US v. Daniel Lyons, Jr. (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT # 104

BACKGROUND

The plaintiff has filed this complaint in two counts naming Daniel Lyons, Jr. as the defendant.   The complaint is dated January 25, 2010.   The complaint alleges that the defendant was extended credit and that he has failed to make payments on his account although demand has been made with full monthly accounts provided to the defendant.   In support of the Motion for Summary Judgment, the plaintiff submitted an affidavit from the custodian of records and the monthly accounts sent to the defendant from December 2005 to the last account in for January 2009.   The plaintiff submitted a motion for summary judgment dated July 19, 2010.   The defendant has not submitted any opposition to the motion for summary judgment.   The motion was assigned to the arguable short calendar on August 23, 2010 and marked as non-arguable by counsel for the plaintiff.

DISCUSSION

“Practice Book Section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)   Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Internal quotation marks omitted.)  Bednarz v. Eye Physicians of Central Connecticut, P.C., 287 Conn. 158, 169, 947 A.2d 291 (2008).

The plaintiff has provided as exhibits the monthly billing statements that began in December 2005 until the last bill for the time period ending January 2009.  (Exhibits B through KK.) Additionally, the plaintiff submitted an affidavit dated April 26, 2010 as to the debt from Angela Swallow, a custodian of records for the plaintiff.   The plaintiff also submitted a Request for Admission sent to the defendant, which admissions related to the payments for the credit card debt.   The defendant did not respond to the Request for Admissions.¹  Number 9 of the admissions states that the defendant failed, refused, and neglected to pay the balance remaining on the credit line.   Admission number 10 is admission that the unpaid balance is $27,639.26.   There has not been any objection as to the accuracy or reliability of the records.   The records indicate that the account balance of the credit card with interest and late payments associated to the use of the card is $27,639.31.   The plaintiff has also provided supporting documentation for the interest at $1,718.94 and the costs of the action for $335.00.   Lastly, in accordance with the credit agreement the plaintiff has submitted an affidavit for attorney fees requesting $2,843.75.   In the affidavit counsel indicates that the hours are 10.25 and the hourly fee is $325.00.   These amounts do not support the request for $2,843.75.   However, viewing the affidavit which shows that 8.75 hours were expended, the court awards fees of $2,127.50 for 8.75 hours at a rate of $250 per hour.

CONCLUSION

The plaintiff has established through its affidavit and monthly statements that the defendant is liable for the account statement.   The defendant has failed to provide any response to challenge the motion for summary judgment.   The plaintiff has put forth admissible evidence in support of the cause of action and damages in the amount of $27,639.31.   There is no genuine dispute regarding either liability or the amount of damages.   The defendant has not responded to the requests for admissions.   The plaintiff is entitled to judgment as a matter of law.   The court grants the motion for summary judgment for the plaintiff in the amount of $27,639.31 plus interest in the amount of $1,718.94.   The court also awards costs in the amount of $335.00 and attorney fees in accordance with the agreement submitted in the amount of $2,127.50

The Court orders that weekly payments in the amount of $35.00 per week will commence beginning on October 1, 2010.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. In accordance with the Practice Book § 13-23 the failure to respond to the admission within thirty days is deemed an admission.   Practice Book § 13-24 provides in part:  “Any matter admitted under this section is conclusively established ․”.  FN1. In accordance with the Practice Book § 13-23 the failure to respond to the admission within thirty days is deemed an admission.   Practice Book § 13-24 provides in part:  “Any matter admitted under this section is conclusively established ․”

Brazzel-Massaro, Barbara, J.