Article 214 Order to Seal, Secure and Close

If the commissioner determines such action is necessary to the preservation of life and safety the commissioner may order a building subject to a vacate order to be sealed, secured and closed.

For the purpose of this article, "sealed" and "sealed, secured and closed" shall mean the use of any means available to render the building, structure or part thereof inaccessible, including but not limited to the use of a padlock or cinder blocks.

Such order to seal, secure and close shall contain notice of the opportunity for a hearing with respect to such order to determine if the order was properly issued in accordance with the provisions of this article. Such hearing shall be conducted by the commissioner, or in the commissioner's discretion, by the office of administrative trials and hearings or the environmental control board. If the matter is referred to such office or board, the hearing officer shall submit his or her findings of fact and a recommended decision to the commissioner. The hearing shall be held within three business days after the receipt of the written request of an owner, lessor, lessee, or mortgagee for such hearing. The commissioner shall render a decision within three business days after such hearing is concluded or findings of fact and a recommendation are submitted.

Such order issued pursuant to this article shall be served as follows: It shall be mailed to the record owner of such premises; any record mortgagee of such premises at the address for such person as set forth in the recorded instrument; and if reasonably ascertainable, the person designated as owner's agent of the building or designated to receive real property tax or water bills for the building at the address for such person contained in one of the files compiled by the department of finance for the purpose of the assessment or collection of real property taxes and water charges or in the file compiled by the department of finance from real property transfer forms filed with the city register upon the sale or transfer of real property. A copy shall also be filed with the county clerk of the county in which such premises is located. Such filing shall be notice of the order to any subsequent owner and such owner shall be subject to such order.

An order issued pursuant to this article shall not be rescinded unless the owner, lessor, lessee or mortgagee seeking such rescission provides assurance, in a form satisfactory to the commissioner, that the conditions that caused the issuance of such order have been corrected and will not reoccur. If such order is rescinded, upon the request of the owner, lessor, lessee or mortgagee, the commissioner shall provide a certified copy of such rescission, which may be filed with the county clerk of the county in which such premises is located.

The expenses attending the execution of any and all orders duly made by the department shall respectively be a several and joint personal charge against each of the owners or part owners, and each of the lessees and occupants of the building, structure, enclosure, place or premises to which such order relates, and in respect to which such expenses were incurred; and also against every person or body who was by law or contract bound to do that in regard to such building, structure, enclosure, place or premises which such order requires. Such expenses shall also be a lien on all rent and compensation due, or to become due, for the use of any building, structure, place or premises, or any part thereof, to which such order relates, and in respect to which such expenses were incurred.

The commissioner shall give written notice of the closing of any building, structure, enclosure, place or premises pursuant to this article, and any subsequent actions taken with respect thereto, as soon as practicable, to the borough president of the borough within which the closing has occurred; the council member representing the district within which the closing has occurred; and the local community board. On January first of each year, the commissioner shall submit a report to the council, setting forth the number of closings made in the previous year, the locations of such closings, and the nature and use of the premises closed. The commissioner shall, in addition, as soon as practicable after a building, structure, enclosure, place or premises has been closed, make and publish a report of said closing in a manner calculated to quickly notify the local community in which such closing occurred. The commissioner shall also make and publish a report of any premises reopened pursuant to his or her permission under this article. Failure to comply with this section 28-214.1.6 shall not invalidate any action taken by the commissioner pursuant to this article.

The commissioner shall allow access to the premises sealed, secured and closed pursuant to this article to an owner, or a lessor, lessee or mortgagee upon the following conditions:

1. The submission of a written affirmation, satisfactory to the commissioner, that such person or persons will commence or cause to be commenced without delay all work necessary to correct the conditions stated in the vacate order or otherwise to make the premises meet all applicable laws and rules and will complete such work within a period of time and in a manner to be approved by the commissioner;
2. The submission of a written affirmation or other proof satisfactory to the commissioner describing the steps that have been taken and will be taken in the future to ensure that the premises will be used or operated in a lawful manner and specifying such lawful use;
3. If a license, permit, certificate of operation or certificate of occupancy is necessary for such lawful use, the submission of a written affirmation or other proof, satisfactory to the commissioner, describing the steps that have been taken and will be taken in the future to ensure that such premises will be used or operated in compliance with any law requiring such license, permit, certificate of operation or certificate of occupancy; and
4. If the premises are leased and the person making the affirmations described above in items 1, 2 and 3 is not such lessee, the commissioner may also require any authorized person seeking access to submit a written affirmation or other proof that proceedings to enable such person to take actions necessary to ensure compliance with the affirmations submitted by such authorized person pursuant to items 1, 2 and 3 have been commenced.

Notwithstanding any other law, rule, or regulation, any person, corporation, partnership, association or any other legal entity who permits a building, structure, enclosure, place or premises, or any part thereof, to be unlawfully occupied or used in contravention of an order of the commissioner pursuant to this article, or who negligently fails to prevent or prohibit such unlawful occupancy or use, shall be liable for a civil penalty of not more than one million dollars, if any other person suffers serious physical injury, as defined in section ten of the penal law, or death in the building, structure, place or premises or any part thereof subject to such order as a result of such unlawful occupancy or use. If more than one person suffers serious physical injury or death, such penalty shall be recoverable for each person suffering serious physical injury or death. Such penalty shall be recovered in a civil action brought by the corporation counsel in the name of the city in any court of competent jurisdiction. In determining the amount of the civil penalty to be imposed the court shall consider:

1. The extent and severity of injury to persons and property caused by the violation;
2. The history of violations by the defendant at such premises, or any other premises, of laws or rules enforced by the department;
3. The degree of willfulness, recklessness, or negligence displayed by the defendant in committing the subject violation;
4. The defendant's financial resources; and
5. The defendant's good faith efforts to cure the subject violation, including efforts to obtain entry to or possession of the premises in order to do so.

In the event that the family of any person seriously injured or who has died as the result of any unlawful occupancy or use described in this section 28-214.3 is unable to collect a judgment recovered in a civil action for personal injury or wrongful death against a defendant who has violated this section 28-2 14.3 because of the insolvency of such defendant, the city may, in its discretion, pay to such injured person or the family of such deceased person an amount, as hereinafter provided, collected from such defendant in an action relating to the same injury or death commenced by the corporation counsel against such defendant pursuant to this section 28-214.3.1.

Payments pursuant to section 28-214.3.1 shall be made as a matter of grace and shall be in such amounts and in accordance with such standards and procedures as shall be established by the mayor, provided, however, that any payment made pursuant to section 28-214.3.1 shall be in an amount not exceeding out-of-pocket expenses, including indebtedness reasonably incurred for medical or other services necessary as a result of the injury upon which such action is based; loss of earnings or support resulting from such injury; burial expenses not exceeding two thousand five hundred dollars of a person who died as a result of such unlawful occupancy or use described in this section 28-214.3; and the unreimbursed cost of repair or replacement of articles of essential personal property lost, damaged or destroyed as a direct result of such unlawful occupancy or use. In no event shall the payment made to any person exceed the amount of such person's uncollected judgment for personal injury or wrongful death and in no event shall the total amount paid to any number of persons with such uncollected judgments against a single defendant exceed the actual amount collected by the city from such defendant in an action under this subdivision.