phase of discovery is simply untenable, as all of the documents on which plaintiffs rely have
[*5]been available for some time. The extended delay in seeking
the amendment, without a reasonable excuse, would significantly prejudice defendants
(see CPLR 3025[b]; Kocourek v Booz Allen Hamilton, Inc., supra).
Thus, the cross motion is granted only to the extent of amending the caption in the pleadings
to conform to the proper legal name of the Owner of the Subject Apartment, as set forth in the
Deed, and the cross motion is otherwise denied.
Summary Judgment
Defendants seek summary judgment dismissing the Amended Complaint, and the return of
their security deposit. It is well settled that the proponent of a summary judgment motion must
make a prima face showing of entitlement to judgment as a matter of law, tendering sufficient
evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49
NY2d 557, 562 [1980]). Failure to make a showing requires denial of the motion, regardless of
the sufficiency of the opposing papers (JMD Holding Corp. v Congress Fin. Corp., 43
NY3d 373, 384 [2005]). However, once the showing has been made, the burden shifts to the
party opposing the motion for summary judgment to produce evidentiary proof in admissible
form sufficient to establish the existence of material issues of fact which require a trial of the
action (Zuckerman v City of New York, supra). Mere conclusions, expressions of
hope or unsubstantiated allegations or assertions are insufficient to defeat summary judgment
(id.).
As stated, the Amended Complaint asserts claims against defendants for default under the