Randall v Citibank, N.A.

[*1] Randall v Citibank, N.A. 2009 NY Slip Op 52339(U) [25 Misc 3d 1229(A)] Decided on October 26, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2009
Supreme Court, Kings County

William Mose Randall, Plaintiff,

against

Citibank, N.A., Defendant.



12661/2009



Plaintiff, Pro Se

Defedant:

Zechner Ellman, & Krause

575 Lexington Avenue

NY, NY 10022

212-223-0400

Francois A. Rivera, J.

By notice of motion filed on June 12, 2009, defendant Citibank, N.A. (Citibank), moves under motion sequence number one for an order dismissing the complaint pursuant to CPLR §§ 3211(a)(5) and (7). By cross-motion filed on August 24, 2009, plaintiff William Mose Randall opposes the motion and cross-moves pursuant to CPLR § 3212 for an order granting summary judgment in his favor.

BACKGROUNDOn May 22, 2009 plaintiff, proceeding pro se, filed a summons and verified complaint with the Kings County Clerk's office. By the instant motion, Citibank seeks to dismiss the complaint before being required to answer it.

The complaint consists of five pages of hand printed words, phrases and sentences. The sentences are not consecutively numbered and contain no coherent allegations of fact.

APPLICABLE LAW

CPLR § 3013 provides in pertinent part that statements in a pleading shall be [*2]sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.

CPLR § 3014 provides in pertinent part that every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. CPLR §3211 (a)(5) and (7) provide in pertinent part that a party may move for judgment dismissing one or more causes of action asserted against him or her on the ground that (5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or (7) the pleading fails to state a cause of action.

CPLR §3212 (a) provides in pertinent part that any party may move for summary judgment in any action, after issue has been joined.

DISCUSSION

The fact that Citibank has not yet answered the complaint requires denial of plaintiff's cross-motion for summary judgment in his favor. The Supreme Court is powerless to grant summary judgment on the complaint prior to joinder of issue (see CPLR 3212(a); Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725 [2nd Dept., 2006]). Plaintiff's cross-motion for summary judgment must be denied as premature.

Citibank moves to dismiss the complaint pursuant to CPLR §3211(a)(5) and (7) on the basis that the complaint is barred as untimely and by applying the doctrine of res judicata. Both concepts require an analysis of the allegations of fact averred in the complaint.

The first sentence of plaintiff's complaint states the following: "The nature of this action is the motion to strike the evidence by objecting to the violation of the contract form, fictitious bill with intent to enforce complete account information, refusal to obey express payment rule, refusal to give a receipt for incomplete tax checks, payroll checks, insurance rebate checks, failure to receive payment, misinterpretation of the contract, letters, demand for payment, theft of service."

Citibank strains to read meaning into the complaint and assumes that it pertains to an auto loan plaintiff allegedly obtained in 1986 or 1987 that was the subject of a 1990 litigation in small claims court and civil court. With this assumption in mind, Citibank submits an affidavit of its vice president which avers no knowledge of any relationship [*3]with the plaintiff either as a creditor or as a party in a prior litigation. Citibank then contends that the instant action is barred as untimely or by applying the doctrine of res judicata. The entire complaint, however, is as incomprehensible as its first sentence.

A defendant who seeks dismissal of a complaint pursuant to CPLR §§ 3211(a)(5) on the grounds that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired. The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies (LaRocca v. DeRicco, 39 AD3d 486-487 [2nd Dept., 2007]).

In order to make a prima facie showing, the defendant must establish, inter alia, when the cause of action accrued (see, Swift v. New York Medical Coll., 25 A.D.3d 686 [2nd Dept., 2006]). Citibank has not shown when the cause of action accrued. In fact such a showing is impossible based on the incoherent nature of the text of the complaint.

Citibank also contends that plaintiff's complaint is barred by applying the doctrine of res judicata or claim preclusion. Under res judicata, or claim preclusion, a valid final judgement bars future actions between the same parties on the same cause of action (Parker v. Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343-347 [1999]). Citibank, however, has not annexed a copy of the pleadings of any other action or evidence of its outcome. Citibank has therefore failed to show that the instant action was the subject of prior litigation between the same parties. Citibank's motion to dismiss the complaint pursuant to CPLR §3211(a)(5) is denied.

Citibank also seek dismissal of the complaint pursuant to CPLR §3211(a)(7) for failure to state a cause of action. On a motion to dismiss pursuant to CPLR § 3211(a)(7), the complaint must be liberally construed in the light most favorable to the plaintiff and all allegations must be accepted as true (Pacific Carlton Development Corp. v. 752 Pacific, LLC , 62 AD3d 677, 679 [2 Dept., 2009] citing, Leon v. Martinez, 84 NY3d 83, 87 [1994]). "Initially, the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail."(Id.) In assessing a motion under CPLR § 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Simmons v. Edelstein, 32 AD3d 464, 465 [2nd Dept., 2006]).

CPLR § 3013 requires a pleading to be sufficiently specific to give the court and the other party notice of the transactions or occurrences intended to be proved and the necessary elements of each cause of action (see Siegel, New York Practice § 208 [4th ed.]). The main [*4]mission of an affirmative pleading is to give notice of the event out of which the grievance arises (id). "The pleading can be pathetically drawn; it can reek of miserable draftsmanship. That is not the inquiry. We want only to know whether it states a cause of action-any cause of action. If it does, it is an acceptable CPLR pleading" ( id). As previously indicated, however, the complaint contains no coherent factual statements. This problem is not remedied by any affidavits from the plaintiff. The complaint therefore gives no notice to the court or the defendant of the transactions, occurrences, or series of transactions or occurrences, intended to be proved. It is not merely a question of poor pleadings, the complaint does not state any cognizable claim in law or in equity. The complaint is therefore dismissed pursuant to CPLR §3211(a)(7).

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J.S.C.