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Sheila Simone v. Beach Realty Corp


March 1, 2013


Appeal from a judgment of the City Court of Long Beach, Nassau County (Frank D. DiKranis, J.), entered July 28, 2011.

Simone v Beach Realty Corp.

Decided on March 1, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.


The judgment, after a non-jury trial, awarded plaintiff the principal sum of $923.49.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action against her former landlord to recover, among other things, the remainder of her security deposit. It is undisputed that plaintiff had paid a security deposit in the amount of $1,150 and that, at the end of the tenancy, defendant had sent a check to plaintiff representing a portion of the security deposit in the amount of $118.82, which included interest, together with a letter which itemized the charges deducted from the security deposit and stated that the check was in "full payment and releases [defendant] from any further obligations." After a non-jury trial, the City Court awarded plaintiff the principal sum of $923.49. On appeal, defendant argues that since plaintiff cashed the $118.82 check without protest, the doctrine of accord and satisfaction is applicable.

Appellate review of a small claims judgment is limited to determining whether substantial justice has been done between the parties according to the rules and principles of substantive law (UCCA 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording it a better perspective from which to evaluate their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

Generally, a security deposit remains the property of a tenant (General Obligations Law § 7-103 [1]) and must be returned at the conclusion of the tenancy (see Cruz v Diamond, 6 Misc 3d 134[A], 2005 NY Slip Op 50187[U] [App Term, 9th & 10th Jud Dists 2005]; see generally Finnerty v Freeman, 176 Misc 2d 220, 222 [App Term, 9th & 10th Jud Dists 1998]). Contrary to defendant's argument, plaintiff's acceptance and cashing of defendant's check did not, under the circumstances presented, constitute an accord and satisfaction. The check represented the return of the undisputed portion of tenant's security deposit and furnished no consideration for an accord and satisfaction of the disputed balance (see 19A NY Jur 2d, Compromise, Accord, and Release §§ 18, 19), and there was otherwise no enforceable release by plaintiff of defendant's obligation to return the balance of the security deposit (cf. UCC 1-107). In view of the foregoing, and as the City Court's determination with respect to the amount of the security deposit which should have been returned to plaintiff is supported by the record, we find that the City Court's determination rendered substantial justice between the parties (UCCA 1807).

Accordingly, the judgment is affirmed.

Nicolai, P.J., and Iannacci, J., concur.

Decision Date: March 01, 2013


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