to rebut. As a result of such commingling, defendant forfeited any right he had to avail himself of the security deposit ‘for any purpose’, entitling plaintiff to its ‘immediate’ return notwithstanding that plaintiff may itself have breached the lease” (citations omitted)]).
In this case, given that the statutory notice was not given, the court must find an adverse inference of commingling arises from the record. Such a determination cannot be defeated by the defendant’s argument that this obligation was satisfied because the lease set forth the name of the bank and its address; such a lease provision does not and could not waive the requirement that the statutory notice be given after the deposit is made (General Obligations Law § 7-103 [3] [“Any provision of ... a contract or agreement whereby a person who so deposits or advances money waives any provision of this section is absolutely void”]; see LeRoy v Sayers, supra, 217 AD2d at 68-69 [“the stamped name of the bank on the back of the cancelled checks do(es) not qualify as notice in writing”]; see also, as to statutory notice, Shandwick USA v Exenet Tech., 192 Misc 2d 280 [Civ Ct, NY County 2002, Rakower, J.]).
Here, all factors support a finding that defendant actively or passively breached the obligation to maintain in trust a security deposit under the name of the co-owners.
A Co-Owner’s Obligation for Security Deposit Trust Funds