judgment motion 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, 49
NY2d at 562. Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions
are insufficient to defeat summary judgment. Id.
The legal relationship between landlord and tenant with regard to the security deposit
has changed — where once the landlord was thought of as a debtor who owed tenant a
debt, now the landlord acts as a trustee and "owes a duty not to commingle the deposit with his
own funds." LeRoy v Sayers, 217 AD2d 63, 68 (1st Dep't 1995) (quoting Matter of
Perfection Tech. Servs. Press, 22 AD2d 352, 356 [2d Dep't 1965], aff'd 18 NY2d 644
[1966]) . Failure by a landlord to segregate a security deposit constitutes conversion. See
Matter of Ideal Reliable Sundries, Inc., 49 AD2d 852 (1st Dep't 1975). Upon a breach of that
duty to segregate, the landlord forfeits his [*4]right to avail
himself of the security deposit for any purpose and "vest[s] in plaintiff an immediate right' to
receive those monies." Tappan Golf
Drive Range, Inc. v Tappan Property, Inc., 68 AD3d 440, 440 (1st Dep't 2009),
quoting LeRoy, 217 AD2d at 68—69; see Dan Klores Assocs., Inc. v
Abramoff, 288 AD2d 121, 121 (1st Dep't 2001). "Nor is the tenant's non-compliance with
the lease terms a defense to a landlord's breach of his duty in this regard." LeRoy, 217
AD2d at 68.
Here, plaintiff has demonstrated a prima facie case that it is entitled to summary judgment on
its claim for conversion. It is undisputed that defendant Developer failed to deposit the $400,000
security deposit into a segregated account, pursuant to GOL § 7-103 and as required by the