Opinion
2007-408 N C.
Decided February 29, 2008.
Appeal from an order of the District Court of Nassau County, First District (Howard S. Miller, J.), entered January 22, 2007. The order denied plaintiff's motion to dismiss the counterclaims.
Order affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
In this action to recover the principal sum of $7,563.65 for breach of a credit card agreement and based on an account stated, defendant asserted counterclaims alleging various violations of the Fair Debt Collection Practices Act (FDCPA) ( 15 USC § 1692 et seq.). Plaintiff moved to dismiss the counterclaims without delineating whether the motion was made pursuant to CPLR 3211 or 3212. The court below treated the unopposed motion as a motion to dismiss the counterclaims pursuant to CPLR 3211 (a) (7) and for summary judgment pursuant to CPLR 3212, and denied the motion. In our view, plaintiff failed to make a prima facie showing for dismissal of the counterclaims pursuant to CPLR 3211 (a) (7) since defendant asserted cognizable counterclaims alleging violations of the FDCPA. Moreover, plaintiff did not demonstrate a prima facie entitlement to summary judgment dismissing the counterclaims. The motion was supported only by an attorney's affirmation indicating that counsel's firm had not violated the FDCPA. Plaintiff did not establish that it was not subject to the FDCPA since it failed to submit an affidavit alleging that it is not a debt collector as defined under 15 USC § 1692a (6) ( see Heintz v Jenkins, 514 US 291, 294; Romine v Diversified Collection Servs. Inc., 155 F3d 1142, 1145-1146 [9th Cir 1998]). Furthermore, plaintiff did not establish that neither it nor its agents (other than its present counsel, who took on the case in February 2006) contacted defendant in an attempt to collect the debt. Consequently, the court below properly denied the motion.
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.