2006 New York Code - Right Of Tenant To Offset Payments For Heat Failure; Certain Cases.

 
    §  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
  multiple  dwelling  employing  an oil fired heating device for which the
  owner is responsible and wherein there exists a lack of heat due to  the
  owner's  failure  to have oil supplied to the premises, may contract and
  pay for the delivery of such oil 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 behalf:
    a. Reasonable efforts were made to contact the owner or his  agent  to
  inform the owner of such failure to supply oil.
    b.  Reasonable  efforts  were made to have the normal fuel supplier to
  the premises deliver the requested fuel.
    c. Delivery of fuel oil to  the  premises  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.  The  fuel  supplier  from  whom  oil is secured provided a written
  statement containing the following:
    (1) The name of the person or persons who requested the delivery; and
    (2) The date, time of and premises to which delivery was made; and
    (3) The amount, grade and price of the oil delivered; and
    (4) A certification that the usable fuel supply  before  the  delivery
  was exhausted; and
    (5) The charge, if any, for refiring the burner; and
    (6) 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 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 fuel supplier to the premises.
    f. 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  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 otherwise required hereby to enable tenants
  to obtain the benefits, contemplated by this section.
    4. The payment for fuel oil at a price  within  the  range  of  prices
  permitted  by  paragraph  c  of subdivision one of this section shall be
  conclusively presumed to have been a reasonable price.
    5. 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.
    6.  Any  tenant  who  has  in good faith secured and paid for 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  attorney's  fees  against  an
  owner bringing such action or proceeding.
    7.  No  owner  or  agent  shall  be entitled to recover any amounts in
  damages from any fuel oil supplier who attempts in good faith  and  acts
  reasonably  to  carry  out the intendment of this section except damages
  arising out of gross negligence.
    8. 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  that  may  otherwise exist with respect to an owner's failure to
  provide heat or any other service.
    9. 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. The provisions of this section shall be liberally construed so  as
  to give effect to the purposes set forth herein.
    *  11.  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.
  * NB (Effective pending ruling by Commissioner of  Internal  Revenue  of
  the United States)