“The requirement is not only that the person shall not mingle the money with his own but he shall hold on to it actually or constructively. Placing the money received by the landlord as security in the name of another living person is not a holding within the requirements of this section.”
The landlord’s duty is to hold the funds in a form which identifies a security deposit as something other than a landlord’s personal funds (see Kelligrew v Lynch, 2 Misc 3d 135[A], 2004 NY Slip Op 50220DJ], *2 [App Term, 1st Dept 2004] [“commingling of a security deposit with a landlord’s personal funds is a conversion”]; Finnerty v Freeman (176 Misc 2d 220, 221-222 [App Term, 2d & 11th Jud Dists 1998] [where landlord placed “security deposit in cash in a sealed envelope” which also contained a signed and witnessed letter averring that the cash was a security deposit “under the circumstances presented here constitutes sufficient compliance with the statutory mandate to hold a tenant’s security fin trust’ ”]).
In this instance, it is admitted that the deposit was placed in a savings account bearing only the individual name of one co-owner. This undisputed fact supports a finding of conversion of trust funds.