Opinion
03699/14-NY
03-31-2016
Capital One Bank (USA), N.A., Plaintiff, v. Flora Suarez, Defendant.
Plaintiff: Forster & Garbus, LLP 60 Motor Parkway P.O. Box 9030 Commack, NY 11725 631-393-9400 Defendant: CAMBA Legal Services, Inc. 885 Flatbush Avenue, 2nd Floor Brooklyn, NY 11226 718-940-6311
Plaintiff: Forster & Garbus, LLP 60 Motor Parkway P.O. Box 9030 Commack, NY 11725 631-393-9400 Defendant: CAMBA Legal Services, Inc. 885 Flatbush Avenue, 2nd Floor Brooklyn, NY 11226 718-940-6311 Erika M. Edwards, J.
Plaintiff, Capital One Bank (USA), N.A. ("Plaintiff"), brought this action against Defendant Flora Suarez ("Defendant"), seeking to recover $2,955.42 in unpaid credit card debt alleging breach of contract and account stated. Based upon the foregoing cited papers and after oral argument before this court on February 22, 2016, Plaintiff's motion for summary judgment is denied without prejudice.
Backg round
Plaintiff moved for summary judgment in its favor based on records submitted through an affidavit in support from Shari Falloon-Johnson, who is a litigation support representative of Plaintiff employed by an agent and affiliate of Plaintiff. Plaintiff alleges breach of contract in that the parties entered into a credit card agreement that required Defendant to make monthly payments to Plaintiff and Defendant failed to make payments as required by the agreement. Plaintiff also alleges that it is entitled to summary judgment on its account stated claims because Defendant incurred charges on the credit card account, Plaintiff mailed monthly statements to Defendant for years, which must have been received by Defendant because Defendant made partial payments and incurred new charges without objecting to the balance due on any of those statements. Additionally, Defendant fails to deny opening said account, incurring the charges and does not dispute the balance due and owing through evidence in admissible form.
Defendant opposes summary judgment and alleges that the affidavit submitted in support of Plaintiff's motion contains numerous procedural and evidentiary defects and there are triable issues of fact in dispute. Defendant argues in substance that the affidavit from the litigation support representative does not demonstrate the personal knowledge necessary to offer the exhibits into evidence, it fails to lay the proper business record foundation, particularly for electronic records, and it fails to establish a prima facie claim for breach of contract or account stated. Additionally, it fails to provide essential facts necessary to support her alleged knowledge of Plaintiff's procedures and documents related to Defendant's account, including her job responsibilities, dates of employment, training, basis of knowledge and description of Plaintiff's record keeping system, billing and mailing procedures. It also only references the account statements, but fails to mention any other records annexed to the affirmation for the court's consideration. Furthermore, Defendant settled a case involving a Capital One credit card account and only recalls having one Capital One credit card. Unfortunately, there is no account number on the settlement documents. Finally, Defendant disputes the amount owed and states that she is confident that she owes less than the amount claimed.
Summary Judgment
To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Jacobsen v New York City Health and Hospitals Corp., 22 NY3d 824, 833 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The submission of evidentiary proof must be in admissible form (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-68 [1979]). The movant's initial burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 NY3d at 833; William J. Jenack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]).
If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman, 49 NY2d at 560; Jacobsen, 22 NY3d at 833; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).
Summary judgment is "often termed a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue" (Siegel, NY Prac § 278 at 476 [5th ed 2011], citing Moskowitz v Garlock, 23 AD2d 943 [3d Dept 1965]).
Business records are admissible as an exception to the hearsay rule if the entry was made in the regular course of business, it was a regular course of business to make the entry and the entry was made at the time of the transaction, act or event or within a reasonable time thereafter (CPLR 4518[a]). The proponent of the business record must demonstrate that it was within the scope of the entrant's business duty to record the act, transaction or occurrence sought to be admitted and that every participant in the chain producing the record was acting within the scope of their regular business duties ( Matter of Leon RR, 48 NY2d 117, 122 [1979]). Business records are considered reliable once the proponent lays the proper foundation to demonstrate that the records were generated as part of the regular practice of the business, that the people who generated the records had a business duty to do so accurately and that they did so within the scope of their employment. In consumer debt cases, an affidavit is insufficient when it fails to establish when, how, or by whom the credit card statements and account balances were made and kept ( Unifund CR Partners v Youngman, 89 AD3d 1377 [4th Dept 2011]).
Analysis
Upon considering the admissible evidence submitted, the court finds that Plaintiff failed to meet its burden of demonstrating a prima facie case that it is entitled to judgment in its favor as a matter of law on its claims for breach of contract and account stated based on the affidavit and documents submitted. As such, triable issues of fact remain and the court denies Plaintiff's summary judgment motion in its entirety without prejudice.
This court finds the cases submitted by Defendant where courts denied summary judgment involving a similar affidavit to be persuasive. Plaintiff submitted a copy of a recent Appellate Term, First Department case with a similar affidavit to support its arguments that Ms. Falloon-Johnson's affidavit is sufficient for summary judgment in the instant matter (Capital One Bank (USA) v Koralik, 2016 NY Slip Op 26040 [App Term, 1st Dept 2016]. In Koralik, the court affirmed an order granting summary judgment based on account stated, even though Plaintiff only moved on breach of contract grounds (id.). This court declines to follow the reasoning set forth by the majority in Koralik because the nature of the documents submitted in the instant matter appear to be distinguished from those in Koralik and, as set forth below, Plaintiff's purported evidence raises triable issues which preclude summary judgment in the instant matter.
Here, the attorney Affirmation submitted in support of Plaintiff's motion only references an affidavit of Grace Von Ancken, which was not submitted with this motion and fails to reference the affidavit of Ms. Falloon-Johnson, which was the only other affidavit submitted in support of this motion. Additionally, Plaintiff failed to make a prima facie case for breach of contract as the only contract submitted in support of this claim was not in Defendant's name. The contract and statements submitted from April, 2008 to April, 2011, were in the name of Flora Peralta, not Flora Suarez. The name on the statements switched to Flora Suarez in April, 2011, and the language switched from English to Spanish. Plaintiff failed to allege that Flora Peralta is the same person as Defendant Flora Suarez and failed to provide any explanation for the different last names. Plaintiff also failed to establish proof of the specific terms of the credit card agreement in effect when the account was opened with amendments until the date of the final statement. Furthermore, Plaintiff failed to establish its account stated claim as it failed to provide proof in admissible form that Plaintiff mailed the monthly statements to Defendant. Additionally, Plaintiff failed to provide the initial statements when the account was opened and only provided statements beginning in 2008 with a balance of over $1,300.00.
Ms. Falloon-Johnson's affidavit is insufficient to establish a prima facie case for breach of contract and account stated because it fails to establish a sufficient basis of knowledge of the documents, electronic entries or mailings pertaining to Defendant's specific account. Also, it fails to establish a sufficient basis of knowledge of Plaintiff's regular business practices and procedures regarding record keeping and mailing of the monthly account statements at the time such documents were purportedly generated or created necessary to lay a proper business records foundation and to establish a prima facie case. The affidavit also fails to include a sufficient description of Ms. Falloon-Johnson's job responsibilities and dates of employment. Finally, the affidavit fails to specifically refer to each type of document annexed to Plaintiff's motion which it attempted to introduce in support of the motion. Such foundation is particularly important in this case when the contract and initial statements do not have the same last name as Defendant and the language was changed from English to Spanish.
For example, the affidavit merely states that Ms. Falloon-Johnson has "personal knowledge of the manner and method by which Capital One creates and maintains certain business books and records, including computer records of defaulted accounts" and that her job responsibilities provide her with " access to all relevant system and documents needed to validate information herein" (emphasis added). Such statements are general and ambiguous and they do not specify her knowledge of which business books and records or whether they include anything related to Defendant's account. Additionally, merely having access to what she believes to be relevant system and documents, without setting forth which types, is insufficient. The affidavit does not even mention Plaintiff's monthly statement mailing procedures which is essential in this case.
As such, Plaintiff failed to meet its burden of establishing a prima facie case so there is no need to address the sufficiency of Defendant's claims in opposition to this motion. Accordingly, it is hereby ORDERED that Plaintiff's motion for summary judgment is DENIED in its entirety without prejudice;
This constitutes the Decision and Order of the Court. Date: March 31, 2016 ___________________________________ HON. ERIKA M. EDWARDS