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Belinda Ortiz v. Anthony Pantaleone

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


August 16, 2011

BELINDA ORTIZ,
RESPONDENT,
v.
ANTHONY PANTALEONE, APPELLANT, -AND- FRANCES PANTALEONE,
DEFENDANT.

Ortiz v Pantaleone

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2011

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

Appeal from a judgment of the Justice Court of the Town of Goshen, Orange County (Kimberly Van Haaster, J.), entered November 18, 2008. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,861.71 as against defendant Anthony Pantaleone.

ORDERED that the judgment is affirmed, without costs.

Plaintiff, defendants' former tenant, commenced this small claims action to recover a security deposit in the amount of $2,600. After a non-jury trial, the Justice Court awarded plaintiff the principal sum of $1,861.71 as against Anthony Pantaleone (defendant), after a setoff for use and occupancy and an unpaid water bill. On appeal, defendant argues that he is entitled to a further setoff for the estimated cost to paint the premises and the cost of the transcript of the trial.

Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UJCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]).

A tenant's security deposit remains the property of the tenant (General Obligations Law § 7-103 [1]) and must be returned at the conclusion of the tenancy (Cruz v Diamond, 6 Misc 3d 134[A], 2005 NY Slip Op 50187[U] [App Term, 9th & 10th Jud Dists 2005]) absent, for example, proof that the tenant caused damage beyond that attributable to ordinary wear and tear (see generally Finnerty v Freeman, 176 Misc 2d 220, 222 [App Term, 9th & 10th Jud Dists 1998]). Here, defendant failed to establish that tenant had caused any damage to the premises beyond ordinary wear and tear. In any event, a single estimate for painting is insufficient proof of damages (see UJCA 1804). We further note that, as a general rule, a civil litigant cannot recover as damages his expenses in the prosecution or defense of an action (see Hartford Cas. Ins. Co. v Vengroff Williams & Associates, Inc., 306 AD2d 435 [2003]; Ajar v Ajar, 207 AD2d 469, 471 [1994]; Wu v Kao, 194 AD2d 666 [1993]). As the record supports the Justice Court's determination, we find no reason to disturb the judgment.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: August 16, 2011

20110816

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