DECISION AFTER TRIAL

The plaintiff, Christopher D. Skurka, hereinafter referred to as the "tenant", is suing for the return of his security deposit in the amount of $2,000, with interest from May 2008, for a total of $3,200. The tenant claims that he complied with the landlord's notice to vacate the premises by vacating the premises in the second week of April 2008. The tenant states that the lease agreement ended in 1997. He also states that he continued his tenancy on a month-to-[*2]month basis. The tenant alleges he received a letter to vacate the premises by May 9, 2008, from the landlords if he did not agree to sign a new lease.

The defendants, Ahmed and Lamiaa Elkoulily, hereinafter referred to as the "landlords", counterclaim against the tenant for past rent, with interest and damages to the premises in the amount of $5,000.

The landlords also commenced a third party action against Jamie Skurka, the tenant's brother, alleging that he was also a tenant and therefore liable for rent and damages. The third party defendant alleges the action should be dismissed, claiming he was not a tenant.

The landlords allege that the tenants failed to notify them of when they were vacating the premises, and therefore relied on payment of rent. The landlords further allege that the security deposit was used to make repairs for damages incurred to the premises by the tenant.

Based on the credible evidence presented at trial, the court determines the following:

The tenant rented a chiropractic office located at 357 Broadway in Amityville, New York, hereinafter referred to as "premises". The tenant's lease, originally under the name of Skurka Chiropractic, d/b/a Christopher Skurka expired in 1997. After the lease expired, the tenant became a holdover tenant on a month-to-month basis with rent in the amount of $2,000 a month.

In 2007, the landlords purchased the property. After transferring ownership, the parties continued the plaintiff's lease on a month-to-month basis.

On December 11, 2007, the landlord offered the tenant a five-year lease. The parties agreed to re-negotiate a new lease, but could not reach an agreement.

On April 9, 2008, the landlords sent the tenant a letter stating that if they did not enter into a new lease within seven days of the letter, that the letter should serve as a final notice to evict the premises in thirty days.

The landlords acknowledged having received the security deposit from the prior owner in the amount of $2,000.

The tenant argues he followed the directives to vacate the premises, and did so a week after receiving the letter. The tenant testified that they did not advise the landlords that they were vacating the premises. The tenant testified that he removed all of his possessions from the suite and cleaned the premises thoroughly. He also alleges that he made repairs to the walls, but admitted to usual wear and tear.

Based on the testimony, there was no final inspection or walkthrough, rather the tenant left the keys on the counter in the premises and locked the door upon exiting the premises.

The landlords testified that they made several attempts to contact the tenant via telephone messages and mail. The tenant did not return their phone calls. The landlord discovered that the premises was vacant in June, when the maintenance office notified them it was vacant. The landlords allege substantial damages to the premises and litter inside the suite.

On June 5, 2008, the landlords corresponded with the tenant regarding past rent for the previous two months and a request for a prompt response over the issue regarding the lease's renewal.

In support of their claim for damages, the landlords submit a Home Depot receipt, dated March 13, 2011, to show expenses for the repairs, totaling $1,166.63. In addition, the landlords claim there was a $300 fee for painting materials and a $500 fee for the labor to paint the suite.

As to the third party claim, the plaintiff Jamie Skurka, claims that he should not be held [*3]liable for th rent, claiming Christopher Skurka, is the lessee of the property. Jamie Skurka alleges that Christopher Skurka is liable for all rents. Jamie Skurka testified that Christopher Skurka is the sole owner of the business, with Jamie Skurka having no owning interest. Jamie Skurka states that at most, he simply sublet the premises from Christopher Skurka, and therefore cannot be held responsible to the landlords.

NYRPL �232-b states that:

"A monthly tenancy from month to month of any lands or buildings located outside of the city of New York may be terminated by the landlord or the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate; provided, however, that no notification shall be necessary to terminate tenancy for a definite term."

Actual surrender is traditionally effected by vacating the premises and returning the keys to the landlord. Estate of Fishel v. Varonelli, Ltd., 119 Misc 2d 625.

In the instant case, the lease expired in 1997 and a month to month tenancy was created as a result of the landlords acceptance of rent payments after the expiration of the lease. NYRPL �232-c. The tenant had paid rent through April 30, 2008. Although the tenant vacated mid April, he did not advise the landlords that he was vacating the premises nor did he make an effort to return the keys. He also did not return the landlords messages.

This Court finds although the tenants vacated the premises prior to the end of the month, they failed to notify the landlords that they vacated the premises. The Court finds that since the tenant failed to provide adequate notice to the landlords that they were vacating the premises and failed to return the keys to the premises, they should be held liable for May rent. However, since the landlords insisted that the defendants vacate the premises prior to May 9, 2008, all claims past that date are waived. Garfield v. Howard, 2002 WL 31107996 (NY Sup. App. Term), Smith v. Woodson, 2011 WL 1878795 (NY Sup. App. Term)

Furthermore, this Court finds that based on the credible evidence, the landlords have failed to prove their case on the counterclaim. The landlords purchased the property in "as is" condition, without ever having viewed the inside of the property or without receiving the keys to the premises.

The third-party defendant's motion to dismiss the claim against, Jamie Skurka is granted. The plaintiffs have failed to provide credible evidence in support of their case.

Based on the credible evidence and in the interest of substantial justice, this Court finds for the plaintiff in the amount of $2,000. This Court further finds for the defendant on the counterclaim in the amount of $290.32, representing nine days rent in May. The third-party complaint is dismissed.

The foregoing constitutes the decision and order of this Court.

Hon. Helen Voutsinas

District Court Judge

Dated: August 5, 2011

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