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19 Misc. 3d 33

Citation
19 Misc. 3d 33
Jurisdiction
New York (state)
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cross_accepted_sealed

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We note that neither party is here arguing the position espoused in the dissenting opinion that plaintiff is entitled to a return of only half of the security deposit. Indeed, defendant seeks to defeat plaintiff’s claim to the entire security deposit only on the ground that he is entitled thereto as a setoff for damage to the apartment. In fact, the record indicates that on the day that plaintiff vacated the apartment, defendant offered to refund to her $1,700 of the $2,200 security deposit. We should not speculate as to matters regarding which the parties themselves have raised no issue, especially where, as here, the record indicates that plaintiffs boyfriend had, in the past, raised the issue of his entitlement to a portion of the security deposit with defendant, and was referred by defendant to plaintiff.

While, under the circumstances presented, plaintiff was entitled to the return of the $2,200 security deposit, she failed to prove her entitlement to interest on the deposit. A tenant is entitled to interest on a security deposit only where the lease *35provides for same (see 1 Dolan, Rasch’s Landlord and Tenant— Summary Proceedings § 13:25, at 588 [4th ed]), or the apartment is rent stabilized (see Rent Stabilization Code [9 NYCRR] § 2525.4 [a]) or the building in which the apartment is located contains six or more family dwelling units (General Obligations Law § 7-103 [2-a]). Since plaintiff did not establish the existence of any of these factors, she failed to demonstrate that she was entitled to interest on her security deposit. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of plaintiff in the principal sum of $2,200.