Conenna v McKenna

[*1] Conenna v McKenna 2012 NY Slip Op 52051(U) Decided on October 18, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and SOLOMON, JJ
2011-1775 K C. October 18, 2012

Vito Conenna and GIOVANNA CONENNA, Appellants,

against

Jeannine McKenna and JOSEPH VINOCUR, Respondents.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered September 2, 2010. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of plaintiffs in the principal sum of $9,000.

In this action for rent arrears, the Civil Court, after a nonjury trial, awarded judgment to defendants dismissing the complaint. We reverse.

Contrary to the Civil Court's findings, the proof at trial established the existence of a lease and defendants' failure to pay the monthly rent of $3,000 for October 2008 through March 2009. Moreover, notwithstanding defendants' testimony that they had returned the keys, the evidence did not establish that plaintiffs had accepted a surrender of the lease, as there was no showing that plaintiffs had utilized the premises in a manner inconsistent with defendants' rights under the lease (Brock Enters. v Dunham's Bay Boat Co., 292 AD2d 681 [2002]). Consequently, plaintiffs are liable for the six months' rent in question, totaling $18,000. However, as the evidence further established that plaintiffs are holding a security deposit in the sum of $9,000, defendants are entitled to a setoff in that amount. Accordingly, the judgment is reversed and judgment is directed to be entered awarding plaintiffs the principal sum of $9,000.

Weston, J.P., Rios and Solomon, JJ., concur.
Decision Date: October 18, 2012