The first cause of action alleges that Landlord breached the lease by failing to return the
security deposit and seeks damages in the amount of $10,580 plus interest. The second cause of
action alleges that Landlord wrongfully converted the security deposit for its own use and benefit
and that Tenant has suffered damages in an amount not less than $10,580 plus interest. Tenant
alleges in its complaint that it is entitled to a return of the security deposit because it fully
complied with the terms of the lease.
Paragraph 34 of the lease provides, in pertinent part, the following:
"[I]n the event Tenant defaults in respect of any of the terms, provisions and
conditions of this lease . . . Owner may use, apply or retain the whole or any part of the security
so deposited to the extent required for the payment of . . . any other sum as to which Tenant is in
default or for any sum which Owner may expend or may be required to expend by reason of
Tenant's default, in respect of any of the terms, covenants and conditionsof this lease . . . In the
event that Tenant shall fully and faithfully comply with all of the terms, provisions, covenant and
conditions of this lease, the security shall be returned to Tenant after the date fixed as the end of
the Lease and after delivery of entire possession of the demised premises to Owner" (Landlord's
motion, exhibit E).
Landlord asserts that it is entitled to dismissal of the
first and second causes of action because Tenant "defaulted under the Lease, as a matter of law,
when it operated the Store in a ma[nn]er that allegedly failed to comply with the ADA
accessibility standards and failed to indemnify and hold [Landlord] harmless" (Landlord's
memorandum at 22). The court finds this argument to be unavailing. As noted above, there has