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Surprised owners receive code violations from NYS.

Surprised owners receive code violations from NYS

Surprised corporate building owners in New York City are receiving notices of some elevator and other violations via the Secretary of State, rather than receiving them by mail from the city.

The change has come about since these violations were added to other Building Department code offenses that are being heard before the city environmental Control Board's tribunal. The Secretary of State is authorized to serve legal documents upon corporations as a service to consumers.

In the past, said Community Housing Improvement Program (CHIP), Executive Director Dan Margulies, both corporate and other owners and managing agents were mailed the notices.

Vahe Tiryakian, a department of buildings spokesman, pointed out that the old notices, called DOB's, only contained a warning to "cure" the violations. "A DOB did not require anyone to show up at a hearing," he said. "There was no leverage or pressure on the owner to fix it and we would have to go back and reinspect before summoning them to court some six or eight weeks later. The ECBs have to be served in person on responsible parties authorized to accept service because in effect it acts as a summons."

It makes the inspectors more productive and the violations are also brought to court much faster, he said.

The problem, Margulies said, is that notices sent through the secretary of state are not getting to the owners in a timely fashion when they get there at all. "Those that do receive the notices end up at ECB hearings long after the elevators should already have been repaired," he said.

Cheryl Parsons Reul, special counsel to the secretary of state, said the notices are sent by certified mail from their office in Albany within about two days. It used to take longer, but, she said, they have improved the system. "My problem is trying to explain when the address isn't good," she said. The data base is public and, she said, the city might have better addresses and choose to serve in another manner. "They are good about this," she said.

Although the owner has 35 days from the date of the original violation to certify its correction or appear in court 10 days after that, the notices sent through the Secretary of State tend to arrive when the hearing is imminent and there is no time to mail back the certification of the correction of the violation.

This costs the city money, Margulies said, because the city still has to conduct the hearing and the owner has to come down and pay an attorney. "The only one saving money is the Building Department," he noted ruefully.

According to Tiryakian, the department now serves notice of certain violations on the Secretary of State if the owner of the proper is a corporation and no one authorized to receive service is on hand when the inspector comes.

"When we get a lot of elevator violations with corporate addresses, rather than having city process servers serve the ECB violations at $16 each," he said, "where our inspectors cannot serve them to a responsible party, we serve them on the Secretary of State as agent for the responsible corporation. This is the most cost effective way to do this."

"It may be a legal thing to do," Margulies noted, "but as a practical matter, it's a foolish thing to do and a classic example of how the city chooses to operate to be legalistic rather than practical."

Tiryakian said if the inspector can serve the violation on the premises to someone authorized to receive process, he will serve it. But otherwise it has to be served by a process server who tries two times before the notice is returned to the Department of Buildings where it is "turned into a DOB" and mailed out in the old manner.

Margulies said it appeared that "the level of the crime has been increased."

Tiryakian said the policy holds for other Department of Buildings violations, such as those for construction or electrical or plumbing problems. "This has been in effect since we've been at ECB," he said.

Twenty years ago, the Department of Environmental Protection set up the ECB to adjudicate their own air quality sanitation violations. Several other city agencies, such as the Department of Sanitation and the Fire Department, began to use the ECB as their hearing body as well. The DOB began using it for elevators in August 1990.

"Owners are not supposed to wait for a violation to know there is something wrong with the elevator," Tiryakian said. "Owners get told by the tenants. They are not to wait on us. They get complaints from the tenants and should be in touch with their superintendents."

"I'm sure that if the owner were riding in the elevator he would know," scoffed Margulies, who added that if tenants would call the owner and not complain to the city they would also know. Additionally, he said there are violations which only an inspector would notice. "It's not always reasonable that an owner would know of a violation," he added.

Tiryakian said owners should ensure that the Secretary of State has an updated address for service. If the corporate address changes and owners have not registered a new address with the Secretary of State, the notice will not be able to be served. If this is the case, Tiryakian said, the violation is entered into the property profile.

The violation would appear in the computers in the Building Information System which, he said, can be used in the borough offices. "Put in the address or the block and lot and see all the outstanding violations," he added. "It's a very quick and accurate way and will show you at a glance all the outstanding DOB and ECB violations. You can get a free printout, too."

Penalties for elevator violations for a first offense range from $150 to $1,500, while on a second offense they go from $375 to as high as $5,000 depending upon the kind of violation. In fiscal year 1991, the department issued 16,000 elevator violations.

"The important thing right now is to alert owners that these things can be in the mail," Margulies said, "and that they should update their addresses with the Secretary of State."
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Title Annotation:New York Secretary of State sending out notices rather than New York City Buildings Department mailing them
Author:Weiss, Lois
Publication:Real Estate Weekly
Date:Jan 1, 1992
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