Under these circumstances, it would constitute an unjust enrichment for this court to direct defendant to refund the cotenant's security deposit to plaintiff in addition to her own security deposit to which she is entitled, leaving the landlord still liable to the cotenant to refund the cotenant's portion of the security deposit under this tenancy. For me, it is inappropriate to expose defendant to liability as to the $1,100 security deposit of the cotenant, which is the same money that the landlord is being directed to pay to plaintiff. What recourse would the landlord then have is not answered by the majority.
The letter submitted into evidence makes it abundantly clear that the cotenant did not assign his rights to plaintiff and consequently still retains possessory interest over those funds. Had both tenants commenced an action as to their respective claims at the same time, I would then submit that the majority would have given judgment in the sum of $1,100 to each of them. The mere fact that the cotenant has not filed his claim as of this time should not affect the outcome of this plaintiff's case, nor the cotenant's case when commenced.{**19 Misc 3d at 36}
I note that the majority raises three grounds to support their findings. First, that this court[*3]"should not speculate" as to matters not raised by the parties, such as restricting the return of only half of the security deposit. I submit the issue was raised, and further buttressed as shown by the cotenant's letter which was introduced into evidence in the court below.