Ankhbara v Sharplis-Esprit

[*1] Ankhbara v Sharplis-Esprit 2015 NY Slip Op 50699(U) Decided on May 1, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and GARGUILO, JJ.
2014-521 N C

Hetheru Ankhbara, Appellant,

against

Lucia Sharplis-Esprit and PERSIA LETTMAN, Respondents, -and- RUKHSANA MIR, Defendant.

Appeal from a judgment of the District Court of Nassau County, Second District (Joy M. Watson, J.), entered April 10, 2013. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed so much of the action as was asserted against defendants Lucia Sharplis-Esprit and Persia Lettman.

ORDERED that the judgment, insofar as appealed from, is modified by striking the portion thereof that dismissed so much of the action as was asserted against defendant Lucia Sharplis-Esprit and by providing that plaintiff is awarded the principal sum of $1,339.69 as against that defendant; as so modified, the judgment, insofar as appealed from, is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the principal sum of $4,118, based on defendant Lucia Sharplis-Esprit's failure to return a security deposit and a rental fee, and her failure to pay for various charges that plaintiff had incurred. The action arises from plaintiff's rental of a residential apartment (the premises) from defendant Sharplis-Esprit. Plaintiff appeals, as limited by her brief, from so much of the District Court's judgment, after a nonjury trial, as dismissed the action insofar as asserted against defendants Lucia Sharplis-Esprit and Persia Lettman.

At trial, it was established that defendant Rukhsana Mir was a real estate broker, and that plaintiff had previously sued her, unsuccessfully, for the same items. There was no evidence that defendant Persia Lettman, allegedly a former owner of the premises, had ever owed any duty to plaintiff. We therefore conclude that the dismissal of so much of the action as was asserted against Persia Lettman rendered substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807).

Defendant Sharplis-Esprit, who had previously been plaintiff's landlord, acknowledged that she was holding plaintiff's $1,600 security deposit, but claimed a right to retain the deposit. [*2]A security deposit belongs to the tenant, and is held in trust by the landlord (see General Obligations Law § 7-103 [1]). Upon a default by a tenant, a security deposit may be used by the landlord as a setoff against amounts owed to the landlord (Rivertower Assoc. v Chalfen, 153 AD2d 196, 199 [1990]; Hoffman v Farucci, 31 Misc 3d 127[A], 2011 NY Slip Op 50453[U] [App Term, 9th & 10th Jud Dists 2011]). It was undisputed that plaintiff had placed a stop-payment order on a check she had delivered to Sharplis-Esprit. Although plaintiff subsequently provided a replacement check to Sharplis-Esprit, Sharplis-Esprit had incurred a bank charge of $15 as a result of plaintiff's stop-payment order. Consequently, we find that Sharplis-Esprit was entitled to a $15 setoff against the security deposit.

Sharplis-Esprit further testified that plaintiff had damaged the stove in the premises by disconnecting a modular connection between the oven and the gas line. Plaintiff failed to refute that testimony. Sharplis-Esprit submitted a paid invoice for $245.31 for repairs she had made to the stove as a result of plaintiff's action, and we conclude that she was entitled to take that sum as a setoff against the security deposit.

Sharplis-Esprit claimed that plaintiff and her children had damaged the flooring and a door in the premises, but failed to provide an itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs, as evidence of the reasonable value and necessity of such services and repairs (see UDCA 1804). Consequently, she was not entitled to take any setoffs against the security deposit based on such alleged damage. Nor was Sharplis-Esprit entitled to take the cost of an extermination contract for the premises as a setoff against the security deposit, since, where required, extermination services generally fall within the province of "essential services" that a landlord is expected to provide (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 [1979]; see also Salvan v 127 Mgt. Corp., 101 AD2d 721 [1984]; Bender v Green, 24 Misc 3d 174 [Civ Ct, NY County 2009]), and there was no evidence to support a finding that plaintiff should be responsible for the cost of the extermination contract.

At trial, the parties offered differing evidence as to whether plaintiff's boyfriend, who was not listed as an approved household member, had resided in the premises. We find that even if he did reside in the premises, Sharplis-Esprit failed to establish a right to a setoff against the security deposit based on such residence.

We further conclude that plaintiff failed to establish either that Sharplis-Esprit failed to provide any essential services, or the amount of damage plaintiff had sustained by reason of any such alleged failure (see UDCA 1804). Consequently, substantial justice (UDCA 1804, 1807) requires that plaintiff recover her $1,600 security deposit, less the $260.31 in setoffs, for a total recovery of $1,339.69 as against defendant Sharplis-Esprit.

We do not consider any materials which are dehors the record, nor do we consider any arguments raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the judgment, insofar as appealed from, is modified by striking the portion thereof that dismissed so much of the action as was asserted against defendant Lucia Sharplis-Esprit, and by providing that plaintiff is awarded the principal sum of $1,339.69 as against that defendant.

Marano, P.J., Iannacci and Garguilo, JJ., concur.

Decision Date: May 01, 2015