The Court finds, then, as a matter of law that because the $850 was posted solely as an
amount to be forfeited if the lease was terminated and for no other purpose under the terms of the
contract drafted by the landlord is "disproportionate to the injury [and] the stipulated sum will be
treated as a penalty" (id. p. 69).
Furthermore the Court finds that as the landlord chose to use "and" between his remedies in
paragraph 34 giving him the $850 as well as any other damages arising from the contract
termination rather than using "or" giving him a choice of one remedy to sue for breach of
contract or accept the $850 as a liquidated damage, such an ambiguity "...must be construed
against the drafter...must be strictly construed against the drafter" (Cheng v Modansky
Leasing Co. (supra , p. 460).
Thus, when these remedies outlined at paragraph 34 are co-joined by its plain terms making
the $850 forfeiture a penalty the Court finds the clause (paragraph 34) under Real Property Law
235-c(1) is unconscionable. In such case Section 235-c(1) has various remedies under R.P.L.
235-c(1) including "[limiting] the application of any unconscionable clause so as to avoid any
unconscionable result." In this case the Court finds that by limiting the remedy at paragraph 34
to collecting contract damages involving nonpayment of rent after the termination of the contract
until the end of the original lease terms and requiring the refund of the $850 "security" deposit
will avoid an "unconscionable result."
The next issue revolves around the circumstances involving the conduct of the parties in
April and May 2009 at the time the tenant moved out prior to the original date provided for on
the lease; and, what that original date was according to the lease terms—5/10/09 or