Papers Numbered Notice of Motions & Affts 1 Order to Show Cause Opposition & Affidavits Reply & Affidavits Exhibits Supplemental Affidavits DECISION AND ORDER Upon reading the papers, Plaintiff’s motion (“Motion”) for summary judgment against Defendant, submitted without opposition, is denied. I. The following papers were read on the Motion pursuant to CPLR 3212: Papers Numbered Notice of Motion for Summary Judgement electronically filed on August 01, 2022, together with all supporting documents. 1 II. Plaintiff commenced this action for money damage in the amount of $7,998.05 related to credit card balance by filing a Summons and Complaint on December 9, 2020. Defendant, pro se, answered in person on January 11, 2021. Defendant has appeared pro se, except on February 21, 2023 when a New York County Lawyers Association Volunteer Lawyer for the Day Program (“VLFD”) attorney Breuer appeared on behalf of Defendant in a limited representation capacity. Attorney Breuer’s Notice of Limited Appearance of Pro Bono Counsel – NYCLA Volunteer Lawyer for the Day Program provided, inter alia, that she/he “appear[ed] in this case as pro bono counsel where [she/he] represent[ed] the Defendant: Leng on the 21[st] day of February 2023 for the limited purpose of representation under the VLFD”; and that her/his “representation automatically terminate[d] after [such] appearance without any further act or communication by any party” (Breuer Notice of Limited Appearance). In Plaintiff’s Affidavit of Service for the Motion dated August 1, 2022, deponent Salehi stated that she “served the…NOTICE OF MOTION, AFFIRMATION, AFFIDAVIT & SUPPORTING PAPERS by depositing a true copy…to…TURNBULL LAW GROUP Attorneys for Defendant PO BOX 13300 Phoenix, AZ 85002″ (Salehi Aff of Service). A thorough review of the Court’s record reveals that Defendant was never represented by the Turnbull Law Group. In addition, Turnbull Law Group had never filed any notice of appearance on behalf of Defendant. As a result, Plaintiff’s service of the Motion is defective. Although Defendant did not oppose Plaintiff’s Motion, “[a] summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion (i.e., ‘defaulted’)” (Liberty Taxi Mgt., Inc. v. Gincherman, 32 AD3d 276, 277 n * [1st Dept 2006]). Rather, “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions…” (CPLR 3212 [b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d at 968). When a moving party’s service of its motion papers is defective, it fails to afford court’s jurisdiction to consider the motion (Wilmington Sav. Fund Socy., FSB v. Sheikh, 183 A.D.3d 783; Nationstar Mtge., LLC v. Chase, 147 AD3d 964, 965; Wells Fargo Bank, N.A. v. Whitelock, 154 A.D.3d 906). Here, Plaintiff failed to present evidence that it had properly served Defendant with the Motion, thus, failed to establish its prima facie case warranting a summary judgment. III. Accordingly, Plaintiff’s motion for summary judgment against Defendant, without opposition, is denied. This constitutes the DECISION and ORDER of the Court. Dated: June 26, 20231
