Opinion
No. 47443.
06-10-2014
CACH, LLC, Plaintiffs v. NE ENTERPRISES LLC, and Norman Scott Buisch, as Guarantor, Defendants.
U. William Sung, Esq., Daniels, Norelli, Scully & Cecere, PC, Attorney for the Plaintiff. David Lee Foster, Esq., Attorney for Defendants.
U. William Sung, Esq., Daniels, Norelli, Scully & Cecere, PC, Attorney for the Plaintiff.
David Lee Foster, Esq., Attorney for Defendants.
Opinion
DENNIS F. BENDER, J.
The plaintiff herein, as assignee of Wells Fargo, has brought this motion for summary judgment alleging the defendants defaulted on a commercial line of credit. Plaintiff seeks judgment in the sum of $15,003.33, plus costs and disbursements.
Counsel for the defendants, in opposing the motion, alleges the plaintiff has made an insufficient showing that would warrant a grant of summary judgment herein. Specifically, defendants note that the presentation by the plaintiff is based upon the affidavits of its attorney, U. William Sung, Esq. and Peter Huber, identified as “an employee of and an authorized agent of CACH, LLC”. As such, defendant submits the aforementioned persons have no actual knowledge of the assignorcreditors business records or actual knowledge of the original assignor's books, records, or proceedings as would enable admissibility under CPLR 4518(a) as a business record. There has been no proper foundation for admission of credit card statements by a person with personal knowledge of the maker's business practices and procedure. Unifund CCR Partners v. Youngman, 89 AD3d 1377, 1378 (4th Dept 2011) ; See also West Valley Fire District No. 1 v. Village of Springville, 294 A.D.2d 949, 950 (4th Dept 2002).
Defendants point out the documents proffered must be established as being kept in the ordinary course of business of Wells Fargo Bank, NA not CACH, LLC. In support of defendants' argument, counsel cites Velocity Investments, LLC v. Cocina, 77 AD3d 1306 (4th Dept 2010). In Velocity Investments, LLC v. Cocina, as in the case here, the plaintiffs submitted copies of credit card statements allegedly sent to the defendant, who failed to pay or object to them. The Fourth Department noted, however, that “plaintiff failed to lay a proper foundation for the admission of those documents as business records pursuant to CPLR 4518(a), (citations omitted ) which was the only basis proffered by plaintiff for their admissibility.” Clearly, counsel for the plaintiff has no personal knowledge. A review of Mr. Huber's affidavit shows that he states “as part of my duties for plaintiff's recovery operation, I am personally familiar with the manner and method by which plaintiff creates and maintains its books and records, including computer records of credit card accounts such as the credit card account of defendant. I have personally reviewed plaintiff's business records relating to the facts stated in this affidavit concerning defendant's credit card account.” As noted therein, however, the current plaintiff is CACH, LLC not Wells Fargo. Thus, Mr. Huber does not have personal knowledge of the transactions between the defendants named herein and the plaintiff's predecessor, Wells Fargo.
The plaintiff, through counsel U. William Sung, Esq, does not directly answer this issue but rather attempts to argue the defendants have defacto admitted the facts asserted in the moving papers. This is simply not the case. The answer of the defendants denied the allegations in the complaint (Exhibit B, moving papers). The answering papers from defendant's attorney attack the sufficiency of the allegations of plaintiff's motion for summary judgment. There is also no affidavit from or representative of Wells Fargo establishing the assignment of the debt to the plaintiff herein. Palisades Collection, LLC v. Kedik, 67 AD3d 1329(4th Dept., 2009) ; Cach LLC v. Fatima, 32 Misc.3d 1231(A) (Nassau Co. District Ct., 2011) ; Citibank (South Dakota) N.A. v. Martin, 11 Misc. 3rd, 219, 226 (N.Y.C Civil Court 2005).
Plaintiff's motion for summary judgment is denied, without prejudice, for failure to provide a proper foundation to establish both the assignment of the debt from Wells Fargo to Cach, and the admissibility of the documents as business records, pursuant to CPLR 4518(a). The Defendant's cross-motion for summary judgment upon searching the record is also denied, without prejudice.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.