I agree with the majority that the suit brought on behalf of the landlord should be dismissed for failure to state a cause of action and for failure to join the tenants as necessary parties, and that the provision in the lease which governs interest on a tenant’s security deposit should be declared void because it violates the General Obligations Law. Likewise, I concur in the majority’s determination that a hearing should be conducted on the issue of the unconscionability of the provisions in the landlord’s form lease dealing with (1) a 4% late charge (par 3 of the lease); (2) the collection of a 1% service charge from the interest earned on tenants’ security deposits (par 7); (3) attorneys’ fees in case of suit (par 31); (4) an increase in rent corresponding to an increase in fuel costs (par 34); (5) a charge for “unwarranted” service calls (item 15 of landlord’s rules and regulations); and (6) a damage bond to be posted if a tenant keeps a pet (lease rider).
*75Although I agree that a hearing on the foregoing lease provisions is in order, my vote for a hearing should not be taken as an intimation that I am disposed to believe that the Attorney-General will be able to establish that such clauses are unconscionable. The Court of Appeals tells us that the doctrine of unconscionability is “not aimed at ‘disturbance of allocation of risks because of superior bargaining power’ but, instead, at ‘the prevention of oppression and unfair surprise’” (Matter of State of New York v Avco Fin. Serv., 50 NY2d 383, 389). Whether the challenged clauses can properly be classified as oppressive is, to me, truly questionable. Nevertheless, the unconscionability doctrine is a flexible one with roots in equity and, as such, is “intended to be sensitive to the realities and nuances of the bargaining process” (Matter of State of New York v Avco Fin. Serv., supra, pp 389-390). Consequently, the issue is best decided following an evidentiary hearing.
While I thus concur that a hearing is appropriate with respect to the allegedly unconscionable lease provisions, I am unable to agree with that branch of the majority opinion which remits for a hearing the issue of whether the landlord’s actions designed to obtain a fuel surcharge during the 1979 oil crisis were fraudulent. In my opinion, Special Term was correct when it found that the allegedly fraudulent actions of the landlord in seeking such fuel surcharge do not give rise to any public remedy under subdivision 12 of section 63 of the Executive Law. Essentially, Special Term found that the landlord’s efforts to obtain a fuel surcharge from the tenants prior to including a provision therefore in the form lease “cannot be considered a repeated or persistent act within the meaning of that statute” as it then read and that, therefore, the Attorney-General could not complain of such actions under the authority given him by the Executive Law.
In reversing Special Term’s conclusion on that point the majority states that even if the landlord’s letters to the tenants concerning the fuel surcharge cannot be considered “repeated” or “persistent” they can be challenged by the Attorney-General and that it was error for Special Term to analyze the first cause of action in isolation from the other allegations of fraud and illegality found in the *76petition. The majority holds that if the Attorney-General can show that the questioned lease provisions are indeed “fraudulent or illegal”, under the statute, then he will have demonstrated the existence of “persistent fraud or illegality” and “he then may seek, among other things, ‘an order enjoining the continuance * * * of any fraudulent or illegal acts.’ ” What the majority seems to be saying despite disclaimer is that the Attorney-General’s authority under the statute to prosecute the first cause of action (i.e., that relating to the fuel surcharge) hinges upon the success of the other causes of action in the petition which attack clauses in the lease. Adopting the majority’s reasoning, it would appear to follow that if the Attorney-General fails to show that the contested lease provisions are unconscionable he then loses any authority under the statute to question the landlord’s actions with respect to the fuel surcharge if the fuel surcharge is not a repeated or persistent act. In my judgment', either the authority existed under the statute for the Attorney-General to challenge the actions relating to the fuel surcharge at the time the lawsuit was undertaken by the Attorney-General, without regard to his ultimate success on other independent claims, or it did not exist at all. I fail to see how we can logically or legally conclude that the authority to challenge the attempted 1979 fuel charge pass along (which as will be seen, infra, was not actionable prior to a 1981 amendment of the subject statute) is dependent upon the Attorney-General’s success in his attack on the allegedly unconscionable form lease. The landlord’s letter request for the fuel surcharge is markedly different from a lease term or “unconscionable contractual provision” and simply cannot be grouped with the challenged lease provisions for the purpose of determining whether authority exists for the Attorney-General’s challenge thereto. Stated otherwise, whether or not the Attorney-General has standing to prosecute the first cause of action is something which must be determined from the face of the petition and the nature of the claims asserted in that cause of action.
My view finds some support in the memorandum decision of the Appellate Division, First Department, in Matter of State of New York v Italian Line (56 AD2d 533, affd 43 *77NY2d 851), where that court appears to have held that the validity of a fuel surcharge is to be considered on its own merits and without regard to any claim of contract unconscionability. Thus, that court stated (p 533): “The statute under which this proceeding is brought is predicated upon a showing that the respondent in the proceedings ‘shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business’. (Executive Law, § 63, subd 12.) We do not think that the imposition of this surcharge on previously contracted for passages made a year and one half before the petition in this case can fairly be called ‘repeated’ or ‘persistent’ within the meaning of this statute, whether or not the provisions of the contract were so ‘unconscionable’ as to come within the definition of ‘fraud’ or ‘fraudulent’ in the statute” (emphasis supplied).
Although the majority is of the view that it was error to examine the 1979 surcharge in isolation from the other acts of alleged impropriety, it goes on to say that even if it were to be so considered the three sets of letters “can be characterized as a ‘continuance or carrying on of * * * [an] act or conduct’, or as ‘repeated * * * acts’ as that phrase in the statute was interpreted prior to the 1981 amendment”. I find myself unable to agree with that finding and com elude that the 1979 actions attributable to the landlord as they pertain to the fuel surcharge are not within the purview of the statute prior to its amendment. In a word, the actions of the landlord complained of were not forbidden or prohibited by the statute at the time this proceeding was commenced.
The majority holds that the 1981 amendment to subdivision 12 of section 63 of the Executive Law is not applicable to this proceeding and that the landlord’s efforts to obtain a fuel surcharge from his tenants must be construed under the statute as it formerly read. I agree. The majority also holds that under the prior law a single act, although applicable to many persons, did not come within the statute (Matter of State of New York v Italian Line, 43 NY2d 851, affg 56 AD2d 533, supra; Matter of State of New York v Bel Fior Hotel, 74 AD2d 692). I agree. But, unlike the majority, I believe that the fuel surcharge in this case was a single act, not repeated acts.
*78In Matter of State of New York v Italian Line (supra), the respondent steamship company unilaterally imposed a fuel surcharge on future sales of tickets as well as upon passengers who had previously booked passage on its vessels and who had not yet made full payment for their tickets. In affirming the Appellate Division, First Department, a unanimous Court of Appeals wrote that (p 852) “Italian Line was not shown to have engaged in any practice forbidden by subdivision 12 of section 63 of the Executive Law or to have engaged in such practice on a repeated or persistent basis.”
In Matter of State of New York v Bel Fior Hotel (supra), the Appellate Division, Third Department, refused to apply the former statute to 280 separate but identical rental agreements holding that:
“We do not believe that the provisions of a damage deposit clause in each of 280 separate but identical contracts can fairly be called ‘repeated’ or ‘persistent’ within the meaning of the statute. Respondent used the damage clause provision in connection with an unusual and unexpected request to provide housing for students who would otherwise lack shelter while attending college. Such an arrangement had not previously occurred despite the proximity of respondent’s hotel to the college, and, given this proceeding, is unlikely, to occur again. We perceive no distinction between the insertion of a common damage clause in multiple contracts to guard against reasonably perceived property damage and the imposition of a ‘fuel surcharge’ on contracts for ocean passage to protect against rises in the price of oil because of the 1973 oil embargo, which latter provision was found by the Court of Appeals to be neither a ‘repeated’ nor ‘persistent’ act or, in fact, unconscionable or illegal (Matter of State of New York v Italian Line, 43 NY2d 851, affg 56 AD2d 533). We reject the view that a single act contemporaneously affecting multiple parties is a ‘repeated’ or ‘persistent’ act.”
In my view, the majority’s attempt to distinguish this matter from the above cases is not persuasive. I believe that Special Term correctly resolved the fuel surcharge issue when it dismissed the first cause of action holding that: “The circumstances set forth above do not indicate *79that LBV engaged in any practice forbidden by Executive Law § 63 (12), because LBV’s actions with respect to obtaining a fuel surcharge from its tenants prior to the inclusion of 1134 on riders and/or renewals cannot be considered a repeated or persistent act within the meaning of that statute, (Lefkowitz v. Italian Line, 56 A.D. 2d 533, 391 N.Y.S. 2d 132, aff’d 43 N.Y. 2d 851, 402 N.Y.S. 2d 1007). LBV’s letters constituted one single act of soliciting money to defray the landlord’s fuel costs. The court in so holding, does not approve or condone the practices of the respondent, but rather the court merely concludes that the acts in question do not give rise to any public remedy under Executive Law § 63 (12), as distinct from whatever private remedy the individual tenants may possess. However, the court does note that the tenants were not compelled to make the requested payments. In fact, many tenants ignored the request and the landlord did not take any further action against them.”
With respect to the 1979 fuel surcharge the petition of the Attorney-General alleges that the tenants were required to sign leases on a “take-it-or-leave-it” basis (par sixth) and that the form lease did not “authorize the landlord to make any assessments against the tenants or to increase rents due to increased energy costs” (par seventh). In the eighth paragraph, the petition alleges that “on or about June 25,1979, respondent sent a letter to each tenant advising him/her that, effective July 1, 1979, the rent would be increased 5% in the case of the Coram tenants, and a flat $10 in the case of the East Patchogue tenants, due to the increase in fuel costs.” As we know, three days later, the landlord sent the following letter to those tenants who had received the earlier letter.
“June 28, 1979
“Dear Resident:
“A few days ago on June 25th, you received a letter from me regarding the energy crisis and requesting a rental increase for your apartment at La Bonne Vie.
“It has come to my attention that as a result of our letter a great many residents are confused as to our intention, and are furthur [sic] confused by the numerous rumors spreading throughout the development.
*80“The purpose of this letter is to put your mind at ease, clarify our original intentions, and put an end to the numerous false rumors that are circulating around La Bonne Vie.
“It appears that the greatest fear the residents have - regarding this energy increase is that it is the first of many increases that they will have to absorb. Another concern is that they are still subject to further increases pursuant to paragraph #32 of their lease.
“It was our original intention and continues to remain our intention to give each resident that pays the ten dollar energy increase a rider to their [sic] current lease which guarantees the new ajusted [sic] rent for the balance of it’s [sic] term. Furthurmore [sic], we will also waive the provisions of paragraph 32 in their [sic] lease with regard to any furthur [sic] increases due either to the fuel crisis or any other provision in this paragraph.
“Thank you for the opportunity to furthur [sic] explain our position with regard to my letter of June 25th, and should you require any additional information please contact any member of my office staff who will be more than happy to discuss the situation with you.
“Very truly your [sic],
“La Bonne Vie Apartments”.
The petition goes on to allege that the statements made in the above letter “were false and deceptive and created the mistaken belief among many tenants that the rent increase was authorized by lease clause 32 when in fact it was not” (par eleventh); that by the insertion of a fuel oil clause in subsequent leases the landlord “conceded that the prior leases absent such riders, do not authorize such ‘energy increases’ as he has claimed in his June 25 and 28 communications to the tenants” (par seventeenth); and that the landlord’s “characterization of this fuel cost surcharge as an assessment authorized under the terms of the lease when such is not the fact is both misleading and deceptive” (par eighteenth) mandating relief pursuant to subdivision 12 of section 63 of the Executive Law.
The first cause of action of the petition (dated Dec. 19, 1979, long after the circulation and receipt of the answers *81to the questionnaire sent to the tenants by the Attorney-General) refers to the afore-mentioned two letters and makes mention of no other communication or acts done by the landlord with respect to the allegedly improper fuel surcharge. Be that as it may, even considering the third letter dated July 16, 1979 (which was sent to different recipients from those receiving the earlier letters — i.e., new tenants or tenants who had just renewed their leases and were unaffected by the landlord’s acts up to that time), I fail to see how the three letters can be construed as anything other than a single attempt to impose a one time fuel surcharge on all of the tenants in the landlord’s buildings. Such a single attempt, prior to the statutory amendment which defined “repeated” for the first time as including separate conduct which affects more than one person, cannot be challenged by the Attorney-General.
Accordingly, I would affirm so much of the order and judgment appealed from as dismissed the first cause of action in the petition and would otherwise concur with the majority.
Lazer, J. P., and Boyers, J., concur in the opinion of Gibbons, J.; Niehoff, J., concurs in part and dissents in part, with an opinion.
(1) Order and judgment (one paper) of the Supreme Court, Suffolk County, dated June 1, 1981, reversed insofar as appealed from, on the law, the first, second, third, seventh, eighth and ninth decretal paragraphs are deleted, the appellant’s petition is amended in accordance with the opinion herein, and it is determined that so much of paragraph 7 of the form lease which provides that the interest on a tenant’s security, less a 1% service charge “shall be paid to the Resident after expiration of the lease”, is void as a matter of law, and (2) order of the same court dated March 3,1980, which denied the State of New York’s motion to dismiss the action against it for failure to state a cause of action and for failure to join necessary parties, reversed, on the law, and motion granted, and proceeding by the State of New York remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith. The respondent is to comply with the directions set forth in the opinion herewith with respect to the inter*82est on the tenants’ security within 30 days after service upon him of a copy of the order to be made hereon, with notice of entry.
One bill of costs is awarded to the State of New York.