Opinion
1209/2009.
Decided March 17, 2011.
Plaintiff: Chase Bank, USA, by: Mullooly, Jeffrey, Rooney Flynn LLP, Syosset, New York, Defendant is pro se.
By notice of motion filed on October 12, 2010, under motion sequence number one, plaintiff Chase Bank USA, N.A.(Chase) has moved for an order pursuant to CPLR § 3212 granting summary judgment in its favor and an order striking defendant Sara L. Barber's (Barber) answer.
On January 7, 2011, the date scheduled for oral argument of the instant motion, Chase appeared and Barber neither appeared nor submitted written opposition to the instant motion.
BACKGROUND
On January 16, 2009, Chase commenced the instant action by filing a summons and complaint with the Kings County Clerk's Office. By answer dated February 5, 2009, Barber joined issue. Chase's complaint is verified by an officer of JPMorgan Chase Bank and alleges nine facts in support of two causes of action.
MOTION PAPERS
Chase's motion papers consist of an affidavit of Allen Soles, an assistant vice president of Chase Bankcard Services, Inc. Allen Sole stated in his affidavit that Chase Bankcard Services, Inc. is an affiliate of Chase. He also referenced eight annexed exhibits labeled 1 through 8. Exhibit 1 is the instant summons and complaint. Exhibit 2 is described as plaintiff's monthly statements. Exhibit 3 is described as copies of credit agreements. Exhibit 4 is described as plaintiff's monthly statements. Exhibit 5 is described as copies of credit agreements. Exhibit 6 is described as plaintiff's monthly statements. Exhibit 7 is described as copies of credit agreements. Exhibit 8 is Barber's answer to the complaint.
LAW AND APPLICATION
Chase seeks an order granting summary judgment in its favor against Barber for the relief requested in the complaint and an order striking defendant's answer. Barber did not appear for oral argument nor did she submit written opposition to the motion and has in effect defaulted in opposing the motion.
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 by proffering evidentiary proof in admissible form sufficient evidence to demonstrate the absence of any material issues of fact ( Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" ( Celardo v. Bell, 222 AD2d 547 [2nd Dept., 1997]). Once the proponent has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action ( Alvarez v. Prospect Hosp., supra).
A summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion (i.e., "defaulted" ( Liberty Taxi Mgt., Inc. v Gincherman , 32 AD3d 276 [1st Dept., 2006] citing Vermont Teddy Bear Co., v. 1-800 Beargram Co., 373 F3d 241 [2d Cir 2004] ["the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the . . . court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law"]; see ( Cugini v. System Lumber Co., Inc., 111 AD2d 114 [1st Dept., 1985])."
The proponent's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers ( Cugini v. System Lumber Co., Inc., 111 AD2d 114 [1st Dept., 1985]).
Chase's only affidavit submitted in support of the instant motion is that of Allen Soles, an assistant vice president of Chase Bankcard Services, Inc. . Soles' affidavit is deficient on its face in that it was signed and notarized in the State of Texas and was not accompanied by a certificate verifying that the manner in which it was taken conforms with Texas law (CPLR § 2309 [c]; RPL § 299-a; PRA III, LLC v. Gonzalez, 54 AD3d 917 [2nd Dept., 2008]). Absent a certificate of conformity, the affidavit is, in effect, unsworn ( Worldwide Asset Purchasing, LLC v. Simpson, 17 Misc 3d 1128(A) [NY City Ct, 2007]).
CPLR § 105(u) provides that a "verified pleading" may be utilized as an affidavit whenever latter is required. The court reviewed Chase's verified complaint to determine if it could be utilized as an affidavit.
Chase's complaint is verified by an officer of JP Morgan Chase and not by an officer of Chase. It is therefore not verified by the party and may not serve as Chase's affidavit pursuant to CPLR § 105(u). In the absence of a sworn affidavit by a witness with personal knowledge of the facts regarding the plaintiff's conduct, plaintiff's motion papers are devoid of the sworn factual proof necessary to sustain its motion for summary judgment
Chase also seeks to strike Barber's answer on the basis that her general denials are a sham. The claim of sham is only mentioned in Allen Soles' affidavit. Although Sole's affidavit is defective and properly disregarded, the court will, nevertheless, address the law in this area.
Assuming that Barber's denial of the facts in Chase's complaint is a sham, there is no provision in the Civil Practice Law and Rules for striking an answer as sham. The motion to strike a pleading as a sham no longer exists under the CPLR ( See, Whitmore v. City of New York, 61 AD2d 795 [2nd Dept., 1978] citing Chicago Dressed Beef Co. v. Gold Medal Packing Corp., 22 AD2d 1010 [4th Dept., 1964]).
Accordingly, Chase's motion for an order granting summary judgment in its favor and an order striking defendant's answer is denied.
The foregoing constitutes the decision and order of this court.