ADDITIONAL CASESLorenzo J. Postell, Counter-Claimant v. 199-14 32nd, LLC, Counter-Defendant; 30565/2018-IIOPINION Upon consent of both parties, a trial was held before an arbitrator of the Civil Court on January 31, 2019. (22 NYCRR §208.41[n][2]). The Claimant, 199-14 32nd, L.L.C. (“199 LLC”), sought damages in the amount of $2,500.00 for reimbursement of an insurance deductable. Sabena DiCamillo is the owner of 199 LLC and testified on behalf of the company. The Defendant/Counter-Claimant, Lorenzo J. Postell (“Postell”), sought to recover his security deposit in the amount of $1,800.00 as well as reimbursement in the amount of $264.07 for moving expenses, and he testified on his own behalf. Based upon the evidence presented, 199 LLC is awarded $700.00 for its claim, and the counter-claim by Postell in the amount of $2,064.07, is dismissed.The Facts199 LLC is the owner of a four-unit rental property known as 118-11 15th Avenue, College Point, New York (the premises). Postell rented an apartment on the top floor of the premises and resided there with his family. When he took possession of the apartment, Postell gave a security deposit of $1,800.00 to 199 LLC. On May 22, 2018, Postell’s unsupervised minor child started a fire in the kitchen that damaged not only Postell’s apartment, but also two additional apartments in the premises. The damage to Postell’s apartment was so severe, that there roof was compromised, and the apartment was rendered uninhabitable. 199 LLC contacted its insurance company, who arrived within three days to inspect the premises. During the month of June 2018, 199 LLC informed Postell that although it had begun paying out of pocket for urgent repairs almost immediately, the insurance claim would not be settled for several months, and as a result, the apartment would not be habitable for an undetermined time. 199 LLC told Postell that he should find a new place to live rather than wait indefinitely. Indeed, the parties agree that the contractors were still conducting repairs on the premise and Postell’s apartment was still not habitable by the time of the instant trial. 199 LLC produced an itemized statement from its insurance company showing a deductable of $2,500.00 and a list of damaged property that required over $64,000.00 to repair.Since Postell was unable to move back into the apartment after the fire, he rented a truck to move what property he could and incurred additional moving expenses totaling $264.07. Postell then demanded a return of the security deposit because 199 LLC had broken its written lease and failed to restore him to possession of the premises. 199 LLC refused to return any portion of the security deposit.The LawA tenant’s security deposit remains the tenant’s property and must be returned at the conclusion of the tenancy unless there is damage that is attributable to the tenant and exceeds normal wear and tear. (GOL §7-103[1]; Pignatello v. Dutchess Knolls, Inc., 51 Misc. 3d 145[A] [App. Term, 2d Dep't. 2016]). Once the tenant establishes that a security deposit was paid, the burden shifts to the landlord to establish the reasonable value and necessity for any services or repairs by expert testimony or with (1) an itemized bill either marked paid or with a receipt for payment, or (2) two estimates for any services or repairs, (id.; Tavernese v. Comer, 38 Misc.3d 128[A] [App. Term 2d Dep't. 2012]), by a preponderance of the evidence (Wicklund v. Mukhtyar, 55 Misc.3d 152[A] [App. Term, 2d Dep't. 2017]). Where a landlord claims damages in excess of the security deposit, an award in favor of the landlord is properly offset by use of the tenant’s security deposit. (Sulton v. Paige, 36 Misc.3d 143[A] [App. Term, 2d Dep't. 2012]; Hoffman v. Farucci, 31 Misc.3d 127[A][App. Term, 2d Dep't. 2011]).ConclusionsThe evidence is undisputed, and the parties’ contentions revolve around reimbursement for 199 LLC’s insurance deductable and reimbursement of Postell’s security deposit and moving expenses. Postell paid 199 LLC a security deposit of $1,800.00. The claim for damages caused by the fire, which is attributable to Postell, far exceeds normal wear and tear. (Pignattello, supra). The fire caused destruction to three apartments in the premises, and the damage was appraised to be in excess of $64,000.00. 199 LLC established payment of the deductable to its insurance company in the amount of $2,500.00. (Tavernese, supra).The law is well settled that the security deposit may be used to offset the cost incurred by a landlord to repair damage in excess of normal wear and tear. However, 199 LLC claim is not predicated upon the actual cost of repairs but rather upon reimbursement for payment of an insurance deductible. Unquestionably, the fire damage substantially exceeded normal wear and tear, requiring 199 LLC to use its’ insurance coverage to effectuate repairs of the premises. 199 LLC was then required to pay a deductable in the amount of $2,500.00 in order to effectuate those repairs. A deductible is defined as the financial responsibility borne by the insured party to cover the cost of the damages. (New York State Thruway Authority v. KTA-Tator Engineering Services, P.C., 78 AD3d 1566 [4th Dep't. 2010]). 199 LLC presented an invoice from the insurance company that established the value of the deductible. 199 LLC presented competent evidence of its damages. (James Bohl, CPA, P.C. v. Poffenbarger, 59 Misc.3d 128[A][App. Term, 2d Dep't. 2018] [offset established with a utility bill]; Sulton v. Paige, 36 Misc.3d 143[A][App. Term, 2d Dep't. 2012][offset established by proof of rental arrears]). 199 LLC’s evidence establishes, by a preponderance of the evidence, actual damages in excess of normal wear and tear to Postell’s apartment in the amount of $2,500.00. (Wicklund, supra). 199 LLC has met the burden for prosecution of its claim and in defense of the counter-claim.Since the deductable is 199 LLC share of the cost of repairing the fire damage, it is entitled to the entirety of its claim against Postell. The security deposit of $1,800.00 is properly applied to reimburse 199 LLC for the cost of the deductible, leaving a balance of $700.00 owed to 199 LLC by Postell. (Sulton, supra; Hoffman, supra). Accordingly, since 199 LLC has already retained Postell’s security deposit to offset damages, it is awarded an additional $700.00 in full satisfaction of its claim of $2,500.00.Additionally, any moving expense incurred by Postell was not occasioned by 199 LLC but was the result of the fire damage that rendered the apartment uninhabitable. (40 Eastco v. Fischman, 155 AD2d 231 [1st Dep't. 1989]). Accordingly, Postell’s counter-claim for the cost of moving expenses is dismissed.The foregoing constitutes the opinion of the arbitrator.Dated: January 31, 2019Jamaica, New York
