Rocco v Badalamente

[*1] Rocco v Badalamente 2008 NY Slip Op 51414(U) [20 Misc 3d 130(A)] Decided on July 1, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ
2007-673 OR C.

Frank Rocco and Paolo Forte, Appellants,

against

Michelle Badalamente And Robert Badalamente, Respondents.

Appeal from a judgment of the Justice Court of the Town of Woodbury, Orange County (David L. Levinson, J.), entered May 15, 2007. The judgment, after a nonjury trial, dismissed the action.

Judgment reversed without costs and matter remanded to the court below for a new trial.

In this small claims action to recover September 2006 rent and for damage to the premises, the Justice Court held that plaintiffs could not pursue the instant claim for rent because they had commenced a prior action in July 2006, in the Justice Court of the Town of Pelham, for rent, and, thus, they were impermissibly splitting a single cause of action. In the prior action, plaintiffs sued, inter alia, for two weeks' rent for September 2005. It is well settled that the claim-splitting doctrine "requires a plaintiff to join all installments due under a single contract at the time suit is commenced" (A & J Enter. Solutions, Inc. v Business Applications Outsourcing Tech., Inc., 11 Misc 3d 173, 174 [2005]; Maloney v McMillan Book Co., 52 Misc 2d 1006 [1967]) "but those installments or charges which thereafter accrue may be the subject of a subsequent suit" (Board of Mgrs. of Mews at N. Hills Condominium v Farajzadeh, 185 Misc 2d 353, 357 [2000]; see also Kennedy v City of New York, 196 NY 19, 25 [1909]; A & J Enter. Solutions, Inc. v Business Applications Outsourcing Tech., Inc., 11 Misc 3d 173 [2005], supra). Since rent for September 2006 was not due at the time the prior suit was commenced in July 2006, plaintiffs did not impermissibly split their cause of action and properly commenced the instant action to recover the September 2006 rent (see A & J Enter. Solutions, Inc. v Business Applications Outsourcing Tech., Inc., 11 Misc 3d 173 [2005], supra; Board of Mgrs. of Mews at N. Hills Condominium v Farajzadeh, 185 Misc 2d 353 [2000], supra; Maloney v McMillan Book Co., 52 Misc 2d 1006 [1967], supra).

With respect to the merits of plaintiffs' cause of action for the September 2006 rent, [*2]plaintiffs and defendants had executed a written lease for rental of the premises for the period July 1, 2005 to June 30, 2007 at the rate of $1,900 a month. However, the court's return does not set forth the date defendants vacated the premises and the date when plaintiffs relet the premises. Thus, the record is insufficient to allow this court to determine whether there was a surrender and acceptance prior to the date on which the September 2006 rent accrued (see generally Holy Props. v Cole Prods., 87 NY2d 130, 134 [1995]; Gray v Kaufman Dairy & Ice Cream Co., 162 NY 388 [1900]; Becar v Flues, 64 NY 518 [1876]; Gannett Suburban Newspapers v El-Kam Realty Co., 306 AD2d 312 [2003]; Elliot v Polny, 132 Misc 2d 236 [1986]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 26:22, at 299 [4th ed]).

With regard to plaintiffs' claim for damage to the premises, the record similarly fails to provide a statement sufficiently descriptive of the testimony to allow appellate review of the question whether the damage consisted of ordinary wear and tear.

Accordingly, the judgment is reversed and the matter is remanded for a new trial (see UJCA 1807).

Rudolph, P.J., McCabe and Scheinkman, JJ., concur.
Decision Date: July 1, 2008