Opinion
2016–319 K C
04-06-2018
Lawrence JOHNSON, Respondent, v. Deborah MARCANO, Appellant.
Deborah Marcano, appellant pro se. Lawrence Johnson, respondent pro se (no brief filed).
Deborah Marcano, appellant pro se.
Lawrence Johnson, respondent pro se (no brief filed).
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.
Plaintiff commenced this small claims action to recover a $1,300 security deposit from defendant, his former landlord. At a nonjury trial, plaintiff testified that, after the parties' written lease for a residential premises had expired in July of 2014, the parties had orally agreed to continue the tenancy, on a month-to-month basis, "until March" of 2015, not through March 2015; that, on February 12, 2015, plaintiff had informed defendant of his intent to vacate the premises at the end of the month; that, on February 28, 2015, plaintiff had vacated and attempted to return the key, but defendant had not been at home to receive it; and that, on the following day, March 1, 2015, plaintiff had handed the key to defendant's cousin at the premises. Defendant testified that there was a month-to-month tenancy through March of 2015 and that she had declined to return the security deposit on the ground that plaintiff was liable for the March 2015 rent by virtue of the parties' agreement, or because he had stayed until March 1, 2015, or based on plaintiff's failure to provide her with a 30–day notice of his intent to vacate. The Civil Court, making no finding as to the nature of the tenancy, awarded plaintiff the principal sum of $1,300 on the ground that the security deposit could not be used for rent.
In a small claims action, our review is limited to a determination of whether "substantial justice has ... been done between the parties according to the rules and principles of substantive law" ( CCA 1807 ; see CCA 1804 ; Ross v. Friedman , 269 AD2d 584 [2000] ; Williams v. Roper , 269 AD2d 125 [2000] ).
At the outset, we note that, contrary to the Civil Court's ruling, a landlord is generally entitled to retain a security deposit as an offset against unpaid rents (see e.g. Jimenez v. Henderson , 144 AD3d 469 [2016] ; Pickering v. Chappe , 29 Misc 3d 6 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010] ).
Upon a review of the record, we find that the proof established a valid surrender on February 28, 2015, notwithstanding that plaintiff had failed to return the key until the following day. While a surrender of keys, which are "symbol[s] of possession ... as a general rule, constitute[s] an act evidencing an intent to offer a surrender" (2 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings, § 26:16, at 274 [5th ed 2017] ), "if the keys are not surrendered, this fact alone is not conclusive that the premises have not been surrendered" (id. at 275; see e.g. Pezzo v. 26 Seventh Ave. S., LLC , 144 AD3d 778, 779 [2016] ; First Natl. City Bank v. Wall St. Leasing Corp. , 80 Misc 2d 707, 709 [Civ Ct, NY County 1974] ). Upon plaintiff's physical removal and his attempt to return the key, defendant had the right of entry onto the premises and to exercise possession thereof, and thus, plaintiff's inability to hand over the key until the following day did not establish "a failure to surrender" on February 28, 2015 ( Pezzo v. 26 Seventh Ave. S., LLC , 144 AD3d at 779 ; see also First Natl. City Bank v. Wall St. Leasing Corp. , 80 Misc 2d at 709 ). However, the trial proof raised significant, undecided questions as to whether the parties' agreement was for a month-to-month tenancy or for a specific lease term ending either on February 28, 2015 or March 31, 2015, the resolution of which is critical in determining plaintiff's right to the return of his security deposit. Consequently, substantial justice between the parties requires that a new trial be held.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.