Opinion
No. 2010–2436SC.
2012-01-17
Fares DEBAN, Appellant, v. Kathleen HOEVENER and Chris Ferri, Respondents.
Present: NICOLAI, P.J., MOLIA and IANNACCI, JJ.
Appeal from a judgment of the District Court of Suffolk County, First District (Dennis M. Cohen, J.), entered June 2, 2010. The judgment, after a nonjury trial, dismissed the action.
ORDERED that the judgment is reversed, without costs, and judgment is directed to be entered in favor of plaintiff in the principal sum of $253.
Plaintiff commenced this small claims action to recover rent arrears and for damage to the premises he had rented to defendants. After a nonjury trial, the District Court dismissed plaintiff's action. The court found that plaintiff held two months pre-paid rent, and a security deposit equivalent to another month's rent, totaling the sum of $4,547, which was more than defendants owed for the months of November and December 2009 and for eight days in January 2010. The court further found that plaintiff had failed to prove damage to the premises. On appeal, plaintiff contends that the court did not properly credit him for all the rent owed by defendants.
We find that defendants, as month-to-month tenants who concededly did not vacate the premises until January 8, 2010, owed plaintiff rent for the entire month of January and not just for the first eight days of the month as the District Court found. Where, as here, rent is due and payable on the first of the month, month-to-month tenants who vacate during the month are generally liable, absent an agreement to the contrary, for the entire month's rent ( see Smith v. Woodson, 31 Misc.3d 143[A], 2011 N.Y. Slip Op 50870[U] App Term, 2d, 11th & 13th Jud Dists 2011]; Garfield v. Howard, 2002 N.Y. Slip Op 40422 [U] [App Term, 2d & 11th Jud Dists 2002]; see also Prime Residential Brooklyn IV, LLC v. Smith, NYLJ, July 17, 2003 [App Term, 2d & 11th Jud Dists] ). Thus, based on the record before us, defendants owe landlord rent at the rate of $1,600 per month for the months of November and December 2009, and January 2010, totaling $4,800. As plaintiff held two months of rent plus the security deposit totaling $4,547, plaintiff should be awarded the balance owed of $253. Thus, to the extent the judgment dismissed plaintiff's claim for rent arrears, it did not provide the parties with substantial justice according to the rules and principles of substantive law ( seeCCA 1807; Ross v. Friedman, 269 A.D.2d 584 [2000];Williams v. Roper, 269 A.D.2d at 126).
Accordingly, the judgment is reversed and judgment is directed to be entered in favor of plaintiff in the principal sum of $253.