Opinion
60652005
Decided April 27, 2005.
Grimble LoGuidice, LLC (Robert Grimble of counsel), New York City, for petitioner.
Karp Kalamotousakis, LLP (Charles J. Seigel of counsel), New York City, for respondents Nino Vendome, Vendome Management, Inc., 221-231 East 21st Street LLC, and Peter Fang. New York City Department of Housing Preservation and Development (Valentine J. Morretti of counsel).
New York City Department of Buildings (Gabriel Taussig, Dana H. Biberman, and Abayomi O. Ajaiyeoba of counsel).
On March 4, 2005, petitioner, Sarah Schanzer, began this Housing Part (HP) proceeding to compel respondents-owners Nino Vendome, Vendome Management, Inc., 227-231 East 21 Street, LLC, and Peter Fang to correct New York City Building Code violations placed against her home. Petitioner named the Department of Housing Preservation and Development of the City of New York (DHPD) and the New York City Department of Buildings (DOB) as co-respondents. DOB now moves to be released as a co-respondent. In the alternative, DOB moves to dismiss that portion of petitioner's order to show cause seeking a court order to require DOB to inspect the premises and respondents-owners' work plans to correct the Building Code violations.
I. Background
Respondent-owners are renovating the commercial space on the subject premises' first floor. As part of DOB's supervisory authority over building construction, it inspected the subject premises in May, June, and October 2004 and then again on March 23, 2005. ( See Respondent DOB's Notice of Cross-Motion to Dismiss at ¶¶ 10, 14.) After the March 23, inspection, DOB issued a stop-work order to respondents-owners because of the two Building Code violations DOB's inspectors found.
DOB issued violation number 032305C06IAL to respondents-owners for allegedly failing to maintain the building's facade in a safe condition. DOB found that the building's facade is separated from the building's front and lists toward the street. Because of the danger the facade posed to pedestrians, DOB ordered respondents-owners to erect a sidewalk shed.
DOB also issued Building Code violation number 34465256P to respondents-owners for allegedly failing to maintain the proper fire-proof material in the first floor commercial space's ceiling. DOB found this violation hazardous and, in its notice of violation, summoned respondents-owners to appear for an administrative hearing before the Environmental Control Board (ECB) on May 12, 2005.
After the March 23 inspection, DOB gave respondents-owners a notice of DOB's objections to the renovations. The notice included DOB's objection to the opening at subject premises' fire escape drop ladder. Without issuing a violation, DOB found that the fire escape's opening was too small to allow the tenants to use it as an exit.
II. DOB's Motion
DOB argues that petitioner has failed to state a cause of action. DOB notes that it has already inspected the premises and issued Building Code violations to respondents-owners. According to DOB, petitioner's request that DOB to inspect the subject premises is academic.
Petitioner contends, on the other hand, that because respondents-owners have not corrected the Building Code violations, DOB's presence in this case is not academic. Petitioner and respondents-owners oppose DOB's motion to be removed as a respondent and submit that DOB's continuous presence as a respondent will help the court to order fair and appropriate ameliorative relief.
Before deciding whether DOB should be released from the proceeding, the court must decide whether it has jurisdiction over only Housing Maintenance Code (HMC) violations or whether this court's jurisdiction includes enforcing other housing codes, specifically the Building Code. Most HP proceedings deal only with HMC violations. But city codes — other than the HMC — that concern a residential tenant's health and safety are implicated regularly in tenant-initiated HP proceedings. The other codes include the Health Code, the Air Code, the Noise Code, the Fire Code, and the Building Code.
III. Housing Court's Jurisdiction Over Building Code Violations
The Legislature created the Civil Court's Housing Part to hear "actions and proceedings involving the enforcement of state and local laws for the establishment and maintenance of housing standards, including, but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York." (Civ Ct Act § 110 [a].) Civil Court Act § 110 (a) allows this court to resolve Building Code violations by directing owners of residential premises correct the violations.
Civil Court Act § 203 (k) gives this court jurisdiction over "[a]n action brought to impose and collect a civil penalty for a violation of state or local laws for the establishment and maintenance of housing standards, including, but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York." Section 203 (k) allows for civil penalties for failing to correct Building Code violations even without an order to correct. This court's jurisdiction under Civil Court Act § 203 (n) includes resolving proceedings to remove or place to housing violations pursuant to § 203 (k), a subsection that expressly includes fining a respondent-owner for violating the Building Code.
The Civil Court Act further gives this court the jurisdiction to issue "an injunction, restraining orders or other orders" to enforce Building Code violations. (Civ Ct Act § 203 [o]; see also Various Tenants of 515 E. 12th St. v. 515 E. 12th St., Inc., 128 Misc 2d 235, 236-237 [Hous Part, Civ Ct, NY County 1985] [holding that Housing Part has jurisdiction under §§ 110 (a) and 203 (o) to enforce "any legislative standard which directly impacts" occupants' health and safety].) Although the express language of the statutes that grant the Housing Part its authority provide that this court has jurisdiction over Building Code violations, the court must determine whether it should exercise that authority or whether it should leave Building Code enforcement to other established mechanisms. The answer is that the court must exercise its authority so that it can fulfill its mission: to protect and preserve housing stock.
A. The Housing Part's Legislative Mandate
The original mission of the New York City Civil Court's Housing Part — commonly called the Housing Court — was to resolve code-violation cases. By the time the Legislature promulgated the Civil Court Act and the Housing Part opened its doors in October 1973, nonpayment, holdover, and illegal lockout proceedings were added to the Housing Part's jurisdiction to recognize the mutuality of obligations in landlord-tenant relationships, to promote a unified resolution of landlord-tenant disputes, and to adjudicate cases involving possession over residential premises in New York City.
From the Housing Part's inception, summary nonpayment and holdover proceedings, not code proceedings, have made up the vast bulk of the court's case load. But Civil Court remains committed to Housing Part (HP) proceedings, and to reflect the Housing Part's original mission, the Housing Part refers to the part of the Housing Part — a double-named court — devoted to code compliance.
Before the Legislature created the Housing Part, New York City enforced its housing standards by bringing criminal prosecutions and seeking fines in Criminal Court. ( See L 1972, ch 982, § 1 [a] [explaining Legislature's findings and reasons for creating Housing Part]; Mark C. Rutzick and Richard L. Huffman, The New York City Housing Court: Trial and Error in Housing Code Enforcement, 50 NYU L Rev 738, 744 [1975] [providing brief history of New York City code enforcement].) The criminal sanction, limited almost exclusively to fines in code-violation proceedings, was an inadequate mechanism to protect and maintain housing stock.
For starters, although some contended that in "New York City . . . fear of criminal prosecution [was] a significant deterrent [because] small fines might be effective, [in fact] the high number of relatively ineffective prosecutions demonstrate[d] to most low-income property owners that they ha[d] nothing to fear but fear itself." (Richard E. Carlton, Richard Landfield, and James B. Loken, Note, Enforcement of Municipal Housing Codes, 78 Harv L Rev 801, 823 n 110 [1965]; accord Amenuensis, Ltd. v. Brown, 65 Misc 2d 15, 19 [Civ Ct, NY County 1971] ["The first assumption was that code enforcement penalties were likely to be effective. But the history of the last 32 years surely demonstrates their inadequacy to assure broad compliance with the law."].) In 1965, the average criminal penalty in each housing-code-violation case was less than $14, even though the governing code-enforcement statutes allowed for penalties up to $1000 for each violation. (Judah Gribetz and Frank P. Grad, Housing Code Enforcement, Sanctions and Remedies, 66 Colum L Rev 1254, 1275 [1966].)
Moreover, the high burden of proof and the emphasis on punishment at the expense of effective corrective remedies meant that code enforcement's primary goals remained unfulfilled.
The criminal sanction did not include compelling the effectuation of repairs. ( See id. at 1255.) As such, the criminal sanction did not preserve housing, vindicate tenants' entitlement to safe and secure accommodations, or promptly ameliorate hazardous and unhealthy conditions.
Given the ineffective results of enforcing housing standards in Criminal Court, the Legislature created the Housing Part. ( See L 1972, Ch 982, § 1 [a].) The Legislature found that housing standards are enforced most effectively by a single court with the jurisdiction to order corrections and compel owners to comply with those orders. ( See L 1972, Ch 982, § 1 [b].) The Legislature accordingly gave the Housing Part its mandate to "employ any and all of the remedies, programs, procedures and sanctions authorized by federal, state or local laws for the enforcement of housing standards . . . to accomplish and protect and promote the public interest and compliance." ( Id.)
Only Supreme Court or the Housing Part can issue an order to correct Building Code violations. Actions in Supreme Court make it an ineffective and slow forum to enforce housing standards. A summary proceeding commenced in the Housing Part of the Civil Court's Housing Part is the most efficient way to do so. By comparison, DOB's other administrative enforcement mechanisms, explained below, cannot ensure compliance.
B. Code Enforcement
The Building Code allows the DOB's Commissioner to authorize the New York City Corporation Counsel to prosecute Building Code violations in Criminal Court. (Admin. Code § 643a-11.0 [a] [providing that those who violate Building Code are subject to up to $5000 penalty].) The Building Code gives the DOB's Commissioner the authority to order owners to correct existing Building Code violations. (Admin. Code § 643a-1.0.) If the owner does not correct the violations within the time stated in the Commissioner's order, DOB may effect the necessary repairs to correct the violations and then seek reimbursement from the owner. (Admin. Code § 643a-9.0.) As it did in this proceeding, the DOB's Commissioner can also issue stop-work orders to owners for dangerous or unsafe violations that DOB finds while construction work is ongoing. (Admin. Code § 643a-4.0.) The DOB's Commissioner also has the discretion to authorize Corporation Counsel to institute an action or proceeding in the Housing Part or Supreme Court to compel compliance with a DOB order or to correct any Building Code violation. (Admin. Code § 643a-6.0 [a].)
An owner who receives a summons to appear before the ECB may be liable for civil penalties separate from the $5000 maximum penalty outlined above. Those violations that result in an ECB summons for civil penalties include (1) illegal building alterations under Building Code § 27-118.1; (2) placing tobacco advertisements within 1000 feet of a school or daycare facility under Building Code § 27-508.3 (b); (3) any violation under Building Code Article 27, subchapter 19, entitled "Safety of Public and Property During Construction Operations"; (4) any violation under Article 27, subchapters 1, entitled "Administration and Enforcement," 2, entitled "Definitions," and 3, entitled "Occupancy and Construction Classifications"; (5) receiving a violation DOB deems hazardous; and (6) receiving any two violations for the same offense within 18 months. (Admin. Code § 643a-12.1 [a].)
The ECB is an administrative tribunal that has the authority to adjudicate a wide variety of matters, including violations of the Air Code, the Noise Code, the Health Code, the Building Code, and the Fire Code. (NYC Charter § 1404.) Although the ECB may direct the DOB's Commissioner to revoke equipment permits, to order the owners of construction equipment to correct equipment violations, and to order that construction equipment used in violation of the Air or Noise Codes be sealed (Admin. Code § 24-178 [b]), ECB enforcement is largely limited to imposing civil penalties. The ECB has no authority to hold owners in contempt for failure to correct violations or otherwise to compel compliance. Because ECB has limited enforcement authority, some owners will take their chances by violating a Building Code requirement, not correct the violation, and simply pay the penalty as a cost of doing business when caught — to do, in other words, what some owners did before the Housing Part filled the void by compelling code compliance.
In contrast to the ECB, this court may order respondents-owners to correct existing Building Code violations. ( See id.) A respondent-owner's failure to comply with the court's order, if one is issued, will subject it to civil penalties and civil and criminal contempt. ( See Judiciary Law §§ 750 [a] [3] [criminal contempt], 753 [a] [8] [civil contempt]; Civ Ct Act § 110 [e] Judiciary Law § 757 [authorizing Housing Part judges to punish for contempts].) With the ability to compel compliance, this court can ensure that a respondent-owner corrects an existing Building Code violation.
This court, therefore, has jurisdiction over Building Code enforcement. This court may direct DOB to reinspect the subject premises to enforce the Building Code. ( See Civ Ct Act § 203 [o].) But this court may not order DOB to approve or reinspect an application for a work permit. DOB's authority to reinspect and approve work plans is discretionary; it does not directly impact an occupant's health and safety the same way that violating the Building Code does. Only Supreme Court has the jurisdiction under Article 78 to reverse DOB's determination regarding respondents-owners' work plans. ( See CPLR 7803 [providing that Supreme Court may decide whether administrative agency's determination resulted from "an error of law or was arbitrary and capricious or an abuse of discretion"].)
The remaining question, then, is whether DOB must remain a party to this proceeding to assist the court to enforce compliance with the Building Code.
IV. DOB's Presence in This Proceeding
The Housing Maintenance Code (HMC) makes DHPD a necessary party-respondent to tenant-initiated HP proceedings. (NYC Admin. Code § 27-2115 [h].) Requiring DHPD to appear as a respondent in tenant-initiated HP proceedings like this one allows DHPD to represent the City's interests in cases involving HMC violations. No express provision requires a tenant in a tenant-initiated HP proceeding involving Building Code violations to name DOB as a respondent. But the same considerations that require DHPD's presence as a party make DOB's participation in this proceeding desirable.
Under New York City Civil Court Act § 110 (d), a party in an HP proceeding may apply to the court to join, or the court may join on its own, any "city department as a party in order to effectuate proper housing maintenance standards and to promote the public interest." Section 110 (d) authorizes joinder "on the most liberal of terms, enhancing the court's potential as a source of novel and wide-ranging solutions to problems of housing maintenance." (Rutzick and Huffman, supra, at 765-766.) Thus, this court has the discretion to make DOB a party "to effectuate proper housing maintenance standards and to promote the public interest." ( See e.g. Ryerson Towers v. Jackson, 173 Misc 2d 914, 916 [Hous Part, Civ Ct, Kings County 1997] [impleading Human Resources Administration, Protective Services for Adults, and Department of Social Services (DSS)]; Manhattan Plaza, Inc. v. Snyder, 107 Misc 2d 470, 479 [Hous Part, Civ Ct, NY County 1980] [granting tenant's motion to implead Department of Environmental Protection (DEP)]; Gold v. Soto, 78 Misc 2d 390, 394 [Hous Part, Civ Ct, NY County 1974] [granting tenant's motion to implead DSS].) Keeping DOB as a party will help the court effectuate housing standards and promote the public interest in accordance with § 110 (d).
DOB has not made it clear why it wants to be removed from this proceeding. At oral argument, petitioner stated that the only relief she seeks from DOB is its supervision to enforce its own Code. That proposed relief is entirely laudable and places no onerous burden on DOB. Having DOB as a party to this proceeding will aid the court to enforce the Building Code and promote public safety. As a party to this proceeding, DOB will be available immediately to reinspect the subject premises for continued unsafe conditions that pose a danger to the public. ( See Manhattan Plaza, 107 Misc 2d at 479 [directing impleaded DEP "to . . . forthwith make an inspection of the [subject] apartment"].)
At oral argument, petitioner and respondents-owners disagreed with each other about the method respondents-owners should use to correct the Building Code violations DOB placed against the subject premises. As a party, DOB would be available to answer the court's, DHPD's, petitioner's, and respondents-owners' questions about the proper ways to correct the Building Code violations. This court could then issue an order to correct consistent with DOB's rules and regulations.
As a party in this proceeding, DOB will be available to represent the City's interests in enforcing the Building Code. It is not enough that DHPD will represent the City's interests. DHPD's attorneys, from its Housing Litigation Bureau, do not speak for DOB's interests. In court, only the New York City Corporation Counsel does. Corporation Counsel on DOB's behalf would not have to appear in court in this proceeding if DOB would allow DHPD's attorneys to speak for them. So long, however, as DOB does not empower DHPD's attorneys to speak for DOB, then DOB must appear in court by Corporation Counsel.
Appearing in court will enable DOB to call and cross-examine witnesses to help the court get to the truth about the Building Code violations. Additionally, petitioner, DHPD, and DOB could seek civil penalties and civil and criminal contempt if respondents-owners fail to comply with an order to correct Building Code violations, if one is issued.
V. Conclusion
DOB's motion to be released as a party is denied. Because this court has the authority, under Civil Court Act § 110 (d), to implead DOB to help effectuate housing standards and protect public safety, petitioner had the right to join DOB in the first place. That portion of DOB's motion to dismiss petitioner's requested relief to order DOB to reinspect respondents-owners work plans is granted. This court cannot compel DOB to exercise its discretionary authority to inspect and approve respondents-owners' work plans. But the court reserves its right to order DOB to reinspect the subject premises, as that is within this court's jurisdiction.
This proceeding is adjourned for trial to May 10, 2005.
This opinion is the court's decision and order.