Legal Question in Real Estate Law in New York
Unreturned security deposit
I paid a $475 cash sec deposit to a prospective landlord who was ''too busy'' right then to write me a receipt(he was doing repairs on the apartment), I agreed to get the receipt and the lease agreement when I would next see him. One week later I became financially unable to rent the apartment, I told him immediately and he said he would return my money as soon as he rented the apartment to someone else. That was 9 weeks ago, I have made numerous contacts with him to get the money or a receipt, he now refuses to even answer the door or take my calls. I want to take him to small claims court for the money, as stated, I have no receipt, but I do have a recorded conversation in which we discuss the money and he admits he owes me, the exact amount and that he ''can't pay me right now''. Would that work as evidence in court and can I sue for additional money that I had to borrow to replace that money? thank you.
2 Answers from Attorneys
Re: Unreturned security deposit
I assume this occured in NYS so my answer is based on NYS law.
Generally speaking, a taped conversation (esp. one made over the phone) is inadmissable against a party unless the party against whom the evidence is sought to be used was aware that he/she was being recorded. Because of the relatively small amount in controversey in your case, small claims is your only venue. The rules of evidence in small claims court are essentially whatever the judge wants them to be since it is so very rare for a small claims verdict to be appealed (in fact, I'm not sure how one would appeal such a verdict!). If I were you, I'd proceed with what you have (i.e. the tape); I'd also sit down and write out a description of all the interaction you've had w/ the landlord (stick to the pertinent stuff--don't discuss the weather unless the weather is pertinent to your arguement--judges hate to have their time wasted (like the rest of us)), sign, date and have it notarized. If you know how to do a "sworn statement" form of such a declaration, do so; if not, don't sweat it. Small claims is primarily about equity so even the tape will take you far.
Good luck.
Re: Unreturned security deposit
Mr. Friedman is incorrect in his understanding of the law.
Pursuant to William C. Donnino's practice commentary under NY Penal Law �250.05(Eavesdropping)(West Publication, 1999), �By its definition, however, "wiretapping" does not occur if: (a) one overhears a conversation unintentionally, as may occur by means of a malfunctioning of telephone equipment; (b) one overhears a conversation intentionally but not through the use of an instrument, device or equipment; or (c) the intentional overhearing or recording by means of an instrument, device or equipment is by or with the consent of one party to the communication. People v. Lasher, 1983, 58 N.Y.2d 962, 460 N.Y.S.2d 522, 447 N.E.2d 70.�
If you were the party to the conversation with the landlord, the consent by you to the taping of the telephone conversation makes the conversation legal. The landlord does not have to know about it.
Use the tape.
Mike.
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