Wicklund v. Mukhtyar

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 8, 2017
• Docket: 2017 NYSlipOp 50789(U)
• Status: Published

Opinion

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