In the instant case, it is undisputed that plaintiff paid $1,175 as her first month's rent for June 2019 and, in addition, paid $3,525 as a security deposit (which represented three months of rent at the rate of $1,175 for each month), for a total payment to defendant's agent of $4,700. Plaintiff is suing for the return of those monies based on the alleged poor condition of the subject apartment delivered to her on May 31, 2019 (the undisputed date plaintiff received the keys to the apartment) and because of defendant's refusal to refund her payment when she sought to terminate the lease due to the apartment's condition. Defendant countersued for back rent for the months of July and August of 2019, in addition to other fees (such as attorney fees and late fees; however, these fees will not be{**65 Misc 3d at 894} granted since, respectively, defendant had no attorney representation in this case and plaintiff was legally justified in not paying rent for the two subject months).
At trial, two employees of Empire presented testimony in defense of plaintiff's claim and in support of defendant's counterclaim. Mary Kelly of Empire appeared both at the first appearance in this case and at trial on behalf of defendant, and she confirmed that Empire had informed defendant of the trial. The second and only other witness at trial on behalf of defendant was an employee of Empire who does maintenance work. On behalf of defendant, Ms. Kelly submitted evidence at trial including a "Move In" inspection report (defendant's exhibit C) as well as a move out "EPM Apartment Inspection" report (defendant's exhibit B) reflecting that the subject apartment was inspected by Empire on August 5, 2019, the undisputed date that plaintiff returned the apartment keys to Empire's office.