SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
March 21, 2011
Appeal from a judgment of the City Court of Long Beach, Nassau County (Stanley A. Smolkin, J.), entered May 7, 2009.
Hoffman v Farucci
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 21, 2011
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,000.
ORDERED that the judgment is affirmed, without costs.
From June 2006 through February 6, 2009, plaintiff resided in half of a two-family house (the premises) which was owned and also occupied by defendant. For the first year, plaintiff lived in the premises pursuant to a lease; thereafter, he continued to live in the premises as a month-to-month tenant, paying a base rent plus a surcharge amounting to half of the fuel oil, water and sewage, and natural gas charges. After defendant unilaterally increased plaintiff's share of the fuel oil surcharge to two-thirds, plaintiff gave notice of his intent to vacate the premises on March 1, 2009. However, because plaintiff failed to pay any rent for February by the third of the month, defendant gave plaintiff a three-day notice.
Plaintiff vacated the premises on February 6, 2009, and brought this small claims action to recover his $2,000 security deposit. Defendant admitted that he held the $2,000 security deposit, as well as net interest of $187.20 thereon. He counterclaimed, asserting that he was entitled to retain the full security deposit, based on arrears in rent and surcharges, and sought to recover additional sums based on plaintiff's alleged destruction of the premises beyond ordinary wear and tear. At the non-jury trial, photographs were introduced into evidence, which plaintiff claimed showed that he had returned the premises in satisfactory condition; defendant claimed that those photographs, as well as others he introduced into evidence, depicted damage beyond ordinary wear and tear. Defendant introduced into evidence bills he had received for natural gas, and for water and sewer charges. He also introduced into evidence print-outs from a Web site to show the replacement cost for blinds which he said plaintiff had damaged. Following the trial, the City Court awarded plaintiff the principal sum of $1,000.
While a tenant's security deposit, as well as the interest thereon, is the property of the person making the deposit (General Obligations Law § 7-103), upon a default by the tenant, the deposit may be used by the landlord as an offset against amounts owed to the landlord (see Rivertower Assoc. v Chalfen, 153 AD2d 196, 199 ). Upon a review of the record, we find that defendant established an offset against the security deposit in an amount less than the $1,187.20 implicitly found by the City Court. We therefore conclude that the judgment of the City Court effected substantial justice between the parties according to the rules and principles of substantive law (UCCA 1804, 1807), and it is, accordingly, affirmed.
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: March 21, 2011
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