Sanjurjo v Milio, 2021 NY Slip Op 50208(U) [70 Misc 3d 1224(A)]

respondent is no longer an owner, and economic infeasibility recognized as valid defenses]). The
Housing Maintenance Code ("HMC") contemplates the delay an owner might encounter in
obtaining permits. However, such delays are specifically referenced as a defense to civil
penalties. (see § 27-2116(b)(2)(ii)). § 27-2116 is entitled, "Enforcement of
civil penalty; powers of housing part of the civil court, collection of [*4]judgment." As such, respondent's fourth affirmative defense is
dismissed.[FN8]

Citing to HMC § 27-2115(b), respondent's fifth and sixth affirmative defenses allege
that no affidavits of proper mailing of each notice of violation exist and that the notices of
violations were not properly served on respondent. Thus, respondent argues, the time frame for
correction of conditions described in the notices of violations never began. Here, again,
respondent conflates a defense to the imposition of civil penalties with a defense to an order to
correct. While improper service of a notice of violation might constitute a defense to the former,
it is not a defense to the latter.

Furthermore, the court notes that service of a notice of violation on an owner is of no import
in this tenant-initiated action. While the HMC does require DHPD to serve a notice of violation
upon an owner, and a failure to do so can constitute a defense to a DHPD-initiated HP
proceeding, (§27-2115(b); D'Agostino v Forty-Three E. Equities Corp., 12 Misc 3d 486,
489-90 (Civ Ct, New York County 2006), aff'd on other grounds, 16 Misc 3d 59 (App
Term, 1st Dept 2007), a tenant "may ... apply to the [H]ousing [P]art for an order" if HPD "fail[s]
to issue a notice of violation ...." (HMC §27-2115(h)(1)). As such, in a tenant-initiated HP