Opinion
No. CV–008871–12.
2012-05-10
MANUFACTURERS AND TRADERS TRUST COMPANY, Plaintiff, v. Ericka RIGGINS, Defendant.
Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo, attorney for plaintiff. Ericka Riggins, Roosevelt, defendant pro se.
Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo, attorney for plaintiff. Ericka Riggins, Roosevelt, defendant pro se.
MICHAEL A. CIAFFA, J.
The following papers have been considered by the Court on this motion: submitted May 3, 2012
+---------------------------------------------------------------+ ¦Papers ¦Numbered¦ +------------------------------------------------------+--------¦ ¦Amended Notice of Motion, Affidavit & Exhibits Annexed¦1–2 ¦ +---------------------------------------------------------------+
Plaintiff, Manufacturers and Traders Trust Company, moves for an order “granting summary judgment in lieu of complaint recognizing the foreign judgment entered against defendant [Ericka Riggins] ...” in favor of “FMB Bank a/k/a First National Bank of Maryland.” The foreign judgment in question was rendered by the District Court of Maryland, upon defendant's default, in May, 1999. Plaintiff's counsel alleges, without attaching supporting documentation, that plaintiff, Manufacturers and Traders Trust Company, “is the successor by merger to Allfirst Bank, which is the successor to FMB Bank.” No other details are provided in plaintiff's moving papers respecting the alleged bank mergers.
CPLR 3213 authorizes motions for summary judgment in lieu of complaint “[w]hen an action is based upon an instrument for the payment of money only or upon any judgment ...” The instant motion raises an interesting issue of first impression: do the provisions of this statute apply to actions brought by the alleged successor by merger of a named judgment creditor bank? I think not. In other contexts, our state's courts have refused to grant motions for summary judgment in lieu of complaint “if outside proof is needed” to establish a party's entitlement to judgment. See, e.g. Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 444–5 (1996).The plaintiff, here, cannot establish its entitlement to the benefits of the Maryland judgment obtained by FMB Bank without submitting such “outside proof.”
The Maryland default judgment, itself, certainly can be used as the basis for a CPLR 3213 motion by the original judgment creditor. See, e.g. Schultz v. Barrowsm, 94 N.Y.2d 624 (2000); Westland Garden State Plaza, L.P. v. Ezat, Inc., 25 AD3d 516 (1st Dept.2006). However, that judgment creditor (FMB Bank) is not making the motion. Instead, the motion is being made, 13 years after the Maryland judgment was entered, by a twice-removed alleged successor entity (Manufacturers and Traders Trust Company).
When banks are merged into a successor entity, “no formal assignment is required to effect a transfer of assets of a merged corporation to the receiving corporation.” See Barclay's Bank of New York, N.A.v. Smitty's Ranch, Inc., 122 A.D.2d 323, 324 (3d Dept 1986). Nevertheless, the subsequent bank mergers alleged by plaintiff's counsel cannot be proven “from the face” of the Maryland judgment. Cf. Matas v. Alpargatas, 274 A.D.2d 327 (1st Dept 2000) (summary judgment in lieu of complaint denied where plaintiff's right to payment of its beneficial interest in convertible bonds “cannot be ascertained from the face of these documents”). Consequently, plaintiff may not proceed to enforce the judgment obtained by a predecessor entity in Maryland by simply bringing on a motion for summary judgment in lieu of complaint in the courts of New York.
In any event, a party seeking summary judgment in lieu of complaint must satisfy the same standards as any other party moving for summary judgment. See David D. Siegel, Practice Commentaries to McKinney's CPLR, at C3213:8. Under well settled precedent, a party moving for summary judgment may not fill gaps in its proof by merely submitting an affidavit or affirmation from its attorney, not based upon the attorney's personal knowledge. See, e.g. Currie v. Wilhouski, 93 AD3d 816 (2d Dept 2012); Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455 (2d Dept 2006). Apart from the attorney's conclusory affidavit, not made upon personal knowledge of the mergers, no proof is submitted respecting the merger history at issue. Plaintiff's papers do not include either an affidavit from a knowledgeable individual annexing documentary evidence of the mergers, cf. Barclay's Bank of New York, N.A.v. Smitty's Ranch, Inc., supra, or certified government documents which can be the subject of judicial notice, cf. Loretto v. Teleprompter Manhattan CATV Corp., 58 N.Y.2d 143, 148 (1983). These gaps in plaintiff's proof accordingly require denial of the motion without regard to the absence of opposing papers from the defendant. See Zecca v. Riccardelli, 293 A.D.2d 31, 34 (2d Dept 2002) (“Even where there is no opposition to a motion for summary judgment, the Court is not relieved of its obligation to ensure that the movant has demonstrated his or her entitlement to the relief requested”).
For both these reasons, plaintiff's motion is DENIED. Plaintiff may proceed with the action by serving a formal complaint upon the defendant, personally, pursuant to CPLR 308(1) or 308(2). Defendant shall be afforded the opportunity to answer the complaint within 30 days of service of the complaint. Since the Maryland judgment was rendered against defendant by default, the judgment may be open to question if she was not properly served in that action, or if she has some other basis for contesting the Maryland court's jurisdiction. See e.g. New Century Financial Services, Inc. v. Shaheen, 2009 N.Y. Slip Op 52712 (Civ Ct Queens Co.); cf. Schultz v. Barrows, supra. If defendant serves or files an answer, the matter shall proceed as a contested action, to be heard and determined in accordance with law. On the other hand, if defendant fails to timely answer the complaint, plaintiff may apply for a default judgment, as permitted by CPLR 3215, upon application to the Court, on notice to defendant personally.
So Ordered: