Appeal from a final judgment of the Justice Court of the Village of Walden, Orange County (Raynard A. Ozman, J.), entered May 21, 2008. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $5,354.

ORDERED that the final judgment is modified by reducing the monetary award to the sum of $4,579; as so modified, the final judgment is affirmed, without costs.

In this nonpayment proceeding, the petition seeks, in addition to unpaid rent, charges for painting, cleaning and re-letting the apartment, all of which the lease designated as additional rent. After a nonjury trial, the Justice Court found in favor of landlord, awarding it possession and the sum of $5,354. On appeal, tenants argue that the final judgment should not have included the sum of $775, representing the painting, cleaning and re-letting charges. We agree.

It is undisputed that, at the time of the petition, and indeed at the time of the trial, the expenses at issue had not yet been incurred. Thus, even if the charges are considered "rent," that rent was not yet "due" and so could not be included in the final judgment (see RPAPL 741 [5]; Ross Realty v V & A Fabricators, Inc., 42 AD3d 246 [2007]). In any event, we note that landlord failed to provide any proof of the reasonableness of those charges at trial. Instead, landlord submitted such proof only by a post-trial affidavit.

Accordingly, the final judgment is modified by reducing the monetary award by $775 to the sum of $4,579.

Tanenbaum, J.P., LaCava and Iannacci, JJ., concur. [*2]
Decision Date: May 23, 2011