Decision After Trial

A trial was held before the undersigned on May 1, 2008 to determine whether the plaintiff was entitled to the return of his security deposit in the amount of $2,700.00. The Court's decision is as follows:

The plaintiff and defendant had a residential lease agreement whereby plaintiff/lessee would pay rent in the amount of twenty seven hundred dollars ($2,700.00) per month to defendant/lessor for the premises. A security deposit in the amount of twenty seven hundred dollars ($2,700.00) was also required and deposited with the lessor.

In or about March 2007, the defendant/lessor brought an eviction proceeding against plaintiff/lessee which was settled pursuant to a stipulation of settlement dated March 23, 2007, before the Hon. Andrew M. Engel. The stipulation of settlement dated March 23, 2007 granted petitioner/landlord a judgment of possession and issued a warrant of eviction, enforcement of which, would be stayed up to and including June 30, 2007, as long as respondent/lessor satisfied a number of conditions. One of the conditions, specifically, paragraph a) of the March 23, 2007 stipulation, was that respondent pay petitioner the sum of $2,300.00 by cash, money order, certified check or bank check on or before March 26, 2007. This payment of $2,300.00 was to be in full satisfaction of rent arrears in the amount of $8,100.00 owed for January 2007 - March 2007. It is undisputed that the payment was not made by March 26, 2007, but was made approximately two (2) weeks late. Upon an affidavit of non-compliance, since the payment was not made on time pursuant to the March 23, 2007 stipulation, petitioner was awarded a warrant of eviction and judgment of possession, together with a monetary award in the amount of $8,100.00.

On or about May 16, 2007, the Sheriffs arrived at the premises to effectuate the eviction. Respondent obtained a stay of the eviction via Order to Show Cause. The parties then entered into a stipulation dated May 31, 2007 before the Hon. Scott Fairgrieve. The May 31, 2007 [*2]stipulation among other things, provided the judgment of possession and warrant of eviction previously entered by the Court, would remain in effect. However, it was again agreed that execution of the warrant be stayed up to and including June 30, 2007. There was insufficient evidence at trial to suggest that the plaintiff/tenant in the instant action did not vacate by June 30, 2007.

Plaintiff now brings the instant action for the return of the security deposit. It should be noted at the time of trial that an income execution was in effect for the $8,100.00 judgment that defendant/landlord was awarded against the plaintiff, when plaintiff failed to make a timely payment pursuant to the March 23, 2007 stipulation. At the time of trial there was $5,800.00 still due and owing on the judgment.

Plaintiff argues he is entitled to the full return of the $2,700.00 security deposit. Defendant argues that he should be allowed to deduct from the security deposit, the costs incurred for the eviction which plaintiff had stayed. The defendant produced receipts for $1,900.00 for a storage facility for plaintiff's belongings, $400.00 for a locksmith to change the locks and $123.00 of which $75.00 was refunded by the Sheriff's since the eviction was never completed. As such, defendants argue they are entitled to a set off in the amount of $2,348.00 from plaintiff's security deposit.

In certain situations, the landlord may be entitled to offset against a security deposit. Generally, when there is a written lease, the document will outline specific conditions under which the landlord is entitled to retain all or part of the security funds. See Daniel Finkelstein and Lucas A. Ferrara, Landlord and Tenant Practice in New York, §7.24 (2002). Paragraph 5 of the parties lease agreement states:

"On execution of this lease, Lessee deposits with Lessor twenty seven hundred dollars ($2700), receipt of which is acknowledged by Lessor, as security for the faithful performance by Lessee of the terms hereof, to be returned to Lessee, without interest, except where required by law, on the full and faithful performance by him of the provisions hereof."

Thus, the lease does not specifically state that costs and fees associated with an eviction proceeding shall be deducted from the security deposit. Therefore, since the landlord has failed to expressly reserve a right to recoup fees, costs and expenses in connection with the eviction, the landlord has waived that right. (See Benzev v. Bush, 9/24/2003 N.Y.L.J. 17, [col. 2] citing Sacchetti v. Rosen, 2001 NY Slip Op 40306U, and Harmir Realty Co. v. Tesa, 2003 NY Slip Op, 500150).

The Court also finds it of importance that in the May 31, 2007 stipulation, the landlord reserved the right to collect "reimbursement of all costs incurred in the Sheriff's eviction", if the tenant, at that time, respondent, did not vacate the premises by June 30, 2007. (See, Paragraph 4 of the May 31, 2007 stipulation). As indicated above, the record does not support a finding that the plaintiff did not vacate by June 30, 2007, and the Court finds no other provision wherein the landlord reserved such a right to collect eviction fees. Consequently, the landlord is not entitled to such fees in the instant matter.

Accordingly, the $2,700.00 security deposit shall be applied to the remaining $8,100.00 judgment that plaintiff owes to defendant.

This constitutes the decision and order of the Court. [*3]

Ordered:

District Court Judge

Dated: May 15, 2008

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