Citibank, N.A. v Ganung

[*1] Citibank, N.A. v Ganung 2014 NY Slip Op 51389(U) Decided on September 16, 2014 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2014
Supreme Court, Dutchess County

Citibank, N.A., Plaintiff,

against

Peter P. Ganung, Defendant.



1328/14



TESS E. GUNTHER, ESQ.

FORSTER & GARBUS, LLP

Attorneys for Plaintiff

60 Vanderbilt Motor Parkway

P.O. Box 9030

Commack, New York 11725

PETER P. GANUNG

Defendant Pro Se
James D. Pagones, J.

Plaintiff moves for an order, pursuant to CPLR 3212, granting it summary judgment against the defendant in the amount of Two Thousand Four Hundred Fifty-Two Dollars and Thirty-Two Cents ($2,452.32).

The following papers were read:Notice of Motion-Affidavit-Affirmation-1-9

Exhibits A-D-Affidavit of Service-Proposed Order

Affidavit in Opposition-Certificate of Service10-11

Reply Affirmation-Affidavit of Service12-13

Upon the foregoing papers, it is hereby ordered that the motion is decided as follows:

On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant sets forth a prima facie case, the burden shifts to the opponent of the motion to [*2]produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).In this action, plaintiff has made a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence that defendant breached his agreement to pay the credit card debt (see Citibank [S.D.] N.A. v. Sablic, 55 AD3d 651 [2nd Dept 2008]).

Since plaintiff has made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York, 49 NY2d 557 [1980]), defendant must show that genuine triable issues of material fact exist in order to defeat plaintiff's motion (see Zuckerman v. City of New York. 49 NY2d 557 [1980]).

In opposition, defendant indicates that plaintiff's motion must be denied as plaintiff failed to take steps to verify his ability to repay and as a result he was induced into incurring more debt than he had the ability to repay. Citing to the Consumer Credit Protection Act and the Truth in Lending Act Regulation Z, defendant states that the credit contract was illegal. Defendant's conclusory statement concerning the plaintiff's lack of verification of his ability to repay is unsupported by any evidence. Further, this statement, which evidences a complete lack of personal accountability, is insufficient to create an issue of fact. Defendant fails to deny his use of the card or that he received statements and failed to make payments.

Based upon the foregoing, plaintiff's motion for summary judgment is granted in its entirety and the proposed order is signed contemporaneously herewith.

This constitutes the decision of this court.

Dated:September 16, 2014

Poughkeepsie, New YorkENTER

________________________________

HON. JAMES D. PAGONES, A.J.S.C.