Opinion
TSN 2005.
Decided June 16, 2009.
Hornbook law holds that a party moving for summary judgment must make out a prima facie case of entitlement thereto as a matter of law. E.g., Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). Interpreting this rule when a plaintiff moves for summary judgment is fairly easy: he or she must present admissible evidence supporting all of the elements of the subject cause of action. To oversimplify greatly, but to make the point, a plaintiff must say something like, "I lent defendant money, and defendant did not pay me back."
However, interpreting the aforesaid rule when a defendant moves for summary judgment is somewhat problematic; as the saying goes, "you can't prove a negative." In the example above, what is admissible evidence that plaintiff never made the loan? All a defendant can say is, "plaintiff did not loan me money." But this is not direct evidence that plaintiff did not loan money, it is simply a denial that plaintiff did. To that extent, defendant is essentially saying, "I deny what you claim; and I challenge you to submit admissible evidence to support it."
So why do we require a moving defendant to make out a prima facie case if all he or she is really doing is saying, "prove it"? In our example, why do we make the moving defendant say, "plaintiff did not loan me the money," rather than just, "I do not owe you any money" or "I am not liable to you" or "prove it"? After all, at trial, if a plaintiff does not make out a prima facie case, the defendant, even without saying a word, is entitled to a directed verdict. This Court has thought of at least two answers (beyond a sense that sauce for the moving goose [plaintiff] should be sauce for the moving gander [defendant]). First, the rule probably decreases the amount of frivolous summary judgment motions. "I am not liable to you" can be sworn to for many reasons, good, bad, or indifferent; but "plaintiff did not loan me any money" is an unambiguous statement of fact, more difficult to deny if true. Second, the rule informs the plaintiff what defense it must counter. Saying "I do not owe you any money" could be because you never loaned it or it could be because I paid you back. A pleading can be inconsistent in this way, denying a loan while claiming repayment, but a motion for summary judgment cannot; the movant can say one or the other, but not both.
The instant summary judgment motion has occasioned these musings because the parties have fought strenuously over whether defendant's moving affidavit makes out a prima facie case. Very simply put, defendant claims that he does not "recall ever opening" the subject credit card account. This "I do not recall doing" would appear to fall somewhere on the denial spectrum between "I do not remember whether I did or did not" and "I did not." Is it sufficient to make out a prima facie case of entitlement to judgment as a matter of law? In this Court's considered opinion, at least under the particular circumstances here present, the answer is "yes."
First, the statement "I do not recall opening the account" is as honest a denial as a person could make, given that the credit card issuer is a household name and the account was opened almost thirty years ago (in 1980). This Court could confidently deny that it has ever been to the moon, although some people have. This Court could confidently deny that it has ever been to Antarctica, although many people have. This Court could confidently deny that it robbed a bank in Chicago exactly one week ago, at 10:30 AM, and it could submit affidavits from 50 attorneys saying that they were appearing before the Court at that time. But this Court could not confidently say that some thirty years ago it did not open a credit card account with Chase Manhattan Bank or Chemical Bank, as they were known prior to their merger as "Chase" in 1991. And how would one prove this? So in this context, "I do not recall doing" is essentially a more honest way of saying "I did not" or "I deny that I did." See Mims v Mims, 286 SE2d 779, 783 (NC 1982) (finding that defendant made out a prima facie case for summary judgment by testifying that she "[did] not recall" the events used by plaintiff as evidence in support of his claim.)
Second, the moving papers satisfy both reasons for the rule that moving defendants (as well as moving plaintiffs) must make out a prima facie case. The moving papers obviously informed plaintiff that movant's defense is that he never obligated himself to pay the card's charges, not that he did pay them, or that there were no such charges. Additionally, the usual prophylactics against a frivolous motion, i.e., the moral taboo against lying and the legal taboo of perjury, were both present here: movant either remembers applying for the subject card or he does not. If he does remember, than he has lied and perjured himself just as clearly by saying he does not remember doing it as if he had said he did not do it; if he does not remember, then his motion is not frivolous and should be considered on its merits.
Third, even if, arguendo, "I do not recall doing" were to be deemed insufficient to make out a prima facie case, movant's entire affidavit makes out a prima facie case in another way. The prima facie burden "may be discharged by showing' that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v Catrett, 477 US 317, 323 (1986); see also Tibbits v Verizon New York, Inc., 40 AD3d 1300 (2007). Thus, a defendant-movant makes out a prima facie case for summary dismissal by demonstrating that a plaintiff-respondent cannot make out a prima facie case for liability. The instant motion, taken in its entirety, indicates that plaintiff will not be able to make out a prima facie case.
Fourth, in his reply papers movant says, "I do not recall doing it because I did not do it." Of course, reply papers may not include new matter that should have been included in moving papers. Wosyluk v L.T.L. Dev., Inc., 147 AD2d 475 (2d Dept 1989). Here, though, movant is simply explaining what he meant. Furthermore, one reason for the "no new matter" rule is that normally the respondent will not have an opportunity to submit a sur-reply. However, here, plaintiff has submitted sur-reply papers in the context of reply papers in further support of its cross-motion for summary judgment, and those papers address at length the "sufficiency of the denial" issue. Indeed, defendant's reply papers and plaintiff's sur-reply papers have given both sides a full and fair opportunity to explore the issue; defendant has submitted an outright denial, and plaintiff has responded.
Fifth, CPLR 2001 provides that "if a substantial right of a party is not prejudiced [a court may disregard a] mistake, omission, defect or irregularity." Here, especially in light of his reply, movant's not having, in his moving papers, expressly denied obligating himself on the subject credit card could be seen as a "mistake, omission, defect or irregularity" that can be disregarded. Plaintiff has not been prejudiced because its substantial sur-reply papers provided the opportunity to say whatever it would have said in its opposition papers had defendant's moving papers contained an express denial.
Sixth, courts are understandably reluctant to allow parties to make serial summary judgment motions. Resources should not be wasted on a movant who just keeps recycling the same old facts and tired arguments and won't take "no" for an answer. However, there is no absolute prohibition against a second summary judgment motion; indeed, CPLR 3212(f) expressly allows them (albeit in the context of an inadequate opportunity for disclosure). Here, if this Court denied the instant motion, movant could simply move again for summary judgment, use the instant reply papers as his moving papers, and, assuming the Court considered his motion on the merits, he would have unquestionably made out a prima facie case for summary judgment.
Turning to plaintiff's opposition,
a party opposing [a summary judgment] motion . . . must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" for this purpose.
Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 (1988) (citations omitted). Plaintiff's evidence that movant obligated himself as claimed is inadmissible (not every record from a business is a "business record"), and even if admissible it would not make out a case for liability, as plaintiff may, for example, simply have obtained movant's name (and, possibly, contact information) from his brother Eric, the primary card-holder. This is especially so given that there is no social security number listed for Paul Ohlson, only for Eric; there is no additional address (or even repeat address if the brothers were living together at the time) listed for Paul Ohlson; and only one business telephone number appears in these materials, presumably for Eric, as it is listed below his street address. Thus plaintiff has failed to raise an issue of fact, by admissible evidence, sufficient to defeat defendant's summary judgment motion and/or sustain its cross-motion.
In the final analysis, there is absolutely no reason to allow this unprovable case to proceed to trial. The instant motion was substantive, non-frivolous, and perfectly understandable. Arguably, the moving affidavit constitutes as strong a denial as is possible under the circumstances. Furthermore, the reply affidavit constitutes a categorical denial; and plaintiff's sur-reply has not overcome that denial. Plaintiff was not and is not able to make out a prima facie case. Thus, the better approach here is to dismiss the instant matter now, before more time and resources are wasted. As the Court of Appeals has said, albeit in a different context:
Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law. Since it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.
Andre v Pomeroy, 35 NY2d 361, 364 (1974) (citations omitted).
Finally, this Court notes that both parties' rhetoric was often overheated, but plaintiff seems to have, in addition, characterized defendant's papers rather loosely. As just one example among others, plaintiff states (Reply Affirmation ¶ 19) that "Defendant cannot say that he does not remember if something happened and at the same time say that it did not happen." Defendant never says that he "does not remember if" he obligated himself; rather, he says that he does not recall ever obligating himself. There is a difference.
Thus, the instant motion by defendant Paul Ohlson for summary judgment is granted; the instant cross-motion by plaintiff for summary judgment is denied; the voluminous requests for sanctions for frivolous litigation are, in the Court's discretion, denied; and the clerk is hereby directed to enter a judgment of dismissal accordingly.