Hayes v White Oaks Group, LLC

[*1] Hayes v White Oaks Group, LLC 2005 NY Slip Op 50350(U) Decided on March 21, 2005 Justice Court Of Town Of Ossining, Westchester County Shapiro, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2005
Justice Court of Town of Ossining, Westchester County

Cheryl Hayes, Claimant,

against

White Oaks Group, LLC. and DENNY 5 LLC., Defendants.



Tara Hayes, Claimant, -against-

against

White Oaks Group, LLC. and DENNY 5 LLC. Defendants.



SC13-04

Edwin S. Shapiro, J.

Each of the captioned claimants brought a small claim against the managing agent, White

Oaks Group, LLC., and the principals of their former landlord, Denny 5 LLC., for the return of

the portion of the security deposit furnished by them in the sum of $1,350.00 each pursuant

to leases for the rental of the first and second floor apartments at 5 Denny Street, Ossining, New

York. The other half of the security deposit on each apartment, also retained by defendants, was

paid by the Village of Ossining Section 8 Housing Agency. Pursuant to the authority granted to

the court under UJCA § 1814 (c), the corporate owner of the property has been substituted for

its principals as co-defendant, and, pursuant to stipulation, the separate claims were consolidated

for a joint trial.

Findings of Fact [*2]

The facts as to the condition of both apartments at the inception and at the end of the

tenancies of approximately 1 ½ years were sharply disputed. There were questions as to

whether a rug covered up existing deep scratches on an alleged newly refinished floor in the

first floor apartment at the inception of the tenancy and the source and time of inception of

leaks from the first floor bathroom ceiling, whether windows were painted shut by the

defendants, the causes of peeling or removal of paint, alleged gauges in and around the window

and door frames, and a missing interior door, the condition of the tub in the first floor bathroom

and the kitchen counter top in the first floor apartment, the time of inception of nails in the walls

and whether there was unusual flaking of the surrounding plaster which made the condition of

the wall worse when one of the claimants removed several of the nails. The defendants presented

graphic photos of the condition of the apartments after they were vacated . Because of the

lateness of the hour, claimants' proffer of proof by video was rejected by the court. Christopher

Marconi, a principal of defendants, heatedly faulted claimants for allegedly throwing garbage

onto the street and for leaving debris under the stoop upon their removal from the premises.

Claimant Tara Hayes forcefully denied the vast majority of Mr. Marconi's angrily-stated claims,

but acknowledged that some screening needed replacement because of damage caused by her

cat, that on the last day of her tenancy a can of juice had exploded in the refrigerator, and that she

placed debris under the front stoop because there was no Village garbage pick-up on that day.

The interior condition of the stove in her kitchen and an apparently broken baseboard cover in

her sister's apartment remained unexplained; however, Tara volunteered that a missing stove top

grill was inadvertently removed and subsequently returned. Mr. Marconi's testimony, on the

other hand, was mostly bombastic and not nearly as candid as that of the claimants. Contrary to [*3]

his oral testimony, it was ascertained by the court that the broken edging on the first floor kitchen

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counter top was not part of the new $1,l00.00 counter top that he had installed in the second floor

kitchen, and when questioned by the court about the apparently crumbling condition of the

concrete front stoop next to which claimants left a broken carton containing debris on their

moving date, he claimed that the stoop was part of the adjoining property over which he had no

control. This was controverted by Tara Hughes' credible testimony that it was the same stairway

that she was required to use each day in order to gain entrance to her second floor apartment.

Similarly, the testimony of his purported contractor was embarrassingly lame until he was

coached by Mr. Marconi, and the bills presented for thousands of dollars were so broad and

insufficiently itemized as to require the court to engage in a guessing game as to the cost of

repair or replacement of the several defects for which claimants had acknowledged responsibility.

Although Mr. Marconi speculated that Section 8 would not have approved the apartments for

occupancy unless they were in pristine condition, claimants offered conclusive written evidence

to the contrary. Their ongoing specific complaints regarding the condition of their apartments

and the exterior maintenance of the building were simply ignored. They also presented notices of

non-compliance from the Village of Ossining Section 8 Office continuing through at least the

first six months of their tenancies. Such notices cited some of the same defects which defendants

now disingenuously attribute to reckless destruction by claimants. Finally, it appeared from the

defendants' meticulously taken photos that the formerly grand old structure of Victorian vintage

had been renovated "on the cheap, " and that, despite its new veneer, is as substandard in this

century as it would have been in the l9th century if it were then in its present impaired condition. [*4]

The Applicable Law

In this consolidated small claims case, pursuant to UJCA § 1804, the court is required to

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"do substantial justice between the parties according to the rules of substantive law..."

Tenants' security deposits are governed by G.O.L § 7-103 which provides, in pertinent part, that

the deposit "shall continue to be the money of the person making such deposit or advance and

shall be held in trust by the [landlord]" until a disposition is made as provided in G.O.L § 7-105.

These provisions create a rebuttable presumption that the deposit belongs to the tenant. In any

event, a party pleading an affirmative defense has the burden of proving that defense. Marion v.

Pan American World Airways, Inc., 105 Misc2d 927, 430 , NYS2d 486 (NY Co.1980);

modified 80 AD2d 303; 439 NYS2d 6 (1st Dept.1980); Besunder v. Coughlin, 102 Misc2d 41;

422 NYS2d 564 (Nassau Co.1979).

Despite the relaxation of the rules of evidence in small claims, whether as to a claim

or an affirmative defense, the party having the burden of proof has the burden of convincing the

court by a preponderance of the credible evidence that he or she should prevail. This is so as a

matter of "substantive law" and was not intended to be changed or eroded by the "substantial

justice" rubric which allows the relaxation of the rules of evidence. Additionally, as applied

to the present case, "substantial justice," as alluded to in UJCA § 1804 relaxes the rules of

proof only to the extent of allowing hearsay evidence and proof of repairs or services by a

receipted itemized bill or by two itemized estimates.

Conclusion [*5]

The court finds and concludes that defendants had the burden of proving their affirmative

defenses by a preponderance of the credible evidence. They did not sustain this burden-not by

weight, nor credibility, nor proof of damages, even by the liberal evidentiary standards allowing

such proof by a sufficiently itemized paid bill. This decision does not purport to bind the

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defendants with respect to any subsequent claim that may be made by the Village of Ossining

Section 8 Agency for the return of its portion of the security deposit which has been retained by

defendants. Accordingly, the Court Clerk is hereby directed to enter separate judgments in favor

of claimants in the amounts of $1,350.00 together with interest from July 31, 2004 and their

disbursements of $15.00 each incurred in the filing of their claims.

Dated: Ossining, New York

March 21, 2005

Edwin S. Shapiro,

Ossining Town Justice

To: Tara Hayes

20 Garfield Street

Apt. 2

Yonkers, NY 10701

Cheryl Hayes

20 Garfield Street

Apt. 1

Yonkers, NY 10701

Castro & Remer, P.C.

Attorneys for Defendants

30 State Street

Ossining, NY 10562

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