Justice Court of the Town of New Scotland, Albany County, March 14, 2022

Ron Edwards, claimant pro se.

Joseph Van Valkenburg, defendant pro se.

This is a small claims proceeding in which the tenant Ron Edwards (hereinafter tenant) seeks to recover his security deposit and a portion of his rent from his former landlord Joseph Van Valkenburg (hereinafter landlord). The case raises issues concerning the statutory obligations imposed on a landlord under General Obligations Law § 7-108 (1-a) (d) and (e) where said landlord attempts to retain all or part of a tenant's security deposit due to alleged damages caused by tenant to the leased premises.

A small claims hearing was held on March 10, 2022. Tenant and Kristi Azadian, another occupant of the leased property, testified for claimant. The landlord and Susan M. Williams testified for the defendant. The parties were afforded the opportunity to testify, to offer evidence and to cross-examine the opposing party. The court has reviewed its notes of the testimony and the documentary evidence offered at the hearing. The findings set forth below are based on the court's assessment of the credibility of the witnesses and the weight to be afforded the documents and photographs received in evidence at the hearing.

The tenant moved into 725 New Scotland Road, apartment 1, New Scotland, New York on or about May 3, 2019, pursuant to a written lease with a term from May 3, 2019, through May [*2]3, 2020 (claimant's exhibit 1). The rent was $1,000 per month and the tenant paid a security deposit of $1,000. The tenancy continued following expiration of the initial lease and the parties signed a second lease on May 3, 2021, with a term of May 3, 2021, through May 3, 2022 (defendant's exhibit 13). The rent stated in the second lease is $1,000 per month; however, it appears that at some point the rent was raised to $1,100 per month. The tenant paid his rent on time and the landlord made{**74 Misc 3d at 1064} no complaints regarding the tenant's occupancy of the premises. Indeed, landlord and tenant were "friends" and landlord sometimes permitted tenant to perform services for him, the fair value of which was credited against the rent due landlord.

The leases in question permitted the tenant to occupy the premises with a dog. Tenant was required to pick up the dog feces on the property. The initial lease limited occupancy to the tenant, but no objection was raised to the presence of Kristi Azadian, and she was eventually added as a named tenant on the second lease. In fact, she signed the second lease in May 2021. During the term of the tenancy, the landlord occasionally had access to the demised premises, and there is no proof that he complained of any damage until the tenancy came to an end.

In late 2021, tenant advised landlord that he would be vacating the premises by January 15, 2022. He had paid the $1,100 in rent due for the month of January 2022. Tenant moved out by January 15. On that date or shortly thereafter, landlord and tenant met, and landlord presented tenant with a document received in evidence as defendant's exhibit 1. In said document, the landlord claimed that tenant's dog had urinated on the carpet and cherry floor. According to landlord, the carpet needed to be replaced and the floor needed to be replaced where it had turned black. For these reasons, landlord indicated he was not returning the $1,000 security deposit, but he was returning a portion of the rent ($567) for January presumably because tenant was entitled to be refunded half of the monthly rent. Interestingly, the document claims that the rent had "never been raised." Yet, at the trial the landlord never disputed the tenant's claim that the rent was raised to $1,100 from $1,000. His offer to return $567 as a half month's rent also implies that the rent had been raised from $1,000 per month.

The landlord also complained that the lease limited the demised premises to "1 occupant." Yet, by the date the move-out statement was signed and delivered to the tenant (Jan. 15, 2022) Kristi Azadian had signed the second lease with landlord (defendant's exhibit 13). These inconsistencies and obvious attempts to concoct a rationale to withhold the security deposit detract from the credibility of the landlord's testimony.

The parties disagreed about the condition of the property once the tenant moved out. The tenant claimed he left the property clean, as shown by the photographs received as claimant's exhibits 2 through 20 in evidence as well as the{**74 Misc 3d at 1065} thumb drive marked as claimant's exhibit 21. The landlord and Ms. Williams testified that tenant did not leave the property in acceptable condition. They also offered into evidence photographs taken after tenant vacated the property which show dark marks on the wooden flooring and stains on the carpet (see defendant's exhibits 2-6, 8). There was testimony that fluids had leaked from the apartment above and it is not clear what, if any, role these fluids may have played in the carpet staining.

The landlord has not proved by a fair preponderance of the evidence that tenant caused the extraordinary damage to the carpet and wood floor. The tenant is not responsible for ordinary wear and tear. The evidence does not clearly establish the condition of the carpet and wooden floors on the date the tenant moved into the premises. There is no convincing proof that the tenant's occupancy of the property caused more than normal wear and tear to the carpet or wooden floors. For the reasons set forth below, there is another reason why the landlord should [*3]not be permitted to retain the security deposit.

This court, in a small claims proceeding, must "[do] substantial justice . . . between the parties according to the rules and principles of substantive law" (UJCA 1807; Borman v Purvis, 299 AD2d 615 [3d Dept 2002]). "Small claims proceedings are informal by nature, not bound by the strictures of ordinary procedural and evidentiary rules, the object being to accord the parties substantial justice" (Ellis v Collegetown Plaza, 301 AD2d 758, 759 [3d Dept 2003]). In applying the substantial justice standard, a small claims court must properly apply the substantive law (Rothermel v Ermiger, 161 AD2d 1016 [3d Dept 1990]).

The substantive law applicable here deals with the circumstances under which a landlord may retain all or part of a tenant's security deposit. General Obligations Law § 7-108 (1-a) (d) and (e), which addresses the circumstances under which the landlord may retain a tenant's security deposit, expresses the intent of the New York State Legislature with respect to the landlord's obligations to a tenant when the tenant has posted a security deposit and has given the landlord at least two weeks' advance notice that the tenant will be vacating the landlord's property. Here, the tenant provided the landlord with at least two weeks' advance notice that he was leaving the property on January 15, 2022.

As such, in this case the landlord must give the tenant written notice that the tenant has a right to the inspection of the{**74 Misc 3d at 1066} property before the tenant vacates it and the tenant has the right to be present (General Obligations Law § 7-108 [1-a] [d]). After the inspection, the landlord must give the tenant an itemized statement detailing any repairs or cleaning costs that would be the basis of deductions from the security deposit (General Obligations Law § 7-108 [1-a] [d]). The tenant then must be given the opportunity to cure any such conditions before the end of the tenancy (id.). Within 14 days after the tenant has vacated the premises, the landlord must provide the tenant with another itemized statement explaining the reason(s) that the landlord is retaining some, or all of the security deposit (General Obligations Law § 7-108 [1-a] [e]). If this statement is not provided within 14 days after the tenant vacates the premises, the landlord forfeits the right to retain any portion of the security deposit (id.).

In summary, the New York State Legislature has established a set of obligations which govern whether a security deposit may be retained by the landlord. Clearly, the legislature wanted tenants to know prior to the end of a tenancy whether the landlord believed the rented property was damaged and whether the cost of those damages would be deducted from the security deposit, and the landlord to give the tenant an opportunity to fix or repair the alleged damages (Diaz v Cunningham, 68 Misc 3d 319 [Middletown City Ct 2020]). The cited statutes contemplate that the landlord will provide up to two itemized statements to the tenant who opts to repair or cure the alleged damages. The first itemized statement delivered prior to the end of the tenancy identifies the repairs and cleaning that is needed to cure the damages and the second statement delivered within 14 days after the tenant has vacated the premises must describe in itemized terms the basis for retaining some, or all, of the security deposit.

In this case, the landlord never gave the tenant written notice of an opportunity to inspect the property prior to vacating it or written notice of the tenant's right to cure any alleged damages. On January 15, 2022, the date the tenant left the property, landlord provided a written statement indicating, in part, that the tenant's dog had damaged the carpet and hardwood floor and that the $1,000 security deposit was not being returned to tenant. This notice was delivered on the departure date, not prior thereto. Therefore, the tenant was deprived of his right [*4]to prior notice of the right to inspect and to cure any alleged damages. In addition, within 14 days after{**74 Misc 3d at 1067} the tenant left the property, he was not provided with a statement explaining why the cost of repair exceeded the security deposit. The landlord did obtain estimates for the alleged repairs on February 9, 2022, February 21, 2022, and March 2, 2022 (defendant's exhibits 14, 17, 18). These estimates were prepared more than 14 days after the tenant vacated the property. There is no proof in the record that any of the estimates were provided to the tenant as a basis for retaining the security deposit. Accordingly, the landlord failed to comply with the applicable statutory provisions and has forfeited his right to retain the $1,000 security deposit.

Turning to the issue of the rental monies sought by tenant, it is unclear from the record how the rent sought is to be determined. The tenant's rent claim is for $650. The landlord offered him $567 on January 15, 2022, for the "early move out" because "he was paid to Jan-31-2022" (defendant's exhibit 1). There are no rental receipts for each month as required by New York law (see Real Property Law § 235-e). This court need not attempt to sort out these discrepancies. The tenant's claim must fail because although he vacated the leased premises on January 15, 2022, he continued to return to the property to do wash, turn on the lights and heat and, in essence, register a "protest" to the failure of the landlord to return the security deposit. This caused the landlord to involve law enforcement and change the locks. Under these circumstances, the tenant is not entitled to a refund of any rent for the month of January 2022.

Based on the foregoing, it is hereby ordered and adjudged that tenant Ron Edwards recover from landlord Joseph Van Valkenburg the sum of $1,000 together with the court filing fees.