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Supreme Court, Kings County, Denies Unopposed Motion for Summary Judgment Due to Evidentiary Failures

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  • Posted on: Apr 14 2023

By Jonathan H. Freiberger

As explained in prior Blog articles, a court will grant a motion for summary judgment if, upon all the papers and evidence submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of the moving party as a matter of law. CPLR § 3212(b); Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). The function of the court when presented with a motion for summary judgment is one of issue finding, not issue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957); Weiner v. Ga-Ro Die Cutting, Inc., 104 A.D.2d 331 (1st Dep’t 1985).

To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement, submitting sufficient admissible evidence, such as affidavits of persons with first-hand knowledge of the matter, documentary evidence, and testimonial evidence, to demonstrate the absence of any material issues of fact. Jacobsen v. New York City Health and Hosps. Corp., 22 N.Y.3d 824 (2014); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). The movant’s initial burden is a heavy one; on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Jacobsen, 22 N.Y.3d at 833. If the moving party fails to make its prima facie showing, the court is required to deny the motion, regardless of the sufficiency of the non-movant’s papers. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). 

If the movant meets its initial burden, then the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or advance an acceptable excuse for the failure to do so. Zuckerman, 49 N.Y.2d at 560. However, bare allegations or conclusory assertions are insufficient to create genuine, bona fide, issues of fact necessary to defeat such a motion. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978).

In Diesel Funding LLC v. RCI PLBG Inc., decided by the Supreme Court of the State of New York, Kings County, on April 6, 2023, the Court denied an unopposed motion for summary judgment pursuant to CPLR 3212 due to evidentiary failures on movant’s part.  [Eds. Note: this Blog has addressed the issue of the sufficiency of evidence submitted on a motion for summary judgment in the context of mortgage foreclosure actions, inter alia, [here], [here], [here], [here], [here] and [here].]

[Eds. Note: some of the facts herein were obtained from reviewing the underlying court file available on the NYSCEF System.]  The plaintiff in Diesel purchased for $830,000, $1.2 million of the corporate defendants’ receivables.  The corporate defendants agreed to make daily ACH payments to plaintiff in the amount of $20k until the receivables were paid in full.  The individual defendants guaranteed the corporate defendants’ repayment obligations to plaintiff.  According to the complaint, the corporate defendants breached the parties’ agreement by “intentionally impeding and preventing [plaintiff] from making the agreed upon ACH withdrawals from the [c]orporate defendants’ bank account.”

Plaintiff commenced action against the corporate defendants and the guarantors for, inter alia, breach of contract.  The Defendants answered the complaint by denying or denying knowledge of the material allegations in the complaint and asserting several affirmative defenses.  Within a week of the filing of the answer, plaintiff moved for summary judgment.  The defendants did not oppose the motion.  Relying on Liberty Taxi Mgt., Inc. v. Gincherman, 32 A.D.3d 276, 278 n. (1st Dep’t 2006), the Court noted that “a summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion, i.e. defaulted.”  (Citations omitted.)

Among the legal considerations made by a court deciding a summary judgment motion previously discussed herein, the Diesel Court also noted that “[p]ursuant CPLR 3212(b), a court will grant a motion for summary judgment upon a determination that the movant’s papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit.  Furthermore, all of the evidence must be viewed in the light most favorable to the opponent of the motion.”  (Citation omitted.)

The Court then noted that “[t]he essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach.”  (Citation and internal quotation marks omitted.)

The Court found that plaintiff failed to meet its prima facie burden of demonstrating entitlement to summary judgment.  First the Court noted that the attorney affirmation of plaintiff’s counsel demonstrated “no personal knowledge of any of the transactional facts alleged in the complaint” and that an “attorney’s affirmation that is not based upon personal knowledge is of no probative or evidentiary significance.”  (Citations omitted.)

Next, the Court addressed the affidavit of plaintiff’s CFO (“CFO”) and stated that CFO’s “affidavit is used to authenticate the Agreement which was allegedly breached by the defendants.”  In his affidavit, CFO “avers that he is the CFO of [plaintiff] and, as such, has personal knowledge of its business practices and procedures” and “that the factual allegations proffered in support of the motion for summary judgment are derived from his review of the plaintiff’s business records.  In his affidavit, CFO refers to “the only two exhibits attached to the motion, namely, the [operative] Agreement and a document denominated as a payment history.”

In addressing the shortcomings of CFO’s affidavit, the Court notes that CFO “does not aver that he was a signatory to the agreement or that he participated in the execution of same.”  Further, while the operative agreement refers to a “prior balance owed by the [c]orporate defendants to [plaintiff]”, neither the complaint nor any of the affidavits supporting the motion for summary judgment “mention the existence of a prior balance owed by the corporate defendants to the plaintiff, and or the plaintiff’s right to deduct that balance from the funds delivered to defendants” and that “the complaint and the motion provide no information regarding the amount of funds that were provided to the corporate defendants pursuant to the Agreement”.  Thus, the Court found that these facts were sufficient to raise “material issues of fact regarding the plaintiff’s performance under the agreement” preventing plaintiff from making a “prima facie showing of entitlement to judgment on its claim for breach of the Agreement [and] the guarantee.”

As to its rejection of CFO’s attempted reliance on the payment history, the Court stated:

[CFO] also refers to the payment history, annexed as exhibit B to his affidavit, as proof of the defendants’ default. A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures. As a general rule, the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records. However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business. Here, the payment history is submitted without explaining its source or its meaning.  It is neither self-explanatory nor self-admitting and there was an insufficient foundation for its admission as a business record.  [(Citations omitted.)]

The Court also rejected CFO’s averment that the corporate defendants “closed a bank account and ceased payment authorizations for daily ACH payments under Bank Code RO2 constituting a default under the Agreement” because CFO “proffered no business record reflecting this fact” and, instead, “merely alleged the fact without proffering any documentary support”.  (Emphasis in original.)  In this regard the Court stated that:

It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted.  Accordingly, evidence of the contents of business records is admissible only where the records themselves are introduced. Without their introduction, a witness’s testimony as to the contents of the records is inadmissible hearsay. [CFO’s] averments regarding Bank Code RO2 constitutes inadmissible hearsay. In some, [plaintiff] has failed to make a prima facia showing of entitlement to summary judgment on any of the claims it has asserted against the defendants.  (Citations omitted; emphasis in original.)


Litigants moving for summary judgment should make every effort to meet their prima facie burden in their moving papers by the submission of evidence in admissible form.  Even when a motion for summary judgment is unopposed, the court may deny the motion based on, inter alia, the sufficiency of the evidence submitted.  It should be noted, however, that the Second Department, in Bank of New York Mellon v. Gordon, 171 A.D.3d 197, 202 (2019), stated:

However, as a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion, for we are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made. Indeed in civil cases, inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess.  (Citations, internal quotation marks and brackets omitted.)

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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