Appeal by defendant from a small claims judgment of the City Court of Yonkers, Westchester County (R. Cerrato, J.), entered February 26, 2002, in favor of plaintiff in the principal sum of $1,000.

Judgment unanimously reversed without costs and matter remanded to the court below for a new trial.

Plaintiff instituted this action for the return of a security deposit he gave to defendant on behalf of a Section 8 tenant. Defendant contended that the Section 8 tenant held over and that she was entitled to apply the security deposit to the rent owed by reason thereof. The court, in awarding judgment in favor of plaintiff, apparently concluded that the tenant remained a Section 8 tenant, did not hold over, and therefore the Section 8 tenant was only responsible for her share ($50) of the last month's rent (see Shickler v Thorpe, NYLJ, Feb. 27, 2002 [App Term, 9th & 10th Jud Dists]; Parkmore Properties v Prasad, NYLJ, Oct. 19, 1999 [App Term, 9th & 10th Jud Dists]). The court further concluded that Section 8 withheld its share ($950) of the rent based on a finding of rent impairing violations. After reviewing the record, it is this court's opinion that the testimony of the tenant was insufficient to establish that she did not hold over and that Section 8's failure to pay its share of the last month's rent was due to the violations. It may very well be, as defendant testified, that the tenant held over, thereby incurring liability for the entire rental amount due, towards which the defendant could apply the security deposit, and that the Section 8 rent was not withheld for the reasons alleged by tenant. Under the circumstances, a new trial is warranted for a further development of the facts. [*2]
Decision Date: December 03, 2003