Bill S4243-2013

Relates to the installation of radiator covers

Relates to the installation of radiator covers.






TITLE OF BILL: An act to amend the real property law, in relation to the installation of radiator covers

PURPOSE OR GENERAL IDEA OF BILL: To require managers of residential buildings, if requested by a tenant, to install radiator covers in units where a child twelve years or younger resides.

SUMMARY OF SPECIFIC PROVISIONS: Section 1. Section 235-b of the real property law is amended by inserting a new subdivision 2 and renumbering the current subdivisions accordingly.

§ 235-b(2)(a): If a child age twelve or younger resides within a tenant's dwelling, a landlord shall, at the written request of the tenant, be responsible for installing a radiator cover on any uncovered radiator that carries fluids at one hundred sixty-five degrees Fahrenheit or higher and is located in the tenant's dwelling. The. landlord shall have ninety days after receipt of such request to complete the installation.

§ 235-b(2)(b): The failure of the landlord to install a radiator cover or covers within the ninety day period, following a written request by the tenant, shall be deemed a hazard to the occupants, age 12 or younger. In any case in which a tenant shall make a payment in order to install a requested radiator cover, following the failure of the landlord to install such cover in the appropriate time, the tenant may deduct the reasonable cost of such installation from the rent and shall not be liable for eviction on the grounds of that deduction.

JUSTIFICATION: On March 10, 2009, the New York State Appellate Division Court, Second Department, ruled in Utkan v Szuwala that landlords are not responsible for protecting children from properly operating radiators. In the case, the plaintiff; Ms. Utkan wanted to recover damages for personal injuries sustained by her infant after it was burned by an exposed radiator. Ms. Utkan contacted her landlord Ms. Szuwala about the infant's injuries and requested that she provide a radiator cover to prevent future incidents. Ms. Szuwala refused, and when the child was injured on an additional occasion, Ms. Utkan brought her case to court.

In the Appellate Division's order of dismissal, they cited Rivera v Nelson Realty, LLC (7 NY3d at 5:32), which states that Plaintiffs do not claim that the radiator that injured the infant plaintiff needed repair, or was defective in any way. Plaintiff's claim is that an uncovered radiator in good working order, though not a hazard in a home occupied only by adults, is dangerous to children. No duty to remedy this alleged hazard is imposed by the Multiple Dwelling Law or arises under common law by virtue of the lease. Accordingly, any duty to protect children from uncovered radiators remains that of the tenant, unless some other statute or regulation imposes it on the land lord. THE DECISION WHETHER RADIATOR COVERS MUST BE SUPPLIED BY LANDLORDS IS THUS LEFT TO LEGISLATORS AND REGULATORS, who are in the best position to balance the harm prevented by this safety measure against its cost - a cost which, if imposed on landlords, becomes part of the overall cost of rental housing."

Due to the Appellate Division's deferral to the State Legislature for clarification on this issue, I am introducing legislation to require landlords to install radiator covers, per written request, in units in which a child twelve years or younger resides. This action will decrease future injuries to children due to extremely hot radiators and clarify a landlord's responsibility for their safe operation.



EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.


STATE OF NEW YORK ________________________________________________________________________ 4243 2013-2014 Regular Sessions IN SENATE March 15, 2013 ___________
Introduced by Sen. BRESLIN -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the real property law, in relation to the installation of radiator covers THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 235-b of the real property law, as added by chapter 597 of the laws of 1975, subdivision 3 as amended by chapter 403 of the laws of 1983, paragraph (c) of subdivision 3 as added by chapter 116 of the laws of 1997, is amended to read as follows: S 235-b. Warranty of habitability. 1. In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such prem- ises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety. When any such condition has been caused by the misconduct of the tenant or lessee or persons under his direction or control, it shall not constitute a breach of such covenants and warranties. 2. (A) IF A CHILD OF AGE TWELVE OR YOUNGER RESIDES WITHIN A TENANT'S DWELLING A LANDLORD SHALL, AT THE WRITTEN REQUEST OF THE TENANT, BE RESPONSIBLE FOR THE INSTALLATION OF A RADIATOR COVER ON ANY UNCOVERED RADIATOR THAT: CARRIES STEAM, WATER, OR OTHER FLUIDS AT TEMPERATURES EXCEEDING ONE HUNDRED SIXTY-FIVE DEGREES FAHRENHEIT; ARE NOT CURRENTLY COVERED IN A MANNER THAT ENSURES THAT THE TEMPERATURE OF THE OUTER SURFACE DOES NOT EXCEED ONE HUNDRED NINE DEGREES FAHRENHEIT; AND ARE LOCATED IN THE TENANT'S DWELLING. THE LANDLORD SHALL HAVE NINETY DAYS AFTER RECEIPT OF SUCH WRITTEN REQUEST TO COMPLETE THE INSTALLATION OF A RADIATOR COVER OR COVERS.
(B) ANY FAILURE OF THE LANDLORD TO INSTALL A RADIATOR COVER, PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION, SHALL BE DEEMED TO SUBJECT THE OCCUPANTS OF THE DWELLING TO CONDITIONS DANGEROUS, HAZARDOUS, OR DETRI- MENTAL TO THEIR LIFE, HEALTH, OR SAFETY. IN ANY CASE IN WHICH A TENANT SHALL MAKE A PAYMENT IN ORDER TO INSTALL A REQUESTED RADIATOR COVER OR COVERS, FOLLOWING THE FAILURE OF THE LANDLORD TO INSTALL SUCH COVERS WITHIN NINETY DAYS OF RECEIVING A WRITTEN REQUEST PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION, THE TENANT MAY DEDUCT FROM THE RENT THE REASON- ABLE COST FOR THE INSTALLATION AND SHALL NOT BE LIABLE FOR EVICTION ON THE GROUND OF THAT DEDUCTION. [2] 3. Any agreement by a lessee or tenant of a dwelling waiving or modifying his rights as set forth in this section shall be void as contrary to public policy. [3] 4. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court; (a) need not require any expert testimony; [and] (b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused prima- rily by the individual landlord or lessor and such damages are attribut- able to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant's premises, provided, however, that the landlord or [lesser] LESSOR has made a good faith attempt, where practicable, to cure the breach[.]; AND (c) where the premises is subject to regulation pursuant to the local emergency housing rent control law, the emergency tenant protection act of nineteen seventy-four, the rent stabilization law of nineteen hundred sixty-nine or the city rent and rehabilitation law, reduce the amount awarded hereunder by the total amount of any rent reduction ordered by the state division of housing and community renewal pursuant to such laws or act, awarded to the tenant, from the effective date of such rent reduction order, that relates to one or more matters for which relief is awarded hereunder. S 2. This act shall take effect on the ninetieth day after it shall have become a law.


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