N.Y. Public Service Law § 52: Gas, electric and steam service to tenants provided through shared meters

§ 52. Gas, electric and steam service to tenants provided through

shared meters. 1. Definitions: As used in this section, the following

terms shall have the following meanings:

(a) "Owner" means and includes the owner or owners of the freehold of

the premises or lesser estate therein, mortgagee or vendee in

possession, assignee of rents, receiver, executor, trustee, lessee,

agent, or any other person, firm or corporation, directly or indirectly

in control of a dwelling.

(b) "Shared meter" means any utility meter that measures gas, electric

or steam service provided to a tenant's dwelling and also measures such

service to areas outside that dwelling and such tenant pays charges for

the service to areas outside the dwelling measured through such meter.

(c) "Dwelling" means any building or structure or portion thereof

which is occupied in whole or in part as the home, residence or sleeping

place of one or more human beings, including any equipment located

outside such building or structure or portion thereof which is under the

exclusive use and control of the occupant, and is either rented, leased,

let or hired out, to be occupied, or is occupied as the residence or

home of one or more human beings.

(d) "Utility" means any gas, electric and steam corporation and/or

municipality providing service to residential customers.

(e) "Shared meter customer" means any tenant who rents a dwelling from

an owner that is served by a shared utility meter for which the tenant,

rather than the owner, is the utility's customer of record.

(f) "Extraordinary cost" means the cost, as determined by a qualified

professional, of installing equipment necessary to eliminate a shared

meter in a dwelling or portion thereof which is in excess of the amount

of rent for four months rental of such dwelling. The commission shall

adopt additional rules for determining extraordinary cost based upon

whether the amount of service measured by the shared meter that is

utilized outside the shared meter customer's dwelling is sufficient to

warrant the cost of such installation.

(g) "Legal impediment" means a restriction which prevents separate

metering, rewiring, or repiping due to zoning ordinances which limit the

number or type or location of meters in a building or due to the

historical significance of the structure or such other legal

restrictions as determined by the commission in its rules.

(h) "Shared area charges" means that portion of charges billed to the

shared meter customer which remains after excluding the estimated

charges for service used by the shared meter customer and where

applicable, a third party, for the period during which the owner

maintained a shared meter condition in violation of this section or six

years whichever is shorter.

(i) "Third party involvement" means that a third party whose utility

service was to be measured through another meter had caused or

benefitted from a shared meter condition.

2. Owner's responsibility for service measured through a shared meter.

(a) An owner shall eliminate any shared meter condition or, in the

alternative, establish an account in the owner's name for all the shared

area charges for service measured through a shared meter effective six

years prior to the discovery of or determination that a shared meter

condition exists, or the first day of the tenancy, or the date the

shared meter condition began, or the sixtieth day after the owner knew

or should have known that third party involvement exists, or the date

the owner assumed title to the dwelling, whichever is most recent in

time and for all future service measured by the shared meter. The

utility shall, upon an owner's application, open such an account and

bill the owner for all applicable shared area charges and all future

service measured by the shared meter through such account.

(b) (i) In the event that a legal impediment or extraordinary cost

prevents elimination of a shared meter condition or in the event that

the service measured through the shared meter is minimal, under

commission rules adopted, pursuant to subdivision eight of this section,

the owner, as an alternative to eliminating the shared meter condition,

may enter into a mutually acceptable written agreement with the shared

meter customer and where applicable, a third party, for apportioning the

charges for service measured through the shared meter; provided,

however, that the shared meter customer shall pay only for the estimated

amount of service provided to the shared meter customer's dwelling, or

(ii) In the event that there is an existing written agreement between

the owner and the shared meter customer, and where applicable, a third

party, for the apportionment of charges for service measured by a shared

meter prior to October twenty-fourth, nineteen hundred ninety-one, such

agreement will remain in effect, as an alternative to eliminating the

shared meter condition or establishing an account in the owner's name,

until any lease or rental agreement for the rental of the dwelling

expires, provided, however, that the shared meter customer or third

party may request the commission or its designee to review the existing

written agreement if such shared meter customer or third party believes

the terms are unfair or unreasonable. If the commission or its designee

finds that the terms of the existing written agreement are unfair or

unreasonable, the commission or its designee shall void such agreement

and assist the interested parties in negotiating and executing a

mutually acceptable written agreement.

(c) (i) In the event that a mutually acceptable written agreement is

negotiated and executed, the owner shall provide a copy of the agreement

to the utility, the shared meter customer, and where applicable, a third

party.

(ii) If the interested parties are unable to negotiate a mutually

acceptable written agreement, the commission or its designee, upon a

complaint by a customer or owner, shall order a remedy, consistent with

the relief provided in this section, as it deems proper. The commission

or its designee shall have the authority to apportion estimated charges

for service measured by a shared meter among the owner, shared meter

customer and any third party.

3. The provisions of this section: (a) may not be waived by an owner,

tenant, or utility; and

(b) shall not affect the validity of a lease or rental agreement in

effect on or before the effective date of this section. For purposes of

this section, renewals and extensions of leases and rental agreements

that commence after the effective date of this section shall be deemed

to be new leases and rental agreements.

4. Determination of shared meter condition. (a) Upon a customer's

verbal or written complaint that a shared meter is measuring service to

the customer's dwelling and that the customer is responsible for the

charges for such service or upon receipt of other information indicating

that a shared meter may exist, a utility shall notify the owner in

writing of the owner's responsibilities under this section, that a

complaint was received or information obtained that a shared meter may

exist, and that the utility is required to conduct an investigation. If

such utility is not the utility in ownership or control of the meters

and related pipes, fittings, wires and other apparatus associated with

the establishment and measurement of service to such customer's

dwelling, notice shall also be provided to such metering utility. Upon

the request of an owner or upon a complaint by a customer or upon

receipt of information indicating that a shared meter may exist, such

metering utility shall investigate and determine whether such service is

or is not measured by a shared meter. Such metering utility may

determine if separate metering or rewiring or repiping is possible and

shall provide the owner with information describing how shared meter

conditions can be eliminated. The investigation shall include, but not

be limited to, conducting appropriate tests, an examination of wiring,

piping, meters and heating equipment in the building as may be needed,

an estimate of gas, electricity or steam used in the shared meter

customer's dwelling and in areas outside the dwelling, and a review of

billing records.

(b) The determination shall be provided in writing, within thirty

business days of the date of the complaint or receipt of information or

owner's request, to the customer, the owner, any other tenants receiving

service measured by the shared meter, and any other utility providing

service to such customer through such meter. Such written determination

shall include a description of the specific areas outside the dwelling

served by the shared meter, the nature of the uses of the service, and

the proportional amount of service registered on the shared meter that

is provided to the shared meter customer's dwelling and to areas outside

the dwelling. A notice shall be included with the determination

informing the recipients of the availability of the commission's

complaint handling procedures, and providing the department's address

and telephone number for filing objections to such determination.

(c) Failure of an owner to provide access to any common area in the

building or to cooperate with any reasonable request made by the

investigating utility shall result in a determination that the

customer's dwelling is served by a shared meter, specifying the owner's

action that such utility understood to be a failure to cooperate.

Failure of a customer making a shared meter complaint to provide access

to a dwelling controlled by the customer or to cooperate with any

reasonable request made by the investigating utility shall cause the

utility to suspend the investigation and to notify in writing the

customer and the owner that the investigation is suspended, specifying

the customer's action that such utility understood to be a failure to

cooperate. A utility duly acting under this paragraph is entitled to

make the determinations provided for and shall be held harmless from any

subsequent monetary claim by an owner that the dwelling was not served

by a shared meter or by a shared meter customer that the dwelling was

served by a shared meter.

(d) Any customer filing a complaint under this section or owner who

disagrees with a utility's determination may utilize the commission's

complaint handling procedures to obtain a written departmental

determination by complaining to the department within forty-five days

after receipt of the utility's determination. In the event that the

utility fails to provide a determination on a complaint under this

section within the required time period, the department shall

investigate, upon the shared meter customer's or owner's request, and

issue a written determination. The commission or its designee shall have

the authority to apportion estimated charges for service measured by a

shared meter among the owner, shared meter customer and any third party.

5. Change in billing. Notwithstanding any inconsistent provision of

law, one hundred twenty days after notice is sent to the owner that the

utility or the department has made a final determination that the shared

meter customer's dwelling is served by a shared meter in violation of

subdivision two of this section:

(a) the utility shall verify that, pursuant to subdivision two of this

section, the owner has eliminated the shared meter condition or has

entered into a mutually acceptable written agreement with the shared

meter customer and where applicable, a third party, for apportioning the

charges for service measured by the shared meter and has provided a copy

to the utility, or, as an alternative to eliminating the shared meter

condition, has established a separate account in the owner's name as the

customer of record for all applicable shared area charges and all future

service measured by the shared meter;

(b) if the owner has not eliminated the shared meter or entered into

such agreement or established such account or if the amount of the

service is not minimal under commission rules adopted pursuant to

subdivision eight of this section, the utility shall establish an

account in the owner's name as the customer of record for service

measured through the shared meter and bill the owner for all applicable

shared area charges and all future service measured through the shared

meter; provided, however, that the commission or its designee may grant

an extension not to exceed ninety days to an owner if, in its judgment,

extenuating circumstances beyond an owner's control prevented timely

compliance, or such shared meter is the subject of an ongoing department

review regarding the apportionment of estimated charges pursuant to

subparagraph (ii) of paragraph (c) of subdivision two of this section;

(c) the utility shall refund to the customer or cancel shared area

charges; provided, however, that when third party involvement exists,

the utility shall credit the shared meter customer for all the estimated

charges of the third party;

(d) when such determination follows a customer complaint regarding a

shared meter condition or a utility discovery of a shared meter

condition that is not in response to an owner's request for a utility

inspection for a shared meter condition, with respect to utility service

billed after December first, nineteen hundred ninety-six, the utility

shall comply with the provisions of paragraphs (a), (b) and (c) of this

subdivision, and further bill the owner and refund to the shared meter

customer an estimated amount of charges for twelve months of all service

measured by the shared meter; provided, however, that this paragraph

shall not apply to a shared meter condition if service measured through

the shared meter is minimal under commission rules adopted pursuant to

subdivision eight of this section. An owner so billed may petition the

commission or its designee for a determination that the amount of such

bill is excessive and that such bill and refund be adjusted accordingly;

provided, however, neither the adjusted bill nor the adjusted refund

shall be less than twenty-five percent of the total amount of the

original bill. The commission is authorized to make such a determination

and adjustment if it finds that a bill and refund of twelve months'

charges is unduly burdensome and unfair. In making such determination

the commission or its designee shall consider the total amount of the

bill and refund in relation to the shared area charges over such twelve

month period and any other equitable factors established by the

commission; and

(e) the utility shall bill the third party, when third party

involvement exists, instead of the owner, for the applicable estimated

charges for service used by the third party credited by the utility to

the shared meter customer.

6. Refunded and cancelled utility charges. (a) No owner may bill a

shared meter customer or otherwise recover from such customer any

portion of the cancelled charges or charges refunded to such customer

and shall not bill such customer for any portion or percentage of any

future shared meter bills in the owner's name; provided, however, that

this section shall not preclude an owner from increasing future rents by

a specific sum to the extent otherwise permitted by law.

(b) A shared meter customer who receives a refund from a utility

pursuant to this section shall return a proportional share of that

refund to each person who had paid that shared meter customer for

utility service associated with the payment so refunded. The utility

shall be held harmless from the claim of any person for a share of any

payment so refunded.

7. Remedies. Where the owner or shared meter customer demonstrates the

existence of third party involvement, the owner or shared meter customer

shall be entitled respectively to recover the charges billed by the

utility to the owner's account, or to the shared meter customer's

account, pursuant to this section in a civil action against the third

party in a court of competent jurisdiction.

8. Minimal service. Notwithstanding any provision of this section to

the contrary, the commission shall determine an appropriate quantity of

service on a shared meter that is utilized outside of the shared meter

customer's dwelling which is to be considered minimal in commission

rules and regulations.

9. Notice requirements. On or before December first, nineteen hundred

ninety-five, every utility shall notify its residential customers and

each owner served by the utility of the requirements of this section.

Each utility may request from its customers the names and addresses of

the owners or recipients of rent for dwellings occupied by the customers

or obtain such names and addresses from any available public records in

order to provide the notice required by this subdivision. Such notice

shall be mailed in a postpaid wrapper under separate cover than bills

for service to the premises. Every utility shall also provide notice at

least annually to owners of dwellings, to the extent practicable, under

a plan submitted by the utility and approved by the department. Every

utility shall also implement an outreach program subsequent to such

written notice. Each utility shall submit a plan to provide notice

within sixty days of the effective date of this subdivision. In

addition, every utility shall notify each of its customers at least

annually, of the requirements that apply to owners, shared meter

customers and utilities pursuant to this section and shall include the

department's address and phone number for questions and complaints. In

addition, each utility may arrange for the publication of notices in

newspapers or the broadcasting in other media of notices describing such

requirements. The notices shall be subject to the approval of the

department.

10. Treatment of refunds. (a) Where, as of the effective date of this

subdivision, an owner of a building consisting of one to five dwelling

units has been billed for service measured through a shared meter

without an apportionment of charges for service used by the shared meter

customer and, where applicable, a third party, the utility shall refund

to the owner, upon the written request of the owner, any charges which

represent service used in the shared meter customer's dwelling and,

where applicable, a third party. Such written request must be submitted

no later than December first, nineteen hundred ninety-seven, provided

that an owner may petition the commission or its designee for an

extension upon a finding that such owner has not received timely or

adequate notice of the availability of such refund. In any case where an

owner has been billed but has not paid for such service, the utility

shall only collect from the owner shared area charges. The utility shall

not attempt to charge the shared meter customer or the third party for

any monies refunded to the owner pursuant to this section.

(b) In any case where a shared meter customer is entitled, following a

final determination of shared meter condition prior to the effective

date of this subdivision, to a refund but has not received such refund

because the owner has not made payments for which the owner was billed,

such shared meter customer shall receive his or her refund from the

utility.

(c) Notwithstanding any other provision of this section, in the case

where a shared meter customer is entitled, following a final

determination of a shared meter condition, to a refund or cancellation

of shared meter charges and title to the dwelling has been transferred

to a new owner, such shared meter customer shall receive his or her

refund from the utility for charges for service measured through a

shared meter, excluding the estimated charges for service used in the

shared meter customer's dwelling, for the period of time effective six

years prior to the discovery of or determination that a shared meter

condition exists, or the first day of the tenancy, or the date the

shared meter condition began, whichever is most recent in time.

(d) The commission shall investigate whether and to what extent

refunds provided pursuant to this subdivision were made necessary by

inadequate notice to customers regarding the provisions of this section.

11. Other relief. Notwithstanding any other provision of this section,

the rights of a utility customer under this article to seek and obtain

relief for payments made for service not provided to his or her dwelling

shall not be diminished in any manner. Unless otherwise specified in

this section, the rights of a utility to collect payment for service

rendered but unpaid shall not be diminished in any manner.

12. Apportionment. The commission shall establish guidelines for

estimating the amount of utility use in other space outside the shared

meter customer's dwelling and for apportioning costs required by this

section.