Appeal from a judgment of the Justice Court of the Town of Cortlandt, Westchester County (Gerald M. Klein, J.), entered November 20, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,840.24.

Judgment modified by reducing the amount of the award in favor of plaintiff to the principal sum of $1,540.24; as so modified, affirmed without costs.

In this small claims action, plaintiff, defendant's former tenant, claimed that he was owed a refund in the amount of $1,540.24 for payment of utility bills in excess of a cap of $100 per month set forth in the parties' original lease agreement. Defendant failed to establish that there was any enforceable modification of that agreement, or that plaintiff's payment of the full utility bills was a voluntary "gift," unconnected to the lease agreement. Thus, the trial court properly determined that plaintiff overpaid monies due on the lease. However, the trial court's award of an amount greater than the amount sought by plaintiff, based upon an implicit finding that the cap on utility costs decreased to $75 per month for the 2005-2006 lease extension, is not supported by the evidence. The amount initially sought by plaintiff was based upon a $100 monthly cap, and both parties' testimony indicated that it was their intent to retain that $100 cap. Accordingly, substantial justice requires that the award in favor of plaintiff be reduced to $1,540.24, representing an award based upon a $100 monthly cap on utility costs (UJCA 1807; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: March 25, 2008