Preview
FILED: ONEIDA COUNTY CLERK 01/21/2021 10:39 AM INDEX NO. EFCA2021-000197
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONEIDA
GPO FEDERAL CREDIT UNION,
Plaintiff, MEMORANDUM OF LAW
vs. Index No.:
RJI No.:
JENNY S. TYRE,
Defendant.
PRFMMINARY STATEMENT
This Memorandum of Law is offered in further support of Plaintiff's Motion for
Sunuum, Judgment in Lieu of Complaiñt, made pursuant to CPLR 3213. This is an action for
the paymêñt of money. This Memersedsm of Law accompanies the Summons, Notice of
Motion for Summary Judgment in Lieu of Complaint, Attorney Affirmation of Patrick G. Radel,
Esq.; and an Affidavit of Fact of Graeme Watson. It is respectfully submitted that for the
reasons addressed herein, this Court should grant Plaintiff's Motion and award Sum-mary
Judgment and the other relief sought in the Notice of Motion and Attorney Affirmation of
Patrick G. Radel, Esq.
FACTS
The facts, as stated in the Attorney Affirmation of Patrick G. Radel, Esq. and the
Affidavit of Fact of Graeme Watson are hereby incorporated herein, in their entirety, as through
restated herein.
ARGUMENT
It is respectfully submitted that this Court should grant Summary Judgment, with
reasonable attomey's fees, along with such other and further relief as may be just and proper, to
Filed In Oneida Clerks Office 1/21/2021 1 of
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County
FILED: ONEIDA COUNTY CLERK 01/21/2021 10:39 AM INDEX NO. EFCA2021-000197
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021
Plaintiff. This is an action for payment of money/upon a judgment and therefore is brought by
Summary Judgment Motion in Lieu of Complaint pursuant to CPLR 3213.
When an action is based upon an instrument for the payment of money only or
upon any judgment, the plaintiff may serve with the summons a notice of motion
for summary judgment and the supporting papers in lieu of a complaint. The
summons served with such motion papers shall require the defendant to submit
answering papers on the motion within the time provided in the notice of motion.
The minimum time such motion shall be noticed to be heard shall be as provided
by subdivision (a) of rule 320 for making an appearance, depending upon the
method of service. If the plaintiff sets the hearing date of the motion laterthan the
minimum time therefor, he may require the defendant to serve a copy of his
answering papers upon him within such extended period of time, not exceeding
ten days, prior to such hearing date. No default judgment may be entered pursuant
to subdivision (a) of section 3215 prior to the hearing date of the motion. If the
motion is denied, the moving and answering papers shall be deemed the
complaint and answer, respectively, unless the court orders otherwise.
(NY CLS CPLR § 3213).
As a threshold matter, there is no question that an action on a note, as here, is an action
for payment of money only as contemplated by CPLR 3213.
It is incontestable that plaintiff would prove a prima facie case by proof of the
note and a failure to make the payments called for by itsterms. While defenses
advanced might raise issues outside the note, that does not change itscharacter as
one for the payment of money only. There is nothing in CPLR 3213 which limits
itsapplication to notes to which defenses based on extrinsic facts have not been
asserted. Even despite such issues, the note itself requires the defendants to make
certain payments and nothing else. As such itis an instrument for the payment of
money only.
(Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968] afd 29
NY2d 617).
It is well settled that for a defendant to prevail in oppasition to a Motion for Summry
Judgment in Lieu of Complaint for payment of money, where Plaintiff has presented a prima
facie entitlement to Judgment, the deSndant bears the burden to "establish substantial
Su.un,-y
fact."
triable issues of (Shields v Stevens, 55 AD2d 1017 [4th Dept 1977]). "Execution of the
2 of 4
FILED: ONEIDA COUNTY CLERK 01/21/2021 10:39 AM INDEX NO. EFCA2021-000197
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021
notes and default in payment having been established by plaintiffs, and not being denied by
defendant, it was incumbent upon defendant to come forward with proof of evidentiary facts
issue."
showing the existence of a genuine and substantial (Shields v Stevens, 55 AD2d 1017 [4th
Dept 1977][Internal Citations Omitted]).
As the Court is aware, on a Motion for Summary Judgment, it is prelimiñarily the
Plaintiff's burden to make a prima facie showing of entitlement to relief. This is done in the
context of an action upon a note "by proof of the notes and a failure to make the payments called
for. (Badische Bank v Ronel Sys., Inc., 36 AD2d 763 [2d Dept 1971] citing Sean:an-Andwall
Corp. v Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968] aff'd 29 NY2d 617).
Here, Plaintiff has met itsbw den. This has been done through proving the existence and
execution of the credit card application by providing a copy thereof as an exhibit(s) and through
the Affidavit of Fact offeed, upon personal knowledge of a representative of the Plaintiff, as to
the existence and execution thereof. Plaintiff has further met itsburden to ectablish a default in
payment via the annexation of accoüñt statements as exhibits and through the Affidavit of Fact
offered, upon personal knowledge of a representative of the Plaintiff, as to the o mimioe of the
default(s) in payment.
Further, Plaintiff has established itsentitlement to reascñable attorney's fees through the
presentation of the account agreement as an exhibit(s) in support of its instant motion, wherein
attorneys'
the terms provided for fees in the event of default, is included and enforceable as
against the Defendant. Annexed as an exhibit to the Attorney Affirmation of Patrick G. Radel,
Esq. is a document containing a breakdown of the fees and expenses incurred by the Plaintiff in
furtherence of this action. It is respectfully submitted that the Court should deem these
reasonable and award such costs and fees as part of itsJudgment in this action.
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021
CONCI4USION
Itis respectfully sub=bd that thisCourt should grant Judgment pursuant to
Summary
CPLR3213 to Plaintiff,along with reasonable attorney's fees,and such other and furtherrelief
as may be just and proper.
Dated: Jan 2021
Utica, New York Respectfully submitted,
P rickG. Radel, Esq.
GETNICKLIVINGSTON
ATKINSON & PRIORE, LLP
Attorneys for PWintiff
Office and Post Office Address
258 Genesee Street
Utica, New York 13502
Telephone (315)797-9261
Pursuant to the Fair Debt Collection Practice Act, this document isan attempt to collect a
debt and any Information obtained will be used tor that purpose
4 of 4
Preview
FILED: ONEIDA COUNTY CLERK 01/21/2021 10:39 AM INDEX NO. EFCA2021-000197 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA GPO FEDERAL CREDIT UNION, Plaintiff, MEMORANDUM OF LAW vs. Index No.: RJI No.: JENNY S. TYRE, Defendant. PRFMMINARY STATEMENT This Memorandum of Law is offered in further support of Plaintiff's Motion for Sunuum, Judgment in Lieu of Complaiñt, made pursuant to CPLR 3213. This is an action for the paymêñt of money. This Memersedsm of Law accompanies the Summons, Notice of Motion for Summary Judgment in Lieu of Complaint, Attorney Affirmation of Patrick G. Radel, Esq.; and an Affidavit of Fact of Graeme Watson. It is respectfully submitted that for the reasons addressed herein, this Court should grant Plaintiff's Motion and award Sum-mary Judgment and the other relief sought in the Notice of Motion and Attorney Affirmation of Patrick G. Radel, Esq. FACTS The facts, as stated in the Attorney Affirmation of Patrick G. Radel, Esq. and the Affidavit of Fact of Graeme Watson are hereby incorporated herein, in their entirety, as through restated herein. ARGUMENT It is respectfully submitted that this Court should grant Summary Judgment, with reasonable attomey's fees, along with such other and further relief as may be just and proper, to Filed In Oneida Clerks Office 1/21/2021 1 of 10:39:59 4 AM Index # EFCA2021-000197 County FILED: ONEIDA COUNTY CLERK 01/21/2021 10:39 AM INDEX NO. EFCA2021-000197 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021 Plaintiff. This is an action for payment of money/upon a judgment and therefore is brought by Summary Judgment Motion in Lieu of Complaint pursuant to CPLR 3213. When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall require the defendant to submit answering papers on the motion within the time provided in the notice of motion. The minimum time such motion shall be noticed to be heard shall be as provided by subdivision (a) of rule 320 for making an appearance, depending upon the method of service. If the plaintiff sets the hearing date of the motion laterthan the minimum time therefor, he may require the defendant to serve a copy of his answering papers upon him within such extended period of time, not exceeding ten days, prior to such hearing date. No default judgment may be entered pursuant to subdivision (a) of section 3215 prior to the hearing date of the motion. If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise. (NY CLS CPLR § 3213). As a threshold matter, there is no question that an action on a note, as here, is an action for payment of money only as contemplated by CPLR 3213. It is incontestable that plaintiff would prove a prima facie case by proof of the note and a failure to make the payments called for by itsterms. While defenses advanced might raise issues outside the note, that does not change itscharacter as one for the payment of money only. There is nothing in CPLR 3213 which limits itsapplication to notes to which defenses based on extrinsic facts have not been asserted. Even despite such issues, the note itself requires the defendants to make certain payments and nothing else. As such itis an instrument for the payment of money only. (Seaman-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968] afd 29 NY2d 617). It is well settled that for a defendant to prevail in oppasition to a Motion for Summry Judgment in Lieu of Complaint for payment of money, where Plaintiff has presented a prima facie entitlement to Judgment, the deSndant bears the burden to "establish substantial Su.un,-y fact." triable issues of (Shields v Stevens, 55 AD2d 1017 [4th Dept 1977]). "Execution of the 2 of 4 FILED: ONEIDA COUNTY CLERK 01/21/2021 10:39 AM INDEX NO. EFCA2021-000197 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021 notes and default in payment having been established by plaintiffs, and not being denied by defendant, it was incumbent upon defendant to come forward with proof of evidentiary facts issue." showing the existence of a genuine and substantial (Shields v Stevens, 55 AD2d 1017 [4th Dept 1977][Internal Citations Omitted]). As the Court is aware, on a Motion for Summary Judgment, it is prelimiñarily the Plaintiff's burden to make a prima facie showing of entitlement to relief. This is done in the context of an action upon a note "by proof of the notes and a failure to make the payments called for. (Badische Bank v Ronel Sys., Inc., 36 AD2d 763 [2d Dept 1971] citing Sean:an-Andwall Corp. v Wright Mach. Corp., 31 AD2d 136, 137 [1st Dept 1968] aff'd 29 NY2d 617). Here, Plaintiff has met itsbw den. This has been done through proving the existence and execution of the credit card application by providing a copy thereof as an exhibit(s) and through the Affidavit of Fact offeed, upon personal knowledge of a representative of the Plaintiff, as to the existence and execution thereof. Plaintiff has further met itsburden to ectablish a default in payment via the annexation of accoüñt statements as exhibits and through the Affidavit of Fact offered, upon personal knowledge of a representative of the Plaintiff, as to the o mimioe of the default(s) in payment. Further, Plaintiff has established itsentitlement to reascñable attorney's fees through the presentation of the account agreement as an exhibit(s) in support of its instant motion, wherein attorneys' the terms provided for fees in the event of default, is included and enforceable as against the Defendant. Annexed as an exhibit to the Attorney Affirmation of Patrick G. Radel, Esq. is a document containing a breakdown of the fees and expenses incurred by the Plaintiff in furtherence of this action. It is respectfully submitted that the Court should deem these reasonable and award such costs and fees as part of itsJudgment in this action. 3 of 4 FILED: ONEIDA COUNTY CLERK 01/21/2021 10:39 AM INDEX NO. EFCA2021-000197 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/21/2021 CONCI4USION Itis respectfully sub=bd that thisCourt should grant Judgment pursuant to Summary CPLR3213 to Plaintiff,along with reasonable attorney's fees,and such other and furtherrelief as may be just and proper. Dated: Jan 2021 Utica, New York Respectfully submitted, P rickG. Radel, Esq. GETNICKLIVINGSTON ATKINSON & PRIORE, LLP Attorneys for PWintiff Office and Post Office Address 258 Genesee Street Utica, New York 13502 Telephone (315)797-9261 Pursuant to the Fair Debt Collection Practice Act, this document isan attempt to collect a debt and any Information obtained will be used tor that purpose 4 of 4