Ross Soltus, Attorney at law

Housing violations and tenant harassment actions in New York City

The first part of this article provides general information regarding enforcement of housing laws in New York City. Tenant harassment is a particular type of housing law violation and is discussed in the second part of this article.

There are a number of laws in effect in New York City that require landlords to keep rental premises in good repair and provide essential services (heat, hot water, etc.) to tenants' apartments. The most important laws are: New York Multiple Dwelling Law, Housing Maintenance Code, Building Code and Health Code. The Housing Maintenance Code is a part of the Administrative Code of the City of New York [Chapter 2 Title 27 of the NYC Administrative Code].

The Housing Maintenance Code (“HMC”) and the Building Code contain detailed requirements regarding maintenance and physical condition of buildings and apartments (light, heat, plumbing, ventilation, noise control, cleaning, collection of waste, sanitary facilities, etc.)

The Housing Maintenance Code also provides for monetary penalties against landlords for violating Code requirements. Such violations occur if rental units do not comply with the “minimum standards of health and safety” in respect of dwelling units located within New York City [HMC §27-2002].

Procedure applicable to housing violations in general

All Code violations are classified as non-hazardous, hazardous or immediately hazardous, based upon the effect of the violation upon the life, health or safety of occupants of the building and the public [HMC § 27-2115(d)]. More severe violations trigger higher monetary penalties [HMC §27-2115(a)]. Separate instances of the same condition are treated as a single violation [HMC §27-2115(g)].

Department of Housing Preservation and Development (“HPD”) is the governmental agency responsible for enforcement of laws related to housing standards. After receiving a complaint from a tenant HPD will inspect the apartment and may issue a Notice of Violation to the landlord if certain conditions in the apartment do not comply with the codes, or essential services are provided with interruptions or not provided at all.

The Notice of Violation will identify the condition(s) constituting the violation and will set the time for correction of the violation and the amount of possible penalty [HMC §27-2115(b)]. The correction time is normally 90 days from date of mailing of the Notice for non-hazardous violations, 30 days for hazardous violations, and 24 hours for immediately hazardous violations, in the latter case Notice must be personally delivered to the landlord [HMC § 27-2115(c)(1)].

Information about the status of a particular violation is available on the HPD web page.

If the landlord fails to correct the violation (refuses to do the repairs) within the time specified in the Notice of Violation, the tenant or a group of tenants may start a lawsuit against the landlord in the City Housing Court, these lawsuits are called “HP proceedings”.

General information on how to start an HP proceeding is available at the NYC Housing Court web site.

After hearing the case the court will issue an order requesting the landlord to correct the violation and will impose penalties against the landlord [HMC §27-2115(h)]. In some cases the court may give the landlord a time period to correct the violation and the penalty will be imposed only if the violation is not corrected within such time [HMC §27-2115(h)(1)]. Alternatively, if the court finds that sufficient mitigating circumstances exist (it is, therefore, important to include all relevant facts into the respondent’s answer, see the “Answer-defenses” section below), the court may reduce or forgive (“abate”) the penalty arising from the violation, but may condition such reduction upon correction of the violation within the time period fixed by the court [HMC §27-2116(b)]. This rule, however, does not normally apply to harassment violations, because harassment is deemed a completed offense as soon as the landlord’s illegal conduct occurred, and the landlord is not given an opportunity to correct.

A compensation of $1,000 or more may also be awarded to the tenant for damages that resulted from the landlord’s illegal conduct, and possibly also punitive damages at the court’s discretion [HMC §27-2115(o)].

As a side note it should be mentioned that same conditions (violations) in the apartment can be used by a tenant as a defense or a counterclaim in an already pending non-payment proceeding against the tenant (for example, claiming rent abatement due to violation by landlord of the common law warranty of habitability) in lieu of commencing a separate HP proceeding against the landlord.

Harassment

The above described general procedure has been streamlined in cases when a tenant complains about being harassed by the landlord. There is no need to call HPD to issue a Notice of Violation, rather, the tenant can go directly to court and start an HP action against the landlord right away. See "How to start a harassment action" below.

Harassment is considered an immediately hazardous violation that existed when the illegal conduct by the landlord occured, and therefore, the landlord is not given an opportunity to correct the violation. The court may impose a penalty in the amount from $2,000 to $10,000 per each apartment where illegal conduct took place [HMC §27-2115(m)], along with compensation for damages to the tenant as was mentioned above. Also, a restraining order may be issued by the court directing the respondent to stop illegal conduct and to ensure that no further violations occur.

Definition of harassment

It is a legal duty of every landlord "not to harass any tenants or persons lawfully entitled to occupancy of a dwelling unit” [HMC §27-2005(d)].

The definition of the term “harassment” is very broad under the HMC, it may include a wide range of different types of conduct by the landlord, however, there is one required element: the landlord must have a specific intent to force the tenant or another occupant to move out of the apartment [HMC §27-2004(a)(48)], see "Required intent" section below. The required intent must be proven in court in order for any particular landlord behavior to qualify as harassment under the HMC. This is what distinguishes the HMC-specific cause of action for harassment from other definitions of harassment applicable under different laws (workplace harassment, sexual harassment, etc.)

Common examples of tenant harassment under the HMC are:

using force against the tenant or making express or implied threats;
providing false or misleading information to the tenant regarding occupancy of a dwelling unit, or making false statements regarding the rent stabilization status of the unit or the building on any application or construction documents;
repeated interruption or discontinuances of essential services;
repeated failures to correct prior violations, or false certification that a violation has been corrected;
repeated baseless lawsuits against the tenant;
removing tenant's possessions from the unit;
changing the locks on the entrance door without giving a key to the tenant;
offering money to the tenant to induce the tenant to leave the apartment without providing a written disclosure of certain required information;
threatening a tenant, based on tenant's age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, uniformed service, sexual orientation, alienage or citizenship status, status as a victim of domestic violence, status as a victim of sex offenses or stalking, lawful source of income or because children are, may be or would be residing in such dwelling unit;
threatening a tenant due to tenant's unemployment status or medical condition, caused by COVID-19;
other acts of the landlord that disturb the comfort, repose, peace or quiet of the tenant.

Required intent

As was already mentioned, in order for any of the listed above acts to qualify as harassment under the HMC and, accordingly, to trigger the imposition of penalties on the landlord, they must have been done by the landlord with the specific intent to force the tenant or other lawful occupant "to vacate the dwelling unit, or to surrender or waive any occupancy rights". Such intent is presumed by law and the burden is on the landlord to prove otherwise [rebuttable presumption, §27-2004(a)(48)(ii)].

Therefore, if the landlord’s actions were not intended to force the tenant to move out of the apartment, it is advisable to include into the respondent’s (landlord’s) Answer an affirmative defense to rebut the presumption regarding the landlord’s intent. Under HMC §27-2115(m)(3) such affirmative defense shall state that the condition or service interruption complained of “was not intended to cause any lawful occupant to vacate a dwelling unit or waive or surrender any rights in relation to such occupancy”, and that “the owner-landlord acted in good faith in a reasonable manner to promptly correct such condition or service interruption, including providing notice to all affected lawful occupants of such efforts”, if applicable.

Jurisdiction over Harassment proceedings

Generally, Housing Court, as a part of the New York City Civil Court, has jurisdiction over actions and proceedings involving enforcement of state and local laws for the establishment and maintenance of housing standards, including, but not limited to, the Multiple Dwelling Law and the Housing Maintenance Code, Building Code and Health Code of the Administrative Code of the City of New York [New York City Civil Court Act, §110(a), §203(k)].

In particular, the jurisdiction of the Housing Court includes, inter alia, actions and proceedings related to the following:

actions for imposition or removal of housing violations [New York City Civil Court Act, §110(a)(7), §203(n)];
actions for imposition and collection of civil penalties for violation of laws related to housing standards [New York City Civil Court Act, §110(a)(1), §203(k)];
actions to stay collection of a penalty [New York City Civil Court Act, §203(n)];
proceedings for the issuance of injunctions and restraining orders or other orders for the enforcement of housing standards [New York City Civil Court Act, §110(a)(4), §203(o)];

Since acts of harassment are violations of the Housing Maintenance Code [HMC §27-2005(d)], harassment proceedings, therefore, fall within the jurisdiction of the Housing Court.

The power of the Housing Court to award injunctive relief is also confirmed by HMC §27-2121.

How to start a harassment action

A harassment action is normally started by a tenant via an Order to Show Cause (OSC) with an affidavit or a verified petition in support [New York City Civil Court Act, §400], but a harassment claim can also be interposed as a counterclaim in an already pending non-payment proceeding against the tenant.

When started by a tenant via an OSC, the harassment claim may be combined with a request to the landlord to do repairs in the apartment or correct housing violations, everything as a single HP proceeding.

CPLR applicable

Under the general rule of the New York City Civil Court Act §2102, CPLR and other provisions of law relating to practice and procedure in the supreme court shall apply in NYC Civil Court (of which Housing Court is a part) as far as they are not in conflict with the New York City Civil Court Act. Namely, Article 4 of the CPLR contains a set of rules applicable to special proceedings. HP proceeding is a type of a special proceeding.

Based on the above provision of the NYC Civil Court Act, the Uniform Civil Rules For The Supreme Court [22 CRR-NY 202] should also apply in Civil/Housing court as far as they are not in conflict with the New York City Civil Court Act, as well as the Uniform Civil Rules for the New York City Civil Court [22 CRR-NY 208].

Service of process

New York City Civil Court Act §110(m) provides some specifics related to the service of process rules applicable to actions brought under the Housing Maintenance Code, namely regarding the use of a “registered address” on file with the NYC Department of Housing Preservation and Development for the purposes of service of process.

Defending against a harassment claim

Time to answer

Generally, under the NYC Civil Court Act, the time limits to appear and answer an action in Civil Court are the same as those set by the CPLR: 20 days in case of personal service upon the defendant, and 30 days in case of service by any means other than personal delivery [New York City Civil Court Act, §402, CPLR 320(a)].

However, the Uniform Civil Rules For The New York City Civil Court contain different set of rules regarding time periods applicable specifically to proceedings involving housing law violations: 10 days to appear and answer if the summons is personally delivered to the landlord or its registered agent within the City of New York, and 20 days after the filing of proof of service in case of service by mail or any other method [22 CRR-NY 208.43(d)(3) and (4)].

Time to file amended Answer

Generally, under CPLR, an amended Answer may be filed without leave of court within 20 days after service of the original Answer [CPLR 3025(a)]; the Civil Court Act, however, shortens this time period to 10 days [New York City Civil Court Act, §909(a)].

Answer - defenses

The Answer must be verified and must include any affirmative defenses, or defenses in mitigation of the respondent’s liability as set forth in §27-2116 of the HMC. In cases involving an immediately hazardous violation, the respondent may interpose an oral answer before the court [Uniform Rules for the New York City Civil Court, 22 CRR-NY 208.43(e)].

If a respondent defaults by failing to answer the summons or an order to show cause, an inquest will be taken before the court [id 208.43(f)].

Below are defenses listed under HMC §27-2116(b). These defenses, however, correspond more to proceedings involving violations related to physical conditions of the premises rather than actions for harassment. For the sake of illustration below is the full list:

that the violation was corrected within the time specified in the notice of violation and the certificate of compliance was duly filed;
that the violation did not exist at the time the notice of violation was served;
that the respondent began to correct the violation promptly upon receipt of the notice of violation, but that its full correction could not be completed within the time provided because of technical difficulties, inability to obtain necessary materials, funds or labor, or inability to gain access to the dwelling unit wherein the violation occurs, or such other portion of the building as might be necessary to make the repair;
that the respondent was unable to obtain a permit or license necessary to correct the violation, provided that diligent and prompt application was made therefor;
that the violation giving rise to the action was caused by the act or negligence, neglect or abuse of another not in the employ or subject to the direction of the respondent.

As was mentioned above with a reference to HMC §27-2115(m), once the act of harassment has occurred it can not be corrected at a later time, so defenses (1), (3) and (4) would not be applicable to harassment cases. Defenses (2) and (5) may still be applicable to actions for harassment.

The below defenses are also commonly used in HP proceedings:

improper service / lack of personal jurisdiction;
Petitioner-tenant lacks standing to maintain the HP proceeding (has no tenancy rights, moved out of the apartment, etc.);
Petition fails to state a cause of action (conditions alleged in the petition are not HMC violations, or a violation of any other applicable law);
compliance with the HMC standards is economically infeasible.

Finally, very important to include, if applicable, into the respondent’s answer an affirmative defense to rebut the presumption about landlord’s intent, this was already discussed in the “Required Intent” section above.

A more detailed explanation of defenses available to a respondent in an HP action can be found on the Housing Court web page.

The respondent is also free to include any counterclaims into the Answer, except that Civil Court Act §208(d) contains some limitations regarding counterclaims that can be interposed in an action commenced by the HPD.

Discovery / Bill of Particulars

[Note: Bill of Particulars is not a disclosure device, it is rather a pleading, but will be discussed in this section for the sake of convenience].

Generally, all disclosure devices normally available under the CPLR can be used in Civil Court [New York City Civil Court Act, §1101(a)]. However, unlike a Civil Court plenary action, disclosure in a special proceeding is available only by leave of court [CPLR §408].

More specifically, in an action to impose or collect a civil penalty for violations of housing standards, a leave of court must be obtained by a motion to the Housing Court for disclosure or for a bill of particulars [New York City Civil Court Act §1101(a), HMC §27-2116(a)].

This requirement is restated in the Civil Court Rules: in an action or proceeding to impose a civil penalty in the Housing Part, no disclosure or bill of particulars shall be allowed without an order of the court [Uniform Rules for the New York City Civil Court, 22 CRR-NY 208.43(L)].

If it is so noted on the summons, any motion for disclosure or a bill of particulars must be made in writing and on notice and must be filed with the clerk with proof of service not later than 30 days after joinder of issue [New York City Civil Court Act §1101(a)].

The Civil Court Act “necessary” test

The threshold for obtaining a leave of court to allow disclosure or service of a bill of particulars in special proceedings is rather high. Under the Civil Court Act, such leave shall be granted only upon a showing that such disclosure or bill of particulars is “necessary to the prosecution or defense of the action” [New York City Civil Court Act §1101(a), HMC §27-2116(a)].

The “ample need” test (Farkas case)

The question of availability of discovery in Housing Court proceedings was considered in greater detail by the New York City Civil court in a well-known 1983 case New York Univ. v Farkas (121 Misc 2d 643 [Civ Ct 1983], 468 N.Y.S.2d 808) which is still being often cited on this specific issue.

[Full text of the case can also be found on Google Scholar by selecting "Case law, New York courts" and typing “New York Univ. v. Farkas” into the search box].

According to the Farkas case, in order to decide whether disclosure should be allowed in summary proceedings, the court should consider the following six factors, which all together are referred to as the “ample need” test:

if the moving party is the petitioner - whether the petitioner has asserted facts to establish a cause of action; this is to prevent "fishing expeditions" by parties in cases where no viable cause of action, or no viable defense has been asserted;
whether there is a need to determine information directly related to the cause of action;
whether the requested disclosure is carefully tailored and is likely to clarify the disputed facts;
whether prejudice to the non-moving party will result if the motion is granted;
whether any such prejudice could be diminished or alleviated by the court;
whether the discovery can be structured so that the non-moving party is protected and not adversely affected by such discovery requests.

The moving party should submit an affidavit containing relevant factual information and respective argument addressing the above factors.

In addition to the outlined above six factors, the court also considered the question of whether granting a discovery request will promote efficiency of the trial process. “Discovery, like motions for summary judgment, when properly employed may introduce welcome efficiency to the litigation process”, the court said.

Statute of limitations

The Statute of limitations to start an HP proceeding is generally considered to be one year from the occurrence of the condition constituting a violation.

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Ross Soltus, attorney at law