Citation Numbers: 66 Misc. 2d 479
Judges: Spiegel
Filed Date: 5/10/1971
Status: Precedential
Modified Date: 2/5/2022
Plaintiff moves for summary judgment and defendant cross-moves for judgment dismissing the complaint, pursuant to CPLR 3211 (subd. [a], pars. 5, 8) or, in the alternative, for dismissal pursuant to CPLR 3212 (subd. [b]).
Plaintiff alleges the execution in New York City on March 15, .1968, of a lease to property located in Florida. The defendant is the lessor. Three checks, totaling $50,000, comprising the security, were delivered in escrow to defendant’s attorneys in New York City. By agreement, in writing, of August 21, 1968, plaintiff was substituted as the lessee. Because the security deposit was commingled and not held in trust, demand for its return was made on January 15, 1969, and refused.
Defendant, a nonresident, has pleaded the claim does not arise from any act enumerated in CPLR 302. In a second defense, defendant alleges he was at all times a Florida resident. The amendatory agreement substituting plaintiff as lessee was executed by the defendant in Florida. Plaintiff was qualified to do
In a fourth defense, it is alleged that in an action instituted by defendant in the State of Florida, which plaintiff defended, an amended final judgment was entered which adjudicated defendant’s right to cancel and to retain the security deposit. There was affirmance on May 19, 1970, on appeal by this plaintiff in the District Court of Appeal, First District, State of Florida. The amended final judgment, it is alleged in a fifth defense, permanently enjoins the institution of this action.
Plaintiff relies on section 7-103 of the General Obligations Law which reads in part: ‘ ‘ Any provision of such a contract or agreement whereby a person who so deposits or advances money waives any provision of this section is absolutely void.”
It relies also on Mallory Assoc. v. Barving Realty Co. (300 N. Y. 297, 302). There it was observed: “ The protection afforded by section 233 should apply to funds deposited in New York as security under a contract of lease made in New York between corporations created by New York, even though the real property which is the subject matter of the contract is located elsewhere. In so holding, we are not giving extraterritorial operation to the statute, but, on the contrary, in accordance with the evident legislative intent, we are permitting it to govern the rights and liabilities of corporations created by New York, under a New York contract, with respect to a New York subject matter, viz., the security deposit.”
In this instance, the lease contract was executed in New York City, while defendant was at all times a resident of the State of Florida, where the property is located. It appears to be undis
Mallory Assoc. v. Barving Realty Co. (supra, p. 301) refers to Matter of Barnett (12 F. 2d-73, cert. den. sub nom. United Cigar Stores Co. v. Rayher, 273 U. S. 699) where the court stated: ‘ ‘ ‘ The lease in this case, as already stated, was made in the city of New York, where both parties to the lease maintained offices and were engaged in business. It must be admitted that the lease, in so far as it affects the creation of an interest in real estate, is governed by the law of the situs. But although a lease relates to an interest in real property, and in so far as it so relates is governed by the lex loci rei sitae, the personal covenants between the contracting parties, though contained in a contract affecting realty are governed by the lex loci contractus; and as the contract of lease was made in New York, and the deposit was delivered to the lessor in New York, and rent was payable in New York, the law of New York governs as to the purely personal covenants ’. ’ ’ (Italics supplied.)
The action instituted in the State of Florida was a plenary suit. This defendant, as plaintiff, sought cancellation of the lease and cancellation was decreed as well as the right of the lessor to retain the security as liquidated damage. On appeal this plaintiff urged as error:
“ 12. The Court erred in failing to require the Plaintiff to account for and return the security deposit to the Defendant.
‘ ‘ 13. The Court erred in finding that the Plaintiff was entitled to retain the full amount of the security deposit. ’ ’
There was affirmance.
The parties were properly before the court. Plaintiff joined voluntarily and contested. It was a plenary suit and not a summary proceeding. There was not involved a setoff of rent owed against the security but the enforcement of a lease provision concerning which the judgment declares: ‘ ‘ The Court finds that
The motion is denied and the cross motion is granted.