Plaintiff Ana Gignac has sued her former landlord, defendant Linda Young, to recover her security deposit minus pro rated rent for seven days. Specifically, Ms. Gignac seeks $651.67 from Ms. Young.

An arbitrator's decision in this action was issued on January 13, 2011. Following a party's demand, a trial de novo was held on March 25, 2011. Plaintiff Ana Gignac testified for plaintiff. Defendant Linda Young testified for defendant.

To prevail in a civil action, a plaintiff must show, by a preponderance of the credible evidence, that he or she is entitled to a judgment in his or her favor against the other party. After reviewing the credible testimony and relevant documents, I make the following findings of fact and conclusions of law.

FINDINGS OF FACT

On March 4, 2010, plaintiff Ana Gignac moved in an apartment owned by defendant Linda Young at 184 Dartmouth Street in Rochester, New York. The month-to-month verbal tenancy agreement provided for a monthly rent of $850.00, and a security deposit of $850.00.

In addition to residing there, Ms. Gignac gave massages to paying customers in her apartment. On July 19, 2010, Ms. Young called Ms. Gignac and told Ms. Gignac that she must either cease her business within a week or move out of the apartment. The next day, Ms. Gignac [*2]informed Ms. Young that she would move. When Ms. Gignac asked Ms. Young to return her security deposit, Ms. Young replied that she would construe Ms. Gignac's decision to move as Ms. Gignac's thirty-day notice, that Ms. Gignac's August 2010 rent would still be due, and that if August rent was paid, Ms. Gignac would be entitled to the return of her security deposit if the apartment was left in good condition.

Ms. Gignac did not pay her August 2010 rent, which was due on August 1, 2010. On August 5, 2010, Ms. Young gave Ms. Gignac a "Three-Day Notice to Pay Rent or Vacate." On August 8, 2010, Ms. Gignac and David McKerrow, Ms. Young's apartment manager, conducted a walk-through of the apartment. Mr. McKerrow found that the apartment was in good condition, and Ms. Gignac surrendered the apartment on August 8, 2010.^[FN1]

After she vacated the apartment, Ms. Gignac asked Ms. Young to return her $850.00 security deposit. Ms. Young, however, refused to do so. According to Ms. Young, new tenants moved into the apartment on September 1, 2010.

DISCUSSION

As a general rule, when a tenant vacates an apartment prior to the expiration of a month for which rent was due, the tenant is financially liable for the entire month's rent. See Sperry v. Miller, 8 NY 336, 338 (1854); Lukens v. Gragert, 2002 Westlaw 32068273 (App. Term, 9th & 10th Jud. Dists. 2002); 2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 26:36, at 311 [4th ed]. However, where a landlord breaches a tenant's covenant for the quiet enjoyment of his or her leased premises, and there is a constructive eviction of the tenant, the landlord is not entitled to accrued rent. See Dave Herstein Co. v. Columbia Pictures Corp., 4 NY2d 117, 120-21, rearg. denied, 4 NY2d 1046 (1958). A tenant's right to "quiet enjoyment" is breached when the landlord wrongfully and substantially interferes with the tenant's beneficial enjoyment or use of the premises. See Barash v. Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 (1970); Dave Herstein Co. v. Columbia Pictures Corp., 4 NY2d at 120; 2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 28:1, at 322-23 [4th ed].

In this action, defendant Linda Young breached plaintiff Ana Gignac's right to quiet enjoyment of her leased apartment when she ordered Ms. Gignac to cease operating her massage business from her apartment. There was no written lease barring the operation of Ms. Gignac's massage business from her apartment; there was no testimonial evidence that the parties' verbal lease barred the operation of Ms. Gignac's business from her apartment; and there was no evidence that Ms. Gignac's operation of her massage business out of her apartment violated any laws.

Thus, when Ms. Young told Ms. Gignac on July 17, 2010 that she could no longer operate the business from her apartment, Ms. Young wrongfully breached Ms. Gignac's right to occupy and use her apartment in the manner to which she was entitled. Ms. Gignac's subsequent abandonment of her apartment due to the untenable condition that Ms. Young imposed on her continued occupancy constituted a constructive eviction, thereby relieving Ms. Gignac's obligation to pay rent for occupying the apartment beyond the date of her departure. See Barash [*3]v. Pennsylvania Term. Real Estate Corp., 27 NY2d 77 at 83; Grammer v. Turits, 271 AD2d 644, 645-46 (2d Dep't 2000); Minjak Co. v. Randolph, 140 AD2d 245, 248 (1st Dep't 1988).

As discussed above, Ms. Gignac left her apartment in good condition. Accordingly, she is entitled to the return of her $850.00 security deposit, less $219.35, the amount attributed to Ms. Gignac's use and occupancy of the apartment from August 1, 2010 through August 8, 2010.

CONCLUSION

For the foregoing reasons, plaintiff Ana Gignac is entitled to a judgment against defendant Linda Young in the amount of $630.65. plus statutory interest from August 8, 2010 and costs.

SO ORDERED.

April 6, 2011__________________________________

Hon. Ellen M. Yacknin