Plaintiffs thereafter, on or about October 29, 2002, commenced this action, seeking relief in three causes of action. In their first cause of action, they seek to recover for the unpaid September 2002 rent under the three leases, plus a 4% late charge with interest. In a second cause of action, they seek the return of that portion of the security deposits that has not been delivered to them. In their third cause of action, they seek attorneys' fees and costs pursuant to paragraph 21 of each of the lease agreements.
Prime and Green answered, interposing a general denial and three counterclaims, the first [*3]and second alleging, respectively, that plaintiffs had themselves failed to segregate and turn over to Prime the security deposits in violation of General Obligations Law § 7-105 when the properties were net leased and that plaintiff Gerel (1100 Madison Avenue) had made misrepresentations, specifically, that it had overstated its rent roll and understated real estate tax obligations, which caused them to be damaged. They made a similar allegation against Ruradan (6-10 East 48th Street) in the third counterclaim. Plaintiffs replied, setting forth various affirmative defenses.
Plaintiffs thereafter moved for summary judgment on their second cause of action, seeking the return of the withheld tenant security deposits, and the striking of the affirmative defenses and counterclaims. In a supporting affidavit, an officer and principal of the three plaintiff corporations, Ralph Elyachar,{**12 AD3d at 89} explained that Prime, on surrendering the properties to plaintiffs, failed to turn over a substantial portion of the security deposits, having unilaterally made deductions from these deposits, in violation of General Obligations Law § 7-105.