S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1423

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced by M. of A. WRIGHT, KAVANAGH, ESPAILLAT -- Multi-Sponsored by
  --  M.  of A. BOYLAND, COLTON, FARRELL, TOWNS, WEISENBERG -- read once
  and referred to the Committee on Housing

AN ACT to amend the multiple residence law  and  the  multiple  dwelling
  law,  in  relation  to the correction of habitability-impairing condi-
  tions by the tenant

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  multiple  residence  law  is amended by adding a new
section 305-b to read as follows:
  S 305-B. RIGHT OF TENANT TO OFFSET PAYMENTS FOR HABITABILITY-IMPAIRING
CONDITIONS; CERTAIN CASES. 1. ANY TENANT ACTING ALONE OR  TOGETHER  WITH
OTHER  TENANTS  OF  A MULTIPLE DWELLING WHEREIN THERE EXISTS ONE OR MORE
HABITABILITY-IMPAIRING CONDITIONS DUE TO THE OWNER'S FAILURE TO MAINTAIN
THE PREMISES, MAY CONTRACT AND PAY FOR THE CORRECTION OF SUCH  CONDITION
IN  ACCORDANCE  WITH THE PROVISIONS OF THIS SECTION. ANY PAYMENT SO MADE
SHALL BE DEDUCTIBLE FROM RENT PROVIDING THE  FOLLOWING  PROVISIONS  HAVE
BEEN  SUBSTANTIALLY COMPLIED WITH BY THE TENANT OR SOMEONE ACTING ON HIS
OR HER BEHALF:
  A. THE LANDLORD OR HIS OR HER AGENT WAS  GIVEN  AT  LEAST  SEVEN  DAYS
WRITTEN  NOTICE THAT ACTION WOULD BE TAKEN UNDER THIS SECTION IF CORREC-
TIVE MEASURES WERE NOT RENDERED.
  B. REASONABLE EFFORTS WERE MADE TO HAVE THE CONDITION REMEDIED BY  THE
LANDLORD'S USUAL TRADESMAN, IF KNOWN TO THE TENANT.
  C.  REPAIR  OF THE CONDITION WAS MADE BY A TRADESMAN REGULARLY ENGAGED
IN THE APPROPRIATE TRADE AT A REASONABLE PRICE.
  D. THE CONTRACTOR PROVIDED A WRITTEN STATEMENT CONTAINING THE  FOLLOW-
ING:
  (1) THE NAME OF THE PERSON OR PERSONS WHO REQUESTED THE SERVICES; AND
  (2) THE DATE, TIME OF AND PREMISES AT WHICH REPAIRS WERE MADE; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD00125-01-9

A. 1423                             2

  (3) THE COST OF LABOR AND MATERIALS; AND
  (4) A CERTIFICATION THAT THE SERVICES WERE NECESSARY; AND
  (5) THE AMOUNTS AND FROM WHOM ANY PAYMENTS WERE RECEIVED.
  E.  AFTER RENDITION OF SERVICES, THE LANDLORD WAS SENT BY THE TENANT A
COPY OF THE BILL FROM THE CONTRACTOR AND A STATEMENT OF THE  AMOUNTS  TO
BE DEDUCTED FROM THE TENANT'S OR TENANTS' RENT FOR THE MONTH.
  F.  A  TENANT  SHALL  NOT BE REQUIRED TO COMPLY WITH THE PROVISIONS OF
PARAGRAPH A OR B OF THIS SUBDIVISION UNLESS THE OWNER  HAS  CONTINUOUSLY
KEPT  POSTED  IN A CONSPICUOUS PLACE AT THE PREMISES A NOTICE CONTAINING
HIS OR HER NAME, ADDRESS AND TELEPHONE NUMBER OR  THAT  OF  HIS  OR  HER
AGENT AND THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE SUPPLIER OF SUCH
SERVICES TO THE PREMISES.
  2. 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 APPLICABLE WAGE RATES OF SUCH  SERVICES
WITHIN THE JURISDICTION OF THE DEPARTMENT DURING THE LAST TWO WEEK PERI-
OD FOR WHICH STATISTICS ARE AVAILABLE;
  B. MAINTAIN AND KEEP CURRENT AND AVAILABLE A LIST OF CONTRACTORS WHICH
HAVE  AGREED  TO  MAKE  SUCH REPAIRS IN THE CIRCUMSTANCES, AND TO RENDER
SUCH ASSISTANCE AS IS OTHERWISE REQUIRED HEREBY  TO  ENABLE  TENANTS  TO
OBTAIN THE BENEFITS, CONTEMPLATED BY THIS SECTION; AND
  C.  RECEIVE  AND  COMPILE  COMPLAINTS  FROM TENANTS WHO WERE UNABLE TO
PERSUADE   THEIR   LANDLORDS   TO   TAKE   CORRECTIVE    MEASURES    FOR
HABITABILITY-IMPAIRING CONDITIONS AND WERE THEREFORE FORCED TO RESORT TO
THE PROVISIONS OF THIS SECTION.
  3. THE PAYMENT FOR SUCH SERVICES AT A  PRICE WITHIN THE RANGE OF PRIC-
ES  PERMITTED BY PARAGRAPH C OF SUBDIVISION ONE OF THIS SECTION SHALL BE
CONCLUSIVELY PRESUMED TO HAVE BEEN A REASONABLE PRICE.
  4. THE INTRODUCTION INTO EVIDENCE IN ANY ACTION OR PROCEEDING  OF  ANY
STATEMENT  RENDERED  IN COMPLIANCE WITH THE PROVISIONS OF PARAGRAPH D 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 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.
  5. ANY TENANT WHO HAS IN GOOD FAITH SECURED AND PAID FOR SUCH SERVICES
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 ATTORNEY'S FEES AGAINST AN
OWNER BRINGING SUCH ACTION OR PROCEEDING.
  6. NO OWNER OR AGENT SHALL BE  ENTITLED  TO  RECOVER  ANY  AMOUNTS  IN
DAMAGES  FROM ANY CONTRACTOR WHO ATTEMPTS IN GOOD FAITH AND ACTS REASON-
ABLY TO CARRY OUT THE INTENDMENT OF THIS SECTION EXCEPT DAMAGES  ARISING
OUT OF GROSS NEGLIGENCE.
  7.  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 SUCH SERVICES FOR THE
MULTIPLE DWELLING IN WHICH HE OR SHE 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

A. 1423                             3

ACTION THAT MAY OTHERWISE EXIST WITH RESPECT TO AN  OWNER'S  FAILURE  TO
PROVIDE HEAT OR ANY OTHER SERVICE.
  8. ANY AGREEMENT BY A TENANT OF A DWELLING WAIVING OR MODIFYING HIS OR
HER  RIGHTS  AS  SET  FORTH IN THIS SECTION SHALL BE VOID AS CONTRARY TO
PUBLIC POLICY.
  9. THE PROVISIONS OF THIS SECTION SHALL BE LIBERALLY CONSTRUED  SO  AS
TO GIVE EFFECT TO THE PURPOSES SET FORTH IN THIS SECTION.
  10.  NOTHING CONTAINED IN THIS SECTION AND NO PAYMENT MADE PURSUANT TO
THIS SECTION SHALL BE DEEMED TO DISCHARGE THE LIABILITY OF A RENTER WITH
AN INTEREST IN REAL PROPERTY PURSUANT  TO  SUBDIVISION  TWO  OF  SECTION
THREE  HUNDRED  FOUR  OF  THE REAL PROPERTY TAX LAW FROM TAXES LEVIED ON
SUCH INTEREST.
  S 2. The multiple dwelling law is amended  by  adding  a  new  section
302-d to read as follows:
  S 302-D. RIGHT OF TENANT TO OFFSET PAYMENTS FOR HABITABILITY-IMPAIRING
CONDITIONS;  CERTAIN  CASES. 1. ANY TENANT ACTING ALONE OR TOGETHER WITH
OTHER TENANTS OF A MULTIPLE DWELLING WHEREIN THERE EXISTS  ONE  OR  MORE
HABITABILITY-IMPAIRING CONDITIONS DUE TO THE OWNER'S FAILURE TO MAINTAIN
THE  PREMISES, MAY CONTRACT AND PAY FOR THE CORRECTION OF SUCH CONDITION
IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. ANY PAYMENT  SO  MADE
SHALL  BE  DEDUCTIBLE  FROM RENT PROVIDING THE FOLLOWING PROVISIONS HAVE
BEEN SUBSTANTIALLY COMPLIED WITH BY THE TENANT OR SOMEONE ACTING ON  HIS
OR HER BEHALF:
  A.  REASONABLE  EFFORTS  WERE  MADE TO CONTACT THE OWNER OR HIS OR HER
AGENT IN WRITING TO INFORM THE OWNER OF SUCH CONDITION.
  B. REASONABLE EFFORTS WERE MADE TO HAVE THE CONDITION REMEDIED BY  THE
LANDLORD'S USUAL TRADESMAN, IF KNOWN TO THE TENANT.
  C.  REPAIR  OF THE CONDITION WAS MADE BY A TRADESMAN REGULARLY ENGAGED
IN THE APPROPRIATE TRADE AT A REASONABLE PRICE.
  D. THE CONTRACTOR PROVIDED A WRITTEN STATEMENT CONTAINING THE  FOLLOW-
ING:
  (1) THE NAME OF THE PERSON OR PERSONS WHO REQUESTED THE SERVICES; AND
  (2) THE DATE, TIME OF AND PREMISES AT WHICH REPAIRS WERE MADE; AND
  (3) THE COST OF LABOR AND MATERIALS; AND
  (4) A CERTIFICATION THAT THE SERVICES WERE NECESSARY; AND
  (5) THE AMOUNTS AND FROM WHOM ANY PAYMENTS WERE RECEIVED.
  E.  A  TENANT  SHALL  NOT BE REQUIRED TO COMPLY WITH THE PROVISIONS OF
PARAGRAPH A OR B OF THIS SUBDIVISION UNLESS THE OWNER  HAS  CONTINUOUSLY
KEPT  POSTED  IN A CONSPICUOUS PLACE AT THE PREMISES A NOTICE CONTAINING
HIS OR HER NAME, ADDRESS AND TELEPHONE NUMBER OR  THAT  OF  HIS  OR  HER
AGENT AND THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE SUPPLIER OF SUCH
SERVICES TO THE PREMISES.
  2. 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 APPLICABLE WAGE RATES OF SUCH  SERVICES
WITHIN THE JURISDICTION OF THE DEPARTMENT DURING THE LAST TWO WEEK PERI-
OD FOR WHICH STATISTICS ARE AVAILABLE; AND
  B. MAINTAIN AND KEEP CURRENT AND AVAILABLE A LIST OF CONTRACTORS WHICH
HAVE  AGREED  TO  MAKE  SUCH REPAIRS IN THE CIRCUMSTANCES, AND TO RENDER
SUCH ASSISTANCE AS IS OTHERWISE REQUIRED HEREBY  TO  ENABLE  TENANTS  TO
OBTAIN THE BENEFITS, CONTEMPLATED BY THIS SECTION.
  3. THE PAYMENT FOR SUCH SERVICES AT A  PRICE WITHIN THE RANGE OF PRIC-
ES  PERMITTED BY PARAGRAPH C OF SUBDIVISION ONE OF THIS SECTION SHALL BE
CONCLUSIVELY PRESUMED TO HAVE BEEN A REASONABLE PRICE.

A. 1423                             4

  4. THE INTRODUCTION INTO EVIDENCE IN ANY ACTION OR PROCEEDING  OF  ANY
STATEMENT  RENDERED  IN COMPLIANCE WITH THE PROVISIONS OF PARAGRAPH D 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 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.
  5. ANY TENANT WHO HAS IN GOOD FAITH SECURED AND PAID FOR SUCH SERVICES
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 ATTORNEY'S FEES AGAINST AN
OWNER BRINGING SUCH ACTION OR PROCEEDING.
  6. NO OWNER OR AGENT SHALL BE  ENTITLED  TO  RECOVER  ANY  AMOUNTS  IN
DAMAGES  FROM ANY CONTRACTOR WHO ATTEMPTS IN GOOD FAITH AND ACTS REASON-
ABLY TO CARRY OUT THE INTENDMENT OF THIS SECTION EXCEPT DAMAGES  ARISING
OUT OF GROSS NEGLIGENCE.
  7.  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 SUCH SERVICES FOR THE
MULTIPLE DWELLING IN WHICH HE OR SHE 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 THAT MAY OTHERWISE EXIST WITH RESPECT TO AN  OWNER'S  FAILURE  TO
PROVIDE HEAT OR ANY OTHER SERVICE.
  8. ANY AGREEMENT BY A TENANT OF A DWELLING WAIVING OR MODIFYING HIS OR
HER  RIGHTS  AS  SET  FORTH IN THIS SECTION SHALL BE VOID AS CONTRARY TO
PUBLIC POLICY.
  9. THE PROVISIONS OF THIS SECTION SHALL BE LIBERALLY CONSTRUED  SO  AS
TO GIVE EFFECT TO THE PURPOSES SET FORTH IN THIS SECTION.
  10.  NOTHING CONTAINED IN THIS SECTION AND NO PAYMENT MADE PURSUANT TO
THIS SECTION SHALL BE DEEMED TO DISCHARGE THE LIABILITY OF A RENTER WITH
AN INTEREST IN REAL PROPERTY PURSUANT  TO  SUBDIVISION  TWO  OF  SECTION
THREE  HUNDRED  FOUR  OF  THE REAL PROPERTY TAX LAW FROM TAXES LEVIED ON
SUCH INTEREST.
  S 3. This act shall take effect immediately.