is owed Developer following the time it vacated.
In opposition, defendants contend that plaintiff prematurely vacated the premises and
stopped paying its monthly base rent payments in April 2008. Thus, defendants argue that
plaintiff is liable for rent and other expenses up to and including January 2009, three months
following the one year anniversary of the tenancy. Further, with regard to the security deposit,
defendants contend that plaintiff did not give a security deposit to any of them. To support its
contentions, defendants submit the affidavit of defendant Moussa Yeroushalmi, which states that
plaintiff did not make any security deposit to that defendant or any others. See Moussa
Yeroushalmi Aff ¶ 15.
Moreover, with regard to counterclaim-defendant Gutterman,
defendants/counterclaim-plaintiffs contend that, pursuant to his personal guaranty, Gutterman
was not allowed to assert any defense and answer to the third-party complaint. In connection with
the Lease Agreement, Gutterman signed a personal guaranty, wherein it stated that the guarantor,
Gutterman, would be "irrevocably and unconditionally, without offset, defense, or counterclaim
or any nature . . . bound and liable hereunder." Gutterman Aff, Exh H at ¶ 1.
Plaintiff's Motion for Summary Judgment on its Conversion Claim
It is well settled that 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
demonstrate the absence of any material issues of fact. Winegrad v New York Univ. Med.
Ctr., 64 NY2d 851, 853 (1985); Zuckerman v City of New York, 49 NY2d 557, 562
(1980). Once this showing has been made, the burden shifts to the party opposing the summary