Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this MotionPapers NumberedNM/OSC, Aff, Exh., Serv. 1-4Opp Aff., Exh., Serv. 5Reply Aff., Serv.DECISION/ORDER Upon the foregoing cited papers, this motion is decided as follows:Plaintiff moves for an order pursuant to CPLR §3212 granting summary judgment in its favor in this consumer credit action. The summons and complaint was filed on May 31, 2018 and issue was joined on July 10, 2018 with the filing of an answer by the defendant.The defendant’s affidavit in opposition to this motion states the amount of the debt is in dispute due to the effects of the Service Members Civil Relief Act (“SMCRA”), 50 U.S.C. 3901-4043, as “[t]hese protections may include a reduction of the interest rate on credit cards.”Section 3933 of the SMCRA provides for the waiver or reduction of penalties when “the service member is in military service at the time the fine or penalty was incurred,” and “the ability of the service member to perform the obligation was materially affected by such military service.” In the case at bar the defendant, in its answer has stated that she is unemployed and in the military. She has also provided proof of her military service as attached to her affidavit in opposition to this motion.These bare facts show that the defendant may meet the requirements of the SMCRA. Although the defendant has not shown that she would be entitled to relief, there is enough to draw an inference that she may be entitled to some relief from the total amount of the debt that may be due to her military service’s impact on her ability to pay. If she were able to show this then the debt that involves fines or penalties in connection with late payments could be forgiven.“In deciding a summary judgment motion, the court does not make credibility determinations or findings of fact, its function is to identify issues of fact, not to decide them.” Vega v. Restani Constr. Corp., 18 NY3d 499, 505 [2012]. The defendant in the instant case has raised unresolved issues that would impact the total amount of the debt. As the statements provided in plaintiff’s motion do not show the history of the account it is not known if any amount of the total amount of $20,530.70 is from late charges (“fines and penalties”). There is a triable issue of fact relating to possible charges that may be waived due to defendant’s service in the military and her inability to pay regular charges based on her service in the military.Accordingly, plaintiff’s motion is denied.This constitutes the decision and order of the court.Date: June 16, 2019
