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WELCOME TO THE OATH HEARINGS DIVISION: TEN THINGSOWNERS MUST KNOW ABOUT DOB AND FDNY SUMMONSESBy Orie ShapiroRespondents in Environ mental Control Board(“ECB”) proceedings havelong complained aboutthe confounding formatof the notice of violation,and the chaotic scene on the day ofthe hearing. (The City recently beganreferring to ECB as the OATH HearingsDivision and has revised the Notice ofViolation form — which it now calls asummons.)This article strives to clarify ECB practiceby presenting the following ten cardinalprinciples that every owner1 should knowwhen receiving a summons issued by theNYC Department of Buildings (“DOB”)or the Fire Department (“FDNY”), twoof the agencies whose violations areheard by ECB. 2 Respondent can be held liableeven if it did not create or causethe condition. The fact that anowner did not cause the underlyingcondition does not insulate him fromresponsibility or liability. A partywho owns or controls the premisesis generally responsible for Codecompliance at the premises, even if thecited condition was caused by a tenantor other third party. Thus, for example,owners have been held liable if a tenantillegally leases out space on a shortterm basis, or occupies his apartmentin a manner which contravenes theCertificate of Occupancy. The ECB isnot concerned whether a tenant may becontractually responsible to the ownerto correct the condition. Rather, itwill impose liability on the owner andlet the owner seek reimbursement orindemnification in another forum.Please note that, even in the unlikelyevent that a tenant is willing to besubstituted in as respondent in placeof the cited owner, the hearing officercan and often does deny an applicationfor substitution. A Respondent can be held liable evenif it did not know of the condition.Although “ignorance is bliss”, it isultimately not a defense. Thus, forexample, in the instance of unlawfultransient occupancy, the mere fac8tthat an owner had no idea that itstenant leased out an apartment on ashort term basis would not preventDOB from citing, and ECB fromfining, the owner. A DOB violation can remain openeven if Respondent has paid thefine. In order to remove a DOBviolation which was sustained at ECB,Respondent must pay the fine andcertify correction by providing thenecessary documentation to DOB forthe agency’s approval. Until such timeas both components are completed,the violation remains open. A DOB violation can remain openeven if Respondent has correctedthe condition. DOB may issue afollow-up summons if Respondenthas not certified correction. Thus,Respondent must not only correctthe violative condition, but also takethe affirmative step of certifyingcorrection in order to remove theviolation of record and to prevent theissuance of additional summonses. Even if an initial fine is relativelysmall, the potential penalty canescalate quickly. A Respondentmay be tempted to pooh-pooh theimportance of a summons based onthe relatively small sum of moneyinvolved. However, the failure to takesuch a summons seriously could havesignificant economic implications. Forexample, a failure to certify correctionof certain DOB violations subjects theRespondent not only to the initial fineimposed at ECB, but also a separateinternal DOB civil penalty. The DOBmay refuse to issue permits withregard to the building until the civilpenalty is paid. In addition, DOBmay periodically issue additionalsummonses for failure to complywith the Commissioner’s order, withescalating penalties to be assessed byECB.Similarly, fines imposed for FDNYviolations escalate dramatically--theCity interprets repeat violations asrecidivist behavior warranting higherpenalties. The issuing agency meets itsburden of proof at the ECB hearingby simply submitting the swornsummons. Once the summons (noticeof violation) is presented at the hearing,the issuing agency is not required toprovide any additional documentationor testimony to buttress its case. Itbecomes the Respondent’s obligationto disprove the factual or legalallegations, or present a proceduralbasis for dismissal.The Building and Fire Codes define the term “owner” broadly, including, for example, those in control of the subject premises. The term “respondent”refers to the person or entity cited in the summons.2Despite the recent name change, the tribunal is still generally referred to as “ECB” and will be referred to as such in this article.15

continued from page 5 Respondent’s obligation to correctthe condition begins with service ofthe Summons, not a finding of guilt.The ECB has held that Respondentis obligated to correct the conditioneven before Respondent has beenfound guilty at a hearing. Thus, theDOB summons essentially has twocomponents: a) an order compellingthe correction of a condition; and b)a notice setting forth the date of thehearing to determine whether thecondition actually exists. Adjourningthe ECB hearing generally does notprovide Respondent with additionaltime to achieve compliance. Respondentcan face additional violations (andin some instances daily penalties)for failure to comply with the DOBOrder   — even before the Summonscontaining the Order is sustained. Theobligation to correct is rescinded if theSummons is dismissed at the hearingor upon approval of the Certificate ofCorrection. Respondent can be cited underdifferent Code sections for thesame act or omission and therebyface multiple fines. Issuing agenciestend to serve what appear to beduplicative Summonses. As a generalrule, as long as the Summonses citedifferent Code sections, Respondentcan be cited more than once and facemultiple fines even if the allegationsrelate to the same act or omission. Forexample, a Respondent can be chargedwith permitting a nuisance, as wellas failing to comply with an Orderto remove said nuisance, since theallegations would be predicated upondifferent Code sections. Respondent can be subject tocriminal prosecution even thoughit already paid an ECB fine. Thereis a Criminal Court Part dedicated tohearing FDNY and DOB Summonscases. Those cases are generally resolvedthrough a guilty plea to a lesser chargeof an administrative violation--not acrime--and the agreement to pay a fine.The issuing agencies occasionally citean owner in both venues for what isessentially the same charge. Default lies not in our stars, but inourselves. Regardless of the perceivedseverity or insignificance of aSummons, it is important to appear orbe represented at ECB on the hearingdate. As the old saying goes, “showingup is half the battle”. The ECB finestructure is such that a penalty fordefaulting on a violation far exceedsthe potential fine for being foundguilty.Space does not permit a more extensiveexplanation of the intricacies of ECBpractice, but it is hoped that this summarywill begin to assist in navigating themurky waters of ECB. ExperiencedFDNY counsel should be consulted onany such Summons or related matter.Orie Shapiro is a partner in BBWG’sAdministrative Department. For moreinformation about addressing DOB andFDNY violations please contact Mr. Shapiro atoshapiro@bbwg.com.6

COURTS REQUIRE STRICT COMPLIANCE WHENBRINGING A HOLDOVER PROCEEDINGBy Daniel T. PodhaskieIn la nd lord-tena ntproceed i ngs, even aminor deviation fromstrict compliance withservice and filing require ments of the Real Property Actions andProceedings Law (“RPAPL”) can result inthe dismissal of an otherwise meritoriousaction. To appreciate the importance ofsuch strict compliance, an understandingof the service and filing mandates of theRPAPL, as applied by the housing courts,is required.The RPAPL has specific requirementsfor how a landlord must serve and filethe notice of petition and petition whenbringing a holdover proceeding. RPAPL§733(1) requires the notice of petitionand petition be served at least five, butnot more than 12, days before the petitionis noticed to be heard. In interpretingthis statute, Courts have continuouslyrequired strict compliance with theserules. Two recent cases illustrate that alandlord’s failure to comply with theseprerequisites, by even the slightest ofmargins, will trigger dismissal of theholdover proceeding.In 1215 Realty v. Khan, a landlordcommenced a chronic non-paymentholdover proceeding. The petitionalleged that the tenant consistently andchronically paid his rent late. This forcedthe landlord to commence numerousnon-payment proceedings to collectrent. This time, however, rather thanbring a non-payment proceeding, thelandlord terminated the tenancy andbrought a holdover proceeding. Aftertermination of the tenancy, the landlordserved the notice of petition and petitionby conspicuous place service. The firstservice attempt was on October 29,2015, at 8:52 p. m., the second attempton October 30, 2015 at 2:09 p. m., andmailings by regular and certified mailon October 31, 2015. The petition wasnoticed to be heard on November 4,2015, and the landlord filed proof ofservice in the housing court clerk’s officeon November 2, 2015.The tenant moved to dismiss and arguedthat service was not proper under RPAPL§733(1) since the petition was filed toolate  — only two days before it was noticedto be heard, which was less than the fivedays required by statute. The landlord, inopposition to the tenant’s motion, arguedthat the Court can and should overlookany irregularities in commencementof the proceeding since the tenant wasnot prejudiced. The (Bronx County)Court granted the tenant’s motion anddismissed the petition. The Court heldthat, since there was only two daysbetween completion of service and thescheduled Court date, the landlord hadfailed to comply with RPAPL §733(1) ;the Court held that: “a landlord’s failureto complete service at least five days priorto the date the petition is noticed to beheard, requires dismissal of the petition.”The Court also held that it could notoverlook the landlord’s non-compliance,and that there must be strict compliancewith the statutory requirements to givethe Court jurisdiction.A similar decision was reached in N. Y.City Housing Auth. v. Goldman. In this(Bronx County) holdover proceeding,landlord alleged that the respondent wasa licensee and his right to possessionof the apartment terminated when thetenant of record passed away. (A licensee,as opposed to a tenant, is a person inpossession of the premises by permissionof a former or prior tenant and does nothave any landlord-tenant relationshipwith the landlord.) The petition wasnoticed to be heard on June 19, 2016 andthe affidavit of the process server statedthat service was attempted on June 3,2016 and June 4, 2016. The petition wasmailed on June 4, 2016, and filing withthe Clerk was completed on June 5, 2016.Respondent moved to dismiss, arguingthat the landlord failed to follow themandates of RPAPL §733 by servingthe petition too early. The landlordacknowledged that the petition mighthave been served and filed too early, butargued that the Court could disregardany technical defect. Nevertheless, theCourt agreed with the Respondent anddismissed the petition. The Court heldthat summary proceedings require strictcompliance with the requirements ofRPAPL §733, and, since the petitionwas served more than 12 days prior tothe noticed date, the petition must bedismissed.When confronted with the possibilityof bringing a holdover proceeding, alandlord should consult with experiencedcounsel and be sure that all requiredsteps are properly taken to serve timely arespondent (whether a tenant or licensee)with the notice of petition and petition,and that the petition is timely filed.Daniel T. Podhaskie is an associate in the Firm’sLitigation Department, and may be contactedfor more information on holdover proceedingsand related matters at dpodhaskie@bbwg.com.7

CO-OP CONDO CORNERBy Aaron ShmulewitzAaron Shmulewitz heads the Firm’s co-op/condo practice, consisting of more than 300 co-op and condo boardsthroughout the City, as well as sponsors of condominium conversions, and numerous purchasers and sellers of coop and condo apartments, buildings, residences and other properties. If you would like to discuss any of the casesin this article or other related matter, you can reach Aaron at 212-867-4466 or (ashmulewitz@bbwg.com).TENANT COOKING 90 MEALS PER WEEK INSECOND-FLOOR APARTMENT FOR COMMERCIALSALE OFF-SITE, WITHOUT A GREASE TRAPAND FIRE SUPPRESSION SYSTEM, NOT A LEASEVIOLATION OR NUISANCE121 Irving MGM LLC v. Perez Civil Court, Kings County,Landlord & Tenant Part(COMMENT—While not involving a co-op or condo,this case is instructive. The Court premised its rulingon the fact that there were no violations of record,no evidence of nuisance, and the tenant had beenengaged in this practice for 24 years without a fire.Perhaps most telling as to the Court’s mindset,the Court emphasized that the tenant was a hardworking immigrant single mother.)SUCCESSFUL BIDDER AT CO-OP FORECLOSURESALE ENTITLED TO NEW STOCK CERTIFICATESAND PROPRIETARY LEASES IN ITS NAMEARSR Solutions, LLC v. 304 East 52nd Street HousingCorporation Appellate Division, 2nd Department(COMMENT—The Court held that the co-op had nostanding to challenge the ability of the successfulbidder to compel such issuance.)COMMERCIAL TENANT IN CONDO BUILDING NOTCONSTRUCTIVELY EVICTED BY SCAFFOLDINGERECTED AT FIRST FLOORThe Board of Managers of The Saratoga Condominiumv. Shuminer Appellate Division, 1st Department(COMMENT—The Court awarded the condo 750,000 in lost rent that the tenant had tried toavoid paying, emphasizing lease provisions favorableto the condo which barred the claims and defensesadvanced by the tenant.)CO N DO C A N NOT BRING HO L DOV ERPROCEEDING AS AGENT OF UNIT OWNERAGAINST UNIT OWNER’S LICENSEEThe Board of Managers of The J Condominium v.Tornabene Appellate Term, 2nd Department(COMMENT—The condo had relied on a commoncondo bylaw provision authorizing precisely such aproceeding. The Court held that such provision wastrumped by the RPAPL, which does not authorizesummary proceedings by agents of owners.)FORMER CO-OP BOARD MEMBER HELD INCONTEMPT FOR VIOLATING INJUNCTION BYDISCLOSING ATTORNEY-CLIENT COMMUNI CATIONS TO CO-OP’S LITIGATION ADVERSARYBoard of Directors of Windsor Owners Corp. v. PlattAppellate Division, 1st Department(COMMENT—Unauthorized disclosure of privateBoard communications and information is agrowing problem, made easier by advances ine-communications. This former Board member actedfoolishly, apparently out of vindictiveness, possiblyvoiding any D&O coverage she may once have had.)8

HOA HA S AU THO RI T Y TO PERFO RMLANDSCAPING SERVICES TO FRONTS OFMEMBERS’ HOMES, AND TO CHARGE COSTS TOMEMBERSMinkin v. Board of Directors of The Cortlandt RidgeHomeowners Association, Inc. Appellate Division, 2ndDepartmentCO-OP SHAREHOLDER ENTITLED TO LICENSE FEEFOR ACCESS BY ADJOINING BUILDING OWNERFOR REPAIR PURPOSESVan Dorn Holdings, LLC v. 152 W. 58th Owners Corp.Appellate Division, 1st Department(COMMENT—But questions of fact precludedjudgment on the HOA’s entitlement to imposefines and fees on members who had performedunauthorized landscaping on their own.)(COMMENT—This continues the recent trend ofawarding compensation in license access cases.Here, the adjoining building owner was also orderedto pay the attorney and engineering fees of the coop and the affected shareholder, but struck down aper diem penalty for late completion, for now.)CONDO’S DEFECTIVE CONSTRUCTION CLAIMSAGAINST SPONSOR, ITS PRINCIPALS ANDARCHITECT DISMISSEDCO-OP CAN FORCE SHAREHOLDER TO STOP,AND REMOVE, UNAUTHORIZED TERRACEENCLOSURE UNDER CONSTRUCTIONBoard of Managers of 325 Fifth Avenue Condominiumv. Continental Residential Holdings LLC AppellateDivision, 1st DepartmentMoltisanti v. East River Housing Corporation AppellateDivision, 1st Department(COMMENT—In continuing the clear trend ofdismissing such defective construction claims, theCourt relied on a prior release by the Board, andrefused to pierce the corporate veil.)(COMMENT—The shareholder was not entitled toan injunction to freeze the unauthorized status quo.The Court rejected the shareholder’s novel argumentof disparate treatment—that the co-op had nottaken similar action against other shareholders’unauthorized terrace enclosures.)CO-OP LIKELY DISCRIMINATED AGAINSTSHA REHO L DER W I TH A DH D BY NOTEXTENDING ITS REGULAR 90-DAY ALTERATIONSCOMPLETION PERIODCOMMERCIAL TENANT IN CO-OP OBLIGATEDTO PAY FULL RENT; ITS LEASE INTERPRETATIONREJECTEDSteinberg-Fisher v. North Shore Towers Apartments,Inc. Appellate Division, 2nd Department644 Brdy Realty Inc. v. Bleecker Tower Tenants Corp.Appellate Division, 1st Department(COMMENT—The Court found that the State Divisionof Human Rights finding of no probable cause wasarbitrary and capricious, since the shareholder’sADHD prevented her from completing tasks withinrequired time constraints.)(COMMENT—The Court noted that the tenant hadapparently been the sponsor of the co-op conversion,and could not take advantage of a purportedambiguity in the lease that it had drafted.)9

Belkin Burden Wenig & Goldman, LLP270 Madison Avenue New York, NY 10016www.bbwg.comNew York Office 270 Madison Avenue New York, NY 10016 Tel 212 .867 .4466 Fax 212 .867 .0709Connecticut Office 495 Post Road East, 2nd Floor Westport, CT 06880 Tel 203 .227 .1534 Fax 203 .227 .6044Please Note: This newsletter is intended for informational purposes only and should not be construed as providing legal advice. This newsletter provides only a brief summaryof complex legal issues. The applicability of any or all of the issues described in this newsletter is dependent upon your particular facts and circumstances. Prior results do notguarantee a similar outcome. Accordingly, prior to attempting to utilize or implement any of the suggestions provided in this newsletter, you should consult with your attorney.This newsletter is considered “Attorney Advertising” under New York State court rules.10

Belkin Burden enig Goldman, LLP 27 Madison Avenue New York, NY 10016 Tel 212 .86 .4466 Fa 212 .86 .0709 INSIDE THIS ISSUE Attorney Advertising MAY 2017 VOLUME 37 1 Belkin Burden Wenig & Goldman, LLP GOOD GUYS FINISH LAST BY JOSEPH BURDEN. 1