FILED: NEW YORK COUNTY CLERK 01/10/ :11 PM INDEX NO /2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/10/2017

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1 FILED: NEW YORK COUNTY CLERK 01/10/ :11 PM INDEX NO /2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/10/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x In the application of WE 223 RALPH LLC, Petitioner, For a judgment pursuant to CPLR Article 78, -against- VERIFIED ANSWER Index No /2016 NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT Respondent x Respondent, NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT ( HPD ), by its attorney, ZACHARY W. CARTER, Corporation Counsel of the City of New York, for its answer to the Verified Petition (or petition ) 1 respectfully allege the following upon information and belief: 1. Denies the allegations set forth in paragraph 1 of the petition, except admits that petitioner is the owner of the building located at 223 Ralph Avenue, Brooklyn, NY 1 Petitioner s pleading does not comply with Civil Practice Law and Rules ( CPLR ) 3014 in that numerous paragraphs contain multiple allegations of fact and/or legal argument rather than plain and concise statements each containing a single allegation. In addition, the instant pleading contains legal argument, contrary to New York State s Uniform Rules for Trial Courts 202.8(c), which states that legal arguments shall be made in memoranda of law, not affidavits or affirmations. For ease of reference, annexed as Exhibit A is a copy of the petition (without exhibits) in which the multiple sentences set forth in numerous paragraphs have now been consecutively numbered by HPD s counsel. 1 of 44

2 ( subject building ), purports to proceed as set forth therein, and attaches documents to the petition as Exhibits 1-A and 1-B. 2. Denies the allegations set forth in paragraph 2 of the petition. 3. Denies the allegation set forth in sentence 1 of paragraph 3 of the petition. Denies the allegations set forth in sentence 2 of paragraph 3 of the petition and avers that HPD has not received any FOIL requests for the subject premises and, to the extent petitioner corresponded with HPD s Research and Reconciliation Unit regarding the applicable emergency repair charges, HPD provided response letters to petitioner s counsel (see Exhibit 1A and 1B annexed to Affirmation of Simon W. Reiff, Esq. dated March 31, 2016, and Exhibits Q, R, T, and U annexed hereto). Denies the allegations set forth in sentence 3 of paragraph 3 of the petition and avers that HPD properly served its Notices of Violation ( NOVs ) in accordance with the New York City Administrative Code ( Administrative Code ) (a)(3)(ii), (a)(3), and (b), the applicable provisions. Denies the allegations set forth in sentences 4 and 5 of paragraph 3 of the petition, and respectfully refers to the Affirmation of Vivian Currie, Esq. dated January 5, 2017 ( DOB Affirmation ), annexed hereto, which states that though the Stop Work Order document, inadvertently referenced the subject premise as 323 Ralph Ave, instead of 223 Ralph Ave, it was issued in accordance with Administrative Code and, in any event, a Full Stop Work Order was also indicated on the face of two notices of violation, which petitioner evidently received, see DOB Affirmation at Denies the allegations set forth in paragraph 4 of the petition and avers that, to the extent the violations referred to are those that directed petitioner to appear at a mandatory hearing at ECB, those violations are not issued by HPD, and respectfully refers the of 44

3 Court to the DOB Affirmation, annexed hereto, for a full and accurate statement of their content and effect. In fact, DOB issued seven Notices of Violation ( NOVs ) on May 21, 2015 and three NOVs were dismissed for non-meritorious grounds and four NOVs were stipulated to, whereby petitioner accepted the violations as true and paid the fine. See DOB Affirmation at 9, Denies the allegations set forth in sentence 1 of paragraph 5 of the petition. Denies the allegations set forth in sentence 2 of paragraph 5 of the petition, except admits that HPD records indicate apartment 5 in the subject building was occupied on May 21, Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in sentence 3 of paragraph 5, of the petition, except denies the allegation regarding the vacancy of apt. 5 at the subject building on the May 21, 2015 inspection. Denies the allegations set forth in sentence 4 of paragraph 5 of the petition, and avers that HPD did not directly issue violations to apartment 5 of the subject building based on observations on May 21, Denies the allegations set forth in sentence 5 of paragraph 5 of the petition. Denies the allegations set forth in sentence 6 of paragraph 5 of the petition, and avers that HPD records, annexed collectively hereto as Exhibit X, indicate petitioner s representative contacted HPD on two occasions, but before petitioner s job applications were approved on June 22, 2015, and that a DOB inspector inspected the subject building on July 2, 2015 and rescinded the Full Stop Work Order on that date. Denies so much of the all the allegations set forth in sentence 7 of paragraph 5 of the petition as is inconsistent with the DOB Affirmation and respectfully refers the Court to the DOB Affirmation and Exhibits 2 and 10 annexed thereto for a full and accurate statement of its content and effect. Denies the allegations set forth in sentence 8 of paragraph 5 of the petition. Denies the allegations set forth in sentence 9 of of 44

4 paragraph 5 of the petition, and avers that of the seven DOB Notices of Violation issued on May 21, 2015, three NOVs were dismissed for non-meritorious grounds and four NOVs were stipulated to whereby petitioner accepted the violations as true and paid the fine. See DOB Affirmation at Denies the allegations set forth in paragraph 6 of the petition. 7. Denies the allegations set forth in paragraph 7 of the petition, and avers that HPD paid a contractor for fire watch services it performed for the entirety of seven days (168 hours total; 24 hours for each of June 28, June 29, June 30, July 1, July 2, July 3, and July 4) for the charge at issue in Protest No Denies the allegations set forth in paragraph 8 of the petition, and avers that HPD has no record of petitioner ever having made a FOIL request, avers that pursuant to 28 RCNY 17-03(i), HPD is not required to provide supporting documentation in its determination on emergency repair charge protests, and avers that supporting documentation is provided in the Administrative Record attached herein. 9. Denies the allegations set forth in paragraph 9 of the petition. 10. Denies the allegations set forth in paragraph 10 of the petition, except admits that petitioner attaches documents to the petition as Exhibit Denies so much of the allegations set forth in paragraph 11 of the petition as is inconsistent with the Administrative Record, and respectfully refers the Court to the DOB Affirmation and exhibits attached thereto, annexed hereto, for a full and accurate statement of what transpired. 12. Denies so much of the allegations set forth in paragraph 12 of the petition as is inconsistent with the Administrative Record, and respectfully refers the Court to the of 44

5 DOB Affirmation and exhibits attached thereto, annexed hereto, for a full and accurate statement of what transpired. 13. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 13 of the petition, and avers that there is no record that the conditions warranting a fire guard observed on May 21, 2015 were immediately corrected and also avers that any work performed immediately after violations were issued by DOB and HPD due to conditions in apartment 3 would have been illegally performed without DOB job application approval, in violation of a Stop Work issued by DOB. 14. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 14 of the petition, except admits that petitioner attaches documents to the petition as Exhibit 4, but avers that the attached as Exhibit 4 is not dated and that documents purported to be attached to the are not included in Exhibit Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 15 of the petition. 16. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 16 of the petition. 17. Denies the allegations set forth in paragraph 17 of the petition, except denies knowledge or information sufficient to form a belief as to the truth of the allegations regarding Seth Weissman s direction to Mr. Quirke. 18. Denies the allegations set forth in paragraph 18 of the petition, and respectfully refers the Court to the DOB Affirmation, annexed hereto, for a full and accurate statement of what transpired, and avers that the Full Stop Work Orders were rescinded because of 44

6 the DOB inspector found that violating conditions cited in NOV 31K (removal of fire stopping in apartment 3) and NOV 32M (replacement of floor joist in apartments 1, 2, and 6, contrary to approved plans and amendments) had been corrected. 19. Denies so much of the allegations set forth in sentence 1 of paragraph 19 of the petition as alleges or purports to allege HPD acted improperly, and avers that after an HPD inspection on July 13, 2015 that found emergency hazardous conditions remained at the subject building, HPD issued notice of violation ID number containing violation number and violation number , calling for a fire watch guard for all stories and avers that Diamond Services provided fire watch services at the subject building until July 31, 2015, and respectfully refers the Court to Exhibit V for a full and accurate statement of its content and effect. Denies so much of the allegations set forth in sentence 2 of paragraph 19 of the petition as alleges or purports to allege HPD acted improperly, except denies knowledge or information sufficient to form a belief as to the truth of the allegations regarding Mr. Quirke s effort to obtain removal of the fire watch guard services, and avers that after an HPD inspection on July 13, 2015 that found emergency hazardous conditions remained at the subject building, HPD issued notice of violation number containing violation number and violation number , calling for a fire watch guard for all stories and avers that Diamond Services provided fire watch services at the subject building until July 31, 2015, and respectfully refers the Court to Exhibit V for a full and accurate statement of its content and effect. 20. Denies the allegations set forth in paragraph 20 of the petition, and respectfully refers the Court to the DOB Affirmation, annexed hereto, for a full and accurate statement of what transpired of 44

7 21. Denies so much of the allegations set forth in paragraph 21 of the petition as is inconsistent with the Administrative Record, and respectfully refers the Court to the Property Registration Forms for , Exhibit C, and to HPD business records showing that the Notices of Violation were mailed to Benjamin Bottner of Choice New York Management, the registered managing agent at the time the relevant violations were issued, Exhibit I. 22. Denies the allegations set forth in sentence 1 of paragraph 22 of the petition, except admits that Benjamin Bottner of Choice New York Management was registered as the managing agent for the subject premises during the relevant time period, and respectfully refers the Court to the Property Registration Forms for , Exhibit C, and to HPD business records showing that the Notices of Violation were mailed to Benjamin Bottner of Choice New York Management, the registered managing agent at the time the relevant violations were issued, Exhibit I. Denies the allegations set forth in sentences 2 of paragraph 22 of the petition, and respectfully refers the Court to HPD business records showing that the Notices of Violation were mailed to Benjamin Bottner of Choice New York Management, the registered managing agent at the time the relevant violations were issued, Exhibit I. Denies so much of the allegations set forth in sentences 3 of paragraph 22 of the petition as is inconsistent with the Administrative Record, except admits that HPD s December 18, 2015 letter responses to petitioner s telephone inquiry on December 17, 2015 had the name John Cummings on them, but were nevertheless received by petitioner as admitted in the petition, and avers that Research and Reconciliation, the unit that sent the letter dated December 18, 2015, has no involvement with mailing of notices of violation, which are distinct documents from Research and Reconciliation correspondences. Denies the allegations set forth in sentence 4 of paragraph 22, and of 44

8 respectfully refers the Court to the Property Registration Forms for , Exhibit C, and to HPD business records showing that the Notices of Violation were mailed to Benjamin Bottner of Choice New York Management, the registered managing agent at the time the relevant violations were issued, Exhibit I. 23. Denies the allegations set forth in paragraph 23 of the petition and avers that HPD paid a contractor for fire watch services performed for the entirety of seven days (168 hours total; 24 hours for each of June 28, June 29, June 30, July 1, July 2, July 3, and July 4) for the charge at issue in Protest No Denies the allegations set forth in paragraph 24 of the petition, and avers that while the contractor was paid for fire watch services performed on July 3-4, 2015, HPD is nevertheless in the process of removing the charges for those two days. 25. Denies the allegations set forth in paragraph 25 of the petition, and avers that pursuant to Title 28, Section 17-03(i) of the Rules of the City of New York ( RCNY ), HPD is not required to provide supporting documentation in its determination on emergency work charge protests and avers that supporting documentation is provided in the Administrative Record attached herein. 26. Denies so much of the allegations set forth in paragraph 26 of the petition as is inconsistent with the Administrative Record, except denies the allegations regarding petitioner s counsel having made a FOIL request, and avers that HPD has no record of receiving any FOIL requests in relation to the subject premises and avers that HPD provided letter determinations dated April 28, 2016 in response to petitioner s attorney s protests dated March 31, 2016 upholding the charges and denying those protests, and respectfully refers the Court to Exhibits T and U for a full and accurate statement of their contents and effect of 44

9 27. Denies so much of the allegations set forth in paragraph 27 of the petition as is inconsistent with the Administrative Record, and respectfully refers the Court to the Administrative Record for a full and accurate statement of its content and effect, except denies so much of the allegations set forth in paragraph 27 of the petition as alleges or purports to allege HPD acted improperly, and avers that the Stop Work Order referenced in petitioner s protests and paragraph 27 of the petition was issued by DOB, and respectfully refers the Court to the DOB Affirmation. 28. Denies so much of the allegations set forth in paragraph 28 of the petition as is inconsistent with the Administrative Record, and respectfully refers the Court to the Administrative Record for a full and accurate statement of its content and effect, except denies so much of the allegations set forth in paragraph 28 of the petition as alleges or purports to allege HPD acted improperly, and avers that the violations referenced in petitioner s protests were issued by DOB, and respectfully refers the Court to the DOB Affirmation. 29. Denies the allegations set forth in paragraph 29 of the petition, and avers that Administrative Code and Chapter 17 of Title 28 of the RCNY provide for an administrative appeal procedure by way of a written appeal and thus petitioner is not entitled to an informal hearing to challenge emergency work charges. 30. Admits the allegations set forth in paragraph 30 of the petition. 31. Denies so much of the allegations set forth in paragraph 31 of the petition as is inconsistent with the cited CPLR provision, and respectfully refers the Court to the provision for a full and accurate statement of its content and effect of 44

10 32. Denies so much of the allegations set forth in paragraph 32 of the petition as is inconsistent with the cited CPLR provision and cases, and respectfully refers the Court to the provision and cases for a full and accurate statement of their content and effect. 33. Denies the allegations set forth in paragraph 33 of the petition, and avers that petitioner did not accurately provide the applicable provision, and respectfully refers the Court to the provision for a full and accurate statement of its content and effect, supra Denies so much of the allegations set forth in paragraph 34 of the petition as is inconsistent with the cited Administrative Code provisions, and respectfully refers the Court to the provisions for a full and accurate statement of their content and effect. 35. Denies the allegations set forth in paragraph 35 of the petition, and avers that petitioner did not accurately provide the applicable provision, and respectfully refers the Court to the provision for a full and accurate statement of its content and effect, supra Denies the allegations set forth in paragraph 36 of the petition, and avers that petitioner did not accurately provide the applicable provision, and respectfully refers the Court to the provision for a full and accurate statement of its content and effect. 37. Denies the allegations set forth in paragraph 37 of the petition, and avers that petitioner did not accurately provide the applicable provision, and respectfully refers the Court to the provision for a full and accurate statement of its content and effect. 38. In response to the allegations set forth in paragraph 38 of the petition, respondent repeats and realleges the responses set forth in paragraphs 1-36 of its answer as if fully set forth herein. 39. Denies the allegations set forth in paragraph 39, and avers that HPD s Notices of Violations were served in accordance with Administrative Code (a)(3)(ii), of 44

11 (a)(3), and (b), and respectfully refers the Court to the those provisions for a full and accurate statement of their content and effect. 40. Denies the allegations set forth in paragraph 40 of the petition, and avers that DOB and HPD properly served their relevant Notices of Violations on petitioner, and respectfully refers the Court to Exhibits I, T, and U and the DOB Affirmation for a full and accurate statement of their contents and effect. 41. Denies the allegations set forth in paragraph 41 of the petition and respectfully refers the Court to the Administrative Record for a full and accurate statement of its content and effect. 42. Denies the allegations set forth in paragraph 42 of the petition, and avers that DOB issued the Stop Work Order and that HPD has no record of having received any FOIL requests for the subject premises. 43. Denies the allegations set forth in paragraph 43 of the petition. 44. In response to the allegations set forth in paragraph 44 of the petition, respondent repeats and realleges the responses set forth in paragraphs 1-42 of its answer as if fully set forth herein. 45. Deny the allegations set forth in paragraph 45 of the petition. 46. Denies the allegations set forth in paragraph 46 of the petition. 47. Denies the allegations set forth in paragraph 47 of the petition, and respectfully refers the Court to the Administrative Code for a full and accurate statement of its content and effect. 48. Denies the allegations set forth in paragraph 48 of the petition of 44

12 49. Denies the allegations set forth in paragraph 49 of the petition, and respectfully refers the Court to the Administrative Record for a full and accurate statement of what transpired, and avers that pursuant to 28 RCNY 17-03(i), HPD is not required to provide supporting documentation in its determination on emergency work charge protests and avers that supporting documentation is provided in the Administrative Record attached herein. 50. Denies the allegations set forth in paragraph 50 of the petition, and respectfully refers the Court to the DOB Affirmation, annexed hereto, for a full and accurate statement of what transpired. clause of the petition. 51. Denies that petitioner is entitled to the relief sought in the Wherefore HPD and the Housing Maintenance Code RELEVANT STATUTORY FRAMEWORK 52. HPD is an agency of the City of New York, established under Chapter 61 of the New York City Charter ( City Charter ). Pursuant to the City Charter 1802, HPD is responsible for, inter alia, all functions of the city relating to the rehabilitation, maintenance, alteration and improvement of residential buildings and privately owned..., including, but not limited to:... the execution of emergency repairs to... buildings, structures and privately-owned housing in accordance with applicable provisions of law and the enforcement of those provisions of the multiple dwelling law or any other law, rule or regulation which relate to the maintenance, use, occupancy, safety or sanitary condition of any building or portion thereof which is occupied, arranged or intended to be occupied as a home, residence or dwelling place[.] of 44

13 53. Pursuant to Title 27 of the New York City Administrative Code ( Administrative Code ), HPD is empowered to enforce the Housing Maintenance Code ( HMC ), which is codified as Chapter 2 of Title 27 of the Administrative Code. 54. The HMC is a comprehensive code of standards for decent housing maintenance, imposing duties and responsibilities for the preservation of the dwellings in the city upon owners. setting forth the minimum standards for water supply, ventilation, heat and hot water, artificial lighting, waste collection, extermination, and other maintenance requirements for dwelling units in the City. HMC HMC further provides, in pertinent part, as follows: Legislative declaration. It is hereby found that the enforcement of minimum standards of health and safety, fire protection, light and ventilation, cleanliness, repair and maintenance, and occupancy in dwellings is necessary to protect the people of the city against the consequences of urban blight. The sound enforcement of minimum housing standards is essential: 1. to preserve decent housing; 2. to prevent adequate or salvageable housing from deteriorating to the point where it can no longer be reclaimed; and 3. to bring about the basic decencies and minimal standards of healthful living in already deteriorated dwellings, which, although no longer salvageable, must serve as habitations until they can be replaced. In order to accomplish these purposes, and following a review of existing housing standards in the light of present needs, and a reexamination of methods of administration, including legal sanctions and remedies, to assure the effectiveness of enforcement, it is hereby found that the enactment of a comprehensive code of standards for decent housing maintenance, imposing duties and responsibilities for the preservation of the of 44

14 dwellings in the city upon owners enforceable by a broad range of legal, equitable and administrative powers, is appropriate for the protection of the health, safety and welfare of the people of the city. (Emphasis added). Duties of Owner and HPD s Emergency Repair Program 55. The HMC explicitly imposes upon the owners of residential buildings the duty to keep their buildings in good repair and the responsibility for compliance with all HMC requirements. HMC sets forth the duties of a multiple dwelling and states as follows: Duties of owner. a. The owner of a multiple dwelling shall keep the premises in good repair. b. The owner of a multiple dwelling, in addition to the duty imposed upon such owner by subdivision a of this section, shall be responsible for compliance with the requirements of this code, except insofar as responsibility for compliance is imposed upon the tenant alone. *** d. The owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling as set forth in paragraph 48 of subdivision a of section of this chapter. 56. Pursuant to HMC (a)(4), owners are required to provide a number at which they or the managing agent may reasonably be expected to be reached at all times on the registration statement of a multiple dwelling. Furthermore, the name and address of a managing agent designated by the owner to be in control of and responsible for, inter alia, the authorization of correction of any emergency conditions or the making of any emergency repairs must be provided on the registration statement of a multiple dwelling. Specifically, HMC (a)(3) and (4) provide: of 44

15 Registration statement; contents. a. The registration statement shall include the following information: *** (3) If the dwelling is a multiple dwelling, the name and address of a managing agent designated by the owner to be in control of and responsible for the maintenance and operation of such dwelling and to authorize, on behalf of the owner, the correction of any emergency conditions or the making of any emergency repairs for which the owner is responsible under the provisions of the multiple dwelling law or this code. To qualify for such designation, an agent shall be a natural person over the age of twenty-one years and shall reside within the city or customarily and regularly attend a business office maintained within the city. An owner or corporate officer who meets such qualifications may be designated to serve and registered as the managing agent. (4) If the dwelling is a multiple dwelling or a one- or two-family dwelling where neither the owner nor any family member occupies the dwelling, the number of a telephone within the greater metropolitan area, as identified by the department, where an owner or officer, if the owner is a corporation, or the managing agent may reasonably be expected to be reached at all times. The telephone number contained in the registration statement shall not constitute a public record and shall be accessible only to duly authorized employees or officers of the department and used exclusively by such personnel in connection with an emergency arising on the premises for which the owner is responsible under the provisions of the multiple dwelling law or this code. The department may promulgate regulations to implement the provisions of this paragraph. (Emphasis added) of 44

16 57. The HMC endows HPD with certain enforcement powers and remedies so that HPD may enforce the requirements of the HMC against building owners who do not meet their obligations under HMC Where HPD inspectors have determined that a building condition is dangerous to human life and safety or detrimental to health, in violation of the HMC or other applicable law, HPD is authorized to, among other things, issue notices of violation ( NOVs ) to building owners and cause repairs to be done, either by HPD personnel or by retained contractors. See HMC and (b). This scheme is known as the Emergency Repair Program ( ERP ). Specifically, HMC states, in pertinent part, as follows: (Emphasis added) Power to cause or order corrections of violations. a. Whenever the department determines that because of any violation of this chapter or other applicable law, any dwelling or part of its premises is dangerous to human life and safety or detrimental to health, it may (1) correct such conditions, or (2) order the owner of the dwelling or other responsible party to correct such conditions. *** 58. With respect to HPD s authority to issue NOVs to building owners or other parties responsible for correction of violations, HMC (b) states, in pertinent part, as follows: (b) The department shall serve a notice of violation upon the owner, his or her agent or other person responsible for its correction. The notice shall identify the condition constituting the violation, the provision of law applicable thereto of 44

17 Where the department introduces into evidence the business records which correspond to the various stages of the mailing of a particular cycle of notices of violation, pursuant to subdivision (c) of rule forty-five hundred eighteen of the civil practice law and rules, then a presumption shall have been established that the mailing procedure was followed in the case of such cycle, and that such notice of violation has been duly served. *** (f)(7) Failure to file such certification of compliance shall establish a prima facie case that such violation has not been corrected. (Emphasis added). Service of HPD Notices of Violation 59. HMC (a)(2) in conjunction with (a)(3)(ii) provides methods of service on corporations. Specifically, pursuant to HMC (a)(3)(ii), HPD may serve by mail an NOV on the managing agent of a dwelling, designated in accordance with HMC (a) provides, in pertinent part, as follows: Service of notices and orders. (a) Except as otherwise expressly provided in this code, any notice of violation or other notice, or any order authorized or required to be served by the department under the provisions of this code, shall be served in the following manner on any person or corporation to whom or which such notice or order is directed: *** (2) By delivering a copy of such notice or order to any person of suitable age and discretion at the residence or place of business of the person to whom it is directed, or if it is directed to a corporation, at any office of such corporation; or of 44

18 (3) (i) If service is to be made on an owner of a dwelling, by mailing a copy of such notice or order to the latest business or residence address of such owner as set forth in any registration statement filed by such owner with the department under the applicable provisions of article two of this subchapter; (ii) If service is to be made on a managing agent of any such dwelling designated under the applicable provisions of article two of this subchapter, by mailing a copy thereof to the latest business or residence address of such managing agent set forth in any such registration statement or designation filed by the owner of such dwelling; *** Recovery Of Expenses For Repairs Made By HPD 60. Pursuant to HMC , HPD may recover the expenses incurred by HPD for repairs made pursuant to HMC HMC states, in pertinent part, as follows: Recovery of expenses. All expenses incurred by the department pursuant to section or section of this article shall constitute a debt recoverable from the owner and a lien upon the building and lot, and upon the rents and other income thereof. The provisions of article eight of this subchapter shall govern the effect and enforcement of such debt and lien. 61. According to Article 8, Subchapter 5, Section (b) of the HMC, once an expense becomes due and payable it constitutes a lien upon the premises. HMC (b) states, as follows: Lien on premises. *** b. All expenses incurred by the department for the repair or the elimination of any dangerous or unlawful conditions therein, pursuant to this chapter of 44

19 or any other applicable provision of law, shall constitute a lien upon the premises when such charge is due and payable, which, notwithstanding any other provision of law, shall be the due and payable date for such charge provided on the second statement of account containing such charge. Such lien shall have a priority over all other liens and encumbrances on the premises except for the lien of taxes and assessments. 62. Pursuant to HMC (c), and in accordance with Administrative Code , the New York City Department of Finance ( DOF ) is responsible for billing owners for these charges by way of the Quarterly Statement of Account. Payment of an ERP charge is due on the date provided in the second Quarterly Statement of Account in which the charge is noticed pursuant to HMC See HMC (c). 63. Pursuant to HMC , any objection to an HPD charge must first be made to HPD in writing ( protest ) before the due and payable date of that charge. If a protest is not received within that time period, the property owner is precluded from challenging the charges either administratively or judicially. HMC states, as follows: Statement of account. Whenever the department has incurred expenses for the repair of a dwelling or for the elimination of any dangerous or unlawful conditions therein, pursuant to this article or any other provision of the administrative code or any other applicable provision of law, the department, its authorized representative, or the department of finance may send to the owner or his or her designee in the manner provided in section of the administrative code a statement of account with the expense incurred and a demand for payment thereof. If the owner does not notify the department in writing of his or her objection to the first statement of account containing such charge before the date that such charge becomes due and payable as provided in subdivision b of section of article eight of this subchapter, such owner may not of 44

20 in any subsequent judicial or administrative proceeding contest the expense contained in such statement. The department will only review such objections that are received by it in writing on or prior to the due and payable date for the charge provided on the second statement of account containing such charge. Objection Procedure 64. Pursuant to HMC and Section 17-03(h), Chapter 17, Title 28 of the Rules of the City of New York ( RCNY ), a written objection to a charge on a statement of account may not be based upon the lawfulness of the repair or other work done or, the propriety and accuracy of the expense for which a lien is claimed. HMC states in pertinent part: Validity of lien; grounds for challenge. a. In any proceedings to enforce or discharge the lien, the validity of the lien shall not be subject to challenge based on: (1) The lawfulness of the repair or other work done; or (2) The propriety and accuracy of the expense for which a lien is claimed, except as provided in this section. 65. Chapter 17, Title 28 of the Rules of the City of New York ( RCNY ) provides the rules pertaining to objections to charges enforced as tax liens pursuant to, inter alia, RCNY states, in pertinent part, as follows: Objection Procedure. *** (b) Unless otherwise stated in Administrative Code and these rules, (1) an owner, or (2) a mortgagee or lienor, whose mortgage or lien would have priority over the Department s lien if not for the provisions of , who receives of 44

21 2 This does not apply to the instant case. a statement of account pursuant to Administrative Code with a charge incurred pursuant to Administrative Code , , , (f)(8), (k), or may notify the Department in writing of his or her objection to such charge. (c) The statement date listed on the Department of Finance s billing application detail for a statement of account shall be presumptive evidence that such statement of account was mailed within five business days of the statement date to the person or entity registered with the Department of Finance. (d) All objections to a charge on a statement of account shall be submitted in writing or electronically. Each objection shall be addressed to the Department to the attention of the Research and Reconciliation Unit, 100 Gold Street, New York, N.Y or to (e) Each objection to a charge on a statement of account shall: (1) specify the charge objected to and the nature of such objection, and (2) include any documentation supporting the objection. Any charge without specific objections from an owner shall be considered undisputed. *** (g) Each objection to a charge on a statement of account shall be received by the Department prior to the due and payable date of such charge. Pursuant to Administrative Code , if an owner does not notify the Department in writing of his or her objection to such a charge before the due and payable date as indicated on the statement of account, the owner may not contest the charge in any subsequent judicial or administrative proceeding. (h) Unless otherwise stated in subdivision (c) 2 of Administrative Code , a written objection of 44

22 to a charge on a statement of account may not be based upon: (1) the lawfulness of the repair or other work done or, (2) the propriety and accuracy of the expense for which a lien is claimed. (i) Within a reasonable time after receipt of a written objection to a charge on a statement of account, the Department will make a determination based on all the documentation received from the objecting owner as well as the records of the Department. The Department will then inform the objecting owner of such determination in writing, including the reasons for that decision. (Emphasis added). 66. A Building Charge Report ( Charge Report ) available to the public at HPD s website, lists emergency repairs performed at a particular property, identified by open market order ( OMO ) number. 3 The Charge Report lists the OMOs for work orders created for the property in order to effectuate emergency repairs. A single OMO may have more than one charge associated with it. The Charge Report also contains the dates applicable charges stemming from OMOs were transferred to DOF, indicated under the column TRX/DOF. Powers and Duties of DOB 67. Pursuant to Section 643 of the City Charter, DOB is authorized to enforce the laws that govern, inter alia, the construction, alteration, maintenance, use, and occupancy of buildings in New York City. In addition, pursuant to City Charter 643, DOB is empowered to perform the City s functions relating to unsafe buildings and structures, including the power to remove or remedy unsafe conditions. 3 A copy of the Charge Report for the subject building is also annexed hereto as Exhibit B of 44

23 68. Administrative Code and set forth DOB s power to issue a stop work order whenever the commissioner finds that any building work is being executed in violation of the provisions of the Construction Codes, the 1968 building code, the zoning resolution or of any laws or rules enforced by the department, or in a dangerous or unsafe manner. RELEVANT FACTS 69. The instant proceeding concerns petitioner s challenge to charges arising from emergency work HPD conducted in 2015 at the four-story building located at 223 Ralph Avenue, Brooklyn, New York (also known as 359 Bainbridge Street) (Block: 1504, Lot: 1) (the subject building ). Specifically, pursuant to HPD s Emergency Repair Program, HPD provided fire watch/guard services at the subject building through a contractor. 70. The challenged emergency repair charges are under the following Open Market Order ( OMO ) numbers, for the following time periods, and are in the following amounts 4 : OMO# Fire watch period Invoiced Amount Total Charge (including administrative fees and sale tax) EF May 21, 2015 $15, $22, June 19, 2015 EG00981 June 28, 2015 $3, $5, July 4, The Total Charge amounts include administrative fees and sales tax, but do not include any payments made towards the amounts owed and also do not include interest that has accrued. 5 To the extent petitioners challenge the fire watch charges from July 3-4, 2015, that challenge is moot. While those charges were properly incurred, nevertheless, HPD is in the process of removing the charges for those two dates. Consequently, the Total Charge amount will be reduced from $5, to approximately $3, for OMO EG of 44

24 The Subject Building 71. Petitioner has been the owner of the subject building since at least August 14, 2014, a four-story building with seven residential units. A copy of the Property Registration Forms for for the subject building is annexed hereto as Exhibit C. 72. A chart below shows the configuration of the apartments in the subject building if entering from 359 Bainbridge Street: APT. 7 APT. 6 APT. 5 APT. 4 APT. 3 APT. 2 STORE APT In May 2015, the City received numerous complaints regarding, among other things, the safety and maintenance condition of the subject building: unresponsive management to repair issues, including bedbugs, defective windows, damages to the occupied units caused by ongoing construction in vacant units, improper construction procedures without proper tenant protection plan, excessive debris and dust in the public hall, and work performed without a permit (removal of existing electrical wiring). As a result, the subject building was added to a list of buildings to be monitored by the Tenant Harassment Prevention Task Force ( Task Force ) 6. Copies of a Department of Health letter, an HPD referral, and DOB Complaint Reports are attached hereto as Exhibit D. 6 More information about the Tenant Harassment Prevention Task Force is available at of 44

25 74. In fact, an assessment conducted by HPD s Division of Neighborhood Preservation on May 8, 2015 revealed that the subject building was found to be in fair minus condition with over five class B and C violations per dwelling unit and eighteen violations having been issued within the past two years. See HPD referral, Exhibit D. 75. In addition, apartments 5 and 7 of the subject building were found to be occupied, and the occupant in apartment 7 was observed to be a legally blind senior citizen. See id. 76. On May 21, 2015 an inspection was conducted by the Task Force, with HPD and DOB both present for the inspection. See generally DOB Affirmation, annexed hereto. HPD Inspection and Notices of Violation Issued to Petitioner on May 21, During the Task Force inspection at the subject building, HPD Inspector Courtenay Cyrus ( Inspector Cyrus ) observed immediately hazardous conditions. A complete rehabilitation of the subject building was underway and apartment 3 was missing all fire stopping and all interior walls, which were, as determined by Inspector Cyrus, compromising above occupied [apartments] 5 & 7. A copy of the HPD internal correspondence with the subject Task Force inspections is annexed hereto as Exhibit E. A DOB Inspector also observed a fire hazard for [apartment] #5 and #7. DOB Affirmation at 17 and Exhibit 2 annexed thereto. 78. As a result of Inspector Cyrus s observations, HPD issued Notices of Violation with ID Nos ( NOV 89 ) and ( NOV 86 ) (collectively, the subject NOVs ). NOV 89 contained violation number ( Viol 489 ) and NOV 86 contained violation number ( Viol 429 ), both class C immediately hazardous violations of HMC of 44

26 79. Viol 489 called on owner or other responsible party to: Properly repair with similar material the broken or defective fire retarding ceiling and interior walls throughout in the entire apartment located at apt 3, 2nd story, 1st apartment from south at west. A copy of NOV 89, containing Viol 489, instructions sent with the NOV, and a Certification of Correction form sent with the NOV are collectively annexed hereto as Exhibit F. 80. Because of the immediately hazardous conditions of apartment 3 posing a safety threat to the tenants of the occupied apartments, an immediate need for a fire guard was warranted. 81. NOV 29 indicated that the owner or other responsible party must provide fire guard [a.k.a. fire watch]. A copy of NOV 29, instructions sent with the NOV, and a Certification of Correction form sent with the NOV are collectively annexed hereto as Exhibit G. 82. On the face of the subject NOVs it stated that the violations must be corrected by June 5, 2015 and certified as corrected by June 10, Included on the back of the subject NOVs was a list of instructions as to how to certify correction electronically and manually. For manual submissions, it stated that a completed and signed copy of the Certification of Correction form, also enclosed, must be submitted to the HPD office of the Division of Code Enforcement in the borough in which the building is located. See Exhibits F and G. 7 These dates were the deadline for petitioner to avoid being subject to civil penalties pursuant to HMC (a) and the deadline to certify correction of the violation pursuant to HMC (f). HMC (f)(7) provides: Failure to file such certification of compliance shall establish a prima facie case that such violation has not been corrected of 44

27 83. On the same day as the Task Force inspection, May 21, 2015, HPD Inspector Cyrus contacted the HPD Special Enforcement Unit to request an emergency fire watch. HPD immediately requested a fire watch and attempted to verbally notify petitioner of the fire watch [by contacting the number provided on the Property Registration Form]. However, no one answered the phone and HPD was not able to speak with a representative of petitioner. Consequently, the HPD Emergency Services Bureau left a message. A copy of the correspondence of HPD s Special Enforcement Services Unit, Task Force Unit, and Division of Maintenance with subject 223 Ralph Avenue Bk is annexed hereto as Exhibit H. 84. On the same day, May 21, 2015, HPD retained Diamond Security Services ( Diamond Services ) to send a fire watch to the subject building. A fire watch was provided at the subject building from May 21, 2015 at approximately 2:30 p.m. until July 31, HPD opened seven Open Market Orders ( OMO ) for the charges associated with the fire watch services from May 21, 2015 to July 30, OMO EF21596 and OMO EG00981, which are the emergency work charges from May 21, 2015 to June 19, 2015 and June 28, 2015 to July 4, 2015, are challenged herein (the subject charges ). 8 See copy of Charge Report, Exhibit B. 86. On May 28, 2015, in accordance with HMC (a)(3)(ii), HPD served the subject NOVs by mail on Choice New York Management, Benjamin Bottner at 220 5th Avenue, Suite 1502, New York, NY, the registered managing agent. A copy of HPD business records showing NOV Mailing Address and Issue Date for NOV 89 and NOV 86 is 8 As referenced in the Charge Report, there are seven OMOs associated with the fire watch at the subject building from May 21, 2015 at 2:00 p.m. until July 31, See Charge Report, Exhibit B. OMO EF21596 and OMO EG00981 are the only ones challenged in the instant proceeding. The remaining five OMOs have yet to be transferred to DOF for billing of 44

28 annexed hereto as Exhibit I. See copy of the owner s Property Registration Forms for , Exhibit C. 87. Because HPD provided a fire watch at the subject building to immediately address Viol 429, on July 6, 2015 HPD dismissed Viol 429. See Exhibit I. The dismissal of Viol 429 did not mean that the immediately hazardous condition warranting a fire guard, i.e., the violating conditions of Viol 489 (see Exhibit F ), had been deemed corrected by that date. It only represents that HPD had taken necessary action to address the need for a fire guard by providing a fire guard. 88. Viol 489 was dismissed on December 6, 2016 pursuant to an HPD inspection on November 28, 2016, which found the violating condition that had led to the issuance of Viol 489 to be corrected. See Exhibit I. Challenged Open Market Orders: OMO EF21596 and OMO EG For OMO EF21596, the work period was from May 21, 2015 to June 19, The Charge Report sets forth the work for OMO EF21596 at the subject building, in relevant part, as follows: [P]rovide fireguard for above mentioned building starting on 5/21 and ending on 6/19. [R]emove all work related debris. See Charge Report, Exhibit B. 90. For OMO EG00981, the work period was from June 28, 2015 to July 4, Specifically, the Charge Report sets forth the work for OMO EG00981 at the subject building, in relevant part, as follows: [P]rovide fireguard for the above mentioned building starting on 9 The OMO associated with the work period from June 20, 2015 to June 27, 2015 is OMO EG00980, which has yet to be transferred to DOF for billing. See footnote 8 and Charge Report, Exhibit B of 44

29 6/28/2015(am) - 7/4/2015 (midnight). Remove all work related debris. See Charge Report, Exhibit B. Timesheets and Invoices Submitted to HPD for OMO EF Diamond Services submitted an invoice requesting payment of $16,020.00, an amount of $22.25 per hour for 720 hours. However, the invoice states that Diamond Services performed work for OMO EF21596 from May 21, 2015 at 2:30 p.m. to June 19, 2015 at 2:30PM, a total of 696 hours. A copy of the Diamond Services Invoice for OMO EF21596 is annexed hereto as Exhibit J. 92. Diamond Services sent one copy of timesheets to HPD for OMO EF Copies of these timesheets are annexed hereto as Exhibit K. 93. Diamond Services also submitted another copy of timesheets to HPD for OMO EF21596 with the first page of the timesheets indicating the correct OMO. The timesheets approved for payment for OMO EF21596 indicate that a fire watch was in place for that OMO from May 21, 2015 at 2:30 p.m. to June 19, 2015 at 2:30PM. Copies of the timesheets for OMO EF21596 are annexed hereto as Exhibit L. 94. Upon an HPD audit of the timesheets, HPD reduced the invoiced amount and paid Diamond Services $15, for 694 hours of fire watch services Although the timesheet states the OMO EG00981, as evidenced by the work dates, the timesheets are for OMO EF This version of timesheets was reviewed by the Research and Reconciliation Unit before making its protest determination for OMO # EF This number was arrived at by adding the Total Hours listed by contractor on the first page of the timesheets, 88 hours listed on the second page of the time sheets (removing 9 hours from the 97 Total Hours at the end of the second page due to May 24 from 2 to 11PM already being listed on the first page), the 120 Total Hours listed by contractor on the third page of the timesheets, the 96 Total Hours listed by contractor on the fourth page of the timesheets, the 96 Total Hours listed by contractor on the fifth page of the timesheets, the 96 Total Hours listed by contractor on the sixth page of the timesheets, the 88 Total Hours listed by contractor on the of 44

30 95. Thereafter, HPD approved the emergency work charge and forwarded the billing information to DOF for collection. DOF, in turn, billed petitioner a total of $22, for the emergency work to ($15, for the 694 hours of work Diamond Services was paid for, $7, for the applicable sales tax and the administrative fees). These charges appeared for the first time on petitioner s November 20, 2015 Statement of Account. See Petitioner s DOF quarterly statements of account dated November 20, 2015 and February 19, 2016, copies of which are annexed hereto as Exhibit M. That Statement of Account notified petitioner of HPD s procedures for protesting the HPD charge: You may protest any Emergency Repair/Demolition Charge... by filing an objection in writing with the Department of Housing Preservation and Development (HPD). Any such objection must be filed prior to the date that the charge becomes due and payable, as provided in HMC section For information on filing an objection, please call HPD at or HPD at hpderp@hpdnyc.gov. The above mentioned charges are enforced as tax liens on real property under article 8 of subchapter 5 of the HMC. 96. The charge was due by April 1, 2016, i.e., petitioner had until April 1, 2016 to challenge that charge as that is the due and payable date for the charge provided on the second statement of account containing such charge. HMC See id. Timesheets and Invoices Submitted to HPD for OMO EG Diamond Services submitted an invoice requesting payment of $3,738.00, an amount of $22.25 per hour for 168 hours. A copy of the Diamond Services invoice for OMO EG00981 is annexed hereto as Exhibit N. 98. Diamond Services also submitted timesheets to HPD for OMO EG They indicated that fire watch was provided from June 28, :00 a.m. to the end of July 4, seventh page of the timesheets, and 6.5 hours contained on the eighth page of the timesheets (from 8AM to 2:30PM on June 19, 2015). See Exhibit L of 44

31 2015, at midnight, a total of 168 hours. 12 Copies of the timesheets for OMO EG00981 are annexed hereto as Exhibit O. 99. HPD accordingly paid Diamond Services $3, for 168 hours of fire watch services. See also Charge Report, Exhibit B Thereafter, HPD approved the emergency work charge and forwarded the billing information to DOF for collection. DOF, in turn, billed petitioner a total of $5, for the emergency work to ($3, for the work billed by Diamond Services, $1, for the applicable sales tax and the administrative fees). See Petitioner s DOF quarterly statements of account dated November 20, 2015 and February 19, 2016, Exhibit M. These charges appeared for the first time on petitioner s November 20, 2015 Statement of Account. That Statement of Account notified petitioner of HPD s procedures for protesting the HPD charge: You may protest any Emergency Repair/Demolition Charge... by filing an objection in writing with the Department of Housing Preservation and Development (HPD). Any such objection must be filed prior to the date that the charge becomes due and payable, as provided in HMC section For information on filing an objection, please call HPD at or HPD at hpderp@hpdnyc.gov. The above mentioned charges are enforced as tax liens on real property under article 8 of subchapter 5 of the HMC The charge was due by April 1, 2016, i.e., petitioner had until April 1, 2016 to challenge that charge as that is the due and payable date for the charge provided on the second statement of account containing such charge. HMC See id. 12 Petitioner alleges that the OMO was only until the end of the day on July 3, See Petition at 23. However, the invoice and timesheets clearly indicate that the OMO included all of July 4, 2015, until it turned midnight at the end of July 4, In any event, HPD is in the process of removing the charge for July 4, 2015, so the challenge is moot of 44

32 Petitioner s Protests to OMO Charges 102. On December 17, 2015, HPD s Research and Reconciliation Unit received a telephone inquiry from petitioner s then attorney Avi Strauss, Esq. regarding the subject charges. A copy of the telephone inquiry record is annexed hereto as Exhibit P In response, by letters dated December 18, 2015, HPD provided invoices for the subject charges and informed petitioner that if it intended to protest the subject charges, it must complete the enclosed protest form [Emergency Repair Charge Protest Form] and submit the form along with any supporting documents to the HPD Research and Reconciliation Unit. Copies of HPD s December 18, 2015 letter, Fiscal Vendor Invoice Detail Sheet, and blank protest form for OMO EF21596 are annexed hereto as Exhibit Q. Copies of HPD s December 18, 2015 letter, Fiscal Vendor Invoice Detail Sheet, and blank protest form for OMO EG00981 are annexed hereto as Exhibit R Petitioner submitted, through its attorney, protests to HPD regarding the subject charges on the protest forms that it had received from HPD. By Emergency Repair Charge Protest Forms, dated March 31, 2016, petitioner claimed there was no owner notification because of improper service and a posting of a defective notice that failed to describe the subject premises by HPD, referencing inapplicable Administrative Code sections, and attached an affidavit of Seth Weissman, a Manager for petitioner. Petitioner also claimed the violation was corrected by attaching an affidavit of Gary Quirke, a project manager previously employed by A-1 Mabetex (the contractor retained by petitioner to perform work to correct NOV 89 at the subject building), and an affirmation of Simon W. Reiff, Esq. A copy of petitioner s HPD protest forms with attached affidavits and affirmation, excluding their exhibits, are annexed hereto as Exhibit S; see also petitioner s Exhibit of 44

33 105. Though the affidavits and affirmation alleged that the violating conditions were corrected, petitioner never certified correction of the relevant violations and no copies of a paid invoice from the contractor and proofs of payment for services were submitted with the protests. The affidavits and affirmations merely alleged that the contractor never sent [petitioner] a separate invoice for installation of fire-rated sheetrock in Apartment 3 in May 2015 and that they were unaware of any unpaid balance for the services rendered by A-1 Mabetex[.] Affidavit of Seth Weissman 8 and affirmation of Simon W. Reiff, Esq. 8. Furthermore, the affidavit of Gary Quirke stated that he does not have the invoice from A-1 Mabetex because [he] is no longer [] employed by them[.] Affidavit of Gary Quirke 8. HPD s Denial Determinations Issued April 28, By letters dated April 28, 2016, HPD denied petitioner s protest of the subject charges. A copy of the April 28, 2016 denial letter for OMO EF21596 is annexed hereto as Exhibit T; a copy of the April 28, 2016 denial letter for OMO EG00981 is annexed hereto as Exhibit U In response to petitioner s protest, the April 28, 2016 denial letters stated that, pursuant to a joint inspection by various city agencies on May 21, 2015, it was determined that fire safety had to be addressed. Consequently, a class C immediately hazardous violation was issued to provide for a fire watch and HPD procured Diamond Service to provide a fireguard in the subject building immediately. See id. The denial letter for OMO EG00981 stated that in addition to issuing the NOV, HPD s Emergency Service Bureau attempted to call the owner/managing agency to provide additional notice of the violation and impending emergency repair. See Exhibit U of 44

34 108. The April 28, 2016 denial letters further stated that the NOV was mailed to the validly registered managing agent Benjamin Bottner, Choice New York Management, 220 Fifth Avenue, New York, NY See Exhibits T and U The April 28, 2016 denial letter for OMO EF stated that under this OMO, fireguard services were provided from May 21, 2015 through June 19, The denial letter stated that though Diamond Services invoiced for a total of 720 hours for this period, after HPD s review of the timesheets provided, 694 hours were paid for. See Exhibit T The second April 28, 2016 denial letter, for OMO EG00981, stated that under this OMO, fireguard services were provided from June 28, 2015 through July 4, 2015, for a total of seven days (24 hours/day), a total of 168 hours. At an hourly rate of $22.50, the total amount incurred was $3, See Exhibit U. See Exhibits T and U Both April 28, 2016 denial letters also stated, in pertinent part, as follows: Pursuant to New York City Housing Maintenance Code ( HMC ) all expenses incurred by the Department to correct conditions in dwellings that are dangerous to human life, health, or safety, shall constitute a debt recoverable from the owner and a lien upon the building and lot and upon the rents and other income thereof. Housing Maintenance Code prohibits challenges to the validity of the lien based on the lawfulness and the repair or other work done as well as the propriety and accuracy of the items of expense for which a lien is claimed. For the above-mentioned reasons, your protest of the emergency repair charge is denied and the charge placed against the above referenced property is upheld of 44

35 Other HPD Notices of Violation Issued to Petitioner on July 13, Although not directly challenged herein, HPD issued two more NOVs subsequent to NOV 89 and NOV 29 relating to fireproofing materials, after observing that immediately hazardous conditions continued to exist On July 13, 2015, HPD Inspector Jeffery Richards conducted an inspection at the subject building and the findings of his inspection resulted in the issuance of a Notice of Violation with ID Number ( NOV 42 ), which contained two violations of HMC , both class C immediately hazardous violations: Violation Numbers ( Viol 765 ) and ( Viol 766 ). Viol 765 ordered the proper repair of broken or defective fire rated materials at the ceilings in the entire apartment located at apt. 2 and Viol 766 ordered that a fire watch guard be provided for all stories of the subject building. A copy of NOV 42, which contains both violations, is annexed hereto as Exhibit V Accordingly, Diamond Services continued to send a fire watch to the subject building. See Charge Report, Exhibit B On July 15, 2015, in accordance with HMC (a)(3)(ii), HPD duly served NOV 42 by mail on Choice New York Management, Benjamin Bottner at 220 5th Avenue, Suite 1502, New York, NY, the registered managing agent. A copy of HPD business records showing NOV Mailing Address and Issue Date for NOV 42 is annexed hereto as Exhibit W. See also copy of the owner s Building Registration Forms for , Exhibit C. The Instant Proceeding 116. By Notice of Petition and Petition, dated August 22, 2016, petitioner commenced the instant Article 78 proceeding, seeking an Order and Judgment, inter alia, (i) reversing and/or annulling the HPD determinations, dated April 28, 2016, denying petitioner s of 44

36 protests of the subject emergency work charges (OMO EF21596 and OMO EG 00981), the expenses incurred by HPD for providing a fire watch at the subject building from May 21, 2015 to June 19, 2015 and June 28, 2015 to July 4, 2015; (ii) directing removal from petitioner s tax bills for the subject building the subject emergency work charges plus any interest and penalties. See Petition at Wherefore Clause. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 117. HPD s determination to deny petitioner s protest and uphold the charges for the expenses HPD incurred to provide fire guard services at the subject premises was reasonable and rational and in all respects conforms with the applicable statutes, laws, and regulations. Administrative agencies enjoy broad discretionary power when making determinations on matters they are empowered to decide. The arbitrary and capricious standard is not a demanding one. Essentially, it requires only that a final agency determination be reasonable and supported by the record taken as a whole. Also, it is well-settled that a reviewing court should not examine the facts de novo or substitute its own judgment for that of the administrative agency HPD s denial of petitioner s protests and determination to uphold the emergency work charges was reasonable and rational because emergency work was performed as a result of dangerous conditions observed by City. Pursuant to Administrative Code and , any expense incurred by HPD in performing emergency work at a property is a debt recoverable from the owner and a lien upon the land. Administrative Code provides that [i]n any proceedings to enforce or discharge the lien, the validity of the lien shall not be subject to challenge based on: (1) the lawfulness of the work done; or (2) [t]he propriety and accuracy of the expense for which a lien is claimed. Title 28 RCNY also provides the same limitations on the basis of a challenge to HPD charges. It provides that of 44

37 petitioner may not challenge the lawfulness or accuracy of the emergency work charges in a protest at HPD or subsequent proceeding. As petitioner challenged the emergency work charges on grounds that are expressly prohibited by statute, HPD s determinations to deny petitioner s protests were rational and reasonable Moreover, HPD s denial of petitioner s protests were not arbitrary, capricious, an abuse of discretion, an error of law, or in violation of lawful procedure. HPD issued its determinations in compliance with the procedure set forth in 28 RCNY 17-03(i). These determinations were rational and reasonable, based upon HPD s review of the documentation submitted by the petitioner and the administrative record, which showed that HPD issued violations based on dangerous conditions observed, took necessary remedial action to protect public safety, and billed the owner for the expenses it incurred pursuant to HMC , , and A. Allegations of Improper Service of the Notices of Violation 120. Petitioner claimed that HPD failed to serve its Notices of Violation on the owner and registered managing agent pursuant to Administrative Codes (a)(3)(i), (a)(3)(ii), and (c). However, it appears that petitioner was referring to Notices of Violation issued by DOB and not HPD. See affidavit of Seth Weissman at 3-4 annexed to petitioner Emergency Repair Charge Protest Forms, Exhibit S. The Notices of Violation referenced in the affidavit of Seth Weissman are those issued by DOB and not HPD. See generally DOB Affirmation On the other hand, the Notices of Violations issued by HPD based on conditions observed on May 21, 2015 were NOV 89 and NOV 86. NOV 86 stated that a fire guard must be provided at the subject building, which was necessitated by the class C of 44

38 immediately hazardous violation cited in NOV 89, i.e., Viol 489. On May 28, 2015, HPD properly served NOV 89 and NOV 29 by mail on Choice New York Management, Benjamin Bottner at 220 5th Avenue, Suite 1502, New York, NY, the registered managing agent pursuant to HMC (a)(3)(ii). See HPD business record, Exhibit I and the Property Registration Forms for , Exhibit C Consequently, in its April 28, 2016 determinations, HPD stated that it issued Viol 429, a class C immediately hazardous violation, calling for a fire watch to be provided. The April 28 denial determinations also stated that the NOV was mailed to Benjamin Bottner, Choice New York Management, 220 Fifth Avenue, New York, NY 10001, who was the validly registered managing agent on the Property Registration Forms for See Exhibit C. This is in accordance with HMC (a)(3)(ii), which provides that if service is to be made on a managing agent of a multiple dwelling, HPD may do so by mailing a copy thereof to the latest business or residence address of such managing agent set forth in any such registration statement or designation filed by the owner of such dwelling Furthermore, petitioner s claim regarding a post[ing] of a defective notice that failed to describe the subject premises appears to have been in reference to a Stop Work Order, which was issued by DOB and not HPD and is not related to the HPD mailing of Notices of Violations. See affidavit of Seth Weissman at 16 included with Petitioner s Emergency Repair Protest Forms, Exhibit S. In any event, as stated in the DOB Affirmation, it is clear that petitioner was on notice of the Full Stop Work Orders irrespective of the inadvertent typographical error. See DOB Affirmation at of 44

39 B. Claim that Violations were Corrected by Owner 124. Petitioner never claims that it provided fire watch services at the subject building. Rather, petitioner repeatedly claimed that it immediately installed sheetrock and new fire-stopping material in apartment 3, which is to purportedly remedy the violating conditions in NOV 89. See Petition 13, and affidavit of Seth Weismann at 18, affidavit of Gary Quirke at 5, and affirmation of Simon Reiff at 6, Exhibit S. However, it fails to state the date of this immediate correction. The correspondence and photos allegedly depicting the correction at apartment 3 of the subject building are not dated. Similarly, petitioner also claims that it made numerous attempts to contact HPD after immediately installing the sheetrock materials, it merely claims that it contacted HPD, made daily pleas to HPD without specifying any dates, people, division or telephone numbers. See affidavit of Seth Weissman at 9, affidavit of Gary Quirke at 9, and affirmation of Simon Reiff at 34, Exhibit S. The affidavit of Gary Quirke mentions that on May 28, 2015 [he] [is] informed Mr. Weissman ed those photographs to New York City Council Member Robert Cornegy and his Chief of Staff, Stefani Zinerman. Affidavit of Gary Quirk at 6, Exhibit S. However, as aforementioned these photographs and do not contain any date. 13 Furthermore, contacting a New York City Council Member is not the proper procedure to remedy the immediately hazardous conditions. Pursuant to the instructions on the back of the subject NOVs, the petitioner should have certified correction to HPD. In fact, petitioner never certified correction of the violations contained in the subject NOVs. 13 On multiple occasions, including by on November 4, 2016, respondent s counsel requested petitioner s counsel to provide new copies of photographs and the that indicate the dates on which they were taken and the sent, but have not received anything to date of 44

40 125. Even assuming petitioner did immediately correct the violating conditions in NOV 89 on or before May 28, 2015, without DOB job application approval, this would have been work contrary to the Full Stop Work order issued by DOB on May 21, 2015 and, thus, illegal. See DOB Affirmation at The Full Stop Work orders were issued because of work contrary to DOB approved plans at the time. See DOB Affirmation at 14 and 28 and exhibits 1 and 9 annexed thereto. In fact, as DOB records reflect, only on June 22, 2015 did petitioner obtain DOB approval on its job application to perform the work to remedy the violating conditions at the subject premises. See DOB Affirmation at 35. Thus, any work performed after the issuance of the Full Stop Work Orders on May 21, 2015 but before DOB approving the job application on June 22, 2015, would have been illegal. See id at 36 and 43. Thus, petitioner is essentially alleging that it performed illegal work. See affidavit of Seth Weismann at 18, affidavit of Gary Quirke at 5, and affirmation of Simon Reiff at 6, Exhibit S The only work that petitioner could have legally performed to remedy the violations on or before May 28, 2015 was to provide a fire watch. See also DOB Affirmation 36 and 43. Petitioner never claims that it ever provided fire watch services at the subject building, which necessitated HPD providing a continuous fire guard for numerous weeks. See generally Petition and exhibits; answer and exhibits Thereafter, on July 2, 2015, DOB inspector Hemmings inspected the subject building and observed that fire proofing repaired/replaced per plans 6/22/15 for Job# PAA 6/22/15 for structural work/tennant [sic] protecti[on.] See DOB Affirmation at 31 and exhibit 10 annexed thereto. DOB rescinded the Full Stop Work Order on July 2, See DOB Affirmation at of 44

41 129. Lastly, petitioner also failed to submit with its protests the required copies of a paid invoice from the contractor along with proof of payment and a copy of the violations certification of correction that would show the date any fire watch services were provided. As mentioned above, petitioner never claimed that it ever provided fire watch services but rather stated that the contractor A-1 Mabetex performed the sheetrock and fire-stopping material installation work and never sent us a separate invoice or that it do[es] not have the invoice from A-1 Mabetex because I no longer am employed by them. See affidavit of Seth Weismann at 8, affidavit of Gary Quirke at 5, Exhibit S. C. Allegations Challenging the Accuracy of the Emergency Work Charges 130. As stated above, Administrative Code and 28 RCNY provides that the validity of the charges cannot be subject to challenge based on the propriety and accuracy of the expense. Notwithstanding this express prohibition, HPD reviewed the administrative record, including violations issued, emergency work performed, invoices and timesheets submitted by Diamond Services and stated in its April 28, 2016 determinations the number of hours that HPD had determined Diamond Services was entitled to payment for in relation to the subject OMOs. For OMO EF21596, HPD stated that the fireguard services occurred from May 21, 2015 through June 19, 2015 and HPD reduced the hours to be paid from 720 to 694. See Exhibit T. With respect to OMO EG00981, the April 28, 2016 determination stated that the fireguard services occurred from June 28, 2015 through July 4, 2015 and for a total of 168 hours. It also stated that with an hourly rate of $22.25, the total amount paid to Diamond Services was $3, See Exhibit U. HPD had also previously provided Fiscal Vendor Invoice Detail Sheets for the subject OMOs in response to petitioner s telephone inquiry on December 17, See Exhibits Q and R of 44

42 131. Petitioner s allegations challenging the accuracy of the calculation of the charges is also wrong. For OMO EF21596, Diamond Services submitted an invoice indicating that fire watch service was provided from May 21, :30 p.m. to June 19, :30 p.m for that OMO. After a review of the timesheets submitted by Diamond Services, HPD adjusted the charges and paid Diamond Services $15,441.50, i.e., $22.25 per hour for 694 hours and billed petitioner accordingly. See Charge Report, Exhibit B and supra 94 and footnote For OMO EG00981, Diamond Services submitted an invoice indicating that fire watch service was provided from June 28, :00 a.m. to July 4, 2015, 12:00 a.m. (meaning 12 a.m. of July 5, 2015 as apparent from the timesheets) for that OMO, which was also a total of 168 hours (one full week). As such, HPD paid Diamond Services $3,738.00, i.e., $22.25 per hour for 168 hours. See Exhibit B and supra Therefore, as HPD s April 28, 2016 determinations upheld the subject charges pursuant to procedure set forth in 28 RCNY 17-03(i), by providing its reasons for the determination based upon a review of the administrative record, the April 28, 2016 determinations are reasonable, rational and should be upheld by this Court of 44

43 WHEREFORE, respondent respectfully requests that the Court issue an order, dismissing the relief sought in the petition in its entirety and for such other relief as the Court may deem just, proper and equitable. Dated: New York, New York January 10,2017 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Respondent 100 Church Street New York, New York (212) 2607 BY: GB G {' of 44

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