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Hussam Elshazly v. Fairfield of Ronkonkoma

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


June 14, 2011

HUSSAM ELSHAZLY,
APPELLANT,
v.
FAIRFIELD OF RONKONKOMA, LLC,
RESPONDENT.

Appeal, on the ground of inadequacy, from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered January 11, 2010. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $10.40.

Elshazly v Fairfield of Ronkonkoma, LLC

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2011

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

ORDERED that the judgment is modified by providing that the award in favor of plaintiff is increased by $150 to the principal sum of $160.40; as so modified, the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover from his former landlord a security deposit in the amount of $1,582.29. After a non-jury trial, the District Court awarded plaintiff the principal sum of $10.40, representing the amount of the security deposit after a setoff for several items, including rent for part of the month of October 2008, damages to the carpet and the cost of an extra coat of paint. On appeal, plaintiff argues that the court should not have set off against the security deposit the amount of $961.89, representing rent for 19 days in October 2008, or $200 for damage to the carpet, or the cost of an additional coat of paint in the amount of $50.

Upon a review of the record, we find that substantial justice between the parties (UDCA 1807) requires that the award to plaintiff be increased by $150. Although the District Court had sufficient evidence to set off the sum of $961.89, representing rent for 19 days in October 2008, against the security deposit (see Lukens v Gragert, 2002 NY Slip Op 50619[U] [App Term, 9th & 10th Jud Dists 2002]; 2 Dolan, Rasch's Landlord and Tenant--Summary Proceedings § 26:36, at 311 [4th ed]; see also Sperry v Miller, 8 NY 336 [1854]), it erred in setting off the sum of $200 for a damaged carpet and $50 for an extra coat of paint against the security deposit. The damage to the carpet, as specified in a paid bill for expenses "beyond basic cleaning," was only $60. In addition, the cost of an extra coat of paint, as set forth in a paid bill, was only $40 (see generally Finnerty v Freeman, 176 Misc 2d 220, 222 [App Term, 9th & 10th Jud Dists 1998]). Accordingly, the judgment is modified by increasing the amount awarded to plaintiff by $150 to the principal sum of $160.40.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: June 14, 2011

20110614

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