Messerschmidt v Romney

[*1] Messerschmidt v Romney 2018 NY Slip Op 51807(U) Decided on December 6, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
2017-868 D C

Linda Messerschmidt, Appellant,

against

Rashawn Romney, Respondent.

Linda Messerschmidt, Appellant, v Rashawn Romney, Respondent. Appellate Term Docket No. 2017-1417 D C Lower Court # 1519-16 Linda Messerschmidt, appellant pro se. Rashawn Romney, respondent pro se (no brief filed). Separate

appeals from two judgments of the City Court of Poughkeepsie, Dutchess County (Thomas J. O'Neill, J.), entered September 23, 2016. The judgment in Poughkeepsie City Court index No. 1519-16, insofar as appealed from, and the judgment in Poughkeepsie City Court index No. 1541-16, after a joint nonjury trial, dismissed plaintiff's actions.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgment in Poughkeepsie City Court index No. 1519-16, insofar as appealed from, and the judgment in Poughkeepsie City Court index No. 1541-16 are reversed, without costs, and the matters are remitted to the City Court for a new joint trial of plaintiff's causes of action.

Plaintiff commenced these two small claims actions to recover, respectively, allegedly unpaid rent (Poughkeepsie City Court index No. 1519-16) and for damage to her property caused by defendant (Poughkeepsie City Court index No. 1541-16). Defendant counterclaimed in Poughkeepsie City Court index No. 1519-16 for his security deposit and for utilities he claimed he had paid. After a joint nonjury trial of the actions and counterclaim, the City Court dismissed plaintiff's actions and defendant's counterclaim, finding, among other things, that the apartment in question was an illegal apartment and thus the lease could not be enforced, and that plaintiff had not established her damages. Plaintiff appeals from so much of the judgment in Poughkeepsie City Court index No. 1519-16 as dismissed her action and from the judgment in Poughkeepsie City Court index No. 1541-16 dismissing her action.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive [*2]law" (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

Assuming arguendo, as the City Court concluded, that plaintiff was not legally allowed to rent the premises in question, the City Court was nonetheless incorrect in holding that such illegality barred plaintiff's claims for unpaid rent. The record indicates that the rented premises was in a one-family home, part of which home had been rented to defendant. "There is no bar to the recovery of rent where a one-family home is used as a two-family" (Sinclair v Ramnarace, 36 Misc 3d 150[A], 2012 NY Slip Op 51671[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2012] [internal quotation marks omitted]; see also e.g. Hayes v Ramsey, 60 Misc 3d 137[A], 2018 NY Slip Op 51114[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Madden v Juillet, 46 Misc 3d 146[A], 2015 NY Slip Op 50214[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Corbin v Briley, 192 Misc 2d 503, 504 [App Term, 2d Dept, 9th & 10th Jud Dists 2002]).

As the City Court sua sponte raised the question of the legality of the premises very early in plaintiff's case, stating that plaintiff could not prevail if the premises were illegal, and as much of the testimony and evidence thereafter was devoted to the question of whether or not the apartment had been legally rented, we find that substantial justice (see UCCA 1807) requires that a new joint trial be ordered to allow plaintiff an opportunity to prove both of her claims, i.e., for unpaid rent and damage to the apartment.

Accordingly, the judgment in Poughkeepsie City Court index No. 1519-16, insofar as appealed from, and the judgment in Poughkeepsie City Court index No. 1541-16 are reversed and the matters are remitted to the City Court for a new joint trial of plaintiff's causes of action.

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 06, 2018