Garrick v Stern

[*1] Garrick v Stern 2007 NY Slip Op 50986(U) [15 Misc 3d 139(A)] Decided on March 16, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2006-419 S C.

Miriam Garrick and JANET LOCKAMY, Respondents,

against

Matthew Stern, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), entered April 12, 2005. The judgment, after a nonjury trial, awarded plaintiff Miriam Garrick the sum of $2,797.35 and implicitly dismissed defendant's counterclaim.

Judgment affirmed without costs.

Substantial justice was done between the parties in accordance with the rules and principles of substantive law (UDCA 1804, 1807) in this small claims action seeking the return of a security deposit. Plaintiffs testified that they had entered into an agreement with defendant whereby he would permit them to terminate their lease as of June 30, 2002, and that their share of the security deposit would be returned to them, less the amount of plaintiff Janet Lockamy's June rent. This return would occur within five days of defendant's inspection of the premises. It was undisputed that defendant failed to keep several dates for this inspection, and the court below credited plaintiffs' testimony that they surrendered the premises as of June 30, 2002. Several months later, landlord evicted the remaining third tenant, and counterclaimed in the present action for several thousand dollars in property damage that he alleged plaintiffs had caused to the premises.

The court below properly found, based upon the lease termination agreement entered into by defendant and defendant's undisputed subsequent failure to inspect the premises at the time, that plaintiffs timely moved out, and that plaintiff Miriam Garrick was entitled to the return of her portion of the security deposit, less a portion to be applied as plaintiff Lockamy's rent as [*2]stated in the lease termination agreement. Moreover, the court was entitled to find that defendant had failed to prove, upon his counterclaim, that plaintiffs, as opposed to the third tenant who remained in the premises for several additional months and was eventually evicted, had caused damage to the premises (see generally Williams v Roper, 269 AD2d 125 [2000]; see also Nunes v 1320 Heritage Place, LLC, 13 Misc 3d 144[A], 2006 NY Slip Op 52323[U] [App Term, 9th & 10th Jud Dists]).

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: March 16, 2007