Harris v. Diorio

Candra Harris, Respondent, against Peter Diorio, Appellant. Clifford L. Davis, Esq., for appellant. Candra Harris, respondent pro se (no brief filed). Appeal from a judgment of the City Court of Peekskill, Westchester County (Reginald J. Johnson, J.), entered October 14, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $800. ORDERED that the judgment is affirmed, without costs. It is undisputed that plaintiff gave defendant an $800 deposit to lease an apartment, pending further payment of a security deposit in the sum of $1,750 and the execution of a written lease. The lease was never executed, and plaintiff never took possession of the premises. Plaintiff commenced this small claims action to recover the $800 deposit. Following a nonjury trial, the City Court awarded plaintiff the principal sum of $800. 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" (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]). The receipt signed by defendant, upon plaintiff's payment of the $800 deposit, contained [*2]no provision for defendant's retention of the deposit in the event the lease was never executed. The agreement at issue was contingent upon the parties' executing a formal lease and, thus, under the circumstances presented, constituted an unenforceable agreement to agree (see Rivera v Alaimo, 54 AD3d 325 [2008]; Butten v Maggio Realty LLC, 46 Misc 3d 136[A], 2014 NY Slip Op 51885[U] [App Term, 1st Dept 2014]). Consequently, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see UCCA 1804, 1807; Ross, 269 AD2d 584; Williams, 269 AD2d 125). Accordingly, the judgment is affirmed. TOLBERT, J.P., GARGUILO and BRANDS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 22, 2017