Opinion
2005-821 WC.
Decided June 23, 2006.
Appeal from a judgment of the City Court of Peekskill, Westchester County (William L. Maher, J.), entered March 10, 2005. The judgment, after a nonjury trial, dismissed plaintiff's claim and awarded defendant the principal sum of $330 on his counterclaim.
Judgment modified by vacating the dismissal of plaintiff's cause of action, by reinstating said cause of action and remanding the matter to the court below for a new trial limited to plaintiff's claim, and by staying execution of so much of the judgment as awarded defendant the sum of $330 on his counterclaim pending determination of plaintiff's claim; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
Plaintiff commenced this small claims action to recover $5,000 for water damage to personal property stored in defendant's garage pursuant to a written lease. The court denied plaintiff any recovery, dismissed plaintiff's action, and awarded defendant $330 on his counterclaim based on the nonpayment of rent and late fees. While the court properly concluded that the original lease generally absolved defendant of liability for damage to plaintiff's property ( e.g. Patrick Pontiac Nissan v. Jotric Land Dev., 269 AD2d 803), paragraph 12 of the lease provided that if the premises became "untenantable," all or in part through the agency of "storm . . . or other casualty not caused by the negligence of Lessee," landlord would have the option of terminating the agreement and refunding such rents as may have been paid subsequent to the casualty or of repairing the "untenantable portion" and abating the rent in proportion to the period and extent that the portion of the premises remained untenantable. Moreover, the lease was amended by the parties, prior to the alleged damage herein, to impose on defendant the obligation to exercise care to maintain the premises "as clean, dry and safe as possible . . . so that the les[s]ee's property isn't further ruined" and to clean and dry plaintiff's rug and to return said rug by May 1, 2004.
Plaintiff alleged that the property damage resulted from defendant's breach of the duty of care set forth in the lease, as amended, and that defendant also failed to clean and return the rug, and to refund a $50 security deposit. The court below did not address the measure of care imposed on landlord by paragraph 12 of the lease, and by the amendment which was in writing and signed by the parties ( see General Obligations Law § 5-1103), whether landlord breached those standards, and if so, the damages flowing therefrom, i.e., the "diminution in the rental value of the leased premises resulting from [said] failure" (2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 18:32, at 57 [4th ed]) and the damage sustained to plaintiff's property ( id. § 18:36, at 59-60). The court also failed to address plaintiff's claims for the return of the rug in the condition promised, and the return of the security deposit. Accordingly, substantial justice (UCCA 1807) requires a new trial on plaintiff's cause of action. In so finding, we express no opinion on whether plaintiff proved the value of the losses sustained or that defendant neglected a duty under the lease or the amendment thereto.
We note that as the covenant to pay rent was independent of the covenant to repair as set forth in the lease, as amended (2 Dolan, Rasch's Landlord Tenant-Summary Proceedings § 18:31, at 53-54), the award of unpaid rent and late fees was appropriate.
Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.