Shipman v. Swift
| Decision Date | 14 December 2018 |
| Docket Number | SC2018-23425 |
| Citation | 63 Misc.3d 905,100 N.Y.S.3d 482 |
| Parties | Jessica SHIPMAN and Justin Fazio, Plaintiff, v. Brian SWIFT and Ruth Swift, Defendants. |
| Court | New York City Court |
Plaintiff by Jessica Shipman, Pro Se
Defendants, by Peter Charnetsky, Esq.
In their complaint, dated August 30, 2018, the plaintiffs seek $ 1,000.00 for the full amount of their security deposit emanating from a rental arrangement with the defendants, along with $ 400.00 for payments of $ 200.00 to each of Ms. Shipman's father and brother for helping the plaintiffs move out of the premises. The hearing was held on November 13, 2018.
Plaintiff, Justin Fazio, was not present for the hearing. Plaintiff, Jessica Shipman, testified for the plaintiffs, introducing several pictures representing the condition of the rental property when the plaintiffs made arrangements to move into the property, as well as after they moved out. She also introduced a long thread of text messages between the parties, an application for the rental, and a letter from the defendants' attorney. All of the exhibits were received.
Both defendants testified, though Brian Swift presented a great majority of their case. The defendants offered a number of exhibits, including the Lease Agreement between the parties, a letter seeking reimbursement from the plaintiffs for damages to and missing items from the property, which also served as an explanation for not returning the plaintiffs' security deposit, along with four receipts, all of which were received.
Ms. Shipman and Ms. Swift had previously appeared on the morning of October 24, 2018, but Ms. Swift requested an adjournment due to health concerns involving Mr. Swift, as well as to procure counsel. The adjournment was granted. The defendants made a motion to dismiss the case at the commencement of the trial based upon the absence of plaintiff, Justin Fazio. Jessica explained that Mr. Fazio was at work and could not afford to lose the time, advising the Court that she would present their case. As Ms. Shipman was able to present the case and testify for the plaintiffs, the defendants' motion was denied.
Plaintiffs' case
According to Jessica, the plaintiffs signed a one-year lease agreement with the defendants, to begin on April 1, 2018. As part of the agreement, the plaintiffs paid a $ 1,000.00 security deposit, along with the first and last month's rent prior to the start of the lease. The premises to be rented was a house located on Dan Main Rd., in Norwich, which had belonged to Brian's mother, who had recently passed away. As explained by Jessica, the plaintiffs made arrangements with the defendants to move into the premises a few days prior to the start of the lease. Part of the arrangements were premised upon the plaintiffs helping to move furniture belonging to Brian's mother into the basement, which would be subsequently moved by a moving company. Ultimately, the plaintiffs moved into the premises 3-5 days prior to the April 1 start date, but had been involved in moving items from the premises approximately one week prior thereto, at which time Jessica documented the condition of the premises through several photographs she had taken of the premises. P-1. Based upon the photographs, there was much that needed to be moved, thrown out, and otherwise done for the plaintiffs to be able to effectively move into the home.
Jessica explained that the defendants had approved of the plaintiffs having two dogs at the premises (see , Application for Rental, marked and received as P-5), but that the breed of the dogs had later caused problems for the defendants to obtain insurance. This led to the defendants making a demand that the plaintiffs vacate the premises by the end of July. This request was memorialized via a string of text messages admitted into evidence. P-3. The plaintiffs moved out per the defendants' request, at which point in time Jessica took a number of pictures to document the condition of the premises. See , P-2. Based upon the photographs, the home was in rather pristine condition, with no observable debris or damages throughout. Jessica inquired about the plaintiffs' security deposit following the defendants' demand that the premises be vacated, as well as after the plaintiffs had vacated the premises, but never received a confirmation one way or another, which led to their filing this claim on August 30, 2018, one month after they had vacated the premises.
Jessica otherwise testified to an episode where a contractor came to the premises to complete some work, but had left upon learning that the plaintiffs' two children were home from school due to illness. She also testified to contractors coming to the premises unannounced for various repairs or improvements planned by the defendants, and to another episode where the defendant wanted to show the bathroom for prospective improvements, but she refused entry because her children were asleep in a room through which the defendant and contractors would have to walk to gain entry to the bathroom. To address the defendants' concerns, Jessica took pictures of the bathroom and sent them to Brian, which, to her, seemed to quell any problems with the defendants.
Jessica denied receiving anything in writing or otherwise regarding a financial institution or account information concerning the plaintiffs' security deposit. Almost two months after filing their small claims complaint, the plaintiff received a letter from the defendants in response to their request for return of their security deposit. D-G. The letter lists several "deficiencies" concerning the condition of the premises when the plaintiffs moved out and requests payment in the amount of $ 4032.56 for those listed items, along with an itemization of the cost of each listed item. Jessica otherwise explained that the house was in as good of a condition — if not, better — than when they moved in.
On cross, Jessica denied stealing any items that the defendants listed as missing, such as a log splitter, string trimmer, or lamps, denied breaking any items, such as the refrigerator handle, explained that her father fixed the lawnmower, which was regularly used by the plaintiffs to mow their lawn, and that the locks were changed on the premises when they went to remove a few last bags of garbage after vacating. Although it was not part of any payment sought by the defendants, Jessica otherwise denied that anyone smoked in the premises and denied that the plaintiffs used any oil to heat the premises from April through July. She acknowledged that they used propane for hot water and to cook and that the shower head was replaced, but that the original one was left in the bathroom.
George Shipman, Jessica's father, testified for the plaintiffs. George testified to helping the plaintiffs move into the property, which also involved moving items belonging to Brian's mother, and to helping the plaintiffs move out of it. The crux of his brief testimony was that the property was in the same condition when he helped the plaintiffs move out as it was when he helped them move in. While he was initially called to support the plaintiffs' moving expenses claim, Jessica withdrew that claim after George explained that he does not typically charge his daughter to move her belongings when changing residences.
Ruth Swift testified briefly and primarily to her communications with the plaintiffs about moving out due to the defendants' concerns with insuring the premises. She was not present or involved when the plaintiffs were making arrangements to move into the home, and she did not inspect the premises after they moved out.
Brian Swift testified as to the list of items he found damaged or missing. In this regard, he explained that the Sheriff's Department is investigating the missing items he included on his list, but had no paperwork, such as a supporting deposition or property loss statement, to verify such a loss or alleged larceny. He explained that the lawn mower repair person charged $ 475.00 to repair the John Deere lawn tractor, even though it was already fixed when he arrived at the property. Interestingly, he had a receipt dated October 23, from a small engine repair shop, but testified that he was only seeking the pickup and delivery cost of $ 36.00 associated with this repair. D-D. Brian also testified that the refrigerator handle had been broken and was propped up in a fashion to disguise the break.
He proceeded to testify that the contractor who arrived and decided to reschedule upon learning of the plaintiffs' sick children charged $ 200.00 for the time he set aside to complete work at the property. He explained that the plaintiffs failed to keep up with the lawn mowing, requiring him to pay $ 70.00 to have the lawn mowed with a brush hog attachment, but his receipt for the job reflected that it was completed on August 24, 2018, over three weeks after the plaintiffs moved out. D-F. He also testified to paying a moving company $ 1,600.00 to move his mother's furniture and other items from the premises, introducing a receipt reflecting the same. D-E. In this regard, he explained that he sought reimbursement because he hired the company on short notice to accommodate the plaintiffs' move, telling the Court that he had another company that was scheduled to do the move for $ 400. Nevertheless, the defendants sought $ 1,600.00 from the plaintiffs for moving his mother's belongings from the premises.
While Ruth had already testified, Brian explained that she used measurements he provided from examining the fuel oil tank to calculate the $ 512.00 figure they requested from the plaintiffs for fuel oil they claimed was used and not re-filled by the plaintiffs. In this regard, he presented a receipt for $ 574.64, which was for 221.10 gallons delivered on February 10, 2018 (Brian testified that the house was winterized before the plaintiffs moved in, with...
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