Jain v Rich

[*1] Jain v Rich 2009 NY Slip Op 51389(U) [24 Misc 3d 133(A)] Decided on June 29, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2008-1644 W C.

Anubmav Jain, Respondent,

against

David Rich, Appellant.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Charles D. Wood, J.), entered April 6, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,475.

Judgment affirmed without costs.

Plaintiff brought the instant small claims action seeking the sum of $1,475, representing the balance of the security deposit he gave to defendant, his former landlord. At the nonjury trial, defendant sought a setoff, asserting that his house had been damaged when plaintiff had moved out, that the stove in plaintiff's apartment required repair and that the apartment was left very dirty and had to be cleaned. Defendant presented no expert witnesses, receipts or estimates, however, to support his assertions. The City Court subsequently awarded plaintiff the principal sum of $1,475 and noted in its decision that defendant had failed to provide any receipts for alleged damages, cleaning or stove repair to offset the amount demanded by plaintiff.

Substantial justice has been done between the parties according to the rules and principles of substantive law (see UCCA 1807). It was incumbent upon defendant to submit expert testimony, an itemized receipt/invoice marked paid or two itemized estimates in support of the items of damage upon which he was basing his claim for a setoff (see UCCA 1804). A review of the record presented discloses that defendant failed to do so. While there are matters contained in defendant's brief which are dehors the record on appeal, these cannot be considered herein since this court is limited to reviewing matters contained in the settled record (Paris v Oyesanya, 22 Misc 3d 141[A], 2009 NY Slip Op 50433[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see Chimarios v Duhl, 152 AD2d 508, 508-509 [1989]).

Accordingly, the judgment is affirmed.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled [*2]and vacated (see motion decided simultaneously herewith).
Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009