Preview
FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020
Mary F. Strickland , County Clerk
Livingston County Government Center
6 Court Street, Room 201
fl A ÏÏ Geneseo, New York 14454
182' ~
(585) 243-7010 Fax (585) 243-7928
Livingston County Clerk Recording Page
Received From: Return To:
JOSHUA COLIN RESNICK JOSHUA COLIN RESNICK
11 BROADWAY SUITE 960 11 BROADWAY SUITE 960
NEW YORK, NY 10004 NEW YORK, NY 10004
Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR
AFFIRMATION IN OPPOSITION TO MOTION
Plaintiff Defendant
MARINER FINANCE, LLC WEED SALLY A.
Recorded Information:
State of New York
Index #: 001083-2019
County of Livingston
EFiling through NYSCEF
Livingston County Clerk
This sheet cen&±e the Clerk's endomement required by section 319 of the Real Property Law ofthe State ofNew York
AKB
Do Not
1 ofDetach
8
Index # : 001083-2019
FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020
STATE OF NEW YORK
SUPREME COURT COUNTY _OF LIVINGSTON
MARINER FINANCE, LLC,
Plaintiff,
Index No. 001083-2019
vs.
AFFIRMATION IN OPPOSITION
TO PLAINTIFF'S MOTION FOR
SALLY A. WEED SUMMARY JUDGMENT
Defendant.
Joshua Resnick, of full age, hereby certifies as follows:
I am an attorney licensed to practice in the State of New York, and an attorney with the
Law Offices of Robert S. Gitmeid & Assoc., PLLC, attorneys for Defêñdãñt Sally A. Weed. The
following memorandumiof law is in opposition to Plaintiff's motion for summary judgment
INTRODUCTION
Summary judgment may be granted only where the moving party successfully
demonstrates that they are entitled to judgment as a matter of law. Alvarez v. Prospect Hosp., 68
N.Y.2d 320, 324 (1986). To obtain sumpury judgment, the moving party must establish itsclaim
or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the
court, as a matter of lav , to direct judgment in the movant's favor. Friends of Animals, Inc. v.
Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979). "The movant's initial burden is a heavy one
and on a motion for sunanary judgment, facts must be viewed in the light most favorable to the
party."
non-moving Capital One Bank (USA), N.A. v. Suarez, 2016 N.Y. Slip Op. 50879(U), *2
its'
(Civ Ct, New York County 2016). Ifthe movant fails to meet burden of proof establishing a
prima facie case, the Court need not consider the sufficiency of opposing papers. Glick Dolleck v.
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Tri-Pac Export Corp., 22 N.Y.2d 439, 441 (2d Dept 1968). Ifthe movant successfully makes a
primafacie showing of entitlement to judgmeñt as a matter of law by providing sufficient evidence
to demonstrate the absence of material issues of fact, the burden then shifts to the non-moving
party to demonstrate the existence of a material issue of fact. Zuckerman v. City of New York, 49
N.Y.2d 557 (1980).
The burden on the court in deciding this type of motion is not to resolve issues of fact or
determine matters of credibility, but merely to determine whether such issues exist. Barr v. Albany
County, 50 N.Y.S.2d 247 (1980); Daliendo v. Johnson, 543 N.Y.S.2d 987 (2d Dept. 1989).
Summary judgment deprives a litigant of their day in court and is therefore considered as a "drastic
remedy"
that is to be granted only where the moving party has provided sufficient evidence
demonstrating the absence of any material issues of fact and the non-moving party then fails in
their then-shifted burden to establish the existence of material issues of fact, which require a trial
of the action. Vega v. Restani Const. Corp., 942 N.Y.S.2d 13, 15 (2012); quoting Alvarez at 324.
Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute,
where conflicting inferences may be drawn from the evidence, or where there are issues of
credibility"'
Alvarez v. 2455 8 Ave LLC, 2019 N.Y. Slip Op. 30352(U), *18 (Sup Ct, Kings County
2019).
LEGAL ARGUMENT
A. Plaintiff's Employee Affidavit Fails to Satisfy the Business Records Exception of
CPLR 4518(a).
A movant for summary judgment bears the burden of providing evidence "in an admissible
form to show the absence of material issues of fact entitling that party to judgment as a matter of
law."
Fairlane Financial Corp. v. Loñgspaugh, 41 N.Y.S.3d 284, 286 (2d Dept 2016). Pursuant to
CPLR §4518(a), in order to rely on a record as evidence in a court proceeding, a party must
3 of 8
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establish that the record was "made in the regular course of business and that itwas the regular
any
course of such business to make at the time of the act,transaction, occurrence or event, or within
it,
thereafter." course of
a reasonable time Conversely, continuous use of the phrase "in the regular
bushiess" CPLR standard.
alone is insufficient to establish that the records satisfy the §4518(a)
Discover Bank v. Kenney, 2017 N.Y. Op. 51179(U), *3 (Dist Ct, Suffolk County 2017);
Slip
Rushmore Recoveries X, LLC v. Skolnick, 2007 N.Y. Slip Op. 51041(U), *3 (Dist Ct,
quoting
Nassau County 2007).
"[P]roper foundation for the admission of a business record must be provided by someone
with personal knowledge of the maker's business practices and procedures". Umfund CCR
Partners v. Youngman, 932 N.Y.S.2d 609, 610 (4th Dept 2011); quoting West Val. Fire Dist. No.
1 v. Village of Springville, 743 N.Y.S.2d 949, 950 (4th Dept 2002). However, New York Courts
have denied motions wliere employee affidavits contained only conclusory statements and lacked
knowledge."
"any distinct facts which would support her claim of personal Discover Bank v.
Kenney, 2017 N.Y. Slip Op. 51179(U), *3 (Dist Ct, Nassau County 2017). The Courts indicate
these conclusory statements were boilerplate language and could be used for any other defendant
through the simple task of chañgiñg the dates and balance due. While suspicion of robo-signing
"does not automatically indicate impropriety", it does require the court's careful review. Am.
Express Centurion Banl¿ v. Bajek, 2010 N.Y. Slip Op. 52005(U), *2 (Sup Ct, Orange County
2010).
In support of their motion, the Plaintiff provides that affidavit ("Employee Affidavit") of
William Erwin ("Affiant"), the Branch Manager under the Plaintiff's direct employment. Affiant
asserts to have personal knowledge of Plaintiff's business practices and procedures due to his
position as Brach Manager. However, Affiant fails to provide sufficient details as to his
4 of 8
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employment duties, his employment experience or the Plaintiff's practices or procedures. See:
Discover Bank v. Shimer, 2012 N.Y. Op. 51316(U) (Dist Ct, Nassau County 2012); Rushmore
Slip
Recoveries X, LLC v. Skolnick, 2007 N.Y. Slip Op. 51041(U) (Dist Ct, Nassau County 2007).
Although Affiant is able to provide Plaintiff's practice and procedure in handling the payments
made by their customers and the respective logging of said information, Affiant nonetheless fails
to provide information as to Plaintiff's practices and procedures for recording transactions made
to the account, the accrual of interest rates, as well as the overall generation of records themselves.
Furthermore, in PlaintifPs supporting document titled "Loan Payoff Quoted 12/04/19", the total
payoff amount is listed as $2,901.10, but below that is a handwritten amount of $3,063.49. Affiant
states that the Loan Payoff Quoted 12/04/19 reflects the "amount due, including insurance
2019."
coverage, as ofDecember 4, It can be inferred that the amount of $3,063.49 reflects the
cost with the insurance coverage. However, that begs the question as to why the insurance coverage
was not included in the original computer-generated records and requires the manual doctoring of
the records. The doctoring of the business records not only call into question the credibility and
originality of Plaintiff's proffered records, but also creates a material issue of fact as to the
accuracy of the balance in question.
Moreover, the Employee Affidavit relies on conclusory statements to attempt to provide
foundation"
the "proper required under CPLR 4518(a). With only minor changes, the Employee
Affidavit could be doctored for use in support of all of Plaintiff's motions. Affiant claims that the
subject records were made in the regular course of business, that it was in the regular course of
such business to make such records, and that the records were made at or near the time of the
events recorded. The Employee Affidavit bears an stark resemblance to the affidavit mentioned in
Chase Bank USA, N.A. v. Gergis in where the Court criticized the affiant's foundational testimony
5 of 8
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4518(a)"
as "essentially a verbatim recitation of the statutory elements set for in CPLR and that
"he gave no as to how to electronic records conceming the defendant's
absolutely testimony
account statements came into existence nor did he indicate that he even knew how such
information was collected". Chase Bank USA, N.A. v. Gergis, 2011 N.Y. Slip Op. 51068(U), *3
(Civ Ct, New York 2011). The Gergis Court also reminds of the fact that credit card
County
statements contain information that is conveyed from multiple sources that is ultimately compiled
into the form that is before the Court. Id. Similar to Gergis, Affiant does not demonstrate that the
individuals who imputed the data had actual knowledge of the events, or that said individuals
obtained knowledge of those events from someone who with actual knowledge and had a duty to
report such knowledge to the company for recordkeeping purposes. As outlined in Bajek, under
these circumstances, the Court must perform a careful review of the submitted affidavit. Under
this heightened standard, the Plaintiff's Employee is insufficient to provide a proper foundation
and, thus, must be disregarded as hearsay evidence.
B. Plaintiff Has Failed to Sufficiently Satisfy Their Prima Facie Burden for a Breach
of Contract Claim.
In their motion, Plaintiff seeks to recover damages based upon a breach of contract claim.
In bringing forward the present motion for summary judgment under a breach of contract claim,
the Plaintiff does not cite to any legal authority to support their claim that they are entitled to a
judgment as a matter of law. Moreover, New York State Courts have established that a Plaintiff
creditor may be entitled to a judgment as a matter of law for a breach of contract claim if the
Plaintiff creditor has "tendered sufficient evidence that there was a credit card agreement...and
payments."
that the agreement was breached by the defendant when he failed to make required
American Express Bank,\ FSB v. Scali, 36 N.Y.S.3d 220, 221 (2d Dept 2016); citing Citibank
(South Dakota), N.A. v. Brown-Serulovic, 948 N.Y.S.2d 331, 333 (2d Dept 2012); Citibank (South
6 of 8
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N.A. v. Sablic,i 865 N.Y.S.2d 649, 652 (2d Dept 2008). In order to satisfy their burden of
Dakota)
proof, the Plaintiff must provide "an affidavit sufficient to tender to the Court the original
agreement, as well as any revision thereto, and the affidavit must aver that the documents were
cardholder."
mailed to the CACH LLC v. Fatima, 2011 WL 3518184 (Dist Ct, Nassau County
2011); quoting Citibank (South Dakota), N.A. v. Martin, 807 N.Y.S.2d 284 (Civ Ct, New York
County 2005).
In support of its motion, the Plaintiff provided the Employee Affidavit to satisfy their
evidentiary burden of }providing an affidavit sufficient to tender to the Court the original
agreement. As outlined above, the Employee Affidavit is riddled with inadequacies, which
precludes it from providing the necessary foundation for admitting the Card Agreement and
Account Statements into evidence under the business records exception to the hearsay rule.
Furthermore, Courts hate routinely denied Plaintiff banks judgments as a matter of law on their
claims for breach of contract where there exist material issues of fact. See: Capital One Bank
(USA), N.A. v. Suarez, 2016 N.Y. Slip Op. 50879(U) (Civ Ct, New York County 2016), and
Citibank, N.A. v. Geyer, 2019 N.Y. Slip Op. 50024(U) (Dist Ct, Nassau County 2019). It has also
been outlined above that there exist material issues of fact, such as the unjustified doctoring of
Plaintiff's Loan Payment Quoted For 12/04/19, which also brings into question the of
accuracy
the outstanding balance, that precludes Plaintiff from obtaining summary judgment. Therefore,
Plaintiff's motion for summary judgment should be denied.
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CONCLUSION
For the foregoing reasons, Defendant respectfully requests that this court deny Plaintiff's
motion for summary judgment.
Dated: March , 2020
New York, NY
Law Offices of Robert S. Gitmeid
& Assoc., PLLC
By:
JoJhda Resnick, Esq.
Attorney for Defendant(s)
Law Offices of Robert S. Gitmeid
& Assoc., PLLC
11 Broadway, Suite 960
New York, NY 10004
Tel: (212) 226-5081
8 of 8
Preview
FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 Mary F. Strickland , County Clerk Livingston County Government Center 6 Court Street, Room 201 fl A ÏÏ Geneseo, New York 14454 182' ~ (585) 243-7010 Fax (585) 243-7928 Livingston County Clerk Recording Page Received From: Return To: JOSHUA COLIN RESNICK JOSHUA COLIN RESNICK 11 BROADWAY SUITE 960 11 BROADWAY SUITE 960 NEW YORK, NY 10004 NEW YORK, NY 10004 Document Type: CIVIL ACTION - MISC Document Desc: AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION Plaintiff Defendant MARINER FINANCE, LLC WEED SALLY A. Recorded Information: State of New York Index #: 001083-2019 County of Livingston EFiling through NYSCEF Livingston County Clerk This sheet cen&±e the Clerk's endomement required by section 319 of the Real Property Law ofthe State ofNew York AKB Do Not 1 ofDetach 8 Index # : 001083-2019 FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 STATE OF NEW YORK SUPREME COURT COUNTY _OF LIVINGSTON MARINER FINANCE, LLC, Plaintiff, Index No. 001083-2019 vs. AFFIRMATION IN OPPOSITION TO PLAINTIFF'S MOTION FOR SALLY A. WEED SUMMARY JUDGMENT Defendant. Joshua Resnick, of full age, hereby certifies as follows: I am an attorney licensed to practice in the State of New York, and an attorney with the Law Offices of Robert S. Gitmeid & Assoc., PLLC, attorneys for Defêñdãñt Sally A. Weed. The following memorandumiof law is in opposition to Plaintiff's motion for summary judgment INTRODUCTION Summary judgment may be granted only where the moving party successfully demonstrates that they are entitled to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). To obtain sumpury judgment, the moving party must establish itsclaim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of lav , to direct judgment in the movant's favor. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979). "The movant's initial burden is a heavy one and on a motion for sunanary judgment, facts must be viewed in the light most favorable to the party." non-moving Capital One Bank (USA), N.A. v. Suarez, 2016 N.Y. Slip Op. 50879(U), *2 its' (Civ Ct, New York County 2016). Ifthe movant fails to meet burden of proof establishing a prima facie case, the Court need not consider the sufficiency of opposing papers. Glick Dolleck v. 2 of 8 Index #: 001083-2019 FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 Tri-Pac Export Corp., 22 N.Y.2d 439, 441 (2d Dept 1968). Ifthe movant successfully makes a primafacie showing of entitlement to judgmeñt as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact, the burden then shifts to the non-moving party to demonstrate the existence of a material issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. Barr v. Albany County, 50 N.Y.S.2d 247 (1980); Daliendo v. Johnson, 543 N.Y.S.2d 987 (2d Dept. 1989). Summary judgment deprives a litigant of their day in court and is therefore considered as a "drastic remedy" that is to be granted only where the moving party has provided sufficient evidence demonstrating the absence of any material issues of fact and the non-moving party then fails in their then-shifted burden to establish the existence of material issues of fact, which require a trial of the action. Vega v. Restani Const. Corp., 942 N.Y.S.2d 13, 15 (2012); quoting Alvarez at 324. Lastly, "[a] motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility"' Alvarez v. 2455 8 Ave LLC, 2019 N.Y. Slip Op. 30352(U), *18 (Sup Ct, Kings County 2019). LEGAL ARGUMENT A. Plaintiff's Employee Affidavit Fails to Satisfy the Business Records Exception of CPLR 4518(a). A movant for summary judgment bears the burden of providing evidence "in an admissible form to show the absence of material issues of fact entitling that party to judgment as a matter of law." Fairlane Financial Corp. v. Loñgspaugh, 41 N.Y.S.3d 284, 286 (2d Dept 2016). Pursuant to CPLR §4518(a), in order to rely on a record as evidence in a court proceeding, a party must 3 of 8 IndeX E UU1UUe-4U1U FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 establish that the record was "made in the regular course of business and that itwas the regular any course of such business to make at the time of the act,transaction, occurrence or event, or within it, thereafter." course of a reasonable time Conversely, continuous use of the phrase "in the regular bushiess" CPLR standard. alone is insufficient to establish that the records satisfy the §4518(a) Discover Bank v. Kenney, 2017 N.Y. Op. 51179(U), *3 (Dist Ct, Suffolk County 2017); Slip Rushmore Recoveries X, LLC v. Skolnick, 2007 N.Y. Slip Op. 51041(U), *3 (Dist Ct, quoting Nassau County 2007). "[P]roper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures". Umfund CCR Partners v. Youngman, 932 N.Y.S.2d 609, 610 (4th Dept 2011); quoting West Val. Fire Dist. No. 1 v. Village of Springville, 743 N.Y.S.2d 949, 950 (4th Dept 2002). However, New York Courts have denied motions wliere employee affidavits contained only conclusory statements and lacked knowledge." "any distinct facts which would support her claim of personal Discover Bank v. Kenney, 2017 N.Y. Slip Op. 51179(U), *3 (Dist Ct, Nassau County 2017). The Courts indicate these conclusory statements were boilerplate language and could be used for any other defendant through the simple task of chañgiñg the dates and balance due. While suspicion of robo-signing "does not automatically indicate impropriety", it does require the court's careful review. Am. Express Centurion Banl¿ v. Bajek, 2010 N.Y. Slip Op. 52005(U), *2 (Sup Ct, Orange County 2010). In support of their motion, the Plaintiff provides that affidavit ("Employee Affidavit") of William Erwin ("Affiant"), the Branch Manager under the Plaintiff's direct employment. Affiant asserts to have personal knowledge of Plaintiff's business practices and procedures due to his position as Brach Manager. However, Affiant fails to provide sufficient details as to his 4 of 8 inaex s:ou,una-zuw FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 employment duties, his employment experience or the Plaintiff's practices or procedures. See: Discover Bank v. Shimer, 2012 N.Y. Op. 51316(U) (Dist Ct, Nassau County 2012); Rushmore Slip Recoveries X, LLC v. Skolnick, 2007 N.Y. Slip Op. 51041(U) (Dist Ct, Nassau County 2007). Although Affiant is able to provide Plaintiff's practice and procedure in handling the payments made by their customers and the respective logging of said information, Affiant nonetheless fails to provide information as to Plaintiff's practices and procedures for recording transactions made to the account, the accrual of interest rates, as well as the overall generation of records themselves. Furthermore, in PlaintifPs supporting document titled "Loan Payoff Quoted 12/04/19", the total payoff amount is listed as $2,901.10, but below that is a handwritten amount of $3,063.49. Affiant states that the Loan Payoff Quoted 12/04/19 reflects the "amount due, including insurance 2019." coverage, as ofDecember 4, It can be inferred that the amount of $3,063.49 reflects the cost with the insurance coverage. However, that begs the question as to why the insurance coverage was not included in the original computer-generated records and requires the manual doctoring of the records. The doctoring of the business records not only call into question the credibility and originality of Plaintiff's proffered records, but also creates a material issue of fact as to the accuracy of the balance in question. Moreover, the Employee Affidavit relies on conclusory statements to attempt to provide foundation" the "proper required under CPLR 4518(a). With only minor changes, the Employee Affidavit could be doctored for use in support of all of Plaintiff's motions. Affiant claims that the subject records were made in the regular course of business, that it was in the regular course of such business to make such records, and that the records were made at or near the time of the events recorded. The Employee Affidavit bears an stark resemblance to the affidavit mentioned in Chase Bank USA, N.A. v. Gergis in where the Court criticized the affiant's foundational testimony 5 of 8 maex w:ou,uoo-zvw FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 4518(a)" as "essentially a verbatim recitation of the statutory elements set for in CPLR and that "he gave no as to how to electronic records conceming the defendant's absolutely testimony account statements came into existence nor did he indicate that he even knew how such information was collected". Chase Bank USA, N.A. v. Gergis, 2011 N.Y. Slip Op. 51068(U), *3 (Civ Ct, New York 2011). The Gergis Court also reminds of the fact that credit card County statements contain information that is conveyed from multiple sources that is ultimately compiled into the form that is before the Court. Id. Similar to Gergis, Affiant does not demonstrate that the individuals who imputed the data had actual knowledge of the events, or that said individuals obtained knowledge of those events from someone who with actual knowledge and had a duty to report such knowledge to the company for recordkeeping purposes. As outlined in Bajek, under these circumstances, the Court must perform a careful review of the submitted affidavit. Under this heightened standard, the Plaintiff's Employee is insufficient to provide a proper foundation and, thus, must be disregarded as hearsay evidence. B. Plaintiff Has Failed to Sufficiently Satisfy Their Prima Facie Burden for a Breach of Contract Claim. In their motion, Plaintiff seeks to recover damages based upon a breach of contract claim. In bringing forward the present motion for summary judgment under a breach of contract claim, the Plaintiff does not cite to any legal authority to support their claim that they are entitled to a judgment as a matter of law. Moreover, New York State Courts have established that a Plaintiff creditor may be entitled to a judgment as a matter of law for a breach of contract claim if the Plaintiff creditor has "tendered sufficient evidence that there was a credit card agreement...and payments." that the agreement was breached by the defendant when he failed to make required American Express Bank,\ FSB v. Scali, 36 N.Y.S.3d 220, 221 (2d Dept 2016); citing Citibank (South Dakota), N.A. v. Brown-Serulovic, 948 N.Y.S.2d 331, 333 (2d Dept 2012); Citibank (South 6 of 8 In(10X E UU1UD FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 N.A. v. Sablic,i 865 N.Y.S.2d 649, 652 (2d Dept 2008). In order to satisfy their burden of Dakota) proof, the Plaintiff must provide "an affidavit sufficient to tender to the Court the original agreement, as well as any revision thereto, and the affidavit must aver that the documents were cardholder." mailed to the CACH LLC v. Fatima, 2011 WL 3518184 (Dist Ct, Nassau County 2011); quoting Citibank (South Dakota), N.A. v. Martin, 807 N.Y.S.2d 284 (Civ Ct, New York County 2005). In support of its motion, the Plaintiff provided the Employee Affidavit to satisfy their evidentiary burden of }providing an affidavit sufficient to tender to the Court the original agreement. As outlined above, the Employee Affidavit is riddled with inadequacies, which precludes it from providing the necessary foundation for admitting the Card Agreement and Account Statements into evidence under the business records exception to the hearsay rule. Furthermore, Courts hate routinely denied Plaintiff banks judgments as a matter of law on their claims for breach of contract where there exist material issues of fact. See: Capital One Bank (USA), N.A. v. Suarez, 2016 N.Y. Slip Op. 50879(U) (Civ Ct, New York County 2016), and Citibank, N.A. v. Geyer, 2019 N.Y. Slip Op. 50024(U) (Dist Ct, Nassau County 2019). It has also been outlined above that there exist material issues of fact, such as the unjustified doctoring of Plaintiff's Loan Payment Quoted For 12/04/19, which also brings into question the of accuracy the outstanding balance, that precludes Plaintiff from obtaining summary judgment. Therefore, Plaintiff's motion for summary judgment should be denied. 7 of 8 Index #:UU1UU3-ZU1U FILED: LIVINGSTON COUNTY CLERK 03/02/2020 01:11 PM INDEX NO. 001083-2019 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 03/02/2020 CONCLUSION For the foregoing reasons, Defendant respectfully requests that this court deny Plaintiff's motion for summary judgment. Dated: March , 2020 New York, NY Law Offices of Robert S. Gitmeid & Assoc., PLLC By: JoJhda Resnick, Esq. Attorney for Defendant(s) Law Offices of Robert S. Gitmeid & Assoc., PLLC 11 Broadway, Suite 960 New York, NY 10004 Tel: (212) 226-5081 8 of 8