Appeal on the ground of inadequacy from a judgment of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered September 12, 2005. The judgment, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $1,476.88.

Judgment, insofar as appealed from, is modified by increasing the award in favor of plaintiff to the principal sum of $2,596.38; and as so modified, is affirmed without costs.

Plaintiff commenced the instant small claims action to recover from her former tenants use and occupancy (U&O), rents waived pursuant to a stipulation of settlement, and amounts paid for the repair of damage to the premises. Defendants counterclaimed, alleging that plaintiff had failed to provide proper repairs and to pay for utility bills.

The record indicates that in a holdover proceeding brought in the Kings County Civil Court (Index No. 82780/04), the parties entered into a stipulation of settlement wherein, in consideration of defendants' timely payment of U&O as set forth in the stipulation, and their timely surrender of possession of the premises on February 28, 2005, plaintiff agreed to waive $1,119.50 in rent/U&O which was owed to her by defendants. The stipulation further stated that should defendants fail to timely pay U&O or voluntarily surrender possession on or before February 28, 2005, plaintiff could seek recovery of all sums waived as well as any U&O owed through the date of eviction. The record establishes that defendants did not voluntarily surrender possession by February 28, 2005, and that a warrant of eviction was ultimately executed on April [*2]29, 2005.

In the instant action, plaintiff asserts that she is owed $1,289 as U&O for the month of April 2005 and $1,119.50 in rent/U&O which she had conditionally agreed to waive pursuant to the stipulation. She further alleges that she paid $5,000 for repairs due to damage to the premises which, she claims, defendants left in poor condition. At trial, plaintiff submitted into evidence, as proof of her property damage, various photographs of the premises, a repair invoice for $5,000 from a contractor, and a
$5,000 cancelled check. Defendants testified that during their occupancy, plaintiff failed to make repairs and failed to pay the heating bills.

After trial, the court awarded plaintiff the principal sum of $1,476.88, consisting of $1,289 for "rent for the month of April 2005" and $187.88 for "marshal's fees." Plaintiff's claim for the damage to the premises was rejected by the court based on the fact that the contractor's invoice did not indicate that the contractor was licensed, did not show that any sales taxes was charged, and was not sufficiently itemized. The court also dismissed defendants' counterclaim, based upon their failure to submit adequate documentation to support their allegations. Plaintiff appeals from the judgment on the ground of inadequacy. Defendants did not cross-appeal the dismissal of their counterclaim.

Plaintiff contends that the trial court erred in failing to award her any amounts for damage to the premises as well as the $1,119.50 for the rents conditionally waived in the stipulation of settlement. We agree that since defendants did not comply with the conditions of the waiver, plaintiff was entitled to recover the $1,119.50 which she had conditionally agreed to waive.

With respect to the denial of plaintiff's claim for damages to the premises, we agree with the court below that plaintiff failed to properly establish the "reasonable value and necessity" of the repairs which were done, since the contractor's bill which she produced was neither a sufficiently "itemized bill or invoice" nor was it "receipted or marked paid," as required by CCA 1804 (see Moriarity v Steve's Carpet, 1 Misc 3d 129[A], 2003 NY Slip Op 51572[U] [App Term, 9th & 10th Jud Dists]). Accordingly, in the absence of adequate proof, plaintiff is not entitled to recover for the alleged damage to the premises.

In view of the foregoing, we do not reach or address the other grounds relied upon by the court below for dismissing plaintiff's claim for damages.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 5, 2007