Webb v Barskey

[*1] Webb v Barskey 2005 NY Slip Op 51748(U) [9 Misc 3d 138(A)] Decided on October 21, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: October 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
2004-1687 W C

Tina Webb and BRYAN WEBB, Respondents,

against

Herman Barskey, Appellant.

Appeal from an amended judgment of the Justice Court of the Town of Cortlandt, Westchester County (Daniel A. McCarthy, J.), entered August 12, 2004. The amended judgment, after a nonjury trial, awarded plaintiffs the principal sum of $1,950 and awarded defendant the principal sum of $265 upon his counterclaim, resulting in a net judgment for plaintiffs in the principal sum of $1,685.

Amended judgment unanimously modified by increasing the award to defendant upon his counterclaim to the principal sum of $1,565, thereby reducing the net judgment awarded to plaintiffs to the principal sum of $385; as so modified, affirmed without costs.

Plaintiffs commenced this small claims action to recover their security deposit. Defendant counterclaimed to recover damages because plaintiffs failed to
vacate the apartment at the end of their lease and for property damage caused by plaintiffs. After a trial, the court held that plaintiffs were entitled to recover their $1,950 security deposit, but awarded defendant the principal sum of $265 upon his counterclaim due to property damage caused by plaintiffs. Defendant appeals, claiming that the amount awarded upon his counterclaim, which was used to offset the amount awarded to plaintiffs, was insufficient.

Inasmuch as it was undisputed at trial that plaintiffs failed to vacate the apartment at the end of their lease, defendant was entitled to recover the principal sum of $1,300 as use and occupancy for the following month (see Matter of Eight Cooper Equities v Abrams, 143 Misc 2d 52, 55 [Sup Ct, NY County 1989] ["Actual surrender is traditionally effected by vacating the premises and returning the keys to the landlord"]; 1 Dolan, Rasch's Landlord and Tenant-Summary Proceedings §§ 10:8-10:9, at 42-383 [4th ed]). As a result, substantial justice (see UJCA 1807) requires that the principal sum awarded to defendant upon his counterclaim be increased to $1,565, thereby reducing the net amount to which plaintiffs are entitled to the sum of [*2]$385. Defendant's remaining contentions lack merit.
Decision Date: October 21, 2005