Ehue v Green

[*1] Ehue v Green 2007 NY Slip Op 52231(U) [17 Misc 3d 135(A)] Decided on November 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 22, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-1155 K C.

Victor Ehue, Appellant,

against

Sonia A. Green, Respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered December 7, 2005. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,276.29.

Judgment affirmed without costs.
In this action, plaintiff seeks to recover a total of $9,312.32 from defendant, plaintiff's former tenant. Plaintiff asserts that rent in the total amount of $7,500 is owed for the period from August 2004 through January 2005; that defendant caused damage to the property in the amount of $784; that defendant failed to return plaintiff's stove and refrigerator valued at $600; and that defendant breached the parties' contract, causing plaintiff to incur legal and marshal fees in the sum of $428.32. Defendant
claims that she moved out of the apartment on September 30, 2004 (she introduced proof to corroborate this), and that her daughter returned the keys at that time to plaintiff's wife.
Following the trial, at which plaintiff's wife did not testify although she was present in the courthouse, the court credited the testimony of defendant that she left the property on September 30, 2004 and awarded plaintiff only the rent owed through that date, after a credit for the security deposit being held by plaintiff. The court also found that plaintiff had not adequately proven most of the damages he sought for repairs to the apartment, that defendant had returned the stove and refrigerator, and that plaintiff was not entitled to the legal and marshal fees that he sought, since defendant had surrendered the apartment prior to the end of the lease. Accordingly, the court awarded plaintiff judgment only in the principal sum of $1,276.29. Plaintiff appeals on the ground of inadequacy.
The decision of a fact-finding court should not be disturbed upon appeal unless it is [*2]obvious that the court's conclusions could not have been reached under any fair interpretation of the evidence (see Appleby v Evans, 23 AD3d 323 [2005]; Williams v Roper, 269 AD2d 125 [2000]). In the present matter, involving an on-premises landlord's claim that he did not know that his tenant had vacated an apartment within the same two-family house, the court was entitled, under the circumstances presented,
to find plaintiff's testimony on this point not credible. Moreover, the facts concerning the question of whether defendant's daughter had tendered the keys to plaintiff's wife should have been easily presentable, as plaintiff's wife had been designated a witness and was waiting outside the courtroom, yet was never called by plaintiff to testify to whether she had received the keys. Under these circumstances, the court did not improvidently exercise its discretion in drawing a negative inference from plaintiff's failure to call his wife as a witness (see 319 East 93, LLC v Ward, 276 AD2d 277, 278 [2000]; see also Chandler v Flynn, 111 AD2d 300 [1985]).
Although the court found that various items of damage beyond normal wear and tear existed, plaintiff failed to properly establish the cost of most of these items, as the receipts for supplies that he presented were mostly incomprehensible, and the evidence he presented to establish the claimed labor charges was not sufficiently itemized to support his claim. The court was also entitled to find, based upon the evidence presented, that although defendant moved plaintiff's stove and refrigerator out of the apartment, she did not actually dispose of them, but left them in a portion of the premises within plaintiff's control, and that they were still there when defendant left the apartment. Accordingly, the court properly limited its award to plaintiff to the two months' rent (offset by the security deposit) that defendant admitted that she had not paid, and the costs of the items used for repairs for which plaintiff presented proper receipts.
Pesce, P.J., Rios and Belen, JJ., concur.