Appeal by plaintiff, on the ground of inadequacy, from a judgment of the City Court of Yonkers, Westchester County (Arthur J. Doran, III, J.), entered on March 16, 2001. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, awarded plaintiff the principal sum of $300 and dismissed the second, third and fourth causes of action.

Judgment, insofar as appealed from, modified by increasing the amount awarded plaintiff on the first cause of action to the sum of $3,560; as so modified,
affirmed without costs.

We note initially that defendant failed to establish that this appeal was untimely taken (see CPLR 5513).

In this action to recover, inter alia, the money plaintiff paid to defendants in anticipation of the execution of a lease for an apartment, the evidence adduced at trial established that the parties never executed the written lease agreement. Moreover, the defendants never tendered the keys to plaintiff and, thus, plaintiff was never given possession of the premises. Accordingly, defendants cannot retain any portion of the rent and security deposit paid to them in advance. Contrary to the findings of the court below, a month-to-month tenancy did not exist between the parties. In addition, upon the record before us, there was no showing that plaintiff requested that the apartment be painted or the rug cleaned, and there was no proof establishing that she ever agreed to pay for said work.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: February 06, 2006