Solomon v. Ness

• Decision Date: 11 June 2014
• Citation: 2014 N.Y. Slip Op. 04185,118 A.D.3d 773,987 N.Y.S.2d 220
• Parties: Mordecai SOLOMON, et al., appellants, v. Seth NESS, et al., respondents.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 773
987 N.Y.S.2d 220
2014 N.Y. Slip Op. 04185

Mordecai SOLOMON, et al., appellants,
v.
Seth NESS, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 11, 2014.

Max Markus Katz, P.C., New York, N.Y., for appellants.

Zisholtz & Zisholtz, LLP, Mineola, N.Y. (Joseph McMahon of counsel), for respondents.

In an action, inter alia, to recover damages for breach of a lease, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered October 22, 2012, as granted the defendants' motion for summary judgment on their counterclaim to recover their security deposit, and denied that branch of the plaintiffs' cross motion which was for summary judgment on the cause of action to recover damages for breach of the lease.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiffs and the defendants entered into an agreement pursuant to which the defendants leased a house from the plaintiffs for a one-year term beginning on August 1, 2011. The defendants gave the plaintiffs a security deposit in accordance with the lease. The defendants moved into the house on August 18, 2011. In a letter dated September 4, 2011, the defendants informed the plaintiffs that they were vacating the house. In January 2012, the plaintiffs commenced this action, inter alia, to recover damages for breach of the lease. The defendants asserted a counterclaim to recover their security deposit.

The Supreme Court properly granted the defendants' motion for summary judgment on their counterclaim to recover their security deposit. General Obligations Law § 7–103(1) provides that a security deposit with respect to the use or rental of real property “shall continue to be the money of the person making such deposit ... and shall be held in trust by the person with whom such deposit or advance shall be made and shall not be mingled with the personal moneys or become

[987 N.Y.S.2d 221]

an asset of the person receiving the same.” General Obligations Law § 7–103(3) provides that any provision of a lease “whereby a person who so deposits or advances money waives any provision of this section is absolutely void.” When a landlord commingles the security deposit with his or her personal funds in violation of General Obligations Law § 7–103(1), the tenant has “an immediate right to the return of the funds, even if the [tenant] had breached the lease” ( Gihon, LLC v....