Appeal from a judgment of the District Court of Nassau County, Second District (Angelo A. Delligatti, J.), entered March 31, 2009.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2012
PRESENT: MOLIA, J.P., IANNACCI and LaSALLE, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,000 and dismissed defendant's counterclaim.
ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $880.30; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced this small claims action against defendant, rather than the corporation identified as plaintiff's landlord on her Section 8 lease, to recover her $1,000 security deposit. Defendant filed a $5,000 counterclaim based on the cost of repairs for damage allegedly caused by plaintiff. After a non-jury trial, the District Court awarded plaintiff $1,000 and dismissed defendant's counterclaim. Defendant appeals, arguing that he was not a proper party to be sued for the return of the security deposit, that plaintiff owed $775, representing "the balance" of the $1,135 rent due for the final month of her occupancy, and that the District Court should have awarded defendant $532.20 in damages, noting plaintiff's concession at trial that the security payable may be reduced by the cost of repairs to a kitchen countertop and cabinet doors.
Although the lease identifies a corporation as landlord, by failing to raise the issue of improper party in the District Court, and by interposing a landlord's counterclaim, defendant waived any objection to his standing to be sued for the return of the security deposit. Defendant failed to establish a proper factual basis for a calculation of unpaid rent, if any, and for a finding that plaintiff is responsible for the balance. Moreover, with the exception of two bills totaling $119.70 (i.e., $80.89 for the countertop and $38.81 for cabinet parts), we find inadequate defendant's proof of damages (see UDCA 1804), which largely consisted of unitemized receipts for materials or labor not chargeable to plaintiff because they involve discretionary renovations, and not the repair of property damage for which plaintiff is responsible.
Accordingly, to render substantial justice between the parties according to the rules and principles of substantive law (UDCA 1807), we modify the judgment by reducing the principal sum awarded plaintiff by $119.70, to the principal sum of $880.30.
Molia, J.P., Iannacci and LaSalle, JJ., concur.
Decision Date: August ...