deposits, through the end of the lease term in June 2017 (Landlord's motion, Shore affidavit at
¶ 12). Landlord attached as exhibit H copies that Mr. Shore averred were "true and correct
copies of business records maintained in the ordinary course of business" showing the initial
deposit, credits, and transfer of the security deposit (id. at ¶ 12 and exhibit H).
In opposition, Tenant's counsel, Jeremy Miguel Weintraub avers in his affirmation that by
letter dated August 16, 2017 and October 10, 2017, both of which are submitted with Tenant's
cross motion and opposition (see Tenant's exhibits 10 and 11), he asked Mr. Freeman to
provide the name and address of the financial institution as well as the name on the account, "but
Landlord refused to provide that information" and "[e]ventually Landlord provided a single page
from Dime bank indicating that the deposit was held at Dime in June 2017, the final month of the
lease" (Tenant's cross motion, Weintraub affidavit at ¶ 3). Tenant argues that Landlord's
failure to timely provide the requested information gives rise to a presumption of commingling,
which Landlord failed to rebut because the "purported bank records submitted by Landlord in
support of its motion are unauthenticated and fail to prove that the security deposit was held in a
segregated bank account during the entirety of the term of the Lease" (Tenant's memorandum at
20-21).
General Obligations Law (GOL) § 7-103(1) forbids landlords from commingling
security deposit monies with their own funds (see Tappan Golf Dr. Range, Inc. v Tappan Prop., Inc., 68 AD3d
440, 440 [1st Dept 2009]). The commingling of the deposit vests in the plaintiff an
immediate right to receive the deposit (id.). Further, GOL § 7-103(2) provides that