Opinion
March 29, 1994
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
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 A.D.2d 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.