225 Holding Co., LLC v Beal

[*1] 225 Holding Co., LLC v Beal 2006 NY Slip Op 51269(U) [12 Misc 3d 136(A)] Decided on June 28, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT:: RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
2005-114 W C.

225 Holding Co., LLC, Respondent,

against

Mary E. Beal, Appellant.

Appeal from a final judgment of the Justice Court of the Town of Rye, Westchester County (John B. Colangelo, J.), entered December 29, 2004. The final judgment awarded possession and rent arrears to landlord and ordered tenant to deposit $1,200 as security with landlord in a nonpayment summary proceeding.

Final judgment modified by striking the provision thereof directing tenant to deposit as security the sum of $1,200 with landlord; as so modified, affirmed without costs.

In this nonpayment summary proceeding, the court below erred in including in the final judgment a direction to tenant to deposit as security the sum of $1,200 with landlord. Security deposits are not rent (General Obligations Law § 7-103), and they cannot be recovered in a nonpayment proceeding (RPAPL 711 [2]; Graham Realty Assoc. v Peller, 11 Misc 3d 132[A], 2006 NY Slip Op 50352[U] [App Term, 2d & 11th Jud Dists]). Rather, the failure to give a security deposit as required by a lease is properly addressed as a breach of a substantial obligation of the lease in a holdover summary proceeding (see e.g. Markowitz v Landau, 171 AD2d 564 [1991]). Further, the Justice Court does not have the equitable and injunctive power to order that the security deposit be made (see 7 Highland Mgt. Corp. v McCray, 9 Misc 3d 129[A], 2005 NY Slip Op 51530[U] [App Term, 9th & 10th Jud Dists]; Topaz Realty v Morales, 9 Misc 3d 27 [App Term, 2d & 11th Jud Dists 2005]). Therefore, the direction to tenant to deposit the sum of $1,200 with landlord was improper. [*2]

The rent and possessory portions of the final judgment must stand. Tenant admitted owing the rent that was claimed in the petition, and therefore had no defense to the entry of judgment. The appeal from the final judgment does not bring up for
review the court's subsequent oral denial of RPAPL 749 (3) relief (see CPLR 5517 [a], [b]; Kensico Assoc. v Bennett, 2002 NY Slip Op 40375[U] [App Term, 9th & 10th Jud [*3]
Dists]). While tenant's arguments regarding the propriety of that denial appear to have merit, the appropriate method by which to seek review of the lower court's determination is to obtain a written order memorializing it, and then appeal from that order.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: June 28, 2006