Rolle v A.T.M. Three, LLC
Annotate this CaseDecided on January 29, 2008
District Court of Nassau County, Second District
Nehemiah Rolle, Plaintiff,
against
A.T.M. Three, LLC, Defendant.
SC2556/07
Rhonda E. Fischer, J.
This case was a non jury trial heard on January 3, 2008. Plaintiff claims that he is entitled to the return of his security deposit paid to defendant because the source of the funds was plaintiff's social security disability benefits. Defendant claims that the security deposit is non-exempt and can be used to offset the obligations which plaintiff owes defendant. The Court decides as follows:When a tenant has failed to make all rent payments during the term of the lease, and the landlord has applied the security deposit toward the payment of the rent, or the use and occupancy of the premises, that tenant will not be entitled to a refund of the deposit unless the proceeds are in excess of the rent due or damages sustained. Daniel Finkelstein and Lucas A. Ferrara, Landlord and Tenant Practice in New York, §7:20 (2002).
In the instant matter defendant established by a fair preponderance of credible evidence that plaintiff did not pay rent which became due on May 1, 2007, June 1, 2007, July 1, 2007 or August 1, 2007. Thereafter plaintiff was evicted from defendants' premises.
In certain situations, the landlord may be entitled to offsets against a security deposit. Generally, when there is a written lease, as is the case at bar, the document will outline specific conditions under which the landlord is entitled to retain all or part of the security funds. Daniel Finkelstein and Lucas A. Ferrara, supra §7:24 (2002). Paragraph 5 of the parties' lease agreement states:
"if tenant does not pay rent or added rent on time Landlord may use the security to pay for rent or added rent then due. If tenant fails to timely perform any other term in this lease, Landlord may use the security for payment of money, Landlord may spend, or damages Landlord suffers because of tenant's failure. If the Landlord uses the security, tenant shall upon notice from Landlord, send to Landlord an amount equal to the sum used by Landlord. That amount is due, when billed, as rent. At all times Landlord is to have the amount of security stated above."
The parties' originally agreed to security in the amount of $2,550.00. Pursuant to a stipulation of settlement dated April 10, 2007, before the Hon. Scott Fairgrieve, the parties agreed to apply $1,275.00 from the security for the payment of April 2007 rent, leaving the sum of $1,275.00 remaining as security. Since no rent was received between the April 2007 monies [*2]and plaintiff's eviction in August 2007, defendant had the right to apply the remaining $1,275.00 of security towards the unpaid rent, leaving no excess security money to be returned.
Plaintiff's contention that the $1,275.00 security deposit which came from plaintiff's Social Security Disability, and therefore monies which cannot be used by the landlord to cover rent owed, is without merit. Plaintiff himself chose to use the Social Security Disability money as rent and/or security deposit for rent. Plaintiff converted the funds to useable rent monies that are non-exempt by paying same to the landlord as the security deposit. Money is fungible and does not maintain its exempt status once it is used for a non-exempt purpose. See, Board of Education of the City of New York v. Treyball, 86 AD2d 639 (2nd Dept. 1982). The burden of proof would then shift to the plaintiff to show the monies are exempt. Balanoff v. Niosi, 16 AD3d 53 (2nd Dept. 2005). In the instant matter plaintiff offers nothing more than his oral testimony that the monies he used were exempt funds. Plaintiff has failed to meet his burden of proof regarding the status of the funds.
Plaintiff's additional demand for monetary damages and interest are also denied in their entirety. Plaintiff failed to prove a prima facie case for any damages owed by defendant , since plaintiff breached the lease agreement by failing to pay rent. Therefore, any costs related to or associated with the eviction, moving, storage and/or interest thereon, is due to plaintiffs own failure to pay rent pursuant to a valid lease agreement.
Since the plaintiff failed to meet his burden of proof, the case is dismissed in its entirety with
prejudice.
Ordered:
District Court Judge
Dated: January 29, 2008
cc:
ATM Three, LLC
249 W. Merrick Road
Freeport, NY 11520
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