Berger v. UEI 642 Tenth, LLC

Max Berger, Plaintiff-Appellant, against UEI 642 Tenth, LLC, Defendant-Respondent. Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Debra R. Samuels, J.), entered on or about January 24, 2018, in favor of defendant dismissing the action. Per Curiam. Judgment (Debra R. Samuels, J.), entered on or about January 24, 2018, reversed, without costs, and judgment directed in favor of plaintiff in the principal sum of $2,500. Civil Court erred in dismissing plaintiff-tenant's action to recover his security deposit. Inasmuch as it was undisputed at trial that plaintiff vacated the apartment premises and returned the keys five days after the end of his lease term, which expired on August 31, 2017, Civil Court erred in determining that defendant-landlord was entitled to use and occupancy for the entire month of September 2017. No monthly tenancy was created, since plaintiff did not offer, and the defendant did not accept, any rent payment after expiration of the lease (see Real Property Law § 232-c; Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]). Plaintiff is only liable for use and occupancy for the five days beyond expiration of the lease that he remained in possession (see C & N Camera & Elecs. v Farmore Realty, 178 AD2d 310, 311 [1991]), an amount which we have determined to be $500. After subtracting this sum from the security deposit, we award plaintiff judgment in the principal sum of $2,500. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: February 28, 2019