Moore v. G.M.B. Corp.

PER CURIAM. The appellant, as plaintiff below, filed suit to recover his security deposit of $810.00 after the termination of his 3 year apartment lease. The appellee did not return the deposit and demanded sums in excess of some $1900.00 claiming tax and utility increases. During the lease, the property became a condominium. Thereafter there was a tremendous increase in the tax assessment of approximately four times the amount when the lease started. The evidence does not appear to be in substantial dispute. The lower court found for both the plaintiff below on his claim and for the defendant below on its counterclaim for unpaid rent; found that each would pay costs and attorney’s fees to the extent that each prevailed. We have examined the entire record and conclude that the evidence is insufficient to sustain the Judgment except as to a return of the deposit as may be offset or modified by the plaintiffs’ liability for any increased utility costs. As to the tax increase we find that the plaintiff is not responsible. The increase was so severe that it could not have been contemplated by the parties at the time of execution of the lease and occurred as a result of the actions of the defendant solely which did not result in any benefit to the plaintiff. We are impressed by the decision of Gold Metal Stamp [2] Co. v. Carver, 270 N. E. 2d 834 (Mass. 1971) which relies upon Bryant Park Bldg., Inc. v. Acunto 133 Misc. 225, 231 N.Y.S. 451. As to the motions for attorney fees filed by both parties, we find that neither party should prevail. This case is not one contemplated by the statute. Accordingly, the final judgment below is affirmed in part and reversed in part; and is remanded to the trial court for further proceedings in accordance with this opinion. REVERSED AND REMANDED.