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A Tenant's Guide to Getting and Keeping Gas and Electricity Service

TenantNet note: This booklet was published by Brooklyn Legal Services in 1995. Some information contained may be out-of-date, particularly listed telephone numbers. As far as we know, there have been no updates to this publication. While much of the information may still be valid, the reader should exercise caution.

IX. What To Do If The Utility Company Threatens To Seize Your Meter

The utility company may also terminate your utility service by starting an action in court to remove or "seize" the utility meter. The utility company does this to protect their equipment (the meter) when they believe no one will pay outstanding bills. Removal of the meter will make it much more expensive for you to restore your utility service.

The utility company usually begins the court action by notifying you that they intend to apply for an order to remove or seize the meter.

The utility company's application must contain a statement or "affidavit" of someone with personal knowledge of the facts. The affidavit should state the following:

1. the facts entitling the utility to possession;
2. the value of the meter sought to be recovered;
3. the location of the meter.

It is likely that you will also receive a Summons and Complaint with the application. The Summons and Complaint are the papers that start the court case and should contain many of the same facts listed above.

You have a right to a hearing before a Judge to oppose the utility company's attempt to take the meter. The utility company's notice of application describes how you can obtain a hearing by going to the Clerk's office of the Civil Court, Kings County, at 141 Livingston Street, Brooklyn, New York, to respond to the utility's claims. If you do not respond within 15 days from the date of service of the notice of application, the Judge will most likely grant an order of seizure allowing the utility company to remove the meter. If you respond and get a hearing date but fail to appear at the hearing, an order of seizure will most likely be issued.

If you request a hearing and appear at court on the hearing date, you can meet with a representative of the utility company and try to settle your dispute (for example, pay the bill or arrange for a deferred payment agreement). You have the right to arrange for the payment of any amount you owe on a deferred basis unless you are in default on an existing deferred payment agreement.

At the hearing, the utility company has the burden of proving the facts set forth in its affidavit. You have the right to dispute the utility's facts and should raise defenses to the utility's claims against you. You have the right to be represented by an attorney. Some possible defenses include the following

1. Improper Service. Raise this defense if the notice of application was not delivered to you in a timely or proper way.
2. Insufficiency of the utility company's affidavit. Raise this defense if there is no affidavit, or if the affidavit does not contain the facts outlined above, or if the affidavit was not made by someone with personal knowledge, or if any of the facts are not accurate (such as facts about amount of money owed, basis for money sought, location of meter or the value of the meter).
3. Payment or partial payment. Raise this defense if you paid some or all of the charges the utility company claims are due.
4. Overcharges. Raise this defense if the charges the utility claims are not due, or reflect charges that are not your responsibility such as charges from another account or charges from a shared meter for which your landlord is responsible.

In addition to these defenses you should appeal to the Judge's sense of fairness by advising the Judge of your individual circumstances such as family size, the presence of young or disabled family members, the need for the utility service (for gas heat in winter, for example), the causes for the non-payment, and your ability to pay the arrears within a short period of time. The Judge has the power to grant or deny the utility company's application for an order to remove the meter.

If the Judge finds in favor of the utility company, an Order of seizure will be issued to a marshal or a sheriff. The marshal or sheriff should advise you, by mail, of the order of seizure and that the meter will be seized in seven days. After the expiration of the seven day notice, the marshal or sheriff may break into the premises, if not given access, and remove the meter.

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