Opinion
CV-023094-17/KI
04-03-2019
BANK OF AMERICA, Plaintiff, v. Sonia COOPER, Defendants.
Timothy F. Rooney, Esq., Mullooly, Jeffrey, Rooney & Flynn, LLP., 6851 Jericho Turnpike, Suite 220, P.O. Box 9036, Syosset, NY 11791, (516)-656-5300, Counsel for Plaintiff, Sonia Cooper, Defendant Pro Se.
Timothy F. Rooney, Esq., Mullooly, Jeffrey, Rooney & Flynn, LLP., 6851 Jericho Turnpike, Suite 220, P.O. Box 9036, Syosset, NY 11791, (516)-656-5300, Counsel for Plaintiff, Sonia Cooper, Defendant Pro Se.
INTRODUCTION
Plaintiff moves This Honorable Court by Notice of Motion, Opposed, pursuant to CPLR 3212 for an Order granting Summary Judgment in favor of Plaintiff and against Defendant for the relief sought in the Complaint together with such other and further relief deemed just and proper. For the reasons set forth below, Plaintiff's motion is GRANTED.
PROCEDURAL AND FACTUAL HISTORY
Defendant entered into a revolving credit card agreement with plaintiff-original creditor, Bank of America, N.A. Thereby authorizing defendant to make purchases, receive cash advances and was obligated to reimburse plaintiff in addition to finance charges. Plaintiff mailed monthly statements which were received and presumably retained by defendant for account activity from February 3, 2015 through January 4, 2016 without any noted objection. Plaintiff claims with attached statements contained within Affidavit in Support of Motion for Summary Judgment, last payment made by defendant was $ 83.00 on June 23, 2015, resulting in the current balance due of $ 11,253.73. Demand for payment has been made by plaintiff to defendant. However, defendant remains in default of the agreement for the charge off balance amount of $ 11,253.73.
Seeking to recover this unpaid balance of $ 11,253.73, plaintiff commenced this consumer credit transaction case on October 3, 2017 to recover said sums due and owing by Summons and Complaint for the following claims:
FIRST CAUSE OF ACTION
4. Defendant applied for and received a credit account, which is owned and administered by Plaintiff (the "Account"). Defendant used or authorized the use of the Account for the acquisition of goods, services, balance transfers or cash advances in accordance with the customer agreement ("Agreement") governing use of the Account with Plaintiff.
5. Defendant breached the Agreement by failing to make periodic payments as required thereby and the Account was subsequently charged-off. The entire balance on the Account is owed to Plaintiff and is presently due and payable in full.
6. The current Account balance is $ 11,253.73, which includes any applicable payments and credits. The Account is not accruing post charge-off interest.
FOR A SECOND CAUSE OF ACTION
7. In accordance with federal regulations, monthly periodic statements for the Account have been provided to the Defendant and retained without successful objection. Attached hereto and incorporated herein as Exhibit "A" is a copy of the last periodic statement provided to Defendant prior to charge-off. Based on Plaintiff's records, there are no unresolved billing disputes related to the Account.
On October 17, 2017, issue was joined upon defendant filing of Answer with the Court, stating: "I received the Summons and Complaint, but service was not correct as required by law."; "I have paid all or part of the alleged debt"; "I dispute the amount of the debt"; and "I'm currently unemployed" (Motion Exhibit 3). All parties appeared on October 31, 2017, February 5, 2018, July 12, 2018, and December 12, 2018. Defendant's opposition dated December 13, 2018 and Plaintiff's reply to defendant's opposition dated February 7, 2018. Oral argument held on motion on March 14, 2019, and court adjourned to September 23, 2019 for conference pending decision on the instant motion.
DISCUSSION
Plaintiff-Original Creditor moves by notice of motion to establish that as a matter of law, the admissible evidence presented within the motion papers make out a prima facie entitlement to summary judgment pursuant to NYS CPLR 3212 (b) :
(b) Supporting proof; grounds; relief to either party. 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. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion 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. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
It is well-established law that summary judgment is a drastic remedy in that it deprives the non-movant party of her day in court and should only be granted if there is no material and triable issue of fact ( Sillman v. Twentieth Centurv-Fox Film Corp. , 3 NY2d 395 [1957] ; Alvarez v. Prospect Hosp ., 68 NY2d 320 [1986] ). The burden is upon movant to make its prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issue of fact ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 ; Zuckerman v. City of New York , 49 NY2d 557, 562 ; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 ; see also Giuffrida v. Citibank , 100 NY2d 72 [2003] ). It must clearly appear to the court that unequivocally there is no material and triable issue of fact presented from the motion papers ( Di Menna & Sons v. City of New York , 301 NY 118 [Ct App 1950] ). Where the court finds an existence of such an issue or where the issue may be so deemed "arguable" requires denial of summary judgment ( Braun v. Carey , 280 App Div 1019 [3d Dept 1952] ; Barrett v. Jacobs , 255 NY 520, 522 [Ct App 1931] ). "Issue-finding, rather than issue-determination, is the key to the procedure" for the court ( Esteve v. Avad , 271 App Div 725, 727 [1st Dept 1947] ; Gravenhorst v. Zimmerman , 236 NY 22, 38-39 [Ct App 1923] ). In evaluating a motion for summary judgment, a court is not to engage in determining credibility of an issue, but rather whether there exists an issue that requires determination of credibility ( S.J. Capelin Assoc. v. Globe Mfg. Corp. , 34 NY2d 338 [1974] ). Moreover, where the court finds that there is even one material relevant issue that requires determination of credibility, in and of itself is sufficient for denial of motion ( Sillman v. Twentieth Century Fox Film Corp. , 3 NY2d 395, 404-05 [1957] ). When reviewing the motion, the papers must be strictly scrutinized in the light most favorable to the opposing party ( Pearson v. Dix McBride , 63 AD3d 895, 883 [2nd Dept 2009] ; Robinson v. Strong Mem. Hosp. , 98 AD2d 976 [4th Dept 1983] ). Movant has the initial burden of coming forward with admissible evidence to support the finding of a prima facie entitlement as to warrant the court's directing judgment in movant's favor as a matter of law notwithstanding sufficiency of opposition or lack thereof ( Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [Ct App 1985] ). Once movant's burden has been met, burden to rebut then shifts to the opposition to demonstrate, by admissible evidence, the existence of a material factual issue in dispute requiring a fact-finder's determination at trial (see Friends of Animals v. Associated Fur Mfrs ., 46 NY2d 1065, 1067 [Ct App 1979] ; see also Alvarez v. Prospect Hosp. , 68 NY2d 320 [Ct App 1986] ; Zuckerman v. Citv of New York , 49 NY2d 557 [Ct App1980] ). Opposition papers relying upon general overbroad allegations or mere conclusory immaterial non-relevant facts or law, unsupported by competent admissible evidence sufficient to require a trial will fail to satisfy burden to defeat summary judgment (Fileccia v. Massapequa Gen. Hosp., supra; Bustamonte v. Koval, 98 AD2d 739 [2d 1983] ; Pan v. Coburn , 95 AD2d 670 [1st Dept 1983] ; Himber v. Pfizer Labs., 82 AD2d 776 [1st Dept 1981] ; Baldwin v. Gretz , 65 AD2d 876 [3d Dept 1978] ; Century Ctr. Ltd. v. Davis , 100 AD2d 564 [2d Dept 1984] ). Where the court finds but a scintilla of doubt as to the existence of a triable issue of fact in dispute, summary judgment must be denied ( Moskowitz v. Garlock , 23 AD2d 943 [3d Dept 1965] ).
However, most defendants in consumer debt cases are pro-se. They do have their day in court by appearing to oppose the motion for summary judgment in oral argument as well as in writing if they so choose. A more sophisticated and computer-savvy defendant appears in court to tell their side of the story to argue their opposition armed with self-help websites. Albeit, most pro-se defendants generally have difficulty understanding the legal concept of summary judgment.
Where movant for summary judgment is an original creditor to prevail on a breach of contract cause of action to recover amounts overdue and owing, Plaintiff-creditor must provide sufficient evidence to prove a contractual agreement with defendant. Modern technology has made obsolete an actual signature by the defendant as the acceptance of the credit card agreement. Rather, credit card applications are done by phone or online. It has been held that a plaintiff-creditor's issuance of a credit card constitutes the offer and defendant's use of said credit card constitutes the acceptance, establishing the contractual agreement ( Eze v. JP Morgan Chase Bank, NA ,2010 WL 3189813, 2010 US Dist LEXIS 82088 [EDNY, Aug. 10, 2010, No. 09-CV-2722 [ENV] [LB] ]; American Express Centurion Bank v. Ahad , 2017 NY Slip Op 51523(U), 57 Misc 3d 150 [A], 71 NYS 3d 921 [2d Dept 2017] ; Greenfield v. Philles Records, Inc ., 98 NY2d 562 [2002] ; Katina, Inc. v. Famiglietti , 306 AD2d 440 [2d Dept 2003] ; Browner v. Gateway 2000, Inc., 246 AD2d 246 [1st Dept 1998] ; Feder v. Fortunoff, Inc ., 114 AD2d 399 [2d Dept 1985] ; Anonymous v. JP Morgan Chase & Co. , No. 05-CV-2442, 2005 U.S. Dist. LEXIS 26083, at *9-*10, 2005 WL 2861589 [SDNY. Oct. 31, 2005] ). It is the use of the credit card not the signature on an application that is the acceptance creating the contract. The contractual terms are the plaintiff-creditor's credit card agreement , which is clearly non-negotiable, tantamount to a quasi-contract of adhesion, such that colloquially speaking, applicant takes it or leaves it . Therefore, in defendant-debtor "using a credit card and making payments to the credit provider binds the cardholder to the terms and conditions of card use ( Grasso v. First USA Bank , 713 A2d 304, 309 [Del Super Ct 1998] ); In re Carlin , 2009 Bankr. LEXIS 725, at *6 [SDNY, Feb. 10, 2009]; Chisholm-Ryder Co. v. Sommer & Sommer , 70 AD2d 429, 421 NYS 2d 455 [4th Dept 1979] ). After establishment of the contract between plaintiff and defendant, then it must be shown that defendant breached the terms of the credit card agreement in failing to pay minimum amount due by the date due as per the credit card statements. Once breach is proven through admissible evidence in the motion papers then prima facie case for breach of contract cause of action is satisfied.
Credit card agreements are heavily regulated by the individual states consumer protection agencies and Banking Departments, Federal Truth In Lending Act and, particularly New York's Executive Law and Consumer Protection Act Executive Law § 63 [12] [fraud] ; General Business Law § 349.
Weidman v. Tomaselli , 1975 NY Misc LEXIS 2382, 81 Misc 2d 328, 365 NYS 2d 681 holds, "A contract of adhesion is a contract in relation to a necessity of life, drafted by or for the benefit of a party for that party's excessive benefit, which party uses its economic or other advantage to offer the contract in its entirety solely for acceptance or rejection by the offeree. Thus, the elements of a contract of adhesion are: (1) a necessity of life; (2) a contract for the excessive benefit of the offeror; (3) an economic or other advantage of the offeror; and (4) the offer of the proposed contract on a take it or leave it basis. All four elements must be present for a contract to be deemed a contract of adhesion ... The element which is the sine qua non of a contract of adhesion is that the contract's subject matter is a necessity of life.... The court takes judicial notice that food, clothing, shelter, and employment are necessities of life" (id at 331 ). Rather, not so for luxury items such as a gym membership (Ciofalo v. Vic Tanney Gyms, Inc ., 10 NY2d 294, 297-298 ). Although a credit card is not a luxury, neither is it a necessity. Ergo, although credit card agreements are indeed "take it or leave it", one-sided with plaintiff-creditor maintaining the superior bargaining position of power, such agreements may not be considered contracts of adhesion since the power to reject creditor's offer remains with defendant-debtor. Arguendo, there may be a persuasive argument that credit cards have indeed become "a necessity of life" since in many facets of daily life there has been growing business models whereby a credit card has become the sole acceptable currency, tantamount to and in certain instances superior to cash and its strictly circumscribed hybrid, the debit card, in which to acquire those "necessities of life."
As to the second cause of action relied upon by plaintiff in which relief is sought and on which may support judgment as a matter of law for collection of defaulted debt, account stated:
" ‘As a general rule where an account is made up and rendered, he who receives it is bound to examine the same or to procure someone to examine it for him. If he admits it to be correct it becomes a stated account and is binding on both parties. If instead of an express admission of the correctness of the account, the party receiving it keeps the same by him and makes no objection within a reasonable time, his silence will be construed into an acquiescence in its justness, and he will be bound by it as if it were a stated account. An account stated is conclusive upon the parties unless fraud, mistake or other equitable considerations are shown which make it improper to be enforced."( Rodkinson v. Haecker , 248 NY 480 [Ct App 1928], citing Lockwood v. Thorne , 11 NY 170, 174 [Ct App 1854] ).
"An account stated is an agreement between [the] parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due’ ( Fleetwood Agency, Inc. v. Verde Elec. Corp. , 85 AD3d 850, 851 [2011], quoting Jim-Mar Corp. v. Aquatic Constr. , 195 AD2d 868, 869 [1993] ; see Branch Servs., Inc. v. Cooper , 102 AD3d 645, 646 [2013] ; Citibank [S.D.], N.A. v. Brown-Serulovic , 97 AD3d 522, 523 [2012] ; American Express Centurion Bank v. Cutler , 81 AD3d 761, 762 [2011] ). To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection (see Castle Oil Corp. v. Bokhari , 52 AD3d 762 [2008] ).
In the case of existing indebtedness, the agreement may be implied as well as express (see Jim-Mar Corp. v. Aquatic Constr. , 195 AD2d 868, 869 [3rd 1993] ; Chisholm-Ryder Co. v. Sommer & Sommer , 70 AD2d 429 [1979] ). ‘An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account ( American Express Centurion Bank v. Cutler , 81 AD3d 761, 762 [2nd Dept 2011] ; see Citibank [S.D.], N.A. v. Brown-Serulovic , 97 AD3d 522, 523 [2nd Dept 2012] ; Landau v. Weissman , 78 AD3d 661, 662, 913 NYS2d 107 [2010] ).’ " ( CACH LLC v. George , 56 Misc 3d 591, 52 NYS 3d 214, 2017 NY Misc LEXIS 1732, 2017 NY Slip Op 27155 [Nassau Dist Ct 2017] ).
As indicated, plaintiff may satisfy its burden to make a prima facie showing of entitlement to summary judgment on account stated by tendering sufficient admissible evidence to show that defendant received account statements "for payment and retained these statements for a reasonable period of time without objection" (see Castle Oil Corp. v. Bokhari , 52 AD3d 762, 861 NYS2d 730 [2008] ; Fink, Weinberger, Fredman, Berman & Lowell, P.C. v. Petrides , 80 AD2d 781, 437 NYS2d 1 [1st Dept 1981] ). Pursuant to CPLR 3212 (b) affidavits either in support or opposition to summary judgment must be made by someone with personal knowledge of the facts. A conclusory affidavit by an affiant lacking in personal knowledge of the facts will fail to satisfy the prima facie burden for summary judgment ( Vermette v. Kenworth Truck Co. , 68 NY2d 714 [1986] ). Rather, to overcome the burden of prima facie showing movant must include facts in admissible form that establish the original agreement, any revisions and that those notification documents were mailed or communicated as with online paperless account holders to the defendant and copies of those credit card statements included in moving papers, which were received and retained by defendant for a period of time without protest or objection ( Castle Oil Corp. v. Bokhari , 52 AD3d 762 [2nd Dept 2008] ). Failure to protest or object to any of the attached statements evidence tacit acceptance by defendant of original agreement and revisions thereof. Defendant's subsequent use or any payments made to the credit card may provide further evidence of acceptance by defendant of the original and/or revised terms of the credit agreement. ( Chase Manhattan Bank [Nat. Ass'n], Bank Americard Division v. Hobbs , 94 Misc 2d 780 [Civ Ct Kings County 1978] ; Citibank [S.D.] N.A. v. Roberts , 304 AD2d 901 [3d Dept 2003] ). Credit card account statements are deemed to be generated in the regular course of business, therefore admissible as business records ( Johnson v. Lutz , 253 NY 124 [Ct App 1930] ; Citibank [S.D.] N.A. v. Roberts , 304 AD2d 901 [3d Dept 2003] ) and self-authenticating ( Portfolio Recovery Assoc., LLC v. Lall, 127 AD3d 576 [1st Dept 2015] ; Merrill Lynch Bus. Fin. Servs. Inc. v. Trataros Constr., Inc. , 30 AD3d 336 [1st Dept 2006], lv denied 7 NY3d 715, 859 NE2d 920, 826 NYS 2d 180 [2006] ). Failure to satisfy these requirements requires denial of summary judgment notwithstanding the sufficiency of opposition or lack thereof ( Palisades Collection, LLC v. Gonzalez , 10 Misc 3d 1058[A], 809 NYS 2d 482, 2005 NY Slip Op 52015[U] [Civ Ct NY County 2005] ; Winegrad v. New York Univ. Med. Center at 853).
Credit cards are classified as open-ended credit lines and pursuant to The Fair Credit Billing Act (US Code, Title 15, § 1666 ) "If a creditor, within sixty days after having transmitted to an obligor a statement of the obligor's account in connection with an extension of consumer credit, receives at the address disclosed under section 1637 (b)(10) of this title a written notice [indicating] the obligor's belief that the statement contains a billing error the creditor shall [take certain specified steps]" (US Code, tit 15, § 1666, subd [a], par [2]; emphasis added). A billing error notice, as indicated by the language of the statute, is to be sent to the creditor's address as disclosed under § 1637 (subd b], par [10] ) of title 15 of the United States Code. Subdivision (b) of that section requires that the creditor of any account under an open-end consumer credit plan shall transmit to the obligor, for each billing cycle at the end of which there is an outstanding balance in that account or with respect to which a finance charge is imposed, a statement setting forth, inter alia , the address to be used by the creditor "for the purpose of receiving billing inquiries from the obligor." (US Code, tit 15, § 1637, subd [b]. Jacobs v. Marine Midland Bank, N.A. , 475 NYS 2d 1003, 124 Misc 2d 162, 1984 NY Misc LEXIS 3168.
Where plaintiff successfully makes a prima facie showing of entitlement to judgment as a matter of law that there is not any material triable issue of fact, then the burden to rebut shifts to opposing defendant to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim or must demonstrate an acceptable excuse" or failure to so do ( Zuckerman v. City of New York , 49 NY2d 557, 560 [Ct App 1980] ; Pride Acquisitions LLC v. Benson , 2012 NY Misc LEXIS 5839, 2012 NY Slip Op 33065 [U] [Sup Ct 2012] ). "In making this determination, the evidence must be viewed in the light most favorable to the non-moving party" (id at 2; Pearson v. Dix McBride , 63 AD3d 895, 883 NYS 2d 53, 53 [2d 2009] ) and inferences that may be drawn therefrom must be accepted as true ( Dykeman v. Heht , 52 AD3d 767, 769, 861 NYS 2d 732 [2d 2008] ). Defendant cannot rely on conclusory vague contrived protestations not relevant nor material to overcome the burden to defeat judgment as a matter of law. Where defendant provides such admissible proof as to the existence of any material issue of fact that lends itself to doubt, equivocation or credibility then this issue of fact must be determined by the fact-finder either by judge or jury precluding summary judgment ( Moskowitz v. Garlock , 23 AD2d 943, 259 NYS 2d 1003 [3d Dept 1965] ).
This is the scenario in the instant matter herein as analyzed infra . Plaintiff as original creditor met its initial burden on the summary judgment motion by duly providing admissible evidentiary proof to establish prima facie case for breach of contract and account stated: establishing credit agreement between plaintiff and defendant, on or about March 2, 2011; issuance of credit card; use of credit card; receipt and retention of monthly statements, which are provided by plaintiff from April 1, 2015 to February 1, 2016 with last new balance owed of $ 11,253.73, the amount being sued upon; payments on the account by defendant monthly until default; no objections by defendant of those statements received by plaintiff as per stated in every monthly statement in bold lettering as to reporting of errors ; default in payment by defendant pursuant to credit card agreement's contractual terms causing breach in failure to pay, the last payment made by defendant on or about June 23, 2015.
"Please remember: If you find an error on your bill, you must notify us no later than 60 days after we sent your first statement on which the error or problem appeared to preserve your billing rights" see fn 4, supra.
Defendant's arguments as to plaintiff's supporting documentation being inadmissible as hearsay and not falling within the business records exception is unpersuasive. Plaintiff's affidavit by its authorized officer custodian of records is a person with actual knowledge and corroborating bank statements. Additionally, in her Answer defendant impliedly admits contractual relation with plaintiff and primarily disputes the debt itself, as to the amount owed and due as being incorrect, without any specifics. Defendant fails to provide her own calculations to rebut plaintiff's specific not vague numbers owed and due as well as when the default occurred and provides ample information as to the credit card statements sent to defendant as well as copies of checks of defendant's partial payments on the debt being sued upon. Defendant's statements are conclusory and vague, lacking any specificity; fails to provide any admissible evidentiary corroborating proof and are insufficient to overcome her burden to rebut plaintiff's prima facie showing of entitlement to judgment as a matter of law. There is no indication by defendant with dates nor times nor subject matter that there had been any objections to the previously received statements by defendant. Defendant also states that plaintiff responded to defendant's discovery, but response was incomplete, with no specificity as to being incomplete in what respect. How was the discovery provided incomplete? What was missing that was required to be full scope of discovery as opposed to incomplete? Defendant in her opposition papers had the responsibility to be fully transparent and include any and all information specifically necessary to rebut plaintiff's prima facie case. Defendant failed to do so. Further, defendant avers in her Answer that she is currently unemployed. Where defendant, as here, is experiencing financial hardship as lack of employment such that her sole income may be exempt and assets derived from exempt income, that may be a persuasive factor to request special dispensation from plaintiff to perhaps discontinue this consumer debt case against her, with or without prejudice. This would solely be within the merciful discretion of the plaintiff. Indeed, you cannot get blood out of a stone from a judgment proof defendant. Defendant's financial hardship however causing inability to pay is not a defense nor a material triable issue of fact to be considered in judgment as a matter of law. Although, grant of summary judgment in favor of plaintiff may be but a pyrrhic victory. But, a victory, nonetheless.
New York State Exempt Income Protection Act of 2009 [EIPA] protects "Social Security and other subsistence and retirement payments from creditors. They ensure that a disabled, elderly or impoverished person can eat, buy medicine and remain housed" (Exempt Income Protection Act Better Protects Strapped Debtors; Outside Counsel, New York Law Journal [Jan. 27, 2009] ). This Honorable Court is indeed sympathetic to defendant herein as well as similarly situated seniors, disabled and impoverished, as evidenced by this jurist's drafting, petitioning and introducing to the legislature the progenitor to EIPA, titled, Decatur Stuyvesant Seniors Bank Restraint Bills, Proposed Amendment, CIVIL PRACTICE LAW AND RULES ARTICLE 52. ENFORCEMENT OF MONEY JUDGMENTS NY CLS CPLR §§ 5222 (2002) §§ 5222. RESTRAINING NOTICE (Feb. 8, 2003).
Consequently, plaintiff-movant in its case in the first instance successfully has met its burden establishing prima facie case for judgment as a matter of law. Defendant fails to successfully rebut plaintiff's prima facie case in its opposition and fails to establish a material triable issue of fact.
For the foregoing reasons, plaintiff's Motion for Summary Judgment is GRANTED.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.