Opinion
Decided September 29, 2004.
Appeal by plaintiff on the ground of inadequacy from a small claims judgment of the Justice Court, Town of East Fishkill, Dutchess County (W. Gee, J.), entered February 14, 2003, in favor of plaintiff in the principal sum of $1,500.
Judgment unanimously modified by increasing the amount of the award in favor of plaintiff to the sum of $2,467.77; as so modified, affirmed without costs.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Plaintiff commenced the instant small claims action to recover damages in the amount of $3,000 allegedly due him as a result of defendant's failure to fulfill the terms of a "settlement and general release" and "lease assignment and assumption agreement" entered into between the parties on or about December 18, 2001.
After the parties' intended partnership in a bakery/delicatessen enterprise failed to materialize, they entered into such agreements whereby plaintiff took over the delicatessen and defendant kept the bakery. Although defendant contends he owed plaintiff only for a $750 utility security deposit, it was plaintiff's contention that he was owed additional sums for the rent due on the delicatessen premises prior to the date of the transfer to him, as well as for amounts he had paid to repair the premises.
Upon a review of the record, it is our opinion that in order for substantial justice to be done between the parties (UJCA 1807), the judgment in favor of plaintiff should be increased from $1,500 to $2,467.77 to reflect the sums of $750 for the security deposit, $870.39 for defendant's share of the December 2001 rent, and $847.38 for the cost of installation of quarry tile in the bakery. Contrary to plaintiff's contentions, there was nothing in the agreements to indicate that defendant was obligated to reimburse plaintiff for the remaining amounts claimed.