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23 E. 39th St. Mgt. Corp. v 23 E. 39th St. Dev., LLC (2015 NY Slip Op 09605) 23 E. 39th St. Mgt. Corp. v 23 E. 39th St. Dev., LLC 2015 NY Slip Op 09605 Decided on December 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on December 29, 2015 Tom, J.P., Renwick, Andrias, Moskowitz, Manzanet-Daniels, JJ. 117303/08 -15971 15970 15969 [*1] 23 East 39th Street Management Corporation, Plaintiff-Appellant-Respondent, v23 East 39th Street Developer, LLC, Defendant-Respondent-Appellant, Bruce Benjamin, etc., et al., Defendants. 23 East 39th Street Developer, LLC, Counterclaim Plaintiff-Respondent-Appellant, -against-vAllen Gutterman, Counterclaim Defendant-Appellant-Respondent. Robert J. Kheel, New York, for appellants-respondents. Robinson Brog Leinwand Greene Genovese & Gluck P.C., New York (Michael A. Leon and Jonathan W. Rich of counsel), for respondent-appellant. Judgment, Supreme Court, New York County (Doris Ling Cohan, J.), entered February 13, 2015, awarding defendant 23 East 39th Street Developer, LLC (defendant) the sum of $349,999.98, representing rent for the months May 2008 through October 2008, and bringing up for review an order, same court (Lancelot B. Hewitt, Special Referee), entered April 10, 2014, which, inter alia, denied defendant unpaid rent for the months of November 2008 through January 2009; and denied plaintiff's request to set off its security deposit against unpaid rent and other charges, and an order, same court and Special Referee, entered February 3, 2015, which, inter alia, granted defendant's motion for reargument to the extent of awarding prejudgment interest at the statutory rate commencing on August 31, 2007, unanimously reversed, on the law, without costs, the judgment vacated, the matter remanded for further proceedings in accordance with this order. Appeals from the foregoing orders, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Plaintiff (tenant) and defendant (landlord) entered into a lease dated August 31, 2007, which became effective October 9, 2007. In accordance with the terms of the lease, tenant paid landlord a $400,000 security deposit to be held in a segregated account. Counterclaim defendant Allen Gutterman executed a personal guaranty dated August 31, 2007, guaranteeing tenant's obligations under the lease. Either party had the right to terminate the lease "[s]ubsequent to the first consecutive twelve month anniversary of the rent . . . by providing at least ninety (90) day written notice to the other. . ." On May 15, 2008, tenant informed landlord of its intent to vacate the premises, and did vacate the premises on October 8, 2008, one year after the lease became effective. Plaintiff tenant commenced this action seeking to recover $115,944.19, i.e., the balance of its $400,000 security that defendant landlord failed to maintain in a segregated account. (Plaintiff admitted that it failed to pay rent for the months of May 2008 through September [*2]2008.) Defendant counterclaimed for $246,212.12 representing rent for the additional three months after plaintiff had vacated the premises. The motion court