Opinion
No. CV 068422–15.
05-31-2016
Rosemarie ROSS, Plaintiff, v. Joann GENOVA, Defendant.
Plaintiff Rosemarie Ross, pro se. Samuel L. Hagan Esq., Brooklyn, NY, Jonathan Fuchs, Esq., of Counsel, for Defendant Joann Genova.
Plaintiff Rosemarie Ross, pro se.
Samuel L. Hagan Esq., Brooklyn, NY, Jonathan Fuchs, Esq., of Counsel, for Defendant Joann Genova.
RICHARD J. MONTELIONE, J.
A bench trial commenced and concluded on January 20, 2016.
The plaintiff seeks reimbursement for electrical charges she paid for the benefit of the defendant or defendant's friends or relatives.
Both parties stipulated they had a landlord-tenant relationship. Plaintiff moved into the 1st floor apartment of the rental space on November 1, 2007 pursuant to a lease dated October, 27, 2007 listing “Alfred Ross,” as well as plaintiff Rosemarie Ross, as tenants and the lease ostensibly expired on November 30, 2008.
The “Additional Terms” of the written lease included the following: “(t)enant understands and agrees to put electric service in their name prior to move in. It is understood and agreed that outdoor and basement lights are part of the first floor tenant's responsibility.” Both parties stipulated that the electric bill also covered the front and rear security lights outside the building.
There is no dispute that the basement was not occupied when plaintiff moved into it but became occupied in February 2008 by a tenant by the name of “Joe.” This occupant was a friend of defendant's niece. He had a refrigerator, fish tank, computer, and television. This occupant moved out in February 2010. There is no evidence as to whether or not the basement apartment was in fact a legal apartment.
Plaintiff testified that sometime after Joe moved out, the basement was gut-renovated and the premises, after the renovation, contained a brand new dishwasher, electric stove, washing machine, dryer and air-conditioner. Plaintiff testified that defendant renovated the premises for her nephew. The new occupant, only known to the plaintiff as “Salvatore and Victoria” moved into the basement in July 2013 where plaintiff claims they continue to reside.
The plaintiff had in her own apartment the following items that used electricity: a pump, a computer, electric stove, electric heater, and an air-conditioner. The plaintiff testified that one air-conditioner was used only at the beginning of the season because she could not afford the bills and a second air-conditioner was broken.
Defendant (landlord) testified that no rent was paid to her by the occupants of the basement who were related to her.
After expiration of the written lease, the plaintiff and Alfred Ross continued as month-to-month tenants and moved out on December 1, 2015. It is unclear whether or not Alfred Ross, plaintiff's husband, remained in possession during the entire tenancy, but this is not relevant regarding the issue that needs to be determined by the Court.
The defendant offered photos of the basement apartment's exterior windows to show there were no air conditioners in use by the occupants, but no photos were offered of the actual basement apartment. The defendant testified that after plaintiff vacated, she received an electric bill for a twenty-day period of only $8.29 which covered the plaintiff's and the basement apartment. This was offered as proof that the basement used little electricity.
The plaintiff produced electric bills from 2012 through the date she moved out in December 2015.The total bills paid by the plaintiff as reflected in original Consolidated Edison bills from January 17, 2013 to December 17, 2016 is $6,261.00. Of this amount, the plaintiff received $200.00 from defendant's nephew in reimbursement for electricity and plaintiff admits she has an outstanding balance, included in the above calculations, of $553.45. The Court did not allow the Consolidated Edison bills into evidence at trial, but accepted the testimony of the plaintiff regarding the amount paid for her electricity, and in effect, allowed the bills to “refresh her memory” as to the actual cost of the electricity.
Issue
Is the defendant-landlord liable for any part of the electric costs incurred by the plaintiff-tenant, including common areas and living space not occupied by the tenant?
Applicable Law
New York Public Service Law § 52 defines the obligations of the parties to pay for electricity (Add, L 1991, ch 654, § 2; amd, L 1995, ch 186, § 1, eff July 19, 1995; L 2002, ch 686, § 12, eff June 18, 2003). The legislative findings and declaration of purpose show that this statute was meant to stop landlords from imposing upon tenants an obligation to pay for electric or gas that was not consumed by the tenant in possession. The legislative findings also determined that tenants often agree to pay such costs unrelated to their own usage because of the short supply of rental units. (See, Laws 1991, ch 654, § 1, eff Oct. 24, 1991).
The statute applies to owners or landlords (N.Y. Pub Ser § 52[1] ) and tenants who are “customers” using a “shared meter” which means the tenant is being billed by the utility and paying for service outside the area of the tenant's occupancy (N.Y. Pub. Ser. § 52[b] and [e] ). “Third parties” are the occupants who occupy space where electric service is paid by another occupant using a shared meter (N.Y. Pub. Ser. § 52[i] ). It is the owner's responsibility for service measured through a shared meter and the owner “shall” eliminate any shared meter condition, or alternatively, as applicable here, open 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 (the shared meter condition)” and “the utility shall bill the owner for all future service measured by the shared meter through such account” (N.Y. Pub. Ser. § 52[2] ).
There were some exceptions in the law when there was an existing written agreement between an owner and the shared meter customer, but no exceptions apply because the lease was entered into by the parties after October 24, 1991 (N.Y. Pub. Ser. § 52[2][b][ii] ). Even if this section of the law applied, a copy of such agreement between the parties needed to be provided to the utility company and there is no evidence that was done here (N.Y. Pub. Ser. § 52[2] [b][ii] ). In fact, the written lease provision imposing upon the tenant the obligation to pay for electrical service not consumed by the tenant is precisely what the law was meant to permanently thwart.
Legal Analysis
As an initial matter, this Court erred in not admitting the original Consolidated Edison electric bills into evidence at trial (Exhibits 2 and 3). There is no question that these billing records are hearsay. See Standard Textile Co. v. National Equipment Rental, Ltd., 80 A.D.2d 911, 437 N.Y.S.2d 398, 1981 N.Y.App. Div. LEXIS 10795 (N.Y.App. Div.2d Dep't 1981) ; Advanced Med. Rehabilitation, P.C. v. Travelers Prop. Cas. Ins. Co., 2 Misc.3d 1004(A), 784 N.Y.S.2d 918, 2004 N.Y. Misc. LEXIS 202, 2004 N.Y. Slip Op 50141(U) (N.Y. Civ.Ct.2004) and CPLR 4518(a).
Notwithstanding the hearsay nature of the Consolidated Edison electric bills, the Court in Elkaim v. Elkaim, 176 A.D.2d 116, 574 N.Y.S.2d 2 (AD, 2nd Dept.1991), found that “judicial notice can provide a foundation for admitting the records of a particular business' “ and determined that bank records were so “patently trustworthy as to be self-authenticating' “ (cf. Weinstein, Korn and Miller, New York Civil Practice, § 4518.18, “where business records are not self-proving,' “ see Elkaim v. Elkaim, 176 A.D.2d 116, 574 ; and also cf. People v. Kennedy, 68 N.Y.2d 569, 577, where Court held that business records “are customarily offered through a custodian or employee' of the business organization that created them,” see Elkaim v. Elkaim, 176 A.D.2d 116, 574 ). This “self-authenticating” rationale for banking statements is an exception to the general rule which requires a foundation prior to the admission of business records into evidence and this rationale and exception was also accepted by the Court in Thomas v. Rogers Auto Collision, Inc., 69 AD3d 608, 896 N.Y.S.2d 73 (AD, 2nd Dept.2010).
There are multiple banks in New York State, but all original bank statements contain the same type of information found so “patently trustworthy as to be self-authenticating” by the courts in both in Elkaim v. Elkaim, supra. and Thomas v. Rogers Auto Collision, Inc., supra. Here, this Court will extend the rationale of Elkaim v. Elkaim and Thomas v. Rogers Auto Collision, Inc. by taking judicial notice that Consolidated Edison is the primary provider of electrical service in New York City, services approximately three million customers and traces its history from approximately 190 years ago and provides its customers easily recognizable bills which provides this Court with a basis to treat its billing records as “self-authenticating” at least as trust worthy, and deemed even more so by this Court, as the bank records found “self-authenticating” by the courts in Elkaim v. Elkaim, supra and Thomas v. Rogers Auto Collision, Inc., supra.
To the extent the billing records contain handwritten notes, such notes are not considered by the Court. In short, plaintiff's exhibit 2 and 3 and defendant's exhibit A, all Consolidated Edison Bills, are in evidence. The Court placed on the record that it accepted the testimony of the plaintiff regarding what was contained in the Consolidated Edison billing records and there can be no prejudice to defendant when these records, now considered by the Court as evidence, also supports testimony that the Court already accepted. This also holds true for defendant's exhibit A.
Defendant's exhibit A is missing, but the testimony is clear from the record regarding the amount of this bill and the Court will settle the record with a duplicate original of defendant's exhibit A, if necessary.
At the conclusion of the plaintiff's case, the defendant moved for dismissal arguing that because plaintiff did not make out a prima facie case, there was no liability on the part of the landlord because the lease immunizes the landlord from liability, and even if liability was proven, plaintiff failed to prove her damages. The Court reserved decision. Critical to the legal analysis is N.Y. Pub. Ser. § 52(3)(a) which mandates that the provisions of this section “may not be waived by an owner, tenant, or utility.”
The provision of the lease imposing upon the tenant the obligation to pay for public areas and for space that eventually became occupied by friends or relatives of the defendant is in direct contravention of N.Y. Pub Ser § 52, et seq. and the underlying legislative findings that such lease provisions are fundamentally unfair to tenants. Given the legislative finding that tenants sign such agreements because of the scarcity of housing (see legislative history of N.Y. Pub Ser § 52, Laws 1991, ch 654, § 1, eff Oct. 24, 1991), this Court finds as a matter of law that the lease provision imposing the cost of electricity not consumed by the plaintiff is unenforceable, but also on the separate ground, given such legislative finding, that the provision is one of adhesion and therefore also unenforceable. (See Molino v. Sagamore, 105 AD3d 922 at 923, 963 N.Y.S.2d 355, 2013 N.Y.App. Div. LEXIS 2488, 2013 N.Y. Slip Op 2551, 2013 WL 1632496 [NY App. Div.2d Dep't 2013], “A contract of adhesion contains terms that are unfair and nonnegotiable and arises from a disparity of bargaining power or oppressive tactics' “ (citing Matter of Love'M Sheltering, Inc. v. County of Suffolk, 33 AD3d 923, 924, 824 N.Y.S.2d 98 [2006] ).
The Court in Various Tenants of 1058 Bergen St. v. 1058 Bergen St., LLC, 12 Misc.3d 1177(A), 820 N.Y.S.2d 846, 2006 N.Y. Misc. LEXIS 1715, 2006 N.Y. Slip Op 51259(U) (Hon. Cheryl J. Gonzales, JHC, Kings Cty. Civ.Ct.2006) was faced with a situation where an apartment contained several tenants, each tenant who signed a separate lease, but each being responsible for the gas and electric of the others. The Court in Various Tenants found that the landlord's requirement for tenants to pay for the gas and electricity of other this violated N.Y. Pub Ser. Law because the meter met the definition of a “shared meter” and directed the landlord to place the meter in the landlord's name.
The Quintyne v. Hall, 2003 N.Y. Misc. LEXIS 490, 2003 N.Y. Slip Op 50840(U) (N.Y.App. Term, 2nd Dept. Apr. 1, 2003), the appellate court found that substantial justice was accomplished in a small claims matter when a tenant unwittingly paid for the electricity of a basement apartment occupied by defendants-landlords' niece for a period of 54 months, and based on the utility's apportionment of the parties' electricity, the Court awarded a uniform monthly rate.
Here, under Various Tenants of 1058 Bergen St. v. 1058 Bergen St., LLC, the court directed the landlord to place service in the landlord's name, and it appears, pay for the service because a shared meter must be placed in the name of the landlord. Unlike the small claims court in Quintyne v. Hall, where proof of the utility's apportionment of the parties' electricity consumption provided the Court with a mechanism for determining damages, there was no such proof offered at trial in the instant matter.
The vexing issue here is determining damages. The Court starts from the premise that simply because it may be difficult to ascertain damages does not mean that damages should not be awarded. As the Court in Measom v. Greenwich & Perry St. Hous. Corp., 8 Misc.3d 50, 798 N.Y.S.2d 298, 2005 N.Y. Misc. LEXIS 883, 2005 N.Y. Slip Op 25169, 233 N.Y.L.J. 90 (N.Y.App. Term 2005), in citing Dinicu v. Groff Studios Corp. (257 A.D.2d 218, 224, 690 N.Y.S.2d 220 [1999] ), quoting Alexander's Dept. Stores v. Ohrbach's, Inc., 269 A.D. 321, 328–329, 56 N.Y.S.2d 173 [1945] [internal quotation marks and citations omitted] stated,
Plaintiff[s] in a case like this [are] not restricted to the ordinary rules for measuring damages or obliged to prove [their] losses with mathematical certainty or accuracy ... The law does not halt or surrender because the state of facts is novel and the ordinary methods of proving values are not available, but will resort to some practical means that will be just to both parties ... It is recognized by the [6] courts and by text writers and in digests that a wrongdoer ... may not escape liability simply because there is ... none of the ordinary standards for [301] measuring the damages.'
The Court will limit the plaintiff's damages to six years before the commencement of the action which is the statute of limitations (N.Y. Pub. Ser § 52[2] ). The Court will further limit the plaintiff's damages to the three year period which is reflected in the only bills provided to the Court from January 17, 2013 through December 17, 2016.
In determining an appropriate quantum of damages for the bills covering this approximately three year period of time, the Court has already considered the legislative history and the clear statutory language imposing upon the defendant (former landlord) the obligation to separately meter the space which is not occupied by the tenant (N.Y. Pub. Ser. § 52[2] ). In addition, it is also the public policy of the State of New York to conserve electricity to protect the environment (See, N.Y. CLS Pub Ser § 66 and legislative history Laws 1976, ch 556, § 1) and it would be unrealistic, given the foregoing statutes and legislative history, to expect the basement occupants, who paid no rent to defendant and whose electricity was paid for by the plaintiff, to conserve electricity.
Given the difficulty of apportioning the usage between electricity actually consumed by the plaintiff and electricity she paid for which was provided to the occupants of the basement apartment and for the public areas outside the demised premises, and given that the burden shifted to the defendant to prove such apportionment once the liability for the electricity consumed outside of the demised premises is established as a matter of law which was not done, and in light of the public policy considerations implicated here, this Court will award the plaintiff the entire amount proven by the electric bills in evidence, less the $200.00 which she was reimbursed by the basement occupant, less a nominal set-off to the defendant of $250 ($6,261.00–$200–$250=$5,811.00). This Court includes in this sum the outstanding December 2015 bill because plaintiff remains liable to Consolidated Edison to pay this bill.
Based on the foregoing, the clerk is directed to enter a Judgment in favor of Plaintiff and against Defendant in the amount of $5,811.00 with interest from June 1, 2014, with costs and disbursements.
The parties' respective exhibits may be picked up at the chambers of the judge which is located on the 7th floor of the court house where the trial took place no earlier than 30 days after Notice of Entry of this Decision and Order has been served unless such exhibits are necessary pursuant to NYCCA § 1704 (Settlement of Record).
This constitutes the Decision and Order of the Court.