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 explanation for not returning any portion of the
security deposit was a pretext for not returning the security deposit. Kirschner admitted that there
was no damage to the apartment, and that the apartment was left in at least broom clean
condition. Neither were there any rent arrears at the time claimant moved out.
CONCLUSIONS OF LAW
Even in the relatively
relaxed and informal atmosphere of a small claims action, the claimant has the prima facie
burden of proof at trial to establish, by preponderance of the evidence, a basis for the defendant's
liability (see Parker v Nolan, 42
Misc 3d 144[A], 2014 NY Slip Op 50275[U] [App Term, 1st Dept 2014]; De Meo v Consolidated Edison Co. of NY,