City Court of Middletown, June 21, 2018

Franklin Camacho, claimant pro se.

Yafreisy Martinez Camacho, claimant pro se.

Michael Paduch, defendant pro se.

This is a small claims action by Franklin Camacho and Yafreisy Martinez Camacho against Michael Paduch in which the claimants are seeking from the defendant the sum of $1,300 as the balance due to them from a $1,800 security deposit the claimants paid to the defendant in connection with the claimants' rental of real property known as 277 Highland Avenue, apartment 2, Middletown, New York. The defendant owns the property.

The claimants submitted their application to file small claims on April 13, 2018; the court mailed a notice of this action to the defendant on April 27, 2018, setting June 15, 2018, as the date for the trial. All parties appeared in court on June 15, 2018, for the trial. Both of the claimants and the defendant testified, all under oath and all credibly, and submitted documentary evidence for the court's consideration.

The credible evidence at the trial showed the following:

The claimants, in March 2017, moved into the property pursuant to a lease with the defendant (claimants' exhibit 1, in evidence, without objection); the lease allowed the claimants to occupy the property from March 1, 2017, to February 28, 2018, at a monthly rental of $1,200. Among other things, the lease stated the claimants' security deposit would only be returned upon a written 30-day notice to the defendant and if the property was left in "move-in" condition (para 1); the deposit could not be used for the last month's rent or the claimants' would "forfiet [sic] your remaining security deposit" (para 2); any damage not repaired would be taken from the deposit (para 5); the claimants would be responsible for any non-reported "mechanical or physical disorders" (para 6); the property "must {**60 Misc 3d at 839}be kept in move-in condition, free from garbage, litter etc." (para 7); and if the claimants left before the end of the term, the claimants would "forfiet [sic] your security deposit" (para 11).

The claimants occupied the property until February 26, 2018, and the defendant admitted the rent was paid in full through February 2018; claimants' exhibit 3, in evidence [*2]without objection, was a receipt for payment of February's rent.^[FN1] Mr. Camacho, in January 2018, verbally advised the defendant the claimants would be vacating the property at the end of February 2018.^[FN2] On February 21, 2018, Mrs. Camacho and the defendant signed a document entitled "Security return" (defendant's exhibit A, in evidence, without objection) by which the defendant agreed to release $500 of the security deposit to Mrs. Camacho to help her secure a new place to live. The agreement required Mrs. Camacho to acknowledge she was

"still responsible in full for any cleaning, damages Etc. that needs to be done after I have removed my belongings. I am fully aware that I may incure [sic] deductions from the remaining portion of security for repairs, cleaning or damages. The remaining portion of security will be returned after cleaning and repairs are completed with the 30 day period following my departure."^[FN3]

The claimants fully vacated the property on February 26, 2018. The claimants noted the property was left in clean condition after they vacated and produced 13 pictures taken by Mrs. Camacho on February 26, 2018, showing the condition of the property at that time (collectively claimants' exhibit 2, in evidence, without objection). The pictures offered by the claimants in exhibit 2 showed the property generally to be in a clean and good condition.

At or around the time the claimants vacated the property, the defendant gave the claimants another document entitled {**60 Misc 3d at 840}"Return of Security" (the defendant did not have a copy of that document but noted the claimants had it; the claimants had taken a picture of it with their cell phone and, while in court, showed the document on the phone, without objection from the defendant). In that document's original form, the defendant indicated he would return to the claimants $1,075 out of the $1,800 security deposit (and the $1,075 included the $500 advance on the security deposit the defendant gave Mrs. Camacho). The claimants did not sign the form.

The defendant did not agree the claimants left the property in good condition. Among other things, he claimed there was grease on, under and in the stove; the rugs had different hues due to stains caused by the claimants; there was a lift in the vinyl covering on the porch; window blinds were broken; the pantry area, refrigerator, shower, and bathtub were not cleaned; some of the doors were damaged; the removal of wallpaper installed by the claimants caused damage to some of the walls; and locks were missing on some windows. The defendant offered 17 pictures, collectively marked and accepted into evidence, without objection, as exhibit C, showing the property condition on February 27, 2018. (The pictures did show items such as stains in the carpeting; vestiges of paper on at least one wall after removal of wallpaper; oven grease; lifted and stained vinyl; and dirt in the kitchen pantry area.) The defendant also claimed he had a new tenant who was willing to move into the property on March 1, 2018, but couldn't due to the condition of the property.

After the claimants vacated the property, the defendant modified the "Return of Security" document to include the alleged damages noted above and general cleaning costs, totaling $575 (the modified "Return of Security" document was accepted into evidence, without objection, as defendant's exhibit B). On that document was this notation: "My crew spent 12 hrs. cleaning & repairing damages." Exhibit B also included $500 as "security repay" along with the defendant's claim for lost rent in the amount of $600 because the new tenant didn't move in until March 15, 2018, because of the conditions at the property, according to the defendant. Defendant's claim for "security repay," cleaning and damages thus totaled[*3]$1,675. The revised "Return of Security" document then noted the claimants should not {**60 Misc 3d at 841}receive any portion of their security deposit back but actually owed the defendant a net amount of $275.^[FN4]

The claimants disputed the defendant's assertion that the property was left in an unclean and unacceptable condition and claimed some of the doors and windows were broken prior to their occupying the property. The claimants did not sign either the original "Return of Security" document or the revised one (defendant's exhibit B), even though there is a place at the bottom for the claimants to sign stating "I have reviewed and agree with the amount of security returned."

Although the defendant claimed that he expended $575 for cleaning and damages and lost $600 rent for the first two weeks of March 2018, the defendant failed to submit any paid and itemized bills for services, repairs or lost rent, and he failed to submit any itemized estimates for services or repairs.

In considering a tenant's action for the return of the security deposit paid to the landlord, one first must consider the applicable statute. Article 7 of the General Obligations Law addresses obligations of parties who hold property received as security, and title 1 of that article specifically addresses security deposits for the rental of real property. In particular, section 7-103 (1) of the General Obligations Law states as follows:

"Whenever money shall be deposited or advanced on a contract or license agreement for the use or rental of real property as security for performance of the contract or agreement or to be applied to payments upon such contract or agreement when due, such money, with interest accruing thereon, if any, until repaid or so applied, shall continue to be the money of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same" (emphasis supplied).

{**60 Misc 3d at 842}The meaning of section 7-103 (1) couldn't be more clear: the security deposit is the tenant's, not the landlord's, money. The landlord is merely holding the deposit "in trust" for the tenant during the tenant's occupancy of the landlord's property and must be returned at the end of the tenancy. (Wicklund v Mukhtyar, 55 Misc 3d 152[A], 2017 NY Slip Op 50789[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Kamara v Pavia, 11 Misc 3d 1051[A], 2006 NY Slip Op 50172[U], *3 [2006].)

This doesn't mean, however, that the tenant is always entitled to the return of the entire amount of the security deposit. The entire security deposit must be returned to the tenant at the end of the tenant's occupancy^[FN5] unless it can be proved that the tenant's occupancy caused damage beyond what would be considered normal or ordinary wear and tear. (James Bohl, CPA, P.C. v Poffenbarger, 59 Misc 3d 128[A], 2018 NY Slip Op 50405[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Wicklund v Mukhtyar, 55 Misc 3d 152[A], 2017 NY Slip Op 50789[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Mazzarelli v Moniaci, 21 Misc 3d 129[A], 2008 NY Slip Op 51967[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; Hamilton v Bosko, 54 Misc 3d 386, 388 [Cohoes [*4]City Ct 2016].) If the landlord can prove by competent evidence the cost of repairing or replacing the "extraordinary damage caused by the tenant" (Hamilton at 388), then the landlord can retain that amount from the security deposit. (Id.; see also Bohl, 2018 NY Slip Op 50405[U], *2; Mazzarelli, 2008 NY Slip Op 51967[U], *1.)

The above rules can be restated this way: if the tenant leaves the premises without any damage more than normal or ordinary wear and tear, the tenant is entitled to receive back the entire security deposit. If the tenant causes more than normal or ordinary wear and tear damage to the property (as the Hamilton court labeled it, "extraordinary damage"), then the landlord may retain the security deposit to the extent the cost to repair the damage is proved by competent evidence.

The court in Hamilton (54 Misc 3d at 388) laid out a framework to analyze "the elements and burdens imposed upon the tenant and the landlord under General Obligations Law § 7-103 (1)." First,

"a tenant must prove the following elements: (1) the tenant paid a security deposit to the landlord,{**60 Misc 3d at 843} (2) the tenant caused no damage to the apartment beyond ordinary wear and tear, (3) the tenant made a demand for the return of the security deposit,^[FN6] and (4) the landlord refused to return the security deposit." (Id.)

Once the tenant has proved those elements, the tenant is entitled to the entire security deposit unless the landlord proves "(1) . . . the tenant caused damaged [sic] to the property beyond ordinary wear and tear and (2) the landlord must prove what cost was incurred (or is estimated to incur) in order to remediate the extraordinary damage caused by the tenant." (Id.)

Following the Hamilton analysis, the next step in this action is to analyze the four elements to be proved by the claimants in light of the facts; if the claimants met their burden, then it's necessary to determine whether the defendant satisfied his burden to prove the existence of "extraordinary damage" and the cost incurred by the defendant to remediate the damage as shown by itemized bills or invoices marked paid or by two itemized estimates for services or repairs (UCCA 1804).

With respect to the claimants' burden to prove the four elements, the credible evidence showed the following: (1) there is no dispute the claimants paid the defendant a security deposit of $1,800 (lease, claimants' exhibit 1; testimony of claimants and defendant); (2) based on the testimony of the claimants and a review of the claimants' pictures (claimants' exhibit 2), it is apparent the claimants (particularly Mrs. Camacho) cleaned the property prior to vacating it and took care in doing so (while the property was not spotless, it is apparent from the pictures that the claimants left it in good condition, subject to some items discussed below); (3) although it is not clear the claimants would have to demand the return of the security deposit, the testimony of the parties showed the claimants and the defendant on a number of occasions discussed the return of the security deposit in whole or in part (and defendant's exhibits A and B would not have been generated if there were no demand for a return of the security deposit and no agreement by the defendant to consider the return of the security{**60 Misc 3d at 844} deposit); and (4) the evidence showed the defendant returned $500 of the security deposit but is now demanding the return of that amount, plus more (defendant's exhibit B; defendant's testimony).

The claimants satisfied the four Hamilton elements and established a prima facie right to the full security deposit. The analysis now turns to whether the defendant met his two-fold Hamilton burden.

The first element the defendant would have to prove is that the claimants caused "extraordinary damage" to the property; put another way, the defendant would have to prove the condition of the property after the claimants' occupancy and vacancy exhibited more than just [*5]ordinary wear and tear.

Prior cases in New York offer some guidance as to what constitutes ordinary wear and tear, and what does not. Repairing damage to bathroom tiles was considered ordinary wear and tear. (Strafaci v Meadowbrook Pointe Dev. Corp., 33 Misc 3d 142[A], 2011 NY Slip Op 52208[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2011].) Cleanup that included paying $249.50 for carpet cleaning, $100 for window washing and $2,500 for painting also constituted ordinary wear and tear. (Bohl, 2018 NY Slip Op 50405[U], *1 ["Although (the landlord) submitted a bill from the contractor marked paid (for $2,849.50), the bill merely states window cleaning, painting and spackling, and carpet cleaning, which, without more, is insufficient to establish a condition going beyond ordinary wear and tear"].) Garbage left under an oven, stains in the tub and sink, leftover food in the refrigerator, dog hair throughout the apartment, garbage on the back porch and dirty windows and ceiling fans also isn't more than ordinary wear and tear. (Hamilton at 387, 389 ["Thorough cleaning is required when a tenant moves and that cleaning is the responsibility of the landlord. . . . The landlord must anticipate that when the tenancy ends some of that money he collected will have to be used to make the apartment ready for the next tenant. Candy wrappers under the stove, dog hair on the floor, stains in the sink and dust on ceiling fans is nothing abnormal and, even according to the landlord's witness, it was nothing that was not remedied with a day's worth of cleaning"].)

There are cases that have found "extraordinary damage," or conditions beyond merely ordinary wear and tear, implying even that such conditions might impact and violate the warranty of habitability. For example, in McCormick v Moran (182{**60 Misc 3d at 845} Misc 2d 568 [Watertown City Ct 1999]), the landlord sought damages in the amount of $455.64 for a general cleaning of the apartment (floors, walls, windows, woodwork and carpeting) due to smoke residue left by the tenant's heavy smoking. As the court noted, "[t]he landlord testified that the basic reason such an extensive cleaning was required was due to the excessive smoking by the tenant's [sic] leaving a smelly residue of tobacco smoke through out the leasehold on the walls, woodwork, carpets and other surfaces." (Id. at 569.) The court observed further that the tenant's "conduct of excessive smoking while in the house caused the tobacco smoke residue to collect on various surfaces of the house creating an offensive odor and a potential health risk that may arise to others who may use the premises." (Id.) Additionally, the court stated that

"[w]hen the use of tobacco by a tenant causes such a pervasive coating of tobacco smoke residue on a leasehold's surfaces, this condition results in more than ordinary wear and tear to the premises because the residue must be removed to make the rooms habitable for the protection of the health of the next tenants—a condition which if it were not corrected . . . [could possibly subject] the landlord to a violation of the warranty of habitability under section 235-b (1) of the Real Property Law." (Id. at 570.)

In a case from the Rochester City Court, the court awarded $770 in damages to the landlord, consisting of a cost of $400 to prime and paint the apartment; $54 for cleaning; $100 to repair holes in the living room wall; $108 for garbage removal; and $108 to exterminate fleas. (Chili Venture LLC v Stahl, 54 Misc 3d 461 [Rochester City Ct 2016].) The court observed that the costs proved by the landlord were for damages beyond ordinary wear and tear; as the court stated, the landlord's "documents demonstrate that [the tenant's] apartment 'was a disaster' after she was evicted. Although the priming and painting charges appear to be excessive, additional work was necessary 'due to nicotine.' " (Id. at 468.)^[FN7]

Although the court in Hamilton denied recovery to the landlord for items such as garbage under a stove, stains in the{**60 Misc 3d at 846} sink and tub, food and garbage in the refrigerator and porch, [*6]and dog hair throughout the apartment, finding that those items were ordinary wear and tear, the court did find that physical damage (such as damage caused by the tenant's dog scratching and chewing several areas of moulding, as well as alterations to an electrical outlet) exceeded ordinary wear and tear. (Hamilton at 389.) However, because the landlord "failed to produce sufficient proof reflecting the reasonable cost of repairs in the form of paid receipts or two itemized estimates" as required by UCCA 1804, the court would have "to speculate as to the amount of the damages—no award can be made based on speculation." (Hamilton at 389.)

The Hamilton court's holding—even if damages beyond ordinary wear and tear may be shown, a landlord cannot recover the cost to repair or replace damaged items in the absence of proof that satisfies statutory requirements—is supported by decisions in other cases. (See e.g. Mazzarelli, 2008 NY Slip Op 51967[U], *1 [the landlord "failed to provide any evidence establishing the extent of the costs incurred to repair the alleged damage"; as a result, the court reversed the trial court's decision to dismiss the tenant's claim to the security deposit and awarded the total security deposit to the tenant]; Holmes v Worthen, 19 Misc 3d 33, 34 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] ["To the extent the damages complained of were not attributable to normal wear and tear, (the landlord) submitted no estimates or paid receipts at trial to prove the cost of his expenditures . . . and, therefore, he failed to prove the extent of his damages, if any." As a result, the court reversed the trial court's award of the security deposit to the landlord and directed it be returned to the tenant].)

In this case, the defendant, as noted above, claimed there was grease on, under and in the stove; the rugs had different hues due to stains caused by the claimants; there was a lift in the vinyl covering on the porch; window blinds were broken; the pantry area, refrigerator, shower, and bathtub were not cleaned; some of the doors were damaged; the removal of wallpaper installed by the claimants caused damage to some of the walls; and locks were missing on some windows. Based on the cases set forth above, the court finds that all the items listed above were examples of ordinary wear and tear, or if some of the items could constitute more than ordinary wear and tear (in other words, "extraordinary damage" caused to the property), the court finds the defendant did not satisfy his{**60 Misc 3d at 847} statutorily-imposed burden to prove the extent of the damages and the cost to repair them because the defendant did not submit paid receipts or two itemized estimates as required by UCCA 1804. Thus, the defendant did not satisfy the two-part Hamilton test and is not entitled to deduct any damages or cost of repairs from the security deposit.

The defendant also cannot withhold from the security deposit the amount of $600 he claims as lost rent because the property wasn't ready for occupancy by his new tenant until March 15, 2018. As noted above, the lease term with the claimants ended on February 28, 2018. The claimants vacated the property by that time (in fact, they vacated on Feb. 26, 2018), but it is unrealistic to expect to be able to have a new tenant move in the day after a previous tenant moves out. As the Hamilton court noted (54 Misc 3d at 389), "[t]horough cleaning is required when a tenant moves and that cleaning is the responsibility of the landlord. . . . The landlord must anticipate that when the tenancy ends some of that money he collected will have to be used to make the apartment ready for the next tenant." Furthermore, as one Court noted in upholding a trial court's dismissal of a landlord's counterclaim for rent delay damages, "[i]t is well settled that lost rent is not recoverable as damages for breach of a lease covenant requiring a tenant to keep the premises in good repair." (Building Serv. Local 32B-J Pension Fund v 101 L.P., 115 AD3d 469, 470 [1st Dept 2014].)

Certain remaining items need to be addressed. The defendant pointed out several paragraphs of the lease (claimants' exhibit 1) addressing the return of the security deposit. For example, the lease stated the claimants' security deposit would only be returned upon a written 30-day notice to the defendant and if the property was left in "move-in" condition (para 1); any damage not repaired would be taken from the deposit (para 5); the claimants would be responsible for any non-reported "mechanical or physical disorders" (para 6); the property "must be kept in move-in condition, free from garbage, litter etc." (para 7); and if the claimants left before the end of the term, the claimants would "forfiet [sic] your security deposit" (para 11). The court has already addressed whether the defendant could withhold from the security deposit amounts claimed for damages and determined the defendant could not. The issues remaining after the claimants vacated the property either were items of ordinary wear and tear, or if those issues went beyond{**60 Misc 3d at 848} ordinary wear and tear, the defendant did not satisfactorily (and as required by the UCCA) prove the amount and cost of repairs and/or damages and thus did not satisfactorily prove noncompliance with paragraph 1 (with its reference to leaving the property in "move-in" condition) or paragraphs 5, 6, and 7. With respect to paragraph 11, the claimants vacated the property on February 26, 2018, but paid the rent through February 28, 2018, so the claimants did not violate paragraph 11.^[FN8]

Finally, with respect to that portion of paragraph 1 of the lease requiring a written 30-day notice to the defendant for the security deposit to be returned, the court finds that the defendant waived that requirement by preparing and presenting to the claimants both the "Security return" document (defendant's exhibit A) and the "Return of Security" document (defendant's exhibit B), and by releasing to Mrs. Camacho $500 of the security deposit prior to her vacating the property. Even if there were no waiver by the defendant of that portion of paragraph 1 of the lease, the court finds that portion of paragraph 1 of the lease to be contrary both to the terms of section 7-103 (1) of the General Obligations Law^[FN9] and to the public policy behind the language of section 7-103 (1) of the General Obligations Law. (See Wicklund; Kamara.) The Kamara court, in no uncertain terms, made it clear that a landlord, as a trustee of any security deposit he or she receives, has an absolute duty to return the security deposit when required to do so or to account for any expenditures from it when that court stated:

"[The defendant's] apparent belief that he is automatically entitled to retain security deposits{**60 Misc 3d at 849} unless the depositor asks for its return is as disturbing as it is astounding. As a trustee of the security deposits he receives, it is [the defendant's] duty 'to know the source of the funds and to return them as otherwise appropriate to their source at the end of the lease term.' The fact that a depositor may not ask for the return of a security deposit does not obviate his legal obligation to return it to the depositor when required to do so, or to provide an accounting of his expenditures to the depositor when he does not return the deposit." (Kamara, 2006 NY Slip Op 50172[U], *5 [citation omitted].)

In addition, General Obligations Law § 7-103 (3) states "[a]ny provision of such a contract or agreement [for the use or rental of real property] whereby a person who so deposits or advances money waives any provision of this section is absolutely void." The requirement that a tenant provide a landlord with written notice prior to the right to have a security deposit returned violates General Obligations Law § 7-103 (3) and the terms of and public policy behind General Obligations Law § 7-103 (1).

Because that portion of paragraph 1 of the lease violates both the terms of General Obligations Law § 7-103 (1) and (3) and the public policy behind General Obligations Law § 7-103 (1) and (3), I find that portion of [*7]the lease to be unconscionable and refuse to enforce it. (Real Property Law § 235-c [1].)

After hearing the testimony at the trial and reviewing all documentary evidence produced by the parties at the trial, based on the applicable laws governing this action, and following the reasoning behind various New York cases considering similar issues, it is ordered that the claimants recover from the defendant the sum of $1,300, representing the balance of the security deposit owed by the defendant to the claimants, without costs, and it is further ordered that judgment shall issue for the claimants against the defendant in the amount of $1,300.

"Whenever money shall be deposited or advanced on a contract or license agreement for the use or rental of real property as security for performance of the contract or agreement or to be applied to payments upon such contract or agreement when due, such money, with interest accruing thereon, if any, until repaid or so applied, shall continue to be the money of the person making such deposit or advance and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same." (General Obligations Law § 7-103 [1] [emphasis supplied].)