incurred in this action, however, is not dismissed, given the triable issues of fact discussed
above.
7. Tenant is not Entitled to Discovery Sanctions
Tenant seeks discovery sanctions pursuant to CPLR 3126 for Landlord's alleged backdating
of two real estate tax invoices and for its alleged failure to produce certain documents and answer
interrogatories. To the extent Tenant is not precluded from seeking sanctions (see Williams v Laura Livery Corp., 173
AD3d 497, 498 [1st Dept 2019] ["Once plaintiff filed the notice of issue and certificate of
readiness certifying to the court that all discovery was complete without reserving his rights or
preserving objections, he waived his right to seek preclusion"]), the court finds that sanctions are
not warranted under CPLR 3126. Tenant has failed to show that Landlord refused to obey an
order for disclosure or willfully failed to disclose information (see CPLR 3126).
C. Conclusion
In conclusion, plaintiff's first two causes of action, alleging breach of contract and
conversion for defendant's failure to return the security deposit, are dismissed because plaintiff
breached the lease by failing to pay taxes. However, plaintiff's third cause of action regarding
commingling of the security deposit remains, as defendant failed to submit any evidence showing
that it held the security deposit in a separate account prior to November 13, 2007. Plaintiff's
request for discovery sanctions is denied.
Defendant's first counterclaim for failure to indemnify defendant in the ADA action is not
dismissed, as issues of fact exist as to whether defendant is entitled to indemnification.
Defendant's second counterclaim and the part of the fifth counterclaim seeking declaratory relief