been no finding of a default in the federal action or in state court, and issues of fact exist as to
whether Tenant failed to comply with the ADA or was obligated to indemnify Landlord for costs
incurred in the federal action.
Nevertheless, Landlord is entitled to summary judgment dismissing these causes of action,
given Tenant's default in failing to pay the real estate taxes.
6. Landlord is not Entitled to Summary Judgment Dismissing the Third Cause of
Action
The third cause of action alleges that Landlord's failure to provide, upon Tenant's request, the
name and address of the banking organization in which the security deposit was deposited [*10]"permits an inference of commingling" (Landlord's exhibit A,
¶ 37) and entitled Tenant to the "immediate return of the security deposit [in the amount of
$10,580] plus interest" (id. at ¶ 38).
In support of its motion for summary judgment dismissing this cause of action, Landlord's
attorney, Michael Freeman, avers in his affirmation that on November 2, 2017, over two months
before the commencement of this action, he provided Tenant's counsel with a bank statement via
email showing the name and address of the bank where Landlord maintained Tenant's security
deposit in a segregated account and that he was "surprised to see a cause of action for
'commingling'" (Landlord's motion, Freeman affidavit at ¶¶ 19, 23). Landlord does
not submit a copy of the email.
Mr. Shore, Landlord's managing member, avers in his affidavit that Landlord maintained
Tenant's security deposit in a segregated security deposit account maintained by Landlord at
Capital One Bank through December 2012, and that the balance less "multiple credits to Tenant"
were transferred to Dime Bank on January 4, 2013" where it remained, along with additional