The decedent, Judith A. Jaffe, died testate a resident of Sullivan County on March 31, 2008. On June 18, 2008 the Surrogate Court issued a Decree Granting Probate and named the decedent's daughter, Nina Jaffe Executrix of her mother's estate.

On November 17, 2008, the claimant, Jacques Gulekjian, MD, filed a claim against the Estate. The claimant was the owner of premises he rented to the decedent located at 6 Lakeview Court, Rock Hill, New York. The claimant seeks the sum of $58,300.00 for work, labor, services and materials in order to restore the property which was damaged during the tenancy of the decedent.

On August 2, 2009, the Executrix filed a petition pursuant to Surrogate Court Procedure [*2]Act § 1809 requesting citation be issued to the claimant to show cause why his claim should not be disallowed.

On September 3, 2009, Surrogate Court issued the requested citation returnable October 22, 2009. The claimant served an Answer on or about September 29, 2009 and alleged a general denial. A hearing was held on September 21, 2010.

The claimant initially sought $58,300.00 in damages he allegedly sustained to the townhouse he rented to the decedent from 1994 to 2008. At the hearing, the claimant maintains after discovery and the completion of the repairs to the property, his damages amount to $17,552.63.

The claimant purchased the newly constructed townhouse in 1986 and resided at the property until he rented it to decedent Judith Jaffe in 1994. The parties signed a lease on July 1, 1994 which required a monthly payment of $725.00 and a security deposit of $1,450.00. Judith Jaffe resided at the property for approximately twelve years until her death in 2008.

The claimant alleges when he rented the house there were parquet floors throughout the home with the exception of the basement, baths and kitchen. The claimant claims the tenant carpeted the living room, bedrooms, stairs and hallways. The claimant contends upon taking possession in May 2008, the carpeting was filthy and stained by urine. When the carpeting was removed, the claimant alleges the parquet floors were ruined as they were wet from water and pet urine. The claimant alleges some of the tiles in the kitchen and bath were cracked and broken. The claimant contends a kitchen cabinet was missing a drawer and the counter top was chipped and extremely worn. The claimant avers the walls had nail holes in them and were unevenly plastered. The claimant alleges he had to replace the washer and dryer, the garbage disposal, and the dish washer as they did not work. The claimant replaced the refrigerator as it was dirty and broken. The claimant stated the damages were not deliberate. The claimant admits he never insisted on inspecting the property each year he renewed the lease.

The repairs made to the home include six new appliances, new tile floors in the kitchen, bath and basement, new kitchen countertops and repairs to the walls in the house and garage. The claimant alleges he had to replace all of the parquet floors because they could not be cleaned or sanded. The claimant contends the driveway was not in good condition and he had to repair it.

The claimant admits he did not make any repairs to the property for the eight years he lived at the property (1986-1994) or during the twelve years the deceased resided there (1994-2008). (see, Transcript pgs. 48, 65)

At the hearing, the claimant offered a breakdown of his damages which was admitted into evidence as exhibit 3:

1. Driveway repairs$2,310.00 [*3]

2. Kitchen countertop, labor material$ 1,863.00

3. Parquet floors entire house$ 2,892.38

Labor approximately$ 2,500.00

4. Kitchen - replace missing cabinet$61.75

5. Kitchen -resand/stain cabinets$400.00

6. Floor tiles$955.50

7. Walls, repair holes and damages

Labor and material approximately

$ 3,500.00

8. Replace entry door lock$120.00

9. Six appliances replaced at Cost

of $75 each by tenant per lease

$450.00

Total Damages$17,552.63

The claimant alleged he has only one receipt for labor costs attributable to the repair and renovation of the townhouse. The claimant claims he paid cash to laborers and kept no ledger to detail whom he paid. With the exception of paying Mr. Akers $1,400.00, the claimant has no record of labor costs actually paid for the repair of the property.

The estate maintains it had the property cleaned by a professional cleaning company in April 2008. The owner of the company, Mr. Sewell, testified that the parquet floors could be cleaned and it was not necessary to replace the flooring. Mr. Sewell claims he had refinished parquet floors in the past and he was of the opinion that the floors could have been sanded and refinished. Mr. Sewell claims the home was thoroughly cleaned and he disagrees with the claimant in regard to the condition of the home after Ms. Jaffe died.

Proof of claims and defenses against them must be carried out in accordance with the general rules of evidence. In re Harden's Estate, 249 AD 762 (2nd Dept. 1936). The burden of proving the claim rests on the creditor. In re Schultz' Estate, 18 Misc 2d 1012 (1959). A claim against a decedent's estate need only be established by a fair preponderance of the evidence. McKeon v. Van Slyck, 223 NY 392 (1918).

However, the quality of the evidence required is of a high degree because the death of the debtor and her inability to testify requires the proof to be clear and convincing and the claimant must establish the claim in every essential detail. In re Singer's Estate, 16 Misc 2d 657 (1959).

Claims against estates are looked upon with suspicion and are not sustained unless the evidence is very satisfactory. In re McNally's Estate, 54 AD2d 1103 (4th Dept. 1976). Substantial proof is required where a claim has not been advanced until the death of the decedent. Maisenhelder v. Crispell, 105 AD 219 (3rd Dept. 1905).

After a review of the facts and the exhibits and the testimony of the witnesses, this Court finds the claimant has failed to demonstrate from the evidence presented that he is entitled to the [*4]majority of the costs outlined in his revised claim. The claimant testified that he failed to make any repairs during the time he resided in the home from 1986 until 1994. The claimant further stated that he never made any repairs or updates to the townhouse for the fourteen years the decedent resided there (1994 to 2008). Since the house was twenty-two years old when the decedent died, normal wear and tear should have been expected by the owner.

The claimant has raised a question of fact as to whether or not the parquet floors were ruined by a combination of urine and water. Mr. Akers testified that the floors were ruined and could not be repaired. Mr. Sewell testified that the floors could be sanded and repaired. Based upon the proof offered, the Court hereby awards the sum of $2,892.38 for the materials to replace the parquet floors. In addition, the claimant is entitled to $61.75 for the replacement of a kitchen cabinet drawer.

The claimant has failed to offer any proof that the tenant damaged the premises. The condition of the premises after twenty-two years reflects normal wear and tear and the lack of any regular updates or maintenance. The claimant failed to offer any proof that the tenant was responsible for the repairs to the driveway, the kitchen cabinets and countertop or the cost of six new appliances. The claimant has not offered any significant proof relating to repairs to the walls or the cost to replace a door lock. The claimant decided to replace the tile floorings in the bath and kitchen and install tile in the basement which was previously carpeted.

The claimant contends he paid all laborers in cash but is not certain how much he paid. The claimant cannot seek payment for labor when he has no receipts, cancelled checks or a payment ledger. The claimant has not met his burden of proof by clear and convincing evidence.

After twenty-two years, the renovations and updates made to the home should not be charged to the decedent when the claimant admits he never made a single repair to the property since 1986. "In determining the validity of a claim presented against the estate of a decedent, it is for the court to take into consideration all of the facts and circumstances, such as the relation of the parties, the nature of the claim presented, the financial conditions, etc., in arriving at a conclusion." In re Mulderig's Estate, 196 Misc. 915 (1949).

Based upon the above, it is

ORDERED, that the Executrix's petition is granted to the extent that the claimant is only allowed the costs for parquet flooring in the amount of $2,892.38 and the cost of the replacement of the kitchen drawer for $61.75, and it is further

ORDERED, that decedent's estate is entitled to a credit of the security deposit held by the claimant in the amount of$ 1,450.00.

This shall constitute the Decision and Order of this Court. [*5]

Dated: April 26, 2011

Monticello, New York

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate