[*1]
Wicklund v Mukhtyar
2017 NY Slip Op 50789(U)
Decided on June 8, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JAMES V. BRANDS, JJ
2015-2057 W C

Janine Wicklund, Appellant,

against

Usha Mukhtyar, Respondent.


Janine Wicklund, appellant pro se. Matthew J. Costa, Esq., for respondent (no brief filed).

Appeal from a judgment of the City Court of New Rochelle, Westchester County (Susan I. Kettner, J.), entered December 17, 2014. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a judgment in favor of plaintiff in the principal sum of $3,600.

In this small claims action, plaintiff seeks the return of her $3,600 security deposit from defendant, her former landlord. Plaintiff contends that any damage to the premises was the result of ordinary wear and tear, which defendant disputes.

In a small claims action, appellate review is limited to determining whether substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

A tenant's security deposit is the property of the person making the deposit, and must be held in trust by the landlord (see General Obligations Law § 7-103) and returned at the tenancy's [*2]conclusion, absent proof that the tenant caused damage beyond that attributable to ordinary wear and tear (see Mazzarelli v Moniaci, 21 Misc 3d 129[A], 2008 NY Slip Op 51967[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Upon a review of the record, we find that defendant did not establish, by a preponderance of the evidence, that plaintiff had caused any damage beyond normal wear and tear. Plaintiff, therefore, is entitled to the return of her $3,600 security deposit.

Accordingly, the judgment is reversed and the matter is remitted to the City Court for the entry of a judgment in favor of plaintiff in the principal sum of $3,600.

Marano, P.J., Tolbert and Brands, JJ., concur.


ENTER:


Paul Kenny


Chief Clerk


Decision Date: June 08, 2017