Bernstein v Engel

[*1] Bernstein v Engel 2004 NY Slip Op 51112(U) Decided on October 1, 2004 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:PESCE, P.J., ARONIN and PATTERSON, JJ.
x

JACK BERNSTEIN, Respondent,

against

EVAN ENGEL, Appellant.

Appeal by defendant from a small claims judgment of the Civil Court, Kings County (A. Schack, J.), entered September 24, 2003, in favor of plaintiff, in the principal sum of $2,600, plus interest from October 1, 2002, and disbursements.

Judgment unanimously modified by providing that interest is to be computed from January 31, 2003; as so modified, affirmed without costs.

In this small claims action, plaintiff sought to recover for damage done to his apartment by defendant, his former tenant. Plaintiff testified that pursuant to a
stipulation of settlement entered into in a prior Supreme Court ejectment action, defendant agreed to vacate the premises by January 31, 2003, and to leave the premises in broom-clean condition. Plaintiff, having reserved the right to recover for any damage to the apartment which [*2]continued to exist after defendant moved out, discovered, upon inspection, that various items which had been in the apartment were damaged or missing. In addition, trash and furniture were left in the apartment. Defendant acknowledged that he had discarded certain items, but claimed that he had made his own upgrades to the apartment during the period of his occupancy. He further claimed that he had left the apartment broom-clean and that the furniture he left in the apartment had belonged to a prior tenant.

Our review is limited to determining whether substantial justice was done "according to the rules and principles of substantive law" (CCA 1807). We find that there was sufficient evidence in the record to support the court's determination of issues of credibility (see Williams v Roper, 269 AD2d 125 [2000]). However, pursuant to CPLR 5001, interest should have been computed from January 31, 2003, the date of accrual of plaintiff's property damage cause of action upon which judgment was
awarded. The judgment should, therefore, be modified accordingly. We note that this court may not consider on appeal any documents submitted by defendant with his brief as they are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).
Decision Date: October 01, 2004