New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
October 18, 2012
VITO CONENNA AND GIOVANNA CONENNA,
JEANNINE MCKENNA AND JOSEPH VINOCUR,
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered September 2, 2010.
Conenna v McKenna
Decided on October 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., RIOS and SOLOMON, JJ
October 18, 2012
The judgment, after a non-jury trial, dismissed the complaint.
ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of plaintiffs in the principal sum of $9,000.
In this action for rent arrears, the Civil Court, after a non-jury trial, awarded judgment to defendants dismissing the complaint. We reverse.
Contrary to the Civil Court's findings, the proof at trial established the existence of a lease and defendants' failure to pay the monthly rent of $3,000 for October 2008 through March 2009. Moreover, notwithstanding defendants' testimony that they had returned the keys, the evidence did not establish that plaintiffs had accepted a surrender of the lease, as there was no showing that plaintiffs had utilized the premises in a manner inconsistent with defendants' rights under the lease (Brock Enters. v Dunham's Bay Boat Co., 292 AD2d 681 ). Consequently, plaintiffs are liable for the six months' rent in question, totaling $18,000. However, as the evidence further established that plaintiffs are holding a security deposit in the sum of $9,000, defendants are entitled to a setoff in that amount. Accordingly, the judgment is reversed and judgment is directed to be entered awarding plaintiffs the principal sum of $9,000.
Weston, J.P., Rios and Solomon, JJ., concur. Decision Date: October 18, 2012
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