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LL Did Not Return Security - Small Claims - Any Advice?

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LL Did Not Return Security - Small Claims - Any Advice?

Postby Buffalotenant » Wed May 02, 2012 1:36 pm

My landlord didn't return my deposit fully. It was $600 and he returned $280.31. He is alledging I was running a "commercial enterprise" out of my apartment (I sell things on ebay now and again - none of his business) and I owe him $25 a month for that, and also alledges I soley damaged the side lawn with my car. Both estimates he got from the lawn services are dated after I moved out. He refused a walk through before I moved out, he indicated that the apartment was clean and in good condition when he saw it for the open house prior to my moving out, so there was no need. Then WHAM, he does this! I called him to negotiate. No dice. I wrote him a letter indicating I would settle for 1/3 of the estimate cost, as there are three apartments with vehicles and a one car wide driveway, so the alleged damages are everyone's responsibility. People often had to take the lawn to have access to their vehicles - no parking on the street from 10/31-4/1. Again, no dice. So, I filed in small claims. He turned around and counter-sued me for $2000 (the max you can sue in small claims) because he is a total wanker. He's claimaing I damaged the apartment (which I did not), I was running a business out of my home (again - why would he care? I sell things on ebay occasionally big whoop), and that my boyfriend was essentially squatting in my apartment (again - he was not, we just spent more time at my place because I had no roomate). He kept harping on the boyfriend thing for months when I told him repeatedly he did not live there. Finally he sent me a letter saying he was raising my rent by $75, and I told him to pound sand, I was moving out. I gave proper notice per lease terms, 60 days, and I paid the increased rent the last month as I should have, he gave me written notification prior to the rent hike which was also proper. He's a slumlord type of guy who doesn't fix anything, I even shoveled the driveway and my own path, and had to call him when the lawn hadn't been mowed in 6 weeks. Has anyone ever been in a similar situation and how did it turn out? I think I have a solid case to get all or at least most of my security deposit back?
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Postby TenantNet » Wed May 02, 2012 1:46 pm

Selling things on Ebay is indeed none of the LL's business. Even if it were, the LL can't take a fee out of the security deposit unless the lease provides for it.

Document his refusal for a walk-through, or his statements that things were in good shape.

As for the lawn, it might depend if you were soley responsible in the lease for the care of the law, which you say you were not.

On the countersuit, is he an individual, or a corporation? If the latter, he can't sue in small claims. (although I'm not sure about countersuits). The countersuit sounds like intimidation.
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Postby Buffalotenant » Wed May 02, 2012 2:04 pm

Correct, I was not to care for the lawn. There was allegedly a plowing service as well, which I never saw. i guess my biggest argument for lawn damage is that 1) he doesn't care for the property at all, 2) he's got 5 cars in and out of a one car wide driveway with no set parking rules or guidelines...so why should it be our responsibility? It probably happens every winter, this can't be the first time. He also admitted on a voicemail message that he can't confirm there was no damage to the lawn before I moved in.

He is countersuing as an individual. On the initial filing in small claims I also indicated that he returned my deposit with a personal check. I am thinking there is some commingling going on there.

I agree, I think the counter-claim is an attempt to bully me. He went down there and filed for the maximum amount you can file in small claims. In my mind, he's fishing hoping he can get something for nothing.

He doesn't have any evidence. He didn't SEE me do the damages, he refused a walkthrough, and the business/boyfriend stuff is all inference on his part.
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Postby TenantNet » Wed May 02, 2012 5:11 pm

Don't make it more complicated than need be. You didn't do the damage, there were other tenants in the building and he has no proof or basis that you did it. Get rid of all the extraneous stuff.

Countersuing as an individual .... but is the ownership of the building in a corporate name? Then he can't commence a small claims suit, but I don't know about countersuits. You need to check the rules in your locality.

The boyfriend stuff is irrelevant.
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Postby ronin » Sun May 06, 2012 2:10 am

Actually tenant, he can commence a claim in small claims court for an LLC. It is called a commercial claim, but it's exactly the same small thing. You can check it out on the nycourts website. Its been around since the early 90's. I know. I've used it.

Buffalotenant, make sure to be careful of going to an arbitrator. The court will try to force you to go to an arbitrator, but with L&T style issues it is very dangerous as all are attorneys and think they are in the 1%. Since there is no record and no appeal you are at risk of an arbitrator doing something arbitrary and completely illegal.

Make sure your case goes before a judge. There will be a record and if you lose the appeal is $25 (or maybe $45 bucks + transcript of about $35-70) and you can argue actual law and evidence. Also, with respect to the appeal, I am also fairly certain that he will have to hire a lawyer to be heard by the appellate court. He has to prove you caused actual damages. He cannot retroactively go back in time and try to rewrite your lease.

Don't argue with him about it, let him say that nonsense to the judge. Then point out you have a signed lease and nothing he says about a $25 fee is in it.

Good luck.
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Postby TenantNet » Sun May 06, 2012 8:24 am

But Ronin, AFAIK you are not a LLC. I'm still not sure I buy that a LLC can commence a claim in small claims court, but even if so, can the non-attorney owner represent the LLC by himself or must he hire a lawyer? In general see CPLR 321(a), although there are exceptions. For example, NYC Civil Court Act Section 110(l) provides an exception for HP cases. One person cited Scherer claiming that LLC's must use an attorney in summary eviction cases.

The question is not always clear, but this did come up recently in a listserve I monitor:

See:

"An LLC, like a corporation or voluntary association, is created to shield its members from liability and once formed is a legal entity distinct from its members (see Tierra West Apts., LLC v. Bobadilla, N.Y.L.J., Apr. 21, 1999, at 27 [Civ.Ct., New York County]; Monte Carlo, LLC v. Yorro, N.Y.L.J., May 7, 2003, at 25 [Dist.Ct., Nassau County] ). Accordingly, like a corporation or a voluntary association, the LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the State of New York ( id.; see also Limited Liability Companies: Tax and Business Law, Chapter 5, Paragraph 5.05[1][e]; Ribstein and Keatinge on Limited Liability Companies, Chapter 3)."

Michael Reilly Design, Inc. v. Houraney 40 A.D.3d 592, 835 N.Y.S.2d 640 N.Y.A.D. 2 Dept.,2007

and

"No attorneys name is specifically designated on the summons and complaint. CPLR 321(a) prohibits self-representation by a corporation and requires a corporation to appear by an attorney. This requirement extends to limited liability companies as they are legal entities distinct from their members [Michael Reilly Design Inc. v. Houraney 40 A.D.3d 592, 835 N.Y.S.2d 640 (2007)]. No where in the pleadings is the name of an attorney disclosed."

Midland Funding LLC v. Tagliafferro 33 Misc.3d 937, 935 N.Y.S.2d 249 N.Y.Sup.,2011
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Postby ronin » Mon May 07, 2012 9:55 pm

Well I definitely know that they can go without on defense, and I recall them doing it sometimes on offense. But your case law is pretty specific, so it might have just been that judge overlooked the issue.
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