Urena v Good Home Realty, Inc.

[*1] Urena v Good Home Realty, Inc. 2005 NY Slip Op 50085(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 This opinion is uncorrected and will not be published in the printed Official Reports.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.
2004-366 W C

FELIX URENA, Respondent,

against

GOOD HOME REALTY, INC., Appellant.

Appeal by defendant from a small claims judgment of the City Court of Yonkers, Westchester County (M. Martinelli, J.), entered September 4, 2002, awarding plaintiff the principal sum of $3,000.

Judgment unanimously modified by reducing the amount of the award in favor of plaintiff to the principal sum of $1,000; as so modified, affirmed without costs.

In this small claims action, plaintiff sought the return of a security deposit paid to defendant for the lease of commercial premises.

The issues at trial were essentially ones of credibility and it cannot be said that the court's resolution of those issues were so clearly erroneous as to warrant reversal (see Dourado v Jordan, 2002 NY Slip Op 40394[U] [App Term, 9th & 10th Jud Dists]). However, at trial, plaintiff conceded that defendant had already returned $2,000 of plaintiff's initial security deposit of $5,000. Accordingly, upon the trial court's determination that defendant was entitled to a $2,000 offset for unpaid rent and/or use and occupancy for the months of March and April, 2001, it should have calculated such offset as against the $3,000 remaining security deposit rather than the initial $5,000 deposit. Consequently, we find that substantial justice requires the reduction of the award in favor of plaintiff by $2,000, and we modify the judgment accordingly (UCCA 1807).
Decision Date: January 27, 2005