Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause Answering Affidavits 2 Replying Affidavits Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, plaintiff’s motion for summary judgment, pursuant to CPLR 3212, is decided as follows: Plaintiff’s motion for summary judgment pursuant to CPLR 3212 on its claim for breach of contract in connection with a credit agreement is granted. To be entitled to the drastic remedy of summary judgment, the moving party 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 from the case. Winegrad v. New York University Medical Center, 64 NY 2d 851 (1985), Sillman v. Twentieth Century-Fox Film Corp., 3 NY 2d 395 (1957). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers, Alvarez v. Prospect Hosp., 68 NY 2d 320 (1986). Facts must be reviewed in the light most favorable to the non-moving party, Sosa v. 46th Street Development LLC, 101 AD 3d 490 (1st Dept. 2012). Plaintiff provided proof of the underlying debt, as shown by the statements, which demonstrates that defendant owes $11,283.81. Plaintiff submits proof of the agreement between JP Morgan Chase Bank, N.A. and the defendant, and that defendant actually used the card, and that defendant failed to make the required payments, by the affidavit of Cynthia Felan. There was also proof that the plaintiff generated account statements in its regular course of business, that these statements were mailed to defendant on a monthly basis, and that the defendant accepted and retained those statements, and made partial payments thereupon. Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact and not to delve into or resolve issues of credibility, Vega v. Restani Constr. Corp., 18 NY 3d 499 (2012). Herein, plaintiff set forth a prima facie entitlement to summary judgment via a copy of its pleadings, exhibits, and the copies of the proffered business records, and the burden therefore shifts to the defendant. Shortly after service of the summons & complaint, defendant mailed a document dated October 30, 2021 to the Civil Court stating, “NOTICE TO DESIST-NO CONTRACT…YOUR OFFER IS REFUSED FOR CAUSE, NO CONTRACT, NO CONSENT…. I am currently settling the referenced accounts through an accountant. Please cease and desist.” The Court sent an appearance notice to the defendant, for a court date on May 31, 2023. Defendant sent another notice, dated May 26, 2023, which returned the Court notice, and warned that using his name was subject to “a fee in the amount of $100,000.00 per each unauthorized use.” Accordingly, plaintiff’s motion for summary judgment, pursuant to CPLR 3212, is granted, and plaintiff is awarded a judgment against the defendant in the amount of $11,283.81, plus costs and disbursements of this action. This constitutes the decision and order of the Court. Dated: May 17, 2024
