In opposing plaintiff's motion for summary judgment, defendants fail to produce sufficient
admissible evidence to establish the existence of any material issue of fact. Defendants attempt to
create an issue of fact by stating that plaintiff never made the security deposit. See James
O. Guy Affirmation in Opp ¶¶ 26-30.[FN2] However, other than an attorney affirmation,
which lacks personal knowledge, only an affidavit by one of the defendants, Moussa
Yeroushalami, was submitted. While the affiant states, in a conclusory fashion, that "[Plaintiff]
did not deposit anything with (a) Developer LLC, (b) any co-defendant or (c) me" (Moussa
Yeroushalami Aff ¶ 15), this affidavit is not sufficient to adequately challenge plaintiff's
claims. Notably, Moussa never states his relationship to Developer and how he could have any
personal knowledge as to [*5]whether a security deposit was
given to Developer. Nor does he explain his basis for personal knowledge as to how he knows
that his co-defendants did not receive a deposit. Moreover, the Verified Answer filed by
defendants states that Moussa is not a member of Developer and defendants' attorney also
makes that representation. See Verified Answer and Counterclaim, Gutterman Aff, Exh
B; Guy Affirmation in Opp ¶ 25. Further, in light of the email correspondence discussed
above, in which defendant Bruce Benjamin, who is a member of Developer, discusses the
security deposit, yet never states that one was not given, but instead concedes that
defendant is willing to give plaintiff interest on the funds, Moussa's contentions are
unsubstantiated and insufficient to preclude summary judgment. See Gutterman Aff, Exh
L.
As to the remedy for Developer's conversion, "[w]hile section 7-103 [of the General