Opinion
2004-408 RIC.
Decided February 17, 2005.
Appeal by plaintiff from so much of an order of the Civil Court, Richmond County (K. King, J.), entered February 10, 2004, as denied its motion for summary judgment.
Order unanimously modified by granting plaintiff's motion for summary judgment upon its first, second, fourth and fifth causes of action, matter remanded to the court below for an assessment of damages thereon and, in searching the record, plaintiff's third cause of action dismissed; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., PATTERSON and GOLIA, JJ.
"The plaintiff met its initial burden of establishing its entitlement to judgment as a matter of law by submitting the equipment lease and proof of nonpayment" ( Advanta Leasing Servs. v. Laurel Way Spur Petroleum Corp., 11 AD3d 571, 571; Preferred Capital v. PBK, Inc., 309 AD2d 1168; see also Canon Fin. Servs. v. Medico Stationery Serv., 300 AD2d 66). In opposition, defendant submitted an affirmation by its counsel which was of no probative value ( see Feratovic v. Lun Wah, Inc., 284 AD2d 368). In any event, the affirmation failed to demonstrate the existence of a triable issue of fact ( see Preferred Capital, 309 AD2d at 1168-1169; Canon Fin. Servs., 300 AD2d at 66-67). Accordingly, plaintiff's motion for summary judgment upon its first, second, fourth and fifth causes of actions should have been granted and the matter is remanded to the Civil Court for an assessment of damages. In searching the record, we conclude that plaintiff's third cause of action should be dismissed inasmuch as it seeks to recover liquidated damages as a cost of collection. However, because plaintiff's fifth cause of action permits plaintiff to recover its actual collection costs, plaintiff may not also recover the liquidated damages set forth in its third cause of action.