NY Pub Serv L § 52 (2021)
2021 New York Laws PBS - Public Service Article 2 - Residential Gas, Electric and Steam Utility Service 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.