This right to immediate recovery of a security deposit rests upon fundamental principles explored in the leading case of Matter of Perfection Tech. [*3]Servs. Press (Cherno-Delecar Realty Corp.) (22 AD2d 352 [2d Dept 1965], affd without op 18 NY2d 644 [1966]), in which the Appellate Division, Second Department, explained:
"[The security deposit law] changed the legal relationship between the [landlord and tenant] from debtor-creditor to trustee-cestui que trust. The inability of the commingling landlord to set off claims against the deposit flows from the change in his legal status. [The landlord] does not owe a debt as he once did; he owes a duty not to commingle the deposit with his own funds. Upon a breach of that duty, he forfeits his right to avail himself of the deposit for any purpose. To allow him to set off the deposit against his individual claims is to treat the deposit as a debt and the landlord as a debtor—precisely the situation which [the security deposit law] was enacted to change." (Id. at 356 [emphasis added].)
Based upon this clear precedent, the court must reject the request that any right to a refund of the security deposit to these out-of-possession tenants be deferred until the resolution of other outstanding issues.
The plaintiff tenants here have vacated and, accordingly, the court turns to the issues of (1) whether the record establishes a breach of the obligation to hold a security deposit in trust and not to mingle the deposit with personal assets, and (2) if so, and even assuming arguendo that the deceased co-owner may well have been actively responsible for any breach, whether the apparently passive co-owner can be held jointly and severally liable for the obligation to refund the security deposit.