N.Y. Multiple Dwelling Law § 302-c: Right of tenant to offset payments for heat failure; certain cases

§ 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 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 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. 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 asserted by a tenant 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)