Decision and order I. Recitation of the papers considered in the review of this Motion as required by CPLR 2219(a) Upon reading Plaintiff’s Motion for Summary Judgment (“Motion”), and Defendant’s Affirmation in Opposition (“Opposition”), together with all supporting documents, Plaintiff’s Motion is decided as follows. II. Background On December 7, 2023, Plaintiff commenced the instant action by filing the Summons and Complaints to recover consumer credit card debt in the amount of $7,444.73 with costs and disbursements. Defendant joined the action by filing an Answer. On September 17, 2024, Plaintiff filed the Motion, pursuant to CPLR 3212, on the grounds that there were no triable issues of fact present. On November 20, 2024, Defendant filed the Opposition, arguing that pursuant to CPLR 2101(b), Plaintiff’s submission of credit card statements and cardholder agreement, provided in Spanish only, was inadmissible as evidence. Defendant also alleged that Plaintiff’s submission of the Affidavit of Kristian Quijada, the Document Control Officer employed by Plaintiff, merely provided conclusory statements from someone without personal knowledge and as such constituted inadmissible evidence. Defendant further contended that Defendant did not understand the reasons for Plaintiff finding Defendant’s hardship application as insufficient, despite providing Plaintiff with a copy of Defendant’s current lease and a copy of a Social Security statement. Defendant’s Opposition was written pro se, with the assistance from Manhattan Legal Services, Inc. The Opposition was provided in English, translated from Spanish to English. It was supplemented by an Affirmation of Translation by a Spanish translator. III. Discussion CPLR 3212 states in pertinent part that “a motion for summary judgment shall be supported by an affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any genuine material issues of fact from the case (see Winegrad v. NYU Medical Center, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (see Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A [party] moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (see GTF Mktg. v. Colonial Aluminum Sales, 66NY2d 965, 967 [1985]; Anghel v. Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2nd Dept 2021]). The court’s function on these motions is limited to “issue finding” not “issue determination” (see Sillman v. Twentieth Century Fox Film, 3 NY2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141). Here, Plaintiff contended that pursuant to CPLR 3212, it is entitled to summary judgment on a breach of contract claim. In support of its claim, it submitted copies of the Credit Card Agreement between Plaintiff and Defendant, Defendant’s credit card statements, an Affidavit of Kristian Quijada, the Document Control Officer employed by Plaintiff, an Affidavit of Service providing that Defendant was served in accordance with CPLR 308(1), and a copy of a Non Military Affirmation, indicating “that the defendant is not in military service” (Military Law 309 [1]). However, Plaintiff’s documentary evidence in its Motion is insufficient for summary judgment because Plaintiff’s proffered evidence was not in admissible form (see Quispe v. Lemle & Wolff, Inc., 266 AD2d 95, 96, 698 N.Y.S.2d 652 [1st Dept 1999]; see also Reyes v. Arco Wentworth Management Corp., 83 AD3d 47, 919 N.Y.S.2d 44 [2nd Dept 2011]). CPLR 2101(b) mandates that “each paper served or filed shall be in the English language and where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his or her qualifications and that the translation is accurate” (see Nat’l Puerto Rican Day Parade, Inc. v. Casa Publications, 79 AD3d 592, 594, 914 N.Y.S.2d 120 [1st Dept 2010]). Here, the credit card statements provided by Plaintiff and cardholder agreement were in Spanish, without being accompanied by an English translation nor an affidavit by the translator stating his or her qualifications and that the translation was accurate (CPLR 2101[b]). The lack of complete translation of the entire aforementioned documents is fatal as the Court cannot glean “genuine material issues of fact” from Plaintiff’s breach of contract claim without having full understanding of the documents pertinent to the instant action (see Winegrad, 64 NY2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 [1985]; Alvarez, 68 NY2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]). Here, Plaintiff has failed to establish its prima facie case based on submission. IV. Order Accordingly, it is ORDERED that Plaintiff’s Motion for Summary Judgment is DENIED without prejudice. This constitutes the decision and order of this Court. Dated: December 23, 2024
