Buckley v Pereira

[*1] Buckley v Pereira 2006 NY Slip Op 50590(U) [11 Misc 3d 140(A)] Decided on April 7, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 7, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
2005-1088 W C.

Eileen Buckley, Appellant,

against

Olga Pereira and Manuel Pereira, Respondents.

Appeal from a judgment of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), entered March 7, 2005. The judgment, after a nonjury trial, dismissed plaintiff's action and awarded defendants $1,100 on their counterclaim.

Judgment modified by dismissing defendants' counterclaim; as so modified, affirmed without costs.

Plaintiff commenced the instant small claims action to recover her security deposit in the sum of $1,100. The defendants counterclaimed, inter alia, for October and November 2002 rent, totaling $2,200. Plaintiff lived in a two-family house she shared with defendants. Plaintiff claimed that she acceded to defendants' written demand that she move out by October 31, 2002. Defendants claimed that they first became aware of plaintiff's move on November 7, 2002 and thus sought October and November 2002 rent.

Upon a review of the record before us, we are of the opinion that substantial justice (CCA 1807) requires that the judgment be modified by dismissing the counterclaim. In our opinion, defendants had ample opportunity to ascertain that plaintiff had acceded to their written demand to vacate by October 31, 2002. Accordingly, defendants were not entitled to recover November rent. We note that in dismissing plaintiff's action and permitting defendants to retain plaintiff's $1,100 security deposit, the court thereby credited plaintiff with having paid the October 2002 rent.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: April 7, 2006