Legal Question in Civil Litigation in New York

My daughter's apartment was flooded due to the negligence of an upstairs tenant. She assessed the damage to be around $1100--rugs, towels, mattress. The ceiling of her bathroom caved in causing all this damage. The tenant agreed to give her $800 in cash plus another $300 at the end of the week. Now he wants the mattress that he said he paid for. Can he do this? If it is salvageable, can't my daughter keep the mattress and pocket the cash?


Asked on 7/23/09, 10:19 am

1 Answer from Attorneys
Charles Gueli Law Offices of Charles R. Gueli

Any transaction over $500 is governed by the statute of frauds which says that the agreement must be in writing. In a transaction such as this, the upstairs tenant should request a release in exchange for the money. This release will outline the agreement between the parties.

I expect there is no release in your daughter's situation. Since there is no signed agreement (or court order) anything goes. But if he didn't pay the additional $300, don't expect him to do so until she gives up the mattress.

Public policy would dictate that if he paid full replacement value for the mattress, he would be entitled to the old mattress. He has made a good-faith effort to make your daughter whole without your daughter having to resort to the hassle of small claims court. It sounds like she is now trying to take advantage of him.

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Answered on 7/28/09, 2:39 pm


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