Opinion
Index No. 003714-21/B
11-01-2022
CREDIT CORP SOLUTIONS, INC. Plaintiff, v. ANTHONY MIRABELLI, Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. CARRIE PHILLIPS BUFFALO CITY COURT JUDGE
Plaintiff Credit Corp Solutions, Inc. (Credit Corp) has filed a complaint for an account stated in a credit card default case against defendant Anthony Mirabelli. Mr. Mirabelli, by and through counsel, has filed an answer and several discovery demands and interrogatories. He has now brought a motion to dismiss (i.e. a motion for summary judgment) or for discovery sanctions pursuant to CPLR §§ 3124 and 3126. Credit Corp has not responded to the motion.
For the reasons given below, Mr. Mirabelli's motion for summary judgment is granted and the complaint is dismissed.
FACTS
The undisputed facts are drawn from the complaint and the parties' moving papers. In or around 2012, Mr. Mirabelli allegedly entered into an credit card agreement with original creditor Synchrony Bank. According to the complaint, Synchrony Bank assigned its interest in the account to Credit Corp in or around 2014. Mr. Mirabelli's account was then allegedly charged-off in April, 2018 for missed payments. The complaint was filed in July, 2021, seeking a judgment for $1,531.11 plus costs and disbursements.
Mr. Mirabelli filed a form written answer on August 30, 2021, alleging unjust enrichment and that he is on disability for unspecified health issues. This was then superseded by an amended answer on October 20, 2021, prepared with the assistance of Paulette Campbell, Esq., of counsel to CLARO Buffalo. In this he alleges, among other things, that Credit Corp has failed to establish standing because the "alleged debt is not the subject of a valid chain of assignments from an original creditor to the plaintiff." Def. Am. Ans. at ¶ 5.
On October 20, 2021, Mr. Mirabelli also provided Credit Corp with a written demand for discovery and several interrogatories. These demands were generic and broad but included, among other things, requests for documents and information relating to the assignment of interest, the alleged cardholder agreement, and other key aspects of Credit Corp's claim. Credit Corp's response, dated November 9, 2021, is brief and conclusory, objecting to some of the requests as protected by attorney/client or attorney work product privilege, irrelevant, or entailing privileged "or proprietary" information. The response does not provide more specific detail as to which documents or interrogatories are subject to these defenses, nor does it provide citations to specific statutes governing privilege. Credit Corp did provide an alleged Bill of Sale for the defendant's account from Synchrony to Credit Corp, though it fails to reference his name or account number.
In December, 2021, Mr. Mirabelli sent a good faith discovery demand letter on December 14, 2021, highlighting shortcomings in Credit Corp's response and reiterating earlier demands. Credit Corp did not respond until January 26, 2022, providing essentially a carbon-copy of its earlier reply without any further documents. Mr. Mirabelli sent a second good faith discovery demand letter on February 8; the response, dated February 8, is also identical to the first and second responses. This time, however, Credit Corp attached a two-page affidavit, dated December, 2021, from a "Media Representative" of Synchrony Bank alleging that the company had sold a "pool of charge-off [sic] accounts" to Credit Corp in or about May, 2018. Again, the defendant's name or account number are missing from this document and the affiant alleges only in conclusory fashion that they have personal knowledge of any of the business records in question. No other documents or responses have been provided by Credit Corp since that time.
On May 10th, through counsel, Mr. Mirabelli filed the pending motion for summary judgment or discovery sanctions. Credit Corp has not responded. The Court scheduled argument on the issue on July 27, 2022. Credit Corp then failed to appear. The Court reserved decision on the defendant's pending motions at that time. Because the plaintiff failed to answer the pending motion or appear at the last scheduled date, the Court deems any further response from the plaintiff waived.
STANDARD
On a motion for summary judgment, the court, viewing facts in a light most favorable to the non-movant, must establish that there are no issues that could be resolved by a trier of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985); Deinhart v. Pilato, 12 A.D.3d 1032 (4th Dept 2004); Welch v. State, 105 A.D.3d 1450 (4 Dept 2013).
DISCUSSION
A. Defendant's Motion for Summary Judgment
Standing is a threshold issue usually addressed in motions to dismiss under CPLR Rule 3211(a)(3), but where a defendant raises it as an affirmative defense, as here, summary judgment is appropriate. CPLR Rule 3211(b) and (c); see LVNV Funding, LLC v. Sengillo, 60 Misc.3d 571, 573-74 (Sup. Ct., Monroe Co., June 4, 2018)(discussing standing in summary judgment motions).
The burden is on Credit Corp to establish standing by submitting admissible evidence that Synchrony Bank assigned its interest in Mr. Mirabelli's debt to Credit Corp. Palisades Collection LLC v. Kedik, 890 N.Y.S.2d 230 (4th Dept. 2009)(affirming denial of summary judgment as plaintiff failed to establish standing). The business records it submits in support of this must have a sufficient foundation laid to overcome the rule against hearsay. A business record is admissible if "it was made in the regular course of any business and ... it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" CPLR 4518(a). "A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures!.]" West Vai. Fire Dist. No. 1 v. Village of Springville, 294 A.D.2d 949, 950, 743 N.Y.S.2d 215 (4th Dept 2002).
Mr. Mirabelli argues that Credit Corp has failed to lay a sufficient foundation for their business records to overcome the rule against hearsay. This argument is persuasive. The original moving papers in this matter, accessed via UCMS, are utterly deficient. Credit Corp failed to support their complaint with any proof beyond the allegations in the complaint, including a copy of the alleged cardholder agreement, a copy of the most recent statement sent to Mr. Mirabelli, or even documents showing the assignment of his account from Synchrony Bank to Credit Corp. The affidavit from Synchrony and the alleged Bill of Sale only came later, after repeated discovery demands from Mr. Mirabelli. These are, in any event, insufficient. They do not even refer to Mr. Mirabelli's name or account number and are so generic as to be useless. Furthermore, the affidavit detailing the alleged assignment from Synchrony to Credit Corp is a conclusory and boiler-plate submission by a "Media Representative" whose responsibilities, knowledge of and access to the records, and other knowledge of the creditor's business practices are not sufficiently pleaded to meet the exception to the hearsay rule. See Unifund CCR Partners v. Youngman, 932 N.Y.S.2d 609 (4th Dept. 2011)(reversing grant of summary judgment where plaintiff failed to establish standing). Merely stating without explaining how the affiant has personal knowledge of Synchrony Bank's business records and procedures, or when, how, or by whom the records were kept, is insufficient to establish standing. West Vai. Fire Dist. No 1., 294 A.D.2d at 950 (4th Dept, 2002). In Kedik, supra, a similar failure to lay a sufficient foundation for the plaintiffs business records was fatal to the plaintiffs case. Also, there is no corresponding affidavit from a representative of Credit Corp as to receipt of the assignment or the eventual charge-off of Mr. Mirabelli's account. Beyond the complaint, there is no allegation or proof of any kind that Mr. Mirabelli has actually defaulted on the account.
Credit Corp has failed to dispute or augment these shortcomings, and indeed has squandered several opportunities to provide the relevant documents.
B. Defendant's Motion for Discovery Sanctions
Credit Corp's responses to Mr. Mirabelli's good faith discovery demands did not comply with the general disclosure requirements of CPLR Article 31. However, because the Court grants Mr. Mirabelli's motion for summary judgment on the merits, we do not reach the issue of sanctions.
CONCLUSION
It is therefore ORDERED that defendant Anthony Mirabelli's motion for summary judgment is GRANTED, and it is further ORDERED that the complaint is hereby DISMISSED.