Browne v Leino

[*1] Browne v Leino 2005 NY Slip Op 50079(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 This opinion is uncorrected and will not be published in the printed Official Reports.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: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, J.P., ANGIOLILLO and COVELLO, JJ.
2003-1017 W C

DAVID T. BROWNE, Respondent,

against

ROBERT G. LEINO and LOUISE M. LEINO, Appellants.

Appeal by tenants from 1) a decision of the Justice Court, Town of Lewisboro, Westchester County (G. Roberts, J.), dated November 19, 2002, deemed (see CPLR 5520 [c]) an appeal from the final judgment, entered November 19, 2002, which awarded landlord possession and the principal sum of $12,991.50, and in effect dismissed tenants' counterclaim, and 2) a decision, dated March 13, 2002, denominated an order of March 4, 2002, in a prior proceeding before the same court.

Appeal from decision dated March 13, 2002 unanimously dismissed.

Final judgment unanimously modified by reducing the award in favor of landlord to the principal sum of $9,925.95; as so modified, affirmed without costs. [*2]

In this nonpayment summary proceeding, landlord's proof was insufficient to establish damages sought to be recovered as "added rent" in the amount of $2,065.55, representing the amounts awarded for carpet and cleaning costs, and for door openers (see CPLR 4533-a). Moreover, the award of $1,000 in legal fees was improper.
The lease agreement provides that landlord is entitled to attorney's fees incurred as part of landlord's cost of re-renting. Since there was no proof that the attorney's fees were incurred as a result thereof, the court erred in awarding the same (Kluger v Gruber, 2002 NY Slip Op 40480[U] [App Term, 9th & 10th Jud Dists]). Accordingly, the final judgment awarding landlord $12,991.50 is hereby reduced to $9,925.95.

Tenants did not assert a counterclaim to recover their security deposit which in any event would have been in excess of $3,000 (UJCA 208; Barile v Cartwright Tents & Party Rentals, Inc., 4 Misc 3d 134[A], 2004 NY Slip Op 50762[U] [App Term, 9th & 10th Jud Dists]).

Tenants' conclusory assertions of improper service were insufficient to warrant a hearing (see Simmons First National Bank v Mandracchia, 248 AD2d 375 [1998]). Moreover, the alleged defects in the petition were mere irregularities which do not implicate any substantial rights of tenants (see Parkway Assocs. v Berkoff, NYLJ, Mar. 7, 1995 [App Term, 9th & 10th Jud Dists]).

Tenants were granted the opportunity to settle the return before the Justice Court. However, they did not seek to correct the return so as to reflect their remaining claims of error raised on appeal, pertaining to their counterclaim. The Justice's return is conclusive upon this court (see Moyle v Bracci, 119 Misc 2d 185, 187 [1983]; see also Matter of Lightcap v McGroggan, 160 AD2d 1188 [1990]; Workman v Bolen, 67 Misc 2d 957, 965 [1971]), and tenants' contentions with respect thereto are unpreserved for appellate review.

We note that no appeal lies from a decision (Greenfield v Tassinari, 8 AD3d 529 [2004]). Moreover, defendants have not perfected an appeal of any judgment or order from the prior proceeding.
Decision Date: January 27, 2005