| Rao v Henry |
| 2014 NY Slip Op 51139(U) [44 Misc 3d 132(A)] |
| Decided on July 7, 2014 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the City Court of Long Beach, Nassau County (Frank DiKranis, J.), entered September 23, 2011. The judgment, after a nonjury trial, dismissed plaintiff's cause of action and awarded defendants the principal sum of $5,000 on their counterclaim.
ORDERED that the judgment is modified by vacating the dismissal of plaintiff's cause of action and providing that plaintiff is awarded the principal sum of $520 thereon, and by reducing the award to defendants upon their counterclaim to the principal sum of $4,800, resulting in a net judgment in defendants' favor in the principal sum of $4,280; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced two small claims actions to recover for property damage and half a month's rent, respectively, totaling, in all, the sum of $5,000. Defendants counterclaimed to recover their security deposit in the sum of $3,200, the portion of December's $3,200 rent which had been paid to plaintiff, medical expenses and attorney's fees. The City Court consolidated the two actions and, after a nonjury trial, dismissed plaintiff's causes of action and awarded defendants the principal sum of $5,000, without making any findings of fact or conclusions of law.
On appeal, plaintiff contends, among other things, that he should have been awarded damages and that defendants' counterclaim should have been dismissed.
Upon a review of the record, we find that the judgment did not render substantial justice between the parties in accordance with the rules and principles of substantive law (see UCCA 1804, 1807). Defendants' testimony established that defendants had damaged plaintiff's garage door and that the replacement cost thereof, plus labor, totaled $520. As plaintiff failed to prove, through itemized bills marked paid, the reasonable value and necessity of each of the remaining alleged repairs for which he claims defendants are liable (see UCCA 1804; McWilliams v Matthews, 38 Misc 3d 131[A], 2012 NY Slip Op 52415[U] [App Term, 9th & 10th Jud Dists 2012]), plaintiff is not entitled to recover these damages. Thus, plaintiff should have been awarded the principal sum of $520 on his cause of action for property damage.
With respect to defendants' counterclaim, defendants established that they are entitled to recover the full $3,200 security deposit that they had paid to plaintiff, as plaintiff is being awarded $520 for his property damage. Defendants further established that plaintiff had breached the warranty of habitability due to a serious mold condition and lack of heat at the premises, rendering the premises uninhabitable during the month of December. Consequently, we find that defendants are entitled to a 100 percent abatement of rent for that month. As the proof adduced at trial established that defendants had paid half of December's rent, they are entitled to recover the sum of $1,600 paid. However, defendants are not entitled to recover for medical expenses, since the evidence adduced at trial failed to establish that the conditions at the [*2]premises caused any illness. Furthermore, as the lease does not provide for the prevailing party to recover attorney's fees, defendants are not entitled to recover these fees. Consequently, the award to defendants of the principal sum of $5,000 on their counterclaim must be reduced to the principal sum of $4,800, and after awarding plaintiff the sum of $520, defendants are awarded the net principal sum of $4,280.
Iannacci, J.P., Marano and Garguilo, JJ., concur.