Moore v Beautiful Spaces, LLC

[*1] Moore v Beautiful Spaces, LLC 2020 NY Slip Op 50576(U) Decided on May 11, 2020 Supreme Court, New York County Marin, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2020
Supreme Court, New York County

Charles William Moore and Virginia Kiggins Moore, Plaintiffs,

against

Beautiful Spaces, LLC, Defendant.



154302/2018



Attorneys for the plaintiffs:

The Price Law Firm LLC

By: Joshua C. Price and Jennifer Milosavljevic

Attorneys for the defendant:

Cyruli Shanks Hart & Zizmor LLP

By: James E. Schwartz


Alan C. Marin, J.

This is the decision following the bench trial of an action and counterclaim that arose from the rental of a triplex residence in a brownstone on the upper west side of Manhattan. Plaintiffs brought suit for the return of their security deposit, contending that the defendant commingled the deposit in violation of the General Obligations Law. The Moores further argue that the building did not have a proper certificate of occupancy under the Multiple Dwelling Law.

For its part, defendant alleges that the damage done to the apartment by the plaintiffs when they were in residence exceeded the amount of the security deposit, and also seek plaintiffs' share of the costs for the water and gas utilities. Each side requests attorneys' fees.

Shira White, the principal of Beautiful Spaces, lived on the ground and parlor floors of 615 West End Ave and rented out the upper three floors as a triplex (def exh A). Virginia and Charles Moore rented the unit for an 18-month period beginning January 1, 2015; the actual move-in date was January 9. On April 8, 2016, the lease was extended from July 1, 2016 through June 30, 2018. However, on February 12, 2018, the parties modified the lease to expire at the end of that month.[FN1]

The security deposit, which represented three months' rent, initially was $40,500 and increased to $43,800 by the time the Moores vacated. Paragraph 6 of the rider to the lease [*2]provided that, except for normal wear and tear, the apartment should be returned in the same condition as when the tenants first moved in; if not, the landlord could keep all or part of the deposit to cover the damage. Paragraph 8 of the modification agreement provides that within 48 hours of vacating the apartment, there would be a walk-through to "inspect the apartment for damage."

The inspection took place on March 1, 2018 with Charles Moore, Shira White, her real estate agent, Fern Hammond, and White's son, Max Wiseltier. During the walk-through, Ms. White took 60 photos of the vacant unit in order to show damage to the floors (staining, gouging and pieces of parquet missing); stairway spindles and balustrades; doors and walls; fireplace tiles; and on the ceiling by a light fixture (def's exhs E1 through E60].

The Street Easy website that listed for rent Ms. White's triplex in 2014 posted color photographs that Ms. Hammond had taken (def exh G).[FN2] Except for a brief period during the holidays leading into January of 2015, the space was empty between the time the photos were taken and the Moores began occupancy. There is no evidence that the holiday-period tenants caused any damage.

As for the condition of the apartment at that time, Hammond said it "had been painted, the floors had been redone. It was completely fixed up, ready for a new tenant." Paragraph 31 of the lease reads: "Space as-is. Tenant has inspected the Apartment and Building. Tenant states they are in good order and repair and takes the Apartment as-is except for latent defects." Moreover, the rider to the lease provides that the tenant, "must inform Landlord of any preexisting damage within two (2) days of occupancy" (¶14).

***

This trier of fact finds the 60 photos taken March 1, 2018 to be credible evidence of the damage that the Moores' tenancy proximately caused. Such is based on these photos, the before-photos taken in 2014 by Ms. Hammond for Street Easy and the credible testimony of White, Hammond and the expert called by defendant, David Porter. I am not otherwise persuaded by the photos taken by Ms. Moore in June of 2016.

Charles Moore, who was on the March 1 walk-through inspection when the photos were taken did not come forward to challenge what they showed or to state what he had seen. If there was something that supported his and his wife's position, Mr. Moore, should have so testified; not doing so, without an explanation therefor, entitles defendant to the inference that he did not have such information. Shira White's son was not called to the stand, but his testimony would have been cumulative and plaintiffs will not be granted an inference for Mr. Wiseltier. See DeVito v Feliciano, 22 NY3d 159.

Nor are plaintiffs entitled to an adverse inference from defendant's failure to produce the video that Wiseltier took on the walk-through.[FN3] It was not, for example, of an accident in a [*3]building for which it is the only visual record—we have dozens of photos from March 1, 2018. Moreover, it was available, as indicated by the questioning of White by plaintiffs' counsel:

Q. If someone had gone on StreetEasy, Trulia or any other website where people would go looking to rent, buy, sell property, the video would be available to the public; is that correct?A. I couldn't answer that question.Q. After you listed the triplex in May of 2018, did you ever check to make sure that the video was live?A. I saw the video in the Halstead website.Q. So anyone who would have been interested in renting the triplex after May 1, 2018 would have been able to see it at least by going on the Halstead website?A. Presumably.

Moore's argument that she viewed the triplex as an "old rental apartment" does not hold up. Two weeks before the November 24, 2014 signing of the lease, Virginia Moore had sent Fern Hammond an email, which read:

"As you know, my husband . . . and I felt very comfortable in your listing at 615 West End Avenue . . . and we would be so happy to be able to make 615 West End our home for the next several years." Moore added, "we hope [Shira White] will value the opportunity to secure quiet, long-term renters who will love and care for her beautiful house, and enable her to avoid future vacancies" (def exh N).

On that note, a few weeks later, an email from Ms. Moore to Shira White does not make it look like Virginia Moore believed that her family was stuck with a run-down residence that they would just have to endure for a while; it was on the color Moore wanted her daughter's bedroom painted: "Benjamin Moore No.1646, Lookout Point. It's a really light gray blue, almost a blue off white" (dated December 7, 2014, def exh M).

White testified that the Moores grilled in the apartment on numerous occasions, which made the building smell greasy, but also set off the smoke alarm. Ms. White told Ms. Moore not to grill, who responded that they had no intention of stopping, and if White did not like it, she could install a better exhaust system. In fact, fire trucks came a number of times to 615 West End; plaintiffs pointed to the fire department incident reports for their address (pl exh 13), showing it was not usually because of the grilling, which appeared defensive.

***

In June of 2016, Virginia Moore had taken photos in support of the complaints that she had, and sent an email to Shira White that read: "Attached are photographs detailing the condition of the screens and other issues in the apartment, all of which were existing upon our arrival. I know you're aware of the terrace, the intercom/doorbell and perhaps others of these as well, but I've included everything that's not strictly cosmetic like the paint and wires. If you have questions about any of this please let me know" (def exhs C [June 11, 2016] & C1-C22).

Ms. Moore's photos also showed: a loose dining room hearth; loose and broken tiles; molding missing from the dining room that she captioned "almost impossible to open and close;" and a parquet floor that was captioned "missing pieces," although the photo displays one small missing triangular piece. Moore testified that "the floors were in decent shape . . . I'm calling it they look like old floors." On the witness stand:

Q. The damage to the floors was a visible item to you when you moved into the apartment; am I correct? A. Yes.Q, The damaged woodwork was an item that was readily visible to you when you moved into the apartment, correct?A, Yes.Q. And the damaged or missing tiling was readily visible to you when you moved into the apartment, correct?A. Yes.Q. Now, you did not inform the landlord of these conditions within two days of your taking occupancy of the apartment, did you?A. I don't know why. As I said, I assumed . . . it was so visible . . . I just didn't view it as damage; I just viewed it as an old rental apartment.

Plaintiffs introduced two other photos of the exterior doors to the building (pl exhs 9 and 10). When architectural restorer David Porter was shown exhibit 9 during cross-examination, he agreed they were in poor condition, but there is no claim for them, and they were not within Porter's charge.

Shira White confirmed that the Moores complained that: rooms were too hot or too cold; a toilet was clogged; there was a leak in the roof; and the dryer was not drying well enough. The tenants complained about the lids for the recycling and trash bins, and as noted, the problem with the intercom. White said that she repaired screens, added weather stripping to windows and five new temperature sensors, installed a new intercom and repaired leaks.

***

White testified that whenever there was a complaint, she went up to the Moores' apartment. In June of 2016, when White went to look at the screens in the great room, Virginia Moore invited her to stand on the sofa to get a better look. When White did, she stepped in "a warm, wet puddle on the floor." White recalled that Moore apologized, grabbed a towel to mop it up with and said that the dog must have had an accident.

The Moores' dogs were an issue from the outset. Paragraph 39 of the lease rider from November of 2014 is quite specifi" target="_blank">Harlem Capital Ctr., LLC v Rosen & Gordon, LLC, 145 AD3d 579, 1st Dept). As it was, plaintiffs did not develop the issue beyond admitting into evidence the bank statements and a cancelled check of White's (pl exh 4).[FN14]

iii). Defendant Beautiful Spaces contends that prevailing in this matter means it is entitled to attorneys' fees. The basic lease and its rider make reference thereto. Paragraph 23 of the lease is entitled, "Tenant's default." Subparagraphs A and B list several bases for default, including the failure to pay rent or for making a material misstatement on the tenant's application. It provides that the landlord's expenses for re-renting includes "reasonable legal fees and brokers fees" (as well as cleaning and repairing, decorating and advertising costs), subparagraph D, item 3.

Paragraph 10 of the lease, entitled Liability, states that the "Tenant must pay for damages . . . and reasonable expenses of Landlord." Then it has this narrow ground for attorneys' fees; "If an action is brought against Landlord arising from Tenant's act or neglect Tenant shall defend Landlord at Tenant's expenses with an attorney of Landlord's choice."

The lease rider contains the following provision: "In the event of a legal dispute: the [*5]winning party may recover attorneys' fees in all lease disputes between landlord and tenant arising out of or in connection with the lease, including an interpretation of the lease or a declaration by the court, of the rights and obligations of the parties under the lease."

While the standard for determining whether a party has prevailed for purposes of an award of attorneys' fees "requires an initial consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope" (Excelsior 57th Corp. v Winters, 227 AD2d 146, 1st Dept), in this case, excessive tenant damage is not covered by the terms of the lease or its rider.[FN15]

The Excelsior line of cases involve rent arrears, rent abatement, holdover tenancy or as in Sykes v RFD Third Ave. I Assoc. LLC, 39 AD3d 279, 1st Dept, a specific list of items to be repaired or completed (a punch-list before moving into a newly purchased apartment). The central relief sought here is in the nature of a tort for which attorneys' fees or pre-judgement interest are not available.

***

NOW therefore, in view of the foregoing,

IT IS ORDERED, that the complaint of plaintiffs Charles W. Moore and Virginia K. More is dismissed with prejudice;

IT IS FURTHER ORDERED, that i) judgment is granted to Beautiful Spaces, LLC in the amount of $129,390 ($174,733 less plaintiffs' rental deposit, which has accrued to $45,343); and that ii) Beautiful Spaces, LLC may retain the security deposit of $45,343).

The County Clerk is directed to enter judgment accordingly. A copy of this Order with notice of entry shall be served upon the County Clerk.

Dated: May 11, 2020

Alan C. Marin

J.S.C.

Appendix: Selection of 60 Photos Taken March 1, 2018

* Chunk of step in front of brownstone missing (defendant's exhibit E1);

* Granite saddle or marble saddle at entrance of building, past the entry vestibule coming into the main foyer, shows gouges and breakage and scrapes on saddle and corner piece of saddle broken off (E2);

* Newel post in stairway of tenant apartment, showing chips, scrapes and gouges in paint (E3);

* Scrapes, scratches and gouges in parquet floor of living room (E4, E5 & E9);.

* Missing pieces to inlay border and living room floor, also some scrapes and stains (E6 & 7);

* Missing inlay tiles in intricate border of antique floor (E8);

* Missing finish as well as scrapes, scratches, stains in living room (E10);

* Stains, large patch of floor finish removed, chipped out ( E11);

* Office floor, carpet with heavy stains, scratches and scrapes on floor (E12);

* Dining room floor, one section has paint blotches, gouges and scrapes; another section large stain; damage to corners of antique parquet (E13 & E14);

* Mahogany windowsills show stains, ring stains, gouges in wood (E15);

* Antique tiles in hearth of dining room fireplace, missing and broken tiles (E16-E18, E20);

* Section of same fireplace hearth has damage to mahogany mantel (E19);

* Scrapes and scratches on floor across parquet and border in another section of dining room (E21-E22);

*Mahogany casing, around the doorway and dining room, shows large chunk of the wood, damaged and missing (E23);

* One of the stairways: edges of the stair carpeting on several steps scraped and torn (E26-E27);

* Area of floor, west master suite's antique plank floors: large, dark, heavy stain; another section of this floor in front of the fireplace with another such stain and urine smell (E28-E31);

* Section of floor west master bedroom suite has scrapes, gouges and scratches (E32);

* West master suite, showing part of wall and ceiling, walls stained with soot (E33);

* Molding in west master suite shows significant gouge (E34);

* Fireplace mantel in west master suite has soot fully staining mantel and scratched paint (E35);

* West master suite had soot staining on wall shelving over one wall (E36);

* East master bedroom outfitted with period chandeliers that Moores replace with their own lighting and damaged the ceiling; lampshades brown stains (E39);

* East master bathroom suite ceiling with stains and damage (E40);

* Third floor southeast bedroom with loft ladder had railing pulled away with nails pulling out and wood ripped (E41-E44);

* Northeast bedroom third floor ladder railing to storage cabinets shows scrapes, removal of paint and shredded wood (E45);

* Antique wooden plank floors in northeast bedroom with dark stain area from dog urine (E46);

* Door to northeast bedroom completely broken and damage behind door to plaster (E47-E49);

* Bathroom on third floor has section of tub porcelain chipped away, and panel broken and pulled away from vanity (E51-E52);

* Third-floor great room with, large heavy stain on antique plank flooring, gouging and dog urine smell (E53 & E56);

* Wall of such great room has plaster damage and staining running down it (E54, E55 & E57);

* Third-floor great room ceiling: Moore's removed lighting to install own lighting, damaged ceiling when they put original lighting back (E58);

* Stairway between second and third floors has molding at the top and ripped off edge of stair rail (E59); and

* Antique mahogany door, in common foyer at entrance of vestibule that led to tenant apt, veneer completely sheered off of a section of door (E60).

Footnotes

Footnote 1:The lease, the rider and the modification thereto comprise plaintiffs' exhibit 2.

Footnote 2:Ms. Hammond testified that the photos, taken within a year of the rental, fairly and accurately depict the triplex as it was in November of 2014.

Footnote 3:The trier of fact in a bench trial will find useful the Pattern Jury Instructions, such as the inferences in 1:75 (missing witness); 1:77 (failure to produce evidence); and 1:22 (falsus in uno, raised below). See for example, Harris v State of New York, 41 Misc 3d 1240 [A].

Footnote 4:Item 6 of ¶27 of the lease, which prohibited dogs or other pets, was crossed out and initialed.

Footnote 5:Defendant's exhibit G1 is a 2014 Street Easy photo, in blown-up form, of the living room with bay windows, a tiled fire place, and parquet floors. The fireplace wood and tiles, and the wood in the window frames and base are intact. The floor looks to be in excellent condition, except for isolated darker spots and a half-a-tile diagonal length scratch in the lower right. A clear photo of the same place from the March 1, 2018 walk-through (exh E4) shows multiple scratches within four circled parquet circled squares, of which apparently only the diagonal scratch from 2014 corresponds. This is what Porter had testified to and what this trier of fact saw in the photos.

Footnote 6:Ms. White's April 23, 2018 check to Vail was for $2,900. Invoice 829 has $2,900 for architectural services and $14 for messengers.

Footnote 7:Excluding the main foyer, for which we have no boundary, the three rooms comprise about 900 square feet: an unspecified bedroom (about 16' x 18' from the floor plan); the living room (18' x 18'6"); and the dining room (16'8" x 18'6").

Footnote 8:Defendant's exhibit P is the contract for the work, and exhibit R is the American Express statement showing the July 20, 2018 payments of $10,612.

Footnote 9:$11,366.67 + $10,000 + $12,783.32 + $3,862.50 = $38,012.49 or $38,012.

Footnote 10:Defendant's brief, page 13, footnote 8 indicates that no claim is made for the radiator valve. Both briefs were first rate - - detailed and readable.

Footnote 11:$4,500 + $4,500 + $1,500.

Footnote 12:$3,000 + $3,300 + $1,434 + $1,300.

Footnote 13:The Real Property Law was amended in 2017 to add a new section 235-bb, requiring a property owner with three or fewer residential rental units to give notice if a certificate of occupancy is required by law, and if so, provide the tenant with a copy. The Moores triplex was not subject to §235-bb: Chapter 446 of the Laws of 2017 applies to residential leases entered into on or after November 29, 2017.

Footnote 14:It is unnecessary to reach the argument raised in defendant's brief that plaintiffs claim under §7-103 is barred by the statute of limitations.

Footnote 15:That the no-pets clause was crossed out of the pre-printed lease (§27[6]) and specific permission for four dogs added as paragraph 39 of the Rider does not affect such conclusion.