DeVries v. Jim Duffy LLC

70 Misc. 3d 137(A), 2021 NY Slip Op 50068(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 29, 2021
• Docket: 570213/20
• Status: Unpublished

Opinion

DeVries v Jim Duffy LLC (2021 NY Slip Op 50068(U)) [*1]

DeVries v Jim Duffy LLC

2021 NY Slip Op 50068(U) [70 Misc 3d 137(A)]

Decided on January 29, 2021

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 29, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Higgitt, McShan, JJ.
570213/20

Hent DeVries and Orna Ophir, Plaintiffs-Respondents,

against

Jim Duffy LLC and Living Unlimited Corp., Defendants-Appellants.

Defendants appeal from a judgment of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr., J.), entered July 24, 2019, which, upon a prior order granting plaintiffs' motion for summary judgment, awarded plaintiffs damages in the principal sum of $10,089.

Per Curiam.

Judgment (Jose A. Padilla, Jr., J.), entered July 24, 2019, affirmed, with $25 costs.

Civil Court properly granted plaintiffs' motion for summary judgment on their claim for return of the balance of their security deposit that defendant-lessor, Jim Duffy LLC, admittedly improperly commingled in violation of General Obligations Law § 7—103(1). As a result of such commingling, defendants forfeited any right they had to avail themselves of the security deposit "for any purpose," entitling plaintiffs to its "immediate" return (Jimenez v Henderson, 144 AD3d 469, 470 [2016]; see Milkie v Guzzone, 143 AD3d 863, 864 [2016]; Tappan Golf Dr. Range, Inc. v Tappan Prop., Inc., 68 AD3d 440 [2009]; Dan Klores Assoc. v Abramoff, 288 AD2d 121 [2001]). Thus, "there is no merit to defendant[s'] argument that plaintiff[s'] alleged repudiation of the lease agreement relieved [them] of any obligation to maintain advance rent and security deposits in a segregated account" (LeRoy v Sayers, 217 AD2d 63, 68 [1995][internal quotation marks and alteration omitted]).

Although a party to whom a security deposit has been given may cure a commingling defect (see Harlem Capital Ctr., LLC v Rosen & Gorden, LLC, 145 AD3d 579 [2016]; Spagnoletti v Chalfin, 131 AD3d 901 [2015]), Duffy's conclusory averments regarding his "standard practice" in handling security deposits failed to raise a triable issue of fact.

Defendants' remaining contentions are not properly before us on this appeal or are [*2]without merit. All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Clerk of the Court
Decision Date: January 29, 2021