conceded during closing statements that Plaintiffs owed Defendant $1,400, the Court is
constrained by the law as stated above and will not direct an offset. Moreover, the Court notes
that even if an offset was permitted in this case, which it is not, Mr. Leonard claimed that he
used the security deposit to pay for repairs to the premises but he failed to substantiate that the
purported repairs were required, performed and/or the alleged damage was caused by Plaintiffs.
Finally, although not raised by the parties at trial, the Court finds paragraph 35 of the Lease,
which provided "Should the Tenant default under the terms of this lease, Tenant will forfeit
security [*5]and waive all rights to it", to be void under General
Obligations Law § 7-103 as the provisions of the statute cannot be waived.
Accordingly, Plaintiffs have demonstrated by a preponderance of the evidence their right to
an award for the return of their commingled security deposit in the amount of $3,600, with
interest from the earliest date of the conversion, which in this case was the date of inception of
the Lease, September 1, 2007 (See Vidipax, LLC, supra , 22 Misc 3d 1104A, 880 NYS2d 228),
plus costs.
II.The Counterclaim - Defendant is Not Entitled to An Award of Attorney's Fees
At trial, Defendant's counsel asserted that the counterclaims were withdrawn with the
exception of the claim for attorney's fees. Accordingly, paragraph 18 of the Lease provided,
inter alia, that Defendant is entitled to an award for attorney's fees associated with
"Landlord's cost of re-renting" the premises in the event of a breach by Plaintiffs (Plaintiffs'
Exhibit 1, at ¶ 18). While this section of the attorney's fees provision is inapplicable to the