Thompson v Toback

[*1] Thompson v Toback 2014 NY Slip Op 50801(U) Decided on May 7, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ.
2012-2726 OR C

Rose Thompson, Appellant, -and

against

Gilbert June, Jr., Plaintiff, Dorothy Toback, Respondent.

Appeal, on the ground of inadequacy, from an amended judgment of the Justice Court of the Town of Newburgh, Orange County (Richard Clarino, J.), entered April 16, 2012. The amended judgment, after a nonjury trial, awarded plaintiff Rose Thompson the principal sum of $45.81 and coplaintiff Gilbert June, Jr., the principal sum of $10.29.

ORDERED that so much of the appeal as purports to be from the portion of the judgment awarding Gilbert June, Jr., the principal sum of $10.29 is dismissed; and it is further,

ORDERED that the amended judgment, insofar as reviewed, is affirmed, without costs.

Rose Thompson (plaintiff) commenced this small claims action to recover interest due on five security deposits paid to defendant upon the rental of five lots in a trailer park owned by defendant (see Real Property Law § 233 [g]; [4]; [c]). Defendant counterclaimed for cleanup costs. After a nonjury trial, at which Gilbert June, Jr. was added as a coplaintiff, the Justice Court dismissed the counterclaim and awarded plaintiff the principal sum of $45.81 and coplaintiff Gilbert June, Jr., the principal sum of $10.29, based on an annual interest rate of .5 percent. Plaintiff appeals on the ground of inadequacy.

Insofar as plaintiff purports to appeal from so much of the judgment as awarded Gilbert June, Jr., the principal sum of $10.29, the appeal is dismissed. Although the Justice Court added Mr. June as a coplaintiff in the course of the trial, Mr. June's name does not appear on the notice of appeal, and plaintiff, who is not an attorney admitted to practice law in the State of New York, has no authority to prosecute an appeal on Mr. June's behalf (e.g. Matter of Ontario Hgts. Homeowners Assn. v Town of Oswego Planning Bd., 77 AD3d 1465, 1466 [2010]).

With respect to so much of the judgment as awarded plaintiff the principal sum of $45.81, plaintiff does not dispute the interest accrual periods for the various security deposits adopted by the court, nor the rate of interest applied to those periods, but claims only that the Justice Court was obligated to assess the interest rate on a monthly basis. However, the statute, which provides for interest at "the prevailing rate earned by other such deposits made with the banking organizations in such area" (Real Property Law § 233 [g]; [4]; [c]), does not specify the manner in which interest rates are to be calculated, and plaintiff provided no proof that interest is compounded monthly or on any other basis by those organizations. In view of the foregoing, we find that the judgment, insofar as reviewed, provided the parties with substantial justice [*2]according to the rules and principles of substantive law (see UJCA 1804, 1807).

Accordingly, the amended judgment, insofar as reviewed, is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.

Decision Date: May 07, 2014