Jordan O. Smith, Plaintiff, v. Kamilah Bernard, Defendant. (2026)

The issue is whether, pursuant to General Obligations Law ("GOL") 7-108(1-a)(b), a landlord forfeits the right to apply a tenant's security deposit to cover repairs for damages caused by their tenant when the landlord did not notify the tenant in writing of the tenant's right to request an inspection before vacating the premises when the lease term ended.

A trial on this small claims matter was held on April 23, 2026. Plaintiff Jordan Smith ("plaintiff" or "Smith") as tenant, and defendant Kamilah Bernard ("defendant" or "Bernard") as landlord, entered into a lease agreement ("Agreement") on December 4, 2024. The lease agreement was for a one-year term, commencing on January 1, 2025, and ending on December 30, 2025, for the apartment located at 468 Putnam Street in Brooklyn. The Agreement provided for a $2,800 security deposit, which plaintiff paid at the outset of the Agreement. On December 29, 2025, plaintiff requested by text to schedule a final walkthrough of the apartment on December 30, the final day of the lease term. Due to the holidays, defendant could not offer a walkthrough until January 3, 2026, which Smith declined due to that date being after her move out of the premises. On January 10, 2026, defendant sent plaintiff a letter, accompanied by supporting estimates and receipts, stating that she would receive her security deposit back, minus $738.08 for damages assessed beyond normal wear and tear. Plaintiff then received by mail a partial security deposit return in the amount of $2,061.92.

On January 30, 2026, plaintiff filed this action seeking $2,820, $2,800 for the full security deposit, and $20 for the cost of filing the case. Defendant counterclaimed for $738.08 but it appears that defendant intended to claim $738.08 in damages as a defense. At the outset, this court notes that "allegations insufficient as a counterclaim but sufficient as a defense [are] permitted to remain in the pleading as a defense." Toll v. Friedman, 195 Misc. 258, 259 (County Sup. Ct. 1946).

Plaintiff's first claim is that defendant forfeited any right to keep the security deposit because she violated GOL § 7-108(1-a)(d) by not providing her notice that she had a right to an inspection prior to the termination of the lease. GOL 7-108(1-a)(d) provides in pertinent part: "Within a reasonable time after notification of either party's intention to terminate the tenancy, ... the landlord shall notify the tenant in writing of the tenant's right to request an inspection before vacating the premises and of the tenant's right to be present at the inspection. If the tenant requests such an inspection, the inspection shall be made no earlier than two weeks and no later than one week before the end of the tenancy... After the inspection, the landlord shall provide the tenant with an itemized statement specifying repairs or cleaning that are proposed to be the basis of any deductions from the tenant's deposit. The tenant shall have the opportunity to cure any such condition before the end of the tenancy." Defendant was supposed to notify plaintiff in writing of her right to request a mutual inspection before vacating the premises and to be present at the inspection. Solda v. KJL Ventures LLC, 2023 NY Misc. LEXIS 77110, *10 (Civ. Ct. NY Co. 2023). The purpose of the inspection is to identify any damages that could lead to deductions from the security deposit. Defendant failed to demonstrate with documentary proof that she strictly complied with GOL 7-108(1-a)(d). However, the fact that plaintiff requested this inspection on December 29, 2025 is strong circumstantial evidence that she had notice of her right to an inspection and that she was informed of this legal protection. See, PJI 1:70 [2026] ("Circumstantial evidence is evidence of a fact that does not directly prove a fact in dispute but which permits a reasonable inference or conclusion that the fact exists"); Oliveira v. 5462 125th Realty LLC, 2025 NY Slip Op 31189(U), 2025 NY Misc. LEXIS 2178, *14-15 (Sup. Ct. NY Co. 2025).

Furthermore, the failure by a landlord to provide notice of a tenant's right to inspection pursuant to GOL 7-108(1-a)(d) does not result in the penalty of forfeiting the right to retain any part of the security deposit. See, 14 E. 4th St. Unit 509 LLC v Toporek, 203 AD3d 17, 26 (1st Dept 2022) ("Although paragraphs (d) and (e) collectively provide a blueprint that a landlord must follow before a tenant's security deposit can be applied to claimed repairs, by the plain terms of the statute only the obligations in paragraph (e) are subject to a penalty of forfeiture if they are not complied with"); Urban v. Zipper, 2023 NY Slip Op 31043(U), 2023 NY Misc. LEXIS 1500, *9 (Sup. Ct. NY Co. 2023) ("failure to provide written notice of the right to request an inspection before a tenant vacates an apartment does not mandate forfeiture of the right to retain any portion of the security deposit").

Plaintiff's second claim is that she is entitled to the return of her security deposit since defendant failed to comply with GOL 7-108(1-a)(e) to the extent that she did not provide plaintiff with a properly itemized statement within 14 days after plaintiff vacated the apartment. In particular, GOL 7-108(1-a)(e) provides: "Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit." Thus, in contrast to subsection (d), violation of this provision results in forfeiture of the right to retain any part of the security deposit. Toporek, supra, 203 AD3d at 26. See also, Levine v. Xu-Kehrli, 2026 NY Slip Op 50528(U), 2026 NY Misc. LEXIS 2875, *1 (App. Term 1st Dept. 2026) (plaintiff was entitled to full return of the security deposit because defendant failed to provide plaintiff with itemized statement detailing the basis for retention of the deposit within 14 days of plaintiff's vacatur of the apartment).

This court finds that defendant substantially complied with the requirements of GOL 7-108(1-a)(e). Section 1804 of the Civil Court Act ("CCA"), which provides: "An itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs, are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs." CCA § 1804; Curto v. Bichara, 3 Misc 3d 130(A), 787 N.Y.S.2d 676, 130A (App. Term 2d Dept. 2004). Defendant presented two estimates for repairs and used the lower estimate to calculate damages. The repair estimates sufficiently identified the areas of repair; i.e., large holes in the walls which needed filling and painting, and two broken light switches. Defendant also presented a paid Home Depot receipt for supplies. However, the screenshot of the picture and price of a new carbon monoxide do not meet the requirements of § 1804 since it is not a paid receipt. The total of the two substantiated amounts equals $683.13, $54.95 short of the $738.08 that was withheld.

Plaintiff further alleges that the damages claimed by defendant constitute normal wear and tear. GOL § 7-108(1-a)(b) provides that an amount of a security deposit can be retained "for the reasonable and itemized costs due to damage caused by the tenant beyond normal wear and tear." At trial, defendant presented pictures of several large holes left by plaintiff on multiple walls in the apartment, which necessitated filling them and repainting the area around them. Smith admitted that these holes were caused by her, but claimed it was normal for this to occur after mounting a bookshelf and television to the wall. This court previous found extraordinary damage beyond normal wear and tear where pictures produced as trial evidence revealed numerous punctures in the wall. Kruchinina v Filatov, 88 Misc 3d 1230(A), 2026 NY Slip Op. 50287(U) (Civ Ct, Kings County 2026). Therefore, defendant offered sufficient evidence that the damages claimed went beyond normal wear and tear. Regarding plaintiff's claim for the filing fee of $20 to commence this action, pursuant to CCA § 1901(c), the CCA does not provide for the recovery of costs in small claims actions.Karole v. 340 W. End Ave., LLC, 2022 NY Slip Op 50317(U), 2022 NY Misc. LEXIS 1463, *12 (Civ. Ct. NY Co. 2022).

Judgment is granted in favor of plaintiff in the amount of $54.95, which equals the security deposit, less proven damages. Defendant's counterclaim is denied as moot because it has been deemed a defense rather than a counterclaim. This constitutes the decision and order of the court.

Dated: June 8, 2026

Kings County, New York

Hon. Tehilah H. Berman

Judge of the Civil Court

Tehilah H. Berman, J.