determined upon." (Cohen v. Hallmark Cards, Inc., 45 NY2d 493, 499
[1978].)
The scope of plaintiff's CPLR 4404 motion is limited. That is, the jury found that
plaintiff had not proven by a preponderance of the evidence that the ambassador had
been constructively evicted from the leased premises; and that plaintiff had not proven by
a preponderance that the condition of the premises breached the warranty of habitability.
(See NYSCEF No. 59 at Tr. 2-3.) Plaintiff does not challenge either of these
findings. Instead, plaintiff argues only that no valid line of reasoning supports the jury's
failure to award plaintiff the amount of its security deposit ($13,000), as reduced by the
$4,800 in unpaid rent to which the jury found defendant entitled. This court agrees.
It is undisputed, both at trial and on this motion, that defendant did not return
plaintiff's security deposit. (See NYSCEF No. 63 at ¶ 14 [defendant's aff. in
opposition].) It is also undisputed that the lease provides that defendant is entitled to
withhold the security deposit, [*3]following the
expiration or termination of the lease, only to the extent necessary to offset unpaid rent
and the like. (See id. at ¶ 21, citing NYSCEF No. 65 at 1 ¶ 4 [lease].)
And the jury found that defendant had proven that plaintiff's breach of the lease caused
defendant to suffer $4,800 in rent-related damages. Plaintiff is thus correct that the only
valid line of reasoning, on the evidence at trial and on the jury's other factual findings, is
that plaintiff is entitled to damages in the amount of $8,200.
In opposing plaintiff's motion, defendant does not contest plaintiff's argument that it
is contractually entitled to the return of its security deposit, at least to the extent that the