N.Y. Multiple Dwelling Law § 302-a: Abatement of rent in the case of serious violations

§ 302-a. Abatement of rent in the case of serious violations.

1. The provisions of this section shall apply to all cities with a

population of four hundred thousand or more.

2. a. A "rent impairing" violation within the meaning of this section

shall designate a condition in a multiple dwelling which, in the opinion

of the department, constitutes, or if not promptly corrected, will

constitute, a fire hazard or a serious threat to the life, health or

safety of occupants thereof.

b. The determination as to which violations are "rent impairing" shall

be made in the following manner. Within six months after the enactment

of this section, the department shall promulgate a list of conditions

constituting violations of the provisions of this chapter and of any

regulations promulgated pursuant to the provisions of subdivision four

of section three of this chapter. Such list shall contain a brief

description of the condition constituting the violation, the section of

this chapter or regulation violated, and the order number assigned

thereto. The department may from time to time change the number or

description of violations on such list, as may seem appropriate to the

department. Such list shall be available at all times to the public.

c. At the time of the promulgation of the list of violations, the

department shall also designate, by reference to the order number, those

violations which it proposes to classify as rent impairing as above

defined. Within thirty days thereafter, the department shall hold a

public hearing at which all persons interested may be heard as to the

propriety of the classification of such violations as rent impairing. At

least twenty days' notice of such hearing shall be given by publication

in the city record or other publication in which official notices of the

city are regularly published. Within a reasonable time after the

hearing, the department shall make and publish a list of those

violations which are classified as rent impairing. Any person interested

may, within four months thereafter, seek a review by the supreme court

of the propriety of the classification of any of such violations as

"Rent Impairing" by a special proceeding pursuant to article

seventy-eight of the civil practice law and rules. No other body or

officer shall have the power to review said classification.

d. The department may at any time change the number or description of

rent impairing violations but no such change shall be made except in the

manner above set forth after notice and public hearing.

3. a. If (i) the official records of the department shall note that a

rent impairing violation exists in respect to a multiple dwelling and

that notice of such violation has been given by the department, by mail,

to the owner last registered with the department and (ii) such note of

the violation is not cancelled or removed of record within six months

after the date of such notice of such violation, then for the period

that such violation remains uncorrected after the expiration of said six

months, no rent shall be recovered by any owner for any premises in such

multiple dwelling used by a resident thereof for human habitation in

which the condition constituting such rent impairing violation exists,

provided, however, that if the violation is one that requires approval

of plans by the department for the corrective work and if plans for such

corrective work shall have been duly filed within three months from the

date of notice of such violation by the department to the owner last

registered with the department, the six-months period aforementioned

shall not begin to run until the date that plans for the corrective work

are approved by the department; if plans are not filed within said

three-months period or if so filed, they are disapproved and amendments

are not duly filed within thirty days after the date of notification of

the disapproval by the department to the person having filed the plans,

the six-months period shall be computed as if no plans whatever had been

filed under this proviso. If a condition constituting a rent impairing

violation exists in the part of a multiple dwelling used in common by

the residents or in the part under the control of the owner thereof, the

violation shall be deemed to exist in the respective premises of each

resident of the multiple dwelling.

b. The provisions of subparagraph a shall not apply if (i) the

condition referred to in the department's notice to the owner last

registered with the department did not in fact exist, notwithstanding

the notation thereof in the records of the department; (ii) the

condition which is the subject of the violation has in fact been

corrected, though the note thereof in the department has not been

removed or cancelled; (iii) the violation has been caused by the

resident from whom rent is sought to be collected or by members of his

family or by his guests or by another resident of the multiple dwelling

or the members of the family of such other resident or by his guests, or

(iv) the resident proceeded against for rent has refused entry to the

owner for the purpose of correcting the condition giving rise to the

violation.

c. To raise a defense under subparagraph a in any action to recover

rent or in any special proceeding for the recovery of possession because

of non-payment of rent, the resident must affirmatively plead and prove

the material facts under subparagraph a, and must also deposit with the

clerk of the court in which the action or proceeding is pending at the

time of filing of the resident's answer the amount of rent sought to be

recovered in the action or upon which the proceeding to recover

possession is based, to be held by the clerk of the court until final

disposition of the action or proceeding at which time the rent deposited

shall be paid to the owner, if the owner prevails, or be returned to the

resident if the resident prevails. Such deposit of rent shall vitiate

any right on the part of the owner to terminate the lease or rental

agreement of the resident because of nonpayment of rent.

d. If a resident voluntarily pays rent or an installment of rent when

he would be privileged to withhold the same under subparagraph a, he

shall not thereafter have any claim or cause of action to recover back

the rent or installment of rent so paid. A voluntary payment within the

meaning hereof shall mean payment other than one made pursuant to a

judgment in an action or special proceeding.

e. If upon the trial of any action to recover rent or any special

proceeding for the recovery of possession because of non-payment of rent

it shall appear that the resident has raised a defense under this

section in bad faith, or has caused the violation or has refused entry

to the owner for the purpose of correcting the condition giving rise to

the violation, the court, in its discretion, may impose upon the

resident the reasonable costs of the owner, including counsel fees, in

maintaining the action or proceeding not to exceed one hundred dollars.