Rushmore Recoveries X, LLC v Skolnick

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[*1] Rushmore Recoveries X, LLC v Skolnick 2007 NY Slip Op 51041(U) [15 Misc 3d 1139(A)] Decided on May 24, 2007 Nassau Dist Ct Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2007
Nassau Dist Ct

Rushmore Recoveries X, LLC, Plaintiff,


Kevin Skolnick, Defendant.


Attorneys for Plaintiff: Mel S. Harris & Associates, LLC

Attorneys for Dendant: Marvin Weinroth, Esq

Andrew M. Engel, J.

This action was commenced on or about August 19, 2005, seeking to recover the sum of $4,840.28, plus interest, allegedly due and owing by the Defendant pursuant to a retail charge account agreement between the Defendant and Citibank. The Plaintiff claims, among other things, to be a purchaser and assignee of this account. Issue was joined on or about September 5, 2005. The Plaintiff now moves for an order granting it summary judgment against the Defendant. The Defendant has not submitted opposition to the motion.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant's failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985) Such is the case before this court.

The Plaintiff attempts to support its motion with the affidavit of Todd Fabacher, who identifies himself as "an authorized and designated custodian of records for the plaintiff regarding the present matter." (Fabacher Affidavit 3/14/07, ¶ 1) Mr. Fabacher describes his duties as including "the obtaining, maintaining and retaining, all in the regular course of plaintiff's business, including obtaining records and documents from or through CITIBANK or [*2]any assignee or transferee previous to plaintiff, any and all records and documentation regarding the present debt." (Fabacher Affidavit 3/14/07, ¶ 1) While Mr. Fabacher attempts to portray himself as one who is "personally familiar with, and hav[ing] knowledge of, the facts and proceedings relating to the within action" (Fabacher Affidavit 3/14/07, ¶ 1), it is readily apparent from a reading of his affidavit that his claimed personal familiarity with this matter is taken from the documents and records ostensibly created by Citibank, and/or assignees who have preceded the Plaintiff, which have now come into the Plaintiff's possession. Clearly, Mr. Fabacher has no personal knowledge of the retail charge account agreement between the Defendant and Citibank. Similarly, counsel's affirmation is of no probative value on this motion. Zuckerman v. City of New York, supra .; Heifets v. Lefkowitz, 271 AD2d 490, 706 NYS2d 438 (2nd Dept. 2000); Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 826 NYS2d 152 (2nd Dept. 2006)

The Plaintiff's reliance upon the documents it submits is insufficient to make out a prima facie case entitling the Plaintiff to summary judgment. Simply annexing documents to the moving papers, without a proper evidentiary foundation is inadequate. Higen Associates v. Serge Elevator Co., Inc., 190 AD2d 712, 593 NYS2d 319 (2nd Dept. 1993); Palisades Collection, LLC v. Gonzalez, 10 Misc 3d 1058(A), 809 NYS2d 482 (Civ. Ct. NY Co. 2005).

The documents the Plaintiff attempts to submit, specifically the purported account statements and assignments, are being offered for the truth of the statements contained therein and are, by definition, hearsay. Spensieri v. Lasky, 94 NY2d 231, 701 NYS2d 689 (1999); Nucci v. Proper, 95 NY2d 597, 721 NYS2d 593 (2001); Stern v. Waldbaum, Inc., 234 AD2d 534, 651 NYS2d 187 (2nd Dept. 1996); Winant v. Carras, 208 AD2d 618, 617 NYS2d 487 (2nd Dept. 1994) lv. den. 85 NY2d 812, 631 NYS2d 288 (1995) They may be considered only if they fall within one of the recognized exceptions to the hearsay rule. People v. Nieves, 67 NY2d 125, 501 NYS2d 1 (1986); Tyrell v. Wal-Mart Stores Inc., 97 NY.2d 650, 737 NYS2d 43 (2001); Alvarez v. First National Supermarkets, Inc., 11 AD3d 572, 783 NYS2d 62 (2nd Dept. 2004) The Plaintiff attempts to rely upon the business records exception to the hearsay rule in its effort to establish a prima facie case.

"The business records exception has been recognized as probably the most important hearsay exception ... (Weinstein-Korn-Miller, NY Civ. Prac. ¶¶ 4518.01, 4518.02)" People v. Kennedy, 68 NY2d 569, 510 NYS2d 853 (1986); see also: Wilson v. Bodian, 130 AD2d 221, 519 NYS2d 126 (2nd Dept.1987) This court believes it may also be the most misunderstood and misused hearsay exception.

The exception "is designed to harmonize the rules of evidence with modern business practice and give evidential credit' to the memoranda or other writings upon which reliance is placed in the systematic conduct of business undertakings." Williams v. Alexander, 309 NY 283, 129 NE2d 417 (1955); see also: Clarke v. New York City Transit Authority, 174 AD2d 268, 580 NYS2d 221 (1st Dept.1992) As the court noted in People v. Kennedy, supra ., "The essence of the business record exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise (citation omitted)." See also: People v. Guidice, 83 NY2d 630, 634 NE2d 951 (1994)

CPLR § 4518(a) sets forth the exception:

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in [*3]evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

As can be seen, the proponent of the offered evidence must establish three general elements, by someone familiar with the habits and customary practices and procedures for the making of the documents, before they will be accepted in admissible form: (1) that the documents were made in the regular course of business; (2) that it was the regular course of the subject business to make the documents; and, (3) that the documents were made contemporaneous with, or within a reasonable time after, the act, transaction, occurrence or event recorded.[FN1] People v. Kennedy, supra .; People v. Cratsley, 86 NY2d 81, 629 NYS2d 992 (1995).

The repetitive statements of Mr. Fabacher, the Plaintiff's custodian of records, to the effect that he collects and maintains the records and documents of Citibank and/or any other prior assignees, "in the regular course of plaintiff's business" (Fabacher Affidavit 3/14/07, ¶ 1), as if they were magic words, does not satisfy the business records exception to the hearsay rule. That phrase, standing alone, does not establish that the records upon which the Plaintiff relies were made in the regular course of the Plaintiff's business, that it was part of the regular course of the Plaintiff's business to make such records, or that the records were made at or about the time of the transactions recorded. Contrary to the misconception under which the Plaintiff labors, "the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records (citation omitted)." Standard Textile Co., Inc. v. National Equipment Rental, Ltd., 80 AD2d 911, 437 NYS2d 398 (2nd Dept. 1981); see also: Romanian American Interests, Inc. v. Scher, 94 AD2d 549, 464 NYS2d 821 (2nd Dept. 1983); Lodato v. Greyhawk North America, LLC, __ AD3d __, __ {39 AD3d 494} NYS2d __, 2007 WL 1017759 (2nd Dept. 2007) The statements of Mr. Fabacher, "who merely obtained the records from another entity that actually generated them, was an insufficient foundation for their introduction into evidence [citing Standard Textile Co., Inc. v. National Equipment Rental, Ltd., supra .]." Insurance Company of North America v. Gottlieb, 186 AD2d 470, 588 NYS2d 571 (1st Dept. 1992)

The above notwithstanding, the documents upon which the Plaintiff relies do not support the Plaintiff's claim. While the Plaintiff alleges that it is the assignee of this account, the Plaintiff fails to provide proper proof of the alleged assignment sufficient to establish its standing herein. The Plaintiff has made no effort to authenticate the alleged assignments, NYCTL 1998-2 Trust v. Santiago, 30 AD3d 572, 817 NYS2d 368 (2nd Dept. 2006); and, there is a brake in the chain of the assignments from Citibank down to the Plaintiff. The purported assignment from NCOP Capital, Inc. to New Century Financial Services, Inc., Plaintiff's alleged assignor, is not signed at all on behalf of NCOP Capital, Inc. There being no competent proof that the assignment to New Century Financial Services, Inc. was valid, the Plaintiff cannot establish the validity of the assignment from New Century Financial Services, Inc. to the Plaintiff, preventing [*4]the granting of summary judgment for this reason as well. TPZ Corp. v. Dabbs, 25 AD3d 787, 808 NYS2d 746 (2nd Dept. 2006); Citibank (South Dakota), N.A. v. Martin, 11 Misc 3d 219, 807 NYS2d 284 (Civ.Ct. NY Co. 2005)

The Plaintiff has also failed to submit any competent proof of an agreement between Citibank and the Defendant. The Plaintiff's reliance on Chase Manhattan Bank (National Association), Bank Americard Division v. Hobbs, 94 Misc 2d 780, 405 NYS2d 967 (Civ. Ct. Kings Co. 1978) is misplaced. The plaintiff therein was not an assignee, but the party with which the defendant had entered into a retail charge account agreement and could properly lay a business record foundation for the entry of the documents necessary to prove the existence of same. Additionally, the plaintiff therein provided proper proof of mailing of the subject account statements, along with copies of the retail charge account agreement, and demonstrated the defendant's use of the credit card in question, thereby accepting the terms of use of that card.

In the matter sub judice, the account statements upon which the Plaintiff relies do not show any usage of the credit card in question by the Defendant. The four (4) statements submitted show only an alleged open balance, with the accrual of fees and finance charges thereon. The Plaintiff also fails to submit any proof that a copy of the retail installment credit agreement or the statements upon which it relies were ever mailed to the Defendant. Neither Mr. Fabacher nor Plaintiff's counsel mailed these documents or have personal knowledge of their mailing; nor does the Plaintiff even attempt to describe a regular office practice and procedure for the mailing of the documents designed to insure that they are always properly addressed and mailed. Sea Insurance Company, Ltd. v. Kopsky, 137 AD2d 804, 525 NYS2d 266 (2nd Dept. 1988); Residential Holding Corp. v. Scottsdale Insurance Company, 286 AD2d 679, 729 NYS2d 776 (2nd Dept. 2001); Nassau Insurance Company v. Murray, 46 NY2d 828, 414 NYS2d 117 (1978).

Accordingly, having failed to demonstrate its entitlement to the entry of a judgment as a matter of law, by tendering proof in admissible form, the Plaintiff's motion for summary judgment is denied.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

May 24, 2007



J.D.C. Footnotes

Footnote 1: Other evidentiary issues may still arise affecting admissibility, such as an attempt at admitting photocopies or electronic reproductions, see CPLR § 4539, or the presence of statements made by individuals who had not business duty to impart such information. Johnson v. Lutz, 253 NY 124, 170 N.Y.S. 517 (1930)