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.