Karole v. 340 W. End Ave., 2022-50317

CourtNew York Civil Court
Writing for the CourtRICHARD TSAI, J.
PartiesArlene Marie Karole, Claimant, v. 340 West End Avenue, LLC, Defendant.
Docket Number2022-50317,Index SC-016590-21/NY
Decision Date06 April 2022

Arlene Marie Karole, Claimant,
v.

340 West End Avenue, LLC, Defendant.

No. 2022-50317

Index No. SC-016590-21/NY

Civil Court of the City of New York, New York County

April 6, 2022


Unpublished Opinion

Arlene Marie Karole, claimant pro se.

Steven Kirschner, for defendant 340 West End Avenue LLC [Note: Mr. Kirschner is a non-attorney appearing on behalf of defendant in a small claims matter]

RICHARD TSAI, J.

On August 11, 2021, claimant Arlene Marie Karole commenced this small claims action against defendant 340 West End Ave, LLC, seeking $2, 655.86 in damages for, among other things, defendant's failure to return a security deposit for an apartment which claimant had leased from defendant. On February 1, 2022, claimant amended her claim to increase the amount of damages to $3, 851.89 (Court Exhibit I).

This court conducted a nonjury trial of this small claims matter on March 24, 2022, starting at 10:25 a.m. and concluding at 12:25 pm. Claimant appeared virtually via MS Teams; defendant appeared in person by Steven Kirschner, the president of Kay Equities, the management company of the apartment building. The trial was held on the record via FTR recording in Room 419 at 111 Centre Street, New York, New York.

Claimant testified at the trial and submitted 13 exhibits that were accepted into evidence, marked sequentially as Plaintiff's Exhibits A through M.

Kirschner appeared and testified on behalf of defendant. He submitted two exhibits that were accepted into evidence, marked as Defendant's Exhibits 1 and 2.

FINDINGS OF FACT

Recitation, as required by CPLR 4213 (b), of the findings of essential facts relied upon by the court:

Claimant was the tenant of a rent-stabilized apartment, known as Apartment A in a building located at 340 West End Avenue in Manhattan, which was owned by defendant 340 West End Avenue, LLC, pursuant to a written lease which would expire on October 31, 2021 (see Plaintiff's exhibit C, renewal lease). The building contains 6 or more dwelling units. Based on Kirschner's testimony and the lease, Kay Equities was the management company (see id.). Kirschner confirmed that defendant's true name was 340 West End Avenue LLC.

It is undisputed that claimant had tendered a security deposit to defendant, in the amount of $1, 327.93. Defendant held the security deposit in an interest bearing account with Chase Bank (Defendants' Exhibits 1, 2). As indicated on the bank statements, defendant kept a portion of the accrued interest, and the remaining portion was paid annually to claimant (id.). Although claimant denied ever receiving any accrued interest from Chase Bank, the court credits defendant's documentary evidence over claimant's testimony.

Claimant credibly testified that, in August 2020, she informed Kirschner by telephone that she was moving out of the apartment. In an email dated October 31, 2020, Kirschner wrote, "All rent must be paid for November and December. Security will be refunded within 30 days of you vacating the premises and leaving it empty and broom swept condition" (see Plaintiff's exhibit C, emails).

Claimant credibly testified that she had paid rent for November and December 2020, and that she vacated the apartment in mid-December 2020. For the purposes of this lawsuit, claimant stipulated that December 31, 2020 would be deemed the official date that claimant vacated and surrendered possession of the apartment.

Claimant credibly testified that, around the end of January and in February 2021, she telephoned and emailed Kirschner regarding the return of her security deposit, and that he did not return any calls.

On March 3, 2021, claimant sent, via certified mail with return receipt requested, a letter to Kirschner, demanding a return of her security deposit (Plaintiff's exhibit C, certified mail receipt and signed return receipt).

Claimant's letter dated March 3, 2021 states, in relevant part, "The exact amount of the security deposit as per my lease is $1, 734.76 plus all interest on it.... I demand a refund in the amount of $1, 734.76 plus all interest earned on it, and if I do not receive this within 10 days mailed to my name/address below, I will bring a proceeding in small claims court" (Plaintiff's exhibit C, letter).

In March 2021, claimant contacted Assemblymember Linda B. Rosenthal for assistance in getting her security deposit returned (Plaintiff's Exhibit H). Assemblymember Rosenthal emailed Kirschner with a letter from claimant regarding her security deposit (Plaintiff's Exhibit G).

On May 28, 2021, Kirschner emailed Assemblymember Rosenthal, stating, "We have spoken to your office on the phone about this matter. First, we have video of Arlene Karole still going in and out of the building for months after she supposedly vacated the apartment and collecting her rent from the premises. Second, the amount of her security on deposit is substantially less then [sic] stated as she never increased the security amount with her lease renewals. Her leases always stated the amount that was on deposit. We are willing to provide and show all to the courts" (Plaintiff's Exhibit D).

On or about May 28, 2021, Assemblymember Rosenthal sent Kirschner a formal letter, stating, in relevant part,

"Management has concocted ridiculous reasons to justify its refusal to return her security deposit, such as her visiting the building and falsely accusing her of feeding birds outside. I should remind you that none of these allegations hold pertinence in management's argument for keeping Ms. Karole's $1, 734.76 security deposit. The law regarding security deposits is clear"

(Plaintiff's Exhibit A). The letter then cited New York State Rent Stabilization Code 2525.4 and quoted General Obligations Law § 7-108 (id.).

On June 7, 2021, the Community Liaison/Scheduler for Assemblymember Rosenthal emailed Kirschner, stating, in pertinent part, "Even if everything that you are claiming is true, it is not grounds for withholding her security deposit. The tenant left the unit in good condition" (Plaintiff's Exhibit D).

Kirschner promptly replied by email, "I reiterate that we have way less than one month security on deposit and we are willing to tell our side of the story to the judge. I don't believe that your office should be strong arming us as this is a matter for the small claims court to decide. We will present all of our proof to the Judge and we will abide by the Judges [sic] decision" (id.).

Sometime between July 8 and July 13, 2021, Assemblymember Rosenthal's Deputy Chief of Staff left Kirschner a message to follow up with him about claimant's security deposit (Plaintiff's Exhibit F).

It is undisputed that defendant did not return any portion of the security deposit to claimant. Defendant submitted no evidence that it had provided claimant with an itemized statement indicating the basis for the amount of the deposit retained, if any. Kirschner stipulated that there was no damage to the apartment and that the apartment was left in at least a broom clean condition when claimant vacated the premises, which was supported by claimant's photographs of the apartment (Plaintiff's Exhibits I, J, K, L).

At trial, Kirschner testified that he did not return any portion of the security deposit because claimant mistakenly insisted that the landlord return $1, 743, which was not the amount of the security deposit which defendant held.

The court finds that, as a management company, Kaye Equities, knew or should have known of General Obligations Law § 7-108, the law governing the return of security deposits.

Additionally, the court finds that Kirschner's...

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