SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
January 17, 2012
KATHLEEN HOEVENER AND CHRIS FERRI,
Appeal from a judgment of the District Court of Suffolk County, First District (Dennis M. Cohen, J.), entered June 2, 2010.
Deban v Hoevener
Decided on January 17, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ
The judgment, after a non-jury trial, dismissed the action.
ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of plaintiff in the principal sum of $253.
Plaintiff commenced this small claims action to recover rent arrears and for damage to the premises he had rented to defendants. After a non-jury trial, the District Court dismissed plaintiff's action. The court found that plaintiff held two months pre-paid rent, and a security deposit equivalent to another month's rent, totaling the sum of $4,547, which was more than defendants owed for the months of November and December 2009 and for eight days in January 2010. The court further found that plaintiff had failed to prove damage to the premises. On appeal, plaintiff contends that the court did not properly credit him for all the rent owed by defendants.
We find that defendants, as month-to-month tenants who concededly did not vacate the premises until January 8, 2010, owed plaintiff rent for the entire month of January and not just for the first eight days of the month as the District Court found. Where, as here, rent is due and payable on the first of the month, month-to-month tenants who vacate during the month are generally liable, absent an agreement to the contrary, for the entire month's rent (see Smith v Woodson, 31 Misc 3d 143[A], 2011 NY Slip Op 50870[U] App Term, 2d, 11th & 13th Jud Dists 2011]; Garfield v Howard, 2002 NY Slip Op 40422[U] [App Term, 2d & 11th Jud Dists 2002]; see also Prime Residential Brooklyn IV, LLC v Smith, NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists]). Thus, based on the record before us, defendants owe landlord rent at the rate of $1,600 per month for the months of November and December 2009, and January 2010, totaling $4,800. As plaintiff held two months of rent plus the security deposit totaling $4,547, plaintiff should be awarded the balance owed of $253. Thus, to the extent the judgment dismissed plaintiff's claim for rent arrears, it did not provide the parties with substantial justice according to the rules and principles of substantive law (see CCA 1807; Ross v Friedman, 269 AD2d 584 ; Williams v Roper, 269 AD2d at 126).
Accordingly, the judgment is reversed and judgment is directed to be entered in favor of plaintiff in the principal sum of $253.
Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: January 17, 2012
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