Opinion
November 21, 1966
In consolidated actions, in which (a) 19 South Main Street Corp., styled as plaintiff in its amended complaint, seeks inter alia to recover rent allegedly due from Rockland Secretarial School, Inc., under a lease and (b) the latter, styled as defendant, has counterclaimed for return of a security deposit paid to the former pursuant to the lease, defendant appeals from an order of the Supreme Court, Rockland County, entered June 17, 1966, which denied its motion for summary judgment, unconditionally as to the amended complaint and conditionally as to the counterclaims. (For prior appeal, see 24 A.D.2d 465.) Order affirmed, without costs. Plaintiff's claims, the validity of which is supported by proof sufficient to create issues of fact, are for an amount in excess of the sum sought to be recovered by defendant. Under these circumstances, defendant's motion for summary judgment should be denied, even though plaintiff concedes the unlawful commingling of the security deposit with its own funds, which commingling is the basis for one of the counterclaims ( Illinois McGraw Elec. Co. v. John J. Walter, Inc., 7 N.Y.2d 874; Obedin v. Tennyson Ct., 23 A.D.2d 852). Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.