I sued former landlord in small claims court for withholding a portion of my deposit for repainting. In my complaint, I only sought the amount withheld without stating my basis. I since found NY Gen. Obl. Law 7-103 which requires the landlord to hold my deposit in a trust account (which the landlord did not), and case law finding that failure to do so results in an automatic return of the entire deposit. So I served a document subpoena asking for bank account records, and before and after photos to see what work was done. The landlord (who lawyered up) filed an order to show cause why my subpoena should not be quashed - stating that all those records/photos/etc I sought are overbroad and irrelevant. I plan on filing an affidavit in response, along with a cross mtn/show cause. Good idea?I limited my request to records showing any trust account where my deposit was held, any interest accrued, and any notice the landlord provided me (all of these per NY Gen Ob Law 7-103 to -109). Landlord simply asserts that because I'm only seeking the return of the withheld portion, it is irrelevant where the deposit was held. Likewise, the landlord provided an invoice showing "repainting, cleaning, and plastering" expenses, deducting the entire amount -- and simply uses that as the basis to avoid showing me before and after photos, work orders, etc. The subpoena was returnable for Sep 4 (initial hearing), but the hearing was rescheduled to Dec 11 -- can I also argue that the motion to quash (received two days ago) is untimely because it was filed two months after the original return date? Any potential issues with moving for my own order to show cause why my deposit should not be returned as a matter of law (under 7-103)?
You need to respond to the motion to quash. Before and after photos are certainly relevant if the landlord withheld money due to alleged repairs. A request for bank records is probably over broad if you asked for all the records. I have not read the statute you are relying on but assuming it is applicable you should limit your request to records showing if the money was in a trust account.
I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for over 18 years. The above answer, and any follow up comments or emails, is for informational purposes only and not meant as legal advice.
If you want my opinion, . . .call the landlord and SETTLE.
Far be it for me to deprive one of my colleagues an opportunity to make a fortune in attorneys fees on a landlord-tenant security deposit Small Claims dispute -but: ENOUGH ALREADY. Call the landlord. Offer to withdraw your Subpoena(s) and tell him he can keep a small amount of the security deposit; NOT as an admission of liability but because this dispute is becoming unnecessarily expensive and protracted.
Get it done already.
Otherwise, tell him you'll go forward with the case, and that you'll win because (unless you REALLY messed up the walls) usual "wear and tear" on walls is absolutely permissible and not a basis to withhold security. It is HIS obligation to paint the apartment for the next tenant.
It doesn't matter who is right or wrong at this point. It just matters that it's still going on. Get done with it already.
Dear New York Tenant:
Whether the landlord commingled the security with the landlord's own funds, deposited the security into a bank, did this with interest or without, practically makes no difference, since the landlord is not entitled at all to retain the security deposit for any purpose other than to repair damage caused during the tenancy above ordinary wear and tear. Your burden of proof was simple right from the start. The landlord did not return the security and the lease provided for a security deposit and you have evidence of delivery of the security.
Read the section relating to security deposits in the Tenants Guide published by the New York State Attorney General:
You still need to prove the making of the security deposit to prevail on the claim of a right to return and as long as you could sustain that burden of proof, the landlord would need to have evidence of damage to the apartment. You could simply cross examine the landlord about the deposit in a bank account. Since the landlord never informed you the security was deposited, and the landlord cannot establish making the deposit, there is no need for bank records, a subpoena and the motion practice.
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.
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