Opinion
2008-275 K C.
Decided on March 12, 2009.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Chan, J.), dated October 18, 2007. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $910 and dismissed the counterclaim.
Judgment modified by reducing the amount of the award to plaintiff to the principal sum of $169.60; as so modified, affirmed without costs.
PRESENT: WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ.
Plaintiff, a Section 8 tenant, commenced this small claims action against defendant, the current owner of the property, to recover, inter alia, his $750 security deposit and an overpayment of rent. Defendant answered, asserting affirmative defenses and counterclaiming for unpaid use and occupancy for the months of February, March and April 2007. Following the nonjury trial, the Civil Court awarded plaintiff the principal sum of $910, consisting of $700 ( sic) for his security deposit, and $210 for the overpayment, and implicitly dismissed defendant's counterclaim. The instant appeal by defendant ensued.
On appeal, defendant contends, inter alia, that plaintiff was not entitled to the return of his security deposit, and that she is entitled to $700 for each of the months of February, March and April 2007. For the reasons that follow, we agree that plaintiff is not entitled to the return of his security deposit. We find, however, that defendant is not entitled to recover $700 per month for February, March and April 2007 since the evidence adduced at trial indicated that defendant agreed to accept use and occupancy at the rate of the Section 8 tenant's share of the rent, consisting of $424 per month, for the months in question.
At trial, it was uncontroverted that plaintiff vacated the premises on April 18, 2007, after the issuance of a warrant of eviction in a holdover summary proceeding that was settled by stipulation, and that, on June 16, 2007, plaintiff gave defendant $522, as demanded by defendant, to cover the balance that he was required to pay for the months of February, March and April
2007 (at $424 per month) pursuant to the stipulation, after his $750 security deposit was credited against the monies owed for this time period. Plaintiff testified that given the fact that he vacated the apartment in the middle of April, he did not actually owe $424 for the month of April and, therefore, had overpaid defendant.
Although a Section 8 tenant who holds over generally becomes liable for the full amount of use and occupancy for the period after the termination of the Section 8 tenancy ( see Zappala v Caputo , 17 Misc 3d 126[A], 2007 NY Slip Op 51808[U] [App Term, 9th 10th Jud Dists 2008]), the record shows that there was an agreement that plaintiff would pay use and occupancy only at the rate of the tenant's share of the rent. Since use and occupancy should be apportioned when a tenant vacates pursuant to a warrant ( see Wahl v Warren , 19 Misc 3d 130[A], 2008 NY Slip Op 50537[U] [App Term, 9th 10th Jud Dists 2008]), and since plaintiff vacated the apartment on April 18, 2007, we find that he owed defendant only $254.40 for 18 days in April and, therefore, overpaid defendant by $169.60, not by $210 as calculated by the Civil Court. Moreover, given the fact that plaintiff's security deposit was clearly applied as a credit against the monies he owed, plaintiff should not have been awarded the $700 for the security deposit. We note that some matters contained in defendant's brief are dehors the record on appeal and cannot be considered on appeal since this court is limited to reviewing matters which are contained in the settled record ( see Chimarios v Duhl, 152 AD2d 508; Blum v Yuabov , 12 Misc 3d 139[A], 2006 NY Slip Op 51333[U] [App Term, 2d 11th Jud Dists 2006]). Defendant's remaining contentions have no merit.
Accordingly, the judgment is modified by reducing plaintiff's award to the principal sum of $169.60 and is otherwise affirmed.
Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.