian, or the like,
of a multiple dwelling shall be permitted to reside in an
apartment unit in the multiple dwelling in which he is
employed if the rental of such apartment unit to a tenant is
prohibited by any general, special, or local law.
2. An owner, agent or operator of a multiple dwelling may apply
to the department for a waiver of the provisions of this
section on the ground that there is a bona fide
unavailability of a suitable apartment unit for occupation
by any of the above mentioned employees. Upon a
determination that such unavailability does exist, the
department may grant an exemption from the application of
the provisions of subdivision one of this section upon such
terms and conditions as it shall deem appropriate.
3. For the purposes of this section, the term "multiple
dwelling" shall mean a building in which there is either
rented, leased, let or hired out to be occupied, or is
occupied as the residence or home of three of more families
living independently of each other.
Sec. 310. Board of appeals.
1. As used in this section "board" shall mean the agency of a
city constituted as a board and authorized by law both to
grant variances of the zoning resolution and to make rules
supplemental to laws regulating construction, maintenance,
use and area of buildings; provided, however, that where, in
a city to which this chapter applies, there is no board as
so described, then a board may be created by local law or
ordinance to possess the powers, perform the functions and
grant the variances as hereinafter in this section provided;
and any board so created shall be deemed to be a "board"
within the meaning of such term as hereinbefore in this
subdivision described.
2. Where the compliance with the strict letter of this chapter
causes any practical difficulties or any unnecessary
hardships the board shall have the power, on satisfactory
proof at a public hearing, provided the spirit and intent of
this chapter are maintained and public health, safety and
welfare preserved and substantial justice done, to vary or
modify any provision or requirement of this chapter, or of
any rule, regulation, supplementary regulation, ruling or
order of the department with respect to the provisions of
this chapter, as follows:
a. For multiple dwellings and buildings existing on July
first, nineteen hundred forty-eight, in cities with a
population of one million or more, and for multiple
dwellings and buildings existing on November first,
nineteen hundred forty-nine, in cities with a
population of five hundred thousand or more but less
than one million, provisions relating to:
(1) Height and bulk;
(2) Required open spaces;
(3) Minimum dimensions of yards or courts;
(4) Means of egress;
(5) Basements and cellars in tenements and converted
dwellings.
The population restrictions contained in this paragraph
shall not apply to any multiple dwelling otherwise
entitled to the variances herein pursuant to the
provisions of subdivision seven of section fifty-six of
this chapter.
b. For multiple dwellings and buildings erected or to be
erected or altered after July first, nineteen hundred
forty-eight pursuant to plans filed prior to December
fifteenth, nineteen hundred sixty-one, provisions
relating to:
(1) Required open spaces; or
(2) Minimum dimensions of yards or courts.
c. For multiple dwellings and buildings erected or to be
erected or altered pursuant to plans filed on or after
December fifteenth, nineteen hundred sixty-one, or
before such date provided such plans comply with the
provisions of paragraph d of subdivision one of section
twenty-six, provisions relating to:
(1) Height and bulk;
(2) Required open spaces; or
(3) Minimum dimensions of yards and courts.
Variations or modifications may be granted pursuant to
Paragraphs b and c only on condition that open areas
for light and air are provided which are at least
equivalent in area to those required by the applicable
provisions of this chapter and pursuant to sub-
paragraph one of paragraph c only on the further
conditions that there are unique physical or
topographical features, peculiar to and inherent in the
particular premises, including irregularity, narrowness
or shallowness of the lot size or shape and such
variance would be permitted under any provision
applicable thereto of the local zoning ordinance.
d. In the city of Buffalo, until July first, nineteen
hundred and sixty-four for frame multiple dwellings,
existing on November first, nineteen hundred forty-
nine, and for buildings on the same lot existing on
such date or altered after such date, applicable
provisions relating to sections nine, eleven, fifty-
six, two hundred sixty-four and article six.
e. In the city of Buffalo, until July first, nineteen
hundred and sixty-four for dwellings three stories or
less in height converted prior to November first,
nineteen hundred forty-nine, applicable provisions of
section one hundred eighty-five provided that (1) where
such dwelling is occupied by three families, all the
provisions of article six must be complied with and the
cellar stairs enclosed with fire retarded materials
with a one hour fire door; (2) where such dwelling is
occupied by more than three families and there are two
independent means of egress accessible on each story to
each apartment, the cellar stairs must be enclosed with
fire retarded materials with a one hour fire door and
there must be automatic sprinklers in the public halls
and stairways; (3) where such dwelling is occupied by
more than three families and there are not two
independent means of egress accessible from each story
to each apartment, the cellar stairs must be enclosed
with fire retarded materials with a one hour fire door,
there must be automatic sprinklers in the public halls
and stairways and there must be two independent means
of egress accessible to each apartment on the third
story.
f. The variance authorized by paragraphs d or e of this
subdivision may be granted only upon the prior approval
of the fire, health and building departments of such
city and certification by the heads of such departments
that the variance sought is not against the public
interest.
g. The board may, as a condition of granting the variance
authorized by paragraphs d or e of this subdivision,
impose such additional requirements of health and
safety as it may deem necessary or advisable for the
proper protection of the occupants of the dwelling.
*h. Notwithstanding any other provision of law, the city of
Buffalo may grant variances regarding subdivision
twenty-five of section four and subdivision five of
section one hundred one of this chapter only where such
variances comply with the minimum standards set forth
in the New York state building construction code which
is applicable to multiple dwellings, and have been
approved by the state division of housing and community
renewal.
* NB Expires 84/01/01
3. An application for such a variance or modification may be
made by any person aggrieved or by the head of any public
agency, within such time and under such procedure,
conditions and rules as may be prescribed by the board. The
board shall fix a reasonable time for the hearing of an
application and shall require that due notice be given of
the time and place of such hearing to the applicant and to
the department. Any person or a duly authorized
representative of any public agency may appear at any such
hearing and be heard on any such application.
4. In every case the board shall state the reason or reasons
for its decision. All decisions of the board shall be
subject to review in the same manner as is provided by law
for review of decisions of such board respecting variances
of the zoning resolution.
5. A record of all decisions of the board, indexed according to
the section or sections of this chapter affected thereby,
shall be kept in the office of the board. Such record shall
be open to public inspection at all times during business
hours.
6. The board shall have power to charge and collect reasonable
fees and to make rules governing such charges. All moneys so
collected shall be deposited in the general fund of the
city.
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