Siudym v Sicherer

[*1] Siudym v Sicherer 2009 NY Slip Op 52181(U) [25 Misc 3d 133(A)] Decided on October 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J, TANENBAUM and MOLIA, JJ
2008-2239 OR C.

Jennifer Siudym and MICHAEL REGNO, Respondents,

against

Robert Sicherer and PHYLLIS SICHERER, Appellants.

Appeal from a judgment of the City Court of Port Jervis, Orange County (Victoria B. Campbell, J.), entered May 7, 2008. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $1,000 and dismissed defendants' counterclaim.

ORDERED that the judgment is affirmed without costs.

Plaintiffs commenced this small claims action to recover, among other things, a $1,000 payment they had made to defendants based upon an oral agreement to rent an apartment in a two-family house owned by defendants. Defendants asserted a counterclaim seeking reimbursement of the cost to replace a carpet which, they alleged, had been in good condition and had only been removed at plaintiffs' request so that the color of the carpet would match the color plaintiffs used to paint the walls. After a nonjury trial, the City Court awarded plaintiffs $1,000 and dismissed defendants' counterclaim.

Upon a review of the record, we find that the trial court's judgment provided the parties with substantial justice 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 the 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 e.g. Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams, 269 AD2d at 126). Furthermore, the determination of the trier of fact as to issues of credibility is given substantial deference, as the court has the opportunity to observe and evaluate the testimony and demeanor of the witnesses, thereby affording the trial court a better perspective from which to evaluate the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). [*2]

The record supports the trial court's implicit conclusion that the $1,000 payment represented a security deposit, and not rent for the month of August, during which plaintiffs had access to the house for the purpose of making improvements. According to the testimony, on or about August 27, 2007, plaintiffs decided not to take the apartment, because it was clear that the apartment would not be in move-in condition on September 1, 2007. Defendant Robert Sicherer testified that plaintiffs gave him notice on August 31, 2007. While a landlord may be entitled to keep a security deposit if the intended tenant fails to timely notify the landlord of the intention not to move in (see Ally v Latchman, 23 Misc 3d 137[A], 2009 NY Slip Op 50861[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), the landlord is not entitled to keep the security deposit if the apartment is not in move-in or habitable condition when the lease term commences (see Ilacqua v Sameyah, 22 Misc 3d 134[A], 2009 NY Slip Op 50240[U] [App Term, 9th & 10th Jud Dists 2009]). The court was entitled to credit plaintiffs' testimony that the apartment was not in move-in condition. The court was also entitled to credit plaintiffs' testimony that the carpeting that was replaced was in need of replacement.

Defendants' remaining contention, that their second witness should have been permitted to testify, is without merit. The court specifically asked defendants' attorney if there were any witnesses, and counsel did not attempt to call Quentin Hotalen.

Accordingly, the judgment is affirmed.

Nicolai, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: October 20, 2009