SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
March 6, 2013
MARIE BASKIN, RESPONDENT,
HERRYS C. SITORUS, APPELLANT.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered August 5, 2011.
Baskin v Sitorus
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2013
PRESENT: WESTON, J.P., ALIOTTA and SOLOMON, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,700.
ORDERED that the judgment is affirmed, without costs.
Plaintiff, defendant's former tenant, commenced this small claims action to recover her $1,700 security deposit. At a non-jury trial, tenant testified that she was unable to vacate the premises at the end of June 2010 and that she remained in possession of the premises until the end of July 2010. Defendant asserted that he was entitled to use the security deposit as a setoff against the unpaid "rent." The Civil Court ruled that, as defendant had failed to interpose a counterclaim, he would be required to seek to recover the use and occupancy in a separate action. Defendant appeals from a judgment in favor of plaintiff in the principal sum of $1,700.
In our view, substantial justice was done between the parties according to the rules and principles of substantive law (see CCA 1804, 1807; Williams v Roper, 269 AD2d 125, 126 ). As defendant did not counterclaim for the use and occupancy for the period after the expiration of the lease, the Civil Court properly relegated defendant's claim for the use and occupancy to a separate action.
Accordingly, the judgment is affirmed.
Weston, J.P., Aliotta and Solomon, JJ., concur. Decision Date: March 06, 2013
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