Ba v Ocolo
Annotate this CaseDecided on June 19, 2007
Civil Court of the City of New York, Kings County
Hamed A. Ba, Petitioner
against
Teddy Ocolo, Respondent.
1564/07
Cheryl J. Gonzales, J.
Petitioner commenced this proceeding on or about May 3, 2007 seeking an order to correct certain conditions in his apartment. The parties entered into a Consent Order on May 18, 2007 in which respondent agreed to correct the three Class "B" violations placed on May 11, 2007. A class "C" violation was also issued for hot water. The issue of who is responsible to provide heat and hot water was set down for a hearing on June 15, 2007.
At the hearing, petitioner testified that he rented the apartment approximately one year ago. His rent was $1100.00 and has since increased. Upon moving into the apartment, petitioner opened an account in his name for cooking gas. The landlord provided heat and hot water. However, the landlord informed of his intention to make changes to the boiler. When respondent completed the work on the boiler, petitioner's gas bill reflected charges for heat, hot water and cooking gas.
The lease signed by the parties provides that petitioner was responsible for all utility services with the exception of water which was to be provided by respondent. Respondent testified that he purchased the building in 2004 and petitioner, who had been living in the building prior to respondent's purchase and had moved out, returned to the building in November 2004 after signing a lease with respondent. Respondent stated that he converted the building to gas heat in 2004, but the individual thermostats were not connected. Respondent testified that he paid the gas bills for petitioner's heat and hot water until October 2006 when respondent had the thermostat moved to petitioner's unit and the responsibility for the charges was switched to [*2]petitioner. Respondent maintains that petitioner had charges transferred from other accounts to his present account and this contributed to the high balances on the account. Based on the subpoenaed records from Keyspan, petitioner's meter was removed in April 2007.
Based on the information stated on the violation summary report, the subject building contains five units and has three floors. Multiple Dwelling Law §79 requires every multiple dwelling to be provided with heat or the facilities necessary to provide heat, and sets forth the time periods in which heat is required. Under Housing Maintenance Code §27-2028 a landlord is obligated to provide heat from a central heating system in any multiple dwelling or tenant occupied apartment in a one or two family dwelling or a gas, or electric system for each unit may be used if the system was lawfully in use prior to July 14, 1967, or if approved by the appropriate city agencies, and installed in a building erected, converted, substantially rehabilitated or completely vacated after July 14, 1967. A similar provision for hot water is contained in Housing Maintenance Code §27-2031.
Therefore, it is clear that the law requires that each rental unit is required to have heat and hot water supplied by a system as described above. There is no requirement for these services to be provided at the landlord's expense.
It is unclear from the testimony in this case whether respondent obtained the requisite approvals for conversion of the heating system. However, this case can be distinguished from 945 St. Nicholas Tenants League v. Agarwal, NYLJ 1/16/91 where the tenants' leases provided that it was the landlord's obligation to provide heat and hot water. Paragraph 11 of petitioner's lease provides that petitioner is responsible for arranging for, and paying for all utility services required on the premises except water.Throughout the term of that lease agreement from November 2004 through October 2005, and subsequent to that term, ( it is unclear if there was a lease renewal or if petitioner continues as a month to month tenant) according to respondent's testimony, respondent paid for those services, as required, since respondent had exclusive control over the heating system (see Adams v. Green, 114 Misc 2d 633, 1982.) However, respondent's payment for a service which was not required under the lease does not create an duty or impose an obligation on respondent. Petitioner admitted that he was aware that the boiler system would be changed, and the terms of the lease do provide that petitioner is responsible for all utility services except water.
Petitioner does not challenge the validity of the lease presented by respondent, and the terms of the lease control the agreement between petitioner and respondent. Since there is no allegation that any of the heating equipment is defective, this court determines that it is petitioner's responsibility to pay the gas bills for heat and hot water and to cure the Class "C" violation for hot water.
This constitutes the decision and order of this court.
Dated: June 19, 2007
[*3]
_________________________
Cheryl J. Gonzales, JHC
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