[*2]Appeal by defendant from a small claims judgment of the Civil Court, Kings County (D. Waltrous, J.), entered July 11, 2002, in favor of plaintiff in the principal sum of $1,200 and dismissing his counterclaim.

Judgment unanimously reversed without costs and judgment directed to be entered in favor of defendant dismissing plaintiff's action and awarding defendant the principal sum of $134.36 on his counterclaim.

In this small claims action, plaintiff sought to recover her security deposit representing one and one-half month's rent which she paid to defendant. Defendant counterclaimed for the sum of $3,000 to recover monies spent on renovating the apartment, electric bills and advertising costs, as well as lost rent. The subject lease, commencing on February 1, 2002, provided that if the lease were terminated by plaintiff, plaintiff would be responsible for any unpaid rent for the unexpired term of the lease and any advertising costs incurred by defendant in his attempt to re-rent the apartment. The lease also provided that plaintiff was responsible for the cost of electric service. After paying rent for the month of February 2002, plaintiff notified defendant on February 7, 2002 that she was not going to be moving in. At trial, defendant submitted into evidence a lease to re-rent the apartment commencing on April 15, 2002, paid bills for the cost of advertising the apartment for the months of February, March and April, 2002, as well as an electric bill from Con Edison for these months. In light of the foregoing, we are of the opinion that defendant is entitled to retain the security deposit representing rent for the month of March as well as half of the month of April. In addition, defendant is entitled to [*3]the costs he incurred in re-renting the subject apartment. Therefore, the lower court's judgment in favor of plaintiff and dismissing defendant's counterclaim did not render substantial justice between the parties in accordance with the rules and principles of substantive law and should be reversed (CCA 1807). Judgment is directed to be entered in favor of defendant on his counterclaim in the principal sum of $134.36 and dismissing plaintiff's action.
Decision Date: October 21, 2003