Opinion
09-32125.
Decided September 25, 2009.
Ashley Blend, Pro Se, Joseph Dase, Pro Se, Watertown, NY.
Pauline Castor, Pro Se, Watertown, NY.
Lease Termination
The parties entered into a lease drafted by the defendant landlord. The plaintiff seeks $600 paid as a security deposit. The defendant has filed a counterclaim in the amount of $1,943.48 for labor and repair, $600 for January 2009 rent and for various lease violations for a total of $2,543.48.
The lease the parties signed was for a period of one year from 10/10/07 to 10/10/08 at $600 per month rent. Paragraph 4 of the lease provides that "Lessee may terminate this lease at the end of the year from the date thereof, provided that the lessors are given written notice of such intention to terminate not later than thirty days (30) of a particular calendar year at the end of which termination takes effect."
In W.W.W. Associates, Inc. v Giancontier, 77 NY2d 157, 565 NYS2d 440, 566 NE2d 639, the Court stated, a familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing "[citations omitted]." id. p. 443
In all contracts "[t]here is implicit . . . an implied covenant of fair dealing and good faith." VanValkenburgh, n n., Inc. v Hayden P. Co., 30 NY 34, 46 300 NYS2d 329, 333; and, "[i]t is well settled that in order to form a binding contract, there must be mutual assent to the terms . . . thereof . . ." Gupta v University of Rochester, 57 A.D.2d 731.
In Cheng v Modansky Leasing Co., Inc., 73 NY2d 453, 541 NYS2d 742, the Court as stated in BT Commercial Corp. v Blum, 170 AD2d 134, 572 NYS2d 10 at p. 11 "[I]t is established that an ambiguity in a contract must be construed against the party who drafted it." In Majo v Gardino, 184 AD2d 872, 585 NYS2d 529 at p. 530 the Court said that "[W]hether a writing is ambiguous is a question of law to be resolved by the Court ( VanWagner Adv. Corp. v S M Enters., 67 NY2d 186, 191, 501 NYS2d 628 . . .) . . . [I]f there is ambiguity in the terminology used, and the equivocality can be resolved without reference to extrinsic evidence, the issue is to be determined as a question of law for the Court ( Hartford Acc. Ind. Co. v Weslowski, 33 NY2d 169, 172.
New York's General Construction Law Section 58 entitled "Year in . . . Contract" goes on to state that "[I]n a . . . contract . . ., the term year means twelve months . . ."
In Tubbs v Hendrickson, 88 Misc 2d 917, the Court observed that:
The long-standing general rule which has very recently been reaffirmed by the Court of Appeals is that a holdover tenancy impliedly continues "on the same terms and subject to the same covenants as those contained in the original instrument." ( City of New York v Pennsylvania R.R. Co., 37 NY2d 298, 300; Kennedy v City of New York, 196 NY 19.) While this common-law rule has been modified by section 232-c of the Real Property Law, which relates principally to the term or duration of the holdover tenancy, it continues to remain valid with respect to provisions other than duration. (See 1 Rasch, New York Landlord and Tenant [2d ed], Section 274, p. 360.)
The logic behind the rule is that since the parties have continued in the relationship of landlord and tenant it is implied that they intended no change in the conditions of that relationship. Of course, the parties are free to prove "a changed condition of affairs which would natrually or of necessity operate to modify the relations existing between the parties." But "[i]n the absence of any proof upon the subject there can be no reason for holding that the relations of the parties have changed, as nothing has occurred to break the continuity of the holding, or from which it can be implied that any conditions exist rendering inoperative any of the terms of the lease." ( Baylies v Ingram, 84 App Div 360, 362-363, affd 181 NY 518.) Id. p. 919.
In Logan v Johnson , 34 AD3d 758 , the Court said:
When the plaintiff continued to reside at the defendant's premises through July 2004 after his written lease expired in July 1998, the provisions in the lease remained in force for as long as he remained in possession of the premises (see City of New York v Pennsylvania R.R. Co., 37 NY2d 298, 300, 333 NE2d 361, 372 NYS2d 56; Visken v Oriole Realty Corp., 305 AD2d 493, 494, 759 NYS2d 523; McClenan v Brancato Iron Fence Works, 282 AD2d 722, 724 NYS2d 438). Despite having an option contract with the defendant to purchase the premises during a portion of the holdover period, a month-to-month tenancy was created when, upon holding over, the plaintiff paid and the defendant accepted the agreed-upon monthly rent of $1,500 for a number of months (see Real Property Law Section 232-c).
Real Property Law Section 235-b states that "no notification shall be necessary to terminate a tenancy for a definite term."
The original lease called for a term of twelve months commencing 10/10/07 and ending 10/10/08. Additionally, the lease states that the "lessee may terminate this lease at the end of the year from the date thereof." This clause standing alone means under the G.C.L. a "year in . . . a contract . . ., the term year means twelve months." However, the paragraph goes on "provided that the lessors are given written notice of such intention to termination not later than thirty days of a particular calendar year at the end of which terminates takes effect." The Court finds when read together these terms of the lease agreement are ambiguous and as paragraph 4 was drafted by the defendant "it must be construed against the party who drafted it" ( BT Commercial Corp., supra, p. 11), the defendant.
R.P.L. 235-b states when a lease contract provides for a specified termination date then by agreement of the parties the tenancy automatically terminates on that date agreed to by its terms which in this case was 10/10/08, "no notification shall be necessary to terminate a tenancy for a definite term." In this agreement there is another requirement that the lessors are given written notice of such intention to terminate . . . 30 days of a particular calendar year at the end of which termination takes effect.
The Court finds that there is a contradiction in terms in that a calendar year is "a period of a year beginning and ending with the dates that are conventionally accepted as marking the beginning and end of a numerical year (as January 1 and December 31)," Webster's New Collegiate Dictionary, 1981, p. 155, and a "year" as used in this contract by is express terms runs from 10/10/07 to 10/10/08 which under the definition of "year" in the G.C.L. "means twelve months," for which no termination notice would be needed as the lease period of twelve months ended at the end of a "definite term" of twelve months on 10/10/08. Therefore, the plaintiff had no obligation to give a termination notice 30 days before 10/10/08 to the defendant as this Court as a matter of law finds this conclusion is appropriate in resolving the ambiguity against the party who drafted the agreement.
The evidence shows that the plaintiff began a discussion with the defendant about the time the final rent payment was due on 9/10/08 and every week thereafter up to 1/10/09 that they needed to find a larger apartment as they were expecting a child. The record shows that the defendant allowed the plaintiffs to remain in the apartment after the original lease term had ended on 10/10/08 without signing a new lease. Under these circumstances the lease became a month to month oral lease with the terms of the original lease continuing ( City of NY v Pennsylvania R.R. Co., 37 NY2d 298, 300 as cited in Tubbs and Logan [supra]).
The credible evidence shows that subsequent to 10/10/08 on the tenth of each month through 12/10/08 the plaintiff continued to make the $600 monthly payments as well as continuing to look for a larger apartment which they continually advised the defendant. Her response from before 9/10/07 and thereafter was to acknowledge their effort stating "you've got to move when you have to."
As the next rent payment became due on 1/10/09 the plaintiffs learned of a place to move into and they told the defendant of this fact on or before 1/10/09. They said a walk through was arranged on 1/15/09 after they moved out on 1/12/09. The plaintiff said that at no time did the defendant object to their leaving after being given notice on or before 1/10/09 when no further rent was paid for the nonpayment of rent for the period of 1/10/09 to 2/10/09. The parties did a prearranged walk through of the apartment on 1/15/09 and at that time while the defendant did find some issues with the condition of the premises that needed to be addressed before the $600 security deposit was refunded in whole or in part, the defendant did not demand rent payment for the period 1/10/09 to 2/10/09.
The plaintiff testified that the defendant completed the walk through on 1/15/09, made some notes on the back of the document before leaving it on the counter and walking out without saying anything more. The plaintiff expected what had been listed — being little things — would reduce the $600 deposit by up to $100 and the balance refunded. When the plaintiff made inquiries about the security deposit she responded "she'll get back to me" when she gets everything figured out.
Security Deposit
The parties testified that on or about January 15, 2009 after the tenant had moved out a walk through was conducted. Ms. Castor subsequent to the parties finishing the examination of the condition of the premises dropped on the kitchen table written on the back of a list of the items in each room of the apartment under a handwritten title "missing" a curtain rod, two pillows, a vase, a refrigerator shelf and a small nightlight shade. She also asked that the "stoppers on kitchen cupboards" be removed as well as questioned a screen door screen tear and a broken footstool leg.
Mr. Dase said that he felt some of these items he valued at about $50 to $100 in total would be deducted from the $600 security deposit. He said while he did not agree all these items in question were missing and/or damaged he was satisfied if he got the balance of the $600 refunded to him.
Mr. Dase said that after repeated requests for the balance of his security deposit he received in the mail a copy of the lease with the itemization of each room's contents affixed on which Mrs. Castor noted in red ink a number of items either missing and/or broken beyond what she had listed on the day of the walk through. It was at that time he commenced the small claims action on March 2, 2009.
Ms. Castor's response to the notice was to file a counterclaim for $2,543.48 to cover repairs and labor as well as January 2009 rent. She also completed a separate list of the breakdown of the labor and material costs for $1,943.48 (Ex-C). She claims that a number of items were missing, destroyed or needed repairs along with expenses involved in repairing and/or replacing them. She also claimed the cost to have the upholstery cleaned and the apartment cleaned.
Mr. Dase testified that except for some minor areas, he had cleaned the apartment, done some repairs unrelated to his use of the apartment, and left it as of the January 15, 2009 walk through in the same condition it was in when he moved in October 10, 2008. He said same of the items claimed by Ms. Castor to be missing she had asked him to place in storage in the basement for use in other apartments she owned. He said that he had "cleaned everything good when I left." He made the point that most, if not all, of the furnishings were old dating back to the 1950s to 1970s.
Ms. Castor went over all the items on her lists and the costs to clean, repair and/or replace adding that while the furnishings were purchased as used they were "serviceable." She had two of the people who cleaned or did the repairs and painting testify concerning what each had done.
Ms. Kidder testified that she was not hired to clean a specific area but rather she was to do what she termed a "general cleaning" of the whole apartment — "I cleaned everything except the floor . . . that's what I do if it's not presentable" to leave it in a "move-in condition" for the next tenant.
Mrs. Sanders testified he was a painter-handyman who did work for friends. He said he painted the furniture "because it looked old and dingy . . . we wanted it to look nice." He said that he spackled and painted the walls of the whole place for the same reason to deal with wear and tear that pre-existed this lease period except for a "slight wall repair" necessitated due to a defect that exceeded normal wear and tear occurring while the tenant occupied the apartment. He said the whole job took about 30 hours which included some furniture repairs, the total cost of which came to $1,244. He estimated the "slight wall repair" to fix the damage he felt the tenant caused took about one hour.
In Rasch's Landlord and Tenant, 4th Edition, Vol. 2, Ch. 19 as Judge Dolan points out in Section 19:35" reasonable use and wear' defined" that "[R]easonable use and wear . . . includes natural deterioration and decay resulting from time and normal use, but does not include injuries caused by neglect or misuse of the leased premises by the tenant [citing Galante v Hathaway Bakeries, Inc., 6 AD2d 142 (4th Dept.), as well as Watner v P C Food Markets, Inc., 138 AD2d 959 (4th Dept.)] (id. p. 106). Judge Dolan goes on to point out that ". . . the burden of proof is on the landlord to establish that the want of repair at the expiration of the term was not caused by the reasonable use and wear of the premises [citing Hawkins v George Ringler Co., 47 A.D. 262 — see also, Mayfair Merchandise Co., Inc. v Wayne, 415 F.2d 23] (id. p. 112).
The Court finds based on the credible evidence the landlord, Ms. Castor, has failed to meet her burden of proof the damages and costs were for conditions that exceed reasonable wear and tear arising from normal use of the premises by then tenant during the time of possession. Further the Court finds that the "missing" items for which she seeks reimbursement were not located at the leasehold due to any conduct of the tenant. Her request for damages listed in her counterclaim is denied.
General Business Law Section 349General Business Law Section 349 has been found to apply to leases of residential property ( Frazier v Priest, 141 Misc 2d 775 and Meyerson v Prime Realty Services, LLC , 7 Misc 3d 911 ). GBL 349(a) states that "deceptive acts or practices in the conduct of any business . . . in this state are declared unlawful."
This Court finds that the evidence in this case shows the landlord, Pauline Castor, engaged in "deceptive acts or practices in the conduct of [her rental] business."
At the time she leased the apartment to Mr. Dase it was furnished. The credible evidence shows that most of the furnishings were used and mostly from the 1950s to 1970s eras. The credible evidence shows that during the time the tenant occupied the apartment some items were removed from the apartment and stored at the landlord's direction by the tenant in the basement of the premises as they were not acceptable for use by the tenant.
When the lease ended and the parties completed a walk through to review the condition of the premises prior to the landlord refunding the $600 security deposit, the landlord wrote out a list of items that day concerning her complaints about "missing" items or damage in the leasehold. This was on January 15, 2009. When the tenant subsequently contacted her for the refund of his $600 security deposit from which he expected a small deduction to cover these areas of the landlord's concern, he received no response and was mailed a more detailed list of other damages to be repaired, items to be replaced or repaired.
In response the tenant commenced a Small Claim Action and the landlord filed a counterclaim requesting $2,543.48. The matter was heard by this Court at a hearing after which the Court found the landlord failed to meet her burden of proof that the expenses claimed exceeded ordinary wear and tear expected from a reasonable use of the premises during the period of the lease.
In making the determination the landlord engaged in "deceptive acts or practices" in violation of GBL 349(a) this Court rlies on the following evidence.
One must state with the rental agreement format that in addition to the standard boilerplate clauses expected in a lease there is affixed a two page form entitled "This is a furnished apartment", one page of which is a room by room list of contents for the particular apartment designed as "A" at 647 Olive Street.
The rooms listed include the kitchen, living room, bedroom and basement where such items as "1 set of white lace curtains trimmed with mint lace at top/mint pearl beads along ruffle," "large matching chair to footstool after Harvest' pattern," Twiggy Autum Wreath with Hunter plaid ribbon rattan bows" and "2 standard size pillows (filled with polyester fibers)" along with some fifty other items from appliances to furniture, all described in similar detail, i.e., 1 brown metal closet (crackle finish). The answer for such a detailed account of these furnishings similar to one might expect to be prepared by an appraiser for an estate auction is that both are created as a reference when setting a cash value for each item which in this case is to determine how much should be subtracted from the tenant's security deposit as each item is assessed for wear and tear at the end of the lease of Apartment A. While this may seem a practical means to make such an accounting, the list can also be seen as presenting a false enhancement of value of items described by the landlord's handyman as looking "old and dingy."
That these listings should be prepared so as to present an inflated value is confirmed in the conduct and claims against the tenant's $600 security deposit. When the landlord and tenant did a walk through on January 15, 2009 the landlord at the end of it noted that a curtain rod, 2 pillows, a vase were missing and that a nightlight shade as well as a refrigerator shelf were also unaccounted for along with noting damage to a screen and a broken footstool leg. This information was handwritten on the back of the original list of items that had been affixed to the lease and the landlord made no notations about any of those listed on it at the conclusion of the walk through.
It was thereafter when the tenant had to file a small claim to seek a refund of the $600 security deposit that the landlord noted some of these items for the first time that were also "missing" apparently not originally noticed during the January 15, 2009 walk through as listed above; and, furthermore in a third rendering of her claimed losses prepared on the back of the same list she enhanced the number of items missing and/or damaged requiring some $1,244.00 to fix or replace.
The landlord in this third document also listed a cleaning bill of $90 for upholstery and $120 for cleaning in general, none of which was complained about to the tenant at the time of the January 15, 2009 walk through when all she requested of him was to remove "the door stoppers on kitchen cupboards."
Ms. Kidder testified that her $120 cleaning bill was for 8 hours of "general cleaning" which she does to make the apartment more "presentable" to prospective lessees. Mr. Sanders testified that his bill of $1,244.00 (the landlord claimed was due her as part of the counterclaim) was not for any damage to the premises or furniture caused by the tenant's conduct beyond ordinary wear and tear except for possible a small hole repair that involved about an hour of the thirty hours he worked for the landlord. He said that because the furniture "looked old and dingy and we wanted it to look nice" he painted it and as all the walls needed spackling and painted he did "the entire place." He said all of this work was done at the landlord's request to make the apartment appear "decent" and "presentable" for the next tenant.
Decision
The Court finds that there is clear and convincing evidence that Ms. Castor once she collected Mr. Dase's $600 security deposit she had no intention of returning it, but rather, she intended to use it to pay for maintenance of this house built in 1890 now used as an apartment building. When she initially did the walk through on January 15, 2009 she listed some minor missing items and/or repairs the tenant estimated to be worth less than a value of $100 and he expected the balance of his $600 security deposit to be refunded. Instead as time passed and the refund was not forthcoming and he filed a small claim, Ms. Castor added to her original list of January 15, 2009 and in her counterclaim demanded, among other costs, $120 for cleaning and $1,244 for furniture repair, painting and spackling, all of which she claims was due from Mr. Dase for damage he caused that exceeded ordinary wear and tear during the time he occupied the premises under the lease.
The Court finds that based upon the testimony of Mr. Saunders and Ms. Kidder most, if not all, of this work was done solely to make the apartment "more presentable," the furniture less "old and dingy" looking and to redo the wall of "the entire place" by spackling and then painting them to make the place look "decent" and "presentable" for the next tenant. None of this work was remotely related as claimed by Ms. Castor to repairs or cleaning related to Mr. Dase's occupancy.
The Court finds that because of Ms. Castor's conduct heretofore outlined and her claims in the counterclaim for hundreds of dollars due from Mr. Dase as a reason to not refund all or part of his $600 security deposit under this lease contract she has engaged in "deceptive acts and/or practices" under GBL 349(a). Furthermore based upon her conduct and claims made in this case which the Court finds were prevarications, the Court chooses to reject the balance of her testimony under the doctrine Falsus in Uno, Falsus in Omnibus.
The Court further finds that the testimony of Mr. Dase was credible and honest. He estimates that he might be responsible for about $100 worth of damage based upon the conclusion of the walk through on January 15, 2009. He is awarded $500 of the $600 security deposit after subtracting this $100.
The defendant's counterclaim is dismissed as not being credible as is the claim for January 2009 rent for the reasons heretofore stated.
GBL 349(h) allows the Court to "increase the award of damages to an amount not to exceed three times the actual damages . . ." In this case the Court finds in its discretion that such an increase of the damages is appropriate against Ms. Castor due to her wrongfully withholding Mr. Dase's security deposit and then offering a bogus claim for damages in her counterclaim when Mr. Dase sued her for the refund of his security deposit.
The Court under GBL 349(h) awards in addition to the $500 in damages an increase of the award by $500 resulting in a total judgment due of $1,000 together with costs of $15.00. The counterclaim is dismissed without costs.
This decision shall serve as a warning to landlords who refuse to refund security deposit, many of whom see these deposits as a home improvement fund to do maintenance on their building and who have no intention to return it at the end of a lease on a pretext the tenant owes money to the landlord under the lease contact when in fact none is due.
This decision shall serve as the judgment and order of the Court.