Diaz v Cunningham

[*1] Diaz v Cunningham 2020 NY Slip Op 20101 Decided on April 28, 2020 City Court Of Middletown, Orange County Guertin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on April 28, 2020
City Court of Middletown, Orange County

Kristian Diaz, Claimant,

against

Tatiana Cunningham, Defendant.



SC 100/2020



The claimant and defendant proceeded pro se.
Richard J. Guertin, J.

INTRODUCTION

This is a Small Claims action by Kristian Diaz ("Claimant") against Tatiana Cunningham ("Defendant") in which the Claimant is seeking from the Defendant the sum of $5,000.00 for unpaid rent and damage to property relating to Defendant's rental of a single family house known as 3 Bigert Drive, New Hampton, New York ("the Property") from the Claimant. The Claimant and the Defendant both appeared pro se.

The Claimant submitted his Application to File Small Claims on December 1, 2019; the Court set March 6, 2020 as the date for the trial. Both parties appeared in court on March 6, 2020 for the trial. Both the Claimant and the Defendant testified under oath, and both generally were credible. Carol Klein DiDomenico ("DiDomenico") testified for the Defendant, and DiDomenico testified credibly. The Claimant and the Defendant submitted documentary evidence for the Court's consideration. The Court reserved decision after trial.

FINDINGS OF FACT

The credible evidence at the trial showed the following:

The Defendant moved into the Property on October 1, 2017 pursuant to a written lease with a term from October 1, 2017 to September 30, 2018; the lease term was extended to September 30, 2019 and continued on a month to month basis thereafter until December 1, 2019, when the Defendant turned over the keys to the Claimant.[FN1] The rent was $1,800.00 per month, and the Defendant paid a security deposit of $1,800.00. The Claimant stated the floors at the Property were refinished and the house was painted before the Defendant moved in; accepted [*2]into evidence as Claimant's Exhibit 2 were pictures of the flooring taken prior to the Defendant moving into the Property.

The Defendant moved into the Property with her two children and her ex-fiancé. According to the Defendant, everything initially looked and was fine, and she wanted to stay there "long term." However, the Defendant claimed that after a few months "things started falling apart," such as the railing in the bathroom, the refrigerator door, the microwave, and the dishwasher. She also claimed there was a lot of moisture in the house; water was coming from under her bed and from the corner of the wall on different occasions, and mold developed in the corner of her bedroom. Another issue involved the railings on the front steps; the Claimant stated her son, in September 2019, leaned on the railings, and the railings were so rusted they snapped. Accepted into evidence as Defendant's Exhibit A were photographs of the railings along with text messages exchanged between the Defendant and the Claimant. The Claimant, for his part, asserted the Defendant's dog would be leashed to the front step railings and pulled on them, causing them to separate from the stairs. Accepted into evidence as Claimant's Exhibit 4 were photographs of a dog leash near one of the railings that had been separated from the steps.

DiDomenico, for her part, testified that she first went to the Property in the vicinity of the summer of 2018 to visit the Defendant. DiDomenico stated she had observed a broken dishwasher and handles loose on the refrigerator and stove at the Property, and she also noticed the basement was damp. She didn't see any damage to the floors but did observe some paint on the floor. Overall, though, she said the "house was lovely."

In November 2018, the Defendant was injured at work. Her ex-fiancé also moved out in March 2019. Financially, it became more difficult for the Defendant to pay the rent, and in September 2019 the Claimant told the Defendant the Claimant was not renewing the Defendant's lease. At first the Defendant told the Claimant she would move out in October 2019, then in November 2019 she indicated she would move out "in a few weeks." The Defendant paid only a portion of the October 2019 rent and failed to pay rent in its entirety for November 2019.

The parties agreed at trial that the Defendant owes the Claimant a total of $2,950.00 for rent for October and November 2019. The parties also agreed at trial the Claimant could retain the Defendant's security deposit and apply it to the back rent. The Defendant also sent a text message on October 28, 2019 to the Claimant (Defendant's Exhibit B, in evidence) authorizing the Claimant to apply the security deposit toward unpaid rent and advising the Claimant she would move out of the Property by mid- to late November or December 1st, at the latest. The Defendant testified she moved out by November 15, 2019 but gave the keys to the Claimant on December 1st; a text message accepted into evidence as Defendant's Exhibit E also states the Defendant moved out November 15th and indicated the Defendant left the keys on the kitchen counter on December 1st.

The parties disagreed about the condition of the Property once the Defendant moved out. The Defendant claimed she left the Property vacant and clean, as shown by photographs the Defendant stated she took on November 30, 2019 (Defendant's C, accepted into evidence over [*3]the Claimant's objection).[FN2] The Claimant, however, testified the Defendant did not leave the Property in acceptable condition. For example, he claims he hired Saul's General Contracting Inc. at the end of December 2019 to repair damages to the Property and to remove various items left by the Defendant. Accepted into evidence as Claimant's Exhibit 1 is an invoice dated December 29, 2019 from Saul's General Contracting Inc. with a list of work to include "[t]ouch up walls and ceilings, paint ceilings walls doors and trim. Sand and refinish 900 sqft of floor," at a total cost of $5,950.00, and also removal of "wood shelves, burn motor oil, and used car parts," at a total cost of $80.00. The Claimant testified he paid those amounts to the Contractor, but the invoice itself shows a balance due of $6,030.00 and is not marked paid; the Claimant offered no documentary proof that he paid that amount to the contractor.[FN3]

The Claimant also offered into evidence photographs he claims were taken on December 1, 2019, after the Defendant moved out; those photographs were accepted into evidence as Claimant's Exhibit 3. The photographs depict bags of garbage on the exterior of the Property; a broken bookshelf with various books; what appears to be a broken entertainment center; bags of garbage on the interior of the Property as well as a dishpan full of what appears to be oil; used car parts; what appear to be a dog's chew marks on a windowsill; scratches (from a dog?) on a wood floor; various walls with (large) holes (spackled and unspackled); and various paint spots (some large) on the flooring. When the Court asked the Defendant about the photographs, the only one she claimed was not attributable to her occupancy was the one showing bags of garbage on the exterior of the Property.

The Claimant testified that after the Defendant, on October 28, 2019, gave her thirty day notice to the Claimant that she was moving out, the Claimant offered her an opportunity to inspect the Property prior to her moving out; he stated he offered that opportunity in a telephone call with her, not by anything in writing. The Defendant testified the Claimant did not offer her an opportunity to inspect the Property prior to her leaving. There was no testimony or evidence indicating the Claimant provided written notice to the Defendant prior to her vacating the Property of any cleaning or repairs required before the Defendant vacated the Property, and there was no evidence indicating the Defendant was given an opportunity to cure such issues before vacating. There also was no testimony or evidence indicating the Claimant provided an itemized statement to the Defendant regarding the basis upon which the Claimant was retaining the security deposit (and whether it would be retained for rent, for damage to the Property, or both).

DISCUSSION 1. Rent due for October and November 2019

During the trial, the parties agreed the Defendant owed the Claimant $2,950.00 as and for rent for October and November 2019. The Defendant also agreed, during the trial and in a text message, that the Claimant could retain the Defendant's security deposit of $1,800.00 and apply it toward the rent owed.

2. Claim for damages to the Property

If a landlord seeks compensation from a tenant for damages caused by the tenant during the tenant's occupancy, the landlord must prove the tenant's occupancy caused damage beyond what would be considered normal or ordinary wear and tear (see Bohl v. Poffenbarger, 59 Misc 3d 128[A], 2018 WL 1528482 *1, 2018 NY Slip Op. 50405[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Wicklund v. Mukhtyar, 55 Misc 3d 152[A], 2017 WL 2563144 *1, 2017 NY Slip Op. 50789[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Mazzarelli v. Moniaci, 21 Misc 3d 129[A], 2008 WL 4402751 *1, NY Slip Op. 51967[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; Camacho v. Paduch, 60 Misc 3d 837, 842 [Middletown City Ct 2018]; Hamilton v. Bosko, 54 Misc 3d 386, 388 [Cohoes City Ct 2016]). In other words, if the landlord finds nothing more than normal or ordinary wear and tear when the tenant vacates the premises, the landlord cannot collect any reimbursement from the tenant to repair damages from that "ordinary wear and tear." If the tenant causes "extraordinary damage" (Hamilton at 388), then the landlord may be entitled to collect money from the tenant to repair such damage, but only if the landlord proves those damages by competent evidence (see Camacho at 842).[FN4]

With respect to the return of security deposits, New York General Obligations Law § 7-108 (1-a) (d) and (e) (effective as of July 14, 2019) provide the following:

(d) Within a reasonable time after notification of either party's intention to terminate the tenancy, unless the tenant terminates the tenancy with less than two weeks' notice, the landlord shall notify the tenant in writing of the tenant's right to request an inspection before vacating the premises and of the tenant's right to be present at the inspection. If the tenant requests such an inspection, the inspection shall be made no earlier than two weeks and no later than one week before the end of the tenancy. The landlord shall provide at least forty-eight hours written notice of the date and time of the inspection. After the inspection, the landlord shall provide the tenant with an itemized statement specifying repairs or cleaning that are proposed to be the basis of any deductions from the tenant's deposit. The tenant shall have the opportunity to cure any such condition before the end of the tenancy. Any statement produced pursuant to this paragraph shall only be admissible in proceedings related to the return or amount of the security deposit.(e) Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit.

The photographic evidence offered by the parties conflicts, to a degree, as to the condition of the Property once the Defendant left. The Defendant's photographs contained in Defendant's C show the Property to be generally clean, but there are a couple of photographs showing holes in walls and mold growing in a corner of a room. The photographs taken by the Claimant on December 1, 2019, after the Defendant moved out, and accepted into evidence as Claimant's Exhibit 3 offer a very different picture of the Property. The photographs depict bags of garbage on the exterior of the Property; a broken bookshelf with various books; what appears [*4]to be a broken entertainment center; bags of garbage on the interior of the Property as well as a dishpan full of what appears to be oil; used car parts; what appear to be a dog's chew marks on a windowsill; scratches on a wood floor (perhaps from a dog); various walls with (large) holes (spackled and unspackled); and various paint spots (some large) on the flooring. The Defendant disagreed that she was responsible for the bags of garbage on the exterior of the Property, but she agreed the other photographs showed conditions attributable to her occupancy of the Property.

While the conditions depicted in Claimant's Exhibit 3 certainly support the Claimant's contention the Property needed to be cleaned and painted, some of those conditions do not rise to the level of "extraordinary damage" but are more in line with ordinary wear and tear (see Strafaci v. Meadowbrook Pointe Development Corp., 33 Misc 3d 142[A], 2011 WL 6142767 *1, 2011 NY Slip Op 52208[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011] [repairing damage to bathroom tiles was ordinary wear and tear]; Bohl v. Poffenbarger, 59 Misc 3d 128[A], 2018 WL 1528482 *1, 2018 NY Slip Op. 50405[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] [clean-up that included paying $249.50 for carpet cleaning, $100.00 for window washing and $2,500.00 for painting constituted ordinary wear and tear]; Hamilton at 387, 389 [garbage left under an oven, stains in the tub and sink, leftover food in the refrigerator, dog hair throughout the apartment, garbage on the back porch, and dirty windows and ceiling fans is ordinary wear and tear]).

To the extent there was a broken bookshelf with various books, what appears to be a broken entertainment center, bags of garbage on the interior of the Property as well as a dishpan full of what appears to be oil, used car parts, what appear to be a dog's chew marks on a windowsill, scratches on a wood floor, various walls with (large) holes (spackled and unspackled), and various paint spots (some large) on the floors, that type of damage could be considered extraordinary damage (see Chili Venture LLC v. Stahl, 54 Misc 3d 461 [Rochester City Ct 2016] [landlord awarded $770.00 for painting apartment, cleaning, repairing holes in living room wall, removing garbage, and exterminating fleas; the apartment "was a disaster" after the tenant vacated]; Hamilton at 389 [physical damage such as damage caused by the tenant's dog scratching and chewing several areas of molding, as well as alterations to an electrical outlet, exceeded ordinary wear and tear]; McCormick v. Moran, 182 Misc 2d 568 [Watertown City Ct 1999] [landlord awarded damages in the amount of $455.64 for a general cleaning of the apartment, including floors, walls, windows, woodwork and carpeting, due to smoke residue left by the tenant's heavy smoking]).

Even if a landlord proves the tenant caused extraordinary damages - damages that were more than ordinary wear and tear - the landlord cannot recover from a tenant the cost to repair those damages without "competent evidence;" in other words, evidentiary proof satisfying statutory requirements (Camacho at 846; Hamilton at 389). In small claims cases, competent evidence, at a minimum, would require the submission of itemized bills or invoices marked paid or two itemized estimates for services or repairs (Uniform City Court Act § 1804). In this case, the Claimant submitted an invoice dated December 29, 2019 from Saul's General Contracting Inc. (Claimant's Exhibit 1, in evidence) with a list of work to include "[t]ouch up walls and ceilings, paint ceilings walls doors and trim. Sand and refinish 900 sqft of floor," at a total cost of $5,950.00, and also removal of "wood shelves, burn motor oil, and used car parts," at a total cost of $80.00. The Claimant testified he actually paid those amounts to the Contractor, but the invoice itself shows a balance due of $6,030.00 and is not marked paid; the Claimant offered no [*5]documentary proof that he paid that amount to the contractor. As a result, the Court considers Claimant's Exhibit 1 to be an estimate only; that is not competent evidence of the Claimant's damages because Uniform City Court Act § 1804 requires the submission of two itemized estimates for a particular service or repair, or a paid bill or invoice. Even if Claimant's Exhibit 1 were to be treated as a paid bill or invoice, it is not detailed (except for the $80.00 attributable to removal of the wood shelves, the motor oil, and the used car parts). The work addressed in Claimant's Exhibit 1 may be partially or completely attributable to "extraordinary damage," but there is no way to know how the contractor specifically allocated the claimed $5,950.00 to "[t]ouch up walls and ceilings, paint ceilings walls doors and trim. Sand and refinish 900 sqft of floor." Because there was no evidence explaining in detail the work to be done, it is impossible to know which walls and ceilings were "touched up," which ceilings, walls, doors, and trim were to be painted, and which floors had to be sanded and refinish. The photographs in Claimant's Exhibit 3 also failed to provide those details. In the absence of such specificity, and as the Hamilton Court noted, because the landlord failed to submit the cost of repairs in the form of a paid receipt or two itemized estimates specifically broken down to the particular jobs required, the Court would be forced "to speculate as to the amount of the damages - no award can be made based on speculation" (Hamilton at 389).

There is another reason why the Claimant cannot obtain a judgment against the Defendant for damages to the Property. New York General Obligations Law § 7-108 (1-a) (d) and (e), which addresses the circumstances as to whether a landlord may retain part or all of a tenant's security deposit, expresses the intent of the New York Legislature with respect to a landlord's obligations to a tenant when a tenant has posted a security deposit and has given a landlord at least two week's notice the tenant will be vacating the landlord's property. In those cases, a landlord must give a tenant written notice that the tenant has a right to an inspection of the property before the tenant vacates it; after the inspection, the landlord must give the tenant an itemized statement detailing any repairs or cleaning costs that would be the basis of deductions from the security deposit; the tenant then must be given an opportunity to cure any such condition(s); and within fourteen days after the tenant has vacated, the landlord must give the tenant an itemized statement indicating why any portion of the security deposit will be retained. In this case, although the Defendant gave the Claimant at least two weeks' notice the Defendant was vacating the Property, the evidence (or lack thereof) shows the Claimant never gave the Defendant written notice of the right to an inspection; never gave the Defendant an itemized statement showing repairs or cleaning costs; never gave the Defendant the opportunity to cure those conditions before she vacated; and never gave the Defendant an itemized statement regarding the retention of the security deposit. The Court finds that the Legislature, in adopting New York General Obligations Law § 7-108 (1-a) (d) and (e), specifically wanted tenants to know if the landlord believed the rented property was damaged and whether the cost of those damages would be deducted from the security deposit, and the Legislature also intended that the landlord must give the tenant an opportunity to fix or repair the alleged damages. In the absence of such opportunity to cure, and in the absence of a written, itemized statement from the landlord to the tenant showing what amount, if any, would be deducted from the security deposit and why, that section of the General Obligations Law generally would require a landlord to return the security deposit to the tenant.

Aside from the fact the Claimant did not satisfy his statutory burden to prove his alleged extraordinary damages with statutorily-competent evidence, the Claimant never gave the [*6]Defendant written notice of an opportunity to inspect the Property prior to vacating or written notice of the Defendant's right to cure any alleged damages, and the Claimant never gave the Defendant an itemized statement showing what portion of the security deposit would be retained, and why. The Court acknowledges that, at the trial and even before the trial, in text messages, the Defendant agreed the Claimant could retain the security deposit for rent for October and November 2019; as a result, the Court will not require the Claimant to return the security deposit to the Defendant. However, because the Claimant did not satisfy his obligations under New York General Obligations Law § 7-108 (1-a) (d) and (e), coupled with the lack of competent evidence of the cost to repair his alleged extraordinary damages, the Claimant is not entitled to any award of damages for claimed repairs to the Property after the Defendant vacated.

The Court, in this small claims action, must "do substantial justice between the parties" (Uniform City Court Act § 1804). Under the circumstances of this action, and upon consideration of the testimony and evidence, and in an attempt to "do substantial justice between the parties," it is the Court's determination that substantial justice entitles the Claimant to a judgment against the Defendant in the amount of $2,950.00 for rent due in October and November 2019, less the security deposit in the amount of $1,800.00 retained by the Claimant, for a net judgment of $1,150.00 plus costs.

DECISION AND ORDER

After hearing the testimony at the trial, giving appropriate weight to the testimony of the witnesses, and reviewing all documentary evidence produced by the parties at the trial, it is

ORDERED, that the Claimant's claim against the Defendant for unpaid rent for October and November 2019 is granted in the amount of $2,950.00, and it is further

ORDERED, that the Claimant's claim against the Defendant for damages caused at the Property is denied, and it is further

ORDERED, that the Claimant may retain the Defendant's security deposit in the amount of $1,800.00, and it is further

ORDERED, that judgment shall issue for the Claimant against the Defendant in the amount of $2,950.00, plus costs, less the $1,800.00 security deposit held and retained by the Claimant, for a net judgment of $1,150.00, plus costs.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 28, 2020

Middletown, New York

ENTER:

Hon. Richard J. Guertin, J.C.C. Footnotes

Footnote 1:Neither party offered the lease or the lease extension agreement as evidence. The Claimant did not request any rent for December.

Footnote 2:While the pictures generally show the interior of the Property to be in clean and vacant condition, at least two of the pictures show what appear to be two large holes in walls; the holes appear to have been spackled. There also is a picture showing what appears to be mold growing in a corner of a room.

Footnote 3:Without proof of payment, the invoice from Saul's General Contracting Inc. could be considered simply an estimate.

Footnote 4:Hamilton and Camacho were cases in which tenants sued their landlords seeking the return of security deposits, but the analysis found in both cases is useful in addressing whether a landlord may obtain reimbursement from a tenant for alleged damages found after the tenant vacates.