The court has reviewed the entire eviction proceeding and finds no waiver by defendant regarding the return of the security deposit.[FN3] The court views defendant's counterclaim herein as if defendant independently asserted it in its own small claims action and thus it is procedurally viable. However, the statute requires and defendant has the burden of proof to show two estimates or a paid receipt to establish its damages (Uniform Justice Ct Act § 1804; Borman v Purvis, 299 AD2d 615 [3d Dept 2002]). As indicated above, no damage amount was set forth, nor proved at trial by a showing of two estimates or a paid receipt. Therefore, that cause of action must be dismissed. Defendant's claim for rent also fails as a specific waiver was [*3]contained in the previous eviction proceedings.[FN4]
Footnotes
Footnote 1:Tenant was allowed to smoke in her apartment for three of her four year tenancy. Landlord submits a "Move Out Inspection Form" signed by tenant (exhibit B) acknowledging "heavy smoke damage" but no damage figure was presented to the court.
Footnote 2:A typical fee-shifting provision reads as follows: "The prevailing party in any dispute arising out of or related to this agreement shall be entitled to an award of its reasonable costs and attorney fees."
Footnote 3:Page 13 of the February 28, 2018 transcript contains a specific reservation by defendant to assert a small claims cause of action if damages exist. Page 14 shows plaintiff's request for a security deposit refund.
Footnote 4:Page 3, line 17FF of the February 20, 2018 transcript contains a specific waiver for three months' (Dec., Jan., Feb.) rent as defendant was paid in full.