Smith v Dubrisingh

[*1] Smith v Dubrisingh 2010 NY Slip Op 52233(U) [30 Misc 3d 127(A)] Decided on December 20, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2009-1095 W C.

Rayann Smith, Respondent,

against

Christine Dubrisingh, Appellant.

Appeal from a judgment of the City Court of Peekskill, Westchester County (Thomas, R. Langan, J.), entered November 20, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,050.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action against her former landlord to recover her security deposit, in the amount of $1,050, and the sum of $543, representing the value of her lost personal property. After a nonjury trial, the City Court awarded plaintiff the principal sum of $1,050. The court held, among other things, that defendant had failed to establish her entitlement to a setoff for the cost of cleaning the livingroom rug or replacing the linoleum kitchen floor, as these were expenses incurred as a result of ordinary wear and tear. On appeal, defendant argues that the court erred in failing to award a setoff.

Upon a review of the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UCCA 1804, 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). The decision of the 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 at 126). Furthermore, 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 [*2]demeanor of the witnesses affords it a better perspective from which to assess the credibility of the witnesses (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). The City Court properly found that plaintiff's security deposit remained her property (General Obligations Law § 7-103 [1]) and had to be returned at the conclusion of the tenancy (Cruz v Diamond, 6 Misc 3d 134[A], 2005 NY Slip Op 50187[U] [App Term, 9th & 10th Jud Dists 2005]) absent, for example, proof that plaintiff caused damage beyond that attributable to ordinary wear and tear (see generally Finnerty v Freeman, 176 Misc 2d 220, 222 [App Term, 9th & 10th Jud Dists 1998]). As the record fails to support defendant's claim that plaintiff caused any damage beyond ordinary wear and tear, we affirm the judgment.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: December 20, 2010