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Civil Court, City of New York,

DISCOVER BANK, Plaintiff v. Arlene LYNCH, Defendant.

Index No. CV-003011-20/BX

Decided: July 08, 2022

Plaintiff moves, by notice of motion, for summary judgment in this consumer credit action alleging that defendant had breached the terms of a loan agreement. Non-movant defendant has not offered any written opposition to the instant motion. For the reasons stated herein however, and based upon the complicated procedural record before the Court, the Court denies summary judgment in favor of plaintiff and instead grants summary judgment in favor of defendant, and the action is dismissed.

 Procedural History

This action was commended on February 7, 2020, slightly over a month before the current Covid-19 pandemic began to wreak havoc upon the City and its courts. Having failed to serve defendant with the summons and complaint within the requisite 120 days, plaintiff moved in July 2021 for leave to complete service out of time (Motion Sequence No. 001). Plaintiff mailed a copy of this motion to defendant, who did not appear on, or oppose, plaintiff's motion.

In a detailed 10-page decision and order dated November 3, 2021 and published at 2021 NY Misc. LEXIS 9084 (the “November Decision”), the Court (Gomez, J.) denied plaintiff's motion for additional time to serve the summons and complaint, finding that plaintiff had not established good cause for its failure to complete timely service. Plaintiff has not appealed or sought reargument/renewal of the Court's November Decision. Meanwhile, in August 2021, while plaintiff's motion for an extension of time was still pending, defendant apparently served on plaintiff — but did not file with the Court — an answer and notice of appearance of counsel on behalf of defendant in August 2021. There is no record that the Court was apprized of defendant's answer until plaintiff filed the instant motion. Plaintiff then filed the instant motion, which notably does not mention the November Decision at all, and instead relies upon defendant's answer as the “equivalent to personal service” pursuant to CPLR 320. (Statement of Material Facts., ¶ 6).

 Summary Judgment Standard and Law of the Case

As plaintiff notes, “summary judgment is a drastic remedy,” available “only where is no doubt as to the existence of a material triable issue of fact.” O'Sullivan v. Presbyterian Hosp. at Columbia Presbyterian Med. Ctr., 217 A.D.2d 98, 101, 634 N.Y.S.2d 101 (1st Dept. 1995). “In deciding a summary judgment motion, the evidence must be construed in a light most favorable to the party opposing the motion.” Corvino v. Mount Pleasant Cent. Sch. Dist., 305 A.D.2d 364, 364, 757 N.Y.S.2d 896 (2d Dept. 2003) (quotation and citations omitted). Additionally, the Court is authorized at summary judgment to search the record and award judgment in favor of a non-movant pursuant to CPLR 3212(b), and may do so without further notice to the parties. New Hampshire Ins. Co. v. MF Global, Inc., 108 A.D.3d 463, 467, 970 N.Y.S.2d 16 (1st Dept. 2013) (citations omitted); and 205 W. 147th St. LLC v. Daub, Index. No. 81704/17, 2018 NYLJ LEXIS 3753, *13 (Civ. Ct., New York Co. Nov. 14, 2018) (citations omitted).

A court considering summary judgment may also search the record for issues of law as well, “in the interests of justice and judicial economy.” Matter of Best v. MetLife Auto & Home Ins. Co., 7 Misc 3d 242, 249, 793 N.Y.S.2d 682 (Sup. Ct., Richmond Co. 2004). This includes legal determinations that were necessarily resolved on the merits in a prior decision, that may then be governed by the law of the case doctrine. See, e.g., Delgado v. City of New York, 144 AD3d 45, 51-52 (1st Dept. 2016) (discussing impact of law of the case doctrine in considering summary judgment). As the First Department recently held, “[t]he doctrine of the law of the case seeks to prevent relitigation of issues of law that have already been determined at an earlier stage of the proceeding” and “[i]t applies to prevent the parties or those in privity from relitigating an issue decided in an ongoing action where there previously was a full and fair opportunity to address the issue.” Aspen Specialty Ins. Co. v. RLI Ins. Co., Inc., 194 A.D.3d 206, 212 (1st Dept. 2021).


Even assuming for the sake of argument that personal jurisdiction was waived by defendant's answer, the November Decision poses an evidentiary problem for plaintiff.1 While plaintiff's memorandum of law makes much of defendant's burden in opposing plaintiff's motion for summary judgment, the plaintiff bears the initial burden in establishing that it is entitled to summary judgment, and CPLR 3212(b) is clear that “[t]he motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” In as much as defendant would need to come forward with admissible evidence controverting that plaintiff was entitled to summary judgment, that need only arises once plaintiff has shown prima facie that it is entitled to judgment at all. Indig v. Finkelstein, 23 N.Y.2d 728, 729, 296 N.Y.S.2d 370, 244 N.E.2d 61 (1968); and Connell v. St. Mary's Hosp., 45 N.Y.2d 944, 946, 411 N.Y.S.2d 554, 383 N.E.2d 1148 (1978). Plaintiff's submissions do not accomplish this.

In seeking more time to serve the complaint, plaintiff placed the merits of this action at issue, and annexed the complaint and its attached exhibits (a letter addressed to defendant and financial statements) as an exhibit to its motion.2 In denying plaintiff's motion, the Court found — at page 10 of the November Decision — that “the record is bereft of any evidence that this action has merit” As the Court relied on, among other things, that finding in denying Motion Sequence No. 001, the Court's prior holding that the record before the Court — namely, the letter to defendant and financial statements — was insufficient to establish the case had merit is now law of the case. Baldasano v. Bank of New York, 199 A.D.2d 184, 185, 605 N.Y.S.2d 293 (1st Dept. 1993). Plaintiff had a “full and fair opportunity to address the issue” as the First Department required in Aspen Special Insurance, supra. — indeed an opportunity without opposition from defendant — and a judge of this Court found that plaintiff's evidence did not establish a meritorious claim. November Decision, supra. Plaintiff cannot seek to reargue a decision it failed to even mention to the Court by seeking summary judgment now, and the Court need not revisit its prior decision sua sponte. See, e.g., First Am. Inv. Co. v. Fabian, 75 Misc 3d 1205(A), *2 n. 1 (Civ. Ct., Bronx Co. Apr. 26, 2022) (declining to treat subsequent motion practice as application for reargument).

Although plaintiff includes an affidavit by an employee of plaintiff in support of the instant motion, that affidavit principally relies upon the same documentary evidence that the Court previously found was insufficient to establish a meritorious claim when it was annexed to the complaint. Although plaintiff does include additional records — a series of periodic account statements purportedly sent to defendant — plaintiff's own witness confirms that the additional records are simply corollaries to the information already considered and rejected by the Court in the November Decision. (Affidavit of Jesse Waters sworn Sept. 15, 2021 (the “Waters Aff.”), at *2). While the additional records are cumulative, they do not substantively add to the quantum of evidence before the Court. Compare Maida Aff., Ex. A with Waters Aff., Exs. A-C. As plaintiff does not address the November Decision whatsoever in the instant motion, plaintiff has not sought the Court's reconsideration of the evidence, even if the Court were able or inclined to reconsider the matter now.3 As such, the same evidentiary questions that caused the Court to question the merits of this action have been unaddressed. The Court having found plaintiff's claim meritless once, and plaintiff not having sought proper review of that finding (nor having documented remedying the deficiency) the Court's previous ruling stands as law of the case, and the Court must adhere to the prior finding that plaintiff's claim is “bereft of merit.” Thus, plaintiff has, in effect, failed to state a claim, and consequently, the Court will grant summary judgment in favor of defendant.

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment in favor of plaintiff is denied, and it if further

ORDERED that the Court grants summary judgment in favor of defendant in this action and dismisses this action in its entirety; and it is further

ORDERED that the clerk enter judgment in favor of defendant and dismiss the action accordingly; and it is further

ORDERED that plaintiff serve a copy of this Order and written notice of entry thereof within 30 days of the date of this Order

This constitutes the Decision and Order of the Court.


1.   “[P]laintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained.” Munoz v. Reyes, 40 A.D.3d 1059, 1059, 836 N.Y.S.2d 698 (2d Dept. 2007) (quotation and citation omitted). Because plaintiff does not establish a claim supporting relief, the Court has assumed, but not decided, that personal jurisdiction has been established.

2.   See, Affirmation of Stephanie Maida dated Jul. 12, 2021 (the “Maida Aff.”), ¶ 16 (“Based on documentation and information, there is no question as to the meritorious nature of this action given the causes of action and the amount owed.”).

3.   Much like reargument, the Court will not treat plaintiff's instant motion as seeking leave to renew either. The facts concerning the underlying debt are not newly-discovered for purposes of CPLR 2221, and the service of defendant's answer was known by plaintiff before the November Decision. The sole reason that information was not consider by the Court in issuing the November Decision is the parties’ decision not to bring that development to the Court's attention while plaintiff's motion for time was pending. The interests of justice do not compel revisiting the November Decision now, and the Court will not do so.

Jeffrey S. Zellan, J.

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