Sometimes, for up to fourteen additional days, at HPD's sole discretion, and only on a showing that prompt action was taken but full correction cannot be completed in time. HPD's rule for these violations puts the application in the five days preceding the correction date.
The window is narrow and the contents are specified. An access-based application has to include the written notice you sent the tenant and proof of delivery by certified or registered mail, which cannot be manufactured at the deadline.
The grounds
An application must show that prompt action to correct was taken, but that full correction cannot be completed within the time provided, because of:
- serious technical difficulties
- inability to obtain necessary materials, funds or labor
- inability to gain access to the dwelling unit where the violation exists, or such other portion of the building as may be necessary to make the repair
Prompt action is part of the test, not a formality. An application that describes a problem without describing what was already done is not making the showing the rule asks for.
What the application must contain
In writing, and specific. HPD's rule asks for:
- A detailed statement of the prompt actions already taken to correct the violation.
- The specific circumstances preventing full correction within the time provided.
- An explanation of how the correction will be completed within the additional fourteen days.
If the ground is inability to gain access, the application must additionally include:
- A description of the steps taken to gain access.
- The written notice sent to the tenant informing them of the hazard and the need for access.
- Proof of delivery of that notice by certified or registered mail.
- An explanation of why access could not be gained.
Proof of delivery by certified or registered mail is the requirement that cannot be assembled at the last minute. Our practice is to send the written notice when the violation arrives rather than wait to see whether access becomes a problem. See the access page for how that one letter also supports a defence and an inspection fee objection.
When to file, and a wrinkle in the sources
Three provisions describe the timing of a postponement application, and they do not say the same thing.
- 28 RCNY §54-03, the rule for these violations The application must be made within the five days preceding the date set for correction.
- Administrative Code §27-2017.4(d), the pest provision Upon a showing made within the time set for correction in the notice.
- Administrative Code §27-2115(c), the general rule Within the time set for correction, and for immediately hazardous violations, prior to the close of business on the next full day the department is open following the period set for correction.
We follow §54-03, because it is the rule written for indoor allergen hazard violations specifically and it is the tightest of the three. Filing inside the five days preceding the correction date satisfies all of them.
That is also the practical instruction regardless of which formulation a reader lands on: prepare the application early enough that it can be filed before the correction date rather than after it. Anyone relying on the later reading is betting a violation on a cross-reference.
§54-03 states that no postponement may be requested for a hazardous violation that has become immediately hazardous under §27-2017.3a(4) or (5). §27-2017.3 is the section on visible mold, and those paragraphs cover mold escalation. There is no pest equivalent, because cockroaches, mice or rats in a room are immediately hazardous from the outset under §27-2017.4(b).
What HPD can attach to a grant
A postponement is not simply extra time. HPD determines the application in writing, and both the rule and the statute allow conditions.
Under the indoor allergen hazard rule, HPD may impose conditions including prompt repair or removal of harborages. Under the general provision, HPD may condition a postponement on the applicant's written agreement to correct all violations placed against the premises by HPD or another appropriate governmental agency, and to satisfy within an appropriate period all sums owing to HPD for repairs made to the premises.
Read that before applying on a building with other open conditions or unpaid repair charges. The extension may come attached to a commitment considerably larger than the violation you were trying to solve.
The new correction date may not exceed fourteen days from the date of correction set in the notice.
Why this beats an optimistic certification
HPD has stated in its own annual reports that the twenty-one day period may not be sufficient to completely eradicate an infestation, that it can take several treatments over the course of months, and that owners working in good faith may therefore produce inflated numbers of false certifications.
The postponement is the lawful mechanism available when qualifying circumstances prevent timely completion. Trying to solve a deadline you cannot meet with a sworn statement you cannot support creates a much larger problem, and the exposure on that runs to a civil penalty for each false certification plus misdemeanor liability. Fourteen extra days on an open violation is a considerably smaller problem.
There is a second reason on the access side. In an action for failing to correct, inability to gain access is a defence only where a postponement was granted. A building that could not get in and never applied has neither the extension nor the defence.
The sequence
Day one, as we run it
Our practice is to send the written notice to the tenant by certified or registered mail if the cited condition is inside an occupied unit. Doing it early preserves the evidence an access-based application may later require.
Assess the gap early
Early enough to assemble the application before the five-day filing window opens. Waiting until the correction date to discover the work will not be finished removes the option entirely.
File inside the window, in writing
With the detailed statement, the circumstances, the completion plan, and, for access, the notice and the delivery proof.
Keep working while it is pending
It is granted at HPD's sole discretion, and a complete application is not an entitlement.
Treating the postponement as an administrative formality and applying without the required contents, particularly the certified or registered mail proof on an access-based application. The second is filing outside the window, in either direction.
Sources
- 28 RCNY §54-03 — postponement of correction date (PDF)
- NYC Administrative Code §27-2017.4(d), §27-2115(c) and §27-2115(o) (PDF)
- HPD — Clear Violations
- HPD — Indoor Allergen Hazards (Mold, Mice, Roaches and Rats)
We work inside this code every day. We are a pest control company and not your attorney, and this is general information rather than advice about your building. For anything with a filing deadline or a dollar figure attached, involve counsel. Where our sources conflict with each other, we say so on the page rather than picking one quietly.
Deadline close and the work not finished?
Send us the violation and the correction date. We'll tell you whether the work can finish in time and what a postponement application would need from you.
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