City Court of Mount Vernon, February 8, 2022

Iesha Albert, plaintiff pro se.

Marie Bryant, defendant pro se.

Plaintiff commenced this small claims proceeding to recover $2,400 for excessive gas charges by Consolidated Edison (Con Ed) caused by defendant's negligence in failing to detect and fix a gas leak on property owned by the defendant. Plaintiff also alleges that she was billed for gas usage under a "shared meter" which covered usage both inside and outside her apartment. Plaintiff is a tenant residing in an apartment owned by defendant pursuant to a written rental agreement dated April 1, 2015 (defendant's exhibit 1). The excessive charges were billed to plaintiff. According to plaintiff, the gas leak started June 3, 2020, and continued through August 3, 2021, and she became aware of the leak after contacting Con Ed about substantial increase in her utility bills. She stated that Con Ed informed her the gas bill covered the whole house. She submitted as evidence a printed statement of account from Con Ed showing actual monthly gas usage and billings from January 3, 2020, through September 3, 2021 (plaintiff's exhibit C). Based on the data from Con Ed, plaintiff's average monthly thermal gas usage was 2.8 reflecting an average monthly gas bill of $28.72 from January 2020 through May 2020. Plaintiff testified that the Con Ed representative informed that the normal monthly bill for her dwelling was approximately $30. This amount is supported by plaintiff's average monthly gas usage (plaintiff's exhibit A).

The thermal usage and billing increased significantly from June 2020 through August [*2]2021, with the average monthly thermal gas usage of 84 reflecting average monthly gas billings of $193.98. This is a 575% increase. Plaintiff testified that she requested a meter inspection from Con Ed to determine if the increase in her bill was due to a shared meter. By letter dated May 10, 2021 (defendant's exhibit 2), Con Ed notified the defendant owner that it will conduct a shared meter investigation on May 24, 2021, to determine if the tenant's meter measures gas used both inside and outside the tenant's apartment. If a shared meter is found, the property owner is responsible for shared meter charges and otherwise complying with Public Service Law § 52 including correcting the condition.

Due to the COVID-19 pandemic, Con Ed did not conduct its investigation until July 7, 2021. By letter dated July 9, 2021 (defendant's exhibit 3), Con Ed notified defendant that it found{**74 Misc 3d at 729} a hazardous gas condition (gas leak) and shut off the gas until the owner makes repairs to correct the condition. Plaintiff testified that the gas was shut off for two months.

The defendant does not dispute that plaintiff incurred $2,459.22 for excessive gas bills or that the defendant, as the property owner, is responsible for the gas leak or conditions under the Shared Meter Law. Rather, defendant's affirmative defense alleges that plaintiff's failure to report increased gas usage in a "timely manner" resulted in defendant not being aware of the excessive gas usage until October 22, 2021, and that the "untimely reporting" breached paragraph 13 of the April 15, 2015 rental agreement which required any problems be reported "immediately" to the landlord.

Defendant interposed three counterclaims aggregating $5,000 for (1) plaintiff's failure to report increased gas usage in a timely manner; (2) nonpayment of October 2021 rent and late fees; and (3) cost of repairs for property damage and cleaning.

Plaintiff's claim is based on excessive billings for gas usage in violation of the Public Service Law § 52 (Shared Meter Law) and a gas leak on the property owned by defendant. The parties did not explain the results of the Con Ed investigation into the shared meter condition. However, plaintiff testified that Con Ed denied fault for the excessive billing, placing the blame on the property owner. The Public Service Law expressly reserves the right of customers like plaintiff to seek and obtain relief for payments made for services not provided to her dwelling (Public Service Law § 52 [11]). Further, it is undisputed that Con Ed found a gas leak and that defendant, as the owner, is legally responsible for maintaining the property free of such gas leak. Therefore, plaintiff is entitled to damages for excessive billings caused by the gas leak. Plaintiff's damages for excessive billings caused by the gas leak are measured by the sum of actual billings from June 3, 2020, through August 3, 2021 (15 months), of $2,909.32 minus plaintiff's average monthly amount of normal usage of $30 over 15 months of $450 resulting in damages of $2,459.32. Plaintiff substantiated{**74 Misc 3d at 730} her damages with a Con Ed bill of November 2, 2021 (plaintiff's exhibit B), and a detailed statement of account dated October 4, 2021 (plaintiff's exhibit C). The defendant does not dispute the accuracy of the amount of plaintiff's damages.

Defendant's affirmative defense alleges plaintiff breached paragraph 13 of the April 15, 2015 rental agreement by failing to timely report the gas leak. Paragraph 13 of the agreement states, "Report any problems to the landlady immediately." Defendant testified that this paragraph requires the tenant to report any problems that "she is aware of" to the landlord immediately. Here, the problem is the gas leak. Plaintiff testified that she did not become aware [*3]of the gas leak until Con Ed discovered it and communicated same on July 7, 2021. Defendant became aware since May 10, 2021, that plaintiff complained of excessive gas charges when Con Ed notified defendant. Also, Con Ed notified defendant of the gas leak found on July 7, 2021.

Any delay by plaintiff in reporting the increase in her gas bill does not support an equitable defense of laches because the small claims action was timely brought and there is no evidence that defendant was prejudiced by the delay since she is the landlord responsible for maintaining the premises free of gas leaks regardless of whether or not plaintiff made such reporting. Moreover, plaintiff testified that she noticed the gas bill increases in September 2020 and called around October-November 2020, and the delays were due to the COVID-19 pandemic. The court does not find unreasonable and inexcusable delay by plaintiff which prejudiced defendant. (Dante v 310 Assoc., 121 AD2d 332 [1st Dept 1986]; Strough v Incorporated Vil. of W. Hampton Dunes, 167 AD3d 800 [2d Dept 2018].) Therefore, defendant's affirmative defense is invalid.

Defendant's first counterclaim alleging plaintiff breached paragraph 13 of the rental agreement by delayed reporting of increased billing or the gas leak is denied for reasons previously discussed. Furthermore, defendant failed to prove monetary damages supporting this counterclaim.

As to defendant's second counterclaim for October 2021 unpaid rent, defendant served a 90-day notice of termination of the tenancy dated July 26, 2021, requesting the tenant vacate and surrender possession on October 31, 2021. The tenant vacated on November 1, 2021. The defendant testified that she withheld the tenant's security deposit of $1,523 and applied it toward October 2021 unpaid rent. Paragraph 17 of the rental{**74 Misc 3d at 731} agreement provides that the security deposit "will not be applied towards rental under any circumstances." Defendant violated paragraph 17.

Under the General Obligations Law, the tenant's security deposit may be retained or utilized by the landlord under certain circumstances including for "reasonable and itemized" costs due to nonpayment of rent or damages caused by the tenant beyond "ordinary wear and tear" (General Obligations Law § 7-108 [1-a] [b]). Otherwise, the security deposit must be returned to the tenant. Therefore, defendant's counterclaim for October 2021 rent was satisfied by application of the security deposit. Therefore, the counterclaim is denied.

In support of her third counterclaim for property damage and cleaning, defendant submitted several photographs and written estimates dated January 7, 2022, from Christie's Home Improvement Corp for $4,935.90; January 26, 2022, from Mercy & Compassion for $5,280; and November 17, 2021, from Detail Cleaning Services for cleaning for $325. The person who took the photographs did not appear to testify as to the authenticity of the photographs. Nevertheless, the court finds that the photographs depict ordinary wear and tear which is not recoverable.

Within reasonable time after the defendant landlord expressed her intention to terminate the tenancy by serving notice of termination dated July 26, 2021, she was required to provide written notice to the tenant of tenant's right to an inspection of the premises with both parties present. After the inspection and prior to the tenant vacating, the landlord was required to provide an itemized written statement specifying repairs or cleaning which would form the basis for withholding any portion of the security deposit. The tenant must be given the opportunity to cure any such conditions before the end of the tenancy (General Obligations Law § 7-108 [1-a] [d]). Here, the defendant landlord failed to comply with the provisions of the General Obligations Law by [*4]failing to provide written notice to tenant of her right to inspect the premises in the landlord's presence. The defendant also failed to provide an itemized written statement before the tenant vacated or provide the tenant an opportunity to cure the alleged conditions of which defendant now complains. Also, the defendant landlord failed to provide an itemized written statement specifying repairs or cleaning within 14 days after the tenant vacated on November 1, 2021, as required by law. Therefore,{**74 Misc 3d at 732} defendant's counterclaim for property damage and cleaning is denied except for $350 for a broken door to which plaintiff admits.

Judgment for plaintiff in the sum of $2,459.32 less $350 granted to defendant as a counterclaim for a net amount of $2,109.32. Defendant's counterclaims are otherwise denied in their entirety.

The above complies with the court's statutory charge to do substantial justice between the parties.