Bill Text: NY A01310 | 2019-2020 | General Assembly | Introduced


Bill Title: Allows tenants the right to offset rent with payments made for the repair or service maintenance of an oil fired or other heating device where reasonable efforts were made to notify the landlord of the heating failure, the agency used is reasonably engaged in the business of making such repairs and an itemized bill for such service is provided.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Introduced) 2019-01-14 - referred to housing [A01310 Detail]

Download: New_York-2019-A01310-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1310
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    January 14, 2019
                                       ___________
        Introduced by M. of A. L. ROSENTHAL, DINOWITZ, JAFFEE -- Multi-Sponsored
          by  --  M. of A. CAHILL, CYMBROWITZ, EPSTEIN, GLICK, GOTTFRIED, PERRY,
          RIVERA -- read once and referred to the Committee on Housing
        AN ACT to amend the multiple dwelling law, the  multiple  residence  law
          and  the  real  property law, in relation to tenant's right to set off
          against rent for payments made due to  landlord's  failure  to  supply
          heat in certain cases
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 302-c of the multiple dwelling  law,  as  added  by
     2  chapter 85 of the laws of 1980, is amended to read as follows:
     3    §  302-c. Right of tenant to offset payments for heat failure; certain
     4  cases. 1. Any tenant acting alone or together with other  tenants  of  a
     5  multiple  dwelling  employing  an  oil fired or other heating device for
     6  which the owner is responsible and wherein there exists a lack  of  heat
     7  due  to  the owner's failure to repair or maintain the heating device or
     8  to have oil supplied to the premises,  may  contract  and  pay  for  the
     9  delivery of such oil or such maintenance or repairs, as the case may be,
    10  in  accordance  with the provisions of this section. Any payment so made
    11  shall  be  deductible  from  rent  [providing]  provided  the  following
    12  provisions  have been substantially complied with by the tenant or some-
    13  one acting on his behalf:
    14    a. Reasonable efforts were made to contact the owner or his  agent  to
    15  inform  the  owner  of  such  failure  to repair or maintain the heating
    16  device or to supply oil.
    17    b. Reasonable efforts were made to have the normal repair and  mainte-
    18  nance  service  agency  undertake  the  same  or to have the normal fuel
    19  supplier to the premises deliver the requested fuel, as the case may be.
    20    c. Delivery of fuel oil to the premises, if  that  be  the  case,  was
    21  secured  from  a  fuel  supplier regularly engaged in such business at a
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03320-01-9

        A. 1310                             2
     1  price within the range of prices listed by the department in  the  index
     2  provided for in subdivision three of this section.
     3    d.  Repairs or maintenance, if that be the case, to the heating device
     4  was  secured from a service agency regularly engaged in such business at
     5  a price substantially similar to the prices listed by the department  in
     6  the index provided for in subdivision four of this section.
     7    e.  The  repair  and  maintenance service agency or fuel supplier from
     8  whom service or oil is secured provided a written  statement  containing
     9  the following:
    10    (1)  The  name  of  the  person or persons who requested the repair or
    11  maintenance service or delivery; and
    12    (2) The date, time of and premises to which the repair or  maintenance
    13  service or delivery was made; and
    14    (3)  [The]  If  oil  was delivered, amount, grade and price of the oil
    15  [delivered]; and
    16    (4) [A] If oil was  delivered,  certification  that  the  usable  fuel
    17  supply before the delivery was exhausted; and
    18    (5) If repair or maintenance service was provided, the separate charg-
    19  es  for  equipment and parts used and labor expended, itemized and sepa-
    20  rately stated; and
    21    (6) The charge, if any, for refiring the burner; and
    22    [(6)] (7) The amounts and from whom any payments were received.
    23    [e] f. After such repair or maintenance work has been  undertaken,  if
    24  that  be the case, reasonable efforts were made by the tenant or tenants
    25  to notify all other tenants that such work has been undertaken,  includ-
    26  ing  posting  a  notice in a public area of the building which lists the
    27  date, time and extent of such work.  A tenant shall not be  required  to
    28  comply  with  the provisions of paragraph a or b hereof unless the owner
    29  has continuously kept posted in a conspicuous place at  the  premises  a
    30  notice  containing his name, address and telephone number or that of his
    31  agent and the name, address and telephone number of the repair and main-
    32  tenance service agency for the heating device or the  fuel  supplier  to
    33  the premises as the case may be.
    34    [f]  g.  For  purposes  of  this section, a multiple dwelling shall be
    35  considered to lack heat if, during the months between October first  and
    36  May  thirty-first,  while  its  heating  device  is inoperative due to a
    37  breakdown or malfunction or while its usable fuel supply was  exhausted,
    38  the  outdoor temperature fell below fifty-five degrees Fahrenheit at any
    39  time during the hours between six o'clock in the morning and ten o'clock
    40  in the evening.
    41    2. The deduction from rent allowed by this section shall also  include
    42  a  reasonable  charge, if any, made by the supplier for refiring the oil
    43  burner at the premises.
    44    3. The department charged with the enforcement of laws, ordinances and
    45  regulations in relation to multiple dwellings shall:
    46    a. Maintain and, to the extent practicable, update at least  bi-weekly
    47  an  index  reflecting the range of prices of fuel oil according to grade
    48  and quantity paid per gallon on deliveries within  the  jurisdiction  of
    49  the  department during the last two week period for which statistics are
    50  available; and
    51    b. Maintain and keep current and available a list of  suppliers  which
    52  have  agreed to make deliveries of fuel oil in the circumstances, and to
    53  render such assistance as [is] may otherwise  be  required  [hereby]  to
    54  enable tenants to obtain the benefits[,] contemplated by this section.
    55    4.    The  department charged with the enforcement of laws, ordinances
    56  and regulations in relation to multiple dwellings shall:

        A. 1310                             3
     1    a.  To the extent practicable maintain and update at least monthly  an
     2  index  reflecting  the  range of prices charged for emergency repair and
     3  maintenance of oil fired  and  other  heating  devices  including  usual
     4  charges  for  equipment,  parts  and  labor commonly used or expended in
     5  effecting such repair and maintenance; and
     6    b.  Maintain and keep current and available a list of repair and main-
     7  tenance  service  agencies which have agreed to provide such services in
     8  such circumstances and to render such assistance  as  may  otherwise  be
     9  reasonably  required  to  enable  tenants to obtain the benefits contem-
    10  plated by this section.
    11    5. The payment for repairs and maintenance or for fuel oil at a  price
    12  within  the range of prices permitted by paragraph c or d of subdivision
    13  one of this section, as the case may be, shall be conclusively  presumed
    14  to have been a reasonable price.
    15    [5]  6.  The introduction into evidence in any action or proceeding of
    16  any statement rendered in compliance with the  provisions  of  paragraph
    17  [d]  e  of  subdivision  one of this section shall be presumptive of the
    18  facts stated therein.  Sufficient  foundation  for  the  allowance  into
    19  evidence  of  such  statement shall consist of the oral testimony of any
    20  person named as a payer of all or part of the amount  indicated  thereon
    21  relating  the  facts  and  circumstances  in  which  the  statement  was
    22  rendered.
    23    [6] 7. Any tenant who has in good faith secured and paid for  repairs,
    24  maintenance  or fuel oil otherwise in conformance with the provisions of
    25  this section and  against  whom  an  action  or  proceeding  to  recover
    26  possession of the premises for nonpayment of rent or any other action or
    27  proceeding attributable at least in part to the tenant seeking or taking
    28  a  deduction  from rent as allowed by this section shall, in addition to
    29  any other amounts, be entitled to recover reasonable  costs  and  attor-
    30  ney's fees against an owner bringing such action or proceeding.
    31    [7]  8.  No owner or agent shall be entitled to recover any amounts in
    32  damages from any repair and  maintenance  service  agency  or  fuel  oil
    33  supplier  or an agent or employee thereof who attempts in good faith and
    34  acts reasonably to carry out  the  intendment  of  this  section  except
    35  damages arising out of gross negligence.
    36    [8]  9. The remedy provided in this section shall not be exclusive and
    37  a court may provide such other relief as may be just and proper  in  the
    38  circumstances.  Nothing  in  this section shall be construed to limit or
    39  deny any existing constitutional, statutory,  administrative  or  common
    40  law  right  of a tenant to contract and pay for the delivery of fuel oil
    41  for the multiple dwelling in which he resides or to pay for the cost  of
    42  any  other  goods  and services for such multiple dwelling. This section
    43  shall not be construed to preclude any defense, counterclaim or cause of
    44  action asserted by a tenant that may otherwise exist with respect to  an
    45  owner's failure to provide heat or any other service.
    46    [9]  10.  Any agreement by a tenant of a dwelling waiving or modifying
    47  his rights as set forth in this section shall be  void  as  contrary  to
    48  public policy.
    49    [10]  11.  The provisions of this section shall be liberally construed
    50  so as to give effect to the purposes set forth herein.
    51    § 2. Subdivision 11 of section 302-c of the multiple dwelling law,  as
    52  added by chapter 893 of the laws of 1982, is renumbered subdivision 12.
    53    §  3. Section 305-c of the multiple residence law, as added by chapter
    54  85 of the laws of 1980, is amended to read as follows:
    55    § 305-c. Right of tenant to offset payments for heat failure;  certain
    56  cases.  1.  Any  tenant acting alone or together with other tenants of a

        A. 1310                             4
     1  multiple dwelling employing an oil fired or  other  heating  device  for
     2  which  the  owner is responsible and wherein there exists a lack of heat
     3  due to the owner's failure to repair or maintain the heating  device  or
     4  to  have  oil  supplied  to  the  premises, may contract and pay for the
     5  delivery of such oil or such maintenance or repairs, as the case may be,
     6  in accordance with the provisions of this section. Any payment  so  made
     7  shall  be  deductible  from  rent  [providing]  provided  the  following
     8  provisions have been substantially complied with by the tenant or  some-
     9  one acting on his behalf:
    10    a.  Reasonable  efforts were made to contact the owner or his agent to
    11  inform the owner of such failure  to  repair  or  maintain  the  heating
    12  device or to supply oil.
    13    b.  Reasonable efforts were made to have the normal repair and mainte-
    14  nance service agency undertake the same  or  to  have  the  normal  fuel
    15  supplier to the premises deliver the requested fuel, as the case may be.
    16    c.  Delivery  of  fuel  oil  to the premises, if that be the case, was
    17  secured from a fuel supplier regularly engaged in  such  business  at  a
    18  price  within  the range of prices listed by the department in the index
    19  provided for in subdivision three of this section.
    20    d.  Repairs or maintenance, if that be the case, to the heating device
    21  was secured from a service agency regularly engaged in such business  at
    22  a  price substantially similar to the prices listed by the department in
    23  the index provided for in subdivision four of this section.
    24    e. The repair and maintenance service agency  or  fuel  supplier  from
    25  whom  service  or oil is secured provided a written statement containing
    26  the following:
    27    (1) The name of the person or persons  who  requested  the  repair  or
    28  maintenance service or delivery; and
    29    (2)  The date, time of and premises to which the repair or maintenance
    30  service or delivery was made; and
    31    (3) [The] If oil was delivered, amount, grade and  price  of  the  oil
    32  [delivered]; and
    33    (4)  [A]  If  oil  was  delivered,  certification that the usable fuel
    34  supply before the delivery was exhausted; and
    35    (5) If repair or maintenance service was provided, the separate charg-
    36  es for equipment and parts used and labor expended, itemized  and  sepa-
    37  rately stated; and
    38    (6) The charge, if any, for refiring the burner; and
    39    [(6)] (7) The amounts and from whom any payments were received.
    40    [e]  f.  After such repair or maintenance work has been undertaken, if
    41  that be the case, reasonable efforts were made by the tenant or  tenants
    42  to  notify all other tenants that such work has been undertaken, includ-
    43  ing posting a notice in a public area of the building  which  lists  the
    44  date,  time  and extent of such work.  A tenant shall not be required to
    45  comply with the provisions of paragraph a or b hereof unless  the  owner
    46  has  continuously  kept  posted in a conspicuous place at the premises a
    47  notice containing his name, address and telephone number or that of  his
    48  agent and the name, address and telephone number of the repair and main-
    49  tenance  service  agency  for the heating device or the fuel supplier to
    50  the premises as the case may be.
    51    [f] g. For purposes of this section,  a  multiple  dwelling  shall  be
    52  considered  to lack heat if, during the months between October first and
    53  May thirty-first, while its heating  device  is  inoperative  due  to  a
    54  breakdown  or malfunction or while its usable fuel supply was exhausted,
    55  the outdoor temperature fell below fifty-five degrees Fahrenheit at  any

        A. 1310                             5
     1  time during the hours between six o'clock in the morning and ten o'clock
     2  in the evening.
     3    2.  The deduction from rent allowed by this section shall also include
     4  a reasonable charge, if any, made by the supplier for refiring  the  oil
     5  burner at the premises.
     6    3. The department charged with the enforcement of laws, ordinances and
     7  regulations in relation to multiple dwellings shall:
     8    a.  Maintain and, to the extent practicable, update at least bi-weekly
     9  an index reflecting the range of prices of fuel oil according  to  grade
    10  and  quantity  paid  per gallon on deliveries within the jurisdiction of
    11  the department during the last two week period for which statistics  are
    12  available; and
    13    b.  Maintain  and keep current and available a list of suppliers which
    14  have agreed to make deliveries of fuel oil in the circumstances, and  to
    15  render  such  assistance  as  [is] may otherwise be required [hereby] to
    16  enable tenants to obtain the benefits[,] contemplated by this section.
    17    4.  The department charged with the enforcement  of  laws,  ordinances
    18  and regulations in relation to multiple dwellings shall:
    19    a.   To the extent practicable maintain and update at least monthly an
    20  index reflecting the range of prices charged for  emergency  repair  and
    21  maintenance  of  oil  fired  and  other  heating devices including usual
    22  charges for equipment, parts and labor  commonly  used  or  expended  in
    23  effecting such repair and maintenance; and
    24    b.  Maintain and keep current and available a list of repair and main-
    25  tenance  service  agencies which have agreed to provide such services in
    26  such circumstances and to render such assistance  as  may  otherwise  be
    27  reasonably  required  to  enable  tenants to obtain the benefits contem-
    28  plated by this section.
    29    5. The payment for repairs and maintenance or for fuel oil at a  price
    30  within  the range of prices permitted by paragraph c or d of subdivision
    31  one of this section, as the case may be, shall be conclusively  presumed
    32  to have been a reasonable price.
    33    [5]  6.  The introduction into evidence in any action or proceeding of
    34  any statement rendered in compliance with the  provisions  of  paragraph
    35  [d]  e  of  subdivision  one of this section shall be presumptive of the
    36  facts stated therein.  Sufficient  foundation  for  the  allowance  into
    37  evidence  of  such statement shall consist [in] of the oral testimony of
    38  any person named as a payer of all or part of the amount indicated ther-
    39  eon relating the facts and circumstances  in  which  the  statement  was
    40  rendered.
    41    [6]  7. Any tenant who has in good faith secured and paid for repairs,
    42  maintenance or fuel oil otherwise in conformance with the provisions  of
    43  this  section  and  against  whom  an  action  or  proceeding to recover
    44  possession of the premises for nonpayment of rent or any other action or
    45  proceeding attributable at least in part to the tenant seeking or taking
    46  a deduction from rent as allowed by this section shall, in  addition  to
    47  any  other  amounts,  be entitled to recover reasonable costs and attor-
    48  ney's fees against an owner bringing such action or proceeding.
    49    [7] 8. No owner or agent shall be entitled to recover any  amounts  in
    50  damages  from  any  repair  and  maintenance  service agency or fuel oil
    51  supplier or an agent or employee thereof who attempts in good faith  and
    52  acts  reasonably  to  carry  out  the  intendment of this section except
    53  damages arising out of gross negligence.
    54    [8] 9. The remedy provided in this section shall not be exclusive  and
    55  a  court  may provide such other relief as may be just and proper in the
    56  circumstances. Nothing in this section shall be construed  to  limit  or

        A. 1310                             6
     1  deny  any  existing  constitutional, statutory, administrative or common
     2  law right of a tenant to contract and pay for the delivery of  fuel  oil
     3  for  the multiple dwelling in which he resides or to pay for the cost of
     4  any  other  goods  and services for such multiple dwelling. This section
     5  shall not be construed to preclude any defense, counterclaim or cause of
     6  action asserted by a tenant that may otherwise exist with respect to  an
     7  owner's failure to provide heat or any other service.
     8    [9]  10.  Any agreement by a tenant of a dwelling waiving or modifying
     9  his rights as set forth in this section shall be  void  as  contrary  to
    10  public policy.
    11    [10]  11.  The provisions of this section shall be liberally construed
    12  so as to give effect to the purposes set forth herein.
    13    § 4. Subdivision 11 of section 305-c of the multiple residence law, as
    14  added by chapter 893 of the laws of 1982, is renumbered subdivision 12.
    15    § 5. Section 235 of the real property law, as amended by chapter 85 of
    16  the laws of 1980, is amended to read as follows:
    17    § 235. Wilful violations. 1. Any lessor, agent,  manager,  superinten-
    18  dent  or  janitor  of any building, or part thereof, the lease or rental
    19  agreement whereof by its  terms,  expressed  or  implied,  requires  the
    20  furnishing  of  hot or cold water, heat, light, power, elevator service,
    21  telephone service or any other service or facility to  any  occupant  of
    22  said  building,  who  wilfully  or  intentionally  fails to furnish such
    23  water, heat, light, power, elevator service, telephone service or  other
    24  service or facility at any time when the same are necessary to the prop-
    25  er  or  customary  use of such building, or part thereof, or any lessor,
    26  agent, manager, superintendent or janitor who wilfully and intentionally
    27  interferes with the quiet enjoyment of the leased premises by such occu-
    28  pant, is guilty of a violation.
    29    2. Any lessor, agent, manager, superintendent or janitor of any build-
    30  ing, or part thereof, who wilfully or intentionally acts to  prevent  or
    31  obstruct  the  provision  of  repairs  or maintenance to an oil fired or
    32  other heating device or the delivery of fuel oil ordered  in  compliance
    33  with  either section three hundred two-c of the multiple dwelling law or
    34  section three hundred five-c of the multiple residence law or the refir-
    35  ing of an oil burner after such [a] provision of service or  delivery of
    36  oil shall be guilty of a violation.
    37    § 6. This act shall take effect immediately,  provided  that  sections
    38  two  and  four of this act shall take effect on the same date as chapter
    39  471  of the laws of 1978 takes effect pursuant to  chapter  893  of  the
    40  laws of 1982.
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