S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2365
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 Introduced by Sen. ALCANTARA -- read twice and ordered printed, and when
   printed  to be committed to the Committee on Housing, Construction and
   Community Development
 
 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:
 
   Section 1. Section 302-c of the multiple dwelling  law,  as  added  by
 chapter 85 of the laws of 1980, is amended to read as follows:
   §  302-c. Right of tenant to offset payments for heat failure; certain
 cases. 1. Any tenant acting alone or together with other  tenants  of  a
 multiple  dwelling  employing  an  oil fired OR OTHER heating device for
 which the owner is responsible and wherein there exists a lack  of  heat
 due  to  the owner's failure TO REPAIR OR MAINTAIN THE HEATING DEVICE OR
 to have oil supplied to the premises,  may  contract  and  pay  for  the
 delivery of such oil OR SUCH MAINTENANCE OR REPAIRS, AS THE CASE MAY BE,
 in  accordance  with the provisions of this section. Any payment so made
 shall  be  deductible  from  rent  [providing]  PROVIDED  the  following
 provisions  have been substantially complied with by the tenant or some-
 one acting on his behalf:
   a. Reasonable efforts were made to contact the owner or his  agent  to
 inform  the  owner  of  such  failure  TO REPAIR OR MAINTAIN THE HEATING
 DEVICE OR to supply oil.
   b. Reasonable efforts were made to have the normal REPAIR AND  MAINTE-
 NANCE  SERVICE  AGENCY  UNDERTAKE  THE  SAME  OR TO HAVE THE NORMAL fuel
 supplier to the premises deliver the requested fuel, AS THE CASE MAY BE.
   c. Delivery of fuel oil to the premises, IF  THAT  BE  THE  CASE,  was
 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.
                                                            LBD05101-01-7
              

 S. 2365                             2
 
 price within the range of prices listed by the department in  the  index
 provided for in subdivision three of this section.
   d.  REPAIRS OR MAINTENANCE, IF THAT BE THE CASE, TO THE HEATING DEVICE
 WAS  SECURED FROM A SERVICE AGENCY REGULARLY ENGAGED IN SUCH BUSINESS AT
 A PRICE SUBSTANTIALLY SIMILAR TO THE PRICES LISTED BY THE DEPARTMENT  IN
 THE INDEX PROVIDED FOR IN SUBDIVISION FOUR OF THIS SECTION.
   E.  The  REPAIR  AND  MAINTENANCE SERVICE AGENCY OR fuel supplier from
 whom SERVICE OR oil is secured provided a written  statement  containing
 the following:
   (1)  The  name  of  the  person or persons who requested the REPAIR OR
 MAINTENANCE SERVICE OR delivery; and
   (2) The date, time of and premises to which THE REPAIR OR  MAINTENANCE
 SERVICE OR delivery was made; and
   (3)  [The]  IF  OIL  WAS DELIVERED, amount, grade and price of the oil
 [delivered]; and
   (4) [A] IF OIL WAS  DELIVERED,  certification  that  the  usable  fuel
 supply before the delivery was exhausted; and
   (5) IF REPAIR OR MAINTENANCE SERVICE WAS PROVIDED, THE SEPARATE CHARG-
 ES  FOR  EQUIPMENT AND PARTS USED AND LABOR EXPENDED, ITEMIZED AND SEPA-
 RATELY STATED; AND
   (6) The charge, if any, for refiring the burner; and
   [(6)] (7) The amounts and from whom any payments were received.
   [e] F. AFTER SUCH REPAIR OR MAINTENANCE WORK HAS BEEN  UNDERTAKEN,  IF
 THAT  BE THE CASE, REASONABLE EFFORTS WERE MADE BY THE TENANT OR TENANTS
 TO NOTIFY ALL OTHER TENANTS THAT SUCH WORK HAS BEEN UNDERTAKEN,  INCLUD-
 ING  POSTING  A  NOTICE IN A PUBLIC AREA OF THE BUILDING WHICH LISTS THE
 DATE, TIME AND EXTENT OF SUCH WORK.  A tenant shall not be  required  to
 comply  with  the provisions of paragraph a or b hereof unless the owner
 has continuously kept posted in a conspicuous place at  the  premises  a
 notice  containing his name, address and telephone number or that of his
 agent and the name, address and telephone number of the REPAIR AND MAIN-
 TENANCE SERVICE AGENCY FOR THE HEATING DEVICE OR THE  fuel  supplier  to
 the premises AS THE CASE MAY BE.
   [f]  G.  For  purposes  of  this section, a multiple dwelling shall be
 considered to lack heat if, during the months between October first  and
 May  thirty-first,  while  ITS  HEATING  DEVICE  IS INOPERATIVE DUE TO A
 BREAKDOWN OR MALFUNCTION OR WHILE its usable fuel supply was  exhausted,
 the  outdoor temperature fell below fifty-five degrees Fahrenheit at any
 time during the hours between six o'clock in the morning and ten o'clock
 in the evening.
   2. The deduction from rent allowed by this section shall also  include
 a  reasonable  charge, if any, made by the supplier for refiring the oil
 burner at the premises.
   3. The department charged with the enforcement of laws, ordinances and
 regulations in relation to multiple dwellings shall:
   a. Maintain and, to the extent practicable, update at least  bi-weekly
 an  index  reflecting the range of prices of fuel oil according to grade
 and quantity paid per gallon on deliveries within  the  jurisdiction  of
 the  department during the last two week period for which statistics are
 available; and
   b. Maintain and keep current and available a list of  suppliers  which
 have  agreed to make deliveries of fuel oil in the circumstances, and to
 render such assistance as [is] MAY otherwise  BE  required  [hereby]  to
 enable tenants to obtain the benefits[,] contemplated by this section.
   4.    THE  DEPARTMENT CHARGED WITH THE ENFORCEMENT OF LAWS, ORDINANCES
 AND REGULATIONS IN RELATION TO MULTIPLE DWELLINGS SHALL:

 S. 2365                             3
 
   A.  TO THE EXTENT PRACTICABLE MAINTAIN AND UPDATE AT LEAST MONTHLY  AN
 INDEX  REFLECTING  THE  RANGE OF PRICES CHARGED FOR EMERGENCY REPAIR AND
 MAINTENANCE OF OIL FIRED  AND  OTHER  HEATING  DEVICES  INCLUDING  USUAL
 CHARGES  FOR  EQUIPMENT,  PARTS  AND  LABOR COMMONLY USED OR EXPENDED IN
 EFFECTING SUCH REPAIR AND MAINTENANCE; AND
   B.  MAINTAIN AND KEEP CURRENT AND AVAILABLE A LIST OF REPAIR AND MAIN-
 TENANCE  SERVICE  AGENCIES WHICH HAVE AGREED TO PROVIDE SUCH SERVICES IN
 SUCH CIRCUMSTANCES AND TO RENDER SUCH ASSISTANCE  AS  MAY  OTHERWISE  BE
 REASONABLY  REQUIRED  TO  ENABLE  TENANTS TO OBTAIN THE BENEFITS CONTEM-
 PLATED BY THIS SECTION.
   5. The payment FOR REPAIRS AND MAINTENANCE OR for fuel oil at a  price
 within  the range of prices permitted by paragraph c OR D of subdivision
 one of this section, AS THE CASE MAY BE, shall be conclusively  presumed
 to have been a reasonable price.
   [5]  6.  The introduction into evidence in any action or proceeding of
 any statement rendered in compliance with the  provisions  of  paragraph
 [d]  E  of  subdivision  one of this section shall be presumptive of the
 facts stated therein.  Sufficient  foundation  for  the  allowance  into
 evidence  of  such  statement shall consist of the oral testimony of any
 person named as a payer of all or part of the amount  indicated  thereon
 relating  the  facts  and  circumstances  in  which  the  statement  was
 rendered.
   [6] 7. Any tenant who has in good faith secured and paid for  REPAIRS,
 MAINTENANCE  OR fuel oil otherwise in conformance with the provisions of
 this section and  against  whom  an  action  or  proceeding  to  recover
 possession of the premises for nonpayment of rent or any other action or
 proceeding attributable at least in part to the tenant seeking or taking
 a  deduction  from rent as allowed by this section shall, in addition to
 any other amounts, be entitled to recover reasonable  costs  and  attor-
 ney's fees against an owner bringing such action or proceeding.
   [7]  8.  No owner or agent shall be entitled to recover any amounts in
 damages from any REPAIR AND  MAINTENANCE  SERVICE  AGENCY  OR  fuel  oil
 supplier  OR AN AGENT OR EMPLOYEE THEREOF who attempts in good faith and
 acts reasonably to carry out  the  intendment  of  this  section  except
 damages arising out of gross negligence.
   [8]  9. The remedy provided in this section shall not be exclusive and
 a court may provide such other relief as may be just and proper  in  the
 circumstances.  Nothing  in  this section shall be construed to limit or
 deny any existing constitutional, statutory,  administrative  or  common
 law  right  of a tenant to contract and pay for the delivery of fuel oil
 for the multiple dwelling in which he resides or to pay for the cost  of
 any  other  goods  and services for such multiple dwelling. This section
 shall not be construed to preclude any defense, counterclaim or cause of
 action asserted by a tenant that may otherwise exist with respect to  an
 owner's failure to provide heat or any other service.
   [9]  10.  Any agreement by a tenant of a dwelling waiving or modifying
 his rights as set forth in this section shall be  void  as  contrary  to
 public policy.
   [10]  11.  The provisions of this section shall be liberally construed
 so as to give effect to the purposes set forth herein.
   § 2. Subdivision 11 of section 302-c of the multiple dwelling law,  as
 added by chapter 893 of the laws of 1982, is renumbered subdivision 12.
   §  3. Section 305-c of the multiple residence law, as added by chapter
 85 of the laws of 1980, is amended to read as follows:
   § 305-c. Right of tenant to offset payments for heat failure;  certain
 cases.  1.  Any  tenant acting alone or together with other tenants of a

 S. 2365                             4
 
 multiple dwelling employing an oil fired OR  OTHER  heating  device  for
 which  the  owner is responsible and wherein there exists a lack of heat
 due to the owner's failure TO REPAIR OR MAINTAIN THE HEATING  DEVICE  OR
 to  have  oil  supplied  to  the  premises, may contract and pay for the
 delivery of such oil OR SUCH MAINTENANCE OR REPAIRS, AS THE CASE MAY BE,
 in accordance with the provisions of this section. Any payment  so  made
 shall  be  deductible  from  rent  [providing]  PROVIDED  the  following
 provisions have been substantially complied with by the tenant or  some-
 one acting on his behalf:
   a.  Reasonable  efforts were made to contact the owner or his agent to
 inform the owner of such failure  TO  REPAIR  OR  MAINTAIN  THE  HEATING
 DEVICE OR to supply oil.
   b.  Reasonable efforts were made to have the normal REPAIR AND MAINTE-
 NANCE SERVICE AGENCY UNDERTAKE THE SAME  OR  TO  HAVE  THE  NORMAL  fuel
 supplier to the premises deliver the requested fuel, AS THE CASE MAY BE.
   c.  Delivery  of  fuel  oil  to the premises, IF THAT BE THE CASE, was
 secured from a fuel supplier regularly engaged in  such  business  at  a
 price  within  the range of prices listed by the department in the index
 provided for in subdivision three of this section.
   d.  REPAIRS OR MAINTENANCE, IF THAT BE THE CASE, TO THE HEATING DEVICE
 WAS SECURED FROM A SERVICE AGENCY REGULARLY ENGAGED IN SUCH BUSINESS  AT
 A  PRICE SUBSTANTIALLY SIMILAR TO THE PRICES LISTED BY THE DEPARTMENT IN
 THE INDEX PROVIDED FOR IN SUBDIVISION FOUR OF THIS SECTION.
   E. The REPAIR AND MAINTENANCE SERVICE AGENCY  OR  fuel  supplier  from
 whom  SERVICE  OR oil is secured provided a written statement containing
 the following:
   (1) The name of the person or persons  who  requested  the  REPAIR  OR
 MAINTENANCE SERVICE OR delivery; and
   (2)  The date, time of and premises to which THE REPAIR OR MAINTENANCE
 SERVICE OR delivery was made; and
   (3) [The] IF OIL WAS DELIVERED, amount, grade and  price  of  the  oil
 [delivered]; and
   (4)  [A]  IF  OIL  WAS  DELIVERED,  certification that the usable fuel
 supply before the delivery was exhausted; and
   (5) IF REPAIR OR MAINTENANCE SERVICE WAS PROVIDED, THE SEPARATE CHARG-
 ES FOR EQUIPMENT AND PARTS USED AND LABOR EXPENDED, ITEMIZED  AND  SEPA-
 RATELY STATED; AND
   (6) The charge, if any, for refiring the burner; and
   [(6)] (7) The amounts and from whom any payments were received.
   [e]  F.  AFTER SUCH REPAIR OR MAINTENANCE WORK HAS BEEN UNDERTAKEN, IF
 THAT BE THE CASE, REASONABLE EFFORTS WERE MADE BY THE TENANT OR  TENANTS
 TO  NOTIFY ALL OTHER TENANTS THAT SUCH WORK HAS BEEN UNDERTAKEN, INCLUD-
 ING POSTING A NOTICE IN A PUBLIC AREA OF THE BUILDING  WHICH  LISTS  THE
 DATE,  TIME  AND EXTENT OF SUCH WORK.  A tenant shall not be required to
 comply with the provisions of paragraph a or b hereof unless  the  owner
 has  continuously  kept  posted in a conspicuous place at the premises a
 notice containing his name, address and telephone number or that of  his
 agent and the name, address and telephone number of the REPAIR AND MAIN-
 TENANCE  SERVICE  AGENCY  FOR THE HEATING DEVICE OR THE fuel supplier to
 the premises AS THE CASE MAY BE.
   [f] G. For purposes of this section,  a  multiple  dwelling  shall  be
 considered  to lack heat if, during the months between October first and
 May thirty-first, while ITS HEATING  DEVICE  IS  INOPERATIVE  DUE  TO  A
 BREAKDOWN  OR MALFUNCTION OR WHILE its usable fuel supply was exhausted,
 the outdoor temperature fell below fifty-five degrees Fahrenheit at  any

 S. 2365                             5
 
 time during the hours between six o'clock in the morning and ten o'clock
 in the evening.
   2.  The deduction from rent allowed by this section shall also include
 a reasonable charge, if any, made by the supplier for refiring  the  oil
 burner at the premises.
   3. The department charged with the enforcement of laws, ordinances and
 regulations in relation to multiple dwellings shall:
   a.  Maintain and, to the extent practicable, update at least bi-weekly
 an index reflecting the range of prices of fuel oil according  to  grade
 and  quantity  paid  per gallon on deliveries within the jurisdiction of
 the department during the last two week period for which statistics  are
 available; and
   b.  Maintain  and keep current and available a list of suppliers which
 have agreed to make deliveries of fuel oil in the circumstances, and  to
 render  such  assistance  as  [is] MAY otherwise BE required [hereby] to
 enable tenants to obtain the benefits[,] contemplated by this section.
   4.  THE DEPARTMENT CHARGED WITH THE ENFORCEMENT  OF  LAWS,  ORDINANCES
 AND REGULATIONS IN RELATION TO MULTIPLE DWELLINGS SHALL:
   A.   TO THE EXTENT PRACTICABLE MAINTAIN AND UPDATE AT LEAST MONTHLY AN
 INDEX REFLECTING THE RANGE OF PRICES CHARGED FOR  EMERGENCY  REPAIR  AND
 MAINTENANCE  OF  OIL  FIRED  AND  OTHER  HEATING DEVICES INCLUDING USUAL
 CHARGES FOR EQUIPMENT, PARTS AND LABOR  COMMONLY  USED  OR  EXPENDED  IN
 EFFECTING SUCH REPAIR AND MAINTENANCE; AND
   B.  MAINTAIN AND KEEP CURRENT AND AVAILABLE A LIST OF REPAIR AND MAIN-
 TENANCE  SERVICE  AGENCIES WHICH HAVE AGREED TO PROVIDE SUCH SERVICES IN
 SUCH CIRCUMSTANCES AND TO RENDER SUCH ASSISTANCE  AS  MAY  OTHERWISE  BE
 REASONABLY  REQUIRED  TO  ENABLE  TENANTS TO OBTAIN THE BENEFITS CONTEM-
 PLATED BY THIS SECTION.
   5. The payment FOR REPAIRS AND MAINTENANCE OR for fuel oil at a  price
 within  the range of prices permitted by paragraph c OR D of subdivision
 one of this section, AS THE CASE MAY BE, shall be conclusively  presumed
 to have been a reasonable price.
   [5]  6.  The introduction into evidence in any action or proceeding of
 any statement rendered in compliance with the  provisions  of  paragraph
 [d]  E  of  subdivision  one of this section shall be presumptive of the
 facts stated therein.  Sufficient  foundation  for  the  allowance  into
 evidence  of  such statement shall consist [in] OF the oral testimony of
 any person named as a payer of all or part of the amount indicated ther-
 eon relating the facts and circumstances  in  which  the  statement  was
 rendered.
   [6]  7. Any tenant who has in good faith secured and paid for REPAIRS,
 MAINTENANCE OR fuel oil otherwise in conformance with the provisions  of
 this  section  and  against  whom  an  action  or  proceeding to recover
 possession of the premises for nonpayment of rent or any other action or
 proceeding attributable at least in part to the tenant seeking or taking
 a deduction from rent as allowed by this section shall, in  addition  to
 any  other  amounts,  be entitled to recover reasonable costs and attor-
 ney's fees against an owner bringing such action or proceeding.
   [7] 8. No owner or agent shall be entitled to recover any  amounts  in
 damages  from  any  REPAIR  AND  MAINTENANCE  SERVICE AGENCY OR fuel oil
 supplier OR AN AGENT OR EMPLOYEE THEREOF who attempts in good faith  and
 acts  reasonably  to  carry  out  the  intendment of this section except
 damages arising out of gross negligence.
   [8] 9. The remedy provided in this section shall not be exclusive  and
 a  court  may provide such other relief as may be just and proper in the
 circumstances. Nothing in this section shall be construed  to  limit  or

 S. 2365                             6
 
 deny  any  existing  constitutional, statutory, administrative or common
 law right of a tenant to contract and pay for the delivery of  fuel  oil
 for  the multiple dwelling in which he resides or to pay for the cost of
 any  other  goods  and services for such multiple dwelling. This section
 shall not be construed to preclude any defense, counterclaim or cause of
 action ASSERTED BY A TENANT that may otherwise exist with respect to  an
 owner's failure to provide heat or any other service.
   [9]  10.  Any agreement by a tenant of a dwelling waiving or modifying
 his rights as set forth in this section shall be  void  as  contrary  to
 public policy.
   [10]  11.  The provisions of this section shall be liberally construed
 so as to give effect to the purposes set forth herein.
   § 4. Subdivision 11 of section 305-c of the multiple residence law, as
 added by chapter 893 of the laws of 1982, is renumbered subdivision 12.
   § 5. Section 235 of the real property law, as amended by chapter 85 of
 the laws of 1980, is amended to read as follows:
   § 235. Wilful violations. 1. Any lessor, agent,  manager,  superinten-
 dent  or  janitor  of any building, or part thereof, the lease or rental
 agreement whereof by its  terms,  expressed  or  implied,  requires  the
 furnishing  of  hot or cold water, heat, light, power, elevator service,
 telephone service or any other service or facility to  any  occupant  of
 said  building,  who  wilfully  or  intentionally  fails to furnish such
 water, heat, light, power, elevator service, telephone service or  other
 service or facility at any time when the same are necessary to the prop-
 er  or  customary  use of such building, or part thereof, or any lessor,
 agent, manager, superintendent or janitor who wilfully and intentionally
 interferes with the quiet enjoyment of the leased premises by such occu-
 pant, is guilty of a violation.
   2. Any lessor, agent, manager, superintendent or janitor of any build-
 ing, or part thereof, who wilfully or intentionally acts to  prevent  or
 obstruct  the  PROVISION  OF  REPAIRS  OR MAINTENANCE TO AN OIL FIRED OR
 OTHER HEATING DEVICE OR THE delivery of fuel oil ordered  in  compliance
 with  either section three hundred two-c of the multiple dwelling law or
 section three hundred five-c of the multiple residence law or the refir-
 ing of an oil burner after such [a] PROVISION OF SERVICE OR  delivery OF
 OIL shall be guilty of a violation.
   § 6. This act shall take effect immediately,  provided  that  sections
 two  and  four of this act shall take effect on the same date as chapter
 471  of the laws of 1978 takes effect pursuant to  chapter  893  of  the
 laws of 1982.