This is the decision following the bench trial of an action and counterclaim that arose from the rental of a triplex residence in a brownstone on the upper west side of Manhattan. Plaintiffs brought suit for the return of their security deposit, contending that the defendant commingled the deposit in violation of the General Obligations Law. The Moores further argue that the building did not have a proper certificate of occupancy under the Multiple Dwelling Law.

For its part, defendant alleges that the damage done to the apartment by the plaintiffs when they were in residence exceeded the amount of the security deposit, and also seek plaintiffs' share of the costs for the water and gas utilities. Each side requests attorneys' fees.

Shira White, the principal of Beautiful Spaces, lived on the ground and parlor floors of 615 West End Ave and rented out the upper three floors as a triplex (def exh A). Virginia and Charles Moore rented the unit for an 18-month period beginning January 1, 2015; the actual move-in date was January 9. On April 8, 2016, the lease was extended from July 1, 2016 through June 30, 2018. However, on February 12, 2018, the parties modified the lease to expire at the end of that month.^[FN1]

The security deposit, which represented three months' rent, initially was $40,500 and increased to $43,800 by the time the Moores vacated. Paragraph 6 of the rider to the lease [*2]provided that, except for normal wear and tear, the apartment should be returned in the same condition as when the tenants first moved in; if not, the landlord could keep all or part of the deposit to cover the damage. Paragraph 8 of the modification agreement provides that within 48 hours of vacating the apartment, there would be a walk-through to "inspect the apartment for damage."

The inspection took place on March 1, 2018 with Charles Moore, Shira White, her real estate agent, Fern Hammond, and White's son, Max Wiseltier. During the walk-through, Ms. White took 60 photos of the vacant unit in order to show damage to the floors (staining, gouging and pieces of parquet missing); stairway spindles and balustrades; doors and walls; fireplace tiles; and on the ceiling by a light fixture (def's exhs E1 through E60].

The Street Easy website that listed for rent Ms. White's triplex in 2014 posted color photographs that Ms. Hammond had taken (def exh G).^[FN2] Except for a brief period during the holidays leading into January of 2015, the space was empty between the time the photos were taken and the Moores began occupancy. There is no evidence that the holiday-period tenants caused any damage.

As for the condition of the apartment at that time, Hammond said it "had been painted, the floors had been redone. It was completely fixed up, ready for a new tenant." Paragraph 31 of the lease reads: "Space as-is. Tenant has inspected the Apartment and Building. Tenant states they are in good order and repair and takes the Apartment as-is except for latent defects." Moreover, the rider to the lease provides that the tenant, "must inform Landlord of any preexisting damage within two (2) days of occupancy" (¶14).

***

This trier of fact finds the 60 photos taken March 1, 2018 to be credible evidence of the damage that the Moores' tenancy proximately caused. Such is based on these photos, the before-photos taken in 2014 by Ms. Hammond for Street Easy and the credible testimony of White, Hammond and the expert called by defendant, David Porter. I am not otherwise persuaded by the photos taken by Ms. Moore in June of 2016.

Charles Moore, who was on the March 1 walk-through inspection when the photos were taken did not come forward to challenge what they showed or to state what he had seen. If there was something that supported his and his wife's position, Mr. Moore, should have so testified; not doing so, without an explanation therefor, entitles defendant to the inference that he did not have such information. Shira White's son was not called to the stand, but his testimony would have been cumulative and plaintiffs will not be granted an inference for Mr. Wiseltier. See DeVito v Feliciano, 22 NY3d 159.

Nor are plaintiffs entitled to an adverse inference from defendant's failure to produce the video that Wiseltier took on the walk-through.^[FN3] It was not, for example, of an accident in a [*3]building for which it is the only visual record—we have dozens of photos from March 1, 2018. Moreover, it was available, as indicated by the questioning of White by plaintiffs' counsel:

Q. If someone had gone on StreetEasy, Trulia or any other website where people would go looking to rent, buy, sell property, the video would be available to the public; is that correct?

A. I couldn't answer that question.

Q. After you listed the triplex in May of 2018, did you ever check to make sure that the video was live?

A. I saw the video in the Halstead website.

Q. So anyone who would have been interested in renting the triplex after May 1, 2018 would have been able to see it at least by going on the Halstead website?

A. Presumably.

Moore's argument that she viewed the triplex as an "old rental apartment" does not hold up. Two weeks before the November 24, 2014 signing of the lease, Virginia Moore had sent Fern Hammond an email, which read:

"As you know, my husband . . . and I felt very comfortable in your listing at 615 West End Avenue . . . and we would be so happy to be able to make 615 West End our home for the next several years." Moore added, "we hope [Shira White] will value the opportunity to secure quiet, long-term renters who will love and care for her beautiful house, and enable her to avoid future vacancies" (def exh N).

On that note, a few weeks later, an email from Ms. Moore to Shira White does not make it look like Virginia Moore believed that her family was stuck with a run-down residence that they would just have to endure for a while; it was on the color Moore wanted her daughter's bedroom painted: "Benjamin Moore No.1646, Lookout Point. It's a really light gray blue, almost a blue off white" (dated December 7, 2014, def exh M).

White testified that the Moores grilled in the apartment on numerous occasions, which made the building smell greasy, but also set off the smoke alarm. Ms. White told Ms. Moore not to grill, who responded that they had no intention of stopping, and if White did not like it, she could install a better exhaust system. In fact, fire trucks came a number of times to 615 West End; plaintiffs pointed to the fire department incident reports for their address (pl exh 13), showing it was not usually because of the grilling, which appeared defensive.

***

In June of 2016, Virginia Moore had taken photos in support of the complaints that she had, and sent an email to Shira White that read: "Attached are photographs detailing the condition of the screens and other issues in the apartment, all of which were existing upon our arrival. I know you're aware of the terrace, the intercom/doorbell and perhaps others of these as well, but I've included everything that's not strictly cosmetic like the paint and wires. If you have questions about any of this please let me know" (def exhs C [June 11, 2016] & C1-C22).

Ms. Moore's photos also showed: a loose dining room hearth; loose and broken tiles; molding missing from the dining room that she captioned "almost impossible to open and close;" and a parquet floor that was captioned "missing pieces," although the photo displays one small missing triangular piece. Moore testified that "the floors were in decent shape . . . I'm calling it they look like old floors." On the witness stand:

Q. The damage to the floors was a visible item to you when you moved into the apartment; am I correct?

A. Yes.

Q, The damaged woodwork was an item that was readily visible to you when you moved into the apartment, correct?

A, Yes.

Q. And the damaged or missing tiling was readily visible to you when you moved into the apartment, correct?

A. Yes.

Q. Now, you did not inform the landlord of these conditions within two days of your taking occupancy of the apartment, did you?

A. I don't know why. As I said, I assumed . . . it was so visible . . . I just didn't view it as damage; I just viewed it as an old rental apartment.

Plaintiffs introduced two other photos of the exterior doors to the building (pl exhs 9 and 10). When architectural restorer David Porter was shown exhibit 9 during cross-examination, he agreed they were in poor condition, but there is no claim for them, and they were not within Porter's charge.

Shira White confirmed that the Moores complained that: rooms were too hot or too cold; a toilet was clogged; there was a leak in the roof; and the dryer was not drying well enough. The tenants complained about the lids for the recycling and trash bins, and as noted, the problem with the intercom. White said that she repaired screens, added weather stripping to windows and five new temperature sensors, installed a new intercom and repaired leaks.

***

White testified that whenever there was a complaint, she went up to the Moores' apartment. In June of 2016, when White went to look at the screens in the great room, Virginia Moore invited her to stand on the sofa to get a better look. When White did, she stepped in "a warm, wet puddle on the floor." White recalled that Moore apologized, grabbed a towel to mop it up with and said that the dog must have had an accident.

The Moores' dogs were an issue from the outset. Paragraph 39 of the lease rider from November of 2014 is quite specific:

"Landlord is aware and gives permission for tenant to have her 4 (four) dogs in the apartment. 2 small mixed breed dogs 15 lbs, one Bulldog and one miniature Dachshund 12 lbs. This permission is granted solely with respect to the four existing dogs as of the signing date of this lease. No additional pets will be permitted without prior permission of the landlord."^[FN4]

Virginia More had a confident, businesslike presence on the witness stand, but she could not overcome the evidence, and there were aspects of her testimony that did not advance plaintiffs' case. When a fifth dog came on the scene, Ms. Moore appeared reluctant to take responsibility for how that came about:

"Q. And sometime after that [the April 2016 lease renewal], you brought in another dog, didn't you?"

"A. Well . . . I can't answer that yes or no. . . He was my mother's dog, and eventually he did sort of start - - my mother lived a couple of blocks away, and he eventually sort of started living with us, yes. We didn't bring him in. We didn't go out and get another dog."

Shira White testified that she never gave permission for this fifth dog, and learned of it when she "began to hear very heavy footsteps of an animal, much heavier that I had ever heard before" above her kitchen, dining room, and living room.

***

Ms. Hammond testified to the damage she saw on the March 1 walk-through, and which she stated was not there before the Moores took occupancy:

"First coming into the apartment itself, up the stairway, the carpet was extremely thread bare. It looks like dogs' paws had scratched the carpet. . . and that appeared all through house. And then on the first floor . . . [there] were large, dark stains that were irregular in shape and looked like liquid. And that was . . . in all the rooms of the house . . . it smelled like dog urine . . . Then going upstairs to the two bedrooms, again, there were a lot of puddle-like, smelled like urine stains in both of those rooms. . . In the great room . . . there were at least three stains [over] three large areas."

Hammond went on to describe: chunks of wood missing from the decorative perimeter floor design; cracked and missing pieces of porcelain from the dining room fireplace; the first floor door from the hallway into the dining room had a "huge chunk taken out of the side of the beautiful wood molding." Going up a staircase, Hammond saw chunks of wood missing from the wainscoting of the staircase and the "banisters were all knocked up and chipped."

The Moores argue that the amount of damage White is claiming can not be reconciled with the fact that StreetEasy advertised the triplex on May 1, 2018 only two months after the triplex was vacated. However, what we saw from May 1 had one photo, and the property was being made ready for August 1 occupancy. Work on the triplex was begun quickly, as shown by the dates of the invoices and checks for the architect and contractors.

Plaintiffs maintained that the before-condition of the lower right part of the living room floor was scratched. But a closer look at the photos with a broader view, along with the testimony, demonstrated that the condition became significantly worse in the time the Moores were there.^[FN5] Presumably, a depreciation/useful-life type argument could be made: for example, such a parquet floor had to be redone or refinished every 25 years, and the Moores' occupancy was half way through that period. In any event, it was never advanced, and the amounts spent and the cost estimates will not be reduced on that basis.

The testimony of Shira White was natural, unforced and detailed from memory. For their part, plaintiffs ask that the entire testimony of White be disregarded because the repair records [*4]contained two versions of Invoice 829 for $2,900 ^[FN6] from Vail Associates Architects. One Invoice 829 that is part of defendant's exhibit Q has a reference to water damage, which is omitted in defendant's exhibit E.

When asked about it on the witness stand, Ms. White explained that when Vail Associates was initially hired in January of 2018, it was for the water in the kitchen, which is not part of this case, but in "March 2018, March 1st, when we discovered all this other damage that the tenant had caused in the apartment, I asked Mr. Vail to continue to assist me and to address the needs related to that damage." This trier of fact does not find that it was wilful on the part of Shira White; nor was it material. (see PJI 1:22). With that said, there is ambiguity - - the second invoice 829 is arguably not a business record, and it will not be included in Beautiful Spaces repair work paid to Vail.

The Amount of Damages

The credible testimony of White and Hammond well described the damage proximately caused by the Moores' tenancy. They were supported by the 60 photos taken within a day of the triplex becoming vacant. A more detailed reference to the photos, each testified about by Ms. White, is set forth in an appendix at the end of this decision.

I. Amounts incurred and paid:

* Vici Interiors. This contractor did work on the floors, sanding coating and where necessary, replacing wood parquet. In addition to the triplex, Vici worked in the media room that was in Shira White's apartment. That space was 300 square feet. The job for various floors in the triplex covered about 900 square feet,^[FN7] which reduces the Vici reimbursement by 25%: from $10,692 ^[FN8] to $8,019.

* Home Design. The checks paid for sanding, caulking, plastering and painting through April 23, 2018 total $38,012 ^[FN9]; less $100 for replacing a radiator steam valve (def exh L).^[FN10]

* 2AA Construction a/k/a AG5 Contracting. They were paid $10,500 for finishing the tenant stairway ^[FN11] (defs exhs J and K).

* Vail Associates Architects. Checks paid from March 19 to June 18, 2018 total $9,034 ^[FN12], which excludes the $2,900 invoice 829 (def exh Q).

* Northeast Floor Covering. Amounts drawn from defendant's bank account for $2,500.00 on April 23, 2018 and $2,257.84 on May 17, 2018, totaling $4,758 (def exh O).

In sum, the payments for work done in 2018 by Vici Interiors, Home Design, 2AA Construction, Vail Architects and Northeast Floor Covering totals $69,373.

II. Subsequent Work

Shira White explained that: "I was very pressured to get the apartment rented since it had been vacant for many months, so I did not have the luxury of time, or, quite frankly, funds to do a full restoration of all the damage, so I endeavored to do a basic repair that would render the apartment presentable, safe, acceptable . . ."

Work remained to be done; White testified that the floors, woodwork, doors and fireplaces have not been fully restored (as well as lighting fixtures). On that score, we heard from David Porter, an architectural restorer, president of Traditional Line. - - and a carpenter. His company specializes in restoring buildings that date from the early 1800s to World War I; they had installed many of the period rooms in the American Wing of the Metropolitan Museum.

Mr. Porter was on site for a couple of hours in July of 2019. In addition to the depth of his experience, as a witness, Porter was comfortable with what he had to say, without any contrivance.

The figures from David Porter went, by and large, unchallenged. Porter was asked on cross-examination whether his estimates were list prices, which in fact would end up being negotiated downward. It was not a persuasive line of attack; the witness was credible on how he came up with the numbers, and there was no opposing estimate.

Porter's estimate of $105,359.50, or $105,360, included no items unrelated to the damage during the Moores' tenancy and was supported by the photos in evidence. With the $69,373 paid to the various contractors in the immediate aftermath, the Court concludes that the total amount of damage done to the triplex to be $174,733.

III. Utility Charges

Defendant Beautiful Spaces also claims there were unpaid charges for water and gas in the amount of $2,558, relying on paragraph 4 of the lease rider, requiring the Moores to pay half of these utilities. The same paragraph provided that copies of bills with the 50% calculation would be presented to the tenant upon receipt by the building owner, and then if not paid within 30 days, subject to a late fee, which was never sought. The utility bills were attached to a May 3, 2018 letter from defendant's counsel to Charles Moore, in which counsel stated that the failure to timely present the bills did not limit the right to collect on them (def exh E).

These water and gas charges were not contained in the Beautiful Spaces counterclaim; defendant requested that it be allowed to conform its pleadings per CPLR 3025. There was no running total; the Court added up 15 pages of bills and got $5,117, which when halved yields the $2,558 amount requested. The bills might be viewed as somewhat difficult to follow, and while not involving a significant amount of money, timely presentment would have allowed the Moores to ask about them. Defendant's request for 50% of unpaid water and gas charges is denied.

Certificate of Occupancy, Commingling Deposit, Attorneys' Fees

i). Plaintiffs point to the fact that 615 West End Avenue has an outdated certificate of occupancy and thus does not comply with Multiple Dwelling Law §301. Section 302.1[b] of the law provides that a violation of section 301 bars the collection of rent and an action to terminate of possession. Those sections of the Multiple Dwelling Law are not a factor; this case is not about rent. It might be noted that a major purpose of these provisions is to protect tenants from carved-up apartments. The latest, albeit outdated, certificate of occupancy has 615 West End with four units. As we know, the building has two units, and the rental one is 3,600 square feet.^[FN13]

ii). Plaintiffs argue that defendant commingled the deposit in violation of General Obligations Law § 7-103, under which the tenant would have been entitled to its immediate return, citing, among others, LeRoy v Sayers, 217 AD2d 63, 1st Dept. The issue first came up in midst of trial when plaintiffs offered their monthly bank statement covering November 11 through December 8, 2014, which separately listed the amounts for the deposit and the total rent over the initial 18-month lease, for which payment was agreed to be made up-front as part of a negotiation for a lower monthly rent (pl exh 3). Both lines had the same twelve-digit number, presumably for Shira White's account. It may well be more efficient when receiving two checks from the same source to have it sent to one account; any commingling may be cured during the term of the lease (Harlem Capital Ctr., LLC v Rosen & Gordon, LLC, 145 AD3d 579, 1st Dept). As it was, plaintiffs did not develop the issue beyond admitting into evidence the bank statements and a cancelled check of White's (pl exh 4).^[FN14]

iii). Defendant Beautiful Spaces contends that prevailing in this matter means it is entitled to attorneys' fees. The basic lease and its rider make reference thereto. Paragraph 23 of the lease is entitled, "Tenant's default." Subparagraphs A and B list several bases for default, including the failure to pay rent or for making a material misstatement on the tenant's application. It provides that the landlord's expenses for re-renting includes "reasonable legal fees and brokers fees" (as well as cleaning and repairing, decorating and advertising costs), subparagraph D, item 3.

Paragraph 10 of the lease, entitled Liability, states that the "Tenant must pay for damages . . . and reasonable expenses of Landlord." Then it has this narrow ground for attorneys' fees; "If an action is brought against Landlord arising from Tenant's act or neglect Tenant shall defend Landlord at Tenant's expenses with an attorney of Landlord's choice."

The lease rider contains the following provision: "In the event of a legal dispute: the [*5]winning party may recover attorneys' fees in all lease disputes between landlord and tenant arising out of or in connection with the lease, including an interpretation of the lease or a declaration by the court, of the rights and obligations of the parties under the lease."

While the standard for determining whether a party has prevailed for purposes of an award of attorneys' fees "requires an initial consideration of the true scope of the dispute litigated, followed by a comparison of what was achieved within that scope" (Excelsior 57th Corp. v Winters, 227 AD2d 146, 1st Dept), in this case, excessive tenant damage is not covered by the terms of the lease or its rider.^[FN15]

The Excelsior line of cases involve rent arrears, rent abatement, holdover tenancy or as in Sykes v RFD Third Ave. I Assoc. LLC, 39 AD3d 279, 1st Dept, a specific list of items to be repaired or completed (a punch-list before moving into a newly purchased apartment). The central relief sought here is in the nature of a tort for which attorneys' fees or pre-judgement interest are not available.

***

NOW therefore, in view of the foregoing,

IT IS ORDERED, that the complaint of plaintiffs Charles W. Moore and Virginia K. More is dismissed with prejudice;

IT IS FURTHER ORDERED, that i) judgment is granted to Beautiful Spaces, LLC in the amount of $129,390 ($174,733 less plaintiffs' rental deposit, which has accrued to $45,343); and that ii) Beautiful Spaces, LLC may retain the security deposit of $45,343).

The County Clerk is directed to enter judgment accordingly. A copy of this Order with notice of entry shall be served upon the County Clerk.