In support of the motion, Cavalry provided the notarized affidavit of facts and sale of account by Citibank, N. Hanneman avers that she is an employee of Cavalry; however, she fails to set forth with any specificity how she is authorized to provide the affidavit, whether it be in a job description or by title.
Plaintiff also submitted a bill of sale and assignment that purports to be between Citibank, N. The bill of sale refers to an "Exhibit 1" as proof that King's account was included in the sale.
An additional document is submitted with the statements containing King's name, account number and the same account ID listed on the bill of sale and assignment, indicating a payment was rendered on July 18, Cavalry further submitted a notarized affidavit of facts and purchase of accounts by debt buyer plaintiff as proof that Cavalry purchased King's account on November 27, Plaintiff moves pursuant to CPLR for summary judgment.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law see Winegrad v New York Univ. Where the moving party has demonstrated its entitlement to summary judgment, the opponent must demonstrate by admissible evidence the existence of an issue of fact requiring a trial of the action or provide an acceptable excuse for their failure so to do see Zuckerman v City of New York , 49 NY2d [].
A plaintiff establishes a prima facie entitlement to summary judgment on its cause of action to recover damages for breach of contract by providing evidence that there was an agreement, which "defendant accepted by his use of a certain credit card issued by the plaintiff and payments made thereon, and which was breached by the defendant when he failed to make the required payments" see Citibank [South Dakota], N.
After commencement of an action wherein e-filing is authorized, documents may be electronically filed and served, but only by, and electronic service shall be made only upon, a party or parties who have consented thereto. A party's failure to consent to participation in electronic filing and service shall not bar any other party to the action from filing documents electronically with the County Clerk and the court or serving documents upon any other party who has consented to participation.
A party who has not consented to participation shall file documents with the court and the County Clerk, and serve and be served with documents, in hard copy. When an e-filing party serves a document in hard copy on a non-participating party, the document served shall bear full signatures of all signatories and proof of such service shall be filed electronically.
Notwithstanding the following, no party shall be compelled, directly or indirectly, to participate in e-filing pursuant to this section. A consent to e-filing in an action shall state that the party providing it agrees to the use of e-filing in the action and to be bound by the filing and service provisions in this section.
A party who has commenced an action electronically shall serve upon the other parties together with the initiating documents a notice of e-filing in a form approved by the Chief Administrator.
Such notice shall provide sufficient information in plain language concerning e-filing. Except for an unrepresented litigant, a party served with such a notice shall promptly record his or her consent electronically in the manner provided at the NYSCEF site or file with the court and serve on all parties of record a declination of consent.
An unrepresented litigant is exempt from having to file and serve documents electronically in accordance with this section and need not respond to the notice described herein; except that he or she may file a consent to participate in e-filing provided the clerk shall first have explained his or her options for e-filing in plain language, including the option for expedited processing, and inquired whether he or she wishes to participate.
Where an unrepresented litigant opts to file a consent hereunder, it shall be documented in the case file in a manner prescribed by the Chief Administrator. Provided, however, that where an unrepresented litigant chooses to participate in e-filing in accordance with these rules, he or she may at any time opt out of such participation by presenting the clerk of the court with a form so declaring.
The filing of a consent to e-filing hereunder shall not constitute an appearance in the action under CPLR When an action becomes subject to e-filing, the court may direct that documents previously filed in the action in hard copy be filed electronically by the parties.
The court may at any time order discontinuation of e-filing in such action or modification of e-filing procedures therein in order to prevent prejudice and promote substantial justice.
Where procedurally permitted, upon court direction, an application by a party to the court, or a stipulation among the parties, a pending action may be converted to electronic form.
Such direction, application, or stipulation must be served on all parties to the action and filed with proof of service.
The County Clerk may require the parties to furnish previously filed hard copy documents in electronic form. Documents may be filed or served electronically only by a person who has registered as an authorized e-filing user or as otherwise provided in this subdivision. An attorney admitted to practice in the State of New York, or a person seeking to serve as an authorized e-filing agent on behalf of attorneys of record in an e-filed action or actions hereinafter "filing agent" may register as an authorized e-filing user of the NYSCEF site.
An attorney admitted pro hac vice in an action, an unrepresented litigant, or a person who has been authorized in writing by an owner or owners of real property to submit a petition as provided in section of the Real Property Tax Law and who has been licensed to engage in such business as required by the jurisdiction in which the business is operated hereinafter "small claims assessment review filing agent" may also register as an authorized e-filing user, but solely for purposes of such action or, in the case of a small claims assessment review filing agent, solely for those proceedings under section of the Real Property Tax Law in which he or she has been authorized to submit a petition.
Registration shall be on a form prescribed by the Chief Administrator. If so provided by the Chief Administrator, registration shall not be complete until the registering person has been approved as an e-filing user. An authorized e-filing user shall notify the Resource Center immediately of any change in the information provided on his or her registration form. An authorized e-filing user shall maintain his or her User ID and password as confidential, except as provided in paragraph 4 of this subdivision.
Upon learning of the compromise of the confidentiality of either the User ID or the password, an authorized e-filing user shall immediately notify the Resource Center.
At its initiative or upon request, the UCS may at any time issue a new User ID or password to any authorized e-filing user. An authorized e-filing user may authorize another person to file a document electronically on his or her behalf in a particular action using the User ID and password of the user, but, in such event, the authorized e-filing user shall retain full responsibility for any document filed. In any action subject to e-filing, all documents required to be filed with the court by an e-filing party shall be filed and served electronically, except as provided in this section.
A filing agent other than one employed by a governmental entity shall e-file a statement of authorization from counsel of record in an action, in a form approved by the Chief Administrator, prior to or together with the first e-filing in that action by the agent on behalf of that counsel.
Documents that are required to be filed and served electronically in accordance with this section or paragraph 1 of subdivision c of section In the event a filer shall file and serve documents in hard copy pursuant to this sub paragraph, each such document shall include the notice required by the immediately following sub paragraph, and the filer shall file those documents with the NYSCEF site within three business days thereafter.
Where an action is subject to e-filing and a party other than an unrepresented litigant who is not participating in e-filing or attorney seeks to file a document therein in hard copy, such document shall include, on a separate page firmly affixed thereto, a notice of hard copy submission, in a form approved by the Chief Administrator, that states the reason why the document is being filed in hard copy form.
Whenever documents are filed electronically that require the payment of a filing fee, the person who files the documents shall provide therewith, in payment of the fee: i such credit card information as shall be required at the NYSCEF site to permit a card to be charged by the County Clerk; or ii the form or information required by the County Clerk to permit him or her to debit an account maintained with the County Clerk by an attorney or law firm appearing for a party to the action; or iii such information as shall be required at the NYSCEF site to permit an automated clearing house debit to be made; or iv any other form of payment authorized by the Chief Administrator.
Notwithstanding the foregoing, where permitted by the County Clerk, an authorized e-filing user who electronically files documents that require the payment of a filing fee may cause such fee to be paid thereafter at the office of the County Clerk. A document other than an order or judgment is filed when its electronic transmission or, in the case of a petition that is e-filed by submission of a text file as provided in subdivision b 1 of this section, the electronic transmission of the text file is recorded at that site, provided, however, that where payment of a fee is required upon the filing of a document, the document is not filed until transmission of the document and the information or form or information as required in i , ii or iii of paragraph 2 of this subdivision has been recorded at the NYSCEF site; or, if no transmission of that information or form or information is recorded, where permitted by the County Clerk, until payment is presented to the County Clerk.
No later than the close of business on the business day following the electronic filing of a document, a notification, in a form prescribed by the Chief Administrator, shall be transmitted electronically by the NYSCEF site to the person filing such document and the e-mail service addresses of all other participating parties in such action.
When documents initiating an action are filed electronically, the County Clerk shall assign an index number or filing number to the action and that number shall be transmitted to the person filing such documents as part of the notification. If, where permitted, payment is submitted after the initiating documents have been transmitted electronically, the County Clerk shall assign the number upon presentation of that payment.
Unless otherwise directed by the court, any document placed in restricted status in response to such a request shall be returned to public view upon expiration of this five day period. The Chief Administrator of the Courts shall promulgate forms to implement this process. When a document has been filed electronically pursuant to this section, the official record shall be the electronic recording of the document stored by the County Clerk.
The County Clerk or his or her designee may scan and e-file documents that were filed in hard copy in an action subject to e-filing or maintain those documents in hard copy form. Where a document that was filed in hard copy is thereafter e-filed, the filing date recorded in NYSCEF shall be the date of hard copy filing.
The court may require the parties to provide working copies of documents filed electronically. In such event, each working copy shall include, firmly affixed thereto, a copy of a confirmation notice in a form prescribed by the Chief Administrator.
Unless the court directs otherwise, any document that requires a judge's signature shall be transmitted electronically and in hard copy to the court. Except where the Chief Administrator authorizes use of electronic signatures, decisions, orders and judgments signed by a judge shall be signed in hard copy.
All signed decisions, orders and judgments shall be converted into electronic form and transmitted to the NYSCEF site by the appropriate clerk. Notwithstanding any other provision of this section, and subject to such guidelines as may be established by the Chief Administrator, the County Clerk or his or her designee may require or permit a party to file in hard copy, in accordance with procedures set by the County Clerk or designee, an exhibit or other document which it is impractical or inconvenient to file electronically.
An electronically filed document shall be considered to have been signed by, and shall be binding upon, the person identified as a signatory, if:.
A document shall be considered to have been signed by an attorney or party in compliance with section A judge, party or attorney may add his or her signature to a stipulation or other filed document by signing and filing, or causing to be filed, a Certification of Signature for such document in a form prescribed by the Chief Administrator.
Initiating documents may be served in hard copy pursuant to Article 3 of the CPLR, or, in tax certiorari cases, pursuant to the Real Property Tax Law, and shall bear full signatures as required thereby, or by electronic means if the party served agrees to accept such service.
In the case of a proceeding to review a small claims assessment where the petition has been e-filed by the submission of a text file as provided in subdivision b 1 of this section, a hard copy of the petition, fully completed and signed as set forth in that subdivision, shall be mailed, and shall be served upon the assessing unit or tax commission, as provided in Section of the Real Property Tax Law, unless otherwise stipulated. A party served by electronic means shall, within 24 hours of service, provide the serving party or attorney with an electronic confirmation that the service has been effected.
The e-mail service address recorded at the time of registration is the e-mail address at which service of interlocutory documents on that party may be made through notification transmitted by the NYSCEF site.
It is the responsibility of each filing user to monitor that address and promptly notify the Resource Center in the event of a change in his or her e-mail service address. An e-filing party causes service of an interlocutory document to be made upon another party participating in e-filing by filing the document electronically. Upon receipt of an interlocutory document, the NYSCEF site shall automatically transmit electronic notification to all e-mail service addresses in such action.
Such notification shall provide the title of the document received, the date received, and the names of those appearing on the list of e-mail service addresses to whom that notification is being sent. Each party receiving the notification shall be responsible for accessing the NYSCEF site to obtain a copy of the document received.
Except as provided otherwise in subdivision h 2 of this section, the electronic transmission of the notification shall constitute service of the document on the e-mail service addresses identified therein; however, such service will not be effective if the filing party learns that the notification did not reach the address of the person to be served.
A party may, however, utilize other service methods permitted by the CPLR provided that, if one of such other methods is used, proof of that service shall be filed electronically. In an action subject to e-filing, the County Clerk or his or her designee shall file orders and judgments of the court electronically and enter them. The County Clerk may affix a filing stamp to orders or judgments by stamping the original hard copy document before filing it electronically or by affixing a stamp to the document after it has been electronically filed.
The filing stamp shall be proof of the fact of entry and the date and time thereof. The date of entry shall be the date shown on the stamp, except that if the County Clerk receives an order or judgment and places a filing stamp and date thereon reflecting that the date of receipt is the date of filing but does not e-file the document until a later day, the Clerk shall record at the NYSCEF site as the date of entry the date shown on the filing stamp.
Upon entry of an order or judgment, the NYSCEF site shall transmit to the e-mail service addresses a notification of receipt of such entry, which shall not constitute service of notice of entry by any party. A party shall serve notice of entry of an order or judgment on another party by serving a copy of the order or judgment and written notice of its entry. A party may serve such documents electronically by filing them with the NYSCEF site and thus causing transmission by the site of notification of receipt of the documents, which shall constitute service thereof by the filer.
In the alternative, a party may serve a copy of the order or judgment and written notice of its entry in hard copy by any method set forth in CPLR b 1 to 6. If service is made in hard copy by any such method and a copy of the order or judgment and notice of its entry and proof of such hard copy service are thereafter filed with the NYSCEF site, transmission by NYSCEF of notification of receipt of those documents shall not constitute additional service of the notice of entry on the parties to whom the notification is sent.
The NYSCEF site shall be considered to be subject to a technical failure on a given day if the site is unable to accept filings or provide access to filed documents continuously or intermittently over the course of any period of time greater than one hour after noon of that day.
Notice of all such technical failures shall be provided on the site. When e-filing is hindered by a technical failure, a party may file with the appropriate clerk and serve in hard copy. With the exception of deadlines that by law cannot be extended, the time for filing of any document that is delayed due to technical failure of the site shall be extended for one day for each day on which such failure occurs, unless otherwise ordered by the court.
In the event an attorney or party shall file and serve documents in hard copy pursuant to this paragraph, each such document shall include the notice required by paragraph 1 of subdivision d of this section, and the filer shall file those documents with the NYSCEF site within three business days after restoration of normal operations at that site.
In any action subject to e-filing, parties and non-parties producing materials in response to discovery demands may enter into a stipulation, which shall be e-filed, authorizing the electronic filing of discovery responses and discovery materials to the degree and upon terms and conditions set forth in the stipulation.
In the absence of such a stipulation, no party shall file electronically any such materials except in the form of excerpts, quotations, or selected exhibits from such materials as part of motion papers, pleadings or other filings with the court. NYSCEF administrators shall take steps to identify and restrict public view of portions of filed documents that display an individual's social security number. Amended on May 16, Amended on Apr. Amended on May 18, Amended on June 18, Amended on April 15, Amended on May 24, Except to the extent that this section shall otherwise require, the provisions of section Except as otherwise provided in this section, every action authorized by subdivision a of this section shall be commenced by electronically filing the initiating documents with the County Clerk through the NYSCEF site.
Notwithstanding paragraph 1 of this subdivision, an action otherwise required to be commenced electronically may or shall be commenced by the filing of initiating documents in hard copy where permitted or required by statute or court order, and may be so commenced provided such documents are accompanied by the affirmation or affidavit of the filing attorney or party stating that: i the statute of limitations will expire on the day the documents are being filed or on the following business day; and ii the attorney, party or filing agent therefor is unable to electronically file such documents because of technical problems with his or her computer equipment or Internet connection.
In the event a filer shall file initiating documents in hard copy pursuant to this paragraph, each such document shall include the notice required by paragraph 1 of subdivision d of section For purposes of this section, such an action shall be deemed to have been commenced electronically. Personal service of initiating documents upon a party in an action that must be commenced electronically in accordance with this section shall be made as provided in Article 3 of the Civil Practice Law and Rules, or the Real Property Tax Law, or by electronic means if the party served agrees to accept such service.
Such service shall be accompanied by a notice, in a form approved by the Chief Administrator, advising the recipient that the action is subject to electronic filing pursuant to this section. Except as otherwise provided in this section, filing and service of all documents in an action that has been commenced electronically in accordance with this section shall be by electronic means. Notwithstanding any other provision of this section, a party to be added in an action that has been commenced electronically in accordance with this section shall be served with initiating documents in hard copy together with the notice specified in paragraph 3 of subdivision b of this section.
A proposed intervenor or other non-party who seeks relief from the court in such an action shall make his or her application for such relief by electronic means as provided by the NYSCEF system. Notwithstanding paragraph 1 of this subdivision, where documents are required to be filed and served electronically in accordance with such paragraph 1 , such documents may nonetheless be filed and served in hard copy where permitted by paragraph 1 of subdivision d of section In the event a filer shall file and serve documents in hard copy pursuant to this paragraph, each such document shall include the notice required by paragraph 1 of subdivision d of section As provided in section Notwithstanding the foregoing, an unrepresented litigant or a proposed intervenor or other non-party seeking relief from the court who is unrepresented is exempt from having to file and serve documents electronically in accordance with this section.
No such party shall be compelled, directly or indirectly, to participate in e-filing. As to each unrepresented litigant, the clerk shall explain his or her options for e-filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the e-filing program only upon his or her request, which shall be documented in the case file, after he or she has been presented with sufficient information in plain language concerning the program.
Where an unrepresented litigant chooses to participate in e-filing in accordance with these rules, he or she may at any time opt out of such participation by presenting the clerk of the court with a form so declaring.
Nothing in this section shall prevent a judge from exempting an attorney from having to file and serve documents electronically in accordance with this section upon a showing of good cause therefor. Where an attorney or small claims assessment filing agent is exempt from having to file and serve documents electronically in accordance with this section, he or she shall serve and file documents in hard copy, provided that each such document shall include the notice required by paragraph 1 of subdivision d of section The County Clerk or the court, with the approval of the Chief Administrator, may require an exempt attorney or small claims assessment filing agent to submit an additional, unbound hard copy of documents being presented in hard copy to the court.
In any action in which an attorney or other person is exempt pursuant to this subdivision, all other attorneys, small claims assessment filing agents, unrepresented litigants, proposed intervenors, or others participating in e-filing and seeking relief from the court shall continue to be required to file and serve documents electronically, except that, whenever they serve documents upon a person who is exempt from having to file and serve documents electronically in accordance with this section, they shall serve such documents in hard copy, bearing full signatures, and shall file electronically proof of such service.
Added on Apr. Amended on Oct. Amended on Jan 09, Amended on May 24, In order for a party to a court action or proceeding to use the EDDS to transmit one or more court documents to a court, such party must:. The EDDS may be used for the transmission of documents in such courts and in such classes of cases, and for such purposes including the filing thereof with a court, as may be authorized by order of the Chief Administrator.
Notwithstanding any other provision hereunder:. Added on Dec. Except as provided in subdivision b of this section, in an action not yet assigned to a judge, the court shall not accept for filing a notice of motion, order to show cause, application for ex parte order, notice of petition, note of issue, notice of medical, dental or podiatric malpractice action, statement of net worth pursuant to section of the Domestic Relations Law or request for a preliminary conference pursuant to section Where an application for poor person relief is made, payment of the fee for filing the request for judicial intervention accompanying the application shall be required only upon denial of the application.
A request for judicial intervention must be submitted, in duplicate, on a form authorized by the Chief Administrator of the Courts, with proof of service on the other parties to the action but proof of service is not required where the application is ex parte. Unless otherwise authorized by the Chief Administrator, the filing of a request for judicial intervention pursuant to this section shall cause the assignment of the action to a judge pursuant to section The clerk may require that a self-addressed and stamped envelope accompany the request for judicial intervention.
Amended b. Amended b on Jan 10, Amended b Sept. Amended b December 23, , eff. January 5, Amended b on July 30, In addition, except as provided in subdivision d of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers 1 a notice of motion, and 2 with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.
The above-entitled action is for briefly state nature of action, e. This is a motion for or related to interim maintenance or child support. An affirmation that a good faith effort has been made to resolve the issues raised in this motion is annexed hereto. Pursuant to CPLR b , answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion.
Attorney 1 or attorney in charge of case if law firm for moving party. Attorney 1 for other party Address: Telephone number:. In the absence of a showing of significant prejudice, the affirmation must demonstrate that a good faith effort has been made to notify the party against whom the temporary restraining order is sought of the time, date and place that the application will be made in a manner sufficient to permit the party an opportunity to appear in response to the application.
This subdivision shall not be applicable to orders to show cause or motions in special proceedings brought under Article 7 of the Real Property Actions and Proceedings Law, nor to orders to show cause or motions requesting an order of protection under section of the Domestic Relations Law, unless otherwise ordered by the court. Added f on Oct. Amended f on Feb. Amended f on Jun. If a case has not been assigned to a judge, the motion shall be made returnable before the court, and a copy of the moving papers, together with a request for judicial intervention, shall be filed with the court, with proof of service upon all other parties, where required by section The moving party shall give written notice of the index number to all other parties immediately after filing of the papers.
Copies of all responding papers shall be submitted to the court, with proof of service and with the index number set forth in the papers, on or before the return date. The case shall be assigned to a judge as soon as practicable after the filing of the request for judicial intervention pursuant to section After assignment to the judge, the court shall provide for appropriate notice to the parties of the name of the assigned judge. Motion papers noticed to be heard in a county other than the county where the venue of the action has been placed by the plaintiff shall be assigned to a judge in accordance with procedures established by the Chief Administrator.
The answering party shall serve copies of all affidavits and briefs as required by CPLR Affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law. The assigned judge, in his or her discretion or at the request of a party, thereafter may determine that any motion be orally argued and may fix a time for oral argument. A party requesting oral argument shall set forth such request in its notice of motion or in its order to show cause or on the first page of the answering papers, as the case may be.
Where all parties to a motion request oral argument, oral argument shall be granted unless the court shall determine it to be unnecessary. Aside from the deadline itself, the Court noted that defendants conceded their awareness of the reassignment of the action to Justice Guzman and the day filing period provision in her rules in advance of the filing deadline.
Appleyard serves as good reminder that compliance with deadlines, whether court-ordered or statutory, is mandatory, not optional. As Appleyard demonstrates, practitioners who fail to comply with deadlines do so at their own peril. Appleyard is also a reminder that to demonstrate good cause, one must provide a satisfactory explanation for the delay in brining the motion.
As the plaintiff in Appleyard learned, failing to meet the deadline with knowledge that one is violating that deadline is not sufficient. Please note our NYC address has changed, see the new address in the header or on the contact page of our website. Share this: Twitter Facebook. Like this: Like Loading Follow Following. Sign me up. Already have a WordPress.
0コメント