Opinion
2007-363 K C.
Decided April 14, 2008.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered July 10, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,100 and dismissed defendants' counterclaim.
Judgment affirmed without costs.
PRESENT: GOLIA, J.P., PESCE and RIOS, JJ.
In this small claims action to recover a security deposit, the court properly rejected defendants' argument that defendants were entitled to retain the security deposit because plaintiff failed to provide timely written notice of his intent to vacate. There is no dispute that plaintiff continued in possession after the expiration of the initial lease term and that defendants continued to accept rent without the lease being renewed. Plaintiff was therefore a month-to-month tenant (Real Property Law § 232-c; e.g. Logan v Johnson , 34 AD3d 758 ) who had no contractual obligation, and, since the premises is in the City of New York, no statutory obligation to give defendants notice of an intent to vacate (Real Property Law § 232-a; T.I.B. Corp. v Repetto, 174 Misc 501, 502 [App Term, 1st Dept 1940], affd 261 App Div 813; Bucknavage v Cairo, NYLJ, Dec. 27, 1989 [App Term, 1st Dept]; see also 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 30:52, at 459-460 [4th ed]; 89 NY Jur 2d, Real Property-Possessory Actions § 28).
Upon the record before us, we also decline to disturb the court's dismissal of defendants' counterclaim based on plaintiff's alleged damage to the premises. A security deposit remains the property of the tenant (General Obligations Law § 7-103) and must be returned at the conclusion of the tenancy ( Cruz v Diamond , 6 Misc 3d 134 [A], 2005 NY Slip Op 50187[U] [App Term, 9th 10th Jud Dists 2005]) absent, for example, proof that the tenant caused damage beyond that attributable to ordinary wear and tear ( e.g. Finnerty v Freeman, 176 Misc 2d 220, 222 [App Term, 9th 10th Jud Dists 1998]).
A small claims judgment must be affirmed if the record supports the conclusion that the determination afforded the parties substantial justice according to the rules and principles of substantive law (CCA 1804, 1807; see Ross v Friedman, 269 AD2d 584; Williams v Roper, 269 AD2d 125, 126). "[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence" ( Levine v Cunningham , 5 Misc 3d 128 [A], 2004 NY Slip Op 51248[U] [App Term, 2d 11th Jud Dists 2004]; see also Claridge Gardens v Menotti, 160 AD2d 544). To the extent that the court's findings were based on the credibility of witnesses, it is well settled that the deference normally accorded a trial court's credibility determinations, "applies with greater force" in a small claims action ( Williams v Roper, 269 AD2d at 126). Upon the sparse record presented on appeal, we find no basis to disturb the trial court's determination. The court, having heard the parties' conflicting accounts of the condition of the premises after plaintiff's departure and defendants' proof of the nature of the repair work actually performed, could properly determine that the damage was ordinary wear and tear incident to plaintiff's five-year occupancy ( see e.g. Finn v Schwartz , 4 Misc 3d 130[A], 2004 NY Slip Op 50688[U] [App Term, 2d 11th Jud Dists 2004]; Falcetti v Buonanno, 2003 NY Slip Op 51038[U] [App Term, 9th 10th Jud Dists 2003]).
Golia, J.P., Pesce and Rios, JJ., concur.