Jones v Ipek Props., LLC
Annotate this CaseDecided on November 22, 2017
City Court of Albany, Albany County
Darick Jones and Princess Faulkner, Plaintiffs,
against
Ipek Properties, LLC, Defendant.
SC 260-17
Darick Jones
Princess Faulkner
Plaintiffs, pro se
[redacted] McAlpin Street - Apt. No. [redacted]
Albany, NY 12209
John Keenan, Esq.
Attorney for Defendant
600 Broadway #2
Albany, NY 12207
Helena Heath, J.
Plaintiff Princess Faulkner previously had filed a small claims case on April 14, 2017 against Havzi Ipek individually (which case should properly have been against Ipek Properties, LLC, her landlord at that time and the same defendant herein) seeking the return of the first month's rent (April 2017) and security deposit she paid to defendant for the subject premises. At the time Ms. Faulkner commenced that lawsuit, she was still a tenant of defendant herein. Therefore, while her case was ripe for decision with regard to her claim for the return of her first month's rent payment, the action Ms. Faulkner filed in April 2017 with respect to her claim for the return of her security deposit was not ripe for decision as she had not vacated the premises yet and, thus, she was not yet entitled to the return of her deposit. A first appearance court date in that case was set down for May 19, 2017.
On May 5, 2017, defendant herein filed an eviction proceeding against the two plaintiffs herein (and against an additional tenant) for non-payment of May 2017 rent in the amount of $950.00. At the first appearance in that proceeding on May 16, 2017, Ms. Faulkner was represented by attorney Debra Collura and Ipek Properties LLC was represented by attorney Joseph McGovern. After the parties conferenced the matter outside of the courtroom, the parties put a stipulation of settlement on the record. A review in chambers of the audio recording of the May 16, 2017 eviction proceeding reveals that the clear terms the parties agreed to and put on the record was limited to the following:
(1) the tenants (the plaintiffs herein) were to vacate the subject premises by no later than midnight on May 31, 2017 (the Court issued a warrant of eviction effective immediately, with no lockout by the Albany County Sheriff's Department prior to June 1, 2017);
(2) the landlord (the defendant herein) waived its claim to rent for the month of May 2017;
(3) the small claims action Ms. Faulkner had filed in April 2017, for the return of first month's rent and security deposit, was withdrawn; and
(4) a walk through of the premises on Thursday June 1, 2017 was to be done by the landlord (the defendant herein) as agreed upon by the parties.
On July 3, 2017, plaintiffs Darick Jones and Ms. Faulkner filed this small claims case herein against defendant for the return of plaintiffs' security deposit involving the subject premises (initially suing Havzi Ipek individually and Z. Ipek & Sons, for which the parties mutually consented at first appearance to change the name of the defendant to Ipek Properties, LLC, the correct name of the former landlord). At the first appearance in this small claims case, the Court inquired of Mr. Havzi Ipek, the defendant's representative, why defendant did not return the security deposit to plaintiffs. Mr. Ipek's response was as follows:
(1) that plaintiffs "broke the lease" by having a dog at the premises when the year lease between the parties stated no dogs allowed;
(2) that plaintiffs had moved into the premises on April 1, 2017, left around May 30 or 31 of 2017, and had had a year lease. Defendant stated that he had to paint the apartment after the tenants were only there two months; and
(3) that there were damages defendant suffered upon learning that the wires to the heating system in the basement of the subject premises had been cut, and he stated he believed plaintiffs had cut the wires.
When the Court inquired about the cost incurred by defendant for the damages associated with the heating system's cut wires, Mr. Ipek stated that the cost was about $500 to $600. Mr. Ipek did not have a paid receipt or two estimates in court with him on this day, but stated he would have a paid receipt to bring to the trial day for the cost the electrician billed him to repair the wire damage. Plaintiffs denied cutting the wires. Defendant's defense for retaining the security deposit due to the cut wires was determined by the Court to be a factual dispute necessitating a trial. As for the other two reasons defendant offered as justification for keeping the remaining amount of the $950 security deposit, the Court made the following inquiries and determination:
First, as to defendant's allegation that plaintiffs "broke the lease" and defendant incurred painting costs after plaintiffs were tenants for only two months, the Court indicated that [*2]plaintiffs' tenancy was terminated pursuant to a court ordered stipulation of the parties entered into on May 16, 2017, which provided that plaintiffs had until May 31, 2017 to remain in possession of the premises. Pursuant to applicable legal standards, the parties' stipulation of settlement resulted in a mutually agreed upon termination of the tenancy between the parties. Factually, therefore, the termination of the tenancy was not a "breaking of the lease" for which defendant could legally be entitled to costs. The Court thus determined that defendant had no legal basis to retain a portion of plaintiffs' security deposit for an alleged breaking of the lease or for costs related to painting of the premises upon Ms. Faulkner's and Mr. Jones' vacating of the premises. (I note that defendant did not assert a claim that he incurred painting costs due to plaintiffs leaving the premises in a condition of disrepair or beyond normal wear and tear).
Second, with respect to defendant's allegation that plaintiffs had a dog in violation of their lease, Mr. Ipek acknowledged that there were no damages to the premises caused by the dog nor was there any provision in the lease defendant could rely upon for claiming money damages for plaintiffs' violation of the no dogs allowed provision in the lease. Mr. Ipek candidly admitted in court that he was "pulling at straws" to come up with a reason why the security deposit was kept beyond the reason of the heating system's cut wires. The Court determined at the first appearance in this case that plaintiffs were entitled to the return of $350 of their security deposit, and a judgment in favor of plaintiffs for $350 stayed pending payment was issued. Mr. Ipek committed to paying the $350 by August 17, 2017, which the Court learned at trial in this case had been paid to plaintiffs. Plaintiffs' claim for the remaining $600 of the security deposit (the maximum amount defendant stated he incurred for the cost to repair the cut wires) was set down for trial.
The trial was held on September 15, 2017. In reserving decision after trial and upon review in its entirety of the audio recording of the subject trial as well as the May 16, 2017 non-payment eviction proceeding involving these same parties herein, the Court hereby determines that the stipulation of settlement between these parties, put on the record on May 16, 2017, did not include a waiver by Ms. Faulkner of her claim for the return of the subject security deposit. The plain language of the terms of the parties' settlement agreement did not include such waiver. Additionally, Ms. Faulkner's claim for the return of her security deposit was not ripe for decision in April 2017 when she filed her prior small claims lawsuit that was withdrawn, nor was that security deposit claim ripe when the parties were in court on May 16, 2017 as Ms. Faulkner and Mr. Jones were still tenants at that time and were authorized by the parties' agreement and the Court's order of eviction to have possession of the premises up until midnight on May 31, 2017. Moreover, Ms. Faulkner testified at trial that Mr. Ipek had stated to her, during the parties' conference that took place outside of the courtroom on May 16, 2017, that he would return the security deposit to her after she vacated the premises. The Court finds Ms. Faulkner's testimony to be credible. As noted above, pursuant to the settlement agreement placed on the record on May 16, 2017 in the subject eviction proceeding, the parties agreed that on June 1, 2017 defendant herein was to conduct a walk through of the premises, which lends further credibility to Ms. Faulkner's testimony that Mr. Ipek was to return the security deposit in the normal course, i.e., after inspection of the subject premises and a determination by defendant herein that there were no damages to the premises, the security deposit was to be returned.
Finally on this issue, counsel for defendant herein argued at trial that the withdrawal of the prior small claims case barred plaintiffs' instant security deposit claim pursuant to the [*3]doctrine of res judicata. However, the withdrawal of that prior case was not a determination on the merits of the security deposit claim. CPLR Section 3217 provides, in relevant part, that:
"unless otherwise stated in the notice, stipulation or order of discontinuance, the discontinuance is without prejudice, except that a discontinuance by means of notice operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action in a court of any state or the United States."The purpose of this provision, as set forth by the Judicial Council in recommending its enactment, is to curb the use of the discontinuance device as a means of harassment (Headley v. Noto, 45 Misc 2d 284 [Supreme Court of New York, Special Term, Kings Co., 1965]). However, when it is clear that a plaintiff has no harassment in mind, but only a most legitimate purpose to effect in discontinuing the second action by notice, the "on the merits" label will be held not to attach (Tortorello v. Carlin, 162 AD2d 291, [First Dept., 1990]).
Furthermore, in O'Brien v. City of Syracuse, 54 NY2d 353 (1981), the Court of Appeals stated as follows: "This state has adopted the transactional analysis approach in deciding res judicata issues. ... Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred" (See also Boronow v. Boronow, 71 NY2d 284 [1988]). There was no "final conclusion" or determination on the merits in the prior subject small claims case, and res judicata therefore does not attach.
FACTUAL ALLEGATIONS:
The critical factual allegations testified to at trial by each party are as follows:
(1) Ms. Faulkner testified that on the first day when she noticed that the heat had gone off at the premises she called Mr. Ipek. She testified that there was cold water only, and it felt cold in the premises.
(2) Ms. Faulkner testified that she also called the Albany City Codes Department on the first day of having no heat and was told that she should call National Grid, which she did that first day. According to Ms. Faulkner, a National Grid representative came out the next day.
(3) At the time she discovered that the wires had been cut, Ms. Faulkner said she was pregnant and on bed rest. She testified that the National Grid representative asked that she go downstairs to the basement to see the condition of the wires and to take a picture and that the representative assisted her in getting down to the basement.
(4) According to her testimony, the approximate timeframe when Ms. Faulkner came to learn that the heating system's wires had been cut was in May 2017. She specifically testified that she learned the wires had been cut after she had appeared at the May 16th court appearance in the prior subject eviction proceeding, so it was in mid May that Ms. Faulkner remembered discovering the wires had been cut.
(5) Ms. Faulkner acknowledged that she had not paid May's rent. She testified that the reason she did not pay that rent was because there were bed bugs and roaches in the apartment. The no heat problem lasted two days according to Ms. Faulkner.
(6) Ms. Faulkner denied that she or Mr. Jones cut the heating system's wires. She testified that it would make no sense for her to do so as she was pregnant and at home on bed rest and would have no reason to want the heat to be off and have only cold water while they were living at the premises.
(7) According to Ms. Faulkner, on May 29, 2017 she and Mr. Jones had everything packed up at the premises and they were ready to go.
Mr. Ipek testified on behalf of defendant, and the key aspects of his testimony are as follow:
(1) Mr. Ipek testified that he had received a call from Mr. Jones in the evening around 7:00 PM informing him that there was no heat. According to Mr. Ipek, he told Mr. Jones that he would be at the premises the next day in the morning.
(2) Mr. Ipek testified that upon arriving at the premises that next morning, he saw that the thermostat was not working, and then he observed in the basement that the heating system's wires had been cut, "snipped off". Mr. Ipek stated that he then called his electrician, Mr. Kenific.
(3) According to Mr. Ipek, he had not called the Codes Department about the heating system situation, but after he left the premises he later learned that when Mr. Kenific was there to fix the problem Mr. Kenific saw a Code Enforcement Officer at the premises.
(4) Mr. Ipek acknowledged that the invoice he received from R.J. Kenific, Inc. (Defendant's Exh A, which was received into evidence), for the replacement of the cut wires and other related work the electrician performed, was dated April 26, 2017.
(5) Mr. Ipek testified that he thought the "invoice date was wrong" and that he "recalled the cut wire in May".
The closing statements at trial of each side revealed the theory of the case which each party sought to have the Court rely upon in reaching its determination. Specifically, counsel for defendant at trial (who had not represented defendant in the parties' prior eviction proceeding or at the first appearance in this case) argued that:
(1) the April 26, 2017 invoice from the electrician was accurate and showed that plaintiffs cut the wires of the heating system at the end of April 2017, which was during the time when an eviction proceeding was imminent (proceeding filed May 5, 2017);
(2) plaintiffs' testimony was conflicting, whereby Mr. Jones said he discovered the heating system's wires were cut in April 2017 and Ms. Faulkner said the wires were cut in May 2017;
(3) defendant believed that the security deposit claim was "resolved" and that is why defendant kept the security deposit; and
(4) the expenses defendant incurred for the heating system's cut wires further "bolsters" the reason why defendant kept the security deposit.
On behalf of plaintiffs, Ms. Faulkner argued that:
(1) the apartment had bed bugs and was in bad condition;
(2) Mr. Ipek told plaintiffs he would give them the security deposit back; and
(3) plaintiffs did not cut the heating system's wires, and they would not do that because they were living at the premises, had until May 31, 2017 to be there, and they wanted to have hot water.
LEGAL ANALYSIS:
In reserving decision in this case to more fully consider the parties' legal and factual arguments raised at trial, the Court further examined the issue whether the conditions of the premises plaintiffs complained about at trial could result in any remedy in favor of plaintiffs. The Court concludes that plaintiffs are not entitled to any rent abatement or other monetary remedy [*4]for the conditions complained about because they entered into a stipulation of settlement in the prior subject non-payment of rent eviction proceeding. Although plaintiffs did not waive their claim for the return of their security deposit, by entering into that settlement agreement they did give up their right to raise any and all claims related to the conditions of the premises which could have been raised had the parties gone to trial in that proceeding.
The sole issue remaining for decision by the Court is whether defendant presented sufficient proof at trial to show that it properly retained plaintiffs' security deposit because plaintiffs cut the heating system's wires at the subject premises resulting in a monetary cost to defendant. This case requires the Court to make credibility determinations and to assess what were the motivations of each party based upon the proof presented as to what is alleged to have happened. For the following reasons, the Court finds that defendant did not present sufficient proof that plaintiffs cut the heating system's wires and, thus, defendant was not justified in retaining the remaining $600 of the security deposit for the damages associated with the cut wires.
Defendant unsuccessfully attempted to show that plaintiffs were motivated to cut the wires because they knew an eviction proceeding was imminent in early May. This theory is based squarely on the factual premise, as argued by defendant's counsel in his closing, that plaintiffs cut the wires in late April, close in time to the date of the April 26, 2017 subject electrician's invoice. However, Mr. Ipek's testimony on behalf of defendant unequivocally was that the wires were cut in May and that "the invoice date of April 26, 2017 was wrong". The theory advanced by defendant as to what was the motivation of plaintiffs to cut the wires is therefore unsustainable. Additionally, the Court views the incorrect dated invoice as insufficient proof of the monetary damages defendant incurred associated with the replacement cost of the heating system's wires.
Of the two plaintiffs, Ms. Faulkner's testimony was most clear and decisive on the issue of when the wires were cut, which she testified was in mid-May soon after the May 16, 2017 court appearance for the eviction proceeding. Mr. Jones admittedly on the witness stand was less confident in his memory about that timeframe. The Court finds Ms. Faulkner's testimony to be credible as to why she would not want the heat off or to only have cold water when they were still living there and she was pregnant and on bed rest during the month of May. Pursuant to this Court's order of eviction, plaintiffs were permitted to stay in possession of the premises until May 31, 2017, supporting Ms. Faulkner's position that she and Mr. Jones had no reason to cut the wires and have no hot water during the last month of their tenancy.
Furthermore, two additional factual foundations support the plaintiffs' position in this case. One is that at the May 16, 2017 court appearance for the subject eviction proceeding, defendant did not mention on the record that plaintiffs had caused damage to the heating system's wires. If such cutting of the wires had already occurred in April 2017 or sometime before May 16th, allegedly by plaintiffs, that type of damage would likely have been put on the record as being an expense (already allegedly incurred by defendant on or around the date of the April 26, 2017 electrician's invoice) for which defendant would have a basis to deduct from plaintiffs' security deposit even before the completion of defendant's June 1, 2017 walk through and damages assessment at the premises. Secondarily, it is undisputed that defendant, the Codes Department, and National Grid were all called by one or both of the plaintiffs around the time [*5]Ms. Faulkner first discovered that there was no heat at the premises. Plaintiffs' quick action to get resolution of a no heat situation while having possession of the premises until the end of May is an indication that plaintiffs had no retaliatory motivation to damage defendant's property, as is sometimes done in a situation where a tenant may have been evicted by court order or where an eviction is imminent and the tenant is retaliating against the landlord by damaging the landlord's property upon the tenant vacating the premises.
After an exhaustive and careful review of all of the facts, circumstances, and applicable legal standards, the Court grants plaintiffs' claim for the return of the remaining $600.00 of their security deposit. Accordingly, judgment shall enter in favor of plaintiffs and against defendant in the sum of $600.00, together with the $15.00 filing fee paid by plaintiffs, for a total judgment of $615.00.
So ordered.
Dated: November 22, 2017
Albany, New York
Helena Heath
Albany City Court Judge
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