Opinion
Index No. CV-21-223
05-09-2022
William Wood and SUSAN WOOD, Plaintiffs, v. Maddie Bosch a/k/a MATTIE BOSCH, Defendant
William and Susan Wood, Anthony M. DeFazio, Esq., Anthony DeFazio Law, PC
Unpublished Opinion
William and Susan Wood, Anthony M. DeFazio, Esq., Anthony DeFazio Law, PC
Gregory J. Johnston, J.
Plaintiffs, William and Susan Wood, commenced a civil action in this court alleging two separate causes of action against their former tenant, Maddie Bosch. As to the first cause of action, plaintiffs allege that defendant breached an oral month-to-month rental agreement whereby she agreed to pay $1,500 a month in rent. Specifically, plaintiffs allege that defendant failed to pay rent for the months of May, June, July, August and September 2020. For their second cause of action plaintiffs allege defendant caused damage to personal property during her tenancy. Plaintiffs are seeking damages in the amount of $7,500 for unpaid rent and $7,500 for damage to the rental unit.
On April 29, 2022, at 10:00 a.m. a bench trial was held regarding this matter. Plaintiffs, Susan and William Wood, were present and appeared pro se. Defendant, Maddie Bosch, was present and was represented by attorney Anthony DeFazio.
I have heard the testimony of the witnesses and have had the opportunity to assess their credibility. After a thorough review of the testimony and evidence I make the findings and determination set forth herein.
Testimony
Plaintiff Susan Wood testified that defendant was a tenant pursuant to an oral lease for approximately nine years. No security deposit was provided during the tenancy. At the beginning of the tenancy the monthly rent was $900 a month. In 2018 the monthly rent increased to $1,500 a month. Plaintiff testified that rent was due on the 15th of each month. Plaintiff further testified that defendant failed to make any rental payments from May 2020 thru September 2020. On or about May 22, 2020, plaintiff sent the defendant a thirty (30) day notice to quit the premises. The defendant vacated the unit on or about October 9, 2020. Ms. Wood further testified that when she was able to gain access to the apartment, she observed damage rendering the apartment uninhabitable. Specially, plaintiff alleged that there was damage to the walls, hardwood floors, refrigerator, stove, bathroom and kitchen. In support of this claim plaintiff introduced a series of photographs which were entered into evidence without objection. Plaintiff's Exhibit 2 is a packet of fifty-six photographs which depict the work that was done to rehabilitate the apartment from October 2020 to December 2020. Plaintiff's Exhibit 3 is a packet of fifty-nine photographs that were taken from October 9 thru October 12, 2020, and depict the condition of the apartment on those dates. Ms. Wood introduced a handwritten summary of expenses (Plaintiff's Exhibit 4) as well as copies of receipts for the products and services used to fix the apartment (Plaintiff's Exhibit 5), which were both entered into evidence without objection. Ms. Wood testified that it took approximately two and a half months to complete the work. Ms. Wood stated that the apartment was in new condition when the tenant moved in. Plaintiff did not have any pictures or any other documents to show the condition of the apartment when the defendant moved in. During cross-examination plaintiff acknowledged that during the defendant's approximate ten-year tenancy there was no maintenance or upkeep done to the apartment, although she contended that was a result of defendant not allowing her to access the apartment.
Defendant, Maddie Bosch, testified on her own behalf. Ms. Bosch stated that she did live in the apartment and moved out late in September or early October, 2020. She testified that the apartment was in a clean condition when she left. She stated that during her tenancy the refrigerator was in proper working order. In reference to the stove, Ms. Bosch testified that during her entire tenancy three of the four burners were not in working order. She further testified that the landlord never offered to repaint the apartment during the ten years she lived there, and that she was not offered a walk-thru when she moved out of the apartment. Ms. Bosch did state during cross examination that she last time she paid rent during her tenancy was approximately June 2020.
Standard of Proof
Plaintiff bears the burden of proof in this matter and must demonstrate by a preponderance of the evidence that the defendant: 1) breached on oral contract for the payment of rent; and 2) caused damage to property and is legally responsible for that damage.
Finding of Facts and Determination
1) Breach of Oral Month-to-Month Rental Agreement
This court finds that there existed a month-to-month rental agreement between the parties. Commencing in 2018, and continuing until the tenant vacated the apartment in October 2020 the monthly rental amount was $1,500. The plaintiff alleged, and the defendant essentially conceded, that there were no rental payments made for May, June, July, August and September 2020. This issue does not seem to be in dispute. The court finds that the plaintiffs have met their burden and established by a preponderance of the evidence that defendant breached a month-to-month rental agreement when she failed to pay rent. This court further finds that the rent during this time period was $1,500 per month and that the defendant did not pay rent from May 2020 thru September 2020. Accordingly, plaintiffs are awarded $7,500 for their first cause of action.
2) Damage to personal property
This court finds that defendant was a tenant of the subject premises for approximately ten years. During that ten-year period there was no maintenance done to the apartment by plaintiffs. No security was requested or posted during defendant's tenancy. The plaintiffs undertook work to clean and update the apartment after the tenant vacated the unit on or about October 9, 2020.
To establish damage to personal property there must be some testimony as to the property's value, or from someone familiar with the property's condition, at the time of the loss. (Charles v. Bowland, 57 Misc.3d 150(A), [2017]. Additionally, any award for such damage should be based on the value of the property immediately before the loss, and not the cost of new items. Id. If the personal property is destroyed, the market value at the time and place of their destruction should be shown. (Deutsch v. Nat'l Props., 19 A.D.2d 823 [1963]). If the property is only damaged, the difference in value immediately before and immediately after the damage should be shown. Id.
There is no documentary evidence to establish the condition of the apartment prior to when the defendant moved in. Additionally, there is no evidence of the value of the personal property at the time of the loss. As such, this court is left to evaluate this claim based on the testimony of the parties and photographs showing the condition of the apartment subsequent to when the defendant moved out. The pictures demonstrate that the apartment needed some maintenance including repainting the walls, sanding and staining the floors and replacing some appliances. The court finds that these measures are not inconsistent with what would be required for normal wear and tear following an almost ten-year long tenancy during which there was no maintenance done to the apartment. (See, e.g. Camacho v. Paduch, 60 Misc.3d 837 [2018]). Although plaintiff testified that the bathroom and kitchen needed to be gutted, the photographs do not support that claim. The lack of evidence regarding the condition of the apartment prior to when the defendant moved in, the lack of evidence that the tenant caused damage to the apartment beyond normal wear and tear, and the lack of evidence of the value of the property immediately before the loss require denial of this claim. Based on the foregoing, the court finds that the plaintiff's have failed to meet their burden on this issue, and therefore the claim for damage to personal property is denied.
This shall constitute the decision and order of the court.
SO ORDERED.