Fifth Ave. Ctr., LLC v Dryland Props., LLC (2017 NY Slip Op 02732)
Fifth Ave. Ctr., LLC v Dryland Props., LLC
2017 NY Slip Op 02732 [149 AD3d 445]
April 6, 2017
Appellate Division, First Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 31, 2017
[*1]
Fifth Ave. Center, LLC, Appellant,
v
Dryland
Properties, LLC, Respondent.
Law Offices of Lisa M. Solomon, New York (Lisa M. Solomon of counsel), for
appellant.
Golino Law Group PLLC, New York (Brian W. Shaw of counsel), for respondent.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered February 18, 2016,
which, insofar as appealed from as limited by the briefs, granted defendant's motion to dismiss
the cause of action seeking a return of the security deposit, unanimously reversed, on the law,
with costs, and the motion denied.
The parties' lease provides that, in the event plaintiff tenant complies with the material terms
of the lease, its security deposit will be returned after the date fixed as the end of the lease, i.e.,
June 12, 2028. Plaintiff alleges that it terminated the lease, or was constructively evicted, due to
material breaches by defendant landlord, in 2015. To the extent plaintiff is able to show its
entitlement to recover the security deposit in these circumstances, it need not wait until the date
fixed at the end of the defunct lease to assert the claim, but may recover the security deposit at
the time that the claims between the parties are resolved in this action (see Meinken v
Levinson, 239 AD 382, 392 [1st Dept 1933]; Seafeld Realty Corp. v Thomas, 112
NYS2d 839 [App Term, 1st Dept 1952]). Concur—Renwick, J.P., Mazzarelli,