amount of Six Hundred ($600.00) dollars representing the additional balance due under the Lease
for the Security Deposit. [Le Corset] hereby acknowledges and represents that it will have
increased the Security Deposit so that Landlord shall then have on hand the sum of Ten
Thousand Five Hundred ($10,500.00). [Le Corset] waives and disclaims any interest in the
security deposit. Landlord shall hold the proceeds of the Security Deposit in accordance with the
Terms of the Lease for the benefit of [Tenant]" (Landlord's exhibit G).
Kee Tong avers in her affidavit that she gave Landlord a security deposit upon leasing
the premises (see Tenant's cross motion, Tong affidavit at ¶ 10). Landlord failed to
submit any evidence showing that it held the security deposit in a separate account prior to
November 13, 2007, as required. Therefore, its motion for summary judgment dismissing this
cause of action is denied.
B. Tenant's Cross Motion
1. Tenant is not Entitled to Summary Judgment on its First and Second Causes of
Action
Given Tenant's default in failing to pay its real estate taxes, it is not entitled to summary
judgment on its first and second causes of action.
2. Tenant is not Entitled to Summary Judgment Dismissing the First
Counterclaim
Tenant, in support of its cross motion to dismiss the first counterclaim, argues
that
Landlord is not entitled to indemnification for several
reasons, none of which the court finds availing. First, Tenant asserts that the duty to indemnify is
only triggered if there is a breach of the lease by Tenant in failing to indemnify Landlord for
costs incurred in the ADA action, and that it did not breach the lease. The court finds this
argument to be unavailing, since an issue of [*12]fact exists as to