Brown v 214 S. Realty Corp.

[*1] Brown v 214 S. Realty Corp. 2010 NY Slip Op 51192(U) [28 Misc 3d 128(A)] Decided on July 7, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 9, 2010; it will not be published in the printed Official Reports.

Decided on July 7, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-1544 W C.

Paul Brown, Respondent,

against

214 South Realty Corp., Appellant.

Appeal from a decision of the City Court of Mount Vernon, Westchester County (Adam Seiden, J.), dated January 23, 2009, deemed from a judgment of the same court entered February 26, 2009 (see CPLR 5520 [c]). The judgment, after a nonjury trial, awarded plaintiff the principal sum of $650.

ORDERED that the judgment is affirmed without costs.

Plaintiff commenced this small claims action to recover a security deposit in the amount of $1,000. Defendant contended that plaintiff was not entitled to the return of his deposit because he had remained in possession for eight days after the expiration of the lease and because he had refused access to plaintiff to show the apartment. Plaintiff denied that he had refused access. After a nonjury trial, the City Court found that plaintiff was entitled to the return of $650, representing, in effect, the security deposit less a setoff for the days that plaintiff had remained in the apartment. We affirm the City Court's judgment.

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]). The determination of the trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). In the case at bar, we find that the City Court's findings and conclusions are supported by the record.

The court properly determined that defendant was entitled to a setoff for use and occupancy only for the days in which plaintiff had remained in possession following the expiration of the lease (see Peat v Dorilas, 22 Misc 3d 142[A], 2009 NY Slip Op 50457[U] [App [*2]Term, 9th & 10th Jud Dists 2009]; Wahl v Warren, 19 Misc 3d 130[A], 2008 NY Slip Op 50537[U] [App Term, 9th & 10th Jud Dists 2008]). Moreover, contrary to defendant's argument on appeal, Real Property Law § 229, which entitles a landlord to double rent where a tenant gives notice terminating an indefinite tenancy and then fails to deliver possession by the date fixed in the notice, does not apply in this case, as this was a fixed-term tenancy which expired by its own terms (see Peloso v Monroe Coll., 274 AD2d 461 [2000]; see also 1 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 10:10 [4th ed]).

Accordingly, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126), and we affirm the judgment.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: July 07, 2010