John W. Datz et al., Plaintiffs, v. Theodore Wolfe, Defendant, 42 Misc. 2d 956

Benjamin Zipper, J. The tenants sue for recovery of $100 security on a month-to-month tenancy. The tenant (wife) gave two or three days’ notice and left the premises while the rent was fully paid to the first of the next month. The husband was away in military service when the wife made the rental arrangement about February 1, 1964. The tenants claim that due to a prior actual and one attempted entry of the apartment by strangers the wife could not safely remain in the premises. The husband is still in military service.

The landlord does not deny the testimony given by the tenants but claims that he was entitled to 30 days ’ notice and therefore, refused to return the deposit. The testimony does not reveal when the premises were rerented, but the landlord indicated that the premises were not vacant very long. There was no testimony to indicate whether the money on deposit was properly deposited in accordance with

section 233 of the Beal Property Law. This appears to be a case of novel impression. There appears to be no reported case which holds that a landlord may offset rent for the 30-day period if the notice is not given according to statute. Comparing

section 232-a of the Real Property Law which only applies to notice of termination of tenancy in New York City, it is quite clear that the purpose was really to fix a cutoff date for purposes of disposses by a landlord. There is nothing said in

section 232-b of the Real Property Law as to what happens if a tenant fails to give 30 days’ notice and has not defaulted otherwise. The landlord has not proven (

a) that the security was properly deposited in accordance with

section 233 of the Real Property Law, (

b) any specific damages sustained by the landlord. There was no counterclaim by the landlord as such. It would appear that the position taken by the court in Stern Juvenile Furniture Co. v. Rochman (203 N. Y. S. 2d 360) is applicable to the case at bar. Judgment is hereby given to the plaintiff Frances R. Datz only in the sum of $100, together with $2.75 disbursements.