Appeal, on the ground of inadequacy, from a decision of the District Court of Nassau County, First District (Angelo A. Delligatti, J.), dated February 7, 2011, deemed from a final judgment of the same court entered February 14, 2011 (see CPLR 5512 [a]).
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012
PRESENT: LaSALLE, J.P., MOLIA and IANNACCI, JJ
The final judgment, insofar as appealed from, after a non-jury trial, awarded landlord the principal sum of $1,325.
ORDERED that the final judgment, insofar as appealed from, is modified by increasing the amount of the award to the principal sum of $2,750; as so modified, the final judgment, insofar as appealed from, is affirmed, without costs.
Landlord commenced this holdover proceeding to recover possession of the subject premises and, among other things, three months' rent at the rate of $1,375 per month. Tenant answered, affirmatively asserting that landlord had breached the warranty of habitability by failing to provide tenant with properly functioning plumbing and a stove that was fully operational. The answer asserted no counterclaims. At a non-jury trial, both landlord and tenant testified that the rent was $1,375 per month. Over landlord's attorney's repeated objections that the answer raised no counterclaims, tenant was permitted to testify as to improvements that she allegedly had made to the premises, with the court assuring landlord's attorney that it was able to distinguish between what was raised in the answer and what was not raised. After trial, the court awarded landlord one month's rent at the rate of $1,325, allowed landlord to retain the security deposit to set off a second month's rent and awarded tenant a setoff for her alleged improvements against the third month's rent. Landlord's appeal, on the ground of inadequacy, from the District Court's decision is deemed to be from so much of the final judgment that was subsequently entered as awarded landlord the principal sum of $1,325 (see CPLR 5512 [a]).
Contrary to tenant's sole contention on appeal, landlord's acceptance of tenant's payment of the judgment amount and issuance of a satisfaction does not bar this appeal on the ground of inadequacy (Cornell v T.V. Dev. Corp., 17 NY2d 69 ; Kriesel v May Dept. Stores Co., 261 AD2d 837 ; Alexsey v Kelly, 205 AD2d 649 ).
In view of the undisputed testimony at trial that the monthly rent was $1,375, it was error for the District Court to base its award upon a monthly rent of $1,325. It was also error for the court to award tenant a setoff on an unpleaded counterclaim. Undemanded relief should not be awarded to a party where there is prejudice to the other party (Matter of We're Assoc. Co. v Scaduto, 206 AD2d 245, 248 ). Here, there was prejudice to landlord, as the court assured landlord's attorney that it would distinguish between what was raised in the answer and what was not raised, and, as a result, landlord's attorney did not attempt to introduce proof to rebut tenant's unpleaded claim.
Accordingly, we modify the judgment, insofar as appealed from, by increasing the amount of the award to $2,750, to reflect an award to landlord of two months' rent at $1,375 per month. We note that landlord does not claim that the amount of the security deposit was insufficient to set off the third month's rent, and that the record is silent as to the amount of the deposit. Since, as noted above, tenant has already paid $1,325 toward the judgment, she should be given credit therefor.
LaSalle, J.P., Molia and Iannacci, JJ., concur. Decision Date: ...