Petitioner then commenced this nonpayment proceeding against respondent for rent and
additional rent owed for February through April of 2009 in the sum of $6,314.88. In its amended
verified answer, respondent asserts as an affirmative defense and counterclaim, inter alia,
that Broadway LLC transferred to petitioner funds sufficient to cover respondent's security
deposit and that respondent is entitled to the return of its security deposit. Additionally,
respondent alleges, inter alia, that it is entitled to an offset against any amounts due and
owing to petitioner. However, petitioner denies receiving any security deposit from Broadway
LLC.
Respondent, which surrendered and delivered possession of the subject premises on or
before April 30, 2009, now seeks leave to commence a third party action against Broadway LLC.
According to respondent, Broadway LLC may be liable for all or part of petitioner's claim
against respondent as there is a factual dispute as to whether said entity transferred the security
deposit to petitioner. Respondent notes that while petitioner would be liable for the security
deposit if Broadway LLC transferred such deposit to petitioner, petitioner has no liability to
respondent for its return if Broadway LLC failed to effectuate such a transfer and that Broadway
LLC would remain liable.
Petitioner has submitted response papers in support of the motion, annexing, inter
alia, a copy of a June 9, 2008 letter petitioner forwarded to Broadway LLC indicating that
"no amounts have been paid or transferred to [petitioner] on account of any security deposits
under tenant leases for space at the Premises" (see Exhibit 1 to Pollack Affirmation).
Counsel for non-party Broadway LLC submitted opposition to the motion, arguing that the