were written directly to him, he was required to deposit and maintain the checks in a bank
account that was under his name. Additionally, defendant states that after the initial deposit into
his bank account, the funds were then "internally segregated within the bank account" and not
commingled. Peters' Affidavit, ¶ 9. Lastly, defendant argues that plaintiff breached the
Lease and forfeited the return of the Security Deposit. Defendant contends that the Lease clearly
states that plaintiff "shall not hold any...parties with more than 50 guests (not including staff or
service providers) on the premises. Should Tenant hold any such event, Tenant will automatically
forfeit the Security Deposit." Lease, ¶ 26. Defendant argues that plaintiff breached the
Lease and forfeited the Security Deposit, on August 22, 2010, when plaintiff allegedly held a
large party at the Premises with an estimated total of 150-200 guests. Further, defendant alleges
that plaintiff caused substantial damage to the lawn and stone driveway, broke a vase, lost the
garage door remote controls, failed to return the keys to the Premises, and failed to properly refill
the fuel tank as required by the Lease.
Plaintiff argues that due to defendant's action of commingling the Security and Utilities
Deposits, defendant forfeited his right to avail himself of the deposits for any purpose. As such,
plaintiff argues that even if he breached the Lease, ¶ 26, there were no Security or Utilities
Deposits for plaintiff to forfeit as defendant commingled the deposits prior to any alleged breach
by plaintiff.
GOL § 7-103 states, in relevant part, in unambiguous language, that:
(1) Whenever money shall be deposited or advanced on a contract...for the use or rental of