Dan Klores Associates, Inc. v. Abramoff
| Decision Date | 20 November 2001 |
| Citation | 733 N.Y.S.2d 388,288 A.D.2d 121 |
| Parties | DAN KLORES ASSOCIATES, INC., Respondent,<BR>v.<BR>JOSEPH ABRAMOFF, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Concur — Nardelli, J. P., Williams, Mazzarelli, Lerner and Friedman, JJ.
Plaintiff's showing that defendant failed to give plaintiff written notice of the banking institution that held plaintiff's security deposit, in violation of General Obligations Law § 7-103 (2), permitted an inference of commingling at the time of lease expiration, in violation of General Obligations Law § 7-103 (1), that defendant failed to rebut (see, LeRoy v Sayers, 217 AD2d 63, 68-69). As a result of such commingling, defendant forfeited any right he had to avail himself of the security deposit "`for any purpose,'" entitling plaintiff to its "immediate" return notwithstanding that plaintiff may itself have breached the lease (id., at 68). Thus, we reject defendant's argument that a tenant's right to a refund of a security deposit for commingling is subject to offset to the extent a landlord incurs justifiable repair costs after the tenant vacates. Plaintiff had a cause of action against defendant for conversion as soon as the deposit was placed in a commingled account, which cannot be defeated by defendant's post-lease use of the commingled deposit for repairs.
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Rubman v. Osuchowski
...[of the security deposit] notwithstanding that [the] plaintiff may ... have breached the lease" ( Dan Klores Assoc. v. Abramoff, 288 A.D.2d 121, 122, 733 N.Y.S.2d 388 [1st Dept. 2001] ; see Milkie, 143 A.D.3d at 864, 39 N.Y.S.3d 243 ). We also agree with plaintiffs that the court erred in g......
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