defendant. At the end of the lease term, plaintiff vacated the Premises but defendant has failed to
return the Security and Utilities Deposits.
Plaintiff commenced this action in December 2010, alleging that defendant breached the
Lease and converted the Security and Utilities Deposits by commingling the funds with
defendant's personal monies in violation of the Lease and New York General Obligations Law
(GOL) § 7-103. Defendant joined issue in April 2011 by filing an answer with
counterclaims. Thereafter, plaintiff filed this motion for summary judgment contending that no
triable issues of fact exist and judgment should be entered against defendant as a matter of law.
The standards of summary judgment are well settled. Summary judgment is a drastic remedy
and should only be granted if the moving party has sufficiently established that it is warranted as
a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary
judgment, it must be clear that no material or triable issues of fact are presented. See
Stillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). "The proponent of a
summary judgment motion must make a prima facie showing of entitlement to judgment as a
matter of law, tendering sufficient evidence to eliminate any material issues of fact from the
case". Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985).
Once such entitlement has been demonstrated by the moving party, the burden shifts to the party
opposing the motion to "demonstrate by admissible evidence the existence of a factual issue
requiring a trial of the action or tender an acceptable excuse for his failure to do so."
Zuckerman v City of New York, 49 NY2d 557 (1980). However, the Court of Appeals has