Opinion
Index CV002219-20/RI
04-04-2022
MIDLAND CREDIT MANAGEMENT, INC. Plaintiff, v. XUEYAN HOU Defendant,
Unpublished Opinion
DECISION AND ORDER
HON. MATTHEW P. BLUM JUDGE
Papers Numbered
Plaintiffs Notice of Motion with Affirmation for Summary Judgment, Exhibits Annexed.......................................... 1
Defendant's Affirmation in Opposition to Summary Judgment............................2
Upon the foregoing cited papers, and oral argument, the Decision/Order on the motions are as follows:
PROCEDURAL HISTORY
On July 27, 2020, Midland Credit Management, Inc., (hereinafter, "Plaintiff), filed this action against Xueyan Hou (hereinafter, "Defendant") seeking to collect payments on a credit card debt initially owned by Citibank, NA. in the amount of $2,689.58. Defendant filed an answer to said complaint on March 24, 2021 followed by a discovery demand on July 7, 2021. Plaintiff filed a motion for Summary Judgment on September 15, 2021. Defendant submitted opposition to Plaintiffs motion for Summary Judgment on February 1, 2022.
Plaintiff now moves the Court for Summary Judgement pursuant to CPLR §3212 claiming that it has satisfied all elements of a claim for breach of contract and that no question exists for trial. Defendant opposes the motion on various grounds.
DISCUSSION
Plaintiffs motion for Summary Judgment is denied.
A motion for Summary Judgment under CPLR §3212 should be granted if "upon all the papers and proofs submitted, the cause of action shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any of the parties." CPLR §3212 (b), Matter of Eighth Dist. Asbestos Litig., 33 N.Y.3d 488, 496 (2019) quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); O'Brien v. Port Auth. Of N.Y. & N.J., 29 N.Y.3d 27, 37 (2017). Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. Chiara v. Town of New Castle, 126 A.D.3d 111, 125 (2d. Dep't 2015), citing Millerton Agway Cooperative, Inc. v. Briarcliff Farms, Inc., 17 N.Y.2d 57 (1966). In reviewing a Summary Judgment motion, the court must consider the facts in the light most favorable to the opposing party. Lau v. Margaret E. Pescatore Parking, Inc., 30 N.Y.3d 1025, 1027 (2017) citing Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt, L.P., 7 N.Y.3d 96 (2005). A party in opposition to a motion for Summary Judgment must present evidence sufficient to raise a triable issue of fact, although mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient. Lau v. Margaret E. Pescatore Parking. Inc.. 30 N.Y.3d 1025, 1027 (2017) citing Zuckerman v. New York. 49 N.Y.2d 557, 562 (1980).
Once the movant has made this showing, however, the burden shifts to the party opposing the motion for Summary Judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Matter of Eighth Dist. Asbestos Litig.. 33 N.Y.3d 488, 496 (2019) quoting Jacobsen v. New York City Health & Hosps. Corp.. 22 N.Y.3d 824, 833 (2014) quoting Vega v. Restani Constr. Corp.. 18 N.Y.3d 499, 503 (2012). In the instant action, the issue for the Court to decide is whether there is any issue of fact surrounding Plaintiffs claim for breach of contract.
In support of Plaintiffs motion, Plaintiff attaches several exhibits illustrating the agreement between Defendant and the original debt owner, Citibank, N.A., the Defendant's failure to make the agreed upon payments, and the purchase of the debt from Citibank, N.A. by the Plaintiff. The Court finds these documents to be satisfactory in Plaintiffs claim for breach of contract. Despite the myriad of exhibits included in Plaintiffs motion, there is no exhibit or evidence indicating that Plaintiff ever notified Defendant of the assignment, purchase, or sale of the debt as required by law. To be charged with a duty to pay a debt to an assignee, a debtor must have actual notice of the assignment of the debt. Without notice, the debtor cannot be charged with a duty to pay the debt to a creditor's assignee. Tri City Roofers, Inc. v. Northeastern Industrial Park. 61 N.Y.2d 779, 780 (1984); Credit Corp Solutions. Inc. v. Christie, 114 N.Y.S.3d 193 (Kings County Civ. Ct 2019). Plaintiffs motion for Summary Judgment is devoid of any evidence that notice was ever provided to Defendant. Thus, viewing the motion in the light most favorable to the non-moving party, the Court finds that a triable issue of fact exists as to whether notice of the assignment was provided to Defendant.
Based on the foregoing, Plaintiffs motion for Summary Judgment is denied. This constitutes the final decision and order of this Court.