appeal of this order has been taken by either party and that payment was not made by the
defendants as ordered.
The foregoing constitutes the decision and order of the court.ENTER,
Dated:June 24, 2010_______________________________________
Rochester, New YorkHon. Thomas Rainbow Morse, JCC
cc:Michael Stout
Anthony Daniele, Esq. (Counsel for the Defendant)
Footnotes
Footnote 1:General Obligations Law §
7-103(1).
Footnote 2:Park Holding Co. v.
Johnson, 106 Misc 2d 834, 835 -836 (NYC Civil Ct., Dankberg, J., 1980). See also Glass
v. Janbach Properties, Inc., 73 AD2d 106, 108-09 (2nd Dept., 1980).
Footnote 3:Dan Klores Associates, Inc.
v. Abramoff, 288 AD2d 121, 122(1st Dept., 2001). The Court went on to note that the
showing that defendant failed to give plaintiff written notice of the banking
institution that held plaintiff's security deposit, in violation of General Obligations Law §
7-103 (2), permitted an inference of commingling at the time of lease expiration, in violation of
General Obligations Law § 7-103 (1), that defendant failed to rebut. As a result of such
commingling, defendant forfeited any right he had to avail himself of the security deposit " 'for
any purpose,' " entitling plaintiff to its "immediate" return notwithstanding that plaintiff may
itself have breached the lease. Thus, we reject defendant's argument that a tenant's right to a
refund of a security deposit for commingling is subject to offset to the extent a landlord incurs
justifiable repair costs after the tenant vacates. Plaintiff had a cause of action against defendant
for conversion as soon as the deposit was placed in a commingled account, which cannot be
defeated by defendant's post-lease use of the commingled deposit for repairs.