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Elinor Battle v. Howard Smith and 98 Rose Street

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


March 28, 2012

ELINOR BATTLE,
RESPONDENT,
v.
HOWARD SMITH AND 98 ROSE STREET, LLC,
APPELLANTS.

Appeal from a judgment of the District Court of Nassau County, First District (Terence P. Murphy, J.), entered March 11, 2010. The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,400.

Battle v Smith

Decided on March 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: LaCAVA, J.P., MOLIA and IANNACCI, JJ

ORDERED that the judgment is modified by vacating so much of the judgment as is against defendant Howard Smith and by dismissing so much of the action as is against him; as so modified, the judgment is affirmed, without costs.

After vacating her residential rental unit, plaintiff brought this small claims action to recover her security deposit. At a non-jury trial, she testified that she had given a $1,400 security deposit to the former landlord of the demised premises. She stated that, after she had vacated the premises, the current property manager had said thatshe would be sent a refund, but that her security deposit had never been refunded to her. She showed the court a cancelled check for $2,700, and testified that it included her $1,400 security deposit.

Defendant Howard Smith testified that he was the vice-president of defendant 98 Rose Street, LLC, the entity which, in March 2008, had acquired the premises from the former owner. He stated that the prior owner had failed to transfer to 98 Rose Street, LLC all of the security deposits for the building in which the demised premises were located, although it had been required to do so under the contract of sale for the building, but he did not deny plaintiff's claim that she had given a $1,400 security deposit to her prior landlord or her claim that she was entitled to the return of her security deposit. Following trial, a judgment in the principal sum of $1,400 was awarded against both defendants.

The action had previously been adjourned at defendants' behest, to enable defendants to obtain counsel. Defendant Howard Smith appeared individually, but also testified that he was the vice-president of the corporate defendant. As this was a small claims action, the District Court did not improvidently exercise its discretion in proceeding with the trial against both defendants, despite the fact that the corporate defendant was not represented by counsel (see UDCA 1809 [2]).

It was unrefuted that the corporate defendant, rather than the individual defendant, owned the building in which the demised premises were located, and no basis was shown for imputing liability to the individual defendant. We note too that the District Court, as a court of limited jurisdiction, lacked jurisdiction to grant the equitable relief of "piercing the corporate veil" (Intracoastal Abstract Co., Inc. v Farmarz Sadighpour & Minifar, Inc., 12 Misc 3d 139[A], 2006 NY Slip Op 51328[U] [App Term, 9th & 10th Jud Dists 2006]). In view of the foregoing, we vacate so much of the judgment as is against defendant Howard Smith and dismiss so much of the action as is against him, since this portion of the judgment failed to render substantial justice (see UDCA 1807).

General Obligations Law § 7-108, which applies "to all dwelling units with written leases in residential premises containing six or more dwelling units" (General Obligations Law § 7-108 [1]), provides, among other things, that a successor landlord is deemed to have knowledge of any security deposit which was held by the predecessor landlord (see General Obligations Law § 7-108 [2] [b]), and is liable to the tenant for the repayment of such security deposit (see General Obligations Law § 7-108 [2] [a]) if the tenant can demonstrate by appropriate proof that she had paid the predecessor landlord a security deposit (see General Obligations Law § 7-108 [2] [b] [iii]). A cancelled check drawn to the order of the predecessor landlord adequately documents a tenant's payment to the predecessor landlord of a security deposit (see General Obligations Law § 7-108 [2] [c]).

Plaintiff testified, and defendants did not dispute, that plaintiff had resided in her rental unit pursuant to a written lease. Plaintiff failed to offer evidence at trial as to the type of building in which her rental unit had been located. However, appellate courtsmay take judicial notice, sua sponte (e.g. Matter of L & Q Realty Corp. v Assessor, 71 AD3d 1025 [2010]), of official promulgations of government, including material derived from official government Web sites (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 19-20 [2009]). Based on information on the official Web site for the County of Nassau (see http://www.nassaucountyny.gov/mynassauproperty/main.jsp [accessed Jan. 25, 2012]), we take judicial notice that the building in which plaintiff resided has more than six apartments. Plaintiff was thus entitled to the protections contained in General Obligations Law § 7-108.

The cancelled check plaintiff produced at trial constituted documentary evidence (see General Obligations Law § 7-108 [2] [c]) of the fact that she had paid a security deposit to her former landlord. The corporate defendant herein, as plaintiff's successor landlord, was deemed to have knowledge of the security deposit (General Obligations Law § 7-108 [2] [b]), and is liable to plaintiff for the repayment of the security deposit (General Obligations Law § 7-108 [2] [a]).

We thus conclude that the judgment, insofar as it is against defendant 98 Rose Street, LLC, rendered substantial justice between the parties according to the rules and principles of substantive justice (see UDCA 1804, 1807), and so much of the judgment as is against that defendant is, accordingly, affirmed. We note that we do not consider those objections as to the fairness of the trial which defendants make for the first time on appeal.

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

Decision Date: March 28, 2012

20120328

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