withholding thereof. In support of his motion, plaintiff submitted an affidavit alleging
that he vacated and surrendered possession of the premises on September 7, 2019, and
defendant did not provide any statement accounting for the withholding of his security
deposit until October 1, 2019, more than 14 days after he allegedly vacated.
However, in opposition, defendant's assistant submitted an affidavit attesting that
plaintiff did not move out until September 16, 2019. Additionally, among other items,
plaintiff left behind a hot tub on the roof deck, air mattresses and bed linens in the
basement, and camera equipment. Article 9 (B) of the lease provides: "You have not
moved out until all . . . furniture and other property of yours is also out of
the Apartment." Article 9 (B) also provides that defendant may treat plaintiff as
remaining in occupancy if his property remained in the premises after the lease ended.
Thus, issues of fact exist as to whether plaintiff legally vacated more than 14 days before
defendant's October 1, 2019 email providing the statement accounting for the
withholding of the security deposit.
Plaintiff's argument that General Obligations Law § 7-108 (1-a) (e),
when read in conjunction with other statutory provisions, relieves him of the vacate
requirements of the lease is unavailing (see Pajak v Pajak, 56 NY2d 394, 397
[1982] ["The failure of the Legislature to include a matter within a particular statute is an
indication that its exclusion was intended"]).
We decline to search the record to grant summary judgment in favor of
defendant.
Plaintiff is not the prevailing party and thus is not entitled to attorneys' fees at this
juncture (see Nestor v McDowell, 81 NY2d 410, 415-416 [1993]).