LENTNEK 350 v. GROSS (1999)

In an action, inter alia, to recover wrongfully held security deposits, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (G.Aronin, J.), dated June 18, 1996, which granted the defendants' motion for summary judgment dismissing the complaint and denied his cross motion for summary judgment, and (2), as limited by his brief, from so much of an order of the same court, dated May 31, 1996, as, in effect, upon granting reargument of a memorandum decision dated March 28, 1995, adhered to the prior determination.

ORDERED that the appeal from the order dated May 31, 1996, is dismissed, as no appeal lies from an order made upon reargument of a decision (see, Board of Managers of Oaks At LaTourette II v. Management Consultants Intl., 170 A.D.2d 636, 567 N.Y.S.2d 62);  and it is further,

ORDERED that the order dated June 18, 1996, is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.   Paragraph 4 of the contract for sale between the parties, entitled, “Conditions of Sale”, provides in relevant part:

“Buyer acknowledges having been advised by the Trustee that the Trustee has on account security deposits of only $1,816.45, notwithstanding that the tenants of the Premises, according to the information compiled by the Wavecrest Management Team, Inc. (the Managing Agent), have posted security of $55,028.44”.

Moreover, Paragraph 6 of the contract, entitled Adjustments and Prorations, provides, in relevant part:

“The parties acknowledge that there will be no adjustment for security deposits as the Premises are being sold subject to the claims of the tenants thereof as to security deposits delivered to Debtor, its agents, predecessors or successors”.

Here, the plaintiff, an experienced businessman, was represented by legal counsel throughout the underlying transactions.   Fully aware that the trustee did not have the total amount of the security deposits in his possession, the plaintiff, before executing the agreement to purchase the subject premises from the trustee, had at least four available options:  (1) request that the trustee, as agent of the tenants (see, General Obligation Law § 7-103[1] ), assign his rights to seek the deficiency in security from the defendants, (2) request that the trustee deduct the outstanding amounts of the security from the purchase price, (3) demand, pursuant to General Obligations Law § 7-108(2)(d), that the trustee or defendants establish an escrow account equal to one month's rent for any leased premises for which there was no record of a security deposit, or (4) decline to purchase the premises.   Having failed to exercise any of the above options, and having expressly assumed liability for the security deposits pursuant to the parties' contract, the defendants' motion for summary judgment dismissing the complaint was properly granted.

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.