Mennella v Madonia

[*1] Mennella v Madonia 2005 NY Slip Op 50074(U) Decided on January 27, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 27, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2003-718 Q C

THOMAS L. MENNELLA, Appellant,

against

SAM MADONIA, Respondent.

Appeal by plaintiff from small claims judgments of the Civil Court, Queens County (K. Kerrigan, J.), entered on November 13, 2002, which respectively dismissed plaintiff's action and awarded defendant the principal sum of $370 on the counterclaim.

Judgments affirmed without costs.

In this small claims action, plaintiff sought to recover a security deposit and defendant counterclaimed to recover for unpaid rent and damages sustained to the
premises. The court dismissed plaintiff's claim against defendant and awarded judgment in favor of defendant on the counterclaim in the sum of $370 and applied the security deposit in the sum of $1,300 toward the rent for August. The court below did not credit the testimony of plaintiff's witnesses and found that the keys were not properly tendered and the apartment was not surrendered to landlord in accordance with a written stipulation settling a prior holdover proceeding commenced against plaintiff by defendant. On the counterclaim, the court awarded defendant the sum of $206 for the locksmith fees incurred to enter the premises, $140 for marshall fees and $24 to repair a door damaged by plaintiff, in all totaling $370 exclusive of rent [*2]which was set off against the security deposit. Based upon the evidence adduced at trial, the court below could reasonably conclude that plaintiff failed to surrender possession of the premises on July 31. Thus, substantial justice was done between the parties in accordance with the rules and principles of substantive law (see CCA 1807; Ross v Friedman, 269 AD2d 584 [2000]).

Patterson and Rios, JJ., concur.

Pesce, P.J., taking no part.
Decision Date: January 27, 2005