How to fight Department of Buildings/DOB/OATH Violations
More and more business and home owners are receiving violations from the Department of Buildings (DOB) in New York City, and find the violations piling up before they even get a chance to fight them.
You’ve probably spent some time at the Environmental Control Board (ECB) or Office of Administrative Hearings and Trials (OATH) fighting violations issued by the Department of Buildings (DOB). And you know it isn’t easy to beat those violations. That’s why it’s important to have as much ammunition as possible to fight those violations successfully.
The Law Office of Dusenberry & Dusenberry has successfully represented many owners who challenged DOB violations before the OATH and the ECB.
We’ll give you some basics on how to challenge DOB violations and tell you about nine successful arguments owners have used to beat them. You can use these arguments if you’re defending against similar DOB violations.
How to Challenge DOB Violations
When you get a violation from the DOB, what you can do about it depends on whether it was a non-hazardous or hazardous violation.
For some non-hazardous violations, generally Class II and Class III, there are different options.
Option 1: You can file a “Certificate of Correction” (CoC) form with the DOB. In it, you admit that the condition or conditions causing the violation existed, and you sign a statement that says you corrected the condition(s). If you file this on time, usually within a certain amount of days which is listed on the ticket, or before the first hearing date, you can avoid a fine for the violation and avoid having to appear before an administrative law judge (ALJ) at a hearing.
Getting a CoC approved is a topic all unto itself, and requires that the paperwork be done correctly and that several forms of proof be provided. Many owners who do it themselves find their CoC rejected, and end up with large fines. It’s often best to have a contractor who did the work file the CoC as part of the job you hire them for.
But if you file the CoC late, or it’s rejected, or if an inspector inspects the building and finds that you didn’t really correct the condition, you must appear at the hearing, where you can then challenge the violation. After you certify correction of the violation, the DOB should send you a letter letting you know that it has accepted your certification of correction. If you don’t get this letter, you should appear at the hearing.
Option 2:You may choose not to certify correction of the nonhazardous violation and instead appear before an ALJ on the hearing date stated on the violation notice to challenge the violation. For example, say you get a violation for making illegal alterations. If you don’t want to remove those alterations, you may want to challenge the violation by showing the ALJ why they aren’t illegal.
Hazardous violations - Class I violations and some Class II .You must appear before an ALJ at a hearing on the date listed in the violation notice. At the hearing, you can either show that you corrected the violation or challenge it.
While it’s possible and allowed to appear at OATH on your own, the judges and inspectors are not on your side. They are not trying to help you, but to fine you. It is always recommended to consult an attorney about appearing on your behalf. A lawyer fighting for you will know many arguments to bring on your behalf that come with long experience battling the DOB and its inspectors.
Arguments
Here are nine arguments you can use to challenge DOB violations.
Argument #1: Repair being made when violation issued. If you get a violation notice for a nonhazardous condition and you’re in the process of repairing it when the violation is issued, you can simply certify its correction with the DOB and avoid a fine. But if you get a hazardous violation, that course of action isn’t open to you. However, you may still be able to get the hazardous violation dismissed if it was issued while you were repairing the condition.
For example, in one case, an owner got hit with a DOB violation for not maintaining the exterior building walls (a hazardous violation). The owner challenged the violation and proved that at the time it was issued, workers were at the building repairing the condition. The ECB upheld the dismissal of the violation.
PRACTICAL POINTER: Bring to the hearing any proof you have to show that you were repairing the condition when the violation notice was issued. For example, if you used an outside contractor, you could ask the contractor to testify.
It’s also a good idea to take photographs of the repaired condition.
Argument #2: Owner unable to get access to repair condition. If you can show that you tried to repair the condition that caused the violation but were unable to get access, you may be able to get the violation dismissed. For example, one owner got a DOB violation based on an inspection that showed that the basement was unsafe. The owner claimed that it couldn’t immediately correct the violation because an illegal tenant was living in the basement.
The owner showed that before issuance of the violation, it had repeatedly sought access to the basement for repairs, but the tenant had denied access. The owner eventually sued the tenant to get access. The ECB dismissed the violation, finding that the owner had done everything possible to maintain the building in a safe condition.
In another case, an owner got a DOB violation for bricks that had fallen from the building. The owner challenged the violation, claiming that the tenant wouldn’t cooperate in permitting repairs. The owner showed that the tenant had caused the damage on the roof. The owner couldn’t repair the roof, and had started a court case against the tenant for access. The ECB dismissed the violation.
PRACTICAL POINTER: Be sure to bring to the hearing any proof you have to show that you tried to get access. For example, if you’ve sued to evict the tenant to get access, bring the court papers used in the case. Also bring any letters, texts or emails you’ve sent to the tenant, in which you asked for access.
PRACTICAL POINTER: When you send a letter to a tenant requesting access so that you can correct a violation, send the letter by certified mail, return receipt requested. That way, you’ll have proof that the tenant actually got the letter.
Argument #3: Temporary condition due to emergency situation. You may be able to beat the violation by showing that the condition in question was a temporary one caused by an emergency situation. For example, he explains, say you get hit with a violation for doing roof work without a permit. You may be able to show that you didn’t have time to get the permit because you needed to work quickly to repair a roof that was in danger of collapsing.
Argument #4: Violation duplicates prior hazardous violation. Say the DOB hits you with more than one hazardous violation for the same condition. It’s legitimate for the DOB to give you a second violation and fine you a second time if you didn’t correct the first violation. But if you get more than one notice about a violation at the same time and the violations cover the same condition, you might be able to get the extra violation dismissed and avoid paying more than one fine by arguing that you got duplicate violations.
For example, the DOB issued two violations to an owner—one for violating a law banning illegal alterations involving change in occupancy, and the other for violating a law barring change of occupancy or use that’s inconsistent with the last issued certificate of occupancy for the building. The owner challenged the second violation as being a duplicate of the first. The ECB agreed with the owner. The evidence to prove both violations was the same—the creation of an apartment in the cellar.
In another case, the DOB issued three hazardous violations to an owner for improperly maintaining the building’s exterior wall. Though the three violation notices were issued on different dates, the owner got all three on the same day. The owner challenged the second two violations, claiming that they duplicated the first. The ECB ruled for the owner. Although the DOB can issue more than one violation for a hazardous condition that remains uncorrected, it must give the owner a chance to correct the condition before it issues another violation. In this case, the owner wasn’t given that chance because she got all three violations at once.
Argument #5: Building was sold before violation issued. If you get a violation for a building you sold before the violation was issued, you should be able to challenge the violation successfully. At the hearing, you might bring proof that you sold the building. For example, bring either the original deed of sale or a certified copy of it, or the closing statement.
PRACTICAL POINTER:You can also try getting a copy of the deed from the DOF’s Web site, www.nyc.gov/html.dof. Click on Property Records-ACRIS. An ALJ will accept deeds you get from this Web site.
Argument #6: Affidavit of service not filed with ECB. After the DOB delivers the violation notice to you, it must file proof with the ECB of how the notice was delivered. This proof must be in the form of an “affidavit of service.” This is a sworn document signed by the DOB officer who delivered the violation notice, detailing when, how, and to whom the violation was delivered. If the DOB doesn’t file the original affidavit of service with the ECB, you should be able to get the violation dismissed.
When you appear before the ALJ at the ECB hearing, the first thing you should do is ask for that affidavit, which should be attached to the back of the copy of the violation notice in the case file. If the affidavit isn’t attached, ask the ALJ to dismiss the violation on the spot, based on what’s known legally as “improper service.”
For example, an owner asked the ECB to dismiss a DOB violation because there was no affidavit of service on file at the ECB’s offices. The DOB claimed that the affidavit of service was lost in transit from the DOB to the ECB. The ECB dismissed the violation for improper service. The DOB presented no proof that it had filed the original affidavit with the ECB and didn’t request a delay to conduct a further search for this document.
Argument #7: Violation notice not mailed to second address. If the DOB tries but isn’t able to personally deliver the violation notice to you, the law allows it to use what’s known as the “nail and mail” method of delivery. With this method, the DOB mails the violation to you at the building address listed on the notice and posts the notice at that building. If the DOB uses this method to deliver the violation notice to you, and you (as the building owner or manager) are listed on the violation notice as the “respondent,” the DOB must check whether you’re listed on other agency records—for example, at the Department of Finance (DOF)—at a different address from the one listed on the front of the violation notice. If so, the DOB must also mail the violation notice to you at that address.
If there’s more than one other address listed on the records of other agencies, the DOB need only mail it to one of the other addresses listed. If the DOB doesn’t take this additional step, you should be able to get the violation dismissed for not having been properly delivered.
For example, the DOB delivered three violation notices to an owner by posting them at the building and mailing copies to the owner at the building address. But it didn’t mail a second copy of the violation to the owner at its second address, listed on DOF records. So the ECB dismissed the violation notice against the owner because it wasn’t properly delivered.
Argument #8: Owner’s name incorrectly stated in violation notice. If the owner’s name isn’t correctly stated on the violation notice, you may be able to get the violation dismissed. But usually, this will only happen if the incorrectly stated name causes confusion or prejudice (say, you didn’t get the violation notice because of the incorrect name or it wasn’t clear from the name that the notice was issued to you).
For example, the ECB sometimes dismisses violations against corporate owners who claimed that they never received the violation notice. Even a typographical error can cause the process server and the New York State secretary of state to misread the name of the corporation. But in some cases, the ECB refused to dismiss a violation against an owner based on a problem with the name listed in the violation notice. The ECB may rule that unless omitting the respondent’s first name created confusion, the violation notice itself remained valid, if the owner doesn’t show that that the omission of a first name resulted in any confusion as to the identity of the named respondent.
Argument #9: Incorrect date of occurrence. If the violation notice incorrectly states when the violation occurred, you should be able to get it dismissed. For example, the DOB issued a violation to an owner, stating that the violation had occurred on May 3, 2001, which was four years before it sent the owner the violation notice. The DOB conceded that the date listed was probably incorrect. The ECB dismissed the violation, finding that the violation notice was defective because it incorrectly stated the date the violation occurred.
Hopefully, this article has explained some issues surrounding OATH, DOB and ECB violations. With that in mind, I look forward to speaking with anyone and everyone who has read this article and wants to learn more.
Please call 718-625-1777 for a FREE TELEPHONE CONSULTATION!
Matthew Dusenberry is a DWI, Criminal Defense, DOB and State and City Store License Defense Lawyer in Brooklyn, New York.
Harry Dusenberry has practiced Criminal Defense and DWI Law in New York City for over 40 years.
Law Office of Dusenberry & Dusenberry, 107 Smith Street, Brooklyn, NY 11201. 718-625-1777.
Web: Dusenberrylaw.com
