Opinion
2010-1165 N C.
Decided on May 3, 2011.
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated March 23, 2010, deemed from an amended order of the same court entered April 23, 2010. The amended order granted defendants' motion to compel discovery and for related relief to the extent of setting the matter down for a discovery conference, held plaintiff's cross motion for summary judgment in abeyance pending the discovery conference and granted defendant James Masters' motion to dismiss the complaint insofar as asserted against him.
ORDERED that so much of the appeal as is from the portions of the amended order that granted defendants' motion to compel discovery and for related relief to the extent of setting the matter down for a discovery conference, and as held plaintiff's cross motion for summary judgment in abeyance pending the discovery conference, is dismissed; and it is further,
ORDERED that the amended order, insofar as reviewed, is reversed, without costs, and the motion by defendant James Masters to dismiss the complaint insofar as asserted against him is denied.
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ.
In this action, plaintiff seeks to recover $3,867.50, representing the balance of a security deposit which she gave to defendant J.I.M. Management Co., Inc. at the time she executed a one-year lease for the rental of one unit in a two-family home. The security deposit that she gave was in the sum of $4,200; however, after the lease expired, defendant J.I.M. Management Co., Inc. returned the sum of $332.50 to plaintiff. After answering the complaint, defendants moved to, among other things, compel discovery and to dismiss the complaint insofar as asserted against defendant James Masters individually. Plaintiff cross-moved for summary judgment, alleging that defendants had violated General Obligations Law § 7-103 by commingling her security deposit with J.I.M. Management Co., Inc.'s general funds. Specifically, she alleged that J.I.M. Management Co., Inc. had issued the check for the partial return of the security deposit from its operating account, into which it had also deposited an ordinary rent check of hers. By order dated March 23, 2010, as amended and entered on April 23, 2010, the District Court granted defendants' motion to compel discovery to the extent of setting the matter down for a discovery conference, held plaintiff's cross motion for summary judgment in abeyance pending the completion of discovery, and dismissed the complaint insofar as asserted against defendant James Masters individually.
So much of plaintiff's appeal as is from the portion of the amended order which held in abeyance plaintiff's cross motion for summary judgment is dismissed as no appeal as of right lies from that portion of the amended order ( Evan S. v Joseph R. , 70 AD3d 668 ), and we decline to grant leave to appeal. So much of plaintiff's appeal as is from the part of the amended order which granted, to an extent, defendants' motion to compel discovery is dismissed on the ground that, by a subsequent stipulation dated April 23, 2010, plaintiff agreed to provide defendants with discovery ( see CPLR 5511). Thus, the only issue brought up for review is whether the complaint should have been dismissed insofar as asserted against defendant James Masters.
General Obligations Law § 7-103 (1) provides that a security deposit "shall continue to be the money of the person making such deposit . . . and shall be held in trust by the person with whom such deposit . . . shall be made and shall not be mingled with the personal moneys or become an asset of the person receiving the same." While the statute does not provide any specific penalty or sanction for a landlord's commingling of a security deposit with personal funds, it has been held that the commingling of a security deposit with a landlord's personal funds is a conversion, which gives a tenant an immediate right of recovery ( see LeRoy v Sayers, 217 AD2d 63; Sommers v Timely Toys, 209 F2d 342; Kelligrew v Lynch , 2 Misc 3d 135 [A], 2004 NY Slip Op 50220[U] [App Term, 9th 10th Jud Dists 2004]; Finnerty v Freeman, 176 Misc 2d 220 [App Term, 9th 10th Jud Dists 1998]). Thus, it may be found that plaintiff's security deposit was commingled and thereby converted. Since it may also be found that defendant James Masters, an officer of defendant J.I.M. Management Co., Inc., may be personally liable if he participated in the conversion of the security deposit ( see Howell Mfg. Corp. v Leiblein, 32 Misc 2d 50, 50-52; see generally Van Wormer v McCasland Truck Ctr., 163 AD2d 632), the complaint does not fail to state a cause of action against defendant James Masters and, at this juncture, the District Court improperly dismissed the complaint insofar as asserted against him.
Nicolai, P.J., Molia and Iannacci, JJ., concur.