Accordingly, under General Obligations Law § 7-103 (1) a security deposit remains the property of the tenant and must be returned at the conclusion of the tenancy absent proof that the tenant caused damage beyond that attributable to ordinary wear and tear (Mazzarelli v Moniaci, 21 Misc 3d 129[A], 2008 NY Slip Op 51967[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). Security deposit claims come regularly before the local courts. Nevertheless, there appears to be no cases that precisely enumerate the elements and burdens imposed upon the tenant and the landlord under General Obligations Law § 7-103 (1).
The court holds that in a security deposit case, a tenant must prove the following elements: (1) the tenant paid a security deposit to the landlord, (2) the tenant caused no damage to the apartment beyond ordinary wear and tear, (3) the tenant made a demand for the return of the security deposit, and (4) the landlord refused to return the security deposit.
Once those elements are met, the tenant has established that the security deposit is her property. At this point, the burden shifts to the landlord. For the landlord to retain a security deposit he must prove two things: (1) the landlord must show that the tenant caused damaged to the property beyond ordinary wear and tear and (2) the landlord must prove what cost was incurred (or is estimated to incur) in order to remediate the extraordinary damage caused by the tenant.