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 3 Exhibits Supplemental Affidavit AMENDED 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 submitted proof of the underlying debt, as shown by the Discover Bank statements, which demonstrate that defendant owes $18,299.82. Plaintiff submitted proof of the agreement between Bank of America and the defendant, that defendant actually used the card, and that defendant failed to make the required payments. The affidavit of Richard L. Nichols, Jr. provided proof of these allegations. There also were years of credit card statements. Defendant’s opposition alleges he made attempts to dispute charges, and that he disputed the amounts owed. However, defendant fails to specify any particular questionable or invalid charges, nor does his attorney, who puzzlingly argues CPLR §3212, does not apply in the Civil Court. On its motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law, (HSBC Mtge. Servs., Inc. v. Royal, 142 A.D. 3d 952, 953-954, 37 N.Y.S.3d 321). In this case, the plaintiff has demonstrated its prima facie entitlement to a judgment. The defendant has failed to prove otherwise. Accordingly, plaintiff’s motion for summary judgment is granted. The plaintiff is allowed to enter judgment in the amount of $18,299.82, plus statutory costs. This constitutes the decision and order of the Court. Dated: September 5, 2024
