Palisades Collection, LLC. v Gonzalez

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[*1] Palisades Collection, LLC. v Gonzalez 2005 NY Slip Op 52015(U) [10 Misc 3d 1058(A)] Decided on December 12, 2005 Civil Court Of The City Of New York, New York County Gesmer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 12, 2005
Civil Court of the City of New York, New York County

Palisades Collection, LLC., A/P/O AT&T WIRELESS, Plaintiff,

against

Maria Gonzalez, Defendant.



58564 CV 2004

Ellen Gesmer, J.

This case presents a set of facts and a pattern of evidentiary and pleading inadequacies commonly seen in the personal appearance part of the Civil Court. Plaintiff alleges that defendant owes money to AT&T Wireless (AT&T) on a cell phone contract. Plaintiff claims that it purchased the debt from AT&T and is suing defendant as AT&T's assignee. In her answer, defendant asserted that this matter had been settled and that she does not owe any money to AT&T. [FN1]

Plaintiff now moves for entry of summary judgment in its favor. Plaintiff relies exclusively on an affidavit executed by one of its employees, and various documents which appear to have been created by AT&T. Since the affiant neither has personal knowledge of the facts nor can attest to the genuineness or authenticity of the documents, plaintiff has not made out its prima facie case. Therefore, even though defendant did not appear in opposition to this motion, it must be denied.

CPLR § 3212(b) requires that a motion for summary judgment be supported by an affidavit of a person with requisite knowledge of the facts, together with a copy of the pleadings and by other available proof (Spearmon v Times Square Stores Corp., 96 AD2d 552, 553 [2d Dept 1981]) The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment" (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] Vitiello v Mayrich Constr. Corp., 255 AD2d 182, 184 [1st Dept 1998]). A conclusory affidavit, or an affidavit by a person who has no personal knowledge of the facts, cannot establish a prima facie case. (JMD Holding Corp. v Cong. Fin. Corp., 4 NY3d 373, 385 [2005]; Castro v NY Univ., 5 AD3d 135, 136 [1st Dept 2004]) A mere conclusory assertion of a fact, without any evidentiary basis, is insufficient. (Grullon v City of New York, 297 AD2d 261, 263 [1st Dept 2002]). When the affiant relies on documents, the documents relied upon must be annexed (Vermette v Kenworth Truck Co., Div. of Paccar, Inc., 68 NY2d 714, 717 [1986]; Afco Credit Corp. v Mohr, 156 AD2d 287, 288 [1st Dept 1989]), and the affiant must establish an adequate evidentiary basis for them. Mere submission of documents without any identification or authentication is inadequate. (Higen Assocs. v Serge Elevator Co., 190 AD2d 712, 713 [2d Dept 1993]). When the movant seeks to have the Court consider a business record, the proponent must establish that it meets the evidentiary requirements for a business record, by, [*2]for example, having a corporate officer swear to the authenticity and genuineness of the document. (CPLR 4518[a]; First Interstate Credit Alliance, Inc. v Sokol, 179 AD2d 583, 584 [1st Dept 1992]; Bowers v Merchants Mut. Ins. Co., 248 AD2d 1005, 1006 [4th Dept 1998]; A.B. Med. Servs., PLLC v Travelers Prop. Cas. Corp., 5 Misc 3d 214 [Civ Ct, Kings County 2004]).

Plaintiff relies on an affidavit executed by Joanne Bergmann, [FN2] who identifies herself as the Vice President of plaintiff's Legal Department. She does not claim to have any personal knowledge of the transaction underlying this complaint but rather states that she is making the affidavit "based upon the books and records in my possession." She claims that she is familiar with plaintiff's methods for creating and maintaining its business records, including records of the accounts purchased by plaintiff. She then annexes and discusses various records. Through her affidavit, she seeks to establish four facts on which to ground plaintiff's claim: that defendant executed a contract with AT&T; that defendant defaulted in making payments under the contract; that AT&T sent defendant bills which defendant did not dispute; and that plaintiff is entitled to sue as AT&T's assignee. Ms. Bergmann's affidavit is not adequate to establish any of these facts.

To establish the contract, Ms. Bergmann asserts that defendant entered into a contract with AT&T, and alleges that it is attached as Exhibit A. Her bald statement that defendant entered into a contract is not probative, since Ms. Bergmann acknowledges that she is simply relying on the documents in her possession. Moreover, the document attached as Exhibit A is equally ineffective to establish that defendant signed a contract, since it is merely an unsigned 9-page form, headed "Terms and Conditions for Wireless Service." Putting aside the question of whether Ms. Bergmann could properly authenticate a contract which appeared to be signed by defendant, her proffer of an unexecuted document certainly does not establish that defendant signed a contract with AT&T.

Next, Ms. Bergmann seeks to establish that defendant is in default by making various conclusory statements to that effect and then attaching, as Exhibit D, documents she refers to as account statements which allegedly reflect the activity on defendant's account. On the simplest level, the Court cannot rely on Ms. Bergmann's description of the documents annexed as Exhibit D because her description is inconsistent with the documents themselves and with her own prior statements as to defendant's obligation to plaintiff. Specifically, she describes the documents as "account statements that reflect purchases made by defendant along with periodic payments. The statements reflect the finance charges on the balance as provided in the retail installment credit agreement." However, the account statements do not, on their face, reflect "purchases" but rather monthly charges for cell phone usage. Similarly, the account statements do not appear to be based on charges on a "retail installment credit agreement," but rather on a cell phone service plan. Consequently, since Ms. Bergmann has described incorrectly the document she claims to [*3]rely on, the Court will not credit the statements she makes based on it.[FN3]

Even if the Court were to overlook the inaccuracy of Ms. Bergmann's description of the documents attached as Exhibit D, the Court could not rely on them. Since the documents are out-of-court statements offered for their truth, Ms. Bergmann must establish that they fall within an exception to the hearsay rule in order for them to be admissible. (Nucci v Proper, 95 NY2d 597, 602 [2001]). Presumably, Ms. Bergmann is asking the Court to treat them as a business record since she describes herself as being familiar with plaintiff's business records (CPLR 4518[a]; see Kraus Mgt., Inc. v State Div. of Housing & Community Renewal, Office of Rent Admin., 137 AD2d 689, 691 [2d Dept 1988]). However, the records attached at Exhibit D were created not by plaintiff but by plaintiff's assignor, AT&T. In order to establish a business records foundation, the witness must be familiar with the entity's record keeping practices (W. Valley Fire Dist. No. 1 v Vill. of Springville, 294 AD2d 949, 950 [4th Dept 2002]). Ms. Bergmann does not claim to be familiar with AT&T's record keeping practices, but only with the method by which plaintiff maintains the accounts it purchases from others. The mere fact that plaintiff obtained the records from AT&T and then retained them is an insufficient basis for their introduction into evidence. (Insurance Co. of North America v Gottlieb, 186 AD2d 471, 471 [1st Dept 1992]; Standard Textile Co. v National Equipment Rental, Ltd., 80 AD2d 911 [2d Dept 1981]; W. Valley Fire Dist. No. 1 v Vill. of Springville, 294 AD2d 949, 950 [4th Dept 2002]; see also United Bldg. Maint. Assocs. v 510 Fifth Ave. LLC, 18 AD3d 333, 334 [1st Dept 2005]).[FN4] Therefore, the Court cannot rely on the account statements which Ms. Bergmann proffered to establish defendant's default.

Ms. Bergmann also asserts that the account statements were mailed to defendant and the statements were neither returned nor disputed. Presumably, Ms. Bergmann is making this statement in order to support a claim for an account stated. However, plaintiff's complaint does not include a cause of action for an account stated, so these statements by Ms. Bergmann are irrelevant.

Even if plaintiff were asserting a claim for an account stated, Ms. Bergmann's statement [*4]would be totally inadequate to support it. Ms. Bergmann does not even assert whether she claims that the documents were sent by AT&T or by plaintiff, but, either way, her statements are not sufficient to establish mailing. As stated above, Ms. Bergmann does not claim to have personal knowledge of this account. Certainly, she does not claim to have mailed these statements herself. Where an affiant does not have personal knowledge that a particular document was mailed, she can establish that it was mailed by describing a regular office practice for mailing documents of that type. (Badio v Liberty Mut. Fire Ins. Co., 5 AD3d at 171; 8112-24 18th Ave. Realty Corp. v Aetna Cas. & Sur. Co., 240 AD2d 287, 288 [1st Dept 1997]; Residential Holding Corp v Scottsdale, 286 AD2d 679, 680 [2d Dept 2001]). However, Ms. Bergmann did not do that in this case. [FN5] Consequently, plaintiff has failed to prove that the account statements were in fact mailed to defendant.

Finally, Ms. Bergmann claims that plaintiff is entitled to sue because of an assignment to it from AT&T. However, she does not attach a copy of the alleged assignment. In the absence of the document on which her statement is based, her statement is of no probative value (Vermette v Kenworth Truck Co., Div. of Paccar, Inc., 68 NY2d at 717; Afco Credit Corp. v Mohr, 156 AD2d at 288). Consequently, Ms. Bergmann has failed to establish that plaintiff has the right to collect this debt.

Accordingly, plaintiff's motion for summary judgment is denied.



Dated: December 12, 2005

ELLEN GESMER

Judge, Civil Court Footnotes

Footnote 1:The cases similar to this one which appear in the Personal Appearance Part include those seeking to collect on debts arising from credit cards, car purchase notes and similar consumer transactions, in which the debt has been assigned to a third party, and the debtor files an answer disputing the amount owed, or, as in this case, the entire debt.

Footnote 2:Plaintiff also submits the affirmation of its attorney, Tess E. Gunther, but I will not discuss that since an affirmation by counsel is of no probative value on a motion for summary judgment. (Zuckerman v City of New York, 49 NY2d at 562 [1980]).

Footnote 3:A further indication that Ms. Bergmann is, at times, describing a claim different from that at issue here is her statement, at paragraph 13 of her Affirmation, that defendant is liable for attorneys' fees "of a maximum 20% of the balance referred for collection." The agreement annexed to her affirmation includes no such provision.

Footnote 4:This is not a situation where the relationship between the proponent of the record and the maker of the record guarantees the reliability of the records, such as where the maker of the record was acting on behalf of the proponent and in accordance with its requirements when making the records, (People v Cratsley, 86 NY2d 81, 89-91 [1995]) or where the proponent of the records relies contemporaneously on the accuracy of the other entity's records for the conduct of its own business (People v DiSalvo, 284 AD2d 547, 548-9 [2d 2001]; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728 [2d Dept 1986]). Here, there is no evidence that there was any relationship between AT&T and plaintiff at the time that the records were created.

Footnote 5:Moreover, the account statements could not be a true copy of the documents allegedly mailed to defendant since they indicate, on their face, that they were printed out on June 29, 2005, after this action was commenced.