1400 Broadway Associates v. I. Appel Corp.

—Judgment, Supreme Court, New York County (Elliott Wilk, J.), entered July 8, 1993, in favor of plaintiff and against defendant in the amount of $98,484.22, plus interest, costs and disbursements, and bringing up for review an order (denominated an order and judgment), same court and Justice, entered June 18, 1993, which granted plaintiffs motion for summary judgment, unanimously modified, on the law, to reduce the amount of the award to $78,484.22, and remand for further proceedings to determine the parties’ respective rights to the $20,000 security deposit, and otherwise affirmed, with costs to plaintiff. The appeal from the order entered June 18, 1993 is unanimously dismissed as superseded by the appeal from the judgment. In this action by a landlord against a tenant who vacated the premises before expiration of lease, we agree with the IAS Court that no issue of fact exists with respect to defendant’s liability to plaintiff in the amount of $98,484.22 as of the date of the summons and complaint. However, the court failed to address defendant’s claim that it is entitled to set off the $20,000 security deposit it gave plaintiff upon execution of the lease (see, General Obligations Law § 7-103; Rivertower Assocs. v Chalfen, 153 AD2d 196, 199). There being issues of fact concerning the amount of damages, if any, plaintiff has sustained subsequent to the commencement of the action, we remand for further proceedings to determine what part of the security deposit, if any, plaintiff is entitled to retain under paragraph thirty-eighth of the lease. Concur — Rosenberger, J. P., Kupferman, Rubin and Williams, JJ.