Locke v Nathanson

[*1] Locke v Nathanson 2007 NY Slip Op 51500(U) [16 Misc 3d 133(A)] Decided on July 23, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 23, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and MOLIA, JJ
2006-520 OR C.

Alan C. Locke, Respondent,

against

Arthur Nathanson, Appellant.

Appeal from a judgment of the Justice Court of the Town of Minisink, Orange County (Paul Lattimer, J.), entered December 1, 2005. The judgment, after a nonjury trial, awarded plaintiff the sum of $2,600.

Judgment reversed without costs and a new trial ordered limited to the issue of damages.

In this small claims action seeking the return of a security deposit, the record reveals that, on April 9, 2005, the parties executed a lease for the rental of an apartment for a one-year term commencing June 1, 2005. At the time the lease was executed, plaintiff gave defendant a security deposit of $2,600, which was the
equivalent of two months' rent. The lease recited that if plaintiff did not fully comply with its terms, defendant could "use the security deposit to pay amounts owed by tenant, including damages." The lease also contained a general merger clause, stating that "all promises made by the parties are contained in this lease." In addition, the lease stated that defendant was to spackle and tape the living room patch, paint the living room ceiling, and put a deadlock on the kitchen door or replace it with plaintiff's door.

On June 3, 2005, plaintiff express-mailed a letter to defendant advising defendant that plaintiff was "breaking the lease agreement" because of defendant's failure to make the repairs called for in the lease and requesting the return of his security deposit. On July 8, 2005, plaintiff commenced this action for the return of the deposit. At trial, plaintiff claimed that the parties' agreement was that the repairs were to be completed prior to the commencement of the lease. Defendant maintained that there was no opportunity between the time the previous tenant had vacated and the commencement date of the lease in which to do the repairs. Crediting plaintiff's testimony that the parties had agreed that the repairs would be performed prior to the lease's commencement date, the court awarded plaintiff the return of the security deposit.

In our view, the general merger clause in the lease precluded plaintiff from arguing that [*2]the executed lease did not contain the full agreement of the parties (Rubin v Leshner, 36 AD3d 473 [2007]; 2001 Commercial St. Corp. v Star Enterprises, 14 AD3d 504 [2005]; 74 NY Jur 2d, Landlord and Tenant § 77). "Where the parties have reduced their agreement to writing, the parol evidence rule excludes evidence of any prior oral or written agreement or of any contemporaneous oral agreement when offered to contradict, vary, add to, or subtract from the terms of the writing" (Prince, Richardson on Evidence, § 11-101, at 741 [Farrell 11th ed]). Plaintiff's testimony that the repairs were to be completed before the commencement of the term varied the terms of the written agreement, which fixed no time for completion of the repairs (Schneider v Ogden, 167 NYS 352 [App Term, 1st Dept 1917]). Nor did the absence from the lease of a time for performance render the lease incomplete. "No time of performance having been fixed in the contract, a reasonable time for performance is implied" (Steinman v Olafson, 1 Misc 2d 50, 51 [1955]; see Murray Co. v Lidgerwood Mfg. Co., 241 NY 455 [1926]; Bufford v Parillo, 168 AD2d 812 [1990]). As "an important principle of substantive law" (Fogelson v Rackfay Constr. Co., Inc., 300 NY 334, 337 [1950]), the parol evidence rule is applicable in small claims actions (UJCA 1804; see Yoo v Piano Post, Inc., 6 Misc 3d 59 [App Term, 9th & 10th Jud Dists 2004]). Since there is no provision in the lease to the effect that the work would be done before the commencement of the lease, and because there is nothing in the lease giving plaintiff the right to cancel the lease if defendant failed to perform the repairs, plaintiff was not within his rights in cancelling the lease on June 3, 2005 (Schneider v Ogden, 167 NYS 352, supra).

However, under the terms of the lease, defendant was entitled to retain only so much of the security deposit as would cover the "amounts owed by tenant, including damages." Since the record is silent as to when defendant re-rented the premises and at what rental amount, the extent of damages sustained by defendant cannot be determined. Accordingly, a new trial is ordered limited to the issue of damages.

Rudolph, P.J., and Molia, J., concur.

Lippman, J., taking no part.
Decision Date: July 23, 2007