501 Fifth Ave. Co., LLC v Aslam
2016 NY Slip Op 01139 [136 AD3d 535]
February 16, 2016
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 23, 2016


[*1]
 501 Fifth Avenue Company, LLC, Appellant,
v
Mohammad Aslam, Respondent.

Belkin Burden Wenig & Goldman, LLP, New York (David R. Brand of counsel), for appellant.

Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 12, 2015, awarding plaintiff the principal sum of $9,542.46 against defendant, unanimously reversed, on the law, without costs, the judgment vacated, and plaintiff awarded $71,542.46, plus statutory interest to be recalculated upon remand. The Clerk is directed to enter an amended judgment accordingly. Appeals from orders of the same court (Ira Gammerman, J.H.O., and Manual J. Mendez, J.), entered February 5, 2015, and March 16, 2015, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

By the clear and unambiguous terms of the commercial lease and the unconditional guaranty of the tenant's obligations under the lease, plaintiff landlord was entitled to recover from defendant guarantor, as demanded, the full amount of the accrued pre-vacatur arrears, i.e., without a setoff in the amount of the tenant's security deposit. Plaintiff had a right under the lease to determine when and how the security deposit would be applied towards the tenant's outstanding lease obligations, and it advised the court that it intended to use the security deposit to cover post-vacatur damages, because defendant's guaranty only covered the tenant's lease obligations until the tenant vacated the premises. Concur—Mazzarelli, J.P., Friedman, Sweeny and Manzanet-Daniels, JJ.

[As corrected by the Appellate Division, First Department, July 19, 2016.]