Appeal from a judgment of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered March 14, 2011.
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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS and SOLOMON, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,945.
ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,725; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced this small claims action to recover from defendant, his former tenant, unpaid rent for the months of July, August and September 2010. After a non-jury trial, the Civil Court awarded plaintiff the principal sum of $1,945, representing rent owed for half of the month of July, and the months of August and September 2010. One month's rent, in the amount of $1,150, was offset by defendant's security deposit.
Upon a review of the record, we find that substantial justice between the parties (CCA 1807) requires that the award to plaintiff be reduced by $220. Although the Civil Court had sufficient evidence to offset the sum of $1,150 against the rent owed by defendant for September 2010, it erred in awarding plaintiff the principal sum of $1,945, as the undisputed unpaid rent for July and August totaled $1,725. Accordingly, the judgment is modified by reducing the amount awarded to plaintiff by $220 to the principal sum of $1,725.
We note that we do not consider those factual assertions contained in defendant's brief which, not having been presented to the trial court, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 ).
Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: August 06, 2012
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