HARLEM CAPITAL CENTER, LLC, Plaintiffs-Appellant-res, v. ROSEN & GORDON, LLC Defendants-Respondents-ap Charles E. Boulbol, P.C.

2238. HARLEM CAPITAL CENTER, LLC, Plaintiffs-Appellant-res, v. ROSEN & GORDON, LLC Defendants-Respondents-ap Charles E. Boulbol, P.C., New York (Charles E. Boulbol of counsel), for appellant-res Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., New York (Virginia K. Trunkes of counsel), for respondents-ap Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 6, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff tenant’s motion for summary judgment on its conversion claim, granted plaintiff’s motion to dismiss defendants’ counterclaims and cross claims, and denied defendants’ cross motion to dismiss plaintiff’s complaint and to order summary judgment on their attorneys’ fees claim, unanimously modified, on the law, to grant defendants’ cross motion to the extent of dismissing plaintiff’s claim for breach of the lease, and otherwise affirmed, without costs.

Plaintiff failed to make a prima facie showing of entitlement to judgment on the conversion claim as the bank statement showing that the alleged security deposit was held in equities and fixed income investments does not clearly demonstrate a violation of General Obligations Law §7-103 (1) or that defendants commingled the deposit with personal funds. While defendants’ failure to respond to plaintiff’s notice, which alleged commingling and requested the name and address of the bank where the deposit was placed, permits the court to infer that landlord violated the statute by commingling the deposit with personal funds (Dan Klores Assoc. v. Abramoff, 288 AD2d 121 [1st Dept 2001]; see also Paterno v. Carroll, 75 AD3d 625, 628 [2d Dept 2010]; LeRoy v. Sayers, 217 AD2d 63, 68 [1st Dept 1995]), this inference is rebuttable (see Dan Klores, 288 AD2d at 121). The bank statement, which reflects an amount slightly more than the security deposit and lists the account name as “RG Security Dep,” raises triable issues of fact with respect to whether there was actually commingling. Plaintiff relies solely on the bank statement and the inference to support its motion.