The term “summary judgment” means that a litigant is claiming that there is no reason to have a trial (either by judge or jury) because the case can be decided based solely upon application of the law. A “motion” is basically a request for a judge to take some sort of action.
Summary judgment is a drastic remedy, as it deprives a party of his day in court, and should be granted when it is clear that there are no triable issues of fact. See, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]. The burden is upon the moving party to make a prima facie (Latin term for “by its first instance”) showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. See, Giuffrida v. Citibank, 100 NY2d 72 [2003]. The failure to make that showing requires the denial of the motion regardless of the adequacy of the opposing papers. See, Ayotte v. Gervasio, 81 NY2d 1062 [1993]. Once a prima facie showing has been made, the burden of proof shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact which necessitate a trial.
Affidavits which are signed and notarized outside of New York State should be accompanied by a Certificate of Conformity pursuant to CPLR 2309(c). This certificate informs the court that the procedures for the signing of an affidavit in-state were complied with even though executed out-of-state.
It is important to note that affidavits in support or in opposition to summary judgment motions must be made by someone with personal knowledge of the facts of the case. In many credit card cases, this necessarily means that the original credit card company must provide an affidavit of an officer attesting to the facts, and that the affidavit of a successor debt buyer will not suffice. See, JMD Holding Corp. v. Cong. Fin. Corp., 4 NY3d 373 [2005].
As a part of a credit card issuer’s presentation of a prima facie case, the motion papers must include 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 mailed to the card holder. The same affidavit typically advances copies of credit card statements which serve to evidence a buyer’s subsequent use of the credit card and acceptance of the original or revised terms of credit (Chase Manhattan Bank [Nat. Ass’n], Bank Americard Division v. Hobbs, 94 Misc.2d 780, 405 N.Y.S.2d 967 [Civ.Ct. Kings Co.1978], also holding statements admissible as business record; Citibank [S.D.] N.A. v. Roberts, 304 A.D.2d 901, 757 N.Y.S.2d 365 [3d Dept.2003], payments indicated acceptance of credit arrangement). The affidavit often addresses whether there was any proper protest of any charged purchase within 60 days of a statement (15 U.S.C. § 1601; 12 C.F.R § 226.13[b] [1], a provision in 12 C.F.R, part 226, referred to as “Regulation Z” or “Truth in Lending” regulations).
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© 2013 Richard A. Klass
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